Donoghue v Folkestone Properties Ltd
Court of Appeal
Citations:  EWCA Civ 231;  QB 1008;  2 WLR 1138;  3 All ER 1101; (2003) 100(17) LSG 29.
The defendant owned and occupied a harbour. He was aware that sometimes people sneaked into the harbour and dived and swam in the water. The defendant also knew that there were hidden objects in the water. Despite this, the defendant did not take any steps to warn people of the danger.
At night, and in the middle of winter, the claimant trespassed on the harbour and dived from a slipway. He suffered serious injuries after he hit a hidden object beneath the water. The claimant sued the defendant for occupiers liability under the Occupiers Liability Act 1984. The defendant argued that he did not owe the claimant a duty of care. This was because he had no reason to believe anyone would be swimming in the harbour at night during winter. Therefore, the requirement under s.1(3)(b) of the Act was not met.
Section 1(3)(b) of the Occupiers Liability Act 1984 states that a duty is only owed to a trespasser if the occupier ‘knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not)’.
- Did the defendant have reason to believe the claimant would be in the vicinity of the danger?
The Court of Appeal held in favour of the defendant. The defendant had no reason to believe that the claimant would come into the vicinity of the danger at night in mid-winter. Section 1(3)(b) was not established.
This Case is Authority For…
To establish s.1(3)(b) of the Occupiers Liability Act 1984, the claimant must show that they were a member of a class of people which the defendant had reason to believe would be in the area at the relevant time. If it is unlikely at that time that anyone is in the area, this criterion is not met. This is so even if people are often in the area at other times.
Brooke LJ approved of a Law Commission comment that the claimant’s are relevant to whether a duty is owed. For example, there might be some cases in which a duty is owed to child trespassers, but not adult trespassers. This is because there is a wider set of dangers which occupiers can reasonably be expected to protect children, but not adults, against.
Lord Phillips argued that there was a distinction between dangers arising from ‘the state of the premises’ (e.g. the hidden underwater objects) and those arising from specific activities on the land (e.g. swimming). He argued that no duty is owed under occupier’s liability without a danger arising from the state of the premises.
For example, if a swimmer had gotten cramp and drowned rather than hitting a hidden object, Lord Phillips argued that occupiers liability would be irrelevant.
However, this seems to contradict comments made by the House of Lords in Tomlinson v Congleton Borough Council  1 AC 46, decided after this case.