Donoghue v Folkestone Properties Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Laws |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] EWCA Civ 231 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2002/1920 |
| Date | 27 February 2003 |
[2003] EWCA Civ 231
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Bowers
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Phillips Of Worth Matravers, Mr
Lord Justice Brooke
and
Lord Justice Laws
Case No: B3/2002/1920
Mr Bill Braithwaite, QC and Mr Alan Saggerson (instructed by Cunningham John for the Respondent)
Mr Lawrence West (instructed by Eversheds for the Appellant)
Lord Phillips, MR :
Introduction
This is an appeal against the judgment given on 2 September 2002 by His Honour Judge Bowers, sitting as an additional Judge of the High Court. It arises out of a tragic accident. On Saturday 27 December 1997, shortly after midnight, the Respondent, Mr Donoghue, decided to go for a swim in Folkestone Harbour. He dived into the sea from a slipway, struck his head on an underwater obstruction, broke his neck and was rendered tetraplegic.
The Appellants, ('Folkestone Properties'), own and occupy the harbour. Mr Donoghue claimed that they had been in breach of duty owed to him under the Occupiers' Liability Act 1984 ('the 1984 Act') and were responsible for his injuries. The Judge upheld this claim, but found that Mr Donoghue had contributed to the accident by his own negligence to the extent that he could only recover 25% of his damages. He does not appeal against that finding. Folkestone Properties appeal. They contend that the Judge erred in finding that they owed any duty of care to Mr Donoghue. They do not challenge his finding that they owed a duty of care to those who, as they were well aware, swam and dived in the vicinity of the slipway in the summer. They contend, however, that this duty did not extend to Mr Donoghue, of whose swimming expedition in mid-winter in the middle of the night they neither knew nor could reasonably have been expected to know.
The harbour
The Judge has given a careful and detailed description of Folkestone Inner Harbour where the accident occurred. Because the issue raised on this appeal is a narrow one, and essentially an issue of law, I can describe it much more briefly.
The slipway, off which the accident occurred, lies in the North West corner of the inner harbour. Initially it slopes down parallel and adjacent to the North wall of the inner harbour, but it then angles away from that wall, forming a dog's leg and continuing to slope down until it reaches the bed of the harbour.
Protruding into the harbour at right angles to the lower limb of the dog's leg are seven substantial horizontal wooden beams, each set on a concrete base. These are grid piles forming a "grid bed" upon which a boat can be placed as the tide ebbs away, so that access can be gained to her hull. The grid piles stand proud of the harbour bed to the extent of some 80cms. As the tide rises the grid bed is progressively submerged until it is wholly under water for a period between four and seven hours, depending upon whether the tides are spring or neap.
The object of the slipway is to enable the launching or recovery of boats and jet-skis and members of the public were licensed by Folkestone Properties to use the slipway for this purpose. The Judge found that they probably had an implied licence to walk down the slipway to the water's edge, and that they had a licence to walk up and down the path at the top of the harbour walls.
Members of the public did not have a licence to use the inner harbour for the purpose of swimming or jumping or diving in the water. On the contrary, Folkestone Properties tried to prevent this. Eastward of the slipway, in two places, steps descended from the North harbour wall to a landing stage. In the summer these landing stages were popular places from which children, and the occasional adult, entered the water to swim. At the head of each staircase, but not the slipway, a notice was placed stating "jumping in the harbour and swimming is prohibited".
Children and the occasional adult also swam from the slipway in the summer, although in smaller numbers. They would sometimes jump or dive into the water from the slipway, and Folkestone Properties were aware of this. Security guards would try to stop the children from swimming in the harbour and, on occasion, the police were called, but to no marked effect.
Mr Donoghue
Mr Donoghue was aged 31 at the time of his accident. He was about 6'2" tall, weighed 16 stone and was very fit. He was a professional scuba diver. He was trained in the Royal Navy and had served as a diver. His service records show the extent of his very considerable experience, which included on a number of occasions the recovery of bodies. After leaving the Navy, he continued to work as a diver. As a diving supervisor it had been his responsibility to ascertain water depths and freedom from obstructions before authorising a dive. As the Judge found, years of professional training and experience reinforced in his case the common sense rule that you should not dive into water unless sure of sufficient depth and the absence of obstructions.
Mr Donoghue had lived in Folkestone since 1994. He had visited the harbour once every month or two and occasionally launched a rigid inflatable from the slipway. He had seen children and adults swimming in the harbour in the summer, but had never observed the grid piles or the notices at the top of the stairways, which prohibited swimming. The Judge rejected his evidence that he thought the harbour was a recognised place to swim. He found that Mr Donoghue realised perfectly well that swimming was probably unauthorised but difficult to prevent.
The accident
Mr Donoghue spent the latter part of the evening of Boxing Day drinking in Scruffy Murphy's public house with his partner Samia and with a number of friends. These included David Watkins, another professional diver who had been in the Navy with Mr Donoghue and who had taught him to dive. While in the public house Mr Donoghue consumed at least five pints of beer, so that he was 'merry drunk', but not incapable or unable to know what he was doing or saying. He had already had it in mind to go for a Boxing Day swim, and he discussed going for a night swim with the others in the public house. When they left, some of the party, including Samia, went home by taxi while Mr Donoghue, Mr Watkins and another man and woman walked to the slipway.
Mr Donoghue and Mr Watkins both intended to swim. Mr Donoghue undressed the faster and, having removed all his clothes, walked down the slipway until he reached the water. The state of the tide was such that there was about 2 feet or so of water over the grid bed. Mr Donoghue dived in and hit his head on a grid pile and broke his neck. He then floated face down on the water. Mr Watkins jumped in and rescued him.
Section 1 of the 1984 Act provides as follows:
"Duty of occupier to persons other than his visitors
(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine-
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and
(b) if so, what that duty is.
(2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are-
(a) any person who owes in relation to the premises the duty referred to in section 2 of the Occupiers' Liability Act 1957 (the common duty of care), and
(b) those who are his visitors for the purposes of that duty.
(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if-
(a) he is aware of the danger or has reasonable grounds to believe that it exists;
(b) he 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); and
(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."
For the purposes of the Act, Folkestone Properties were the occupiers of the slipway. The Judge found that Mr Donoghue did not go onto the slipway as a licensee. He was a trespasser and thus a person 'other than a visitor'. There is no appeal against that finding.
The judgment
The facts that I have set out above are based upon findings...
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