30 December, 2014
Tis the season for snow and ice claims, winter has arrived, and with the cold weather we can expect an avalanche of the usual slipping and falling claims.
Local authorities, occupiers and employers need to take steps to prevent accidents and where accidents have occurred, be in a position to defend claims.
Local Authorities have a duty to repair and maintain the highway pursuant to section 41(1A) Highways Act 1980. They must ensure so far as is reasonably practicable that safe passage along the highway is not endangered by snow and ice. This is not an absolute duty. The terms "reasonably practicable" and "endangered" are open to interpretation on the facts of each case. Ideally local authorities will be able to point to a winter policy/plan they have in place for snow and ice and will have documentation to show that they took all reasonable steps to ensure implementation of the plan to enable safe passage. If a decision was taken not to grit due to a lack of resources i.e. a lack of grit in extreme weather or to prioritise certain high traffic routes then that decision should also be documented.
Occupiers have a duty under section 2 Occupiers Liability 1957 to take reasonable care to ensure the area is reasonably safe and to give reasonable notice of any danger. Each case will turn on the facts and it will be for the Judge to determine whether the occupier acted reasonably. Examples of the kind of considerations taken into account by the Court will include: the provision of grit and shovels; written evidence of snow and ice removal; procedures and policies for snow and ice clearance; documented evidence that procedures and policies have been followed; documented inspections; warnings etc. It is not an absolute duty and for instance where a decision has been taken not to remove snow or to grit etc., written evidence of why that decision was taken i.e. cost considerations/ lack of personnel/ low footfall etc. will be a useful tool in defending a claim.
Occupiers should also be aware that the Act requires occupiers to take into account that children may be less careful than adults.
Claims will only succeed if the employee can demonstrate on the balance of probabilities that his employer has been negligent. Employers are also required to comply with the Health and Safety regulations as far as is, "reasonably practicable". Employers must therefore as far as reasonably practicable provide a safe place of work for employees by removing or reducing the risk from snow and ice. The Code of Practice which supports the Work Place (Health, Safety and Welfare) Regulations state that "arrangements should be made to minimise risk from snow and ice. This may involve gritting, snow clearing and closing some routes…".
Considerations such as footfall, resources and previous falls in the same area will be taken into account. Like with occupiers, employers should ideally have a well thought out snow and ice policy in place, detailed risk assessments and documented decisions regarding clearing snow and gritting including why certain areas have been prioritised etc.
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 useful weapon in defending such claims.