Duty of care has its limit

ANY landowner is required by law to ensure that his visitors are safe.

But how far does that duty extend to uninvited or unwelcome visitors?

The recent decision of the Court of Appeal in the case of Harvey v Plymouth City Council has added some clarification to occupiers’ liability.

In particular, the case should alleviate the concerns of landowners and their insurers, many of whom have feared that they could be liable if visitors to their property chose to participate in risky activities.

This case involved a 21-year-old man (Mr Harvey) who had been drinking fairly heavily on an evening out with friends. In order to evade paying a taxi fare, he ran across an area of unfenced and predominantly grass land owned by the council in the early hours of the morning.

It was dark and Mr Harvey was said to be in “youthful high spirits” when he tripped over a low fence on the edge of the council’s land. He subsequently fell down a five metre drop into a supermarket car park which lay below, sustaining serious injuries including brain injury.

Following the accident, Mr Harvey started proceedings against the council alleging that it had breached its duty under the Occupiers’ Liability Act 1957 by not properly fencing the land. This Act establishes the “common duty of care” which is owed by an occupier of land to its visitors.

Most Read

The Court of Appeal accepted that regular users of the land in question had an implied licence (i.e. permission) to use it for general recreational purposes. The court found in this case that it was necessary to consider whether this implied licence for use extended to the specific activities which led to Mr Harvey’s accident.

The court determined that the correct question when deciding whether the council owed a duty to Mr Harvey under the 1957 Act was not whether his actions were foreseeable but whether the council had impliedly consented to them.

The court held that when the council licenses the public to use its land for recreational purposes it consents only to what would be regarded as “normal recreational activities, carrying normal risks”. Mr Harvey’s activities did not constitute normal recreational activities and his claim for compensation therefore failed.

This case makes it clear that the duty of an occupier of land under the 1957 Act does not extend beyond the scope of the activities for which the licence has been expressly or impliedly given.

The occupier therefore has no duty to make the land safe for what may be perceived as unauthorised activities. This is a welcome decision for local authorities and other bodies that own similar open spaces throughout the country.