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

A man was injured after diving into a harbour on a winter's night and sued the owners for failing to warn of submerged obstacles. The court found no duty of care was owed, as the owners could not reasonably be expected to foresee a trespasser swimming at that time.

Facts

On 27 December 2000, at around midnight, the claimant, Mr Donoghue, a professional scuba diver, dived from a slipway into the outer harbour at Folkestone. The tide was low, and it was a cold winter’s night. He struck his head on a submerged grid pile, a permanent feature of the harbour designed to prevent damage to the harbour wall from berthing vessels. Mr Donoghue sustained a broken neck, resulting in tetraplegia. The defendants, Folkestone Properties Ltd, were the owners and occupiers of the harbour. They were aware that people swam in the harbour during summer days, but there was no evidence of anyone swimming at night or during the winter. Mr Donoghue, who was a trespasser at the time of the incident, brought a claim under the Occupiers’ Liability Act 1984.

Issues

The central legal issue was whether the defendant occupiers owed the claimant a duty of care under section 1(3) of the Occupiers’ Liability Act 1984. This required the court to determine if three conditions were met:

• (a) Was the occupier aware of the danger or had reasonable grounds to believe it existed? (This was not disputed by the defendants).
• (b) Did the occupier know or have reasonable grounds to believe that the non-visitor was in the vicinity of the danger or may come into the vicinity of the danger?
• (c) Was the risk one against which, in all the circumstances, the occupier may reasonably be expected to offer the non-visitor some protection?

The appeal focused primarily on the interpretation and application of sub-section (b).

Judgment

The Court of Appeal unanimously dismissed the appeal, upholding the trial judge’s decision that the defendants owed no duty of care to the claimant.

Reasoning of the Court

Lord Phillips of Worth Matravers MR delivered the leading judgment, focusing on the temporal aspect of the duty under the 1984 Act. He concluded that the question of whether an occupier has ‘reasonable grounds to believe’ that a trespasser may come into the vicinity of a danger must be assessed by reference to the specific time and circumstances of the injury, not in the abstract.

The judge held that the relevant time for considering whether the defendants had the requisite knowledge or grounds for belief was the time of the accident. At that time, while they had reason to believe that people might be in the vicinity of the piles during the day in the summer, they had no reason to believe that anyone would be swimming from the slipway on a winter’s night.

Lord Phillips clarified that the occupier’s knowledge must relate to the likelihood of a trespasser being present at the time the danger was encountered. He distinguished the case from Tomlinson v Congleton Borough Council, where the council was aware that people swam in a lake during hot weather, which was when the accident in that case occurred. In contrast, Folkestone Properties Ltd had no reason to foresee anyone diving into the harbour on a cold winter night.

In considering this question one must have regard to the time of day and the time of year in question.

Lord Justice Sedley, concurring, emphasised that the foreseeability was not a mere scale of likelihood but a question of fact and degree based on the specific circumstances.

For my part I would not put the matter as a sliding scale of likelihood, but as a question of fact and degree: were the respondents, as owners of the harbour, reasonably to expect that on a winter’s night somebody might be diving in the dark into the harbour at low tide? Like the Master of the Rolls and for the same reasons, I think that the only realistic answer is no.

Implications

The decision in Donoghue v Folkestone Properties Ltd is significant for the law of occupiers’ liability. It establishes that the duty of care owed to a trespasser under the 1984 Act is not constant but depends on the specific circumstances, including the time of day and year, of the trespasser’s presence. The judgment confirms that an occupier is not required to safeguard against risks at times when they have no reasonable grounds to believe a trespasser might be present. This prevents the imposition of an overly burdensome duty on occupiers to protect against unforeseeable or highly improbable eventualities, thereby limiting the scope of their liability to trespassers.

Verdict: The appeal was dismissed. The defendant occupiers were found not to owe a duty of care to the claimant.

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