legal matters
Caught up in the blame game
If an injury occurs in a car park, who is responsible? Claudia Gerrard uncovers a minefi eld
H
ighly publicised cases like Cotswold Geotechnical, as reported in the June issue of Parking News, have highlighted an employer’s
liability to its employees where an injury or accident occurs. Sometimes, though, there can be equal, if not greater, fi nancial risks for a company if damage or an accident occurs to a third party. Take for example, the situation where a car
park barrier is faulty and a member of the public is injured, or worse, as a result. What is the position for the car park operator? If the car park is owned by a supermarket chain, for example, surely any claim should be made against the supermarket and not the car park operator? T is is not necessarily so. T e law states that not only owners,
but also people who control premises, are responsible for making sure those premises can be accessed safely. T is means that, in our example, a claim can be made against the supermarket chain or the car park operator. Even if a claim is made against the supermarket, the car park operator might be included as a joint defendant, based purely on the fact that the car park operator has day-to-day control of the car park. Potential claims can be either a civil claim
for damages, or a criminal action. If there is a deliberate act, this could constitute a criminal off ence and could give rise to manslaughter charges if proved.
Case of neglect However, it is more likely that the damage or injury was the result of a genuine accident.
20 OCTOBER 2011
Perhaps there was an oversight by a car park attendant, or perhaps the car park barrier was malfunctioning and the car park attendant did not know. In such circumstances, the injured
party could bring a claim under the tort of negligence. A tort is a civil wrong, as compared to wrongdoings, which are criminal or contractual. Negligence, though, is a complex legal area because it is based mainly on the decisions in court cases, which can be somewhat contradictory. However, there are very specifi c
Even if a claim is made against the supermarket, the car park operator might be included as a joint defendant
requirements for the tort of negligence to apply. Firstly, one party must owe a duty of care to another party. T is duty can arise at any time and in many diff erent circumstances. In our instance, a duty could arise simply because the car park operator knew, or should reasonably have known, that a faulty barrier could cause damage or injury. T e second requirement is that the car
park operator was in breach of that duty of care. T erefore, if a car park attendant should have checked and didn’t, or noticed the faulty barrier and did nothing about it, that could constitute a clear breach. Ignoring the minefi eld of causation,
foreseeability, contributory negligence and mitigation, the third element is to prove resultant damage. In our example, it would be diffi cult to say that there was no resultant damage if the vehicle is visibly damaged or if someone is injured.
Costly errors Damages for negligence can be considerable. T e aim is to put the injured person in the position they would have been in had there been no breach. If someone is unable to work for a period of time because of the accident, damages could be awarded to cover their salary, plus bills for other fi nancial obligations they could no longer meet. Public liability insurance can help. It is
an essential insurance to cover companies or organisations who have premises which are accessible by third parties, contractors and members of the public. If there is any damage to property or injury to a person, the policy will usually meet the cost of legal fees and cover compensation for the damage. Even though it is not a legal requirement, public liability insurance is strongly advisable, particularly for any organisation that owns or controls premises, such as car park operators. Ultimately, though, awareness and training
of attendants is essential to ensure that any defective equipment is identifi ed and repaired before damage or injuries occur.
ABOUT THE AUTHOR: Claudia Gerrard is legal director, Ortolan Legal. Contact details: cgerrard@
ortolangroup.com, 0844 561 1638.
www.britishparking.co.uk
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