A professional navy diver after a few cans of beer was "merry drunk" (as oppose to absolutely smashed) decided that it was a good idea to go for a midnight winter dive / swim at a near by harbour / sea. Upon arrival the claimant proceeded dive straight off the habour, and breaking his neck on the gridpiles (= an underwater obstruction) concealed by the darkness of the night, rendering Mr Donoghue tetraplegic.
Under the s.1(1)(3) of OLA'84 the occupier will only owe a duty of care towards a trespasser if:
- The occupier is aware of the danger and has reasonable grounds to believe that they exist; and
- Has reasonable grounds to believe that the trespasser is in the vicinity of danger; and
- It is reasonable to expect the occupier to offer some protectation.
The first test is subjective and the court found that the occupier of the harbour would not have foreseen that the gridpiles would have been a danger to an experienced diver such as Mr Donoghue. The court found that the defendant did not expect anyone would to go swimming during the winter therefore Mr Donoghue failed the second limb of the test, and by virtue of being a trespass Mr Donoghue is not owed a general duty of care that an OLA'57 claimant is owed (as per Lord Phillips)