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Donoghue v Folkestone Properties Limited, Court of Appeal

4 March 2003
The issues

Swimming – diving – Occupiers Liability Act – underwater obstruction.

The facts

The accident happened in the North West corner of the inner harbour at Folkestone. A slipway sloped from the shore into the harbour, initially parallel to the North wall of the harbour but then angling away from that wall and sloping down until it reached the bed of the harbour. Protruding into the harbour at right angles to the slipway were 7 substantial horizontal wooden beams each set on a concrete base. They formed a “grid bed” on which a boat could be placed as the tide ebbed, to provide access to her hull. They stood proud of the harbour bed to the extent of some 80 centimetres. The bed was wholly underwater for a period between 4 and 7 hours, depending on tides. The purpose of the slipway was to launch boats and jet skis. Members of the public had an implied licence to walk down the slipway to the water’s edge. They did not have a licence to use the inner harbour for the purpose of swimming, jumping or diving. There were near to the slipway in two places, steps from the harbour wall to landing stages. These were used in the Summer by children as places to enter the water to swim. At the head of each staircase but not by the slipway, was a notice prohibiting jumping and swimming in the harbour. Sometimes children or adults would swim from the slipway in the Summer. Security Guards would try to prevent the children from swimming and on occasions Police were called but to no particular effect. The Claimant, who was a professional Scuba Diver and trained in the Royal Navy, had spent the evening of Boxing Day drinking in Scruffy Murphy’s Public House. He had drunk at least 5 pints of beer. He and some of his friends decided to go for a swim. He dived in and hit his head on the submerged grid bed, breaking his neck. The Judge found for the Claimant following Tomlinson -v- Congleton Borough Council (under Appeal to the House of Lords).

The Defendant Appealed.

The decision

1. The 1957 Occupiers Liability Act imposed no duty towards trespassers.

2. The duty of care identified by Lord Diplock in Herrington and imposed by the 1984 Act, were less exacting than the common duty of care under the 1957 Act. The 1984 Act imposes a duty where:-

(a) The state of the premises poses a danger and;
(b) The danger is one that poses a risk of causing injury to a trespasser if he comes into the area of the danger and;
(c) There are reasonable grounds for believing that the trespasser is or may come into that area and;
(d) In all the circumstances is reasonable to give the trespasser some protection.

3. There will be situations where it may be foreseeable that a trespasser will appreciate that a dangerous property or area poses a risk of injury, but will deliberately court the danger and risk the injury. In those circumstances where the individual is an adult, it will be rare that he can come within the 1984 Act.

4. There are certain types of land that are not inherently dangerous but which may tempt someone onto the land to indulge in an activity, which carries a risk of injury, such as cliff climbing, mountaineering or skiing. In the absence of a mishap being caused by an unusual or latent feature of the landscape, the 1984 Act would not impose any duty on an occupier to protect a trespasser from making use of a particular feature of the premises to carry on an activity simply because that activity carries with it risk of injury.

5. The Court expressed some difficulties with the majority Judgments in Tomlinson. The Court was unable to identify in either Judgment what “state of the premises” there were which posed a danger carrying with it the risk of injury suffered by Mr Tomlinson. It appeared to the Court that Mr Tomlinson had suffered his injury because he chose to indulge in an activity, which had inherent dangers, and not because the premises were in a dangerous state. Nor could the Court easily reconcile Lord Justice Sedley’s statement that “it is only where the risk is so obvious that the occupier can safely assume that nobody will take it but there will be no liability”. The terms under which the 1984 Act imposed a limited duty of care in respect of trespassers.

6. At the time that Mr Donoghue was injured, the Defendant had no reason to believe that he or anyone else would be swimming from the slipway.

7. The criteria of Section 1(iii)(b) was not satisfied. (An occupier owes a duty if “he knows or has reasonable grounds to believe that [the trespasser] is in the vicinity of the danger concerned”.

8. No duty therefore was owed to Mr Donoghue.

Appeal allowed

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