Making a claim against Council

[Openlaw15]

Re: Making a claim against Council

Hi and welcome.

Do you believe that the lack of (unnecessary?) disclaimer notices makes the council liable for the actions of a third party?

There may have been a contract between you (was this a paid for car park?) in which case tort law does not apply.

No, Des8, a contract and tort claim could potentially run parallel. If there were warning signs that council does not cover any liability for losses, such as tort for damages to property, it would be an exemption clause. In its absence (the exemption clause), the council is potentially liable. Contract covers contract, ie what was the substance of the contract, what were the losses sustained from the contract. Tort is rather different, tort extends where contract ends and vice versa.

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Negligence must lie mainly with you for not either taking the bag with you, or for not locking it in the boot.

IMHO a claim against the car park / parking space owner will fail.

No negligence is the council tortfeasor (potentially at any rate), and contributory negligence means any damages (if successfully claimed) from the council would be reduced.

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I think the answers are spot on here. I cannot conceive, in any way, how you can imagine that lack of disclaimer notices, lack of CCTV and your alleged 'lack of security' will lead to the council having any liability for your loss. You also mention that this has happened at least twice before so that suggests you knew it may be unsafe yet you continued to leave items of value in your car and presumably on show. And I cannot see why you feel that the presence of an art gallery brings increased risk.

I assume that this was free parking? Do you have insurance on your motor policy to cover personal effects within the car? Have you claimed on your motor policy for the vandalised window? Have you actually spoken to the local authority concerned?

Sorry to sound negative but leaving 'significant items' in a car and therefore out of your safe control is a risk that should not sensibly be taken. And lastly, is it possible that your car was targeted because you left these items in it? It seems to me that the smashing of a window is quite a risk unless there is value in the theft.

Are the answers spot on, have these respondents studied tort at qualifying law degree level? I do not think it is such an open and shut case in the council's favour. There were no exemption clauses to protect the council from any liability on the facts.

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Perhaps the unhelpful replies are because we think you cannot establish a claim against the council. Your claim will likely fall under negligence and/or occupiers liability, either of which requires you to prove that there was a duty by council, the council breached that duty and whether it was foreseeable. Even if you establish the duty owed and a breach of that duty then you will most likely fail on the foreseeability side.

From my understanding of your problem, you are essentially saying that all councils who provide car parks must provide secure car parks? When you park in a public car park there is that degree of risk where your car may be damaged or broken into and as Snoopy has said, you ought to be aware of that and you continued to park there. Therefore the council could argue that you contributed to that negligence if you took it to court.

The same principle applies if someone walks through a park and crosses a small river over wet stones, there is the risk that you could fall and injure yourself but you can't expect the local authority to be liable for those injuries when you ought to be aware of the risk in walking over them.

Just to add, the courts will also reject claims where it is going to cost unreasonable amounts and buts a bit of a burden on that particular party

Come on Rob, you're a lawyer - play devil's advocate. There is no liability clause - so how can the council be exempt from any claims?

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Perhaps the unhelpful replies are because we think you cannot establish a claim against the council. Your claim will likely fall under negligence and/or occupiers liability, either of which requires you to prove that there was a duty by council, the council breached that duty and whether it was foreseeable. Even if you establish the duty owed and a breach of that duty then you will most likely fail on the foreseeability side.

From my understanding of your problem, you are essentially saying that all councils who provide car parks must provide secure car parks? When you park in a public car park there is that degree of risk where your car may be damaged or broken into and as Snoopy has said, you ought to be aware of that and you continued to park there. Therefore the council could argue that you contributed to that negligence if you took it to court.

The same principle applies if someone walks through a park and crosses a small river over wet stones, there is the risk that you could fall and injure yourself but you can't expect the local authority to be liable for those injuries when you ought to be aware of the risk in walking over them.

Just to add, the courts will also reject claims where it is going to cost unreasonable amounts and buts a bit of a burden on that particular party

Contributory negligence is where damages are reduced, does not mean there are no claims in tort.

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I want to make a small claim against my local council. I had my car parked in a blue badge place in a Council car park in local council run gardens which has also 2 art galleries a café and a childrens play group. On returning to my car the window was smashed in and bag stolen from under the drivers seat. There is no warning sign about liability that there is in every other car park and no CCTV or security despite the obvious increased risk due to the gallery etc. I lost some significant items and believe the council are negligent for lack of security, CCTV and liability signage especially as it has happened at least twice before. Any advice please? My main concern is that I could be liable for their costs if I lose?

You do have a duty to act reasonable, so why if you knew that these type of problems happened before did you leave expensive items in them, which naturally attracts thieves, I suppose is the view of what seems to be the consensus on this thread?

[Openlaw15]

Re: Making a claim against Council

The only costs you will lose is your application costs, but the judge does have discretion to award costs against where claimant's make vexatious claims / claims without merit and do not establish a cause of action (cause of action is showing how the council had a duty of care, breach that duty and the breach of such duties were not too remote).

You say you have made a claim but not quite clear whether a court claim has been issued already to the council

Rob, to be fair the costs rules are complex, it's not just a case that if the successful person wins it automatically means costs order. Vexatious is also a very subjective concept, as to the claimant it's a merit-worthy claim but to the opponent, perhaps not so. There may be that presumption that a cost order should be award where the other parties wins but that presumption could be rebutted, ie in this set of the circumstances the person is disabled notwithstanding reduced mobility following 'major cancer surgery.' This person is simply limited in mobility and is unlikely to carry things. He put things under the drivers seat and in the boot so the person has taken precautions compared with the reasonable person alternative. The council is compared against the reasonable council - the reasonable council would have protected itself with exemption clauses. There are none, so it would be an interesting case.

[R0b]

Re: Making a claim against Council

And so we meet again OL.

There is nothing complex about small claims or costs, and you are delving into it too much. The question was asked what costs might be incurred if the claim is lost, to which I replied. I did not say that the claim was vexatious or without merit I just simply stated that it is another possibility in which further costs could be incurred in addition to the application costs hence discretion to award.

Disclaimers by councils are pretty much useless so it does not matter whether they are used or not, particularly in a case where someone has injured themselves. A disclaimer may offset liability in this case of theft as it is not injury related, there are disclaimers on the ticket machines but the OP has not suggested whether this occurred before or after the event and whether she went to a ticket machine.

Yes contributory negligence reduces the damages, I never said the claim is extinguished.

It sounds like you disagree with the points being made by everyone and that is fine but at the end of the day if councils were to be held liable for every theft because someone willingly left their valuables in their car we would have claims up and down the country.. so where are they?

I come back to my point before, councils provide public car parks and people use them at their own risk if they leave valuables in the car. If lets say the thief stole the car with the valuables inside, are you saying that the council are liable for that because you parked in an unsecured public car park?

The only way to have a chance is to prove that the council knew that theft was common in that car park and did nothing about it but even still, what could you expect them to do except put a notice up saying theft in the area? Is that going to stop people from parking in the car park? of course it isn't.

Equally the council could argue that the reasonable person, despite there being a risk of theft in a car park, that risk is so small it was justified in neglecting it.

You just can't prevent theft 100% and I suspect that will be part of the council's argument.

[Openlaw15]

Re: Making a claim against Council

And so we meet again OL.

There is nothing complex about small claims or costs, and you are delving into it too much. The question was asked what costs might be incurred if the claim is lost, to which I replied. I did not say that the claim was vexatious or without merit I just simply stated that it is another possibility in which further costs could be incurred in addition to the application costs hence discretion to award.

Disclaimers by councils are pretty much useless so it does not matter whether they are used or not, particularly in a case where someone has injured themselves. A disclaimer may offset liability in this case of theft as it is not injury related, there are disclaimers on the ticket machines but the OP has not suggested whether this occurred before or after the event and whether she went to a ticket machine.

Yes contributory negligence reduces the damages, I never said the claim is extinguished.

It sounds like you disagree with the points being made by everyone and that is fine but at the end of the day if councils were to be held liable for every theft because someone willingly left their valuables in their car we would have claims up and down the country.. so where are they?

I come back to my point before, councils provide public car parks and people use them at their own risk if they leave valuables in the car. If lets say the thief stole the car with the valuables inside, are you saying that the council are liable for that because you parked in an unsecured public car park?

The only way to have a chance is to prove that the council knew that theft was common in that car park and did nothing about it but even still, what could you expect them to do except put a notice up saying theft in the area? Is that going to stop people from parking in the car park? of course it isn't.

Equally the council could argue that the reasonable person, despite there being a risk of theft in a car park, that risk is so small it was justified in neglecting it.

You just can't prevent theft 100% and I suspect that will be part of the council's argument.

No, claims using exemption clauses are not useless, based on the Canada test and other common law, not withstanding US common law as persuasive authority.

[Openlaw15]

Re: Making a claim against Council

And so we meet again OL.

There is nothing complex about small claims or costs, and you are delving into it too much. The question was asked what costs might be incurred if the claim is lost, to which I replied. I did not say that the claim was vexatious or without merit I just simply stated that it is another possibility in which further costs could be incurred in addition to the application costs hence discretion to award.

Disclaimers by councils are pretty much useless so it does not matter whether they are used or not, particularly in a case where someone has injured themselves. A disclaimer may offset liability in this case of theft as it is not injury related, there are disclaimers on the ticket machines but the OP has not suggested whether this occurred before or after the event and whether she went to a ticket machine.

Yes contributory negligence reduces the damages, I never said the claim is extinguished.

It sounds like you disagree with the points being made by everyone and that is fine but at the end of the day if councils were to be held liable for every theft because someone willingly left their valuables in their car we would have claims up and down the country.. so where are they?

I come back to my point before, councils provide public car parks and people use them at their own risk if they leave valuables in the car. If lets say the thief stole the car with the valuables inside, are you saying that the council are liable for that because you parked in an unsecured public car park?

The only way to have a chance is to prove that the council knew that theft was common in that car park and did nothing about it but even still, what could you expect them to do except put a notice up saying theft in the area? Is that going to stop people from parking in the car park? of course it isn't.

Equally the council could argue that the reasonable person, despite there being a risk of theft in a car park, that risk is so small it was justified in neglecting it.

You just can't prevent theft 100% and I suspect that will be part of the council's argument.

Am not saying the council will not have a defence but it does not mean the OP cannot counter that defence too. The facts are that the council has had spate of such problems, so the potentially liable for omissions, especially as there is no CCTV. For the same reasons there is foreseeability too, so it potentially breach of duty, too.

[wales01man]

Re: Making a claim against Council

If the OP has contacted the Council it would be interested to see their reply

[R0b]

Re: Making a claim against Council

@Openlaw15

I am afraid I don't understand what you mean by exemption clauses, do you mean disclaimers?

Why are the council responsible for implementing CCTV in their car parks? Even if CCTV was installed does not mean that it will prevent any thefts from taking place or even leading to any arrests. You are inferring that the council has had a spate of problems but what are these?

Councils are responsible for highways and roads, does that mean if some one breaks into a car and takes valuables from the vehicle you have a right to sue the council because you parked on a road, even if there is no designated parking space but also no restrictions? Are they now required to install CCTV on every street in order to extinguish their liability against someone who might claim because their car was broken into?

My question remains unanswered, if such a claim was available then why are we not seeing these across the country in courts?

The simple answer is that you cannot reasonably foresee that an offence of theft will take place each time a person parks in a public car park. The council will simply say they are not liable and cannot be liable each time a person leaves valuables in their car which is parked in a public car park, the risk is on the person leaving them in the car.

Edit: I will add that, if the car is being advertised as a secure car park, you could have a slight chance but public parking, absolutely not.

[Sputnik21]

Re: Making a claim against Council

Hi and thanks to Openlaw15. Your advice is really helpful and appreciated.

I have not yet filed the claim with the Court as I wanted to get advice first and cant afford a solicitor. I was not aware there had been other smash and grabs until after it happened to me, as advised by staff at the gallery who told me it had happened twice before. However I have taken photographs of the council machines in the road outside the park where I was that all have stickers on them warning about liability and not to leave anything in your car presumably because as I have since found out, the police have confirmed there is a spate of thefts in the area. Most of the other council owned car parks all have ' no liability' notices. This location has the added attraction of the galleries, a crčche and café. The gallery has valuable paintings yet there is no CCTV, most crčche's and playgroups have CCTV also. I have lived in this area all my life but the increase in events at the gallery is more recent increasing their attraction to criminals so my point is that they should either have CCTV or at least warn people of previous occurances and /or put up a no liability notice. I am not a vexatious person and don't like the 'blame culture' but I have lost a lot and was very shaken. It was in broad daylight with people walking around. Someone must have been hiding in the gardens watching given the space of time they targeted my car while I was away with my dog. The car park is free of charge. Welcome advice. I was not happy that my insurance stated only Ł100 of personal belongings was covered. My bag was worth that alone never mind everything else. They didn't get my phone at least.

[charitynjw]

Re: Making a claim against Council

. The car park is free of charge.

[MENTION=77627]Openlaw15[/MENTION] [MENTION=71570]R0b[/MENTION]

[R0b]

Re: Making a claim against Council

Before you decide to issue a claim I would suggest doing a google of the following cases, which confirm that a person cannot be held responsible for third parties activities - why? because it is not reasonably foreseeable or even if it was reasonably foreseeable there was not a close proximity between that person and the third party e.g. they are unconnected and do not know each other or they are not under one's control. Please bear in mind that these are House of Lords and Court of Appeal cases so they have high authority and unless your facts can be distinguished from these cases, it is likely the court will follow what has already been considered

Smith v Littlewoods Orgnaisation Ltd 1987
Topp v London Country Bus (South West) 1993 - This one is particularly relevant to you
Mitchell v Glasgow City Council 2009

Louth Mehtodist Church v East Lindsey DC 2011 - This one is a county court case and is probably the only one which may help your case. The council constructed a car park which cars in the car park were damaging the neighbouring wall. the landowner of the wall put the council on notice that it would need to amend that section of the car park to prevent damage. The council refused and the landowner won damages for repairs.

If you can show that the council were put on notice about the number of thefts in the area then you could potentially have a case to argue as they were put on notice but in the case of criminal activities such as theft, it is something which is out of their control and as the courts have suggested in the Littlewoods case, having round the clock monitoring/guarding of the car park would be an intolerable burden on that particular person or business and are not willing to impose liability for criminal activities of third parties.

Whilst there does not seem to be a specific case like yours that has come to court before, there is persuasive authority in other countries such as Australia which indicate for example that an authority cannot be held liable for a person being assaulted in an unlit area.

[Openlaw15]

Re: Making a claim against Council

Before you decide to issue a claim I would suggest doing a google of the following cases, which confirm that a person cannot be held responsible for third parties activities - why? because it is not reasonably foreseeable or even if it was reasonably foreseeable there was not a close proximity between that person and the third party e.g. they are unconnected and do not know each other or they are not under one's control. Please bear in mind that these are House of Lords and Court of Appeal cases so they have high authority and unless your facts can be distinguished from these cases, it is likely the court will follow what has already been considered

Smith v Littlewoods Orgnaisation Ltd 1987
Topp v London Country Bus (South West) 1993 - This one is particularly relevant to you
Mitchell v Glasgow City Council 2009

Louth Mehtodist Church v East Lindsey DC 2011 - This one is a county court case and is probably the only one which may help your case. The council constructed a car park which cars in the car park were damaging the neighbouring wall. the landowner of the wall put the council on notice that it would need to amend that section of the car park to prevent damage. The council refused and the landowner won damages for repairs.

If you can show that the council were put on notice about the number of thefts in the area then you could potentially have a case to argue as they were put on notice but in the case of criminal activities such as theft, it is something which is out of their control and as the courts have suggested in the Littlewoods case, having round the clock monitoring/guarding of the car park would be an intolerable burden on that particular person or business and are not willing to impose liability for criminal activities of third parties.

Whilst there does not seem to be a specific case like yours that has come to court before, there is persuasive authority in other countries such as Australia which indicate for example that an authority cannot be held liable for a person being assaulted in an unlit area.

Update this does not withstand human rights claims for tort omission against public authorities including the council, ie Mitchell (2009) above and others. However, it's not likely to be a human rights act question on the facts.

To answer your question, Rob an exemption clause is a statement which effect is to limit liability, usually found in commercial contracts. Disclaimers are different and are found generally in plain view of the consumer to limit liability. The OP's facts however appear to suggest there was no contract. So, it's not a contract claim and or exemption clause matter but rather a tort claim in general. On the facts it's either a Occupier Liability 1957 Act question or a straight forward negligence for omissions by the council question: Lord Reid in X and Others (Minors) v Bedfordshire CC [1995] a AC 633.

In general third parties are liable for omissions but councils/ public authorities apparently enjoy special protection. However, unless statute states otherwise public authorities are subject to tortious claims just like private individuals or companies, ie there is no blanket immunity for tort claims against councils: Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93.

[wales01man]

Re: Making a claim against Council

A court case is needed so we don't get pages of law quotes on here most which would I expect not help this OP Commonsense says the Council are not liable after all we could all claim of them if Anything happens on their land most areas have no notices or CCTV

[des8]

Re: Making a claim against Council

OL would seem to be suggesting that if a friend for example, parks on my land, and some toe rag then breaks into friend's vehicle and steals his laptop, I could in some way be held liable if I hadn't posted a disclaimer notice.

Better get myself down the printers!!!!!!

[Snoopy1948]

Re: Making a claim against Council

This has been an amazingly interesting discussion and shows the value of this excellent forum in defining and providing so many points of view.

My apologies to Sputnik21 if I came across as unhelpful, that wasn't my intention, but after working for a local authority for 23 years as an outside officer, I have taken so many complaints against the council and hence it is easy to become a tad cynical at times. The authority I worked for had a policy of free car parking through their manor although there were restrictions on time etc. I referred the essentials of this case to their customer service desk today and they were clear that no liability could be held with them as parking in a disabled bay is merely an invitation to park and not a licence to do so. They added that the situation is parallel to parking in any road adopted by the council and as such that would always be at the owners risk.

One could add that this is typically a police matter and even working with the local authority in partnership, there is never enough revenue to put in place preventative measures such as CCTV, civil wardens or extra police patrols and as public spending continues to be massively reduced every year, the public has to accept such increased risks. The general opinion is that regardless of where you park, there is always a risk of theft and damage to the vehicle, criminal or otherwise, and that has to be accepted. I can also appreciate that being disabled and coming back to such an event does increase the trauma somewhat.

On the question of car insurance cover for such an event, I wondered if this is one of those things that insurance companies regard as a 'notifiable event' regardless of whether a claim is submitted or not?

[des8]

Re: Making a claim against Council

On the question of car insurance cover for such an event, I wondered if this is one of those things that insurance companies regard as a 'notifiable event' regardless of whether a claim is submitted or not?

Brief answer is YES, 'cos it helps them build a picture of which areas are high risk, and therefore assists in setting the appropriate premium for that risk.
The same applies to that question on the proposal form;"had any accidents, losses or claims during the past five years?*
If your vehicle has been targeted, whether or not you made a claim, you should declare the fact. Minor damage or theft is a loss.
Not to is to invite your policy to be voided in the event of a claim, on the basis a false declaration meant you had breached the requirement of utmost good faith ( & possibly paid a lower premium)