Donoghue v Folkestone Properties Ltd
Encyclopedia
Donoghue v Folkestone Properties Limited (2003) (3 All ER 1101; 2 WLR 1138) is an English court case heard in the Court of Appeal of England and Wales
concerning the tort
of occupiers' liability from the Occupiers' Liability Act 1984
.
, which deals with trespassers, as opposed to the Occupiers' Liability Act 1957
, which deals with lawful visitors. The claimant also had his damages reduced by 75% due to his contributory negligence
.
The subsequent appeal from the defendant (against the imposition of a duty of care) was heard in the Court of Appeal of England and Wales
by three Lords Justice of Appeal: Lord Phillips of Worth Matravers MR, Lord Justice Brooke, and Lord Justice Laws.
Harbour, Kent
from a slipway. In doing so, he hit his head on a submerged object, rendering him tetraplegic.
He commenced proceedings against Folkestone Properties Limited who owned and occupied the Harbour. His original claim was under the Occupiers' Liability Act 1957
, seeking compensation for his injuries, for the loss of quality of life and for the cost of future care he would require, as well as loss of potential future earnings.
In the first instance, at the High Court, the claimant succeeded, after conceding that he was a trespasser and so was covered by the Occupiers' Liability Act 1984
as opposed to the '57 Act, though his damages
were reduced by 75%, due to his contributory negligence
.
The judgement was appealed by the defendants, stating that the trial judged had erred in imposing a duty under the '84 Act.
is concerned with lawful visitors. It was originally the contention of the claimant that he had implicit permission to be on the premises, though he was later forced to concede that the duty, if any, was owed to him under the Occupiers' Liability Act 1984
, which is concerned with trespassers, predominantly because the defendant had no idea the claimant was on their premises, nor did they have any reason to suspect he may be.
The harbour had been historically been used for swimming and diving, and so the claimant contested that the defendant should have offered some kind of protection to people doing so. Unfortunately for the claimant, the court accepted the counter argument from the defendant that they could not reasonably have been expected to be aware of his presence on the premises as all previous events had taken place in the daytime in the summer, as opposed to a December night.
The latter point underlines one of the key concepts of English law, the fault principle.
The principle is that, although the claimant was injured on the defendant's premises due to their dangerous state, they could not be held liable because they were unaware both of the claimant's presence and of the state of the premises. Thus, there was nothing the defendant could reasonably have done to prevent the claimant's injury.
The case had a heavy influence on Tomlinson v Congleton Borough Council
which was going through the House of Lords
at almost the same time. The two were closely inter-related with obiter dictum
from each being applied to the other.
Considered:
Applied:
The following cases have applied, or referred to Donoghue:
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
concerning the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of occupiers' liability from the Occupiers' Liability Act 1984
Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
.
Litigation
The case was originally heard by His Honour Judge Bowers in the Queen's Bench Division of the High Court of Justice of England and Wales. Here, the claimant succeeded, though was forced to concede his duty was owed to him under the Occupiers' Liability Act 1984Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
, which deals with trespassers, as opposed to the Occupiers' Liability Act 1957
Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
, which deals with lawful visitors. The claimant also had his damages reduced by 75% due to his contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
.
The subsequent appeal from the defendant (against the imposition of a duty of care) was heard in the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
by three Lords Justice of Appeal: Lord Phillips of Worth Matravers MR, Lord Justice Brooke, and Lord Justice Laws.
Facts
On Saturday, 27 December, shortly after midnight, the claimant, Donoghue, dived into the sea at FolkestoneFolkestone
Folkestone is the principal town in the Shepway District of Kent, England. Its original site was in a valley in the sea cliffs and it developed through fishing and its closeness to the Continent as a landing place and trading port. The coming of the railways, the building of a ferry port, and its...
Harbour, Kent
Kent
Kent is a county in southeast England, and is one of the home counties. It borders East Sussex, Surrey and Greater London and has a defined boundary with Essex in the middle of the Thames Estuary. The ceremonial county boundaries of Kent include the shire county of Kent and the unitary borough of...
from a slipway. In doing so, he hit his head on a submerged object, rendering him tetraplegic.
He commenced proceedings against Folkestone Properties Limited who owned and occupied the Harbour. His original claim was under the Occupiers' Liability Act 1957
Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
, seeking compensation for his injuries, for the loss of quality of life and for the cost of future care he would require, as well as loss of potential future earnings.
In the first instance, at the High Court, the claimant succeeded, after conceding that he was a trespasser and so was covered by the Occupiers' Liability Act 1984
Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
as opposed to the '57 Act, though his damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
were reduced by 75%, due to his contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
.
The judgement was appealed by the defendants, stating that the trial judged had erred in imposing a duty under the '84 Act.
Judgement
The Occupiers' Liability Act 1957Occupiers' Liability Act 1957
The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
is concerned with lawful visitors. It was originally the contention of the claimant that he had implicit permission to be on the premises, though he was later forced to concede that the duty, if any, was owed to him under the Occupiers' Liability Act 1984
Occupiers' Liability Act 1984
The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
, which is concerned with trespassers, predominantly because the defendant had no idea the claimant was on their premises, nor did they have any reason to suspect he may be.
The harbour had been historically been used for swimming and diving, and so the claimant contested that the defendant should have offered some kind of protection to people doing so. Unfortunately for the claimant, the court accepted the counter argument from the defendant that they could not reasonably have been expected to be aware of his presence on the premises as all previous events had taken place in the daytime in the summer, as opposed to a December night.
Effect
In this case, it was held that the claimant could not recover any damages (even after the 75% reduction from the preceding case) on the grounds that, while the claimant's injury was due to the state of the defendant's premises:- The defendant could not reasonably have foreseen the claimant's presence at the harbour
- The public policy (law)Public policy (law)In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
grounds that it would be unfair to award damages simply because the claimant has been injured
The latter point underlines one of the key concepts of English law, the fault principle.
The principle is that, although the claimant was injured on the defendant's premises due to their dangerous state, they could not be held liable because they were unaware both of the claimant's presence and of the state of the premises. Thus, there was nothing the defendant could reasonably have done to prevent the claimant's injury.
The case had a heavy influence on Tomlinson v Congleton Borough Council
Tomlinson v Congleton Borough Council
Tomlinson v Congleton Borough Council [2003] is a 2003 court case in England from the House of Lords regarding the torts of negligence and occupiers' liability ....
which was going through the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
at almost the same time. The two were closely inter-related with obiter dictum
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
from each being applied to the other.
Other Cases
- Tomlinson v Congleton Borough CouncilTomlinson v Congleton Borough CouncilTomlinson v Congleton Borough Council [2003] is a 2003 court case in England from the House of Lords regarding the torts of negligence and occupiers' liability ....
, a remarkably similar case from the Lords
Considered:
- British Railways Board v Herrington [1972] 1 All ER 749
- Centuryan Security Services v Kelly [2002] All ER (D) 213 (May)
Applied:
- White v St Albans City and District Council (1990) Times, 12 March
- Ratcliff v McConnell [1999] 1 WLR 670
The following cases have applied, or referred to Donoghue:
- Young v Kent County Council [2005] All ER (D) 217 (Mar)
- Keown v Coventry Healthcare NHS Trust [2006] All ER (D) 27 (Feb)
See also
- Occupiers' Liability
- Occupiers' Liability Act 1957Occupiers' Liability Act 1957The Occupiers' Liability Act 1957 is an Act of the Parliament of the United Kingdom that covers occupiers' liability. The result of the Third Report of the Law Reform Committee, the Act was introduced to Parliament as the Occupiers' Liability Bill and granted the Royal Assent on 6 June 1957,...
- Occupiers' Liability Act 1984Occupiers' Liability Act 1984The Occupiers' Liability Act 1984 is an Act of the Parliament of the United Kingdom that covers occupiers' liability for trespassers. In British Railways Board v Herrington 1972 AC 877, the House of Lords had decided that occupiers owed a duty to trespassers, but the exact application of the...
- House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
- Court of Appeal of England and WalesCourt of Appeal of England and WalesThe Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
- Ratio DecidendiRatio decidendiRatio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
- Obiter dictumObiter dictumObiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
- Public policy (law)Public policy (law)In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
- Contributory negligenceContributory negligenceContributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...