Boris Ignachkov Legal Principles and Key Points
- In the case of Donoghue v Folkestone Properties 2003 2 WLR 1138 it was found that being properly construed, the Occupiers Liability Act 1984 s.1(3)(b) imposed a duty of care on the occupier only in circumstances where at the time of the incident giving rise to the claim, he ought to have reasonably known that his property could be trespassed in the way that it was by the claimant.
Facts of the Case
- 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.
- The judge found that D knew that substantial numbers of trespassers swan and dived in the harbour in the vicinity of the grid piles at certain times of the year and that at some states of the tide the piles constituted a danger giving rise to risk of injury against which D could reasonably be expected to offer some protection.
- He held that that was sufficient to impose on D, a duty to C under the 1984 Act.
- As no warning notice had been displayed there, D was liable to C although in consequence of his contributory negligence, C was only able to recover 25% of damages assessed.
- D appealed
Issues in Donoghue v Folkestone Properties 2003 2 WLR 1138
- 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.
Held by Court of Appeal
- The appeal was allowed, and D did not owe a duty of care to C
Lord Phillips MR
- It was held that in order to determine whether an occupier owed a duty of care to a trespasser under section 1(3) of the Occupiers Liability Act 1984 it was necessary to apply the statutory criteria to the circumstances prevailing at the time at which it was alleged that a breach of duty had resulting in injury to the individual claimant; that, on the true construction, “the other” in section 1(3) and “another” in section 1(4) both referred to the individual claimant who had sustained injury and so, although it would be sufficient for the purposes of section 1(3)(b) for a claimant to show that he was one of a class trespasser whom the occupier had reason to believe might be in the vicinity of the danger.
- 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.
Brooke LJ
- “In the present case Mr Donoghue dived into the Inner Harbour in the early hours of Saturday, 27 December 1997. Section 1(3) of the 1984 Act compels us to focus on that factual situation, which has nothing to do with C the circumstances in which children swam or dived in the harbour at high tide on a sunny August bank holiday weekend. Although the defendants were aware of the danger posed by the presence of the grid piles under the waterline, the judge made the unchallenged findings, adverse to Mr Donoghue, which Lord Phillips of Worth Matravers MR has recited in paragraph 24 of his judgment. On these facts, therefore, the claim fails at the hurdle imposed by section 1(3)(b) of the 1984 Act and I, too would allow the appeal.” P.23 C
