Cook v Swansea City Council [2017] EWCA Civ 2142

We are now in the winter months where we are faced with adverse weather conditions of snow and ice. This judgment helpfully confirms that local authorities will not be placed under unrealistic burdens when it comes to systems of gritting and inspection. However, it should be noted that the courts will look at the specific facts of each case and this decision does not provide a green light for local authorities to only have reactive systems of gritting in place for all areas.

The facts

On 8 December 2012, the claimant slipped and fell on ice in a car park that was owned and operated by the defendant. The car park was one of 46 car parks that was operated by them and was a small 24 hour, pay and display car park that was open to the elements. This car park was unmanned and would not automatically be gritted in bad weather unless the defendant received a report from a member of the public about potential dangerous conditions.

The defendant was aware that temperatures would drop below freezing between midnight on the night of 7 December and 9 am on 8 December. As a result, gritting lorries were sent out in the early hours of 8 December to grit highways but the car parks where the claimant’s accident occurred was not gritted.

It was alleged that the defendant was in breach of their reasonable duty of care owed to the claimant under section 2(2) of the Occupiers’ Liability Act 1957 (OLA 1957) to ensure that they would be reasonably safe when visiting the car park. It was alleged that conditions underfoot were hazardous due to the icy conditions and that the car park should have been gritted.

At first instance, the judge found that the defendant’s reactive system of gritting the car park in response to any reports about the condition of the area was suitable in the context of the case. The judge rejected the defendant’s arguments that the accident would have been prevented if there had been a system in place for the defendant’s employees, whilst at the car park to collect tickets and money, to report icy conditions. Also, the judge found that there was no evidential burden on the defendant to show that the accident would have happened in any event had the car park been gritted.

The claim was dismissed.

The claimant appealed this decision arguing that the judge had failed to make a clear and explicit finding in respect of breach of duty under section 2(2) of the OLA 1957.

Court of Appeal decision

It was noted that the judge had expressly found that the defendant’s reactive system of gritting the car park was sufficient to discharge their duty to take reasonable care to ensure that visitors would be reasonably safe when using the car park. It was noted that the judge did not state anywhere in his judgment that the defendant should have given instructions to cashiers and wardens to report icy conditions in the car park or that failing to do this gave rise to a breach of duty.

The Court of Appeal made clear that even though the judge had stated that there would “prima facie” be no difficulty implementing a system requiring wardens and cashiers to report icy conditions, this was not a final or definitive conclusion on the issue and had only been partly explored.

It was held that the judge was not wrong to have reached the decision that the defendant was not in breach of duty under section 2 of the OLA 1957. In particular, there was a lot of force in the defendant’s arguments that it would be unreasonable to impose a duty on them to grit unmanned car parks whenever icy conditions were reported for that day.

The Court of Appeal stated that a balancing act needed to be carried out when assessing liability, which involved assessing the likelihood that someone might get injured, the seriousness of any injury that could occur, the social value of the activity giving rise to the risk and the cost of preventative measures being implemented. The Court of Appeal referred to the House of Lords decision in Tomlinson v Congleton BC [2003] UKHL 47 and made clear that there is generally no duty for an occupier to guard and protect visitors against obvious dangers.

In respect of the likelihood of injury, it was held that the risk of ice in cold weather was an obvious danger which people could be reasonably expected to watch out for and take care. Also, it was concluded that the car park in question did not pose any particular risk when compared to other car parks owned by local authorities. Further, the Court of Appeal took into account that there had not been any previous reports of dangerous icy conditions and there had been no previous accidents due to ice.

In relation to the seriousness of the injury that might occur, the Court of Appeal held that an injury due to slipping could be trivial in some cases but serious in others.

In respect of the social value of the activity giving rise to the risk, the Court of Appeal noted that the defendant’s car parks provided 24-hour parking and were unmanned. It was stated that if unmanned car parks had to be gritted whenever icy conditions were reported then the defendant would likely prohibit the use of all unmanned car parks in periods of adverse weather. It was concluded that this would lead to a lot of inconvenience to members of the public and would not be a desirable result.

In relation to the costs of preventative measures, the Court of Appeal considered that potential solutions would be for the car park to be manned or for regular gritting to be arranged. However, it was noted that gritting would be done by hand and these potential solutions would involve a significant amount of material and resources, which was disproportionate and costly to local authorities. Also, it was held that this would prevent the defendant from responding to other, more urgent situations.

As a result of these findings, the Court of Appeal concluded that the judge’s decision to dismiss the claim should be upheld.

The Court of Appeal confirmed that there was no evidential burden on a local authority to establish that the accident would have occurred in any event. Also, the findings on breach of duty were sufficient to dispose of the claimant’s appeal in respect of causation and how this was determined.

What this means for you

This is a positive judgment for defendants, which shows that reactive systems of gritting in car parks can be sufficient in certain circumstances. Here, the car park was unmanned, was outside and was open 24 hours a day. It was seen that the costs and resources required to ensure that the car park was gritted during days where there is reported ice and/or snow etc., would place a heavy burden on local authorities and would likely lead to car parks of this nature being closed, which would be an undesirable result.

The Court of Appeal stated that this was not a case where proof of the circumstances of the accident must lead to the conclusion that something had gone wrong. Also, just because there was ice on the floor did not mean that there were failings on the part of the defendant.

The Court of Appeal distinguished the facts of this case from the facts in Ward v Tesco Stores Ltd [1976] 1 All ER 219, and specifically noted that ice is to be expected in a car park that is exposed to the elements and there was no unnatural substance on the ground that could not be expected to be there. Also, the Court of Appeal stated there could be no expectation for ice to be dealt with as soon as it developed.

Although this is a positive judgment, it should not be taken to mean that a reactive system of gritting is suitable in all car parks. Here, the Court of Appeal carefully considered the specific facts of the case and took into account the fact that no reports had been received in respect of the icy conditions in the car park. Also, it can be seen that the Court of Appeal carried out a balancing exercise between public and private interests and was careful to ensure that onerous obligations were not placed on local authorities.

The position in respect of liability would have likely been different had the car parked been manned or had there been previous reports by members of the public in respect of icy or hazardous conditions. Also, the liability position may be different in respect of staff car parks as these areas ideally need to be risk assessed, inspected and gritted because they could be seen as traffic routes and part of the employee’s place of work.