Last month the Court of Appeal provided clarifi cation of the scope of occupiers’ duties under the Occupiers’ Liability Act 1957 (the 1957 Act) in the case of Harvey v Plymouth City Council. The 1957 Act puts on a statutory footing an occupier’s duty to take reasonable care that visitors to their premises will be reasonably safe in using the premises for the purposes for which they have been invited.

The facts

Mr Harvey was seriously injured in April 2003 when he fell around fi ve and a half metres from wasteland occupied by the Council onto the car park below. The boundary of the properties was marked by a chain link fence, after which the land fell away sharply into the neighbouring car park. The fence had not been maintained by the Council and in the area concerned had been pushed down to a height of around 14 inches.

In the early hours of the morning, following a night of heavy drinking, Mr Harvey and his friends ran from a taxi that had stopped at a roundabout near the land. He ran onto the land and into some bushes before tripping on the chain link fence at the perimeter above the car park.

The extent of an occupier’s liability

The High Court found that the Council owed Mr Harvey a duty of care under the 1957 Act and had breached that duty by failing to properly inspect and maintain the fence, and awarded Mr Harvey damages. However these damages were reduced by 75% to recognise Mr Harvey’s contributory negligence. The Court of Appeal, whilst expressing sympathy for Mr Harvey’s unfortunate accident, allowed the Council’s appeal, fi nding that the Council had no liability to Mr Harvey in relation to his injuries.

Both courts accepted that those using the land for general recreational activities did so under an implied licence from the Council, and were therefore owed a common duty of care as visitors under the 1957 Act. However, the Court of Appeal concluded that this implied licence did not extend to the particular activities undertaken by Mr Harvey – namely, running onto the land at night, drunk. Mr Harvey was therefore not a visitor and was owed only the lesser duty of care appropriate to trespassers, which the Council had not breached.

This decision reaffi rms the important principle that where someone enters onto land with permission, either express or implied, and therefore enjoys protection under the 1957 Act, this protection does not extend to all activity they might undertake. Although this is to be welcomed by Councils and other occupiers of open land, it should not detract from the importance of managing the risk of liabilities arising from accidents on occupied land by carefully monitoring landholdings and their use and controlling any potential hazards.

The case also serves as a reminder that the identity of the occupier of land is not always clear. Although it was eventually agreed in this case that the Council were the occupier for the purposes of the 1957 Act, there had initially been some confusion as Tesco, the owner of the next door car park, had originally occupied the land under licence from the Council, laying the grass and erecting the chain link fence. Although this licence expired as long ago as 1987, Tesco continued to cut the grass until after the accident. The Council might therefore have thought that Tesco remained in occupation.