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Local authorities: Snow and ice - is there a requirement to pre-emptively grit?

In the recent case of Cook v Swansea City Council [2017], the Court of Appeal dismissed the Claimant appellant's claim for damages after he slipped and fell on ice in a car park owned by a local authority. The court upheld the finding that there was no breach of duty under the Occupiers' Liability Act 1957 s.2(2) to take reasonable care to ensure that visitors would be reasonably safe when using an unmanned car park in icy conditions. Sharon Dysart and Anne Sutcliffe take a look at how the judgment dealt with the adequacy of a reactive gritting policy and the issue of causation.

Background and facts

On 8th December 2012, the 78 year old Claimant slipped on black ice whilst walking to the ticket machine of a small car park in a suburb of Swansea. The car park was one of 46 operated by the Defendant Council and like the vast majority they operated, it was unmanned. The Council periodically sent out its employees to the car park to collect money from the ticket machines (cashiers) and to ensure drivers had paid and displayed (wardens).

The Council also had a reactive system of gritting in its unmanned car parks - it did not pre-emptively grit them but did so only when it received a report from a member of the public about a dangerous area.

The winter maintenance plan provided for the gritting of 43% of the highway network, with pathways, on a reactive basis. Gritting was carried out in response to weather alerts which the Council received daily.

Warnings had been received that the temperature would drop below freezing between midnight on the night of 7th December and 9am on 8th December. The Council had accordingly sent out gritters in the early hours of 8th December to grit highways but not footpaths or car parks. Gritting could not start at midnight because of rain, which would have washed away any earlier grit.

Duty of care

The Claimant pursued this action purely under the Occupiers' Liability Act 1957, as the car park was not a highway for the purposes of the Highways Act 1980.

Thus, the duty was to take such care in all the circumstances of the case as was reasonable to see that the lawful visitor would be reasonably safe in using the premises for the purposes for which he was invited or permitted by the occupier to be there.

Findings at th first instance

The judge accepted the Claimant's account of the incident on 8th December and went on to identify two key questions:

a) Whether a reactive system is sufficient to discharge the burden imposed by the Occupiers' Liability Act 1957; and

b) 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 the incident.

The judge felt that it would be too onerous for a Council to start shutting car parks upon receipt of adverse weather warnings – there would be difficulties in closing a car park if there were cars still in it. Further, "…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 exceptions of heavy snowfall...".

The judge felt that by adopting a reactive system, the Council had discharged the duty to take such care as in all the circumstances of the case was reasonable. The Council could have issued instructions to the wardens and cashiers, however, this would be part of a reactive system and there was no evidence to suggest that such instructions would have prevented the Claimant's accident.

The appeal

The Claimant appealed on the following grounds:

a) Having found as a fact that the Council 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 made an error in failing to make a clear and explicit finding of breach of duty under the Occupiers' Liability Act 1957.

b) The judge was wrong in law in his approach to the issue of causation in finding there was no burden on the Council to establish that the accident would have occurred in any event.

c) If the judge's approach regarding causation was correct, the threshold he adopted in respect of proof of causation was too high.

d) The judge failed to give 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 8th December.

The Court of Appeal (Longmore, Hamblen and Henderson LJ) upheld the judge's decision and dismissed the appeal:

Breach of duty

It was found that the judge at first instance did not consider that the issue of having a system of wardens and cashiers to report ice conditions was fully and properly explored in the evidence. The later comments by the trial judge as to steps that could have been taken were found by the Court of Appeal not to amount to a finding that these steps should have been taken or that failing to do so involved a breach of duty.

It was concluded that the judge at first instance had found there was no breach of duty. As to whether he was wrong to do so, the Claimant did not challenge that conclusion by reference to the evidence, but only by reference to the findings which he made as to the reporting system that could have been in place.

The Council identified matters which were particularly relevant to the assessment required to be carried out:

  • The likelihood that someone may be injured: the risk of ice in cold weather is an obvious danger, and the car park did not pose a particular risk compared to any of the other Council's car parks. There had been no previous reports of dangerous ice conditions at the car park, nor any previous accidents due to ice.  
  • The seriousness of injury which may occur: injury due to slipping on ice may be trivial or serious.
  • The social value of the activity which gives risk to the risk: the car parks provide a useful facility of 24 hour parking. If gritting is required whenever there is a report of icy conditions, the Council is likely to have to prohibit the use of all unmanned car parks in adverse weather to the considerable inconvenience of local residents and visitors.
  • The cost of preventative measures: the alternative to closing them would be manning them or arranging regular gritting. This would involve significant use of staff and material resources, and would be a disproportionate and costly reaction to the risk. It would divert such resources from situations where attention was more urgently required.

The Court of Appeal found these to be compelling reasons for upholding the judge's decision and accordingly the appeal was dismissed.

Causation

In terms of causation, the Court of Appeal felt it unnecessary to determine the Claimant's challenges at b) – d) above.

The Claimant's argument was that ice in a car park was analogous to yoghurt on a supermarket floor as per Ward v Tesco [1976] andunder the principles in this case, something had obviously gone wrong meaning that the duty was on the Council to show that the accident would have occurred in any event. The Court of Appeal felt that "it cannot seriously be said that something must have gone wrong to explain the presence of ice on the ground in December".

Comment

Nothing has changed in terms of local authorities' duties to comply with section 41 of the Highways Act 1980 and the requirement to implement a robust maintenance and repair policy.

This claim considered whether the system relied upon by the Defendant local authority, which amounted to the local authority relying on a reactive system of complaints, was sufficient to discharge its duty under section 2 of the OLA 1957. The Court of Appeal agreed with the trial Judge that in adopting a reactive system the local authority did discharge its duty to take all such care to see that the Claimant was reasonably safe in using the premises.

In considering this duty, the Court had regard to the likelihood of someone being injured and the seriousness of the injury which may occur. Ice is an obvious hazard and in a situation where the Council did not receive any reports or complaints, there was no requirement to do something more. 

Further, the Court also considered the social value of the activity. It is obvious that there is no benefit to the public in closing a small car park which is un-manned.

In all the circumstances the Court found that there was no breach of duty in having the system that it did.

Contact

For further information please contact, Sharon Dysart Senior Associate D +44 161 838 0106, sharon.dysart@dwf.law.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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