On Saturday, 27 December, shortly after midnight, the claimant, Donoghue, dived into the sea at Folkestone 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.
JudgementEdit
The Occupiers' Liability Act 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, which is concerned with persons other than visitors, (most commonly 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.[2]
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.[3]
EffectEdit
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) grounds that it would be unfair to award damages simply because the claimant has been injured[4]
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.[5]
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Donoghue v Folkestone Properties Limited 2003 QB 1008 2 WLR 1138 3 All ER 1101 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 Contents 1 Litigation 2 Facts 3 Judgement 4 Effect 5 Other cases 6 See also 7 ReferencesLitigation EditThe 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 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 1 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 Facts EditOn Saturday 27 December shortly after midnight the claimant Donoghue dived into the sea at Folkestone 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 Judgement EditThe Occupiers Liability Act 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 which is concerned with persons other than visitors most commonly 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 2 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 3 Effect EditIn 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 grounds that it would be unfair to award damages simply because the claimant has been injured 4 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 5 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 6 Other cases EditTomlinson v Congleton Borough Council a remarkably similar case from the LordsConsidered 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 670The 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 EditOccupiers Liability Occupiers Liability Act 1957 Occupiers Liability Act 1984 House of Lords Court of Appeal of England and Wales Ratio Decidendi Obiter dictum Public policy law Contributory negligenceReferences Edit 1 dead link per Lord Phillips at 2 per Lord Phillips at 58 per Lord Phillips at 24 and Lord Brookes at 77 per Lord Phillips at 58 and Lord Brookes at 78 per Lord Phillips at 44 to 49 Retrieved from https en wikipedia org w index php title Donoghue v Folkestone Properties Ltd amp oldid 1148245267, wikipedia, wiki, book, books, library,
