Shopper’s £125,000 damages claim against council over black ice fall fails

Alan Cairns suffered “life-changing” injuries as a result of the accident on Saturday 1 December 2012 in Queen Street car park in Broughty Ferry and argued that the failure by Dundee City Council to have a procedure in place for checking car parks on Saturdays was a breach of their “duty of care”.

However, a judge in the Court of Session ruled that the pursuer had failed to establish his case and assoilzied the defenders.

Significant hazard

Lord Woolman heard that on the morning of the incident the pursuer, 59, had to de-ice his car before driving from his home in Monifeith to go shopping in Dundee.

He then drove to Broughty Ferry to visit a local butcher’s shop and parked his car in Queen Street car park, which was “quite busy” with shoppers.

As he walked through the car park Mr Cairns suddenly lost his footing and his feet went “straight up in the air as if he was in a comedy film”, but the consequences were far from comic.

Lord Woolman said: “Black ice is treacherous. It presents a significant hazard to individuals and vehicles. Unfortunately, Alan Cairns found that out.”

He landed heavily on his left rear trouser pocket, sustaining serious injuries that kept him off work for several months and have had long term effects.

As Mr Cairns lay on the ground after the accident he realised that he had slipped on a patch of black ice, which he estimated was about 10 feet by 10 feet in extent.

Other shoppers came to his assistance and Mr Cairns said they also found it difficult to keep their feet.

Even paramedics who arrived at the scene in response to a 999 call, who were both wearing footwear with good grips, found the surface to be slippery.

The court also heard evidence from two council employees: Maurice Fleming, one of the two maintenance assistants in the parking department who had worked for the council for 30 years; and his boss, Paul Zarembski, a car parking officer – neither of whom could recall a slipping incident at Queen Street car park prior to Mr Cairns’ accident, although they had both heard of occasional incidents in other car parks.

Mr Fleming, who worked on weekdays from 6.15am until 2.45pm and did overtime most Sundays from 7am to 1pm, said his daily routine involved collecting cash from the pay machines and that he would follow set routes each day, which meant he did not visit all 28 of the council’s car parks on a daily basis.

On his drive to work he would observe the weather conditions and in winter he checked whether the gritter lorries were out.

If Mr Fleming thought it appropriate, he carried out gritting when he collected the money from the car parks, using a scoop to grit the ground with salt from the bins.

Occupiers’ liability

The pursuer’s claim was based on section 2(1) of the Occupiers’ Liability (Scotland) Act 1960.

Damages were agreed at £125,000, but the council denied liability.

On behalf of the pursuer it was submitted that the absence of any regime or system on Saturdays was a breach of the council’s duty.

It was argued that a reasonable system would have involved detection and treatment before the local shops opened at 9am or 10am.

But the judge observed that if correct, that would mean that the system on Saturdays would have been “more stringent” than that on weekdays, where Mr Fleming might not have visited Queen Street car park until after 10am.

It also failed to acknowledge the “resource implications” as such a system would mean that the council would have to provide cover for all 28 car parks each Saturday.

The court held that it was a matter for the local authority to determine “when and where” to deploy its employees.

Decision

In a written opinion, Lord Woolman said: “The court is reluctant to trespass into this area, which involves questions of prioritisation and allocation of resources. I conclude therefore that the pursuer has not made out his case in terms of the 1960 Act.

“The question of when the black ice formed in the Queen Street car park is a matter of speculation. I cannot conclude whether it would have been gritted before the accident. It depends on the system implemented. Accordingly, I also hold that Mr Cairns fails on causation.”

The court was told that since the beginning of this year there has been a warning sign at the entrance to the car park, which states that the ground may not have been gritted in icy conditions.

Mr Cairns claimed that if he had seen such a sign, he would have gone another way.

“In my view, however,” Lord Woolman added, “the duty of care did not extend to erecting a warning sign. Its content was in effect a statement of the obvious. I therefore hold that the pursuer has not established his case.”