NO DUTY OF CARE OWED TO TRESPASSER

Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231; [2003] 2 WLR 1138

In Donoghue v Folkestone Properties Ltd [2003] EWCA Civ 231; [2003] 2 WLR 1138 the Court of Appeal held that the defendant occupiers did not owe a duty of care to the claimant trespasser under the Occupiers’ Liability Act 1984. In so concluding the Court of Appeal adopted a rather different construction of s1(3) of the Act than that adopted by Lord Justice Ward in Tomlinson v Congleton Borough Council [2002] EWCA Civ 309, [2003] 2 WLR 1120 (on which see our May 2002 issue, pp.9–12). It held that the test to be applied when deciding whether or not a duty of care exists under the 1984 Act must be determined having regard to the circumstances prevailing at the time it was alleged that the breach of duty resulted in injury to the claimant. On the facts of the case, at the time at which the claimant suffered his injuries, the defendants had no reason to believe that the claimant, or anyone else, would be in the vicinity of the area in which the accident occurred and, consequently, did not owe a duty of care to the claimant. The decision is likely to provide some welcome news for occupiers in that it places a clearer limit on the extent of their potential liability towards trespassers.