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Harvey v Plymouth City Council [2010] EWCA Civ 860, Court of Appeal, 29 July 2010

5 August 2010
The issues

Occupiers Liability Act 1957 – implied licence – normal recreational activities – visitor

The facts

The Claimant had suffered serious injuries, including brain injury, as a result of tripping on the fence at the edge of the land, which had been pulled down to a height of only 14 inches. He fell into the car park which lay beyond, and 5 metres below, the retaining wall of the land. The Claimant had been drinking fairly heavily and he and his friend were running from a taxi across the land when the accident happened.

The trial judge found that his conduct was in the same category as that of many other youths who would have gone onto the land and entered the bushes out of high spirits and that such conduct, if not the detail of it, should have been foreseeable by the Defendant. On that basis the trial judge found that the Claimant was the Council’s visitor and that his accident was caused partly as a result of a breach by the Defendant of the common duty of care under Section 2 of the 1957 Act.

However, the trial judge had also assessed contributory negligence at 75%. The Claimant had been drinking fairly heavily and he had run regardless into a dark area. In doing so he had run the real risk of tripping over the undergrowth or some object underfoot or running into something. Had he been sober, he would have taken more care and would have been much more aware of his surroundings. It is likely that he would have realised that the fence was there and that the land beyond was significantly below the Council’s land.

The defendant council appealed.

The decision

The Court of Appeal accepted that regular users of the land had an implied permission to use the land for general recreational purposes. However they found that it was necessary to consider whether the implied licence extended to the particular activities which led to the accident in question and confirmed that this was still a necessary question and that the well-known remark of Scrutton LJ in The Carlgarth [1927] P 93, 110 was preserved by Section 1(2): “…when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters”.

The Court of Appeal accepted that, whilst the Council may have impliedly licensed the use of their land for recreational purposes, it was consenting to only normal recreational activities, carrying normal risks. An implied licence for general recreational activity could not be stretched to cover any form of activity, however risky.

The Court of Appeal found that the correct question when considering whether the Council owed a duty to the Claimant under the 1957 Act was not whether the actions of the Claimant were foreseeable, but whether they had been impliedly consented to by the Council. The Court of Appeal agreed with the submissions made on behalf of the Council that there was no evidence to support such a finding given the nature of the Claimant’s actions which resulted in the accident.

Appeal allowed.

Comments

The case is important in confirming that it is necessary to consider carefully whether a person would have been considered a licensee or invitee at common law (and is therefore a visitor under the 1957 Act) and, more importantly perhaps, whether the conduct which resulted in the accident fell within the scope of any such licence or permission.

As the Court of Appeal point out, whether or not a person is to be regarded as a visitor, the scope of the duty owed under Section 2(2) of the 1957 Act is in any event limited to “the purposes for which (the visitor) is invited or permitted by the occupier to be there”. Thus, arguably, “a visitor who chooses to slide down the banister would be outside the protection of the Act, not because he has ceased to be a “visitor”, but because the occupier has no duty under the 1957 Act to make the premises safe for that unauthorised activity. Either way, it is clear that the duty under the 1957 Act does not extend beyond the scope of the activities for which the licence has been expressly or impliedly given”.

Acknowledgement and thanks to Catherine Brown for this summary.

For further information on this case please contact Mark Fowles (mf@vpinsurance.net) Lord Faulks QC (efaulks@1chancerylane.com) or Catherine Brown of 12 Kings Bench Walk (brown@12kbw.co.uk).

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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