29 June, 2020
Despite this current heatwave, Forbes has defended a claim for personal injury following a slip on ice. We examine why the claimant discontinued the claim and what local authorities can do to be in a position to defend such claims.
M v North Lincolnshire Council
The claimant alleged that whilst working as a ground worker contractor he slipped on ice located on the highway resulting in an injury to his hand. The claimant argued that the highway was not gritted or salted.
The claimant brought a claim against his employer ("the 1st defendant") and the local authority ("the 2nd defendant") alleging a breach of section 41(1A) of the Highways Act 1980. Forbes represented the local authority.
The local authority denied liability and argued that the duty under section 41(A) Highways Act 1980 is not an absolute duty. It is a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. The local authority contended that it had discharged its duty of care and had taken all reasonably practicable steps to ensure that the claimant was safe. It had in place a Winter Maintenance Policy, which had been adhered to and implemented correctly. Furthermore, prior to the claimant's accident at approximately 13:00, gritting had been carried out by the 2nd defendant between 10:40 and 10:42am that morning.
Furthermore, the 2nd defendant asserted that ice is an obvious danger and sought to rely on the case of Tomlinson v Congleton Borough Council . The 2nd defendant argued that there is no duty to warn visitors of the presence of the obvious dangers. Accordingly, the 2nd defendant also pleaded volenti non fit injuria , ie the claimant willingly took the risk.
The Claimant discontinued the claim against both the 1st and 2nd defendants shortly before the trial.
The defence of the claim was not without risk given the slightly unusual circumstances involving the contractor and a potential argument that greater provisions should have been made for treating the footway if it was known that contractors were working in the area. However, given the relatively low number of contractor personnel on site and the local authority's detailed gritting policy the claimant was ultimately forced to discontinue the claim.
Although we are in the middle of summer, and winter seems ages away, there might be some harsh weather conditions to come before the end of the year. To be in a position to defend snow and ice claims, local authorities should ensure that they are able to point to a winter maintenance policy/plan and documentation. If a decision is taken not to grit for whatever reason, such as a lack of grit in extreme weather, or to prioritise certain high traffic routes then that decision should also be documented and retained.
The duty under s.41(A) Highways Act is "to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice". This is not an absolute duty. The terms "reasonably practicable" and "endangered" are open to interpretation on the facts of each case. Snow and ice claims can be difficult to defend, the decision of whether the local authority, occupier or employer has acted reasonably in the face of adverse weather conditions will be a subjective decision for the judge. Gathering detailed witness statements setting out the conditions and circumstances at the time of the accident and the steps taken by the defendant to avoid or minimise the risk of injury will be a valuable weapon in defending such claims.