When the trial judge and the appeal judge take opposing views, but still reach the same decision
What happened?
An 83 year old man had been shopping with his wife, who was disabled, at Waitrose in Ruislip, Middlesex in May 2015. They had parked in a disabled bay, but when returning to the car, he tripped over the curb, fell, and sustained a fractured wrist, facial injuries and a traumatic brain injury.
The car park was owned by the local authority, but the man claimed that the John Lewis Partnership, who operate Waitrose, ‘occupied’ the car park under the Occupier’s Liability Act 1957, and they had breached its duty of care.
Legal Outcome
The trial judge ruled that the car park’s design, including the location of the kerb, was an unreasonable danger for the users of that bay, the disabled, and did breach the Act. They ruled, however, that the supermarket’s control was limited to dealing with immediate hazards and reporting these matters to the local authority. The supermarket was not required to make any structural changes, cordon off bays, or paint the kerb to make it more visible. The judge ruled that nothing they had done, or failed to do, had caused the accident.
The claim was dismissed, but the decision was appealed.
At the appeal, the judge said that the trial judge was wrong to exclude the supermarket’s role in putting up warning signs for any issues, such as the kerb. The appeal judge then ruled that the presence of the kerb and the size of the bay were obvious to any user of it, the man and his wife had parked there on previous occasions without problems, and they were aware of the kerb. It was not in a state of disrepair or an abnormal height, and its presence and proximity to the bay was not unusual. There was no duty to warn visitors, as it was obvious.
The appeal, in January 2023, was therefore dismissed.
What can we learn from what happened?
This is the kind of case that on the one hand is interesting, but on the other hand doesn’t really help people with responsibilities for managing this kind of risk. The trial judge and the appeal judge reached the same decision, but took opposite views of the key points – the trial judge said the kerb posed a particular risk, but said it wasn’t the job of the supermarket to do anything about it. The appeal judge then said the supermarket did have a role, but the kerb was fine. The appeal judge is more senior, so we assume that his/her decision is the more informative.
A key learning point from this case for operators of buildings with a car park is to know who ‘owns’ it, and also who is responsible for managing its safety. In this case, the supermarket did not own the car park, but it was used for their customers, so they still ‘occupied’ it. And as is often the case, when there are two or more parties involved, everyone needs to communicate with each other.
Source of Information
IOSH Magazine