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Donoghue v Folkestone Properties [2003] EWCA Civ 231 Court of Appeal

Mr Donoghue, the claimant, spent boxing day evening in a public house called Scruffy Murphy’s. It was his intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his haste to get into the water he dived from a slipway in Folkestone harbour owned by the defendant and struck his head on an underwater obstruction, breaking his neck.  At his trial evidence was adduced to the affect that the slipway had often been used by others during the summer months to dive from. Security guards employed by the defendant had stopped people from diving although there were no warning signs put out. The obstruction that had injured the claimant was a permanent feature of a grid-pile which was submerged under the water. In high tide this would not have posed a risk but when the tide went out it was a danger. The claimant’s action was based on the Occupiers Liability Act 1984.  Mr Donoghue was 31, physically fit, a professional scuba diver who had trained in the Royal Navy. It was part of his basic knowledge as a diver that he should check water levels and obstructions before diving. The trial judge found for the claimant but reduced the damages by 75% to reflect the extent to which he had failed to take care of his own safety under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed contending that in assessing whether a duty of care arises under s.1(3) each of the criteria must be assessed by reference to the individual characteristics and attributes of the particular claimant and on the particular occasion when the incident in fact occurred ie when assessing whether the defendant should be aware of whether a person may come into the vicinity of the danger, it should be assessed on the likelihood of someone diving into the water in the middle of the night in mid-winter rather than looking at the incidences of diving during the summer months.

Held:

Appeal allowed. The test of whether a duty of care exists under s.1(3) Occupiers Liability Act 1984 must be determined having regard to the circumstances prevailing at the time of the alleged breach resulted in injury to the claimant. At the time Mr Donoghue sustained his injury, Folkestone Properties had no reason to believe that he or anyone else would be swimming from the slipway. Consequently, the criteria set out in s.1(3)(b) was not satisfied and no duty of care arose.
 
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