Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 (27 February 2003)

Mr Donoghue, a professional diver, dived into Folkestone Harbour at midnight in mid-winter, struck submerged grid piles, and broke his neck. The Court of Appeal held that the harbour owners owed no duty under the Occupiers' Liability Act 1984 as they had no reason to believe anyone would swim there at that time.

Facts

Mr John Donoghue, a 31-year-old professional scuba diver with Royal Navy training, decided to go swimming in Folkestone Inner Harbour shortly after midnight on 27 December 1997. After drinking at a public house, he walked to a slipway owned by Folkestone Properties Limited, undressed, and dived into the harbour. He struck his head on submerged grid piles (horizontal wooden beams used for boat maintenance) and broke his neck, rendering him tetraplegic.

Folkestone Properties owned and occupied the harbour. They were aware that in summer months, children and occasional adults would swim, jump, and dive from the slipway and nearby landing stages, despite notices prohibiting swimming. Security guards attempted to prevent this activity with limited success. The grid piles were submerged for significant periods each day depending on the tide.

Issues

The central issue was whether Folkestone Properties owed a duty of care to Mr Donoghue under the Occupiers’ Liability Act 1984. Specifically:

Section 1(3)(b) of the 1984 Act

Did the occupier have reasonable grounds to believe that Mr Donoghue, or anyone else, might be in the vicinity of the danger at the time the accident occurred (midnight in mid-winter)?

Temporal Application of Duty

Whether a duty of care established by reference to summer swimmers extended to a trespasser swimming in mid-winter in the middle of the night.

Judgment

The Court of Appeal unanimously allowed the appeal, overturning Judge Bowers’ decision. Lord Phillips MR delivered the leading judgment.

The Trial Judge’s Approach

The trial judge had accepted that when applying section 1(3) of the 1984 Act, the duty should be assessed ‘in general terms’ by reference to a class of trespassers rather than the individual claimant. He found that Folkestone Properties owed a duty because they knew swimmers used the area in summer, and their failure to post warning signs at the slipway constituted a breach.

The Court of Appeal’s Analysis

Lord Phillips rejected this approach. He held that the criteria in section 1(3) must be considered having regard to the circumstances prevailing at the time of the accident. The statutory language refers to ‘another’ and ‘the other’, meaning the very individual who sustained the injury.

The Court endorsed Lord Diplock’s principles from Herrington v British Railways Board, as applied in Ratcliff v McConnell, including the proposition that duty must be determined by reference to the likelihood of the trespasser’s presence in the vicinity of the danger at the actual time and place of danger.

The trial judge himself had found that Folkestone Properties could not possibly have known or had reasonable grounds to believe that anyone would come onto the slipway in drink, after midnight, in mid-winter to dive naked into the harbour. Counsel for Mr Donoghue conceded there was no basis upon which the judge could have found otherwise.

Distinction from Tomlinson

Lord Phillips distinguished Tomlinson v Congleton Borough Council, noting that Ward LJ’s comments about duty being owed to a ‘class’ were not part of the ratio decidendi and did not establish that a duty existing in summer necessarily continued into winter when circumstances had changed materially.

Implications

This decision clarifies the operation of the Occupiers’ Liability Act 1984 in several important respects:

Temporal Specificity

The existence of a duty of care under section 1(3)(b) must be assessed by reference to the circumstances prevailing at the actual time of the accident. An occupier’s knowledge that trespassers frequent premises at certain times does not create a continuing duty at all times.

Individual Assessment

While consideration of a ‘class’ of trespassers may assist in determining whether section 1(3)(b) is satisfied, once that hurdle is passed, the remaining criteria must be applied to the particular individual who suffered injury.

Limited Nature of the Statutory Duty

The Court emphasised that the duty under the 1984 Act is significantly less onerous than the common duty of care under the 1957 Act. Parliament intended to codify the humanitarian approach in Herrington without fundamentally altering the philosophy that trespassers receive limited protection.

Obvious Dangers and Voluntary Activities

Lord Phillips questioned whether injuries arising from voluntary engagement in inherently risky activities (such as diving into water) properly fall within the 1984 Act’s concept of danger ‘due to the state of the premises’.

The decision reinforces that occupiers are not insurers of trespasser safety and need only take precautions at times when they have reasonable grounds to believe trespassers may be present in the vicinity of dangers on their premises.

Verdict: Appeal allowed. The trial judge's order was set aside, Mr Donoghue's claim was dismissed, and judgment was entered for Folkestone Properties Limited. The Court held that no duty of care was owed under the Occupiers' Liability Act 1984 because at the time of the accident (midnight in mid-winter), the occupiers had no reasonable grounds to believe anyone would be swimming from the slipway.

Source: Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231 (27 February 2003)