Donoghue v Folkestone Properties [2003] EWCA Civ 231; [2003] 2 WLR 1138

D was the owner and occupier of a tidal harbour with a slipway and two sets of steps leading into the water. At the head of each set of steps, but not on the slipway, were notices forbidding jumping and swimming in the harbour. C, a professional diver, dived from the slipway into the harbour after midnight in mid-winter and struck his head on a grid pile under the water adjacent to the harbour wall and broke his neck. He became tetraplegic. He brought an action against D claiming for a breach of duty which he alleged D owed to him as a trespasser under the Occupiers Liability Act 1984. He held that that was sufficient to impose on D, a duty to C under the 1984 Act. D appealed

• Did D owe a duty of care to C as he did not know or be reasonably expected to know that C would dive into the harbour when he did.

The appeal was allowed, and D did not owe a duty of care to C The exercise of duty had to be determined by reference to the likelihood of the individual claimant’s presence in that vicinity at the actual time and place of the danger to him. It did not follow that because D owed a duty to trespassers swimming in the harbour during the summer of whose presence it was aware, a similar duty was owed to such trespassers in the winter; that since on the judge’s findings that D had had no reason to believe that C or anyone else would be swimming in the harbour mid-winter, D had owed no duty to C under section 1(3) and liability cannot be established.

The Occupiers' Liability Act 1984 conditions must be assessed at the relevant time and place. Knowledge that people swim in a harbour in summer does not necessarily give an occupier reason to expect a trespasser diving there after midnight in midwinter.

Donoghue makes the temporal element of the statutory duty concrete. The occupier knew of the underwater danger and of summer swimming, but the relevant likelihood of a person's presence had to be examined in the circumstances of this accident. The case does not establish that trespassers are unprotected or that winter injuries can never be foreseeable. It requires the statutory conditions to be proved rather than inferred from a different pattern of use.