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Zittrain Torts Playlist Spring 2013

Diane Darby (Widow and Administratrix of the Estate of Kevin Alan Darby, deceased) Claimant v. The National Trust, Respondent

Headnote

Should defendants be liable for a failure to warn, if the plaintiff's harm was not the type to be warned against? What if the warning would have, nevertheless, diverted the plaintiff away from the harm? Defendant owned a pond which was actively used and known as a place of recreation for the local community. Due to the presence of rat urine in the water, swimmers faced a risk of contracting Weils disease. However, the defendant did not post any signs warning the community of this risk. While the plaintiff's husband played "hide-e-boo" with his children, he accidentally slipped underwater due to the depth and drowned. Plaintiff sued the defendant on the theory that the existence of warning signs for Weils disease would have caused the plaintiff's husband to refrain from entering the water; thereby avoiding the fatal accident.

1

DIANE DARBY

(Widow and Administratrix of the Estate of Kevin Alan Darby, deceased) Claimant

v. 

THE NATIONAL TRUST, Respondent

MR I MCLAREN QC (instructed by Messrs Banner Jones Middleton Solicitors, Chesterfield S40 1JY) appeared on behalf of the Claimant

MR R WALKER QC (instructed by Messrs Hextall Erskine, London E1 8ER) appeared on behalf of the Respondent

J U D G M E N T

Monday, 29th January 2001

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LORD JUSTICE SCHIEMANN: May LJ will give the first judgment.

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LORD JUSTICE MAY: Hardwick Hall, near Chesterfield in Darbyshire, is one of the National Trust's finest properties. It has many visitors both to the hall itself and to its extensive grounds. In the grounds there are, I think, five ponds. Three of these are reasonably close to each other. Two of them are used for fishing, and the National Trust has taken steps to prevent their use for other purposes, including swimming. These steps have been largely successful.

4

The third pond is called Row Pond 5. It is not used for fishing. It is oval in shape and approximately 60 to 70 feet across. The water is shallow at the edges but towards the centre its depth is at least such that an average swimmer could not stand on the bottom. It may in places be as deep as 10 feet. In the summer when it is warm visitors have used the fond for paddling and swimming.

5

On 23rd August 1997 Kevin Dodd tragically drowned in this pond. It had been an extremely hot day and at about 7.00 in the evening he went with his wife, the claimant, and the four youngest of their five children to Hardwick Park. Their eldest son, Ryan, was not with them but he had been swimming in the pond earlier that day. The younger children went paddling. After parking their car Kevin also went in the water. The water was murky, but Mrs Darby considered it to be safe because she had seen others swimming and paddling in it before. Her husband was a competent swimmer and she had no reason to believe that there would be any difficulty. Kevin, her husband, swam towards the centre of the pond. The children were still paddling near its edge. He began to play a game which it seems they had played before and which they called “hide‑e‑boo”. Kevin would dip beneath the water for a second or two and then pop up again in the same place, smiling. He did this for about five minutes. His wife was watching. She then saw him go underwater, reappear, and put his arms straight in the air, calling her name. She knew that he was in trouble. He sank beneath the water again and effectively was drowned. Mrs Darby called for help. Mr Kevin Morris, who was walking beside one of the other lakes, came to help, and he bravely searched for Mr Darby in the pond and eventually came across him and managed to drag him out. He had been under water for many minutes and it is surprising that he was not at that stage dead. He never, I think, regained consciousness, and he died in hospital on 9th September 1997.

6

It is evident that visitors quite frequently swam or paddled in this pond. The defendants must be taken to have known this. They did in fact little to discourage or prevent it. There were no warning notices around or in the vicinity of the pond. There were no life‑saving equipment. There was a notice somewhere near an entrance to a car park which stated, among other information about opening hours, charging, fishing tickets, the words “Bathing and boating not allowed.” This was legible but not conspicuous and it was part of other information.

7

The pond was not systematically patrolled. Wardens who had other duties including, for instance, collecting money from fishermen, would check the ponds from time to time and discourage people from swimming in them, telling them of the danger of Weils disease. But there was, so it appears, no set system.

8

These proceedings were brought by Mrs Darby on her own behalf and on behalf of her husband's estate against the National Trust. She says that they were in breach of the common duty of care under section 2 of the Occupiers' Liability Act 1957 and were as such liable for her husband's death.

9

On 3rd March 2000 Mrs Assistant Recorder Wilson heard the action and gave judgment for the claimant in the sum of £114,194. This is the defendant's appeal brought by leave of Swinton Thomas LJ against the finding against them on liability. There are also, contingent on the outcome of that appeal, appeals by both the claimant and the defendants against the assistant recorder's quantification of damages.

10

The claimant relied on an expert report of Rebecca Kirkwood, who is a Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents. Evidence on behalf of the defendants was limited to those witnesses whose statements had been disclosed in accordance with a directions order in September 1999. Their only witness was Brian Ellis, who was employed by the National Trust as a part‑time warden at Hardwick Hall. They had no expert evidence to match that of Rebecca Kirkwood, apparently having failed to disclose any in accordance with the directions order.

11

The assistant recorder accepted Rebecca Kirkwood's evidence in full. Her evidence included that, on average, approximately 450 people a year drown in the United Kingdom, the preponderance of these being young men swimming in open water. Good swimmers by indoor standards may find emersion into cold water dramatically reduces their swimming ability. The Royal Society for the Prevention of Accidents does not advocate automatic fencing of all deep water. This would be impracticable, aesthetically damaging and ineffective in terms of denying access to determined swimmers. But as a minimum “No Swimming” notices should be installed. Particular attention should be given to places where open water swimming is known to happen. Rescue arrangements are important and lifebuoys and rescue devices are frequently to be found around open water. But a person in difficulties in water will be fortunate if there are people available to help in time. Rescue arrangements should never be relied upon in isolation to prevent drowning.

12

Miss Kirkwood's opinion was that the Row Ponds were particularly unsuitable for swimming. The water was deep in the middle and generally murky, and the ground at the edges was uneven. There were no clear warning notices. In her opinion, the National Trust should have assessed the risks to their visitors and taken steps which they did not take. The sign near the car park was inadequately placed and inadequately clear for this purpose. There should have been appropriate signs at the bottom and top approaches to the ponds beside the main part and there should have been “No Swimming” signs immediately beside the water itself. There should have been greater staff presence to enforce a “No Swimming” rule. In short, there were inadequate warnings and inadequate steps to prevent people swimming in the pond.

13

The claimant's case on liability in the first instance is very simple. Mrs Darby and her husband had often seen people swimming in the pond and thought it was safe. Her unchallenged evidence was that if there had been “No Swimming” notices around the pond saying that it was dangerous her husband would not have gone swimming. The National Trust did not take such care as in all the circumstances of the case was reasonable to see that her husband would be reasonably safe in using the premises. This want of care caused her husband's death. She relies on Miss Kirkwood's evidence.

14

The assistant recorder found that the National Trust failed to install or erect adequate warning notices; that they failed to secure that park wardens acted so as to prevent persons bathing or swimming; and that they failed to have lifebouys and other rescue devices. In essence, her finding was to accept, as she explicitly did, the opinion of Miss Kirkwood.

15

Mr Walker QC, on behalf the National Trust, submits that the assistant recorder's findings of negligence were all variants of the finding that the defendant ought not to have permitted Mr Darby to swim in the pond at all, as opposed to a failure to provide adequate rescue facilities. This in my view is correct, although, as submissions developed it became clear that the claimant's case rested mainly on the proposition that the National Trust should have had “No Swimming” notices around the pond itself.

16

Mr Walker submits that Mrs Kirkwood's relevant evidence was only an expression of her own opinion and that the question whether the National Trust were in breach of a relevant duty was a matter for the court. I think that this is correct. The crux of Mr Walker's submission is that the pond had no relevant characteristics making it more dangerous than any other pond, nor did it have any relevant hazards which were not readily apparent. The fact that the water was murky and that it was cold (if it was, which was not established other than by incidental evidence from Mr Morris who retrieved Mr Darby from it) and that its depth in the centre may have been such that bathers would be out of their depth, is entirely typical of such ponds and is obvious. Further, all these matters were known to Mr Darby who had swum in the pond before and who had spent five minutes ducking in and out of the water in the middle of the pond.

17

Mr Walker relies on Staples v West Dorset District Council [1995] PIQR 439 where the plaintiff fell on an obviously slippery surface on the Cobb at Lyme Regis and the Court of Appeal held that there was no duty on an occupier in the circumstances of that case to warn against a danger which was obvious. Kennedy LJ said at page 442 of that case:

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“It is, in my judgment, of significance that the duty is a duty owed by the occupier to the individual visitor, so that it can only be said that there was a duty to warn if without a warning the visitor in question would have been unaware of the nature and extent of the risk. As the statute makes clear, there may be circumstances in which even an explicit warning will not absolve the occupier from liability (see s.4(a) above); but if the danger is obvious, the visitor is able to appreciate it, he is not under any kind of pressure and he is free to do what is necessary for his own safety, then no warning is required. So, for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff (see Cotton v Derbyshire Dales District Council (June 10, 1994, CA, unreported)). In the present case, as Mr Tyson for the respondent acknowledges, he must succeed under the Occupiers' Liability Act or fail, because, although the judge also referred to negligence at common law, there was no other relationship between these parties that could give rise to liability.”

19

Evans LJ agreeing with the judgment of Kennedy LJ said this:

20

“I share his reluctance, for the reasons he has given, but I find myself driven to the conclusion that the respondent cannot attribute negligence to the appellants in circumstances where nothing was known to them, or would have been known to them if previous inspections had been made, which he did not know and appreciate for himself. If the cause of his accident was the general state of the algae‑covered strip at the seaward edge of the Cobb, combined with the pronounced 1:5 slope at the top, then the danger posed was obvious and in fact was appreciated by him. If the cause was an isolated slippery patch, which had not manifested itself as a source of potential danger during the 165‑year history of the Cobb, then that was not something which the appellants should have foreseen, nor is it clear what the terms of a specific warning would have been. Whichever it was, the appellants cannot be held liable in negligence by reason of their failure to erect warning notices before this accident occurred.”

21

For the respondent, Mrs Darby, there was some difference of emphasis in the submissions made on her behalf by leading and junior counsel. Mr Herbert submitted that swimming in this pond had been condoned for years. The pond was unsafe. It was deep, murky and cold. It was always foreseeable that a swimmer might get into difficulties. If the National Trust had made a risk assessment, they would have gone to an organisation such as the Royal Society for the Prevention of Accidents to whom they had been for advice on at least one other site. The Royal Society would have advised them that this pond was unsafe. This was a pond where people were known to swim and that is what distinguished it from other areas of water around the country and the coast. The National Trust, as an occupier under section 2(2) of the Occupiers' Liability Act 1957, owed a duty to take such care, as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

22

Mr Herbert submits that on the evidence of Miss Kirkwood the pond was not reasonably safe as a place in which to conduct unsupervised swimming, yet the defendant permitted persons on the premises so to use it. Although the occupier might seek to discharge the duty by a warning (see section 2(4) of the 1957 Act) there was no such effective warning. In deciding whether a measure is reasonable, the court should have regard to the reasonably foreseeable risk, the nature of the injury of the risk which materialises and the measures needed to combat the risk. On the evidence of Miss Kirkwood, the risk of drowning was plainly foreseeable since several hundred people drown in circumstances similar to those of Mr Darby each year and in many cases the cause of the drowning is not easy to explain in detail.

23

Mr McLaren QC, when pressed, was inclined, I think, to accept, that the case which depended alone on the risk of drowning was not strong, although he vigorously supported the assistant recorder's conclusion. He submitted that it drew strength from the admitted risk of a swimmer contracting Weils disease. There was no systematic evidence as to the nature of Weils disease, although I understand it to be an unpleasant and occasionally fatal condition transmitted from rats' urine. Mr McLaren submitted that there was a risk which people might not appreciate, the risk of cold water leading to those who are good swimmers in warm swimming pools getting into difficulties in open water and drowning. Putting up a warning notice was a small thing to do and in the circumstances which included the risk of Weils disease entitled the assistant recorder to reach the conclusion as to duty that she did. Absent the evidence about Weils disease, Mr McLaren accepted that the finding would have been less compelling. The risk of death by drowning is foreseeable although Mr McLaren accepted that it was very unlikely and might not by itself be sufficient to sustain the claim. Mr Herbert did not agree with that concession.

24

The risk of Weils disease required a notice. It is permissible, submitted Mr McLaren, for the court to conclude that there was a duty to take a step for the purpose of guarding against Weils disease which would in fact have prevented death by drowning. The cost and expense of the sign would not have been great, and the sign, whose main purpose may have been to prevent the effects of Weils disease, would also have given effective warning against the danger of drowning.

25

Unpleasant though Weils disease, I have no doubt, is, it was not the kind of risk or damage which Mr Darby suffered, and any duty to warn against Weils disease cannot, in my judgment, support a claim for damages resulting from a quite different cause. I refer to the opinion of Lord Hoffmann in South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 at 212. He there cites from the speech of Lord Bridge of Harwich in Caparo at 627 in these terms:

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“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”

27

Lord Hoffmann then went on:

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“In the present case, there is no dispute that the duty was owed to the lenders. The real question in this case is the kind of loss in respect in which the duty was owed.”

29

And on the same page, Lord Hoffmann continues as follows:

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“There is no reason in principle why the law should not penalise wrongful conduct by shifting on to the wrongdoer the whole risk of consequences which would not have happened but for the wrongful act. Hart and Honore on Causation in the Law 2nd ed. (1985), p 120, say that it would, for example, be perfectly intelligible to have a rule by which an unlicenced driver was responsible for all the consequences of his having driven, even if they were unconnected with his not having a licence. One might adopt such a rule in the interests of deterring unlicensed driving. But that is not the normal rule. One may compare, for example, The Empire Jamaica [1995] P 259, in which a collision was caused by a 'blunder in seamanship of... a somewhat serious and startling character' (Sir Raymond Evershed MR at p 264) by an uncertified second mate. Although the owners knew that the mate was not certificated and it was certainly the case that the collision would not have happened if he had not been employed, it was held in limitation proceedings that the damage took place without the employers' 'actual fault or privity' (section 503 of the Merchant Shipping Act 1894) because the mate was in fact experienced and (subject to this one aberration) competent. The collision was not therefore attributable to his not having a certificate. The owners were not treated as responsible for all the consequences of having employed an uncertificated mate but only for the consequences of his having been uncertificated.

Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.”

31

Lord Hoffmann then proceeded to give the example of the mountaineer with which practitioners are very familiar. Thus, a case which promotes a duty based on the risk of a swimmer catching Weils disease will not, in my opinion, support a breach of duty founded upon a risk of drowning. The risks are of an intrinsically different kind and so are any dependent duties. I do not think that this principle is negated by Mr McLaren's reference to Jolley v Sutton LBC [2000] 1WLR 1082 at 193, since Lord Hoffmann himself emphasised at page 192 that liability cannot depend on a failure to guard against a risk of a different kind from that which should have been foreseen. Failures which are not causative do not give rise to a liability in negligence (see Wood v Benthal Cimpex [1992] 1 PIQR 332).

32

In my judgement the risks to competent swimmers of swimming in this pond from which Mr Darby so unfortunately succumbed were perfectly obvious. There was no relevantly causative special risk of which the National Trust would or should have been aware which was not obvious. One or more notices saying “Danger No Swimming” would have told Mr Darby no more than he already knew. In my judgment it was for the court, not Miss Kirkwood, to determine whether there was a breach of the Occupiers' Liability Act duty in this case.

33

Mr Herbert submitted that there was no proper correlation between the risk of swimming in this pond and the risk of swimming in the sea or any other open water. I do not agree. It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious. The same would apply to all inland lakes and reservoirs. In my judgement there was no duty on the National Trust on the facts of this case to warn against swimming in this pond where the dangers of drowning were no other or greater than those which were quite obvious to any adult such as the unfortunate deceased. That, in my view, applies as much to the risk that a swimmer might get into difficulties from the temperature of the water as to the risk that he might get into difficulties from mud or sludge on the bottom of the pond.

34

For these reasons I would allow the appeal and enter judgment for the defendants. If that is the view of my Lords the appeals on quantum do not arise for decision.

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LORD JUSTICE LATHAM: I agree.

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LORD JUSTICE SCHIEMANN: I also agree.

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(Appeal allowed with costs not to be enforced without further order; claimant's costs assessed at nil; defendants costs to be paid by the Legal Services Commission; application to appeal to the House of Lords refused).