The Court of Appeal has ruled that Plymouth City Council was not liable for injuries sustained by a young man who fell five metres into a car park after darting through a gap in some bushes late at night.

Jonathan Harvey was a student at the time of the accident. He had been out drinking with friends and had consumed up to eight pints of beer prior to being dropped off by a taxi outside a Tesco store in Plymouth. He and a friend ran away from the taxi in order to make another member of the group pay the fare because they thought he had paid less than his fair share earlier in the evening.

Mr Harvey ran towards the bushes. In the dark, he did not see the five-metre drop behind a badly maintained fence and he fell down onto the car park beneath. He very nearly died in the accident and now has difficulty walking and talking.

The land from which Mr Harvey fell was owned by Plymouth City Council and he sued the Council for failing to maintain the fence properly, alleging that this constituted a breach of its duty under the Occupiers’ Liability Act 1957.

In the lower court, the judge ruled that Mr Harvey bore a significant proportion of the blame for the accident. In his view, had Mr Harvey been sober he would have made his way more carefully through the unlit area. By running into it, he significantly added to the probability that he would injure himself in some way.

The court found Mr Harvey 75 per cent responsible for the accident. Plymouth Council appealed against the finding that it was 25 per cent liable.

The Court of Appeal ruled that Mr Harvey was not a visitor to the land for the purposes of the Act and so no compensation was due. At issue was whether the Council was deemed to have given implicit permission for his activities.

The decision will be greeted with relief by the owners of land that is open to the public, as persons injured whilst using it will need to show an implied licence for their activities in order to be eligible for compensation.

It is thought that this will be an insuperable obstacle for many claimants.