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Court of Appeal case highlights a potential restriction to ‘visitors’ under the OLA 1957

Jonathan Harvey v Plymouth City Council (2010). On 17th April 2003, the Claimant, H, had spent the evening drinking with friends, and shared a taxi home.

As the taxi approached their destination H and two friends left the taxi and ran away to avoid the fare; H ran across an open area of grassland owned by the Defendant (P) and fell down a sheer drop into an adjacent car park, sustaining very serious injuries, including brain damage. H made a claim against the local authority under OLA 1957 on the basis that it had been reasonably foreseeable that young people might congregate on that area of land, in some cases under the influence of alcohol, and that H had therefore been an implied licensee who was owed a duty of care under OLA. The Court at first instance found that P ‘could and should’ have foreseen that H could have entered the land, and that it should have taken steps to ensure that when on the land H was protected from the risk of injury by operating a system of checks and maintenance to ensure visitors were not at risk of falling over the edge. On appeal, the ruling was reversed. 

The ratio of that decision was that even if H's conduct might have been foreseen by the local authority, foreseeability was not the correct test. In considering whether H was a licensee under the Act, the question was whether his presence had been impliedly consented to by the local authority, not whether the activity might have been foreseen. There was no evidence to support a finding of implied consent to that behaviour; when a local authority licensed the public to use its land for recreational purposes, it was consenting to normal recreational activities (which carried normal risks). Its duty to an implied licensee could not be extended to cover any form of activity, however reckless that activity may be.

/ 1st Nov 2010


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