Occupiers’ liability — Respondent injured diving into harbour at night in midwinter — Whether appellant harbour owner owing duty of care — Whether same duty as that owing to summer swimmers — Appeal allowed
The respondent, a professional scuba diver, was rendered tetraplegic when, one night in December, he dived into the sea from a slipway at Folkestone Harbour, striking his head on an underwater grid-pile and breaking his neck. He had earlier had several pints of beer in a nearby pub. He claimed damages from the appellant, which owned and occupied the harbour, for breach of its duty under section 1(3) of the Occupiers’ Liability Act 1984.
The judge found that the public had an implied licence to walk along the slipway to the water’s edge, but that the licence did not allow them either to jump into the harbour or to swim within it. However, he found that people did, in practice, swim from the slipway in summer and dive from nearby landing stages. He found that the appellant was under a duty in general terms and was in breach of that duty, but held that the respondent could claim only 25% of his damages because of his contributory negligence.
The appellant appealed. It did not dispute that it owed a duty of care to those who, to its knowledge, swam and dived in the vicinity of the slipway during the summer. However, it argued that this duty did not extend to the respondent, of whose swimming expedition, in midwinter and in the middle of the night, it neither knew nor could reasonably have been expected to know.
Held: The appeal was allowed.
It was implicit in the judge’s findings that the appellant did not have reason to believe that anyone would be swimming, jumping or diving in the vicinity of the grid-piles in midwinter. The judge had erred in asking whether the appellant owed a duty “in general terms”, without reference to the particular experience of the respondent as a diver or to the time of year and of day when the accident occurred. The basis of the judge’s decision in relation to duty was unsound. It was not the case that if a duty of care existed in summer, then an identical duty would exist in the winter. The circumstances that were material to the existence of the duty could change with the seasons or the time of day, and that was the position in the present case. Although the appellant was well aware of the danger posed by the grid-piles under the waterline, the respondent’s claim fell at the hurdle presented by section 1(3)(b) (that the occupier should have known, or had reasonable grounds to know, that the other was in the vicinity of the danger): Tomlinson v Congleton Borough Council [2002] EWCA Civ 309; [2002] 12 EG 136 (CS) distinguished; Herrington v British Railways Board (1972) 223 EG 939 and Ratcliff v McConnell [1999] 1 WLR 670 considered.
Bill Braithwaite QC and Alan Saggerson (instructed by Cunningham John, of Thetford) appeared for the appellant; Lawrence West (instructed by Eversheds, of Cardiff) appeared for the respondent.
Sally Dobson, barrister
