14 Feb 2023
by Roxanne Mitchell

In particular, the practice of tombstoning has become more popular over recent years. This is the act of jumping in a straight, upright vertical posture into a body of water from a high platform. This could be a clifftop, bridge or harbour edge.

Can councils, public bodies and private companies be held liable for injuries suffered by anyone taking part in what is clearly a dangerous and risky activity?

Most of these cases will be dealt with under occupiers’ liability. The starting point for any of these cases will be the leading case of Tomlinson v Congleton Borough Council and another 2003. The Claimant dived into the shallow part of a lake in a country park, hitting the bottom and breaking his neck. There were prominent notices stating ‘Dangerous Water: No Swimming’ and rangers would give oral warnings to swimmers and hand out safety leaflets. The Claimant was a trespasser. The House of Lords ruled the danger had not arisen due to the state of the premises as to things done or omitted to be done, but from the Claimant’s own misjudgement.

No signage or warnings?

In Baldacchino v West Wittering Estate Plc 2008 a 14-year-old schoolboy climbed a navigation beacon while on a trip to the beach and dived into the sea. He was left paralysed from the neck down. The Court held that: ‘the Claimant was a trespasser. The beacons on the beach were not part of the beach to which visitors had a right of access, and not a climbing frame or makeshift diving platform.’

There was no significant history of people jumping from the beacon or this activity being tolerated. The ‘premises’, being the beacon, sandy floor and seawater that was gradually receding, were not inherently dangerous. The risk arose from the awkward angle of the dive and the Claimant failing to assess the depth of the water.

It was not incumbent on the Defendant to erect a sign to tell people something which was perfectly obvious. The presence of lifeguards was sufficient to discharge the Defendant’s common law duty to its visitors.

In Staples v West Dorset DC 1995, the Claimant slipped on algae that had formed on a harbour wall. He contended the Defendant should have put warning signs in place regarding the slippery algae. The Court considered the Claimant was a visitor, but any signage would not have told him anything he would not have known and the danger was obvious.

However, in that case there was no history of previous accidents, as in Baldacchino, and it was noted that had there been, the lack of warning signs may have led to a different result.

Once a potential defendant is on notice of previous accidents or a particular activity, such as diving off a particular point, they should consider if warning signs are needed. If not, liability may follow.

What if the individual is a child?

In Baldacchino the Court found that a 14-year-old was able to assess the state of the premises. In Keown v Coventry Healthcare NHS Trust 2006, the Court noted that if the danger is attributable to the premises, any duty may vary according to whether the individual is an adult or a child. However, as a general rule, the age of the Claimant, in this case an 11-year-old trespasser, was not relevant.

Therefore, a claimant’s age is not a barrier to defending these claims. It is, again, a consideration potential defendants could take into account if they are advised that, for example, groups of teenagers are tombstoning from a particular area.

Do you need to put up a barrier or fencing?

Many areas where these sorts of activities take place require open access, such as a harbour front, or are places where fencing is not desirable, such as a cliff top.

In Liddle v Bristol City Council 2018, which DAC Beachcroft successfully defended to trial, a cyclist died when his wheel became stuck in tram lines on the harbourside and he went into the water. The Council had put up appropriate warning signs. The Court considered there was a public utility in preserving the dockside heritage and the Council had ensured visitors were reasonably safe and fencing was not required.

There are strong public policy reasons not to fence or barrier every danger, but in doing so we must consider the balance of other measures that may be necessary to keep individuals safe.

If accidents do occur, defendants are generally in a strong position to defend claims arising from risky activities where the hazard is obvious and inherent in the activity itself.

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