The Claimant sustained injuries as a result of a fall in a car park adjacent to the Defendant’s Waitrose store in Ruislip in May 2015, as he returned to his car following shopping in the store. He hit his head and sustained multiple injuries with long-term effects. The claim was that the Defendant breached its duty of care under the Occupiers' Liability Act 1957 by failing to ensure the safety of the car park area.

The trial judge found that the Claimant had caught the top of the vertical part of a kerb adjacent to the parking space, the same having been demonstrated to the trial judge by the Claimant during evidence. 

The Car Park

The car park was owned by the London Borough of Hillingdon, and an issue was whether the Defendant had sufficient control over the premises to be considered an occupier under the Act.

Hillingdon received revenue from the Pay and Display system in the car park, emptied the bins and made repairs from time to time.

The Defendant had branding displayed in and around the car park and, at the time, advertised on the back of the parking tickets.  Steps were taken by the Defendant to keep staff safe in the car park, cones were placed over potholes, and gritting was undertaken by the Defendant when icy.

The Defendant had been aware of previous accidents at the location, but not informed Hillingdon of the same.

The trial judge and the first appeal judge found the Defendant was an occupier.  However, as a non-owner they did not owe a duty to make changes to the car park's layout or design (which was a matter for Hillingdon) and that, in any case, the kerb did not pose a significant danger. 

A ‘fundamental problem’ was that the Claimant knew of the presence of the kerb, he saw it and was trying to step onto it, an action described as one which people do ‘day in and day out’.  The danger was ‘obvious’ with no warning being required.

The claim was dismissed at first instance (HHJ Backhouse) and at the first appeal (Ellenbogen J).

The Court of Appeal considered the case as a second appeal.  The lead Judgment was given by Nicola Davies LJ, with whom the others agreed.

The Appeal

The Grounds for Appeal were:

1. The trial judge incorrectly limited the scope of the Defendant’s duty under section 2(2) of the Act to addressing only immediate hazards and reporting other issues to the car park owner, Hillingdon. The Claimant argued that the Defendant's duty extended to ensuring reasonable safety measures, including painting the kerb or preventing the use of the parking bay.

2. The High Court (appeal) Judge erred by interfering with the trial judge's findings that the disabled parking bay was an unreasonable danger to its intended users. An appellate court should not overturn a trial judge's factual findings unless they are plainly wrong.

3. Given the trial judge's finding that the parking bay was dangerous, the judge erred in law by concluding that the Defendant was only required to report the issue to Hillingdon without taking further steps.

4. The trial judge incorrectly found that reporting the hazard earlier would not have changed the outcome. The Claimant argued that proper reporting would likely have led to remedial action by Hillingdon.

5. Both judges erred by concluding that the accident was a true accident, thereby disregarding the Defendant's breach of duty. The correct test should have considered whether the Defendant's breach cause or contributed to the accident.

Findings on Appeal

1. The Court of Appeal found that the trial judge's limitation of the Defendant's duty to immediate hazards and reporting was reasonable based on the evidence presented. The risk assessment and control measures taken by the Defendant were adequate given their limited control over the car park.

2. It was agreed that the High Court judge should not have interfered with the trial judge's findings on the danger posed by the parking bay. However, this interference did not affect the overall conclusion that the Defendant's duty was limited.

3. The Court of Appeal upheld the finding that the Defendant was not responsible for painting the kerb or redesigning the parking bay. The responsibility lay with Hillingdon, and the Defendant's duty was limited to reporting hazards.

4. The Court of Appeal found that the trial judge reasonably concluded that earlier reporting of the hazard would not have led to a different outcome, given Hillingdon's response to similar issues.

5. The Court of Appeal agreed with the trial judge's finding that the accident was due to the Claimant's misjudgment rather than a breach of duty by the Defendant. The visible kerb was a known hazard, and the Claimant simply failed to navigate it safely.

Conclusion and Practice Points:

It follows that the appeal was not upheld and so the claim remained dismissed.

More than one occupier – not necessarily with the same duty

Practitioners should be aware that although there may be more than one occupier of a particular premises, it does not mean that the duty owed by each occupier is the same.

There is no duty to warn visitors of obvious dangers

 

That there is no duty to warn of ‘obvious dangers’ was reiterated in this case, despite the fact that cases are still sometimes run on this basis.