Demised property, the Occupiers Liability Act 1957 and PI claims

North Lincolnshire Council recently successfully defended a personal injury claim brought by a claimant who slipped at a pay and display car park the local authority owned but had demised. Toby Coupe explains how.

Shortly after 7.30 am on 16 January 2018 the Claimant (‘C’), who was attending work at the Ironstone Centre in Scunthorpe, parked her car on a pay and display car park (‘the car park’) owned by North Lincolnshire Council. Having purchased a ticket and placed it in her car, C began walking across the car park towards the Ironstone Centre and slipped on what the Judge found to be ice, in an area of the car park which had been demised to NHS Property Services (the occupiers of the Ironstone Centre) between 7.30 am and 7 pm on weekdays, pursuant to the terms of a lease entered into in 2013 (‘the lease’).

C suffered a severe fracture dislocation of her right ankle and underwent a number of operations, including insertion of a spinal cord stimulator, alleging that she had developed CRPS. C issued a claim against her employers, North Lincolnshire and Goole Hospitals NHS Foundation Trust (‘D1’), which was discontinued prior to the first CCMC in the case, NHS Property Services (‘D2’) and North Lincolnshire Council (‘D3’).

C’s case was that she had fallen in car parking spaces (‘the spaces’) demised to D2, which D3 had marked out using green paint. C alleged that the green paint used by D3 had caused the spaces to become more slippery in inclement weather. She further alleged that D2 and/or D3 should have gritted the car park and were liable to her under the Occupiers Liability Act 1957 (‘the 1957 Act’) and/or in negligence.

D2’s case was that, notwithstanding the terms of the lease, it did not exercise sufficient control over the spaces to be considered an occupier for the purposes of the 1957 Act and, in any event, was not in breach of any duty owed under the 1957 Act or in negligence.

D3’s case was that it was not an occupier of the area of the car park where C had fallen, because at all material times it had been demised to D2 under the terms of the lease and whilst it did occupy the rest of the car park, the accident had not occurred in the area in respect of which D3 owed the common duty of care under the 1957 Act. Further, pursuant to D3’s winter services programme, it did not (at that stage) grit the car park and to impose such a duty on D3 would be unreasonable, in reliance upon the case of Ivor Cook v Swansea City County [2017] EWCA Civ 2142 (‘Cook’).

Following a liability only trial listed for 4 days in the County Court at Kingston-Upon-Hull before Recorder Cameron (‘the Judge’) at which lay and expert evidence was called, the Judge found that:

• C had fallen on ice in the spaces as alleged;
• The presence of the green paint made no material difference to the slipperiness or otherwise of the surface of the car park;
• For grit to be effective by shortly after 7.30 am, it would have to be laid by shortly after 6.30 am;
• At all material times, the spaces were occupied solely by D2 pursuant to the terms of the lease and D2 therefore owed C the common duty under the 1957 Act;
• D2 had a policy in place whereby it gritted the areas surrounding the Ironstone Centre, but not the demised areas of the car park. D2’s witnesses accepted that NHS car parks are routinely gritted, however, the spaces had not been gritted because of an erroneous understanding of the terms of the lease;
• Applying the non-exhaustive list of factors identified by Lord Hoffman in Tomlinson v Congleton BC [2004] UKHL 47 (‘Tomlinson’), as reviewed by the Court of Appeal in Cook, the cost of gritting the spaces would have negligible and D2 should have done so, such that they had breached their duty of care under the 1957 Act;
• D3 was not an occupier of the area of the car park where C had fallen and owed no duty under the 1957 Act in respect of the same;
• D3 was following a Winter Services Programme, which prioritised primary gritting routes, based on criteria set out within the programme (‘D3’s system’). D3’s system was working at all material times, because the primary routes were gritted twice during the night before the accident;
• At all material times, D3 did grit some car parks, albeit they tended to be large and short stay car parks and locations where there was greater footfall and therefore more risk;
• D3’s system had changed following the global pandemic, such that all car parks were now gritted, however, that policy change was brought about by the use of a number of vaccination centres in the area (including the Ironstone Centre) and a consequential increased foot flow, which caused D3 to purchase new machinery enabling it to grit smaller car parks and illustrated a well thought out and flexible response by D3;
• D3’s policy in 2018 was justifiable and it would unreasonably onerous for the Court to now conclude that gritting should have been taking place in the car park, such that there was no breach of duty in negligence by D3.

In light of the above detailed findings, the Judge gave judgment for C against D2 (for an amount to be determined), dismissed the claim against D3 and ordered D2 (who had denied being an occupier of the spaces and blamed D3 throughout) to pay both C and D3’s liability costs, pursuant to a Sanderson order. 

Toby Coupe is a barrister at Kings Chambers. He was instructed on behalf of North Lincolnshire Council by Janine Ward of Zurich Insurance and Tim Smith of Forbes Solicitors.