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A young man whose high-spirited dive into a disused sand pit left him severely injured was today fighting a last-di...
A young man whose high-spirited dive into a disused sand pit left him severely injured was today fighting a last-ditch battle for considerable compensation at London's appeal court.

John Tomlinson was aged just 18 when he dived head first into a lake near his home - known as 'The Mere' in Brereton Heath Park, near Congleton - on a sweltering day in May 1995.

His head struck the bottom and he suffered a broken neck. A young friend saved his life, but he was left almost paralysed for life from the neck downwards.

Mr Tomlinson, now 25, sued Congleton BC and Cheshire CC, who jointly manage the park, claiming they had not done enough to protect members of the public who routinely flouted notices banning swimming in The Mere.

But his case was dismissed by high court judge, Mr justice Jack, in March last year. The judge ruled the risks of diving into The Mere were 'obvious' and neither council could be blamed for the tragedy.

Mr Tomlinson's defeat was made all the more bitter by the fact that he had been offered more than£470,000 to settle his case prior to the trial.

He was also ordered to repay a£28,000 'interim payment' which the councils had paid him on account of the damages award he expected but which did not in fact materialise.

But his lawyers were today fighting to persuade three appeal court judges that Mr justice Jack was wrong to dismiss his case.

His counsel, Bill Braithwaite, said the councils were aware that signs posted around the lake banning swimming were 'generally flouted' by members of the public who for years had flocked to The Mere in hot weather.

He said the councils had been aware of the dangers posed to swimmers from as early as 1983. Amongst the 'catalogue' of incidents there had been five 'near-drownings' at The Mere in the years before Mr Tomlinson's accident.

Swimmers could have been effectively discouraged from venturing into The Mere by planting reeds at the water's edge or laying soil over the beaches at a cost of£15,000 or less, he added.

But he referred three top judges to the alleged 'history of inaction by the defendants (the councils) in the knowledge of danger to members of the public visiting The Mere.'

The councils were aware that the 'No Swimming' notices were 'ineffective' and Mr justice Jack had taken 'too narrow' a view of the law when he dismissed Mr Tomlinson's case, he added.

In his ruling, Mr justice Jack had described the warning signs as 'large and prominent' and said that The Mere was in fact no more dangerous than any other stretch of open water.

But Mr Braithwaite argued he had reached an 'erroneous conclusion' on the evidence.

He also attacked the judge's conclusion that, even had Mr Tomlinson proved the councils liable, he would have ruled him two-thirds responsible for his own misfortune.

But Mr Braithwaite conceded that Mr Tomlinson knew he had not been allowed to swim in The Mere and that, the moment he entered the water, he was legally 'a trespasser'.

Thejudges hearing the appeal - Lord justice Ward, Lord justice Sedley and Lord justice Longmore - are expected to reserve their decision until a later date.


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