Tombstoning Claims: Can they be defended?

Published 7 September 2022

When hot weather comes to the UK it brings news stories of young people jumping into rivers or the sea and all too often getting into difficulty with tragic consequences.

In particular, the practice of ‘tomb-stoning’ has become more popular over recent years. This is the act of jumping in a straight, upright vertical posture into the sea, a body of water or even lakes in disused quarries from a high platform. This could be a clifftop, bridge or harbour edge.

The question for local authorities, public bodies and private companies is whether they can be held liable for any injuries suffered by anyone taking part in what is clearly a dangerous and risky activity.

The majority of these cases will be dealt with under Occupier’s Liability. The starting point for any of these cases will be the leading case of Tomlinson v Congleton Borough Council and another [2003] UKHL. A Claimant entered a lake in a country park and from a shallow position dived in, hitting the bottom and breaking his neck. The lake had formed in a disused quarry. There were prominent notices around the lake stating “Dangerous Water: No swimming” and in addition rangers would give oral warnings to those swimming and hand out safety leaflets. It was accepted the Claimant was a trespasser. The House of Lords ruled that 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.

But what if there was no signage or warnings?

In the case of Baldacchino v West Wittering Estate Plc [2008] EWHC 3386 (QB) a 14 year old schoolboy climbed a navigation beacon whilst on a trip to the beach and dived into the sea. He sustained injuries which left him paralysed from the neck down. The Court held the following:

1. The Claimant was a trespasser. The beacons on the beach were not part of the beach to which visitors had a right of access, it was not a climbing frame or makeshift diving platform.
2. There was no significant history of people being injured jumping from the beacon or this activity being tolerated, it was assumed that it had been done earlier in the day and that lifeguards had told the Claimant and his friends not to do this.
3. The “premises”, being the beacon, sandy floor and seawater that was gradually receding, was not inherently dangerous. The risk arose from the awkward angle of the dive and the Claimant failing to assess the depth of the water.
4. It was not incumbent on the Defendant to erect a sign to tell people something which was perfectly obvious to most people. The presence of lifeguards was sufficient to discharge the Defendant’s common law duty to its visitors.

When considering the obvious risk we come to the case of Staples v West Dorset DC [1995] P.I.Q.R. P439 where the Claimant slipped on algae that had formed on a harbour wall. He contended the Defendant should have put a warning sign 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.

As such, once a potential Defendant is on notice of any previous accidents or a particular activity taking place, such as diving off a particular point, they should consider if warning signs are needed. If not, liability may follow.

What if the individual involved is a child?

As noted above, a lot of cases of this type will involve children and, in particular, teenagers.

In Baldacchino described above the Court found that a 14 year old child was able to assess the state of the premises. In Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39 the Court specifically dealt with this point noting that if the danger is attributable to the premises, any duty that flows from this 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 a trespasser, was not relevant. In that case the injured party was an 11 year old child.

Therefore, the Claimant’s age is not a barrier to defending many of these claims. It is, again, a consideration that potential Defendants may wish to take into account if they are advised of, for example, groups of teenagers tombstoning off in 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 these are places where fencing is not desirable such as a cliff top.

The case of Liddle v Bristol City Council [2018] EWHC 3673 (QB), which we successfully defended to trial, involved a cyclist who 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 to not 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.

A further consideration may be where an individual has accessed a coastline under the Countryside and Rights of Way Act 2000. Where this applies the individual is generally treated as a trespasser and liability is limited in certain circumstances. However, this should be approached with care as if there is a suggestion there was an invitation to access the area then this special protection cannot always be relied upon. 

The watchword in these cases is that if accidents do occur, defendants are generally in a strong position to defend claims based on risky activities where the hazard is obvious and inherent in the activity itself.