Should Tomlinson play a part in employer liability cases? Ravi Nayer investigates
Much has been written about the House of Lords’ judgment in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2003] All ER (D) 554 (Jul) in which the law lords held that whether a claimant was a trespasser in a lake or a lawful visitor when he swam, the defendant council had no liability to him under the Occupiers’ Liability Act in respect of an obvious risk which he willingly ran.
In this journal, as elsewhere, the detail of its application to occupiers’ liability cases and the “compensation culture” that prompted it have been much rehearsed, while virtually nothing has been said of how, if at all, Lord Hoffmann’s powerful imperative that people should accept responsibility for the risks they willingly choose to run applies in the “employment context”. In Radclyffe v The Ministry of Defence [2009] EWCA Civ 635, [2009] All ER (D) 299 (Jun), however, the Court of Appeal considered this important issue.
The facts of Radclyffe
The Okerstausee lake in the Harz nature reserve, near Hanover, Germany is a renowned
