06 February, 2018
Cook v Swansea City Council (2017) EWCA Civ 2142
The Court of Appeal has dismissed an appeal from an Appellant Claimant after his claim for damages in negligence and/or breach of duty under s2(2) of the Occupiers' Liability Act 1957 was dismissed.
The claim arose from an accident in December 2012 when the Claimant slipped and fell on ice in a car park owned and operated by the Defendant.
The car park was a small unmanned 24 hour pay and display car park. In bad weather the local authority would grit manned car parks only. The judge found that the Defendant operated a reactive system of gritting in its unmanned car parks, whereby it did not pre-emptively grit them but would do so if it received a report from a member of the public about a dangerous area.
The Claimant was 78 years old at the time of the accident. The judge accepted that the accident occurred as pleaded. Shortly after 10:30 he had parked his car and was walking towards the ticket machine when he slipped on black ice near the ticket machine. The Claimant sought to recover damages of around £10,000 for his injuries in negligence and for breach of the 1957 Act.
At first instance, the Judge found that the system was appropriate in the context of the case. He rejected the Claimant's argument that the accident would have been prevented if there had been a system in place whereby local authority employees who visited the unmanned car park during the day to collect money from the ticket machines and to check tickets reported icy conditions. Also in relation to causation the judge found that there was no evidential burden on the local authority to show that the accident would have happened in any event.
The Court of Appeal dismissed the appeal concluding that there was no breach of the Occupiers Liability Act. Section 2(2) required the local authority to take reasonable care to ensure that visitors would be reasonably safe when using the car park. It was reasonably plain from the judgment that the judge had found that the Defendant had not breached that duty.
Furthermore, the Court of Appeal was persuaded by the local authority's arguments as to why it would be unreasonable to impose a duty of care that would require it to grit its unmanned car parks whenever icy conditions were reported. A balancing exercise was to be carried out which involved an assessment of the likelihood that someone might be injured, the seriousness of any injury that might occur, the social value of the activity giving rise to the risk and the cost of preventative measures.
This common sense Court of Appeal judgment will be met with relief by occupiers of car parks and similar properties. This was a small unmanned car park exposed to the elements and ice was to be expected. As the judge observed, this is not a case 'where proof of the circumstances leads to the conclusion that something has gone wrong…it cannot seriously be said that something must have gone wrong to explain the presence of ice on the ground in December'." A word of caution though, the courts will look at the facts of each case and reactive gritting will not always be suitable.
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