An important case has recently been heard by the Court of Appeal which has overturned an earlier ruling by the High Court.
In the case Jonathan Harvey v Plymouth City Council on 29 July 2010, in 2003 four students, including Mr Harvey who was 21 at the time, shared a taxi home after rugby and the traditional after-match occupations. Upon arrival near the destination, three of them ran off in different directions, leaving the fourth student to pay the taxi fare (as he had purportedly paid less than his share that evening).
Mr Harvey ran across a grassed area and through a gap in the bushes. He fell down a 5 metre drop onto a Tesco car park, being constructed of concrete / asphalt. He sustained serious injuries.
The land was owned by Plymouth City Council. They had previously leased the land to Tesco and although the land was now back vested in the City Council, Tescos’ landscaped the area and still maintained the area by cutting the grass. The small chain link fence had been used and had been damaged so the fence still in situ became a trip hazard. The Council’s Park’s Department was not aware that the land was owned by the Council.
Harvey sued the Council as owner of the land alleging that it had failed to discharge the Duty of Care it owed him as a visitor under Section 2 of the Occupiers’ Liability Act 1957. Alternatively, if Mr Harvey was deemed a trespasser, he would sue under the Occupiers’ Liability Act, 1984.
The Council admitted it was the legal occupier of the land but denied that Harvey was a visitor. They also denied that it had the requisite knowledge to owe a duty of care under the 1984 Act. Eventually the claim under the 1984 Act was abandoned.
The High Court ruled that the Council did have a duty of care. Other youths had used the land for assorted purposes and, notwithstanding the fact that the Council did not know what these activities were, it still owed a Duty of Care to a visitor. (The Court deemed that a Council should implicitly know what may be happening on its own land.)
Having also decided that the actions of the claimant were youthful high spirits, the Court decided that the claimant was 75% responsible for his actions and the damages were therefore to be reduced accordingly.
The Court of Appeal overruled the decision, saying that even if the Council should have foreseen what could have happened on their land, foresight was not the appropriate test and that the test should have been whether, under the 1957 Act, the Council had impliedly given its consent or licensed the use such as that put to it by the claimant.
The Court of Appeal suggested that there was no reason to reach such a conclusion. The Court wanted to know whether the use was a “normal recreational activity, carrying normal risks. ” This would imply that the owner of a piece of land, even if the public have access to it, does not owe a Duty of Care for any form of reckless activity, only for the consequences of “normal” activities.
Harvey’s behaviour was deemed to go beyond the implied permission for general recreational activity and accordingly it was found that he was not a visitor and the Council owed him no Duty of Care under the 1957 Act.
The implications for the owner of any land with open access is that a liability exists to those engaged in “normal” activity on the land that an occupier can be said to have, expressly or impliedly, consented to. Then the Duty of Care to the individual would benefit from the enhanced protection afforded by the Occupiers’ Liability Act 1957.
The question of whether an activity is “normal” or not will be determined in each case on its merits; the Court of Appeal’s judgment in Jonathan Harvey v Plymouth City Council has provided a case law example to indicate the limits of an occupier’s liability.