Over Taylor Biggs

The Council's land had been used for informal recreation.  A chain link fence had been installed, set back approximately 1-2m from the edge.  A prior Licence given to Tesco to use the land had expired but Tesco had continued to cut the grass until the date of the accident.  The Council only became aware of its ownership after the accident. 

Mr Harvey had been drinking with his friends.  An argument had developed whilst they were returning home in a taxi.  Mr Harvey got out of the taxi and began running towards the Tesco boundary.  The chain link fence had been pushed down to about one foot above ground level.  Mr Harvey tripped on it, fell over the edge and landed on the car park below. 

The High Court had found that Mr Harvey was a visitor and not a trespasser.  The Council was liable for not repairing the fence or restoring it to its height so it became a hazard, rather than a barrier.  Because of his drunken state, he was only awarded 25% of his damages.  The Council nonetheless appealed.

In law, the question for the Court of Appeal was whether Mr Harvey had an implied licence to use the land and whether earlier use for general recreational activity extended to what he had done that led to the accident.

Drawing a parallel with a much earlier case in which it was said "when you invite a person into your house to use the staircase you do not invite him to slide down the banisters", the Court found that those who come on to land without invitation or permission should not normally be able to force duties on unwilling hosts. 

The proper analysis was not whether Mr Harvey's activities might have been foreseen but whether the Council had impliedly consented to them.  There was no evidence to support that conclusion.  If a Council allows the public to use land for recreational purposes, this must be normal recreational purposes, carrying normal risks.  It cannot extend to reckless activities.

Whilst the decision was no doubt to the Council's relief, it does not introduce a lower standard of care.  All you can expect is for anyone who visits your land to behave sensibly and presumably be sober.

The decision still leaves issues open to debate.  For example, how drunk does someone have to be before they are no longer licenced to use land and protected under the provisions for occupiers liability?  The 1957 Occupiers' Liability Act requires owners to take account of the degree of care and want of care, particularly for children.  There is also a potential conflict with disability discrimination legislation.  What, for example, might have happened had youths been playing football and someone tripped over the fence? 

From a practical perspective, it is difficult for Councils, in particular, to keep abreast of potential maintenance risks.  These can only be overcome by a regular system of inspections.  These will need to continue.

Harvey v. Plymouth City Council

2010 Court of Appeal