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Occupier's Liability: Harvey v Plymouth City Council

17 January 2011

In this article (first appearing in FM World magazine), Victoria Blanchard looks at a case in which the Court of Appeal considered whether or not a land owner was liable under occupier’s liability when someone was injured on their land while acting recklessly (running around in the dark whilst drunk).

The Facts

The case concerned land owned by Plymouth City Council used by local youngsters as an informal recreation ground. At the edge of the land there was a 5.5 metre drop onto a car park. There was a chain link fence along this boundary, set back 1-2 metres from the edge. The fence was not properly maintained and had been pushed down to about 65 centimetres. Harvey, a 21 year old male, had been out drinking. He jumped out of his taxi at the end of the evening, ran across the land, tripped over the fence and fell over the edge into the car park below, suffering serious injuries.

The Law

Under the Occupiers' Liability Act 1957 ("OLA 1957"), an occupier of land owes a duty of care to "visitors". The duty is to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there (section 2(2), OLA 1957). A land owner may, by their conduct, confer an implied licence for someone to be on their land. A trespasser is subject to the lesser duty of care under the Occupiers' Liability Act 1984. In deciding whether Harvey was a visitor, the Court said that the question was not whether his activity might have been foreseen, but whether it had been impliedly assented to by the Council.

What did the Court say?

The court decided that Harvey did have an implied licence, created by the council’s conduct in allowing the land to be used. However, the licence was for general recreational activity and extended to normal activities carrying normal risks. The licence did not extend to reckless activities such as running around in the dark whilst drunk, so Harvey was not a visitor at the time of the accident. Overturning the first instance decision (which found the council liable, but Harvey 75% contributorily negligent), the court decided that the council was not liable.

What does this mean?

Over the last few years the Court of Appeal has been taking a much more robust view of occupier’s liability: if someone behaves irresponsibly he has to take the consequences, serious though they may be. However, land owners do need to make sure that appropriate safeguards are in place to protect those using their property in the permitted fashion.

There is also the practical point that land owners need to be aware of their land ownership and where they may have occupier's liability. This can be difficult for bodies such as councils where a regular audit of land owned may be required to keep on top of maintenance and potential risks of liability under the OLA 1957.

Case: Harvey (Jonathan) v Plymouth City Council [2010] EWCA Civ 860