Fernquest v City & County of Swansea

Foreseeability of harm is necessary but insufficient for a duty of care. The court must also find sufficient proximity or neighbourhood and that imposing the duty is fair, just and reasonable. A park-and-ride operator did not owe passengers a duty to warn, before boarding, of a common icy hazard near a destination bus stop where it had not created or occupied the hazard, was not the carrier, and was not responsible for highway safety. The journey had ended before the accident. In those circumstances, a warning duty would be a considerable extension of negligence liability and was not justified. The appeal was allowed.

Mr Graham Fernquest slipped on ice on the pavement shortly after alighting from a park-and-ride bus near St Mary’s Church, Swansea. He claimed against the Council under section 41(1)(a) of the Highways Act 1980 and in negligence. HHJ Vosper QC held that the statutory claim failed and that continuing the bus service was not negligent, but found a negligent failure to warn passengers of the ice before boarding. The Council appealed that finding. The bus was operated by First Cymru, while the Council operated the scheme. The central issue was whether the Council owed a duty to warn of a destination hazard known to it before the journey began.

1. Appeal allowed. The Council was not in breach of a duty of care by failing to warn Mr Fernquest, before boarding, of ice near the destination bus stop.
2. The court applied the duty-of-care formulation in Caparo Industries Plc v Dickman [1992] AC 605 at 617. The risk and resulting injury had to be foreseeable, but foreseeability alone was insufficient. The relationship also required proximity or neighbourhood, and the imposition of the duty had to be fair, just and reasonable.
3. Although the hazard was foreseeable and had been foreseen by the Council, the proposed duty was not justified. The Council had not created the ice or occupied the highway. It was not responsible at common law or under the Highways Act 1980 for the safety of the highway. The bus was operated by First Cymru, and the Council had no continuing contact with the passenger after boarding. Those matters reduced the relevant proximity and made a continuing responsibility for safety difficult to justify.
4. The ice was a commonplace winter hazard of which road users could reasonably be expected to be aware and against which they could take care. Imposing a duty to warn at the commencement of the journey would therefore be excessive and would extend negligence liability considerably. Lord Justice Pitchford reached the same conclusion, while making clear that the decision did not determine whether warnings might be required in exceptional circumstances. Lord Justice Laws agreed with Lloyd Jones J’s reasons.
5. The court did not decide whether First Cymru owed a duty to warn while passengers were alighting. It observed that any such duty would have been discharged by the driver’s warning to passengers.

1. Court of Appeal (Civil Division). The Council’s appeal was allowed, and the finding of negligent failure to warn was overturned: [2011] EWCA Civ 1712.
2. Cardiff Civil Justice Centre. HHJ Vosper QC rejected the claim under section 41 of the Highways Act 1980 and held that continuing the park-and-ride service was not negligent, but found the Council liable in negligence for failing to warn passengers of the icy conditions before boarding.