• In the case of Darby v National Trust [2001] E.W.C.A. Civ 189, it was held that the occupier of land is under no duty to warn visitors of obvious risks such as drowning in a pond. In addition, where two dangers are intrinsically different, so are the duties arising from them. An action for breach of duty to protect against one danger cannot be supported by a duty to protect against the other danger.

Facts of the Case

  • D controlled the grounds of a stately home, which included a deep pond which visitors used for paddling and swimming.
  • D did little to discourage or prevent visitors from using this pond. There were no warning notices or life-saving equipment nearby.
  • The pond was not systematically patrolled, although park wardens who met swimming visitors would discourage them and warn them of the danger of contracting Weil’s disease from the water.
  • On 23rd August 1997, C and her family attended the grounds. While playing in the water with their children, C’s husband went into the deepest part of the pond and drowned. He passed away in hospital on 9th September.
  • C brought action against D, arguing that they were in breach of the common duty of care (under the Occupier’s Liability Act 1957 s2) to take reasonable steps to ensure visitors would be safe using the premises.

Issues

  • Was D in breach of the duty by failing to warn of an inherent risk, that being drowning in deep water?
  • Did the risk of contracting Weil’s disease (and D’s failure to deter swimming in the face of it) support an action where the breach resulted in drowning?

Held by the Court of Appeal (Civil Division)

  • Finding for D, that the common duty of care does not extend to warning visitors of an obvious danger, unless there is a covert causative risk that is not obvious.
  • The risk of contracting Weil’s disease and the risk of drowning were fundamentally different, and so were any duties arising from them. A breach of duty to protect against Weil’s disease could not support a claim attributable to a different cause.

May L.J.

  • The Royal Society for Prevention of Accidents advocates that ‘No Swimming’ notices should be installed in areas with deep water as a bare minimum. Particular attention should be given where open water swimming occurs. Rescue arrangements should never be relied upon in isolation to prevent drowning.
  • This pond was particularly unsuitable for swimming. The water was deep in the middle and generally murky, and the ground at the edges was uneven. There were no clear warning notices…in short, there were inadequate warnings and steps taken to prevent people swimming in the pond.
  • D has argued that the pond had no characteristics making it more dangerous than any other pond, and its dangerous characteristics were readily apparent. All these matters were known to C’s husband based on his prior experiences.
  • “It is of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability; but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required” [16].
  • I must conclude that C cannot attribute negligence to D in circumstances where nothing was known to them or would have been known to them if previous inspections had been made, which C’s husband did not know and already appreciated.
  • It has been argued that D should be liable because the risk of Weil’s disease required a notice, and the placement of such a notice would have given effective warning deterring visitors from drowning.
  • While Weil’s disease is undoubtedly unpleasant, it was not the risk C’s husband suffered, and any duty to warn against Weil’s disease cannot support a claim resulting from an entirely different cause.
  • It is not sufficient to simply ask whether A owes B a duty of care. We must always determine the scope of the duty by reference to the kind of damage from which A must take to prevent B from suffering.

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