Cook v Swansea City Council

Under section 2(2) of the Occupiers’ Liability Act 1957, reasonable care depends on a balance between the likelihood and gravity of injury, the social value of the activity, and the cost of precautions. An occupier did not breach that duty by operating a reactive system for ice in an unmanned, exposed, 24-hour car park. The obvious nature of the risk, the absence of previous reports or accidents, the usefulness of continuous parking, and the disproportionate resource implications of regular manual gritting supported that conclusion.

The claimant, aged 78, slipped on black ice near a ticket machine in an unmanned pay-and-display car park operated by the council. The council had received freezing-weather warnings and gritted highways, but it did not pre-emptively grit unmanned car parks. Its system responded to reports of dangerous conditions.

His Honour Judge Vosper QC, sitting in Swansea County Court, dismissed the claimant’s claim for negligence and breach of section 2(2) of the Occupiers’ Liability Act 1957. The claimant appealed, principally contending that the council should have required cashiers and wardens to report ice and that the judge had erred on causation.

The central issue was whether the reactive system discharged the occupier’s common duty of care.

1. Appeal dismissed. The judge had found that the council was not in breach of duty. Although his reasons and post-judgment remarks could have been clearer, his conclusion that the reactive system discharged the duty to take reasonable care was express and sufficiently clear.

2. The judge’s observation that an employee-reporting system could prima facie have been implemented did not amount to a finding that the council ought reasonably to have adopted it. The evidence on that partly explored issue was incomplete. A finding of breach would also have required findings about when the reporting duty arose, what response it required, and its resource consequences.

3. Applying the balancing exercise described by Lord Hoffmann in Tomlinson v Congleton BC [2004] UKHL 47, [2004] 1 AC 46, the council’s system was reasonable under section 2(2) of the Occupiers’ Liability Act 1957. Ice in an exposed car park during cold weather was an obvious risk. There had been no previous reports or accidents at this car park. A 24-hour parking facility had social value, while closing, manning, or regularly hand-gritting the council’s unmanned car parks would require disproportionate resources and divert them from more urgent needs.

4. The breach issue disposed of the appeal. The court nevertheless observed that causation would also have failed: it was inherently implausible that, after ice formed overnight, an employee would have identified and reported the hazard, the council would have arranged manual gritting, and it would have been completed before the accident. Ward v Tesco Stores Ltd [1976] 1 WLR 810 was distinguishable because this was not a busy, supervised location with an unexpected substance on the floor.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal and upheld the dismissal of the claim: [2017] EWCA Civ 2142.
• County Court at Swansea: on 14 December 2015, His Honour Judge Vosper QC dismissed the claimant’s claim for negligence and breach of section 2(2) of the Occupiers’ Liability Act 1957.