Air of normality

The judgment delivered by the Court of Appeal in the case of Jonathan Harvey v Plymouth City Council on 29 July 2010 is an important decision for landowners and especially local government when it comes to occupiers' liability, writes Paul McClorey.

The facts

On 17 April 2003 Jonathan Harvey, a student, spent the evening drinking with three friends following a rugby match. At the end of the evening the four friends shared a taxi home. On the way Harvey and two of his friends got out of the taxi and ran off. They later claimed they had intended to leave the fourth to pay the fare as he had contributed less than his share that evening.

All three ran in different directions. Harvey ran across an open grassed area adjoining the road towards a line of shrubs and trees. He ran through a gap in the bushes and fell down a five metre drop onto a Tesco superstore car park below sustaining serious injury.

The grassed area was owned by Plymouth City Council (the Council). In 1985 it had granted Tesco a two year licence of the land as part are larger transaction connected to the development of the superstore. Tesco had constructed a retaining wall between its car park and the land and erected a chain link fence at the top of the precipice. It laid grass on the land and assumed responsibility for mowing it. Although the licence lapsed over time Tesco continued to maintain the grass and by April 2003 the Council’s Parks Department was unaware that the Council in fact owned the land.

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, or alternatively, if he was a trespasser under the Occupiers’ Liability Act 1984.The Council admitted it was the occupier of the land but denied that Harvey was a visitor or 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. It seems unlikely on the facts that such a claim would have succeeded in any event.

The claimant produced evidence that the land had over the years been used by local people to exercise their dogs, play football and exercise generally. A private detective employed by Harvey’s solicitors found physical evidence of the less wholesome activities often engaged in by youths in such areas under cover of darkness.

Over time the chain link fence had become trampled down and opposite the gap in the bushes it was as low as 35cm high and a foreseeable tripping hazard to the unwary. All of this was, of course, unknown to the Council.

At first instance in the High Court, the trial judge concentrated on the question of the Council’s knowledge (or lack of) of the activities taking place on its land. He concluded that it was implicit that the Council, as occupier, should be deemed to know of the activities for which its land was, or might reasonably foreseeably be, used. Actual knowledge was not required.

Having reached the, perhaps rather surprising, conclusion that Harvey’s conduct was borne out of “youthful high spirits and not with any dishonest intent”, the judge concluded that it was “in the same category“ as that of many other youths who had used the land (evidence of which was readily apparent). Such conduct was reasonably foreseeable and ought to have been foreseen by the Council.

On that basis the judge incorrectly concluded that Harvey was a visitor and the 1957 Act applied. Inevitably, he went on to find that the Council was in breach of its duty of care, in failing to maintain the fence, although he assessed Harvey’s contribution to the accident at 75%.

The Court of Appeal overturned that decision. The Court pointed out that even if Harvey’s actions might have been foreseen, foreseeability was not the relevant test. The proper question for the court, in determining whether Harvey was a visitor for the purposes of the 1957 Act, was whether his activity or similar activities could properly be said to have been impliedly consented to (or licensed) by the Council.

The court felt there was no evidence to support such a conclusion. When a Council permits the public to use its land for recreational purposes it consents to what the court described as “normal recreational activities, carrying normal risks”. Such implied permission could not be stretched to cover any form of activity however reckless.

Harvey’s behaviour went 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 under the 1957 Act.

Whilst the Court of Appeal did not define what it considered to be normal recreational activities the judgment implies a level of risk that would be considered normal by most people.  It is noteworthy that the Court clearly had reservations over the trial Judge’s equating of Harvey’s actions with the more common, although arguably no more desirable, night-time activities of youths on the land.

Implications for local authorities

This decision is especially relevant to local authorities which are owners of many unfenced open spaces to which the public have uncontrolled access. Applying the trial judge’s reasoning, occupiers would have owed a duty, and would potentially have been liable, to those injured in any activity that could reasonably be foreseen.

Whilst some interested parties have focussed on the trial judge’s rejection of the Council’s argument that, by virtue of its lack of knowledge of ownership, it owed no duty to anyone, this was never really the key issue. The Court of Appeal described that argument as unrealistic.

The decision confirms that only those engaged in the sort of activity that an occupier can be said to have, expressly or impliedly, consented to will benefit from the enhanced protection afforded by the Occupiers’ Liability Act 1957.

Open spaces in public ownership are subjected to a variety of uses by members of the public. Whilst some of those (dog walking, football etc) are relatively day-to-day activities, others, particularly involving youths, may be considered to be more risky. The construction and use of unofficial BMX and ‘dirt jumping’ courses is a common example.

Ultimately the question whether an activity is “normal” or not will fall to be determined in each case on its facts but the Court of Appeal’s judgment in Harvey, has provided a welcome indication of the limits of an occupier’s liability.

Paul McClorey is a partner in the public sector group at Berrymans Lace Mawer LLP and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..