Darby v National Trust

An occupier need not warn an adult visitor about dangers which are obvious and appreciated, unless the premises present a special, non-obvious risk. The duty is assessed by reference to the kind of damage against which protection is required. A duty to warn against one risk, such as Weil’s disease, cannot support liability for injury caused by a different risk, such as drowning. Expert evidence may assist, but the court determines whether the statutory duty has been breached.

The claimant brought proceedings against the National Trust under section 2 of the Occupiers’ Liability Act 1957 after her husband drowned while swimming in a pond at Hardwick Hall. The assistant recorder found the National Trust liable and awarded damages of £114,194, accepting expert evidence that the pond required clearer warnings, stronger preventive measures and rescue equipment.

The National Trust appealed on liability. The claimant and defendants also appealed against the assessment of damages, contingent on the liability appeal. The central issue was whether the National Trust owed a duty to warn against swimming or to take other measures where the risks of drowning were said to be obvious.

1. Appeal allowed. The court entered judgment for the National Trust. The appeals concerning quantum therefore did not arise.
2. Under section 2 of the Occupiers’ Liability Act 1957, the question was whether reasonable care required the National Trust to make visitors reasonably safe. The court, rather than the expert witness, had to determine whether that duty had been breached.
3. The relevant risks to a competent adult swimmer were obvious. The pond was open water, was murky, and was sufficiently deep to take a swimmer out of his depth. Those characteristics did not create a special danger which the National Trust should have identified and warned against. A notice stating that swimming was dangerous would have conveyed no more than the deceased already knew.
4. The principle in Staples v West Dorset District Council [1995] PIQR 439 applied. Where an adult visitor appreciates an obvious danger, is under no pressure and is free to take precautions, the occupier ordinarily has no duty to provide a warning.
5. The scope of any duty depended on the kind of damage against which protection was required. A possible duty to warn against Weil’s disease could not found liability for death by drowning, because the risks and the corresponding duties were intrinsically different. The court relied on the reasoning in South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 and considered that the principle was not displaced by Jolley v Sutton LBC [2000] 1 WLR 1082.
6. There was no general duty to place warnings around every stretch of coastline, inland lake or reservoir where the dangers of drowning were no greater than those obvious to an adult. The same reasoning applied to risks arising from cold water, mud or sludge. The order was: appeal allowed, with costs not to be enforced without further order; the claimant’s costs assessed at nil; the defendants’ costs payable by the Legal Services Commission; and permission to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): The National Trust appealed from the decision of Mrs Assistant Recorder Wilson in Darby County Court. The Court of Appeal allowed the appeal and entered judgment for the defendants. The contingent appeals concerning damages did not arise.