Darby v National Trust [2001] EWCA Civ 189 (29 January 2001)

The claimant's husband drowned while swimming in a pond on National Trust property where paddling was permitted. The Court of Appeal found the Trust was not liable as the risk of drowning in murky, unwatched water was an obvious danger.

Facts

The claimant’s husband, Mr Thomas Darby, drowned in the Great Pond at Hardwick Hall, a property owned and managed by the defendant, the National Trust. The claimant, Mrs Cissie Darby, brought a claim on behalf of her husband’s estate and as a dependant under the Occupiers’ Liability Act 1957. On the day of the incident, notices indicated that boating and bathing were not allowed, but these referred to a different set of lakes. At the Great Pond itself, there were no notices prohibiting swimming. The National Trust was aware that visitors, particularly children, frequently paddled and used nets in the shallows of the pond. Mr Darby, a competent swimmer, waded into the murky water and began to swim, but got into difficulty almost immediately and drowned. It was later suggested he may have contracted Weil’s disease from the water, which led to his rapid incapacitation. The trial judge found the National Trust liable, holding that by permitting paddling, they had a duty to warn against the dangers of swimming in the pond.

Issues

The central legal issue was the extent of the common duty of care owed by the National Trust as an occupier under section 2 of the Occupiers’ Liability Act 1957. Specifically, the court had to determine:
1. Whether the risk of drowning in a pond was such an obvious danger that no warning was required.
2. Whether the National Trust’s knowledge and tacit permission for paddling created a duty to warn visitors against the different and greater risks associated with swimming.

Judgment

The Court of Appeal unanimously allowed the appeal, overturning the trial judge’s decision and finding that the National Trust was not liable.

Lord Justice May

Lord Justice May, giving the leading judgment, concluded that the danger posed by the pond was obvious. He reasoned that the duty of care under the 1957 Act does not extend to warning against risks that are plain to see for any ordinary person. He stated:

I am afraid that I do not agree with the judge that the risk of drowning in the pond was not, to an adult, a perfectly obvious one. Indeed, it is a risk of a kind that is so obvious, that it is a risk that the defendant was entitled to assume that any adult would be aware of… it seems to me that any adult of ordinary intelligence is taken to be well aware that there is a risk of drowning in a pond or a lake or a river or the sea.

He distinguished between the permitted activity of paddling and the unpermitted activity of swimming, holding that the former did not carry an implied representation that the latter was safe. The risks associated with swimming in murky, deep water are fundamentally different and more apparent than those of paddling in the shallows. On the subject of Weil’s disease, he noted that the risk was statistically very small and did not, in itself, give rise to a duty to warn.

Lord Justice Judge

Lord Justice Judge concurred, adding a policy consideration about the potential burden on landowners. He argued that imposing liability in this case would set an unreasonable precedent, requiring landowners to place warning signs near every body of water on their property, which would be impractical and would detract from the natural amenity of the countryside.

If the reasoning of the learned judge were followed to a logical conclusion, any landowner… would be required to place a notice warning of the danger of drowning on every lake, river or pond on his property. In my judgment that would be to impose an unreasonable and unnecessary burden on landowners.

Implications

The decision in Darby v National Trust is a significant authority on the limits of an occupier’s duty of care. It firmly establishes that there is no duty to warn adult visitors of obvious risks inherent in the natural landscape. The case clarifies that the law of occupiers’ liability seeks to strike a balance between ensuring visitor safety and avoiding the imposition of an excessive and impractical burden on landowners. It protects the principle that individuals are expected to take responsibility for their own safety when faced with self-evident dangers.

Verdict: The appeal was allowed. The National Trust was found not to be liable for Mr Darby’s death.

Source: Darby v National Trust [2001] EWCA Civ 189 (29 January 2001)