Darby v National Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LORD JUSTICE MAY,LORD JUSTICE LATHAM |
| Judgment Date | 29 January 2001 |
| Neutral Citation | [2001] EWCA Civ 189 |
| Docket Number | B3/2000/0523 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2001 |
[2001] EWCA Civ 189
Lord Justice Schiemann
Lord Justice May
Lord Justice Latham
B3/2000/0523
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DARBY COUNTY COURT
(MRS ASSISTANT RECORDER WILSON)
Royal Courts of Justice
Strand
London WC2
MR I MCLAREN QC (instructed by Messrs Banner Jones Middleton Solicitors, Chesterfield S40 1JY) appeared on behalf of the Claimant
MR R WALKER QC (instructed by Messrs Hextall Erskine, London E1 8ER) appeared on behalf of the Respondent
May LJ will give the first judgment.
Hardwick Hall, near Chesterfield in Darbyshire, is one of the National Trust's finest properties. It has many visitors both to the hall itself and to its extensive grounds. In the grounds there are, I think, five ponds. Three of these are reasonably close to each other. Two of them are used for fishing, and the National Trust has taken steps to prevent their use for other purposes, including swimming. These steps have been largely successful.
The third pond is called Row Pond 5. It is not used for fishing. It is oval in shape and approximately 60 to 70 feet across. The water is shallow at the edges but towards the centre its depth is at least such that an average swimmer could not stand on the bottom. It may in places be as deep as 10 feet. In the summer when it is warm visitors have used the fond for paddling and swimming.
On 23rd August 1997 Kevin Dodd tragically drowned in this pond. It had been an extremely hot day and at about 7.00 in the evening he went with his wife, the claimant, and the four youngest of their five children to Hardwick Park. Their eldest son, Ryan, was not with them but he had been swimming in the pond earlier that day. The younger children went paddling. After parking their car Kevin also went in the water. The water was murky, but Mrs Darby considered it to be safe because she had seen others swimming and paddling in it before. Her husband was a competent swimmer and she had no reason to believe that there would be any difficulty. Kevin, her husband, swam towards the centre of the pond. The children were still paddling near its edge. He began to play a game which it seems they had played before and which they called “hide-e-boo”. Kevin would dip beneath the water for a second or two and then pop up again in the same place, smiling. He did this for about five minutes. His wife was watching. She then saw him go underwater, reappear, and put his arms straight in the air, calling her name. She knew that he was in trouble. He sank beneath the water again and effectively was drowned. Mrs Darby called for help. Mr Kevin Morris, who was walking beside one of the other lakes, came to help, and he bravely searched for Mr Darby in the pond and eventually came across him and managed to drag him out. He had been under water for many minutes and it is surprising that he was not at that stage dead. He never, I think, regained consciousness, and he died in hospital on 9th September 1997. 5. It is evident that visitors quite frequently swam or paddled in this pond. The defendants must be taken to have known this. They did in fact little to discourage or prevent it. There were no warning notices around or in the vicinity of the pond. There were no life-saving equipment. There was a notice somewhere near an entrance to a car park which stated, among other information about opening hours, charging, fishing tickets, the words “Bathing and boating not allowed.” This was legible but not conspicuous and it was part of other information.
The pond was not systematically patrolled. Wardens who had other duties including, for instance, collecting money from fishermen, would check the ponds from time to time and discourage people from swimming in them, telling them of the danger of Weils disease. But there was, so it appears, no set system.
These proceedings were brought by Mrs Darby on her own behalf and on behalf of her husband's estate against the National Trust. She says that they were in breach of the common duty of care under section 2 of the Occupiers' Liability Act 1957 and were as such liable for her husband's death.
On 3rd March 2000 Mrs Assistant Recorder Wilson heard the action and gave judgment for the claimant in the sum of £114,194. This is the defendant's appeal brought by leave of Swinton Thomas LJ against the finding against them on liability. There are also, contingent on the outcome of that appeal, appeals by both the claimant and the defendants against the assistant recorder's quantification of damages.
The claimant relied on an expert report of Rebecca Kirkwood, who is a Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents. Evidence on behalf of the defendants was limited to those witnesses whose statements had been disclosed in accordance with a directions order in September 1999. Their only witness was Brian Ellis, who was employed by the National Trust as a part-time warden at Hardwick Hall. They had no expert evidence to match that of Rebecca Kirkwood, apparently having failed to disclose any in accordance with the directions order.
The assistant recorder accepted Rebecca Kirkwood's evidence in full. Her evidence included that, on average, approximately 450 people a year drown in the United Kingdom, the preponderance of these being young men swimming in open water. Good swimmers by indoor standards may find emersion into cold water dramatically reduces their swimming ability. The Royal Society for the Prevention of Accidents does not advocate automatic fencing of all deep water. This would be impracticable, aesthetically damaging and ineffective in terms of denying access to determined swimmers. But as a minimum “No Swimming” notices should be installed. Particular attention should be given to places where open water swimming is known to happen. Rescue arrangements are important and lifebuoys and rescue devices are frequently to be found around open water. But a person in difficulties in water will be fortunate if there are people available to help in time. Rescue arrangements should never be relied upon in isolation to prevent drowning.
Miss Kirkwood's opinion was that the Row Ponds were particularly unsuitable for swimming. The water was deep in the middle and generally murky, and the ground at the edges was uneven. There were no clear warning notices. In her opinion, the National Trust should have assessed the risks to their visitors and taken steps which they did not take. The sign near the car park was inadequately placed and inadequately clear for this purpose. There should have been appropriate signs at the bottom and top approaches to the ponds beside the main part and there should have been “No Swimming” signs immediately beside the water itself. There should have been greater staff presence to enforce a “No Swimming” rule. In short, there were inadequate warnings and inadequate steps to prevent people swimming in the pond.
The claimant's case on liability in the first instance is very simple. Mrs Darby and her husband had often seen people swimming in the pond and thought it was safe. Her unchallenged evidence was that if there had been “No Swimming” notices around the pond saying that it was dangerous her husband would not have gone swimming. The National Trust did not take such care as in all the circumstances of the case was reasonable to see that her husband would be reasonably safe in using the premises. This want of care caused her husband's death. She relies on Miss Kirkwood's evidence.
The assistant recorder found that the National Trust failed to install or erect adequate warning notices; that they failed to secure that park wardens acted so as to prevent persons bathing or swimming; and that they failed to have lifebouys and other rescue devices. In essence, her finding was to accept, as she explicitly did, the opinion of Miss Kirkwood.
Mr Walker QC, on behalf the National Trust, submits that the assistant recorder's findings of negligence were all variants of the finding that the defendant ought not to have permitted Mr Darby to swim in the pond at all, as opposed to a failure to provide adequate rescue facilities. This in my view is correct, although, as submissions developed it became clear that the claimant's case rested mainly on the proposition that the National Trust should have had “No Swimming”...
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