There is no breach of duty to take care to see that a visitor will be reasonably safe under the Occupiers Liability Act 1957 where there is no unseen trap or hazard and a visitor simply misjudges its step.
The Court of Appeal has dismissed a second appeal for damages for personal injury in Kanwarjit Singh Juj v John Lewis Partnership plc [2023] EWCA Civ HC 2418 (KB).
The appellant sought damages for personal injuries arising from a fall in a car park in May 2015. He argued that the respondent’s breach of duty under the 1957 Act caused him to trip on a kerb next to a disabled parking bay. The car park was owned by the London Borough of Hillingdon but displayed Waitrose branding. While the respondent held keys to the car park it had no licence or other legal interest in it.
At first instance the judge in the Central London County Court recorded that the appellant gave clear evidence that he knew the kerb was there, that he saw it, tried to step on it and caught his foot on it.
Dismissing the claim, the judge decided the respondent had sufficient control to be an occupier of the car park but its control was limited to dealing with immediate hazards and reporting concerns/incidents to Hillingdon. It did not extend to putting up warning notices or making any long-term or structural changes.
While the kerb could be seen clearly, the design of the bay, with the presence of the kerb to the left, was an unreasonable danger for the disabled. There had been earlier incidents which Waitrose should have reported to Hillingdon before 2016, but since a request to paint the kerbs had been ignored, it was unlikely that an earlier request would have produced a different result.
The High Court upheld the judge’s findings and overall conclusion but decided the defendant’s control over the car park extended to putting up warning signage where necessary and reiterating reasonably frequently any concerns which Hillingdon had not attended to within a reasonable period.
The Court of Appeal decided 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. The judge’s findings that the kerb was clearly visible to anyone driving into or walking towards the parking bay were unchallenged. The respondent was not responsible for its design or configuration. The appellant’s own evidence, that he misjudged his step, was fatal to his claim.
Louise Clark is a property law consultant and mediator
