Harvey v Plymouth City Council [2010] EWCA Civ 860

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. 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.

Did permission to use council land for ordinary recreation extend to the claimant's reckless night-time route while fleeing a taxi fare, making him a visitor under the 1957 Act?

The Court of Appeal allowed the council's appeal. The claimant was not a visitor for the activity in which he was engaged. An implied licence for ordinary recreation did not extend to every reckless use of the land merely because such behaviour might be foreseeable. The question was the scope of permission, not simply the likelihood of someone entering. The finding of liability under the Occupiers' Liability Act 1957 could therefore not stand. The case should not be described as deciding that intoxicated people can never be visitors. It turns on the particular activity and whether that use was expressly or impliedly permitted.

Visitor status depends on the scope of the occupier's permission, not merely the foreseeability of entry. A general licence for recreation does not necessarily extend to materially different reckless conduct. Harvey rejected the claimant's reliance on the 1957 Act on that basis.

Harvey requires status to be established before applying the visitor's duty. Predicting misconduct is not the same as consenting to it. The case is useful alongside Tomlinson for identifying the purpose for which access is allowed, but the statutory route for non-visitors must be considered separately where pleaded. It does not support a rule that every unsafe use automatically forfeits visitor status or that alcohol alone determines the applicable Act.