The public and the media are frequently critical of the so-called “compensation culture”. They don’t always make it clear precisely what they complain about, but it seems to be a combination of fraudulent claims, large claims, successful claims, or indeed any claim in which the claimant recovers compensation. Lord Hobhouse joined in these criticisms last year, in the case of Tomlinson v Congleton Borough Council [2003] UKHL 47. In that case, the House of Lords reversed the decision of the Court of Appeal, and ruled that the Claimant should not recover damages for his broken neck, caused when he dived into shallow water in an inland lake in Cheshire.
I can readily understand some of the criticisms; for years we have joked about various apparently extreme claims, one of the recent in the press being the man who fell down stairs at home having been out drinking. Put that way, the claim does sound unrealistic, but of course there was more to that case than was reported (I represented the claimant). What troubles me is that this denigration of the supposed compensation culture will dissuade claimants, and more particularly claimants’ lawyers, from pursuing perfectly good and reasonable claims.
The Claimant in Tomlinson had been visiting a local country park for years, and it was common practice by visitors to swim in the lake, despite notices prohibiting swimming. The Councils which owned and managed the lake had decided that, because they felt that there was a history of misuse of the lake for swimming, and possibly several accidents, they would convert the sandy beaches round the lake into marginal planting which would be unattractive to people. The Councils had been pursuing this for some time, but funding had only just been made available at the time of the accident.
Lord Hoffman emphasised that one must balance risk, gravity of injury, cost and social value. He said:
“.... the question of what amounts to ‘such care as in all the circumstances of the case is reasonable’ depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other..... This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care ....”.
There are two other related considerations which are far more important (than cost: my note). The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.”
Another interesting emphasis in Lord Hoffman’s Opinion is “Free will”:
“I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities, he may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so. My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake.”
Lord Hutton “was attracted for a considerable time” by our arguments. Nevertheless, he decided that the Claimant should not recover compensation, because several cases cited by him express a principle which is valid today, namely that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff, and to impose a duty on him to do so. He did recognise, though, that there might be exceptional cases where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, for example where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of people had fallen.
Lord Hobhouse said:
“.... it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. ... In truth, the arguments for the claimant have involved an attack upon the liberties of the citizen which should not be countenanced”.
A very clear line of reasoning running through all the speeches is that legal policy must balance the needs of all concerned in any activity which is said to attract a duty by an occupier to prevent injury to a visitor or trespasser. One of the functions of the law lords is to establish legal policy, and therefore this is an important decision. It probably emphasises more than has been done previously that the balancing exercise which personal injury lawyers are all used to dealing with (risk of injury, severity of probable injury, practicality and cost of prevention) must also include as a major element in appropriate cases the twin considerations of impact of preventative measures on other people, and the freedom of the individual to undertake risky activities at his own peril.
For claimants’ lawyers, like me, Tomlinson is a disappointing result of the balancing exercise. I have to recognize, though, as do all lawyers, that we have law lords to tell us the answers to questions like this.
Having said that, this is not the end of all diving cases, or of all claims in which young men and women are injured whilst undertaking risky activities. As noted above, Lord Hutton recognised that there might be exceptional cases, and one of the cases cited to their Lordships was Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138, in which the Claimant dived into Folkestone harbour and broke his neck on concealed underwater concrete beams which protruded from the bed of the harbour. If he had done it during a sunny, summer day, rather than at midnight on Boxing Day, I would expect his appeal to the House of Lords to succeed. What will now need to be done is to make sure that the preventative steps, which are alleged by a claimant to be necessary, do not destroy the pleasures of a significant majority. Also, one has to recognise that people are entitled to run risks in their pursuit of leisure and pleasure (I race historic cars), and that a claim is only likely to succeed if the balancing exercise comes down firmly in favour of the claimant, after considerable allowance has been made for “the social value of the activities which would have to be prohibited”, and allowing “people of full capacity to decide for themselves whether to take the risk.”.
My advice to claimants’ lawyers would be to consider any case involving natural hazards and dangerous activities with great care. We should not be dissuaded from pursuing a claim simply because the hazard is a natural one, or because the activity is risky. I do not mean for one moment that we should ignore the House of Lords, or that I disapprove of their judgment. Of course that case is decisive, and will prevent some such claims from being commenced. However, all personal injury cases depend on their individual facts; to use Lord Steyn’s phrase, they are “fact specific”.
16 January 2004
Bill Braithwaite Q.C. represents claimants who have sustained brain or spine injury.
For the Leeds and Yorkshire Lawyer