Occupiers liability

Citation

Waterson, G. and Lee, R. (2001), "Occupiers liability", Property Management, Vol. 19 No. 4. https://doi.org/10.1108/pm.2001.11319dab.005

Occupiers liability

Occupiers liability

Darby v. National Trust The Times 23rd February 2001 CA

Readers may remember the tragic case of the father who drowned in front of his wife and four small children while swimming in a pond in the grounds of the National Trust property Hardwicke Hall, in North East Derbyshire. At the trial the widow was awarded damages of £114,000 on the ground that the National Trust had "faiIed to install sufficient notices prohibiting swimming".

However, the Court of Appeal unanimously reversed the decision stating that if the award were allowed to stand "no swimming" notices would have to go up around every pond, reservoir and coastal stretch in the country to avoid liability. As May L.J. stated: "… the risk to a competent swimmer [which Mr Darby was] were perfectly obvious. There was no relevant risk which the National Trust should have been aware of which was not obvious … One or more notices saying 'Danger – No Swimming' would have told Mr Darby no more than he already knew."

Although sadly the decision had the effect of depriving the widow of the £114,000 damages she was awarded in the County Court, it is in line with previous Court of Appeal decisions in which they have held that an occupier has no duty under the Occupiers Liability Act 1957 to warn about obvious hazards. For example, in Cotton v. Derbyshire Dales District Council (1994) The Times, 20 June 1994, there was no liability where a person fell from a cliff on Mam Tor while negotiating a steep and dangerous cliff path on land occupied by the local authority. In Staples v. West Dorset District Council (1995) 93 LGR 536 there was no liability where a tourist slipped off the Cobb in Lyme Regis, Dorset. The 165-year-old harbour wall was obviously slippery with algae and sea water. In Hogg v. Historic Building and Monuments Commission for England [1989] CLY 2573 an employee slipped on an external granite staircase built about 1540. The court held that users must be expected to look after themselves in circumstances such as these. This was an historic building. The steps were not defective even though they were obviously not up to modern building standards.

What all of these cases illustrate is that the courts take a realistic approach to the limits of occupiers' liability and that where the danger is obvious to all it may be that the occupier is not even required to display a warning since it would not make the visitor any safer than he or she already is, and it is the visitor and not the premises that must be kept safe under the Occupiers Liability Act 1957.