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

Mr Darby drowned while swimming in a pond at a National Trust property. His widow claimed the Trust breached its duty under the Occupiers' Liability Act 1957 by failing to warn of dangers. The Court of Appeal held that the dangers of swimming were obvious and no warning was required.

Facts

On 23rd August 1997, Kevin Darby drowned while swimming in Row Pond 5 at Hardwick Hall, a National Trust property in Derbyshire. The pond was oval-shaped, approximately 60-70 feet across, with shallow edges but deeper water in the centre. Mr Darby was a competent swimmer who had swum in the pond before. While playing a game called ‘hide-e-boo’ with his children, ducking under and resurfacing, he got into difficulties and drowned.

The National Trust knew visitors frequently swam in the pond but took few steps to prevent this. There were no warning notices around the pond itself, though a notice near a car park stated ‘Bathing and boating not allowed.’ Wardens occasionally discouraged swimming, mentioning the risk of Weils disease, but there was no systematic patrol.

Issues

Whether the National Trust breached the common duty of care under section 2 of the Occupiers’ Liability Act 1957 by failing to erect adequate warning notices, failing to prevent swimming, and failing to provide rescue equipment.

Judgment

The Court of Appeal allowed the National Trust’s appeal and entered judgment for the defendants.

Obvious Dangers

May LJ held that the risks of swimming in the pond were perfectly obvious. The pond’s characteristics – murky water, cold temperature, and depth – were entirely typical of such ponds and readily apparent to any adult swimmer. Mr Darby knew these conditions, having swum in the pond before.

Relying on Staples v West Dorset District Council, the court confirmed that there is no duty to warn against obvious dangers. May LJ stated:

It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious.

Weils Disease Argument

The claimant argued that a duty to warn against Weils disease would have also prevented the drowning. May LJ rejected this, holding that a duty based on one type of risk cannot support a claim for damage from an intrinsically different cause, citing Lord Hoffmann’s principles in South Australia Asset Management Corporation v York Montague Ltd.

Implications

This case confirms that occupiers are not required to warn visitors of obvious dangers under the Occupiers’ Liability Act 1957. The duty to warn only arises where there are hidden or non-obvious hazards that visitors would not appreciate for themselves. Expert opinion on safety standards does not determine the legal question of breach of duty, which remains for the court to decide.

Verdict: Appeal allowed. Judgment entered for the defendants (National Trust). The claimant's claim was dismissed.

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