• In the case of Harvey v Plymouth cc 210 EWCA civ 860 it was held that where a local authority licensed to the public for use of its land for recreational purposes, is consenting to normal recreational activities carrying risks and its duty as occupier to an implied licensee could not be stretched to cover any form of activity however reckless.

Facts of the Case

  • The local authority appealed against a decision that it was liable for personal injury sustained by the respondent (H) on its land.
  • H, when aged 21, went out one evening drinking with friends.
  • When leaving a taxi and running away to escape paying the fare, he entered land owned by the local authority.
  • He fell down a sheer drop onto a car parking area attached to a superstore.
  • The land consisted of an area of grass bounded by shrubs and trees with a chain link fence next to the drop which had been lowered to 14 inches above ground level where H fell.
  • As a result, H suffered serious injuries including brain damage.
  • He sought to claim damages from the local authority on the basis that it had been reasonably foreseeable that youths might fool around on that area of land and perhaps whilst intoxicated with alcohol and that he had therefore been an implied licensee who was owed a duty of care under the Occupiers Liability Act 1957.
  • The judge at first instance held that it could and should have been foreseen by the local authority and that they should have taken steps to ensure H was protected from risk of serious injury.
  • The judge was satisfied that H was the local authority’s visitor in law and that it was in breach of its common law duty to him by not securing fencing around the edge.
  • He did assess H’s contributory negligence at 75%.  
  • The local authority contended that even if there was some form of licence, it had not extended to H’s activity in running wildly under the influence of alcohol to escape a lawful obligation to pay a taxi fare, at night and in a way reckless as to his own safety.

Issues in Harvey v Plymouth cc 210 EWCA civ 860

  • Did the local authority’s duty of care extend to H’s drunken activities of running through the recreational area?

Held by Court of Appeal

  • Appeal allowed

Carnwarth LJ

  • The appeal was allowed as under s.1(2) of the Act, an occupier must make premises reasonably safe for the purposes for which the visitor was invited or permitted by the occupier to be there and did not extend beyond the scope of activities for which the license had been expressly or impliedly given.
  • Foreseeability was not the relevant test in this case. There was no evidence to support that H’s activity had been impliedly consented to by the local authority. It was only consenting to the use of its land to the public for normal recreational activities carrying normal risks- not running through on a drunken escape from a taxi.
  • “I have some difficulty, with respect, in understanding what precisely he meant by “such conduct (but not) the detail of it”. It was clear from the evidence that various types of night-time activity had been seen on the land. But most of these carried no obvious risk of accident. The judge seems to have been thinking of some form of vigorous late night horse-play in the bushes, in which not all the participants would be sober. Yet, even if that might have been foreseen, foreseeability was not the relevant test. In deciding whether the claimant was a licensee, the question was, not whether his activity or similar activities might have been foreseen, but whether they had been impliedly assented to by the Council. In my view there was no evidence to support such a finding. When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless.
  • For these reasons, I cannot accept the judge’s conclusion that at the time of the accident the claimant was a “visitor” for the purposes of the 1957 Act. “