Incident Report: John Donoghue

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Shortly after midnight on Saturday, 27 December 1997, John Donoghue dived from a slipway into Folkestone Harbour and struck his head on an underwater obstructing. He broke his neck and is now tetraplegic. 

Folkestone Properties was responsible for operating the harbour. The public was entitled to walk down the slipway and on the landing walls. However, they were not permitted to swim in the inner harbour area. Notices stating: "Jumping in the harbour and swimming is prohibited." Swimming was permitted in a separate area of the harbour in summer and was popular with adults and children. 

Mr Donaghue was 31 years old, 6'2'' tall, and weighed 16 stone when the accident occurred. He was very fit. He was a professional scuba diver, trained in the Royal Navy, and had served as a diver. He was, therefore, well aware of the danger of diving into the harbour. 

After drinks at a public house on Boxing Day, Mr Donoghue left with friends to swim in the harbour. The state of the tide was such that there were approximately 2 feet of water where Mr Donaghue subsequently dived in. After he hit his head, he lay face down and motionless in the water. His friend jumped in and rescued him. 

Folkestone Properties were the occupiers of the slipway, and Mr Donaghue was a trespasser under the 1984 Act. The claim asserted that if a warning sign had been present to warn of the hazard, Mr Donaghue would not have dived into the harbour in that location. The Court found that it was foreseeable that trespassers would attempt to swim in the harbour in the summer months, and Folkestone Properties knew of people doing so.

Lord Phillips MR said: 

"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 hits the lake bottom, then the injury does not arise from the state of the premises. If there is an obstruction on the lake bottom concealed beneath the water, then this can be said to arise from the state of the premises. This is a key distinction from Tomlinson v Congleton Borough Council [2002] EWCA Civ 309, where Mr Tomlinson ignored a "DANGEROUS WATER: NO SWIMMING" sign and dived, hitting his head on the lake bottom, rather than an obstruction on the lake bottom. Further, there was no issue in Tomlinson about a duty being owed in the summer because there were known breaches of the No Swimming rule at this time of year. In this case, the material event occurred in the winter, when it was inconceivable to Folkestone Properties that persons would seek to swim in the harbour. 

Folkestone Properties was found to owe no duty of care to Mr Donaghue. 

References (1)

Donoghue v Folkestone Properties [2003] EWCA Civ 231

Citation. Jacklin, D. 2024. Incident Report: John Donoghue. Water Incident Research Hub, 23 December.