Cook v Swansea City Council

Factual and Procedural Background

This appeal arises from an ex tempore judgment dated 14 December 2015 by Judge Vosper QC at Swansea County Court, dismissing the claim of the Plaintiff Appellant for damages in negligence and/or breach of duty under section 2(2) of the Occupiers' Liability Act 1957 ("the 1957 Act"). The claim concerns an accident on 8 December 2012, when the Plaintiff slipped and fell on ice in a car park owned and operated by the Defendant.

The car park in question ("the Car Park") is one of 46 operated by the Defendant, located in a suburb of Swansea. It is a small, unmanned, 24-hour pay and display facility with 40 spaces, open to the elements. Unlike the Defendant’s manned car parks, which are gritted in bad weather, unmanned car parks like this one are only gritted reactively upon reports from the public of dangerous conditions.

On the day before and the morning of the accident, the Defendant received weather warnings of freezing temperatures and sent out gritting lorries to treat highways but not footpaths or car parks. Gritting could not begin before midnight due to rain. The Plaintiff, aged 78 at the time, parked shortly after 10:30 and slipped on black ice near the ticket machine on a slight incline.

The Plaintiff sought damages of approximately £10,000 for injuries sustained, alleging negligence and breach of the 1957 Act.

Legal Issues Presented

1. Whether a reactive system of gritting and reporting is sufficient to discharge the Defendant’s duty under section 2 of the Occupiers' Liability Act 1957.
2. If not, whether the Plaintiff proved on the balance of probabilities that a system requiring cashiers and wardens to report ice would have prevented the accident.

Arguments of the Parties

Appellant's Arguments

• The judge erred in failing to make a clear and explicit finding of breach of duty, despite finding that the Defendant did not have a system requiring employees to report ice and that such a system could be implemented without difficulty.
• The judge was wrong in law in his approach to causation, particularly in not imposing a burden on the Defendant to prove the accident would have occurred regardless.
• The threshold for proving causation was set too high, presenting an insurmountable hurdle for the Plaintiff.
• The judge failed to give sufficient weight to evidence that any reactive system should have addressed the car park conditions before the accident.

Appellee's Arguments

• The judge found there was no breach of duty as the reactive system adopted was reasonable and proportionate under the circumstances.
• There was no express finding of breach of duty; further steps suggested by the Plaintiff were not established as necessary or reasonable.
• Imposing a duty to grit unmanned car parks reactively reported as icy would be disproportionate, costly, and impractical.
• The risk of ice was an obvious danger, and users were expected to take care; the car park did not pose a particular risk beyond that.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ward v Tesco Stores Ltd [1976] 1 WLR 810	Prima facie case of negligence and evidential burden on the defendant to prove accident would have occurred anyway.	The court distinguished this case on facts, noting differences such as the setting being an unmanned car park exposed to natural ice rather than a supervised supermarket floor with unnatural hazards.
Tomlinson v Congleton BC [2004] UKHL 47, [2004] 1 AC 46	Balancing exercise under section 2(2) of the 1957 Act considering likelihood and gravity of injury, social value of the activity, and cost of precautions.	The court applied the principles to conclude that the Defendant's reactive system was reasonable and proportionate, considering the obvious nature of the risk and the cost and impracticality of further precautions.

Court's Reasoning and Analysis

The court identified two key questions: whether a reactive system suffices to discharge the Defendant's duty under section 2 of the 1957 Act, and if not, whether the Plaintiff proved that a reactive system requiring reporting by employees would have prevented the accident.

On breach of duty, the court found that the Defendant’s reactive system was reasonable and proportionate given the circumstances. The court rejected the Plaintiff’s suggestion that a proactive system was required, noting practical difficulties in closing or manning car parks continuously and the variability of local conditions. The judge acknowledged that instructing staff to report ice would be part of a reactive system but found no evidence this would have prevented the accident.

The court applied the balancing test from Tomlinson v Congleton BC, considering the likelihood and seriousness of injury, social utility of the car park, and the cost and practicality of preventative measures. It found the risk of ice was an obvious danger and that users were expected to take care. The cost and impracticality of gritting unmanned car parks on a reactive basis weighed against imposing a broader duty.

Regarding causation, the court noted the implausibility that a reporting and gritting system could have been implemented and completed in time to prevent the accident, given weather conditions and timing. It distinguished the case from Ward v Tesco, where the circumstances gave rise to a prima facie case of negligence, emphasizing that ice in an unmanned car park is a natural and expected hazard.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the Defendant was found not to have breached its duty of care under the Occupiers' Liability Act 1957 by operating a reactive system of dealing with icy conditions in unmanned car parks. The court confirmed that such a reactive system is reasonable and proportionate in the circumstances, and no breach arises from not implementing a proactive system requiring employees to report ice. The decision does not establish new precedent beyond affirming the application of established principles balancing risk, cost, and social utility in occupiers' liability claims.