healthcare update - issue 16
Court of Appeal overturns decision in occupier's liability case
The recent decision by the Court of Appeal in the case of
Jonathan Harvey v Plymouth County Council (2010)
reinforces the approach adopted by the courts that for a claim
brought under the Occupiers' Liability Act 1957 to succeed it must
be demonstrated that the true cause of the accident was the state
of the premises rather than the claimant’s own reckless
activity.
Facts
After an evening spent drinking with friends the claimant was
attempting to evade paying a taxi fare when he tripped on a fence
situated at the edge of local authority land and which had been
lowered to a height of only 14 inches. He fell a distance of 5
metres onto a car park below, sustaining serious injuries.
Damages were sought from the local authority on the basis it was
reasonably foreseeable youths would enter the land in high spirits
and that the claimant had therefore been an implied licensee who
was owed a duty of care under the Occupiers Liability Act 1957.
First instance decision
The trial judge found that the conduct of the claimant was in
the same category as that of other youths who would reasonably have
been expected to enter the land and that such conduct, if not the
detail of it, could and should have been foreseen by the local
authority. On that basis a failure to ensure the claimant was not
at risk of falling was in breach of the duty to take reasonable
care of his safety under the 1957 Act. The claim succeeded, albeit
there was a significant reduction of 75% to reflect the claimant’s
own negligence.
The defendant local authority appealed the decision.
Court of Appeal decision
The Court of Appeal considered that the key issue was not
whether the activity was foreseeable but rather whether there had
been implied consent for the activity to take place – in permitting
access to the land for general recreational activity, did it follow
that the permission widened to allow any form of activity?
The Court of Appeal thought not. There was simply no evidence to
support a finding that permission to use the land extended to
reckless activity. The first instance decision was overturned and
the claim failed in its entirety.
Comment
The decision is of relevance and comfort to all occupiers of
premises, to include NHS trusts. Whilst it is correct that under
section 2 of the 1957 Act there is “a duty to take such care as in
the circumstances is reasonable, to see that a visitor will be
reasonably safe in using the premises”, the limited extent of the
duty is often forgotten: “for the purposes for which (the visitor)
is invited or permitted by the occupier to be there.”
The duty is by no means all encompassing and when faced with a
claim from an injured visitor, consideration must be given as to
whether it was the state or characteristics of the premises which
resulted in the accident or alternatively the reckless action of
the individual. If it were the latter then the courts have
demonstrated a willingness to restrict the duty owed, affording
occupiers protection from claims brought by those whose own conduct
goes beyond the activities for which express or implied consent had
been provided.
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