Harvey v Plymouth CC [2010] EWCA Civ 860

Key points

  • The test for whether an entrant is a visitor is consent from occupier, not foreseeability
  • Consent may be given impliedly by an occupier to a visitor

Facts

  • C fell down a sheer drop from land owned by the Council (D) and was seriously injured
  • C was running from a taxi without paying when he tripped over a chain link fence that was lowered
  • The judge had held that C was a visitor on the basis that such mischief on D’s grounds was foreseeable and thus D was liable under Occupiers’ Liability Act (OLA) 1957

Held (Court of Appeal)

  • D was not liable under OLA 1957 since C was a trespasser

Carnwarth LJ

  • In determining whether C was a licensee, the question was not whether his activities were or might have been foreseeable by D, but whether they had been impliedly consented to by D
  • Furthermore, the views of a licensee as to whether he had strayed beyond the limits of his licence are not ‘a useful guide’ as to what the limits of the licence are
  • D had not impliedly consented – a council licenses the public to use its land for recreational purposes carrying normal risks, not reckless activities
  • The common duty of care under the OLA 1957 does not extend beyond the scope of activities for which licence has been expressly or impliedly given