Tomlinson v Congleton Borough Council [2003]

English Tort Law

Tomlinson v Congleton Borough Council [2003]
‘Solitary Swimmers’ by Pedro Covo

Reckless endangerment and the scope of relevant statute prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers despite flagrant ignorance by the a majority of the attending public.

Unfortunately on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck. Now facing life as a tetraplegic the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity s.2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

However in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in s.1(1) of the 1984 Act s.1(1) while s.1(5) and s.1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

This translated that where no award was found under the first Act then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd in which the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

And so given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltd  in which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

In the first instance the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability, and so dismissed the claim before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages, however under challenge, the House of Lords fully considered the accountability of the respondent before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”

Campbell v Mirror Group Newspapers (MGN) [2004]

English Tort Law

Campbell v Mirror Group Newspapers (MGN) [2004]
‘Recycle’ by Steve Mills

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’, in which the publication revealed that despite  repeated protests the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction she had enrolled into a self-help programme. 

Unfortunately one of the images had captured the sign of a well-known café, thereby allowing readers to know where she may be found, while the article text revealed how often she might be attending, while prior to its release the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined art.8(2) of the Human Rights Act 1998, which reads that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.”

And art.10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[A] duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the e­ffect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Which was a position concurrent with s.12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

And so by embracing both elements to the argument the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her art.8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”