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Occupiers Liability Act - reactive is reasonable

11 January 2018

In the case of Ivor Cook v Swansea City Council 2017 the claimant slipped on ice in an unmanned car park owned and operated by a local authority which had not been gritted.

The local authority did not grit unmanned car parks and instead operated a reactive system, relying instead on reports from members of the public.

The claimant argued that this reactive system was not sufficient and his accident would have been prevented if council employees who attended the car park (to empty ticket machines or check tickets on cars) were required to report the icy conditions.

The court at first instance found that the reactive system in place was sufficient. The claimant appealed.

The Court of Appeal noted the duty under s2(2) of the Occupiers Liability Act 1957 which is to take reasonable steps to ensure the reasonable safety of visitors.

In considering what is ‘reasonable’, a balancing exercise has to be carried out as set out by the House of Lords in the case of Tomlinson v Congleton BC (2003). The exercise involved:

  • an assessment of the likelihood that someone might be injured
  • the seriousness of any injury that might occur
  • the social value of the activity giving rise to the risk
  • the cost of preventative measures.

The Court of Appeal considered all of these factors in turn.

  • likelihood of injury: the risk of ice in cold weather was an obvious danger. There is no duty to warn against obvious dangers (as per Tomlinson). People could reasonably be expected to take care. This car park did not pose any particular risks and there had been no previous reports of accidents or dangerous conditions such that the council were on notice.
  • seriousness of any injury that might occur: injury from a slip could be either trivial or serious.
  • social value: the local authority’s car parks provided 24 hour parking. If gritting was required the council was likely to close unmanned car parks in periods of adverse weather which would therefore lose a valuable social amenity.
  • cost of preventative measures: car parks would either need to be manned or regularly gritted. Gritting would need to be done by hand which would use significant resource that was disproportionate to the risk.

Having applied the balancing factors, the Court of Appeal maintained that the reactive system was reasonable and dismissed the claimant’s appeal.

The decision simply applies well established principles but is a reminder of the importance of applying them on a step by step basis. The case has broad application and can serve as reassurance that in Occupier Liability Act cases the threshold can be met by a reactive system, so long as the balancing exercise (risk v benefit) can be met.

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