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            Case law update: Occupiers Liability

            Date: 18/06/2012

            The team highlights two successful defences relating to claims under the Occupiers’ Liability Act 1957.


            Sunken manhole – grass verge - cyclist
            Pickering v North Tyneside Council and Northumbrian Water Limited [2012] Newcastle County Court


            Facts


            The Claimant was riding his mountain bike over a grassed area when he was thrown over his handlebars due to a sunken manhole cover in the grass. 


            Findings


            Judgment for the Defendants:



            • The primary defence was that the Claimant was not a lawful visitor under the Occupiers’ Liability Act 1957 and there was no breach if the Court found that the Claimant was not a lawful visitor. 

            • The Claimant admitted to travelling at high speed (around 15mph) having moved off the footpath due to the presence of pedestrians.  The Court held that it was unlawful for a cyclist to ride on the pavement and not recommended in the Highway Code and as such he should not have been there and should not have been riding at speed. 

            • As only pedestrians could lawfully use the footpath the Claimant was not a lawful visitor to it or the grassed area.  The Judge found that the ordinary use of the grass would be for pedestrians to step onto it but not for use by high speed cyclists. 

            • The Court went on to consider the sunken nature of the manhole cover but ultimately the decision was founded on there being no breach of duty on the grounds that the Claimant was not a lawful visitor to the grassed area.


            Comment


            This is a useful case for local authorities to argue that where a footpath and the adjacent grass verge is being used by cyclists they are not doing so as lawful visitors and as such the authority has no duty under s.2 Occupiers’ Liability Act 1957.


            For further information on the above case please contact John Thompson, Legal Executive, on 0191 233 9754 or atjohn.thompson@dwf.co.uk.


            Ice – car park - slip
            Belson v Solihull MBC [2012] Walsall County Court


            Facts


            The Claimant slipped on a patch of ice in a car park and brought her claim against the Defendant under the Occupiers’ Liability Act 1957.


            The court was required to consider:



            • Whether the Defendant had met the common duty of care under the Act.

            • Whether any breach of duty established was causative of the accident.

            • Whether the Claimant was guilty of contributory negligence.


            Duty


            The Defendant argued that the duty in question was not an absolute duty to eliminate all potential dangers but was qualified by considerations of reasonableness both in respect of safety of the visitor and the extent of the steps required to be taken by the occupier. The court also had to look at all the circumstances including but not limited to:



            • the knowledge of the occupier of the danger

            • the difficulty and expense of removing the hazard.


            The Defendant’s arguments were:



            • They had winter maintenance regimes, albeit not designed for all areas but for compliance with the obligations under the Highways Act 1980

            • The process of gritting was prioritised to main roadways and footways – if they did not do this, then it would increase the risks to the public.  This regime was in line with the National Code of Practice

            • The car park was not part of the highway and so there was no positive duty present under the Highways Act 1980.  Further it was not high amenity and did not meet the definition of high priority for gritting.  Other footways would only be treated in exceptional circumstances of severe weather.

            • The criteria for the gritting or salting of footways even on major carriageways and footways was not met on the day of the Claimant’s accident.  Weather conditions did not dictate that gritting was necessary or required.

            • It is unlikely that even if gritting was effected regarding low priority footways that this would have been done in time to prevent the Claimant’s accident.

            • It was subject to periodic inspections in relation to maintenance issues.

            • The Defendant relied on a reactive system whereby problems were notified by car park users – no such complaints had been made in this case at all.

            • It would not be practicable for gritters to grit and salt car parks because of the practicalities of access.

            • The winter regime is based upon a hierarchy in respect of roads and car parks and is based on the national Code of Practice

            • The amounts spent and the staffing requirements were significant in 2007 in which the Defendant spent around £318,000 annually on salting and snow clearing.


            Findings


            Finding in favour of the Defendant:



            • It was accepted that the Claimant was a reliable witness and that on a balance of probabilities the Claimant fell on ice on the surface of the car park. It was more likely than not that people fall over in icy/frosty conditions and that the Claimant was aware of those conditions. No contributory negligence would attach in these circumstances.

            • There was no evidence that the car park was the subject of previous complaints or that the Defendant had received complaints previously.

            • This car park did not have an off street car parking policy order and was one of the largest of three car parks in the area but nevertheless, was considered by the Defendant to be small.

            • The Defendant did not put forward a written policy in relation to car park maintenance or what had to be done in snow and icy conditions but based on the witness evidence, the Court accepted that the Defendant had directed their minds towards the issues as a matter of custom and practice. There was no requirement of itself for the local authority to have a written policy – they simply have to show that they were taking all reasonable steps. All of the 34 car parks in the Solihull Borough would have to be viewed as an entity. There was nothing to distinguish this car park from any of the others.

            • The judge accepted that the weather forecasts provided guidelines which were reviewed by the parking services department as a matter of custom and practice. There was a line of authority as to what should be done if there had been a policy in place (as with the highways) – those forecasts confirmed that the action should merely be “to monitor”.

            • The forecast would not have triggered the policy in any event.

            • It would not be reasonable to expect a local authority to grit and/or close 34 car parks in the context of a predicted weather forecast which merely indicated that hoar frost was expected with an average temperature of approximately -0.5°.


            Comment


            The recipe for success in this case centred around the factual evidence given by the Manager both in terms of the content of the witness statement and his confidence in delivering the evidence on the day.   The evidence covered each of the allegations pleaded and provided a reasoned response to each of them. It was important to ensure that his evidence did not step outside the realms of his own experience and venture into the policymaking process and the prickly issue of available funding/resources. 


            For further information on the above case, please contact Denise Brosnan, Partner on 0121 200 0415 or at denise.brosnan@dwf.co.uk.

            To view the rest of the articles in this Local Authority Brief, please click on the titles below:

            Costs Focus – Counting the Cost of Jackson
            Highways Focus: Potholes Review - Prevention and a Better Cure
            Regulatory Focus: HSE Prosecutions in the Public Sector
            Fraud Focus: Contempt of Court Proceedings
            Case Law Updates: Highways

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