Fernquest v City and County of Swansea
Fernquest v City and County of Swansea
On 10th December 2008, Mr Fernquest slipped on ice on the pavement near a bus stop in Swansea city centre and broke his wrist. He had just come off a park and ride bus service run by the local authority in partnership with a bus company. About 90 minutes before the accident, the bus driver had asked the council's park and ride attendant to report the icy pavement to the Highways Department, because he had seen someone fall over and injure himself. The attendant did so, but the level of calls to Highways in the bad weather meant that no-one was available to attend the scene before Mr Fernquest fell as they were attending to reports that were given a higher priority.He sued Swansea as the local highway authority, relying on its duty under section 41(1A) of the Highways Act 1980 "to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice." Swansea explained that it operated a winter maintenance plan, with precautionary gritting of some roads when the weather forecast warranted it, but no precautionary gritting of footways. A highway inspector would check some selected footways in the hours before dawn (main shopping areas, major transport interchanges and designated safe routes to schools) and could order gritting of these and surrounding areas if necessary. On the overnight inspection before Mr Fernquest's accident, Swansea city centre was dry and ice-free. Thereafter, reports of snow and ice on roads or pavements would be attended to as quickly as possible depending on the availability and location of the crews and the priority attached to the complaint. Not all reports could be attended to.
The trial judge rejected the s.41(1A) claim. The authority had a proper scheme to ensure important highways were gritted before less important ones, and that carriageways were given priority over footways since the potential for accidents on carriageways was greater. A selective inspection of specimen footways was also satisfactory. There would inevitably be delay in responding to reports of ice on pavements, given the available resources of staff and grit and the demands from the public.
The trial judge also rejected the claim in negligence that the council should have ceased operating the park and ride service because of the weather. That, he said, would be going too far. However, he allowed a claim based on the council's failure to warn Mr Fernquest before he got on the bus that there was ice at the bus stop at his intended destination. But for that, he would have got off earlier, he said. The bus driver was warning people as they got off about the ice, but Mr Fernquest was slightly deaf and did not hear what was being said, although he knew that something was being said. He applied the standard principles of Caparo v Dickman (foreseeability of risk; a relationship of proximity between the parties; and that it was fair, just and reasonable to impose a duty) in coming to his conclusion.
Swansea appealed against the finding of a duty of care in such circumstances, arguing that there was no proximity between Mr Fernquest and the council as the bus journey was over, and that in any event it was not fair, just and reasonable to impose a duty. There was no cross-appeal by Mr Fernquest against the dismissal of the section 41(1A) claim or the conclusion that there was no negligence in not suspending the park and ride service.
On 2nd December 2011, the Court of Appeal (sitting in Cardiff Civil Justice Centre) allowed Swansea's appeal. Mr Justice Lloyd-Jones, giving the leading judgment with which Lord Justice Laws agreed, said that to hold bus companies liable would be a considerable burden and would be a considerable extension of the law of negligence that would be difficult to justify. Furthermore, the council was not itself the carrier and it was more difficult to justify such a duty for that reason as well. Any duty that the bus company owed to Mr Fernquest was discharged by the warning given by the bus driver, he said. This was one of those accidents that was nobody's fault. Lord Justice Pitchford, agreeing that the appeal should succeed, noted that Mr Fernquest had driven to the park and ride car park from Neath and it was obvious to him and all road users that there might be ice underfoot. The council could therefore expect him to take appropriate care and it was not fair, just or reasonable to impose a duty to warn of such a commonplace risk.
Tim Petts
12 King's Bench Walk
Counsel for the City and Council of Swansea
December 2011