Unmanned Car Park

January 2nd, 2018 by James Goudie KC

In Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal upheld a finding that the Council had not breached its duty under the Occupiers’ Liability Act 1957 to take reasonable care to ensure that visitors would be reasonably safe when using in icy conditions an unmanned car park, owned and operated by the Council, and had not been negligent.  The Car Park in question is one of 46 car parks operated by the Council. 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 Council’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 Council 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.

The Council’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 Council receives daily.

The Council had received warnings that the temperature would drop below freezing over the night in question. It had accordingly sent out gritting lorries in the early hours 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. 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.

Hamblen LJ, with whom Longmore and Henderson LJJ agreed, said:-

“29.      … I conclude that the judge found that there was no breach of duty.

  1. 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.
  2. 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.”

“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.
  1. These are compelling reasons for upholding the judge’s decision that there was no breach of duty ,…”

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