The instance I am traveling to look into is a torts instance affecting personal hurt. The instance was reported in assorted jurisprudence books, diaries and articles, such as Weekly Law Reports, Appeal Cases, All England Reports ; besides in Times and Independent magazines. At the first case, the instance was heard in the High Court, so it went to Court of Appeal, where the Lords of Appeal held in favor of the claimant. This determination was overruled in House of Lords by Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough and Lord Scott of Foscote as sitting Judgess. Claimant – Tomlinson, was represented by Paul Ross & A ; Co Solicitors, and Congleton Borough Council – suspects, were represented by James Chapman & A ; Co Solicitors.
Onto the facts of the instance. One cheery afternoon, in May 1995, Mr Tomlinson, aged 18, decided to see a adult male made lake in Cheshire with his friends, in a state park in the borough of Congleton. During his visit, Mr Tomlinson decided to plunge into the lake, disregarding marks and notices warning of a danger of swimming in the lake. Unfortunately, Mr Tomlinson hit his caput on the flaxen underside of the lake, as he dived into the shallow H2O. As a consequence of this accident, he broke his cervix and suffered serious hurts, go forthing him tetraplegic – a signifier of a palsy that consequences in the partial or, in some instances, a entire loss of usage of all limbs and organic structure. After the incident, Mr Tomlinson sued Congleton borough council under the Occupier ‘s Liability Act 1984[ 1 ], claiming for loss of future earning, loss of enjoyment in life and the medical costs he would necessitate subsequently on as a consequence of his hurts. Under this Act, “ any responsibility is owed by a individual as resident of premises to individuals other than his visitants in regard of any hazard of their suffering hurt on the premises by ground of any danger due to the province of the premises or to things done or omitted to be done on them ” . Tomlinson claimed, that there were no moderately equal warning marks and notices for him to place the danger of plunging in the H2O. He besides claimed on the footing that he was a intruder and non a visitant. Court had to make up one’s mind whether Mr Tomlinson was owed a responsibility under 1984 Act. Council argued that they had taken sensible safeguards to avoid such incidents such as holding notices and park Texas Ranger patrols. However, despite “ every sensible safeguard had now been taken, but it was recognised that some heady individuals would go on to set their lives at hazard. ”[ 2 ]Besides, in favor of council ‘s statement, they mentioned that after a few about fatal incidents of the same sort by intoxicated visitants of the park, council removed some characteristics of the lake that attracted visitants. Lord Nicholls stated in his opinion “ it seems to me that Mr Tomlinson suffered his hurt because he chose to indulge in an activity which had built-in dangers, non because the premises were in a unsafe province. ” Lord Hoffmann said: “ Nothing about the mere at Brereton Heath which made it any more unsafe than any other ordinary stretch of unfastened H2O in England ” . Council ‘s entreaty was allowed on two evidences: Mr Tomlinson ‘s hurt was non due to the “ province of premises ” ; the determination in favor of the claimant would deter council from supplying attractive installations for the visitants of the park. Lord Hobhouse mentioned obiter: “ The chase of an unrestrained civilization of incrimination and compensation has many evil effects and one is surely the intervention with the autonomy of the citizen. Of class there is some hazard of accidents originating out of the joie de vivre[ 3 ]of the immature, but that is no ground for enforcing a Grey and dull safety government on everyone. ”
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One of the of import instances mentioning Tomlinson instance is Donoghue V Folkestone Properties Ltd[ 4 ]. In this instance, claimant, Mr Donoghue, dived into the sea from a shipway and hit his caput on some object, besides go forthing him tetraplegic. He sued the proprietors of the seaport he dived from claiming that they owed him a responsibility of attention under Occupier ‘s Liability Act 1957, which is concerned with lawful visitants, instead than intruders. Subsequently on, claimant had to acknowledge that the responsibility was owed to him under Occupier ‘s Liability Act 1984, under which he was classed as a intruder. He could non claim that he was merely a visitant chiefly because suspect did non cognize at a clip that suspect was at his premises. Claimant succeeded, but his amendss were reduced by 75 % due to conducive carelessness. However, entreaty from the suspects was allowed on the footing that they could non moderately be cognizant that the claimant was on their premises at a clip of the incident. The seaport was used for plunging earlier, but all these events were taken topographic point in the summer as opposed to a December dark. This instance and a instance of Tomlinson are really similar nevertheless, there is a really of import differentiation where in Tomlinson ‘s instance he was a visitant and Donoghue was a intruder. Although the hurt was because of the “ province of premises ” , the claim was non successful on the evidences that suspects could non anticipate the presence of the claimant at that clip.
Court of Appeal determination in Ministry of Defence V Radclyffe[ 5 ]distinguished from Tomlinson ‘s determination. In this instance, a group of soldiers under bid of an ground forces captain ( suspect ) , jumped off the span into the lake, during an escapade preparation exercising in Germany. Defendant allowed his work forces to leap off the span and insisted that him and claimant ( 2nd lieutenant ) would besides leap, so they did. The following twenty-four hours claimant and few other soldiers jumped off the span once more, but this clip, claimant suffered serious hurts. He claimed in carelessness on the footing that suspect allowed his work forces to leap. MOD argued that claimant acted of his ain will and at his ain hazard. Appeal was dismissed on the evidences that although the work forces were away responsibility at the clip of the incident, ground forces subject and duty was still in topographic point and that suspect owed a responsibility to claimant and other soldiers while they were at the lake. Soldiers asked him if they could leap ; he could non do them leap, but he could halt them from leaping. In this instance, MOD was non the proprietor of the lake, and the relationship between claimant and suspect was that of employee and employer, as opposed to occupier and visitant, Tomlinson distinguished.
In my decision, I would wish to set up ratio decidendi – ground for the determination, and obiter dictum – other things said in Tomlinson ‘s instance. I think ratio here is that it was Tomlinson ‘s pick and it was his determination to plunge into the lake, or “ indulge in unsafe activity ” , and the hazard of the hurt was moderately foreseeable and it was non due to the province of the premises ; besides any topographic point can be claimed to be unsafe if it is chosen for some unsafe activity. In obiter opinion, it was mentioned, that there is ever some hazard of accident originating from activities of immature people and it is non just to be able to action and inquire for a compensation for such accidents.
