Local authorities got an early Christmas present in December 2017 when the Court of Appeal set down some helpful guidance in relation to the extent of their duties when their unmanned car parks become icy.
The Claimant, a 78 year old man, slipped and injured himself in one of Swansea City Council's 46 car parks. At trial he argued that the Council had breached s.2.(2) of the Occupier's Liability Act 1957 by failing to grit the area as a matter of course in cold weather, or employ staff to report regularly on the condition of the car park.
S.2(2) of the Act provides that occupiers should take reasonable care to ensure the reasonable safety of visitors to their premises.
The City Council's system for unmanned car parks was to respond to reports of ice from the public, rather than grit every time a freeze was forecast. The same "reactive" system applied to pavements. Whilst employees might attend the car park to collect cash from machines or check tickets, they were not instructed to report on icy conditions. Upon receipt of a forecast of freezing temperatures, the council's gritters were focussed on highways and manned car parks (park & ride and multi-storey).
HH Judge Vosper QC sitting in Swansea County Court found in favour of the City Council and concluded that the "reactive" system in place was reasonable and that there had been no breach of duty. The Claimant appealed.
Much argument turned on whether it was reasonable for the trial judge to have found that whilst it would have been easy enough for the Council to have a system where employees were told to report or deal with ice, there was no breach of duty under s.2(2).
In upholding the trial judge's decision the Court of Appeal emphasised the need for there to be a balancing exercise when assessing what is "reasonable" taking into account four main factors:
- how likely someone could be injured
- how severe the injury could be
- the social value of the activity (in this case offering a car park) which gives rise to the risk
- the cost of prevention. In this case an analysis of the facts revealed compelling reasons to uphold the appeal.
Although there was no need to address causation (the "but for" test) the appeal judges also found that it was very unlikely that, had an employee been tasked with reporting ice, this would have resulted in a different outcome. A small car park was not going to have a high footfall of council workers during the day or receive high priority on the gritting schedule in any event.
Comment: This case is a reminder that, even where a system could easily be altered to further reduce risk of injury, this does not mean that the current system is unreasonable and in breach of the s.2(2) duty of care. Pavements often fall into the same category as car parks, and so this case has wider implications for a large number of slipping claims relating to ice.