Mr Ivor Cook v Swansea City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Henderson,Lord Justice Longmore |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2142 |
| Docket Number | Case No: B3/2016/0004 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2017 |
[2017] EWCA Civ 2142
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT SWANSEA
HIS HONOUR JUDGE VOSPER QC
Claim No: A41YP478
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Hamblen
and
Lord Justice Henderson
Case No: B3/2016/0004
Judith Burns (instructed by BGR Bloomer) for the Appellant
Timothy Petts (instructed by City & County of Swansea) for the Respondent
Hearing date: 6 December 2017
Judgment Approved
Introduction
This is an appeal against the ex tempore judgment of 14 December 2015 of His Honour Judge Vosper QC sitting at Swansea County Court whereby he dismissed the Claimant Appellant's claim for damages in negligence and/or breach of duty under s2(2) of the Occupiers' Liability Act 1957 ("the 1957 Act").
The claim arises from an accident on 8 December 2012 in which the Claimant slipped and fell on ice in a car park owned and operated by the Defendant.
Factual Background
The Bush car park ('the Car Park') is one of 46 car parks operated by the Defendant. Situated in a suburb of Swansea, it is a small 24 hour pay and display car park (with spaces for 40 cars) which is open to the elements. Like the vast majority of the Defendant's car parks, the Car Park is unmanned (the exceptions are three multi-storey car parks and three park and ride car parks).
In bad weather the manned car parks will be gritted. The unmanned car parks do not get gritted. The judge found that the Defendant operates a reactive system of gritting in its unmanned car parks, whereby it does not pre-emptively grit them but does so only when it receives a report from a member of the public about a dangerous area.
Employees of the Defendant attend their car parks to collect money from the ticket machines ("cashiers") and ensure that drivers have paid and displayed ("wardens"). Documents showed that two wardens had attended at 10.51 on 7 December. Cashiers had collected money from the ticket machines on both 7 and 8 December, but the times of their visits were not recorded.
The Defendant's winter maintenance plan provides for gritting 43 per cent of its highway network. It only grits footpaths on a reactive basis. Gritting is carried out in response to weather alerts which the Defendant receives daily.
The Defendant had received warnings that the temperature would drop below freezing between midnight on the night of 7 December and 09.00 on 8 December. It had accordingly sent out gritting lorries in the early hours of 8 December to grit highways, but not footpaths or car parks. Gritting could not begin until midnight because of rain, which would have washed away any earlier grit.
The Claimant was 78 years old at the time of the accident. The judge accepted his account of what occurred. Shortly after 10:30 he had parked his car and was walking towards the ticket machine when he slipped on black ice near the ticket machine. There was a slight downward incline towards the ticket machine, with an estimated gradient of one in ten/one in twelve.
The Claimant sought to recover damages of around ?10,000 for his injuries in negligence and for breach of the 1957 Act.
The judgment
The judge noted that he had heard evidence from the Claimant, Mr Laurence Aaron, a witness to the accident, Mr Dean Howard, the Defendant's Streetworks and Winter Service Manager, and Mr Steve Sheriff, the Defendant's Deputy Parking Services Manager.
The judge accepted that the accident occurred as alleged by the Claimant.
Having set out the evidence, the parties' submissions and the main authorities to which he had been referred, the judge identified the two key questions before him as being: (1) whether a reactive system is sufficient to discharge the burden imposed by section 2 of the 1957 Act and (2) if not, whether the Claimant proved that it is more likely than not that a system which required reporting by cashiers and wardens would have prevented his accident.
In relation to the first question and the issue of breach of duty the judge found as follows:
"49. As to question 1, the suggestion that once an adverse weather warning had been received by the Defendant's Environment Department, Mr Sherriff should have begun closing car parks or sending staff to review the position at each car park, or even at each city centre or suburban car park is in my judgment not proportionate or reasonable.
50. As Mr Petts rightly submitted, local conditions vary considerably. These are car parks open 24 hours a day. There are difficulties in closing a car park if cars are still in it. It is not clear how these car parks should have been closed. It cannot really be practicable or proportionate to suggest that a member of staff should be left guarding each car park or waiting to see if ice forms. In my judgment a reactive system is the only proportionate and reasonable way of dealing with the problem of ice in car parks, save, of course, on those rare occasions of heavy snow fall which are exceptional and, as Mr Howard said in his evidence, call for different decisions."
He expressed his conclusion in the following terms:
"56. I therefore conclude that by adopting a reactive system the Defendant did discharge the common law duty to take such care as in all the circumstances of the case was reasonable, to see that the Claimant would be reasonably safe in using the Bush Park. I accept that the Defendant could have issued instructions to cashiers and wardens, but, as I have said, such instructions would have been part of a reactive system and there is no evidence that such instructions would have prevented the Claimant's accident".
The judge also found at [48] that there would prima facie be no difficulty in implementing such a system.
At the conclusion of the judgment, the judge was asked to clarify his decision in relation to breach of duty. His response was as follows:
"My finding is that a reactive system is appropriate in the context of this case. In other words, your submission that there should be some kind of proactive system I reject. The system that in the end it seems to me could have been put in place in addition simply to reacting to what members of the public say is a reactive system requiring employees to report ice if they see it, or to take some steps to deal with it if they see it. That is something which the council could very easily have put in place, but that is still a reactive system, and whichever reactive system is involved, it is necessary in the context of this case for the Claimant to show that it would have made a difference, so that is my finding".
He then said:
"Whether you regard that as being a breach of the common law duty of care but causation fails, or whether you regard it as not being a breach of the common law duty of care in the first place, it is a reactive system, or it is an appropriate system it seems to me not to matter too much, that is the finding I have come to".
In relation to the second question and the issue of causation the judge distinguished the case of Ward v Tesco Stores Ltd [1976] 1 WLR 810 which had been relied on by the Claimant as placing an evidential burden on the Defendant to show that the accident would have happened in any event. Whilst he accepted that the Defendant could have given instructions to cashiers and wardens he said that this would have been part of a reactive system and that "there is no evidence that such instructions would have prevented the Claimant's accident" and that there must be judgment for the Defendant.
The Grounds of Appeal
The Claimant appeals on the following grounds:
(1) Having found as a fact that the Defendant did not put in place a system whereby cashiers and wardens would report ice, and having found that prima facie there could be no difficulty with such a system, the judge erred in failing to make a clear and explicit finding of breach of duty under section 2(2) of the 1957 Act;
(2) The judge was wrong in law in his approach to the issue of causation in finding there was no burden on the Defendant to establish that the accident would have occurred in any event;
(3) If the judge's approach regarding the question of causation was correct the threshold he adopted in respect of proof of causation was too high and presented an insurmountable hurdle for the Claimant.
(4) The judge failed to accord sufficient weight or to consider adequately evidence before him...
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