Harvey v Plymouth City Council (Rev 1)

An implied licence to use land for general recreation extends only to activities to which the occupier has impliedly assented. The test is assent, not mere foreseeability of the activity. A public authority permitting ordinary recreational use consents to normal recreational activities and their normal risks; it does not thereby accept a duty under the Occupiers’ Liability Act 1957 for any activity that is reckless. The common-law limits on visitor status are preserved by section 1(2), and the common duty of care does not extend beyond the purposes for which the entrant is invited or permitted to use the land.

The claimant suffered serious injury after running at night through bushes on Council-owned land, tripping over a lowered chain-link fence and falling about 5.5 metres into an adjoining supermarket car park. He had been drinking with friends and was running from a taxi after they left without paying the fare.

The trial judge found that the land had long been used informally for recreation. He held that the claimant was an implied licensee and therefore a visitor under the Occupiers’ Liability Act 1957, that the Council had breached its common duty of care, and that the claimant was 75% contributorily negligent.

The Council appealed against liability. The central issue was whether a general implied licence for recreational use extended to the claimant’s particular activity.

Disposition

1. The Court of Appeal unanimously allowed the Council’s appeal and set aside the order imposing liability under the Occupiers’ Liability Act 1957.
2. Section 1(2) preserves the common-law rules which determine who is an occupier or visitor. A person may enter land with permission yet act outside the scope of that permission. The common duty under section 2 does not extend beyond the activities for which the entrant was expressly or impliedly invited or permitted to use the premises.
3. Hillen v ICI (Alkali) Limited [1936] AC 65 and the staircase-and-banister illustration in The Calgarth [1927] P 93 showed that permission for one purpose does not authorise a materially different use. Tomlinson v Congleton Borough Council [2004] 1 AC 46 confirmed that principle for entrants who exceed the scope of their permission.
4. The trial judge had treated the foreseeability of youthful late-night horseplay as sufficient. That was the wrong inquiry. The question was whether the Council had impliedly assented to the activity. A licence for general recreation covered normal recreational activities and normal risks, but could not be extended to activity that was reckless.
5. On the findings, the claimant’s running through dark bushes while affected by alcohol was outside the scope of the implied licence. He was therefore not a visitor for the purposes of the 1957 Act when injured. It was unnecessary to determine breach or causation.
6. The court nevertheless agreed that, had the claimant been a visitor, section 2(5) would not assist the Council without proof that he knew of the lowered fence and the drop beyond it.

• Court of Appeal (Civil Division) — allowed the Council’s appeal and set aside the liability order: [2010] EWCA Civ 860.
• Queen’s Bench Division — John Leighton Williams QC, sitting as a deputy High Court judge, found the Council liable under the Occupiers’ Liability Act 1957 and assessed the claimant’s contributory negligence at 75%.