Mr Kanwarjit Singh JUJ v John Lewis Partnership Plc
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Macur LJ,Lewison LJ |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWCA Civ 1507 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002048 |
[2023] EWCA Civ 1507
Lord Justice Lewison
Lady Justice Macur
and
Lady Justice Nicola Davies
Case No: CA-2022-002048
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON SECOND APPEAL FROM THE HIGH COURT
MRS JUSTICE ELLENBOGEN
Case No: QA-2020-000073
ON APPEAL FROM HER HONOUR JUDGE BACKHOUSE
Case No: E33YX086
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Foster and Nadia Whittaker (instructed by Slater & Gordon Lawyers) for the Appellant
Lisa Dobie (instructed by Clyde & Co) for the Respondent
Hearing date: 24 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is a second appeal from the decision of Ellenbogen J (“the appeal judge”) from the decision of HHJ Backhouse (“the trial judge”) sitting at the Central London County Court in respect of a claim by the appellant/claimant for damages for personal injury arising from a fall in a car park adjacent to the Waitrose store in Ruislip on 17 May 2015. The claimant fell and hit his head and suffered a number of injuries with long term sequelae. It is the claimant's case that the defendant breached its duty of care under the Occupiers Liability Act 1957 (“the 1957 Act”) when he tripped on a kerb next to a disabled parking bay in which his wife had parked their car. At the liability only trial, the defendant denied being an occupier of the car park for the purposes of the 1957 Act and further denied that the kerb posed a danger and had caused the claimant's fall. At trial, and on appeal, judgment was entered for the defendant. At the conclusion of the hearing before this court, Lewison LJ stated that the appeal would be dismissed with reasons to follow. These are my reasons for joining in that decision.
From the outset of the proceedings the claimant accepted that the owner of the car park is the London Borough of Hillingdon (“Hillingdon”). It receives the revenue from the pay and display ticket system. It empties the bins in the car park and carries out repairs from time to time. The defendant has no licence nor any other legal interest over the car park, its customers use it, as do those visiting a nearby GP surgery and the stores on the local high street. The defendant's branding is displayed in and around the perimeters of the car park and until 2017/2018, the defendant paid Hillington to advertise on the back of the parking tickets.
An initial letter of claim to Hillingdon dated 24 August 2015 was sent by solicitors instructed on behalf of the claimant. In their letter of response Hillingdon accepted that it is the occupier of the car park but denied liability on the ground that the kerb was not defective or dangerous. Notwithstanding the initial letter, the claimant has not instituted proceedings against the local authority.
The trial
At trial the judge heard evidence from the claimant, his wife and received a witness statement from their daughter. The sole witness for the defendant was Rebecca Wood, the branch manager at the Ruislip store between 2011 to 2018. Photographs, not contemporaneous with the accident, which show the parking bay and other areas of the car park were before the court.
The claimant, aged 83 at the date of the accident, was visiting the Waitrose supermarket on the morning of 17 May in order to purchase bread rolls for a lunch. His wife, who is disabled, drove their car into the disabled parking bay which is situated next to an entrance into the store. As Mrs Juj was not getting out of the car, she parked to the left of the bay in order to allow the claimant to step directly from the car onto the kerb which adjoined the parking bay. The claimant got out of the car onto the kerb, stepped down into the neighbouring bay, went round the back of the car and into the store. A few minutes later he returned carrying shopping bags which he placed in the boot and then walked around the back of the car into the neighbouring bay. When he was level with the front passenger door, the claimant attempted to step on the kerb in order to reach the door handle, he caught his foot on the kerb and fell. He does not remember hitting the ground. The claimant's fall was not seen by his wife but she heard a bang and help was swiftly obtained.
In his evidence to the trial judge, and because of some difficulties giving evidence, the claimant demonstrated what he had done with his foot using a copy of the White Book and a marker pen. The judge found at [12] that the demonstration showed that the claimant's foot caught towards the top part of the face i.e. the vertical part of the kerb, rather than slipping off the top. The judge records that the claimant was clear in his evidence that he knew the kerb was there, that he saw it and tried to step on it. The judge accepted that the claimant had a real memory of tripping and found at [19] that he did trip by catching his foot on the face of the kerb as he had demonstrated. No issue is taken with the findings of the trial judge as to how the accident occurred.
The trial judge's description of the disabled parking bay included the following:
“7. …. the disabled parking bay in question is nearest to the store entrance, under a canopy apparently belonging to the store. Facing towards the back wall of the store, on the right there is a kerb and an area where the defendant puts a display of plants for sale. To the left there is a narrow raised strip, ….. perhaps 40cm wide, although I have no actual measurements. This is bordered by grey kerb stones with tarmac in the middle. There is a photograph of the height of this strip which is 3.5 inches or 9cm. Two pillars, painted white, are situated along this strip, one towards the back wall, and one about two thirds of the way down…
8. If a customer drives their car in forwards, in order to access the store they must walk around the back of their car, where there is then a level entrance into the store. There is no room to walk along the back wall. There is a yellow hatched area painted at the back of the bay, i.e. at the boot end of the car. The bays are marked with the classic yellow disabled symbol, painted on the ground. …. there are other disabled parking bays ….. These have yellow hatched areas on both sides and at the back. This bay does not have such hatched areas at the sides, as it is not wide enough. I do not know the width, it has not been measured…… Ms Wood said that she had parked her car in there, and there was enough space on both sides to allow the doors to open and for a person to walk down the side of the car.”
The trial judge considered the issue of whether the defendant was an occupier of the car park. Before the court was a template risk assessment dated 1 July 2013 prepared by Waitrose which included the following:
“Slips and trips may be found all around the branch. They may be caused by rubbish, broken slabs, kerbs, uneven and unexpected floor level changes and other things. Waitrose have branch specific planned maintenance routines and in addition to this a system for checking around the branch where the public may have access and egress to identify where cleaning or repair is necessary to remove slip and trip hazards. Regular inspections are carried out by the Maintenance Operations Manager and visiting Maintenance Technicians to ensure that the maintenance is adequate at the branch. Branches are also expected to report defects for repair when noted.
…
In branches where we do not own the car park, we ensure that any views about safety issues are promptly reported to those responsible for it.
Hazard :
…
The potential for injury to customers mostly arises from slips (backwards) or trips (forwards). …
However, it is worth noting that for elderly customers fractured hips are not uncommon and according to NHS data a significant number may lead to fatality…
In respect of existing control measures and other likelihood factors ticked are the boxes adjoining the questions is the surface of the pavement or car park in a satisfactory state of repair in all access and exit or pedestrian focal points…
Are any changes in floor surface or height (e.g. kerb) clearly visible?”
The review or risk assessment is completed by a department manager and signed off by the branch manager. Miss Wood did so on 26 November 2013. It was also signed off on 10 July 2015 when it was reviewed by a department manager.
Evidence of steps taken by Waitrose in order to keep staff safe in the car park and to foster good customer relations included clearing up a broken wine bottle dropped by a customer, putting cones over potholes which developed in the surface of the car park and when the weather was icy, gritting the car park because it was the policy of Hillingdon not to do so. At [28] the trial judge noted that no permission was required for that activity and no objection was apparently taken.
Miss Woods reported previous accidents involving kerbs in the car park to Hillingdon in emails dated 11 February 2016 and 22 November 2017. At [29] to [31], the trial judge recorded the correspondence:
“29. The 2016 email to her contact, Chris Barton, at LB Hillingdon reads:
“There have been a couple of accidents in the car park in recent months and I felt that you ought to be aware in case there was a need for repainting or maintenance. Two instances where customers parked in the disabled bays have tripped on the kerbs when getting in or out of the car. I am not sure whether the edge of the kerbs could be painted yellow to highlight them to customers”.
30. …. The two accidents to which she refers appear to be the claimant's accident in May 2015 and another one in November 2015, … On 22 November 2017 she...
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