Occupiers’ 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 – High Court dismissing appeal – Appellant appealing – Whether respondent’s duty limited to dealing with immediate hazards – Whether risk sufficient to trigger respondent’s duty of care – Whether judge erring in law – Appeal dismissed
The appellant claimed damages against the respondent for personal injury arising from a fall in a car park adjacent to the Waitrose store in Ruislip, west London, in May 2015. The appellant fell and hit his head and suffered serious injuries with long-term consequences. The appellant argued that the respondent breached its duty of care under the Occupiers’ Liability Act 1957 when he tripped on a kerb next to a disabled parking bay.
The car park was owned by the local authority, which received the revenue from the pay-and-display ticket system. The respondent had no licence nor any other legal interest over the car park, although its customers used it and the respondent’s branding was displayed in and around the perimeter of the car park.
The county court found that the respondent was an occupier of the car park in conjunction with the local authority, but its duty was limited to dealing with “immediate hazards” and reporting concerns and/or accidents/incidents to the local authority. The judge concluded that this was simply a true accident and nothing that the respondent did or failed to do caused it.
The High Court upheld the judge’s findings and overall conclusion. However, it held that the respondent’s control over the car park extended to putting up warning signage where necessary and reiterating with reasonable frequency any concerns which the local authority had not attended to within a reasonable period: [2022] EWHC 2418 (KB); [2022] PLSCS 161. The appellant appealed.
Held: The appeal was dismissed.
(1) Section 2 of the 1957 Act provided that an occupier of premises owed a “common duty of care” to all visitors. That was a duty to take such care as in all the circumstances of the case was reasonable to see that the visitor would be reasonably safe in using the premises for the purposes for which he was invited or permitted by the occupier to be there. The circumstances relevant for the present purpose included the degree of care, and of want of care, which would ordinarily be looked for in such a visitor.
Wherever a person had a sufficient degree of control over premises that he ought to realise that any failure on his part to use care might result in injury to a person coming lawfully there, then he was an occupier and the person coming lawfully there was his visitor. To be an occupier, it was not necessary for a person to have entire control over the premises. He need not have exclusive occupation so long as he had some degree of control. Two or more might be occupiers and each was under a duty to use care towards persons coming lawfully on to the premises, dependent on their degree of control. If each failed in their duty, each was liable to a visitor who was injured in consequence of that failure, but each might have a claim to contribution from the other. Therefore, the extent of the control which was exercised within the sphere of joint occupation might be a pointer to the nature and extent of the duty which reasonably devolved upon a particular occupier: Wheat v E Lacon & Co Ltd [1966] AC 552 considered.
(2) In the present case, the trial judge’s conclusion as to the limits of the respondent’s control, and hence its duty of care, was not only reasonable but realistically reflected the evidence before the court. An appellate court would not interfere with findings of fact by a trial judge unless compelled to do so. That applied not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. An appellate court should not interfere with the trial judge’s conclusions on primary facts unless it was satisfied that the judge was plainly wrong: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 and Staechelin and others v ACLBDD Holdings Ltd [2019] EWCA Civ 817; [2019] 3 All ER 429 considered.
As the kerb was clearly visible to anyone driving into the parking bay or walking towards it, there was no general requirement to warn of obvious dangers. There was no requirement on the respondent to place a warning of the kerbs in the bay. Further, a notice stating that the bay was not suitable for disabled customers would have gone beyond what the respondent could reasonably be expected to do. On the evidence, the respondent did not have sufficient control of the car park to enable it to close the bay.
The evidence showed that the local authority ignored the appellant’s requests to paint the kerb and concluded it was unlikely that an earlier request would have produced a different result. The findings of fact were reasonably open to the trial judge and did not warrant any interference by the appeal court.
(3) Where the breach of duty consisted of an omission to do an act which ought to have been done, the question was what would have happened if an event which did not occur had occurred. In this case, the omission was a failure by the respondent to earlier notify the local authority of previous accidents. The question for the court was what would have happened had those steps been taken. This was not a case of someone tripping over a difference in height where they would not expect one to be. The appellant’s clear evidence was that he knew of the presence of the kerb, he saw it and was trying to step onto it. That was an action which people when out and about did day in and day out. On this occasion he simply misjudged that manoeuvre by not lifting his foot sufficiently. That was a finding of fact which was made following a careful evaluation of the appellant’s evidence; it was clearly founded upon that evidence and was properly made. It was fatal to appellant’s claim: Bolitho v City and Hackney Health Authority [1998] AC 232.
Catherine Foster and Nadia Whittaker (instructed by Slater & Gordon Lawyers) 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
