Donoghue -v- Folkestone Properties Limited; CA 27 Feb 2003

References: [2003] EWCA Civ 231, Times 10-Mar-03, Gazette 01-May-03, [2003] 2 WLR 1138, [2003] QB 1008
Links: Bailii
Coram: Mr Justice Brooke Lord Justice Laws Lord Phillips M.R
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The Act imposed liability if four conditions were met: the premises were dangerous, the danger might be a risk to a trespasser, there were grounds for thinking trespass would happen, and it was reasonable to afford protection to trespassers. The duty was not owed to a class of possible trespassers, but the particular situation which had occurred. That duty might vary with circumstances.
Lord Phillips MR said: ‘An expanse of water, be it a lake, pond, river or the sea, does not normally pose any danger to a person on land. If a trespasser deliberately enters the water to swim, then the trespasser chooses to indulge in an activity which carries a degree of inherent risk. If the trespasser gets cramped or becomes exhausted and drowns, it cannot properly be said that this tragedy is attributable to the ‘state of the premises’.’ and as to Tomlinson: ‘It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous condition.’
Statutes: Occupiers Liability Act 1984 1(3)(b)
This case cites:

  • Doubted – Tomlinson -v- Congleton Borough Council and Another CA (Bailii, Gazette 23-May-02, [2002] EWCA Civ 309)
    The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
    Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
  • Cited – Ratcliff -v- G R McConnell and E W Jones CA (Times 03-Dec-98, [1999] 1 WLR 670)
    A trespasser having climbed into grounds at night and dived into a swimming pool without knowing the depth accepted responsibility for his own acts. The dangers of diving into shallow water were known to adults and there was no need for a warning. . .

This case is cited by:

  • Cited – Tomlinson -v- Congleton Borough Council and others HL (Bailii, [2003] UKHL 47, House of Lords, Times 01-Aug-03, Gazette 11-Sep-03, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8)
    The claimant dived into a lake, severely injuring himself. The council appealed, arguing that it owed him no duty of care under the Act since he was a trespasser.
    Held: The council’s appeal succeeded. The risk of injury arose, not from any . .
  • Cited – Higgs -v- W H Foster trading as Avalon Coaches CA (Bailii, [2004] EWCA Civ 843)
    The claimant, a police officer entered the defendants premises at night in order to take up position to observe a suspect. He fell into an open inspection pit, and appealed dismissal of his claim under the Occupiers Liability Acts.
    Held: The . .
  • Cited – Hampstead Heath Winter Swimming Club and Another -v- Corporation of London and Another Admn (Bailii, [2005] EWHC 713 (Admin), Times 19-May-05)
    Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
    Held: It has always been a principle of the interpretation of . .
  • Cited – Keown -v- Coventry Healthcare NHS Trust CA (Bailii, [2006] EWCA Civ 39, [2006] 1 WLR 653)
    The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
    Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
  • Cited – Portsmouth Youth Activities Committee (A Charity) -v- Poppleton CA (Bailii, [2008] EWCA Civ 646)
    The claimant was injured climbing without ropes (‘bouldering’) at defendant’s activity centre. The defendant appealed against a finding of 25% responsibility in having failed to warn climbers that the existence of thick foam would not remove all . .

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