Case No: B3/2011/1241
Neutral Citation Number: [2011] EWCA Civ 1712
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
HHJ Vosper QC

Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

Date: Friday, 2nd December 2011

Before:

LORD JUSTICE LAWS
LORD JUSTICE PITCHFORD
and
MR JUSTICE LLOYD JONES

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	FERNQUEST 	
Respondent	
	
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CITY & COUNTY OF SWANSEA	

Appellant	
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(DAR Transcript of 
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Mr Petts appeared on behalf of the Appellant.

Mr Thomas appeared on behalf of the Respondent.

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Judgment

Mr Justice Lloyd Jones:

1.	On the morning of 10 December 2008 Mr Graham Fernquest, who was then 67 years of age, drove from his home in Briton Ferry to the park and ride car park in Fabian Way, Swansea where shortly after 10.00am he took the park and ride bus to the centre of Swansea.  He alighted at the bus stop by St Mary’s Church.  He walked only a few paces until, as the judge found, only just outside the area of the bus shelter he slipped on ice on the pavement, fell, and fractured a bone in his left hand and tore the ligaments.  Mr Fernquest brought proceedings in the Swansea County Court against the City and County of Swansea (“the Council”).  

2.	There were two principal heads of claim.  First, he sued for breach of the Council’s duty as the relevant highway authority under section 41(1)(a) of the Highways Act 1980.  Secondly, he sued in negligence on the basis of the Council’s role in the operation of the park and ride service.  The claim under section 41 failed.  HHJ Vosper QC held that the Council had adopted a proper scheme to ensure that important highways were gritted before less important highways, and found that there was no breach of the duty under section 41.  Furthermore, he considered that any duty owed in negligence would be co-extensive with the duty under section 41, and failed for the same reason.  There was no appeal against that part of the decision.

3.	The second head of claim is based on the Council’s operation of the park and ride service, and that can be further divided into, first, Mr Fernquest’s case that the service ought to have been stopped that morning because of icy conditions at St Mary’s Church, and secondly his case that the Council ought to have warned him before he got onto the bus there was ice on the pavement near St Mary’s Church.  The judge concluded that it was not negligent of the Council to continue to operate the park and ride service in the prevailing weather conditions.  He considered that that was going too far.  It was possible for pedestrians with care to avoid slipping.  There is no appeal against that conclusion.

4.	However, the judge considered that it was not in any way unfair, unjust or unreasonable to expect the Council to warn passengers of the presence of the ice, and he held that in failing to warn passengers before they boarded the bus of the icy conditions at St Mary’s Church the Council was in negligent breach of a duty of care owed to the passengers, including Mr Fernquest.  It is that conclusion which is challenged on this appeal.

5.	The park and ride scheme was operated by the Council.  The Council was the owner and occupier of the car park at Fabian Way.  Users of the service paid a fee to the council to park there, and they were then entitled to use a free bus service running between the car park and Swansea city centre.  The bus stop outside of St Mary’s Church is either the principal, or one of the principal, stops at which people alighted at the city centre.  The bus itself was not operated by the Council, but was operated by First Cymru, a separate body.

6.	That morning Mr Casey had been driving a circuit on this route since about 7 o’clock.  It was a cold morning; the roads had been gritted.  He saw that people were having trouble because of slippery surfaces on parts of the highway.  In fact, outside St Mary’s Church, at a point just to the right of the bus stop, he saw an elderly gentleman fall and strike his head.  Mr Casey went to his assistance.  He had also seen a person riding a bike fall from it a little distance away, about 300 yards away from the bus stop.  On his return to the park and ride car park Mr Casey asked Mr Stephen Lewis, the Council’s attendant at the car park, to make a telephone call to the highway department to report the ice adjacent to the bus stop.  Mr Lewis made that call.  The judge found that the call was made at about 9 o’clock that morning.

7.	Mr Fernquest boarded Mr Casey’s bus shortly after 10 o’clock and arrived at St Mary’s Church at about 10.25am.  As he was getting off the bus his evidence was that he was aware that Mr Casey was saying something to him.  The judge found that it was likely that Mr Casey was warning the claimant about the ice adjacent to the bus stop.  In fact, the evidence was Mr Fernquest did not hear what was being said, possibly because he was suffering from hearing loss in one ear.

8.	The submission below on behalf of the claimant was essentially that there was a duty owed by the Council to users of the park and ride scheme not to deliver them into an area of danger, or at least not to do so without giving a warning beforehand.  On behalf of the Council it was submitted that it would not be fair, just or reasonable to impose upon the Council as the operator of the park and ride system a duty which was that extensive.

9.	In considering whether the Council owed a duty of care to Mr Fernquest in these circumstances, the judge referred to the well-known formulation in the speech of Lord Bridge in Caparo Industries Plc v Dickman [1992] AC 605 at page 617.  Judge Vosper considered that the Council, through Mr Lewis, knew of the danger presented by the ice close to the bus stop by 9 o’clock that morning and also knew that it was not going to be able to deal with the ice promptly in its capacity as highway authority.  Therefore the Council was aware, he concluded, that the ice was going to remain in position, constituting a slipping hazard.  The claimant was paying for the service which was to be provided, not only at the car park but also the service of delivering him by bus and depositing him near St Mary’s Church.  The judge observed that he could not see that it was in any way unfair, unjust or unreasonable to expect the Council to warn passengers of the presence of ice.  The burden which would be imposed upon the Council by such an obligation would be minimal and it would have been possible very easily to put up a sign warning of the presence of the ice.  He considered that given the relationship between the Council as provider of a park and ride service and the claimant as a person paying for it, given the knowledge of the Council to the presence of the hazard, and given that the claimant unless warned was wholly unaware of that hazard, that in those circumstances there existed such proximity or neighbourhood between the parties as to give rise to a duty of care.  He also found that the risk of injury was plainly foreseeable. 

10.	On this appeal the principal issue which has been argued has been a challenge to the judge’s conclusion that the duty of care extended to this particular situation.  It is of course a prerequisite of the existence of a duty of care that the risk, and damage resulting from that risk should it materialise, must be foreseeable.  In this case there was knowledge of the hazard at the bus stop communicated to the Council’s employee, Mr Lewis, at the park and ride car park.  In the circumstances of this case the hazard was not only foreseeable but it had been foreseen.  

11.	However, as Lord Bridge’s formulation in Caparo makes clear, foreseeability alone is not sufficient to give rise to a duty of care.  The relationships in which the law imposes such a duty are characterised by proximity or neighbourhood; moreover, the duty will be imposed only where it is fair, just and reasonable to subject one party to such a duty for the benefit of another.  Case law has defined many instances in which such a duty is owed; qualifying relationships reflect the policy of the law.

12.	Mr Petts, on behalf of the Council, submits that the judge’s conclusion goes beyond any existing authority on the duty of care owed to passengers, and is an unwarranted extension of the ambit of a bus operator’s duty of care.  The fact that there may be no previous case which goes this far is not necessarily conclusive; the categories of case giving rise to a duty of care are not closed.  However, the absence of any authority supporting such a duty may indicate that the policy of the law has not considered it fair, just or reasonable to impose such a duty.

13.	It is significant here that the Council had not created the hazard, nor was it in occupation of the place where the hazard was situated.  Furthermore, the judge had found that the Council was not liable at common law or under the Highways Act for the safety of the highway.  Rather, the judge’s reasoning, as we have seen, turned not on its status as local authority, but on the fact that it operated a park and ride scheme.  The duty on which the judge founded his decision was, he said, one which would also be owed by a commercial organisation operating such a scheme.

14.	To hold carriers liable in negligence for a failure to warn their passengers of dangers at the destination of which the carriers are aware would, to my mind, impose on them a very considerable burden.  Here I note that this case is not about a failure to warn of a hazard which might be encountered during the carriage or in the course of alighting from the vehicle, but one which might be encountered after the journey was completed.  The ice on which Mr Fernquest slipped was very close to the bus stop, but his journey had been completed by the time he slipped.  To say that bus companies should be liable to compensate passengers who fall near bus stops shortly after alighting because of ice on the pavements of which the bus company had knowledge but of which it failed to warn its passengers before boarding would, to my mind, be a considerable extension of liability in the tort of negligence.

15.	Moreover, in the particular circumstances of this case it would be one which would be difficult to justify.  Here I have in mind the nature of the hazard.  It is possible to postulate many extreme examples which may have a bearing on the question whether it is fair, just and reasonable to impose such a duty of care.  In the present case the hazard resulted of course in serious injury to Mr Fernquest, and I do not seek to minimise that.  But it was not a particularly unusual hazard.  On the contrary, it was one of which members of the public could have been expected to be aware, and against which they could have been expected to be on their guard that morning.  I note that it was Mr Fernquest’s evidence that the morning of the accident was part of a cold snap, and he knew that the gritters had been spreading salt over the road.

16.	A further relevant consideration here is that the Council was not itself the carrier which had delivered Mr Fernquest to St Mary’s that day.  The precise details of the commercial arrangements relating to the park and ride scheme were not in evidence in the court below.  However, it is clear, and the judge found, that the bus service was operated not by the Council but by First Cymru.  This makes the relationship between the Council and Mr Fernquest that much more remote.  Once Mr Fernquest had boarded the bus at the park and ride car park and the bus had set off, the Council and its employees and agents were no longer in contact with Mr Fernquest, and that no doubt is why it is said that the Council’s negligent breach of duty arose from its failure to warn of the hazard on boarding the bus.  The effect of that is both to reduce the degree of proximity between the Council and Mr Fernquest and to make it more difficult to justify the imposition of a continuing responsibility for the safety of Mr Fernquest.  During the bus journey and up to and including alighting from the bus Mr Fernquest was in a much more proximate relationship with First Cymru, which may well have owed him a duty of care during that journey.  Whether First Cymru, which was also aware by its employee, Mr Casey, of the hazard, owed a duty of care to warn Mr Fernquest as he alighted on the ice in the street is a question which does not arise for a decision.  However, any such duty would undoubtedly have been discharged by Mr Casey doing precisely that, in warning Mr Fernquest as he got off the bus.  The fact is that many accidents occur which are not the fault of anyone, and in my judgment this is such a case.  

17.	For these reasons I have come to the conclusion that the judge did err in law in concluding that the Council was in breach of a duty of care owed to Mr Fernquest in failing to warn him as he boarded the bus of a hazard at St Mary’s, and I would allow the appeal.

Lord Justice Pitchford:

18.	I too would allow the appeal.  Only in deference to the characteristically careful judgment of HHJ Vosper QC have I a personal contribution to make.  The appellant, Swansea City Council, operates through a contractor, First Cymru, a park and ride service to carry passengers from outlying car parks into the city centre and back again.  The judge found that, at the latest, by 9.00am on 10 December 2008 Swansea City Council knew that icy conditions at its bus stop outside St Mary’s Church in the City Centre presented a slipping hazard.  The respondent, Mr Fernquest, boarded a park and ride bus in Fabian Way shortly after 10.00am.  The bus arrived at St Mary’s Church at 10.25am.  As Mr Fernquest was leaving the bus, the driver, Mr Casey, who was not employed by Swansea but by the bus company, called a warning to passengers who were alighting, but Mr Fernquest did not hear him.  Almost as soon as he stepped onto the pavement Mr Fernquest slipped, fell, and suffered an injury to his wrist.  

19.	The learned judge at paragraphs 29 and 30 of his judgment held that Swansea City Council was in breach of its duty to passengers in that it failed to warn Mr Fernquest when he climbed onto the bus in Fabian Way that if he was going to St Mary’s Church he must look out for ice.  Had he been warned, the judge concluded, Mr Fernquest could have made an informed choice of whether to proceed with his journey at all.  

20.	Mr Thomas for the respondent submits that the judge’s decision was right.  The city council was providing a bus service which, to its knowledge, would deliver Mr Fernquest into an area of danger.  For that reason it was fair, just and reasonable to impose a duty in the terms identified by the judge.  Mr Petts for the appellant advanced in writing a number of grounds of criticism of the judge’s conclusion.  In my view, one of them has real merit.  It was common ground that overnight conditions were cold and that the gritters had been out.  Mr Fernquest had that morning driven his car to Fabian Way from Neath.  It ought to have been as obvious to him, as it would have been obvious to all road users, that underfoot conditions could not be guaranteed.  The city council could reasonably expect that its passengers were well aware of the risk of icy underfoot conditions and would take appropriate care in their own interests.  The imposition of a duty to warn at the commencement of the journey of icy conditions outside St Mary’s Church was excessive; it was neither fair, just nor reasonable to impose such a duty.  

21.	I accept Mr Petts’ submission, and for this reason would allow the appeal.  I do not accept the wider proposition that Swansea’s duty did not extend to giving warnings of danger in exceptional and other situations.  This was not, in my view, an exceptional situation; it was commonplace.  Sometimes accidents happen without fault.  This, in my view, was one of them.

Lord Justice Laws:

22.	I agree that this appeal should be allowed for the reasons given by Lloyd Jones J.

Order:  Appeal allowed.