The proprietors of Folkestone Harbour today launched a test-case challenge to a High Court ruling that they were 25% liable, under the Occupiers’ Liability Act 1984, for an incident in which a man dived into the harbour and struck his head on a submerged wooden grid pile.
The case could have implications for other harbour authorities throughout the country. If Folkestone Properties Ltd and Sea Containers plc lose their appeal, each such authority will be obliged to carry out a major review of its policy on unauthorised use of its harbour.
In the early hours of Saturday, 27 December 1997, after a night of heavy drinking, John Donoghue, a professional scuba diver, dived into Folkestone Harbour from a slipway, unaware of the barely submerged wooden grid pile. He struck his head, suffering fractures that left him tetraplegic.
Lawrence West, counsel for Folkestone Properties and Sea Containers plc, said that the grid pile provided support for boats at low tide, at which time it would be exposed. Although the grid pile would be covered by a substantial depth of water at high tide, it would have been submerged under only 2ft of water at the time of the incident.
He argued that the High Court had incorrectly held that the fact that the owners were aware that trespassers, mainly children, had used the harbour for swimming during daylight hours in summer was sufficient to satisfy the test of liability set out in section 1(3)(b) of the Act.
Mr West said that it was for the claimant to prove that the owners knew, or had reasonable grounds to believe, that someone might trespass by diving into the harbour in the vicinity of the pile on a mid-winter’s night.
He contended that, in respect of the manageability of the problem and the overall risks, material differences in circumstances existed between those incidents of mass trespass by children at high tide in daytime and that of an isolated trespass by an adult at midnight.
The hearing continues.
Donoghue v Folkestone Properties Ltd and another Court of Appeal (Lord Phillips MR and Brooke and Laws LJJ) 11 February 2003.
Lawrence West (instructed by Eversheds, of Cardiff) appeared for the appellants; Bill Braithwaite QC (instructed by Cunningham John, of Thetford) appeared for the respondent.
References: PLS News 11/02/03
