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Some limits to liability for accidents caused by slipping on ice

The recent Court of Session case of Alan Cairns v Dundee City Council [2017] CSOH 86 makes for interesting reading for occupiers of outdoor premises who have concerns about their potential liability for any accidents which arise on their premises as a result of icy weather.

Background

The pursuer wanted to recover losses for injuries he suffered as a result of a fall caused by him slipping on ice in a car park run by Dundee City Council on a Saturday morning in December 2012. 

He claimed that the Council had breached its duty (which arose because the Council were the occupiers of the car park) to take action to prevent him, or indeed others, from suffering an injury because of the danger caused by ice in the car park. The pursuer argued that the Council's alleged breach occurred because it did not have in place a system for the detection and treatment of any ice present in the car park on Saturdays.  He claimed they should have a system where inspection and treatment of any ice was carried out before local shops opened at 9am or 10am.

Evidence was given to the judge by a Council employee that gritting of each Council car park would be carried out by the employee, if required, when he attended the car park to carry out the collection of cash from parking meters, emptying litter bins and various maintenance tasks.  Although he worked on weekdays and overtime on most Sundays he did not work Saturdays.  He was responsible for carrying out this role in relation to all 28 of the Council's car parks and so did not attend each car park every day. He thought he would have attended the car park in question on Wednesdays.

The court's decision

There were two questions for the court to consider. The first was whether it was reasonable in the circumstances for the Council not to have a system in place for ice detection and treatment on Saturdays.  The second was whether such a system would have prevented the pursuer's injuries had it been in place.

The pursuer was not successful in his claim. 

With regard to question about whether a system should have been in place, the judge concluded that the system proposed by the pursuer would mean that requirements for Saturday mornings would be more stringent than on weekdays.  He considered that there was a failure to acknowledge the resource implications that such a system would have, the impact being that the Council would have to provide cover for all 28 car parks each Saturday morning when there was a risk of ice.  It was a matter for a local authority to determine how its employees were deployed and the court should be reluctant to trespass into questions of prioritisation and allocation of resources.

The pursuer was therefore also unsuccessful in relation to the question of whether a system would have prevented his injuries.  The judge also commented that, as it had not been established when the patch of ice which the pursuer slipped on was actually formed, he could not determine whether it would have been gritted before the pursuer's accident.

A further point raised before the court was the fact that a warning sign had been erected in the car park at the start of this year which stated that the ground might not have been gritted in icy conditions.  The pursuer tried to argue that if he had seen such a sign at the time of his accident he would have taken a different route.  However the judge was also not persuaded that the Council were in breach of a duty at the time of the pursuer's accident because no such sign was in place then.  He took the view that the sign was in effect a statement of the obvious and the duty of care which applied to the Council also did not require them to put up a sign in these terms.

Comments

The judge's comments that the court may (a) be reluctant to intervene to find that a public authority should have allocated its resources in a different way, and (b) take resource implications into account when considering whether a particular system which is proposed should have been implemented, will be welcomed by public authorities. This case also confirms that it may be very difficult to argue that an occupier is in breach of a duty as a result of a failure to have a warning sign in place if the sign which is alleged to be required would simply have been stating the very obvious.