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Jonathan Harvey v Plymouth City Council

This case is a welcome decision in favour of commonsense and shows that Judges are less likely to decide that a defendant Council is liable for any accident which occurs on its land.

The claimant was drunk. He had been out for the evening with friends and immediately before the accident had been running away from a taxi, in order to avoid paying the fare. He had left a friend in the taxi, to pay.

He ran over a grassed area and onto a piece of land owned by the Council. He then ran through a gap in some bushes and over a small chain link fence, which had broken. He then fell down a 5 meter drop, landing on concrete.

Not surprisingly after such a fall, Mr Harvey suffered considerable injuries, the most serious being brain damage. If successful, the claim would have been large, comprising compensation for the physical injuries and brain damage, and there is likely to have been a considerable claim for loss of wages. Mr Harvey sued the Council, alleging a breach of their legal duty under the Occupiers Liability Act 1957, which obliges them to make their property safe for visitors.

There is a later Occupiers Liability Act, the 1984 Act, which was also discussed, but this Act mainly applies to accidents involving trespassers. The claim under that Act was eventually abandoned because it was agreed that the claimant was not a trespasser – he had not broken onto, or into, the property, but had simply run onto the grassed area and through the gap in the bushes.

The Court agreed that the claimant was a lawful visitor for the purposes of the Occupiers Liability Act 1957 and therefore had to decide whether the Council had complied with its legal duty to ensure that the premises were safe.

Whilst it was argued that they should have repaired the gap in the bushes, more argument was made on the failure to repair and maintain the small chain link fence which had fallen into disrepair and was at a low level at the point at which the claimant tripped over it.

The claimant, was successful in the first trial, but the Council appealed to the Court of Appeal, who rejected the claim for compensation.

The Court of Appeal Judges decided that although the council had permitted people to use the grassed area and, possibly, go through the gap in the bushes, and therefore they had a legal duty to ensure that the land was safe for that purpose, they had not consented to someone running across the grass, at night, when drunk, such that they were not able to see the broken chain link fence and/or the large drop between the grassed area and the concrete below. In other words, the Judges held that the Council had impliedly allowed people to come onto the land in order to carry out normal activities but not to act in a reckless manner.

This does, of course, leave the claimant, who has no doubt suffered extremely serious injuries and a dramatic change to his life, without compensation. In view of the serious nature of the injuries the case may be appealed to the House of Lords.

In the meantime, however, the case demonstrates that the Courts are less willing to decide that defendants should automatically pay out whenever an accident occurs on their land.

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