Local authorities and other occupiers received an early Christmas present in December 2017 when the Court of Appeal dismissed the claim of a 78 year old man who had slipped on ice in a car park belonging to Swansea City Council. This was a small unmanned 24 hour pay and display car park which was open to the elements.
The Claimant argued the Council had breached section 2(2) of the Occupier’s Liability Act 1957 by failing to grit the car park as a matter of course in cold weather or employ staff to report regularly on the condition of the car park. Section 2(2) provides that occupiers should take reasonable care to ensure the reasonable safety of visitors to their premises. This is known as the common duty of care.
The Council’s system in respect of unmanned car parks was to respond to reports of ice rather than grit every time a freeze was forecast. The Trial Judge called this a reactive system. While Council employees might attend the car park to collect cash from machines or inspect tickets they were not instructed to report on icy conditions. Upon receipt of a forecast of freezing temperatures the Council’s gritters were focused on roadways and manned car parks.
The Trial Judge concluded that the reactive system used by the Council was sufficient to discharge the common duty of care. The Court of Appeal upheld this decision and agreed that it would not be reasonable in all the circumstances to impose a duty of care that would require the Council to grit its unmanned car parks whenever icy conditions were reported.
The Court of Appeal placed weight on the 2004 House of Lords decision in Tomlinson .v. Congleton Borough Council in which Lord Hoffmann identified the balancing exercise which needs to be carried out when considering what constitutes “such care in all the circumstances of the case is reasonable” under section 2(2) of the 1957 Act. The Court of Appeal indicated this exercise involved an assessment of four factors as follows:-
The likelihood that someone might be injured
The Court of Appeal indicated the risk of ice in cold weather was an obvious danger and pedestrians could be reasonably expected to watch out for ice and to take care.The car park did not pose a particular risk compared to any other of the Council’s car parks.There had been no previous reports of dangerous ice conditions at the car park nor any previous accidents due to ice.
The seriousness of the injury which may occur
Injury due to slipping on ice may be trivial or serious
The social value of the activity which gave rise to the risk
The car park provided the useful facility of 24 hour parking. The Court of Appeal indicated that if gritting of unmanned car parks was required whenever there was a report of icy conditions the Council was likely to have to prohibit people from using the car park which would be a considerable inconvenience to members of the public.
The cost of preventative measures
The alternative to closing the car park would be manning it or arranging regular gritting.Such gritting would have to be by hand and would involve significant use of staff and material resources and the Court of Appeal indicated this would be a disproportionate and costly reaction to the risk and would have diverted resources from situations where attention was more urgently required. As a result, the Court of Appeal upheld the decision of the Trial Judge that there was no breach of duty by the Council and the Claimant’s appeal was dismissed.