Student who fell off ledge after running from taxi cannot sue council

A student who fell off a ledge and seriously injured himself after running away from a taxi cannot sue the council for failing to properly maintain a fence, the Court of Appeal has ruled.

Lord Justice Carnwath said that an implied licence to local people to use an overgrown scrap of land for general recreational activity could not be 'stretched to cover any form of activity, however reckless'.

Delivering the leading judgment in Harvey v Plymouth City Council [2010] EWCA Civ 860, Carnwath LJ rejected the High Court's conclusion that Harvey was a 'visitor' for the purposes of the Occupiers' Liability Act 1957.

The court heard that Harvey, aged 21 at the time, was with a friend in the early hours of the morning, running away from a taxi after a night out to avoid paying the fare.

He was running through the bushes on council-owned land when he tripped over a fence, which had been pushed down to 14 inches off the ground. He fell about five and a half metres onto the Tesco car park below, injured himself seriously and damaged his brain.

'On the facts of this case, it seems hard to avoid the view that the council owed some duty to protect its licensees against the risk of a five metre fall; that the existence of 'a tripping hazard for the unwary', rather than a properly maintained fence above the Tesco's retaining wall, was a breach of that duty and that the breach was at least partly causative of the accident.'

However, Carnwath LJ referred to the remarks of Lord Justice Scrutton in The Calgarth [1927]: ''¦when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters'.

Lord Justice Carnwath concluded: 'It was clear from the evidence that various types of night-time activity had been seen on the land. But most of these carried no obvious risk of accident.

'The judge seems to have been thinking of some form of vigorous late-night horse-play in the bushes, in which not all the participants would be sober.

'Yet, even if that might have been foreseen, foreseeability was not the relevant test. In deciding whether the claimant was a licensee, the question was, not whether his activity or similar activities might have been foreseen, but whether they had been impliedly assented to by the council.

'In my view there was no evidence to support such a finding. When a council licenses the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks.

'An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless.'

Carnwath LJ allowed the council's appeal. Lord Justices Hughes and Longmore agreed.

Paul McClorey, partner at Berrymans Lace Mawer, said the ruling was particularly relevant to those councils which owned large numbers of unfenced open spaces where there was uncontrolled public access.

'While the question of whether an activity is 'normal' or not will have to be determined in each case on the facts, the Court of Appeal's decision seems to anticipate a level of risk that would be considered normal by most people,' he said.

However, he added that Plymouth Council should have checked and repaired the fence, which protected a sheer drop and was a tripping hazard.