It seems to me that a reasonable man, taking account of
the chances against an accident happening, would not
have felt himself called on either to abandon the use
of the ground for cricket or to increase the height of
his surrounding fences. He would have done what the
appellants did. In other words, he would have done
nothing.
In more recent times, there has been growing concern
about the development of a ‘compensation culture’
fuelled by ‘no win, no fee’ arrangements for legal ser-
vices, the perception that most risks will be covered by
insurance and a general increase in compensation pay-
ments. It is said that this has led to a much more risk-
averse approach particularly by public authorities, who
fear the financial and reputational impact of legal claims.
The issues were aired in the following case.
In a number of recent cases the courts have demon-
strated their reluctance to award compensation for accid-
ents where people should have taken responsibility for
their actions. For example, in Simondsv Isle of Wight
(2003) the defendant Council was not liable when a five-
year-old child fell off a swing and broke his arm. A swing
presents an inherent and obvious risk which a parent
should appreciate if they allow their child to use the
swing. There is further evidence of the courts’ reluctance
to award compensation when people are injured particip-
ating voluntarily in hazardous activities.Part 3Business transactions
336
Tomlinsonv Congleton Borough Council
and Cheshire County Council(2004)
The claimant, John Tomlinson, was severely injured when
he made a shallow dive into a lake in a country park
owned by the Borough Council and managed by the
County Council. The County Council pursued a policy of
prohibiting swimming in the lake: notices were placed
near the lake stating ‘Dangerous Water. No swimming’
and the park rangers would try to get swimmers out of
the water. However, the lake was a popular place to
swim. The claimant based his claim on a breach of the
Occupiers’ Liability Act 1984 (see below, p 429 ). It
was accepted that he was a trespasser as he had seen
and ignored the warning notices but he claimed that the
Council had not discharged the duty that it owed to him
because they should have taken more drastic action to
prevent him going swimming. The House of Lords held
that the defendants were not liable. Although the
defendants owed a duty of care to both visitors and tres-
passers, such as Mr Tomlinson, it was not reasonable
to expect the defendants to protect him from dangers
which were perfectly obvious. Their Lordships expressed
concern that to hold otherwise might lead to the defend-
ants curtailing the activities of responsible users of the
park. As Lord Hoffmann put it: ‘... I think that there is an
important question of freedom at stake. It is unjust that
the harmless recreation of responsible parents and chil-
dren with buckets and spades on the beaches should
be prohibited in order to comply with what is thought to
be a legal duty to safeguard irresponsible visitors against
dangers which are perfectly obvious. The fact that such
people take no notice of warnings cannot create a duty
to take other steps to protect them.’Poppletonv Trustees of the Portsmouth
Youth Activities Committee(2008)
The claimant was paralysed when he fell from a climbing
wall onto 12′′absorbent matting. He had seen other
climbers jumping from the walls to grab hold of metal
bars which crossed the room, but when he tried to copy
them, he did not complete the leap successfully and
instead somersaulted in the air and landed on his head.
At first instance, he was judged to be 75 per cent to
blame for his injuries, and he was awarded 25 per cent
of his loss against the defendants. The Court of Appeal
held that he was wholly to blame. The risk of falling was
plainly obvious. It was clear that no amount of matting
could provide complete protection against an awkward
fall. There were inherent and obvious risks to the activity
which the claimant had undertaken. In these circum-
stances, the law did not require the defendants to pre-
vent him from undertaking it, nor to train him or supervise
him. It made no difference that the claimant had paid to
use the climbing wall or that the rules could have been
displayed more prominently.In 2006 the government brought forward legisla-
tion to deal with the ‘compensation culture’ which it
believed was leading to overly cautious behaviour. The
Compensation Act 2006 puts on a statutory footing
the principles already enunciated in recent cases, such
as Tomlinson. When considering whether a particular
standard of care is reasonable, the courts can take into
account whether requiring particular steps to be taken
to meet the standard of care would prevent or impede a
desirable activity from taking place.Res ipsa loquitur
It is normally the responsibility of the claimant to show
that the defendant did not act reasonably, i.e. the bur-
den of proof lies with the claimant. If the claimant is