Occupiers liability – Duty of care – Occupiers’ Liability Act 1957 – Appellant claiming damages for injuries following fall in car park owned by respondent local authority – Judge concluding respondents had discharged common law duty to take reasonable care that appellant reasonably safe in using car park – Appellant appealing – Whether respondents discharging burden imposed by section 2 of 1957 Act – Whether judge erring on issue of causation – Appeal dismissed
The appellant slipped and fell on ice in a car park owned and operated by the respondent local authority. The car park was one of 46 car parks operated by the respondents. Situated in a suburb of Swansea, it was a small 24-hour pay and display car park (with spaces for 40 cars) which was open to the elements and was unmanned. In bad weather, the car park was not gritted, except when it received a report form a member of the public about a dangerous area. Cashiers employed by the respondents attended the car park to collect money from the ticket machine and wardens ensured that drivers had paid and displayed. The respondents had received warnings that the temperature would drop below freezing between midnight on the night of 7 December and 9.00 am on 8 December. It had accordingly sent out gritting lorries in the early hours of 8 December to grit highways, but not footpaths or car parks. Gritting could not begin until midnight because of rain, which would have washed away any earlier grit.
The appellant was 78 years old at the time of the accident. 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. There was a slight downward incline towards the ticket machine, with an estimated gradient of one in ten/one in twelve. The appellant sought to recover damages of around £10,000 for his injuries in negligence and for breach of the 1957 Act.
The two key questions were: whether a reactive system was sufficient to discharge the burden imposed by section 2 of the 1957 Act to take such care as in all the circumstances was reasonable to see that the visitor would be reasonably safe in using the premises and whether the judge was wrong on the issue of causation. The judge concluded that, by adopting a reactive system the defendants had discharged the common law duty under section 2 of the 1957 Act. In relation to the issue of causation, the judge distinguished the case of Ward v Tesco Stores Ltd [1976] 1 WLR 810 which had been relied on by the appellant as placing an evidential burden on the defendants to show that the accident would have happened in any event.
The appellant appealed contending that (i) having found as a fact that the defendant did not put in place a system whereby cashiers and wardens would report ice, and having found that prima facie there could be no difficulty with such a system, the judge erred in failing to make a clear and explicit finding of breach of duty under section 2(2) of the 1957 Act; (ii) the judge was wrong in law in his approach to the issue of causation in finding there was no burden on the defendants to establish that the accident would have occurred in any event.
Held: The appeal was dismissed.
(1) The appellant had not challenged the judge’s finding that there was no breach of duty by reference to the findings which the judge made as to the reporting system which “could” have been in place. Those findings as to what “could” have been done on a “prima facie” basis could not properly found, still less require, a finding of breach of duty. In any event, there was much force in the defendants’ detailed arguments at trial as to why it would not be reasonable in all the circumstances to impose a duty of care that would in effect require the them to grit their unmanned car parks whenever icy conditions were reported. The balancing exercise which needed to be carried out when considering what amounted to “such care as in all the circumstances of the case was reasonable” under section 2(2) of the 1957 Act involved an assessment of the likelihood that someone might be injured, the seriousness of the injury which might occur, the social value of the activity which gave rise to the risk and the cost of preventative measures. There was generally no duty to protect against obvious dangers. In the present case the defendants identified the matters which were particularly relevant to the assessment required to be carried out and had given compelling reasons for upholding the judge’s decision that there was no breach of duty, an assessment that he was in any event best placed to make as the trial judge: Tomlinson v Congleton Borough Council [2003] UKHL 47, [2003] PLSCS 203, [2004] 1 AC 46 applied.
(2) In the light of the court’s conclusion on breach of duty, it was not necessary to determine the appellant’s challenge to the judge’s conclusion on causation. However, this was not a case in which there was an evidential burden on the defendants to establish that the accident would have occurred in any event. This was not a case where proof of the circumstances led to the conclusion that something had gone wrong. It could not seriously be said that something must have gone wrong to explain the presence of ice on the ground in December: Ward v Tesco Stores Ltd [1976] 1 WLR 810 distinguished.
Judith Burns (instructed by BGR Bloomer, of Chester) appeared for the appellant; Timothy Petts (instructed by the City & County of Swansea) appeared for the respondents.
Eileen O’Grady, barrister
