Darby v National Trust [2001] E.W.C.A. Civ 189

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.

• 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?

The Court of Appeal rejected the widow's claim. The ordinary danger of drowning in deep water was apparent to an adult, and the occupier was not required to give a further warning of that risk on these facts. A possible obligation to warn about Weil's disease concerned a different danger. The claimant could not use an alleged failure concerning disease as a basis for recovering a death caused by drowning simply because such a warning might have discouraged entry. The analysis therefore required attention to the scope of the duty and the harm it protected against. No concealed feature of the pond was established as a relevant cause requiring a different warning.

An occupier need not warn an adult of an ordinary, obvious drowning risk which that person can appreciate. A supposed duty to warn against a different danger cannot establish liability unless the injury falls within the scope of that duty.

Darby combines obvious-risk reasoning with the scope-of-duty principle. The claimant could not convert an argument about warning against Weil's disease into a damages claim for drowning merely because either warning might have discouraged swimming. The risk against which the duty protects must be identified. The decision does not establish that every stretch of water is safe or that concealed hazards never require precautions; its reasoning concerns the ordinary drowning risk on these facts.