John Lewis- never knowingly an occupier

The claimant, an 83-year-old man, sustained a serious injury following a trip and fall from a kerb in a car park, belonging to the local authority but John Lewis, the defendant, was also considered to be a joint occupier, albeit not liable for the accident.

Executive summary

The High Court confirmed that whilst the defendant were a joint occupier of the car park with the local authority, they were not liable for what was considered to be a “true accident”.

The facts

The claimant sought damages for personal injury arising from a trip and fall in a car park adjacent to the Waitrose store in Ruislip on 17 May 2015.

The claimant, an 83-year-old man, attended the car park with his wife, who drove their vehicle and parked in a disabled parking bay. The alleged accident occurred upon the claimant and his wife returning to the vehicle. The claimant alleged that, whilst he was putting shopping away in the boot of the vehicle, he tripped on a kerb next to the disabled parking bay and fell. In falling, he had hit his head, suffering a fractured wrist, maxillofacial injuries, a traumatic brain injury, a subdural haemorrhage and long-term consequences.

London Borough of Hillingdon (“LBH”) was the owner of the car park. They collected the revenue from the pay and display system, emptied the bins in the car park and undertook repairs from time to time.

The defendant had no licence relating to, or other legal interest in, the car park; its customers, in common with those of stores on the local high street and people visiting a nearby GP surgery, used the car park. The defendant refunded its customers for up to two hours’ parking, which cost £1.50. Its branding was displayed in and around the perimeter of the car park and, until approximately 2017 or 2018, it paid LBH to advertise on the back of the parking tickets.

The claimant did not bring a claim against LBH. The claimant brought a claim against the defendant only. It was the claimant’s case that the defendant was an occupier of the car park under the Occupiers Liability Act 1957 (“the OLA”), the defendant owed the claimant a duty of care and the defendant had breached its duty causing him to trip on a kerb and suffer injury.

The case went to trial on liability only. The defendant denied liability putting the claimant to strict proof that the kerb had caused the fall, denying that it was an occupier of the car park and also that the kerb posed a danger.

HHJ Backhouse found that:

The accident had been caused by the claimant catching his foot on the face of the kerb;

Although the defendant had sufficient control to be an occupier of the car park, that control was limited to dealing with immediate hazards within it and reporting matters to the local authority. It was not entitled or required to paint the kerb, or to prevent the use of any particular bay, including the one in question, neither was it entitled or required to make any long-term or structural changes in the car park;

The design of the parking bay, including the presence of the kerb to the left of it, was an unreasonable danger for the class of visitors using that bay, namely the disabled, in breach of section 2(2) of the OLA.

The claimant’s injuries arose from what was, simply, a true accident, and nothing the defendant had done, or failed to do, had caused it.

The claimant’s claim was dismissed and the claimant was ordered to pay the defendant’s costs, the latter not to be enforced without further order from the court.

High Court judgment 30 September 2022

The appeal was heard before Mrs Justice Ellenbogen.

The claimant appealed HHJ Backhouse’s decision on four grounds,  said to raise mixed issues of facts and law:

1. The judge had erred in limiting the defendant’s duty under section 2(2) of the OLA to dealing with what she described as “immediate hazards” within the car park and reporting matters to LBH.
2. Having made a finding of fact that the defendant ought to have known that the disabled parking bay represented an unreasonable danger to its intended users, the judge had erred in concluding that the defendant had not been expected to take any steps other than reporting to LBH;
3. Having concluded that the defendant was in breach of its duty to report the presence of the unreasonable danger to LBH following previous accidents in 2012, 2013 and 2014, the judge had erred in finding that proper compliance with that duty would have made no difference to whether the parking bay would have remained in that unreasonable dangerous state; and
4. The judge had erred in concluding that the claimant’s accident had been an “accident in the true sense of the word”, thereby disregarding any contribution to its occurrence made by the defendant’s breach of duty.

The defendant sought to uphold the judgment for the reasons given by the judge or, alternatively, on the basis that she had erred in:

1. Determining that it was an occupier for the limited purposes of reporting issues with the car park to LBH; and
2. Finding that the kerb posed an unreasonable danger, such as to constitute a breach of section 2 of the OLA.

Was the defendant an occupier?

The test for whether a person was an occupier was whether they had a sufficient degree of control over the premises to put them under a duty of care towards those who lawfully came onto the premises (Wheat v E Lacon & Co Ltd [1966]).

The judge had been right to find that the defendant’s control of the car park encompassed dealing with immediate hazards, putting in place interim measures to deal with hazards, and reporting issues to LBH, and that its control did not extend to painting kerbs, to the making of any long-term or structural changes, or to preventing use of any particular parking bay, other than on a short-term basis. The judge was wrong, however, to have excluded from the defendant’s control the ability to put up warning signage where necessary and to reiterating, with reasonable frequency, any concerns regarding issues which has not been attended to by the local authority. The defendant was a joint occupier of the car park.

Defendant’s duty of care

As an elderly user and the husband of a disabled person, albeit not disabled himself, the claimant was within the category of persons who might reasonably have been expected to use the particular parking bay. However, the size of the bay and the presence of the kerb would be obvious to a user entering it.

The claimant and his wife had used the parking bay before, without encountering any difficulty. The kerb itself was not of abnormal height, defective, or in a state of disrepair. The kerb stones were lighter in colour. In such circumstances, neither the presence of the kerb nor its proximity to a car parked in the bay constituted a trap, nor was the kerb situated where a user of the bay would not expect it to be.

It followed that the defendant came under no duty to warn visitors, including the claimant, of the danger identified by the judge. The danger was obvious, the visitor would be able to appreciate it and was free to do what was necessary for their own safety; no warning was required. The degree of risk was not sufficient to trigger section 1(1) of the OLA.

Cause of accident 

The claimant had been aware of the kerb and had fallen when he caught his foot on it. Neither the danger as identified by the judge nor the breach of any duty by the defendant had caused the accident. It followed that the judge had been right to conclude that it had been a "true accident" to which no breach of duty on the part of the defendant had contributed.

Conclusion

It follows from the above that:

1. Ground 1 appeal: the judge rightly concluded that the defendant was an occupier but erred in her framing of the nature and extent of the common duty of care which the defendant owed to visitors to the car park;
2. Ground 2 appeal: the judge unreasonably found as a fact that the parking bay posed a danger to its intended users which was other than obvious. Accordingly, the defendant’s common law duty of care did not require that it take any steps to see that a visitor to the bay would be reasonably safe in using it for the purposes for which he was invited or permitted by the occupier to be there. In particular, there was no duty to warn visitors or to report the danger identified by the judge in this case to LBH;
3. Ground 3 appeal: in light of the judge’s conclusions as to ground 2, ground 3 fell away;
4. Ground 4: the judge was right to conclude that the claimant’s accident had been a “true accident” to which no breach of duty on the part of the defendant had contributed;
5. The issue of contributory negligence by the claimant did not arise for consideration.

Commentary

This is an interesting decision on the applicability of the Occupiers Liability Act 1957. This case sets out the test for whether a person was an occupier and whether they had sufficient control over the premises to put them under a duty of care towards those who lawfully came onto the premises.

Prior to this case, would you have considered John Lewis as a joint occupier of a car park owed by the local authority? A car park which John Lewis had no licence relating to, or any other legal interest? A car park which was also used by customers visiting stores on the local high street and a nearby GP surgery?

It is very likely that many shop owners up and down the country are completely unaware that they could be considered as joint occupiers for car parks that they do not own but which their customers use.

Shop owners are likely to be considered as joint owners if they dealt with immediate hazards, put in place interim measures to deal with hazards and reported issues to the local authority/landowners. The duty also extends to shop owners putting up warning signs, where necessary, and to reiterate with reasonable frequency, any concerns regarding issues which have not been attended to by the local authority.

So whilst the case was a win for John Lewis on these facts, it flags up the potential for liability to be established against a non-owner occupier, particularly if it was found that a defect was present.