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Winter is coming

But rather than just being a famous Game of Thrones motto, this phrase should also be a reminder that now is a key time to consider the preparation for your business with regards to winter weather risks. These types of issue arise each year but accidents continue to take place and claims succeed. It may not be possible to prevent all accidents caused by weather as that is an unrealistic level of perfection, but you can minimise your risks that any such accident turns into a payment. In this regard we recommend that you consider the following:

A Song of Ice and Snow

It is a basic requirement to have in place a suitable policy or risk assessment to address the risks faced by your business by snow and ice. It may seem like a simple consideration about the need to grit but in practice there can be much more to it than this. Are you going to deal with the issue yourself or hire outside assistance? What is the trigger point to grit? Are you going to react to the presence of snow and ice, which can sometimes take longer to clear if it is already in place, or are you going to put in place a system of weather monitoring to utilise a proactive system to hopefully grit before the ice has a chance to form? What areas will you prioritise in terms of the ordering of any gritting regime and do your staff understand this? How will the grit be spread and have staff been trained on the use of any such equipment?

There can be a multitude of factors to consider and weigh up when creating your system. It is however useful to bear in mind that the duty of care to visitors at your premises needs to balance the likelihood that someone may be injured, the seriousness of the injury that may occur, the social value of the activity that gives rise to the risk and the cost of the preventative measures. In the case of Cook v Swansea City Council [2017] EWCA Civ 2142 the court noted that the defendant's open air car parks provided a useful facility of 24 hour parking for the community. If they were required to prohibit the use of the same whenever there was a report of icy conditions this would inconvenience local residents and visitors. Further the requirement to man these unmanned car parks in order to provide regular gritting would be a disproportionate and costly step. In that case the court therefore concluded that the defendant was not negligent for not gritting its car park on an icy day. This highlights the need to balance the cost and practicality of the step with the risk posed.

For most retail or leisure businesses your premises are likely to be manned and so a court would probably expect a greater level of intervention in icy weather due to the physical presence on site. It is however acceptable to prioritise the main risks such as routes through the premises and fire exits when rolling out snow clearing or grit laying steps. Best practice would however suggest that you keep a record of the steps taken. The claimant's case in Wilson v B&Q Plc [2020] 2020 WL 05755940 failed after the court accepted that the defendant's duty manager record, which logged actions taken throughout a shift, supported the witnesses' submissions that appropriate gritting had taken place pre-accident.

Ice and snow are known risks that visitors should be on notice of due to the weather conditions when they arrive. They therefore have a duty to take care of their own health and safety if they choose to venture out. In Wilson v Bourne Leisure Ltd [2015] WL 4938220 a husband fell over on ice when he was walking back to his room on the defendant's holiday camp. The claimant admitted that he knew the floor was icy as they set off. On route they passed employees who were spreading grit on the pathways and asked them to help them grit their route. The employees agreed to do so if they waited for them to finish gritting the priority path. Rather than wait the claimant continued on, slipping and falling in the process. The court determined that there was no liability on the defendant in such a circumstance as the claimant was reasonably safe whilst on the premises. The claimant was on notice of the danger and chose to proceed anyway. The defendant was following a sensible plan to grit the facility and the claimant could have had the benefit of a gritted path had he waited.

Winds of Winter

Ice and snow are not the only weather risks faced in winter and so when preparing your risk assessment you should also consider the impact of other weather conditions. Heavy rain seems like a year round issue for us in the UK but if this can cause puddles on your premises it may create access problems for staff and visitors, as well as encouraging the development of ice when the temperature drops. If you are on notice of the risks in this regard you would need to be able to show that the same had been considered and addressed.

Beyond this storms can often bring the risk of strong winds and consideration may need to be given to how you address the same if your business is exposed to the same. Can loose items be brought in doors or tied down? Should access be restricted to the outside areas of your business if you cannot control the risk of debris? Should specific instructions be given to staff if they may handle larger items that could catch the wind? If there are trees on the premises do you have a regular system of tree inspections to ensure that they are healthy and there is not a risk of branches dropping in stronger winds? As cases such as Parker v The National Trust [2021] show a sensible and properly implemented policy of tree safety management should fulfil any duty of care to visitors and help avoid liability should branches fall.

Finally whatever policy you choose to implement you need to make sure that your staff are trained on the same and understand their requirements. A written policy is just a theory if it is not in fact implemented by the staff n the ground. For example in McKeown v Inverclyde Council [2013] CSOH 141 a janitor successfully sued his employer when he slipped on ice. This was despite him being the person responsible for laying the grit and having already salted the paved footpaths and playgrounds that day. The court found that the defendant's system of how to deal with ice was a reasonable one but it existed on paper only as it had not been communicated to staff. Had the claimant known of his duties he would have taken more care over the gritting undertaken and he would have used a scoop to spread the grit, giving a more even distribution. As a result to avoid such pitfalls you need to be able to confirm that staff are aware of the contents of any winter risks policy and they comply with the same when applicable.

For more information contact Claire Opacic in our Insurance department via email or phone on 01618308817. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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