England and Wales Court of Appeal (Civil Division) Decisions

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
		19/12/2017

Lord Justice Hamblen :

Introduction

1. 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").
2. 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

3. 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).
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. The Claimant sought to recover damages of around £10,000 for his injuries in negligence and for breach of the 1957 Act.

The judgment

10. 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.
11. The judge accepted that the accident occurred as alleged by the Claimant.
12. 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.
13. 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."

14. 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".

15. The judge also found at [48] that there would prima facie be no difficulty in implementing such a system.
16. 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".

17. 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

18. 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 establishing causation. There was ample evidence that any reactive system would or should have sought to address the condition of the car park before the time of the accident on 8 December.

Ground 1 – breach of duty

19. The Defendant's admitted duty under section 2 of the 1957 Act is as follows:

"(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor . . ."

20. The Claimant contends that [56] of the judgment must be considered alongside the rest of the judgment and the exchanges between the judge and counsel following the judgment. Taken together these show that the judge found that there had been a breach of duty. It is emphasised that if the judge was not finding any breach of duty then he would surely have made that clear during those exchanges after judgment.
21. It is submitted that by finding that the Defendant could have required its employees to report ice if they saw it, and that there would have been no difficulty in implementing such a system, the judge must have been finding a breach of duty in the context of a 1957 Act claim. The duty is to take such care as is "reasonable" and the judge was in effect finding that it was reasonable to put in place such a system, especially given his finding that "there appears to be no difficulty in such a system".
22. Alternatively, if he was not finding a breach of duty, he ought to have so found in the light of the findings of fact made that such a system could have been put in place without difficulty.
23. The Defendant contends that the judge found that there was no breach of duty. Alternatively, on any view there was no express finding of breach of duty. Whilst the judge said that further steps could have been taken, he did not state that they should have been so taken, still less that the failure to do so involved a breach of duty.
24. Although the judge could have been clearer both in his judgment and in his remarks following judgment, I consider that it is reasonably plain from the judgment itself and its context that the judge was finding that there was no breach of duty.
25. As to the judgment, the judge identifies the first key question to be whether a reactive system is sufficient to discharge the burden imposed by section 2 of the 1957 Act. He answered that question by stating in terms in [56] 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". That is an express finding that the Defendant discharged its duty of care.
26. Although the judge then goes on to say that the Defendant's reactive system could have included giving instructions to wardens and cashiers, he does not state that this should have been done, or that failing to do so involved a breach of duty, either in the judgment or in the exchanges following judgment.
27. It is also clear from the judgment that the judge did not consider that the issue of having a system requiring wardens and cashiers to report ice conditions was fully and properly explored in the evidence. At [48] he notes that it would have assisted him to have heard Mr Sheriff cross-examined about this and that the evidence is not as complete as he would wish. This is no doubt why, when he says that there would appear to be no difficulty about such a system, he expresses this as a "prima facie" conclusion. Not surprisingly, he was not expressing a final or definitive conclusion on this partly explored issue.
28. This becomes even more evident when the context is considered. The judge was addressed at length as to why the duty to take such care as is reasonable in all the circumstances should not extend beyond the Defendant's existing practices having regard, for example, to the likelihood of harm, the magnitude of harm, the cost of precautionary measures and the social utility of the activity. If he was to find a breach of duty the judge would have had to address these considerations, which he did not do. He would also have had to address exactly when the duty to report would arise, what it would have required by way of response and the consequent need for and use of resources which, again, he did not do.
29. For all these reasons I conclude that the judge found that there was no breach of duty.
30. As to whether he was wrong so to find, the Claimant does not challenge that conclusion by reference to the evidence but only by reference to the findings which the judge made as to the reporting system which "could" have been in place. Those findings as to what "could" have been done on a "prima facie" basis cannot properly found, still less require, a finding of breach of duty.
31. In any event, I consider that there is much force in the Defendant's detailed arguments at trial as to why it would not be reasonable in all the circumstances to impose a duty of care that would in effect require the Defendant to grit its unmanned car parks whenever icy conditions were reported.
32. We have been referred, as was the judge, to Lord Hoffmann's judgment in Tomlinson v Congleton BC [2004] UKHL 47, [2004] 1 AC 46 and in particular to [34]-[37] and [48].
33. At [34]-[37], under the heading "The balance of risk, gravity of injury, cost and social value", Lord Hoffmann identifies the balancing exercise which needs to be carried out when considering what amounts to "such care as in all the circumstances of the case is reasonable" under section 2(2) of the 1957 Act. As he states this involves an assessment of:

(1) The likelihood that someone may be injured;

(2) The seriousness of the injury which may occur;

(3) The social value of the activity which gives rise to the risk; and

(4) The cost of preventative measures.

34. At [48] Lord Hoffmann emphasises that there is generally no duty to protect against obvious dangers.
35. In the present case the Defendant identified the following matters as being particularly relevant to the assessment required to be carried out:

(1) The likelihood that someone may be injured;

The risk of ice in cold weather is an obvious danger. People out and about in cold weather can be reasonably expected to watch out for ice and to take care. The Car Park did not pose a particular risk compared to any other of the Defendant's car parks. There had been no previous reports of dangerous ice conditions at the Car Park, nor any previous accidents due to ice.

(2) The seriousness of the injury which may occur;

Injury due to slipping on ice may be trivial or serious.

(3) The social value of the activity which gives rise to the risk;

The Defendant's car parks provide the useful facility of 24 hour parking. If gritting of unmanned car parks, such as the Car Park, is required whenever there is a report of icy conditions the Defendant is likely to have to prohibit their use in all its unmanned car parks in periods of adverse weather, to the considerable inconvenience of local residents and visitors.

(4) The cost of preventative measures.

The alternative to closing the car parks would be manning them or arranging regular gritting. Such gritting would have to be by hand and would involve significant use of staff and material resources. This would be a disproportionate and costly reaction to the risk and would have diverted such resources from situations where attention was more urgently required.

36. These are compelling reasons for upholding the judge's decision that there was no breach of duty, an assessment that he was in any event best placed to make as the trial judge.
37. I would accordingly dismiss the appeal on ground 1. That is dispositive of the appeal.

Grounds 2 to 4 - causation

38. In the light of my conclusion on breach of duty it is not necessary to determine the Claimant's challenge to the judge's conclusion on causation. I therefore do not propose to address the issues raised in any detail, but would simply observe as follows:

(1) In light of the judge's findings at [19] that gritting could not begin until midnight on 7 December because of rain and at [52] that the ice formed after midnight, the judge's conclusion that a reporting system would not have prevented the accident at 10.30 on 8 December would appear to be unassailable, regardless of on whom the burden of proof rested. In order for the accident to be prevented an employee would have had to attend the Car Park early on 8 December and to have considered conditions to be sufficiently hazardous for a report to be made; the Defendant would then have had to decide to act on the report and to arrange for manual gritting to be carried out, and that gritting would have had to be completed before 10.30. That is inherently implausible.

(2) The Claimant contends that this was a case in which there was an evidential burden on the Defendant to establish that the accident would have occurred in any event. Reliance is placed on Ward v Tesco and similar cases in which it has been found that the circumstances of the accident establish a prima facie case of negligence (in the case of Ward v Tesco it was spillage of yoghurt on a supermarket floor). There are, however, a number of factual distinctions to be drawn from such cases. In particular, this was a small 24 hour car park, not a busy location like a supermarket; it was unmanned; it was not under supervision or close control; ice is to be expected in a car park exposed to the elements; there was no unnatural substance on the ground that could not be expected to be there; there can have been no expectation that ice would be dealt with as soon as it developed. As the judge observed at [53], this is not a case "where proof of the circumstances leads to the conclusion that something has gone wrong…it cannot seriously be said that something must have gone wrong to explain the presence of ice on the ground in December".

Conclusion

39. For the reasons outlined above I would dismiss the appeal.

Lord Justice Henderson:

40. I agree.

Lord Justice Longmore:

41. I also agree.