Occupier’s liability – Duty of care – Car park – Appellant claiming damages for personal injury following fall in car park – Appellant alleging respondent breached duty of care under Occupiers Liability Act 1957 – County court dismissing claim – Appellant appealing – Whether respondent’s duty limited to dealing with immediate hazards – Whether degree of risk sufficient to trigger respondent’s statutory duty of care – Whether judge erring in concluding appellant’s accident was “true accident” – Appeal dismissed
The appellant was 83 years old. He was injured when he fell over a kerb in a car park adjacent to the respondent’s store in Ruislip, Middlesex. In falling, the appellant hit his head, suffering a fractured wrist, maxillofacial injuries, a traumatic brain injury; a subdural haemorrhage and long-term consequences. The respondent denied liability, putting the appellant to proof that the kerb had caused the fall; denying that it was an occupier of the car park and also that the kerb posed a danger.
The car park was owned by the local authority, which collected the revenue from the pay and display system, emptied the bins in the car park and undertook repairs from time to time. The respondent had no licence relating to, or other legal interest in, the car park but its customers used the car park. The respondent refunded its customers for up to two hours’ parking. Its branding was displayed in the car park and it paid the local authority to advertise on the back of parking tickets. No claim was brought against the local authority.
The appellant argued that the respondent was in breach of its duty of care under the Occupiers Liability Act 1957, causing him to trip on the kerb next to a disabled parking bay in which his wife had parked their car. The county court dismissed the claim and ordered the appellant to pay costs to the respondent.
The appellant appealed, contending that the judge had erred in limiting the respondent’s duty under section 2(2) of the 1957 Act; and erred in its conclusion that the appellant’s accident had been a “true accident”.
Held: The appeal was dismissed.
(1) The cornerstone of liability was not knowledge of a risk but control. The appellant had to establish that the respondent had control over that part of the premises about which he complained. Here, the complaint related to a disabled bay being positioned adjacent to a non-defective kerb. The case related to the design and location of that kerb and/or its proximity to a disabled bay (layout and design).
The design and construction of the parking bay were not matters over which the respondent had any control. However, as a matter of principle, if a person’s control of premises extended to an ability to warn of and/or otherwise ameliorate relevant risks, that could constitute “control so far as material” in circumstances such as the present. The flaw in the respondent’s analysis lay in its premise that the only form of control material for current purposes was the power to design and/or to remove or otherwise alter the parking bay, or to compel the local authority to do so. Similarly, the respondent placed greater weight on the words in section 1(1) of the 1957 Act – “the state of the premises” – than it could properly bear.
A person who had the ability, but declined, to put up signage could thereby affect the state of the premises, or omit to do something on them, in either case giving rise to a danger. Once that was acknowledged, there could be no principled objection to the judge’s finding that, by reason of its limited control, the respondent was an occupier of the car park, for limited purposes.
Standing back, it was clear that the judge was right to find that the extent of the respondent’s control of the car park encompassed dealing with immediate hazards; putting in place interim measures to deal with hazards; and reporting issues to the local authority.
(2) In the 1957 Act, the word “occupier” was used in the same sense as it was used in the common law cases on occupiers’ liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises. The factors on which the appellant relied did not operate to shift the line indicating where it was that one occupier’s control ended and the other’s began. In the absence of a contract between the two, the court could look at all of the circumstances: Wheat v Lacon & Co Ltd [1966] AC 552, Tomlinson v Congleton Borough Council [2003] UKHL 47; [2003] PLSCS 203; [2004] 1 AC 46 and Edwards v London Borough of Sutton [2016] EWCA Civ 1005; [2016] PLSCS 266 considered.
The judge had rightly concluded that the respondent had been an occupier but had erred in her framing of the nature and extent of the common duty of care which the respondent had owed to visitors to the car park
(3) The judge unreasonably found as a fact that the parking bay posed a danger to its intended users which was other than obvious. Accordingly, the respondent’s common duty of care did not require that it take any steps to see that a visitor to the bay would be reasonably safe in using it for the purposes for which he was invited or permitted by the occupier to be there. In particular, there was no duty to warn visitors or to report the danger identified by the judge in this case to the local authority: Staples v West Dorset District Council [1995] PIQR 439 and Bolitho v City and Hackney Health Authority [1998] AC 232 considered.
(4) From the evidence, it was clear that, irrespective of whether the relevant bay posed the danger identified by the judge, and of whether the respondent had been under an obligation to warn of/report that danger and any earlier accidents to the local authority, neither the danger as identified by the judge nor the breach of any duty by the respondent caused the appellant’s accident. He had been fully aware of the kerb, had walked around it into an adjacent empty bay and had simply misjudged his step, as he might have done on any street kerb, in any location. This was simply a true accident, and nothing that the respondent did or failed to do caused it.
Catherine Foster (instructed by Slater & Gordon) appeared for the appellant; Lisa Dobie (instructed by Clyde & Co) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Juj v John Lewis Partnership plc
