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Cite as: [2003] EWCA Civ 231, [2003] 2 WLR 1138, [2003] QB 1008

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JISCBAILII_CASE_TORT

		Neutral Citation Number: [2003] EWCA Civ 231
		Case No: B3/2002/1920

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Bowers

Royal Courts of Justice
Strand,
London, WC2A 2LL

27th February 2003

B e f o r e :

LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE BROOKE
and
LORD JUSTICE LAWS
____________________

	JOHN SIMON DONOGHUE	Claimant/ Respondent
	- and -
	FOLKESTONE PROPERTIES LIMITED	Defendant/Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Bill Braithwaite, QC and Mr Alan Saggerson (instructed by Cunningham John for the Respondent)
Mr Lawrence West (instructed by Eversheds for the Appellant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Phillips, MR :

Introduction

This is an appeal against the judgment given on 2 September 2002 by His Honour Judge Bowers, sitting as an additional Judge of the High Court. It arises out of a tragic accident. On Saturday 27 December 1997, shortly after midnight, the Respondent, Mr Donoghue, decided to go for a swim in Folkestone Harbour. He dived into the sea from a slipway, struck his head on an underwater obstruction, broke his neck and was rendered tetraplegic.

The Appellants, ('Folkestone Properties'), own and occupy the harbour. Mr Donoghue claimed that they had been in breach of duty owed to him under the Occupiers' Liability Act 1984 ('the 1984 Act') and were responsible for his injuries. The Judge upheld this claim, but found that Mr Donoghue had contributed to the accident by his own negligence to the extent that he could only recover 25% of his damages. He does not appeal against that finding. Folkestone Properties appeal. They contend that the Judge erred in finding that they owed any duty of care to Mr Donoghue. They do not challenge his finding that they owed a duty of care to those who, as they were well aware, swam and dived in the vicinity of the slipway in the summer. They contend, however, that this duty did not extend to Mr Donoghue, of whose swimming expedition in mid-winter in the middle of the night they neither knew nor could reasonably have been expected to know.

The harbour

The Judge has given a careful and detailed description of Folkestone Inner Harbour where the accident occurred. Because the issue raised on this appeal is a narrow one, and essentially an issue of law, I can describe it much more briefly.

The slipway, off which the accident occurred, lies in the North West corner of the inner harbour. Initially it slopes down parallel and adjacent to the North wall of the inner harbour, but it then angles away from that wall, forming a dog's leg and continuing to slope down until it reaches the bed of the harbour.

Protruding into the harbour at right angles to the lower limb of the dog's leg are seven substantial horizontal wooden beams, each set on a concrete base. These are grid piles forming a "grid bed" upon which a boat can be placed as the tide ebbs away, so that access can be gained to her hull. The grid piles stand proud of the harbour bed to the extent of some 80cms. As the tide rises the grid bed is progressively submerged until it is wholly under water for a period between four and seven hours, depending upon whether the tides are spring or neap.

The object of the slipway is to enable the launching or recovery of boats and jet-skis and members of the public were licensed by Folkestone Properties to use the slipway for this purpose. The Judge found that they probably had an implied licence to walk down the slipway to the water's edge, and that they had a licence to walk up and down the path at the top of the harbour walls.

Members of the public did not have a licence to use the inner harbour for the purpose of swimming or jumping or diving in the water. On the contrary, Folkestone Properties tried to prevent this. Eastward of the slipway, in two places, steps descended from the North harbour wall to a landing stage. In the summer these landing stages were popular places from which children, and the occasional adult, entered the water to swim. At the head of each staircase, but not the slipway, a notice was placed stating "jumping in the harbour and swimming is prohibited".

Children and the occasional adult also swam from the slipway in the summer, although in smaller numbers. They would sometimes jump or dive into the water from the slipway, and Folkestone Properties were aware of this. Security guards would try to stop the children from swimming in the harbour and, on occasion, the police were called, but to no marked effect.

Mr Donoghue

Mr Donoghue was aged 31 at the time of his accident. He was about 6'2" tall, weighed 16 stone and was very fit. He was a professional scuba diver. He was trained in the Royal Navy and had served as a diver. His service records show the extent of his very considerable experience, which included on a number of occasions the recovery of bodies. After leaving the Navy, he continued to work as a diver. As a diving supervisor it had been his responsibility to ascertain water depths and freedom from obstructions before authorising a dive. As the Judge found, years of professional training and experience reinforced in his case the common sense rule that you should not dive into water unless sure of sufficient depth and the absence of obstructions.

Mr Donoghue had lived in Folkestone since 1994. He had visited the harbour once every month or two and occasionally launched a rigid inflatable from the slipway. He had seen children and adults swimming in the harbour in the summer, but had never observed the grid piles or the notices at the top of the stairways, which prohibited swimming. The Judge rejected his evidence that he thought the harbour was a recognised place to swim. He found that Mr Donoghue realised perfectly well that swimming was probably unauthorised but difficult to prevent.

The accident

Mr Donoghue spent the latter part of the evening of Boxing Day drinking in Scruffy Murphy's public house with his partner Samia and with a number of friends. These included David Watkins, another professional diver who had been in the Navy with Mr Donoghue and who had taught him to dive. While in the public house Mr Donoghue consumed at least five pints of beer, so that he was 'merry drunk', but not incapable or unable to know what he was doing or saying. He had already had it in mind to go for a Boxing Day swim, and he discussed going for a night swim with the others in the public house. When they left, some of the party, including Samia, went home by taxi while Mr Donoghue, Mr Watkins and another man and woman walked to the slipway.

Mr Donoghue and Mr Watkins both intended to swim. Mr Donoghue undressed the faster and, having removed all his clothes, walked down the slipway until he reached the water. The state of the tide was such that there was about 2 feet or so of water over the grid bed. Mr Donoghue dived in and hit his head on a grid pile and broke his neck. He then floated face down on the water. Mr Watkins jumped in and rescued him.

The Occupiers' Liability Act 1984

Section 1 of the 1984 Act provides as follows:

"Duty of occupier to persons other than his visitors

(1) The rules enacted by this section shall have effect, in place of the rules of the common law, to determine-

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

(2) For the purposes of this section, the persons who are to be treated respectively as an occupier of any premises (which, for those purposes, include any fixed or movable structure) and as his visitors are-

(a) any person who owes in relation to the premises the duty referred to in section 2 of the Occupiers' Liability Act 1957 (the common duty of care), and

(b) those who are his visitors for the purposes of that duty.

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if-

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

(4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.

(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."

For the purposes of the Act, Folkestone Properties were the occupiers of the slipway. The Judge found that Mr Donoghue did not go onto the slipway as a licensee. He was a trespasser and thus a person 'other than a visitor'. There is no appeal against that finding.

The judgment

The facts that I have set out above are based upon findings made by the Judge which are not challenged. I now turn to the Judge's application of the Act to these facts.

The Judge saw as his starting point the need to 'identify in precise terms the danger which creates a risk of personal injury due to the state of the premises'. He did so in these terms:

"the danger is from the presence of the grid piles immediately adjacent to the slipway which are submerged for substantial periods of each day".

The Judge went on to consider the three criteria that give rise to a duty of care by reason of the provisions of section 1(3) of the Act. The critical issue in this appeal relates to his approach to this subsection. I shall explain the nature of that issue.

Section 1(3) of the Act lays down the test of whether a duty of care is owed to an individual – 'the other'. It was and is the case advanced by Mr Lawrence West, on behalf of Folkestone Properties, that each of the criteria in section 1(3) must be considered having regard to the characteristics and attributes of the individual claimant and the circumstances prevailing when that individual suffered his injury. Thus the question raised by section 1(3) of whether the grid bed posed a danger had to be answered by considering whether it posed a danger to Mr Donoghue, a mature adult with great experience as a professional diver. The question raised by section 1(3)(b) of whether Folkestone Properties had reasonable grounds to believe that Mr Donoghue might be in, or come into, the vicinity of the danger had to be answered having regard to the time of year and the time of day when the accident occurred. The question raised by section 1(3)(c) of whether Folkestone Properties might reasonably be expected to offer some protection against the risk of suffering injury by reason of the presence of the grid bed had to be considered having regard to Mr Donoghue's personal characteristics and attributes.

On behalf of Mr Donoghue, Mr Braithwaite, QC, submitted to the Judge, as he did to us, that the correct approach was that laid down by Ward LJ in Tomlinson v Congleton Borough Council [2002] EWCA Civ 309. This demonstrated, so he submitted, that the approach when applying section 1(3) of the Act differed from the approach to be adopted when applying section 1(4). Section 1(3) imposed a duty on an occupier to offer some protection when he could reasonably believe that a class of persons, usually trespassers, might come into the vicinity of a danger that carried the risk of causing injury or death. Section 1(4) was concerned with the precise nature of the precautions that should be taken to protect the particular individual bringing the claim for breach of duty. If the appropriate precaution was, as in the present case, a warning sign, and failure to put up such a sign caused the individual to sustain injury, all the elements to establish liability would be present even though the accident occurred at a time other than that when the presence of the class of trespassers was reasonably to be anticipated.

The Judge accepted Mr Braithwaite's submissions as to the way to determine if a duty exists - see the following passage in paragraph 32 of his judgment:

"…the claimant points, in particular, to the approach of Ward LJ in Tomlinson who, when considering the issue of the existence of the duty (Paras 23-29) did so in general terms rather than specifically to the individual claimant.

Furthermore they point out that it is only when Ward LJ comes to look at the standard of care under s.1(4) that he states (Para 30) 'By now the focus has to be on the duty owed to the individual claimant whereas at the earlier stages of the enquiry it was probably more accurate to think of the duty owed to the claimant as a member of a class of person, young or old, nefariously on the premises or using them to the occupiers knowledge, if not with his permission'.

Comments drawing a similar distinction between on the one hand the duty being owed to the claimant personally but as a member of a class at risk and on the other hand the nature and extent of that duty (which are entirely personal to the claimant) are stated by Stuart-Smith LJ at Paragraph 44 of Ratcliff v McConnell [1999] 1 WLR 670.

In looking at s.1(3) it is interesting to note that the expression used is 'another (not being his visitor)' and thereafter 'the other' is clearly a reference back to a notional person i.e. someone other than a visitor. In s.1(4) by contrast the standard of care relates not to 'the' (notional) 'other' but to see that 'he' does not suffer injury.

Even therefore, if I did not feel bound by the authority of Tomlinson and the interpretation of Ward LJ (which I do) I would arrive at the same interpretation. I am quite satisfied that the existence of the duty is to be looked at in more general terms as a class of trespasser whereas the standard of care to be exercised is specifically set by reference to the individual trespasser."

In paragraph 33 the Judge, applying this approach to the facts, concluded that Folkestone Properties had owed a duty to offer some protection by virtue of the provisions of section 1(3) of the Act:

"Thus in my judgment the danger is from the presence of the grid piles immediately adjacent to the slipway which are submerged for substantial periods of each day. The defendants clearly knew of their existence, whether from the 1920's (their evidence) or the 1970's (Mr Gale). Equally clearly, the defendants knew or had reasonable grounds to believe that trespassers swam, jumped or dived in the harbour and some of them did so off the slipway in the vicinity of the grid piles. At certain times of the year (and of the day) the numbers could be substantial.

There are self-evident risks in a tidal harbour regarding the depth of water and the possibility of submerged obstructions which might well be regarded as obvious to an adult and in respect of which no warning is required. However this is a permanent obstruction adjacent to the slipway from which an adult and/or child may attempt to jump or dive - indeed on the only side of the slipway from which one could jump or dive. The water is always murky according to the evidence and the grid piles are covered with water for significant periods in each day. Those periods when the grid piles are covered are the very times when swimming jumping or diving could take place and whilst at high tide the piles are well covered there are significant periods when the depth of water is relatively shallow. Thus in all the circumstances I consider that the occupier could reasonably be expected to offer some protection."

In paragraph 35 of his judgment the Judge held that the precaution that Folkestone Properties should have taken was to display at the top of the slipway a notice stating words to the effect "Danger; No swimming, jumping or diving; Hidden objects; Shallow water". He later held that, had such a notice been displayed, it would have dissuaded Mr Donoghue from diving off the slipway.

While, in paragraph 33 of his judgment, the Judge commented that the numbers of trespassers swimming, jumping and diving could be substantial at certain times of the year (and of the day), he made no express finding as to whether there were other times of the year (or day) when it would not be reasonable to expect any members of the class in question to be in the vicinity of the danger. It seems to me that he cannot have considered that this question was relevant. His approach to duty 'in general terms' involved the application of a test that was satisfied once it was shown that Folkestone Properties had reason to believe that on some occasions a class of persons would be swimming, jumping and diving in the vicinity of the grid bed.

The Judge did, however, make the following finding in relation to the particular facts of this case:

"It goes without saying that if I had accepted the defendants' interpretation then clearly they could not possibly have known or had reasonable grounds to believe that the claimant would come onto the slipway in drink, after midnight, in midwinter to dive naked into the harbour in the vicinity of the grid piles which were inadequately covered with water. Equally they would not reasonably be expected to offer him some protection from that risk."

Mr Braithwaite conceded that it was implicit from this finding that Folkestone Properties did not have reason to believe that anyone would be swimming jumping or diving in the vicinity of the grid piles in mid-winter. He accepted that there was no basis upon which the Judge could have found otherwise.

The issue

Mr West has not abandoned his contention that the question of whether a danger existed and of whether a duty was owed under section 1(3) had to be decided by reference to a man with the attributes of Mr Donoghue. He has accepted, however, that, on the findings made by the Judge, had Mr Donoghue been among those who to the knowledge of Folkestone Properties were accustomed to swim in the vicinity of the slipway in the summer, they would in the summer have owed a duty to protect him by posting a warning of the kind formulated by the Judge. His appeal is founded solely upon the requirement of section 1(3)(b). He submits that the duty that is owed to offer some protection to a trespasser against a danger only extends to the time or times at which the occupier has reasonable grounds to believe that the trespasser may be in the vicinity of and at risk from the danger. As there were no reasonable grounds to believe that anyone would be swimming in the vicinity of the slipway in the middle of the night in mid-winter, no duty was owed to Mr Donoghue at the time that he had his accident.

In reaching his conclusion in relation to duty, the Judge was influenced by the approach that he understood to have been laid down by Ward LJ in Tomlinson. Insofar as that case turned on any holding of legal principle we must follow it. I propose to make some general observations about the manner in which the Act appears to operate, and to refer to the sparse authority before Tomlinson that bears on this, before turning to consider the effect of that decision.

The 1984 Act

The starting point is the Occupiers' Liability Act 1957 ('the 1957 Act'). The 1957 Act imposes on an occupier 'the common duty of care' to all his visitors – that is his invitees or licensees. Section 2(2) provides:

"The common duty of care is 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."

The 1957 Act did not impose any duty towards trespassers. In the decisions reflected in Robert Addie and Sons (Collieries) Ltd v Dumbreck [1929] AC 358 and in Herrington v British Railways Board [1972] AC 877 the common law moved some way to fill the gap. In Ratcliffe v McConnell [1999] 1 WLR 670 Stuart-Smith LJ, in a judgment with which the other two members of the Court agreed, considered the effect of the 1984 Act on the principles laid down by the speech of Lord Diplock in Herrington. First he cited the following passage from Lord Diplock's speech at pp.941-2, emphasising one phrase in the manner shown below:

"First: The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or of facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger. He is under no duty to the trespasser to make any inquiry or inspection to ascertain whether or not such facts do exist. His liability does not arise until he actually knows of them.

Secondly: Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser's presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.

Thirdly: The duty when it arises is limited to taking reasonable steps to enable the trespasser to avoid the danger. Where the likely trespasser is a child too young to understand or heed a written or a previous oral warning, this may involve providing reasonable physical obstacles to keep the child away from the danger.

Fourthly: The relevant likelihood to be considered is of the trespasser's presence at the actual time and place of danger to him. The degree of likelihood needed to give rise to the duty cannot, I think, be more closely defined than as being such as would impel a man of ordinary humane feelings to take some steps to mitigate the risk of injury to the trespasser to which the particular danger exposes him. It will thus depend on all the circumstances of the case: the permanent or intermittent character of the danger; the severity of the injuries which it is likely to cause; in the case of children, the attractiveness to them of that which constitutes the dangerous object or condition of the land; the expense involved in giving effective warning of it to the kind of trespasser likely to be injured, in relation to the occupier's resources in money or in labour. (Emphasis added)."

Stuart-Smith LJ then commented:

"Although the court must now obviously apply the words of the statute, it seems to me that the considerations enunciated by Lord Diplock in Herrington's case [1972] AC 877, 941, with the exception of the words emphasised in his fourth proposition, are still apposite. Those words which I have emphasised are no longer correct in the light of section 1(3)(c) and (5) of the Act of 1984."

I concur in this analysis.

The duty of care identified by Lord Diplock and imposed under the 1984 Act is significantly less exacting than the common duty of care imposed under the 1957 Act, as a comparison of the two statutes readily demonstrates.

The 1984 Act imposes a duty on an occupier where (1) the state of the premises poses a danger and (2) the danger is one that poses a risk of causing injury to a trespasser (it is convenient, though not always accurate, so to describe the 'non visitor') if he comes into the vicinity of the danger and (3) there are reasonable grounds for believing that the trespasser is or may come into the vicinity of the danger and (4) in all the circumstances of the case it is reasonable to afford the trespasser some protection against the risk.

The obvious situation where a duty under the 1984 Act is likely to arise is where the occupier knows that a trespasser may come upon a danger that is latent. In such a case the trespasser may be exposed to the risk of injury without realising that the danger exists. Where the state of the premises constitutes a danger that is perfectly obvious, and there is no reason for a trespasser observing it to go near it, a duty under the 1984 Act is unlikely to arise for at least two reasons. The first is that because the danger can readily be avoided, it is unlikely to pose a risk of injuring the trespasser whose presence on the premises is envisaged.

There are, however, circumstances in which it may be foreseeable that a trespasser will appreciate that a dangerous feature of premises poses a risk of injury, but will nevertheless deliberately court the danger and risk the injury. It seems to me that, at least where the individual is an adult, it will be rare that those circumstances will be such that the occupier can reasonably be expected to offer some protection to the trespasser against the risk.

There are some features of land that are not inherently dangerous but which may tempt a person on the land to indulge in an activity which carries a risk of injury. Such activities include cliff-climbing, mountaineering, skiing, and hang-gliding by way of example. It does not seem to me that a person carrying on such an activity can ascribe to the 'state of the premises' an injury sustained as a result of a mishap in the course of carrying on the activity – provided of course that the mishap is not caused by an unusual or latent feature of the landscape. I do not consider that the 1984 Act imposes any duty on an occupier to protect a trespasser from making use of a particular feature of the premises in order to carry on an activity simply because that activity carries with it an inherent risk of injury.

This brings me to swimming and diving. An expanse of water, be it a lake, pond, river or the sea, does not normally pose any danger to a person on land. If a trespasser deliberately enters the water to swim, then the trespasser chooses to indulge in an activity which carries a degree of inherent risk. If the trespasser gets cramp or becomes exhausted and drowns, it cannot properly be said that this tragedy is attributable to the 'state of the premises'. Where a trespasser suffers injury as a result of diving onto the bottom, or onto an obstruction that stands proud of the bottom, the position is less simple.

If a trespasser jumps down a bank and injures himself by contact with the ground, his injury cannot properly be said to be attributable to the 'state of the premises'. If the bank is on the edge of a lake, and the ground is beneath the water, I still have difficulty in seeing how his injury can be said to be attributable to the 'state of the premises'. If, however, there is a concealed obstruction beneath what appears to be deep water, it then becomes arguable that an injury suffered by a trespasser who dives upon it is attributable, in part, to the 'state of the premises'. It will not, of course, necessarily follow that the occupier will be liable under the 1984 Act. This will depend upon the application of the other criteria laid down by the Act.

I now return to Ratcliff v McConnell. In that case a student had gained access to a swimming pool by climbing over a locked gate at night and dived into the shallow end, sustaining severe injuries. He claimed that the defendants were liable under the 1984 Act in that they should have taken greater precautions to prevent such an accident. The Court of Appeal held that no duty was owed to him under the Act because he was aware of the risk involved and willingly accepted it.

In holding that the majority of Lord Diplock's principles were applicable under the statutory regime, it is particularly significant in the context of the present case that Stuart-Smith LJ endorsed the proposition that the existence of the duty had to be determined by reference to the likelihood of the trespasser's presence in the vicinity of the danger at the actual time and place of danger to him.

I turn to paragraph 44 of Stuart-Smith LJ's judgment, which the Judge considered supported the approach of identifying whether a duty arises under section 1(3) of the 1984 Act by reference to a 'class at risk'. What the Lord Justice said was this:

"The duty, if any, is owed to the individual trespasser, though he may be a member of a class that the occupier knows or has reasonable grounds to believe is in the vicinity of the danger. But the nature and extent of what it is reasonable to expect of the occupier varies greatly depending on whether the trespasser is very young or very old and so may not appreciate the nature of the danger which is or ought to be apparent to an adult."

These observations do not support the proposition that, when applying section 1(3), it is appropriate to ask the question of whether a duty is owed to a class. Consideration of a class of trespasser may be helpful when approaching the question raised by section 1(3)(b) of whether the occupier has reasonable grounds to believe that the trespasser may come into the vicinity of the danger. Plainly this does not restrict those who are the subject of the duty to individuals of whom the occupier has personal knowledge. It will be enough if the trespasser can show that he was one of a class of persons whom the occupier had reason to believe might be in the vicinity of the danger. Once, however, section 1(3)(b) is satisfied, it then becomes necessary to consider whether any duty was owed to the particular member of that class who suffered the injury. That was the very point made by Stuart-Smith LJ when he observed that what it is reasonable to expect of the occupier varies greatly depending upon the age of the trespasser. A duty to offer some protection to children known to be present in the vicinity of the danger may well exist in circumstances where the occupier cannot reasonably be required to offer any protection to an adult.

There is an earlier, unreported, decision of the Court of Appeal, which affords some further guidance to the approach to section 1 of the 1984 Act. White v The Council of the City and District of St. Albans (Transcript 2 March 1990) involved a claim by a trespasser who had suffered injury by falling into a gap when taking a short cut to a car park. In the leading judgment at p.6, after setting out subsections (3), (4) and (5) of section 1, Neill LJ commented:

"We can see, therefore, the scheme of those last three subsections. Subsection (3) contains the provisions which are relevant for the purpose of determining whether the occupier of the premises owes any duty at all to the person who is described as 'another (not being his visitor)'. Subsection (4) sets out the nature and extent of the duty once it has been established that the person on the premises is a person to whom a duty is owed. Subsection (5) contains provisions which may, in certain circumstances, apply whereby the occupier may be able to discharge his duty by taking such steps as are reasonable in all the circumstances, either to give warning of the danger or, alternatively, to discourage persons from incurring the risk."

These comments draw no distinction between the subsections in respect of the approach to be adopted when considering whether a duty is owed to a trespasser.

A subsequent passage in Neill LJ's judgment is particularly relevant to the present case. Mr West, in that case appearing for the claimant, argued that the fact that the defendants had placed a chain link fence to inhibit access to the gap demonstrated that the likelihood of trespassers approaching the gap had been appreciated by them. He contended that, when considering whether a duty of care existed, it was necessary to consider the position before any precautions had been taken. Neill LJ rejected this submission. He held at p.9:

"It seems to me that the question to be considered under subsection (3)(b) must be answered by looking at the actual state of affairs on the ground at the time when the injury is suffered. The question is: had the occupier of the premises reasonable grounds to believe that somebody such as Mr White might come into the vicinity of the danger.

….

To my mind, the judge was wholly justified in coming to the conclusion that the Council had no reasonable grounds for believing that Mr White on that occasion might come into the vicinity of this gap or channel into which, unhappily, he fell."

Tomlinson

Having considered the prior authorities which are relevant I now turn to Tomlinson. Mr Tomlinson, the claimant, suffered injuries which rendered him a paraplegic as a consequence of hitting his head on the bottom when he dived into a lake that was situated on land owned and occupied by the defendant Council. He had dived from a position standing in the water and hit his head on the bed of the lake, not on any obstruction. The Council permitted the public to have access to the lake and the land around it for various leisure activities, but these did not include swimming. The prohibition on swimming was made clear by a notices at the shore of the lake reading "DANGEROUS WATER; NO SWIMMING".

The trial Judge ruled that, by ignoring this notice, Mr Tomlinson became a trespasser so that the applicable statute was the 1984 Act. That proposition was not challenged, though in his dissenting judgment Longmore LJ expressed reservations about it. I share those reservations. What was at issue in the case was whether the Council should have taken steps which would have prevented Mr Tomlinson from entering the lake, that is, whether a duty of care was owed to him before he did the unauthorised act. In those circumstances it seems to me that it was arguable that the relevant statute was the 1957 Act. However for present purposes what is relevant is what the Court of Appeal had to say about the operation of the 1984 Act.

The trial Judge held that the Council was under no liability to Mr Tomlinson. He held that the danger and risk of injury from diving in the lake where it was shallow were obvious. Applying previous decisions under the 1957 Act, he held that an occupier was not under a duty to warn against a risk which was obvious. In any event, he held that the signs prohibiting swimming were reasonable and sufficient steps to give warning of the danger. The Council were aware that these signs were widely disregarded, but the Judge rejected the argument that in these circumstances the Council owed a duty to fence off the beaches and to plant vegetation that would discourage the public from entering the water. He held that the decision to enter the water was one that members of the public were free to make; they could choose to accept the risk.

The Court of Appeal reversed the trial Judge. Ward LJ gave the leading judgment. He was impressed by documentary evidence showing hundreds of people swam in the lake on warm summer days, that there had been a history of accidents in the lake, including near drownings, and that the Council had been advised that it was only a question of time before somebody drowned. In these circumstances he held that the Council had been under a duty to prevent members of the public from suffering injury 'by reason of the dangers which awaited those who entered the water for a swim'. Those dangers he had earlier identified as follows:

"In this case there was a risk of injury being suffered by anyone entering the water because of the dangers due to the state of the premises, the premises being constituted by the configuration and contents of this pond created as it was from a disused sand-extraction pit. There was a risk of injury through drowning because of the dangers, among others, of the effect of cold water, being caught in weed, being stuck in the mud or plunging unexpectedly into deep water. There was the risk of injury through diving because of the dangers of diving too steeply in shallow water or into an obstruction. There may have been risks of other injury from other dangers, eg Weil's disease. These risks of injury arose as soon as one entered the water because one did not know what danger lurked, or where it lay hidden. The exact nature of the hazard may not much matter in the particular circumstances of this case."

Ward LJ held that the 1984 Act had to be used as a 'template' for judgment and that it was necessary to look to the Act for the relevant principles. It was a staged process. The first stage was to identify the risk and the danger. This he did in the manner set out in the paragraph above. The second stage was to determine whether or not a duty was owed by the occupier. This depended solely on whether the criteria in section 1(3) were satisfied. In applying this test the Judge drew no distinction between Mr Tomlinson and the many other trespassers who were known to enter the lake. He held that section 1(3)(b) was satisfied because it was known to the Council that many entered the water and were in the vicinity of the dangers concerned.

When addressing section 1(3)(c) Ward LJ held that a different approach was required from that which was applicable when considering Section 1(4). He said:

"The third, and in this case crucial, requirement laid down by s.1(3)(c) is whether the risk was one against which, in all the circumstances of the case, the occupiers might reasonably be expected to offer the trespasser some protection. Analysing that, the protection is against any such risk as is referred to in sub-s. 1, the risk, that is, of the trespasser suffering injury by reason of the dangers lurking in the mere. The protection we are looking for is 'some protection'. The question is whether some protection might reasonably be expected to be offered. The question is not whether reasonable protection is to be expected. To frame the question that way is to fail to distinguish between the establishing of the duty under s. 1(3) and the standard of care necessary to satisfy the duty which is provided by s. 1(4). These are distinct and separate requirements and I am concerned that the judge may have failed to keep them separate and distinct when he said:

'In the circumstances of this case at least, consideration of the third requirement under section 1(3) and the consideration of the duty under section 1(4) cover much the same ground. In my view the danger and risk of injury from diving in the lake where it was shallow were obvious… an occupier is not under a duty to warn against a risk which is obvious.'"

Ward LJ went on to review the evidence of the history of accidents and near drownings over the years and concluded that the occupiers were reasonably to be expected to offer some protection against the risks of entering the water and that it followed that the Council was under a duty to Mr Tomlinson. He then turned to section 1(4) and said:

"The standard of care is defined by s. 1(4). It is 'to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned'. By now the focus has to be on the duty owed to the individual claimant whereas at the earlier stages of the inquiry it was probably more accurate to think of the duty owed to the claimant as a member of a class of persons, young or old, nefariously on the premises or using them to the occupier's knowledge, if not with his permission."

This is the passage that led Judge Bowers to approach the question of whether Folkestone Properties owed a duty of care 'in general terms' without reference to the particular experience that Mr Donoghue had as a diver or to the time of year and of day when he had his accident.

Ward LJ went on to consider the nature of the steps that the Council should have taken to protect Mr Tomlinson and concluded that the Council should have carried out landscaping and planting that would have transformed the lakeside beach into a barrier.

Sedley LJ agreed that the appeal should be allowed. He added some brief reasoning of his own, the essence of which was as follows:

"It is, I agree, an apparent oddity that a person who is injured by diving into shallow water - a pretty obvious hazard - should be able to claim the benefit of precautions which in reality were needed in order to stop people losing their footing where the lake bed shelved steeply or becoming entangled in thick weeds. But there are two separate answers, one relating to the obviousness of the hazard, the other to its nature.

As to the nature of the hazard, it was rightly not argued by the respondents that this could make the difference between liability and no liability in the present case. It is well settled by authority that if there is a duty to protect people against foreseeable injury, it does not matter if the accident which happens was not itself foreseeable, so long as it is not in an entirely different league: see Hughes v Lord Advocate [1963] AC 837, [1963] 1 All ER 705; Smith v Leech Brain and Co Ltd [1962] 2 QB 405, [1961] 3 All ER 1159.

If primary liability is established, the obviousness of the hazard goes to contributory negligence; for it is only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability."

Longmore LJ gave a short but powerful dissenting judgment.

There are aspects of each of the majority judgments in Tomlinson with which I have difficulty. I have been unable to identify in either judgment the 'state of the premises' which posed a danger which carried with it the risk of the injury suffered by Mr Tomlinson. It seems to me that Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state. Nor can I readily reconcile Sedley LJ's statement that 'it is only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability' with the terms under which the 1984 Act, and particularly section 1(5), imposes a limited duty of care in respect of trespassers.

Turning to the distinction that Ward LJ made between the approach to section 1(3) and the approach to section 1(4), this does not form part of the majority ratio, nor indeed was it critical to the result reached by Ward LJ himself. I am not bound to follow it and shall not attempt to do so, for I do not consider that the distinction is a valid one. On the natural meaning of sections 1(3) and 1(4) it seems to me that 'the other' in section 1(3) is the same person as 'another' in section 1(4), namely the very individual who has sustained the injury and in respect of whom the issue under consideration has arisen. Quite apart from the natural meaning of the words, I cannot see how one can logically reach the question of what action it is reasonable for an occupier to take to protect an individual trespasser against a risk pursuant to section 1(4) unless one has first decided that the risk is such that it is reasonable for the occupier to offer that person some protection pursuant to section 1(3).

If I am correct, the basis underlying the Judge's decision on duty is unsound. Even if I am not correct, it does not seem to me that Ward LJ's approach should have led the Judge to the conclusion that, when considering whether a duty of care existed pursuant to section 1(3), it was unnecessary to apply the statutory criteria to the circumstances prevailing at the time that the accident occurred. In Tomlinson it was common ground that the Council had reasonable grounds to believe that members of the public such as Mr Tomlinson were likely to be in the vicinity of the lake when the accident occurred. No issue under section 1(3)(b) arose. Ward LJ's approach did not involve the conclusion that if a duty of care exists in the summer, an identical duty will exist in the winter. The circumstances which are material to the existence of the duty may change with the seasons or the time of day. That was the position in the present case.

In the course of argument we invited Mr Braithwaite to consider what the position would have been if Folkestone Properties had decided to adopt a more effective way of preventing members of the public from swimming from the slipway than merely posting a notice. What if they had posted a security guard on the slipway to prevent people from swimming? If they withdrew the guard during hours of darkness in circumstances where there were no reasonable grounds to believe that anyone would wish to swim from the slipway, could they possibly be held to be in breach of duty under the 1984 Act? Mr Braithwaite was hard pressed to argue that they could, but contended that the facts of this case were different in that the reasonable steps that the Judge held should have been adopted involved putting up a notice, which would have remained day and night, summer and winter.

I did not find this response convincing. It does not seem to me that the period during which a duty of care extends can depend upon the means that may be used to discharge the duty. Furthermore, we asked Mr Braithwaite whether Folkestone Properties would have been in breach of duty had they posted a notice in the summer, but taken away all notices prohibiting swimming shortly before Christmas to repaint them, in the reasonable belief that no-one would attempt to go swimming in the harbour in mid-winter. Mr Braithwaite conceded that he would have been unable to establish a breach of duty in such circumstances

The observations of members of this Court, which I have cited, in Ratcliffe v McConnell and White v The Council of St Albans suggest that the test of whether a duty of care exists under the 1984 Act must be determined having regard to the circumstances prevailing at the time that it is alleged that the breach of duty resulted in injury to the claimant. That is my own reading of the relevant provisions of that Act. At the time that Mr Donoghue sustained his grievous injuries, Folkestone Properties had no reason to believe that he, or anyone else, would be swimming from the slipway. The criterion of section 1(3)(b) of the Act was not satisfied. Folkestone Properties owed no duty to Mr Donoghue and should not have been held under any liability for his accident. It is never a pleasant task to snatch from a grievously injured claimant compensation that might provide a measure of mitigation of his ill-fortune but for the reasons that I have given I would allow this appeal.

Lord Justice Brooke :

This case is all about the duty an occupier of premises owes to a trespasser. In Fairchild v Glenhaven Funeral Services Ltd [2001] 1 EWCA Civ 181 at [118]-[121]; [2002] 1 WLR 1052, 1083-5 I explained in section 8(iv) of the judgment of the court certain features of the common law relating to occupiers' liability prior to the enactment of the Occupiers' Liability Act 1957 ("the 1957 Act"). In particular I quoted the well-known dictum of Willes J in Indermaur v Dames (1866) LR 1 CP 274, 288 in which he set out what I described as an occupier's occupancy duty towards his invitees:

"And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact."

The 1957 Act abolished the old Byzantine distinctions between an invitee and a licensee. It clarified by statute the nature of the common duty of care which an occupier owes to all his visitors in consequence of the invitation or permission he gave to them to enter or use his premises. But it left untouched the question whether an occupier owed a duty, and if so what duty, to trespassers (being people whom he did not invite or permit to enter or use his premises for the purposes for which they chose to enter them, and who used them without any such invitation or permission).

In general the old common law judges had little sympathy with trespassers. In his speech in British Railways Board v Herrington [1972] AC 877, however, Lord Morris of Borth-y-Gest referred at pp 905-6 to a trilogy of early nineteenth century cases in which plaintiffs had claimed damages after being shot by spring guns which land-owners placed on their land to deter trespassers. Two strands of thought flowed from the decisions in these cases. The first was that the law should not sanction conduct towards trespassers that was inconsistent with common humanity. The second was that the law should not sanction conduct whereby an occupier of land intentionally set out to cause physical harm to trespassers. In the fullness of time an occupier who conducted himself with a reckless disregard for the safety of trespassers also came within this rubric. This was the state of the law when Robert Addie and Sons (Collieries) Ltd v Dumbreck [1929] AC 358 was decided.

Mr Dumbreck's four year old son, like many others of all ages, trespassed in a field which was being used as a dump for the deposit of ashes from the pithead of a colliery. The boy was killed while sitting on the cover of an unprotected iron wheel. He was caught and drawn into the operating machinery. Lord Hailsham LC said at p 367 that English law had been accurately summarised by Scrutton LJ in an earlier case in these terms:

"If the children were trespassers, the landowner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if in trespassing they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers."

In his speech in the same case Viscount Dunedin widened the scope of potential liability to a trespasser to include reckless conduct:

"… [I]f the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him: he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found, but they all come under the same head – injury either directly malicious or an acting so reckless as to be tantamount to malicious acting."

As a consequence Mr Dumbreck's claim failed. These two dicta dominated any discussion of the common law duty to trespassers in this jurisdiction for the next 40 years.

In the years after Addie v Dumbreck the development of the modern law of negligence proceeded apace following the breakthrough decision in Donoghue v Stevenson [1932] AC 562, but the law governing an occupier's duty to trespassers stood still, at least so far as the House of Lords was concerned. As I have indicated it was omitted from the law reform project that led up to the enactment of the Occupiers' Liability Act 1957, and on this side of the border there was nothing resembling the statutory scheme introduced into the law of Scotland by the Occupiers' Liability (Scotland) Act 1960 which Lord Reid mentions in his speech in Herrington at p 898C-D.

It is unnecessary for the purposes of this judgment to discuss such cases as Videan v British Transport Commission [1963] 2 QB 650 CA or Commissioner for Railways v Quinlan [1964] AC 1054 PC in which efforts were made to confer on trespassers greater rights, and to impose on occupiers greater obligations, than were consistent with the decision in Addie. They are fully discussed in Herrington and in the Law Commission's publications which followed Herrington. I can go straight to Herrington in which the five members of the House of Lords unanimously dismissed an appeal by the British Railways Board against an order directing them to pay compensation to a child trespasser who had strayed across a dilapidated fence onto their electrified railway line.

The trouble with Herrington's case, from the point of view of the smooth administration of justice, was that the five members of the House of Lords expressed themselves in different terms. The contents of their speeches, and the nature of the difficulties they created, are well summarised by the Law Commission in their Working Paper No 52, Liability for Damage or Injury to Trespassers and Related Questions of Occupiers' Liability (1973) at paras 15-22. The five law lords spoke with different voices when they tried to identify the occasions on which an occupier's duty to a trespasser might arise. They also spoke with different voices when they sought to identify the content of that duty.

This, then, is the background against which the Occupiers' Liability Act 1984 falls to be interpreted. The House of Lords had rejected the harshness of Addie v Dumbreck. They considered that humanity required a softer approach to the law relating to trespassers (and particularly child trespassers), but they could not agree what that approach should be. The situation was tailor-made for the statutory reference the Lord Chancellor made to the Law Commission in April 1972 (two months after Herrington was decided) in these terms:

"To consider, in the light of the decision of the House of Lords in British Railways Board v Herrington [1972] AC 877 the law relating to liability for damage or injury suffered by trespassers."

This reference led in due course to the publication of the Law Commission's Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers' Liability (Law Com No 75, 1976) and the enactment eight years later of the Occupiers' Liability Act 1984. That Act by section 1(1) expressly replaced the common law rules relating to the existence and nature of the duty owed by an occupier of premises to persons other than his visitors with a new statutory code.

The mischief which this legislation was enacted to remedy is clear from paragraphs 4 to 11 of the Law Commission's report. It said that the decision of the House of Lords in Herrington represented a considerable development of the principles laid down by the House in Addie v Dumbreck. It was difficult, however, to conclude that the question as to when special facts gave rise to a duty to the trespasser had received an entirely consistent answer in that case, nor to give a simple answer as to the content of the occupier's duty once it could be said, on the facts, to have arisen.

The language of the Law Commission's suggested legislative solution differed to a considerable extent from the language eventually adopted by Parliament, although there are certain similarities. For instance the new statutory duty will only arise if the [danger/risk] was "one against which in all the circumstances of the case, the [occupier/he] can reasonably be expected to offer [him/the other] some protection". Once the duty arises, it is described in each case as "a duty to take such care as is reasonable in all the circumstance of the case to see that [the entrant/he] does not suffer [personal injury or death/injury] by reason of the danger [concerned]".

In an important passage of its report, after explaining the duty in this way, the Law Commission said (at paras 28 and 29):

"28. It will be evident that the duty towards the trespasser under our recommendations is of a quite different character from the 'common duty of care' under the Occupiers' Liability Act 1957. Under the latter that duty is, in short, owed to all visitors and the occupier has to take reasonable care to see that they are reasonably safe. Under the former, while the duty is one which is owed potentially to all trespassers, the question of the extent of the duty does not arise at all unless, in the first place, the court decides as a question of fact that the danger is one against which, in all the circumstances, it is reasonable for the occupier to offer some protection.

In consequence, given identical circumstances, the fulfilment of the common duty of care towards a visitor may be expected in many instances to produce results entirely dissimilar from the fulfilment of our recommended duty of care towards the trespasser.

To take a few very obvious examples: if one of the steps upon the stairs in his house is temporarily missing while it is being repaired, an occupier may be expected to warn his visitor making use of the stairs of this fact in order to render him reasonably safe. But it would, in our view, be entirely unreasonable in the circumstances to expect the occupier to offer a burglar at night any protection at all in respect of this danger; and under our recommendations, therefore, no duty would be owed if the burglar were injured in consequence of this danger.

Again, a farmer selling livestock might be expected to keep a path reasonably safe for a customer who visits him to view the stock and to give him warning of, or protection in respect of, any dangers he might meet with in the course of his inspection. But he could not reasonably be expected to take the same precautions in respect of a thief engaged in stealing the stock. Such a person may enter at night by places other than the usual entrance and might injure himself on farm implements left lying off the path or on rusty nails on gates which he is unable to see; or he may even encounter dangers of an entirely natural character, such as a stream in which he falls and is injured or even drowned. In those circumstances it might very well be unreasonable to expect the farmer to offer any protection; and if so, again no duty at all would arise.

Finally, it may well be that in some circumstances it will be reasonable to offer some protection to the trespasser who is a child. This does not, however, mean that all child trespassers will be owed a duty: each case will depend upon its facts as to whether it would be reasonable in the circumstances to expect some protection to be given. Examples could, of course, be multiplied; but we give here sufficient only to indicate that the duty we are recommending is far less onerous than the common duty of care owed to the visitor, in that a positive answer must be given to the first element of the proposed duty before any consideration at all is given to the extent of the duty owed.

When a court has decided as a question of fact that an occupier did in the particular circumstances of a case owe some protection to a trespasser, the question then to be decided, in accordance with our recommendations, is whether the occupier has discharged the duty on him by taking such care as is reasonable in all the circumstances of the case to see that the trespasser did not suffer personal injury or death by reason of the danger upon the premises. In the range of circumstances to which the courts will have regard in deciding whether the occupier has acted reasonably, the application of the duty towards trespassers may again be expected to differ markedly from the common duty of care."

On the facts of the present case, the question we have to answer is whether, in the language of section 1(1) of the 1984 Act, Folkestone Properties, as the occupiers of this working port, owed any duty to Mr Donoghue (being a person other than a visitor for these purposes: see section 1(2)) in respect of his having suffered a broken neck by reason of the danger posed by the presence of the grid piles below the water-line. That question is to be answered by applying the tests set out in section 1(3). It is only if the answer is "yes, Folkestone Properties did owe him a duty in respect of the risk posed by the submerged grid piles" that one must then move on to section 1(4) to ascertain, in the language of section 1(1), what that duty is.

Like the Master of the Rolls I have not been able to detect with any clarity any common ratio in the judgments of the majority of this court in Tomlinson v Congleton Borough Council. If Sedley LJ had said that he agreed with the analysis contained in Ward LJ's judgment, we would have been bound by that analysis, however much we might disagree with it. But I do not know the route by which Sedley LJ concluded that the defendants owed Mr Tomlinson a duty in the circumstances of that case, or why he considered that they were in breach of that duty. His short judgment was concerned with other matters.

The law protects people from foreseeable harm in at least two distinct ways. For instance it may, by regulation, require the occupier of dangerous premises or the owner of dangerous machinery to provide fencing or guardrails or warning notices or other safety devices to protect people from risk of injury. Or it may, according to the genius of the common law, ask whether a particular defendant owed a particular injured person a legal duty in the circumstances in which he met with his injury. If he did, it will ask what that duty was, and whether it was breached before going on to consider questions of causation and foreseeability and the amount of any recoverable damages.

Usually judges and lawyers do not have to pause very long in the early stages of this analysis. The driver of a motor-car, for example, owes a duty of care to those who may be foreseeably injured by his driving of the car, and if he drives his car carelessly and someone gets injured as a result, then there are the makings of a legal claim. But in more unusual contexts, where these questions are to be answered by reference to common law tests, the inquiry will always be fact specific. In Haley v London Electricity Board [1965] AC 778 the House of Lords held that electricity undertakers owed a duty of care to blind persons as a class when they excavated a trench along a pavement in a London suburb because blind people foreseeably walk along pavements. The content of the duty was also fact specific, founded on the principle that such undertakers were entitled to assume that blind people would take reasonable care to protect themselves, for example by using a stick to ascertain if there was anything in the way. Unlike the maker of a statutory regulation, who legislates to provide protection against a number of different risks, the common law examines the factual situation in the particular case before undertaking the necessary inquiry as to liability.

In the present case Mr Donoghue dived into the Inner Harbour in the early hours of Saturday 27^th December 1997. Section 1(3) of the 1984 Act compels us to focus on that factual situation, which has nothing to do with the circumstances in which children swam or dived in the harbour at high tide on a sunny August bank holiday weekend. Although the defendants were aware of the danger posed by the presence of the grid-piles under the waterline, the Judge made the unchallenged findings, adverse to Mr Donoghue, which the Master of the Rolls has recited in paragraph 24 of his judgment. On these facts, therefore, the claim fails at the hurdle imposed by section 1(3)(b) of the 1984 Act and I, too, would allow the appeal.

In the circumstances it is not necessary to say much about section 1(3)(c). In the modern law of negligence, which postdates the enactment of the 1984 Act, we are accustomed to ask ourselves whether it is fair, just and reasonable for the law to impose the duty contended for. In the context of this statutory scheme Parliament has in essence declared that it is fair and just to impose a duty if the requirements of section 1(3)(a) and (b) are satisfied. When courts decide, on the facts of a particular case, whether the risk is one against which, in all the circumstances of the case, an occupier might reasonably be expected to offer a trespasser some protection, they would do well to refer to the passage in the 1976 Law Commission report which I have quoted in paragraph 72 of this judgment. I can see no evidence that in 1984 Parliament intended to alter the general philosophy of the law relating to trespassers which the House of Lords articulated in differing terms in Herrington. The mischief the Act was enacted to remedy was the one identified by the Law Commission at the start of its report (see para 70 above), and nothing more.

Lord Justice Laws:

I agree with both judgments

Order:

Appeal allowed;

The Order of His Honour Judge Bowers dated 2 September 2002 be set aside;

The Claimant's claim be dismissed and judgment entered for the Defendant;

The Claimant pay the Defendant's costs of the trial of the action and the appeal on the standard basis;

The determination of the liability of the Claimant for the costs of the Defendant be postponed pursuant to the Community Legal Services (Costs) Regulations 2000, the Civil Legal Aid (General) Regulations 2000 and Section 11 of the Access to Justice Act 1999

The Claimant's costs of the action and the appeal which are payable out of the Community Legal Service Fund be assessed on the standard basis in accordance with the Civil Legal Aid (General) Regulations 1989, as amended by the Civil Legal Aid (General) Regulations 2000;

Leave to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)