Kanwarjit Singh Juj v John Lewis Partnership Plc
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen DBE |
| Judgment Date | 30 September 2022 |
| Court | King's Bench Division |
| Docket Number | Case No: QA-2020-000073 |
[2022] EWHC 2418 (KB)
Mrs Justice Ellenbogen
Case No: QA-2020-000073
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Foster (instructed by Slater & Gordon) for the Appellant
Lisa Dobie (instructed by Clyde & Co) for the Respondent
Hearing dates: 16 November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an appeal from the judgment of HHJ Backhouse, sitting at Central London County Court, by which she dismissed the Appellant's claim, ordering him to pay the Respondent's costs, the latter not to be assessed or enforced without further order of the court. Ms Foster, who did not appear below, appeared for the Appellant. Ms Dobie, who did appear below, appeared for the Respondent. I am grateful to them both for their assistance.
By his claim, the Appellant sought damages for personal injury arising from a fall in a car park adjacent to the Waitrose store in Ruislip, on 17 May 2015. It was the Appellant's case that the Respondent had breached its duty of care under the Occupiers Liability Act 1957 (‘the OLA’), causing him to trip on a kerb next to a disabled parking bay in which his wife had parked their car. At the relevant time, the Appellant had been 83 years old. In falling, he had hit his head, suffering a fractured wrist, maxillofacial injuries, a traumatic brain injury; a subdural haemorrhage and long-term consequences. The trial was of liability only. The Respondent denied liability, putting the Appellant to proof that the kerb had caused the fall; denying that it was an occupier of the car park and also that the kerb posed a danger. It was not in dispute that the Respondent was not the owner of the car park; that owner being the London Borough of Hillingdon (‘LBH’), which collects the revenue from the pay and display system; empties the bins in the car park and undertakes repairs from time to time. The Respondent has no licence relating to, or other legal interest in, the car park; its customers, in common with those of stores on the local high street and people visiting a nearby GP surgery, use the car park. The Respondent refunds its customers for up to two hours' parking, which costs £1.50. Its branding is displayed in and around the perimeter of the car park and, until approximately 2017 or 2018, it paid LBH to advertise on the back of the parking tickets. No claim has been brought against LBH.
The judge identified the issues which she had to decide as follows:
i) the cause of the Appellant's accident;
ii) whether the Respondent was an occupier of the car park;
iii) whether the state of the premises was such that it posed an unreasonable danger to visitors;
iv) if the Respondent owed a duty, whether it had breached that duty by failing to have taken reasonable steps to see that visitors were reasonably safe;
v) whether any breach of duty by the Respondent caused the Appellant's accident; and
vi) whether the Appellant was guilty of contributory negligence.
In relation to the first to fifth of those issues, she found (materially): Issue 1
i) (judgment, [19]) ‘Mr Juj suffered a serious accident with, it appears, some loss of consciousness, a traumatic head injury and subdural haemorrhage. He was in pain and confused at least initially. In my judgment, it is not surprising that he did not immediately recollect what had happened to him. I note that he spoke normally to his wife through the open boot when he was putting the shopping in the car, and neither she nor he report him suffering from any of the symptoms that had preceded previous fainting episodes. The fall must have taken place no more than a few seconds later. In my judgment, it is more likely that it was a trip than a sudden collapse. I am satisfied, on the balance of probabilities, that Mr Juj has a real memory of tripping, and I find he did trip by catching his foot on the face of the kerb as he demonstrated.’
ii) (judgment, [12]), ‘…At my suggestion, at the end of his evidence, he demonstrated what he did with his foot, using a copy of the White Book and a marker pen. That demonstration showed that his foot caught towards the top part of the face i.e. the vertical part of the kerb, rather than slipping off the top. Mr Juj was clear in his evidence that he knew the kerb was there, that he saw it and tried to step onto it. That is his account.’
Issue 2
iii) (judgment, [32]) ‘Going back to the analysis about whether the defendant is an occupier, it appears to be the case that there is no formal legal agreement between the defendant and Hillingdon, but as Ms Wood says, [staff] are moving around the outside of the building all day, amongst other duties collecting trolleys from where customers had just left them rather than returning them to the trolley park. It seems to me that this arrangement with the car park was one of mutual commercial benefit to the defendant and Hillingdon. The defendant's customers had a car park to use and Hillingdon got the revenue from those customers. Hillingdon, at some point, decided to close the car park overnight because of vandalism, but set the hours to suit the store opening times and, indeed, it appears that the defendant had keys to the barrier to open and close it.’
iv) (judgment, [33]) ‘…In my judgment, the defendant was more than just a good neighbour to Hillingdon and given the risk assessment and the steps taken by Waitrose, I find that the defendant had sufficient control to be an occupier of the car park. However, that control was limited, in my judgment, to dealing with immediate hazards, and putting in place interim measures to deal with hazards, as Ms Wood told me, and to reporting matters to Hillingdon. Therefore, the defendant's duty of care has to be limited to the extent of its control. Specifically, in my judgment, the defendant was not entitled to, nor required to paint the kerbs, or to prevent the use of any particular bay, including the one in question, nor was it entitled or required to make any long term or structural changes.’
Issue 3
v) (judgment, [34]) ‘I come to the issue of whether this bay constituted an unreasonable danger. The claimant points to previous accidents, apparently involving this bay. The reports are rather imprecise and are contained in the various places. There is a summary of incidents and then some specific safety incident details. There is an incident on 12 December 2012, when a customer tripped over the kerb landing on his front resulting in a cut above his right eye, a cut lip and a cut knee. The specific safety incident report puts the location as, ‘Outside the branch exit, by the disabled parking spaces. Witness stated the customer tripped over the kerb’. I think there is no more detail other than that. That, in my judgment, appears to refer to this bay.’
vi) (judgment, [35]) ‘Then there is another possible incident on 14 March 2013. Unfortunately, this simply reads, ‘Customer tripped on paving around pillar on entrance to shop’, and then another incident on 9 August 2014, where it is specified that, ‘The customer was stood by the back passenger side of the car whilst putting shopping in the car boot. She went to take a step forward and immediately felt her left foot trip over the curb (sic), causing her to trip and fall in the next bay face first’. Further, it said the locations had been ‘non-selling area-external-carpark-disabled space’. Again, it would seem likely that that incident involved this bay and Ms Wood seemed to accept so. The customer in that incident suffered a cut to her nose and injuries to her knee, ankle and shoulder.’
vii) (judgment, [36]) ‘After the claimant's own accident there was another incident on the 3 November 2015, reading, ‘Elderly gentleman was getting out of his car when he tripped and fell over the kerb which runs along the long side the disabled parking bays’. Injuries are not recorded on that one. Ms Wood said, when asked about whether this bay was, in her view, dangerous that it was, in fact, the most popular bay, used thousands of times by customers. She initially said there had been no previous accidents prior to the claimant's, but then conceded when taken to the details by Ms Whittaker that there had been at least two previous incidents but only two, she said, in two years, which she did not consider a trend requiring her to report them.’
viii) (judgment, [38]) ‘In my judgment, the issue in this case is the presence of the kerb itself. It has to be said that the kerb is clearly visible as a customer drives into the parking bay, or walks towards it; the kerb stones are a lighter colour. However, it seems to me that the danger comes from the space at the side of the car and the need for elderly and/or disabled customers, who are most likely to be using this bay, to manoeuvre between the side of the car and the kerb. It is apparent that the claimant's accident was by no means unique and bearing in mind the previous accidents, and the features of this bay as I have described them, I find on the balance of probabilities that the design of the bay, i.e. the presence of the kerb to the left, is an unreasonable danger for the class of visitors using that bay, namely the disabled.’
Issue 4
ix) (judgment, [40]) ‘What should Waitrose have done? In my judgment, it should have reported the accidents in 2012, 2014 and possibly that in 2013 to the London Borough of Hillingdon. It did not report anything until 2016. In the reports Ms Wood made, there is a suggestion that the kerbs should be painted to alert people to the presence of them. However, I am doubtful as to whether painting is sufficient,...
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