Donoghue v Folkestone Properties Ltd

Under section 1(3) of the Occupiers’ Liability Act 1984, an occupier’s duty to a non-visitor is owed to the individual claimant in the circumstances existing when the injury occurred. A claimant’s membership of a class of anticipated trespassers may assist in applying section 1(3)(b). It does not remove the need to decide whether the occupier had reasonable grounds to believe that this claimant might be near the danger at the material time.

The statutory duty is less exacting than the common duty owed to visitors. It will rarely require protection for an adult who knowingly courts an obvious danger. A concealed obstruction beneath apparently deep water may nevertheless be a danger due to the state of the premises. The conditions in section 1(3) must be met before the standard of care in section 1(4) arises.

The claimant, an experienced professional diver, entered the defendant occupier’s harbour shortly after midnight in mid-winter and dived naked from a slipway into shallow water over submerged grid piles. He struck a pile, suffered a broken neck and became tetraplegic. Swimming, jumping and diving in the harbour were unauthorised, although the defendant knew that people did so near the slipway in summer.

His Honour Judge Bowers held that the defendant owed a duty under section 1 of the Occupiers’ Liability Act 1984, breached it by failing to display a warning sign, and reduced damages for contributory negligence. The defendant appealed on the existence of duty. The central issue was whether section 1(3)(b) had to be applied to the circumstances when this accident occurred, or could be satisfied by knowledge of summer swimmers as a class.

1. Appeal allowed. The judge’s order was set aside, the claim was dismissed and judgment was entered for the defendant.
2. Section 1(3) sets the conditions for the existence of a duty to a non-visitor. Section 1(4) states the standard of care once that duty has arisen. The duty is owed to the individual trespasser who sustained injury. A class of anticipated trespassers may be relevant evidence under section 1(3)(b), but it does not make the duty one owed generally to that class.
3. The conditions in section 1(3) must be assessed in the factual circumstances at the actual time and place of the injury. The distinction suggested by Ward LJ in Tomlinson v Congleton Borough Council [2002] EWCA Civ 309, between a class-based inquiry under section 1(3) and an individual inquiry under section 1(4), was not part of that court’s majority ratio and was disapproved.
4. The defendant knew of the submerged grid piles and knew that people swam, jumped and dived near the slipway in summer. It had no reasonable grounds to believe that anyone would be swimming there after midnight in mid-winter. Section 1(3)(b) was therefore not met, and no duty arose in respect of this accident.
5. The court added that the 1984 Act imposes a materially less exacting duty than the common duty owed to visitors. It will rarely require an occupier to protect an adult who deliberately courts an obvious risk. An injury caused merely by the inherent risks of a chosen activity is not ordinarily due to the state of the premises, although a concealed obstruction beneath apparently deep water may engage the Act.

• Court of Appeal (Civil Division): Allowed the defendant’s appeal in Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231, set aside the order below, and dismissed the claim.
• High Court (Queen’s Bench Division): His Honour Judge Bowers, sitting as an additional High Court judge, on 2 September 2002 held the defendant liable under section 1 of the Occupiers’ Liability Act 1984, subject to a 75 per cent reduction for contributory negligence. The citation is not stated in the judgment.