Occupier not liable for serious injuries following fall over a tripping hazard at night; there was no implied consent to the Claimant’s activities at the time.

In the early hours of 18 April 2003, Jonathan Harvey, who was then aged 21, suffered serious injuries when he fell down a sheer drop from a large area of land owned by Plymouth City Council onto an adjacent car parking area attached to a Tesco superstore. The land had been subject to a two year licence to Tesco in 1985, who at that time had built retaining walls and installed a chain link fence and laid grass, which it continued to cut until 2005. After an evening out drinking, Mr Harvey had run off from a taxi across the land and tripped over the chain link fence, at a point where it had been pushed down so it was only about 14 inches from the ground. At first instance the Council was found to be liable, on the basis that it should have securely fenced the edge and had allowed the fence to be in such a condition that it created a tripping hazard. This was subject to a 75% reduction for contributory negligence. The Council appealed.

Held: The Occupiers’ Liability Act 1957 establishes the common duty of care owed by an occupier of land. The principal issue in this case is whether the Council had granted an implied licence to Mr Harvey which extended to the particular activities which led to the accident in this case. It was clear from the evidence that various types of night-time activity had been seen on the land, but most of those carried no obvious risk of accident. There was no evidence to support a finding that the Council had impliedly consented to Mr Harvey’s activity. On this basis the appeal succeeded and so Mr Harvey’s claim failed.

Comment: The decision will be welcomed by insurers and occupiers of areas used for recreational purposes, since the Court of Appeal has sent a clear message to claimants that it will not extend the duties that go with them. Lord Justice Carnwath commented that “When a council licences the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks”.

It is an interesting feature of this case that, whilst the Council’s legal department must have been aware that the Council owned the land, its parks department was seemingly unaware of this until after the accident. It is obviously important that, as far as possible, clear records are maintained so that appropriate maintenance can be carried out.