The uncertainty of wintry conditions
11/08/2020
Every year when the ice and snow arrive, at least one newspaper turns to an oft-repeated question – can you be sued for clearing a path or pavement outside your property?
It seems like a rather extreme outcome for doing what could be reasonably considered a community-spirited act. But these stories reflect an anxiety among householders and business owners about whether or not they can be blamed for someone injuring themselves in icy conditions on or near their property.
And that anxiety is somewhat justified with wintry conditions injuring thousands of people every year. Hospital Episode Statistics for England show that in 2014/15, nearly 3,000 people were admitted to hospital as a result of falling over on ice and snow with a further 1,153 admitted the following year. And in 2017, during the Beast from the East storm, slips and falls on ice accounted for 39% of all A&E admissions in Aberdeen.
As a saying quoted by personal injury lawyers goes, where there’s blame, there’s a claim so it’s important for householders and businesses to understand where they stand.
But that is the problem – there isn’t a huge amount of clarity around where responsibility for clearing pavements and paths lies.
Under the Highways Act 1980, the Local Authority is responsible for ‘ensuring safe passage along a highway is not endangered by snow or ice’. While the definition of highways includes public footpaths and pavements, Section 58 of the Act stipulates that Highway Authorities only have to take such care as in all the circumstances is reasonably required, so in practice, Local Authorities will focus on the main roads, given that it is would not be possible to attend to the entire network.
Which leaves many footpaths and pavements uncleared unless householders or businesses take it upon themselves to do the clearing. And this is where the nerves come in to play for many.
The Government has attempted to calm some of those nerves by issuing advice in a Snow Guide. It advises that householders:
- clear snow early in the day
- don’t use water to melt the snow as it might freeze, creating ice
- use salt to melt snow and prevent the ground freezing overnight
- pay extra attention to clearing steps and pathways
- and to use sand and ash to create better gripping
And pointedly, the advice states it is “unlikely that you’ll be sued or held responsible if someone is injured on a path or pavement if you’ve cleared it carefully”. ‘Unlikely’ and ‘carefully’ are the key words here.
It’s important that in the process of clearing the snow, the householder has not increased the danger by making the surface more slippery. This is recognised in the Occupiers’ Liability Act 1957 which states: “An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”
Ultimately, it comes down to doing a good job and making sure that conditions haven’t been worsened in the act of clearing the snow.
The law and regulations are clear for businesses – the Occupiers Liability Act 1957 (amended in 1984) obliges the owner or occupier of private land to ensure safe access for staff and visitors. However, this actually makes matters more complex for businesses.
The owner or operator of the business premises has a duty of care to customers at entrances, trolley parks or car parks, for example - anywhere customers are 'invited'. If someone is likely to walk on a business’ property and it is known to be slippery, reasonable steps must be taken to make those areas safe.
The same stipulations apply in that whatever is done to clear the snow and ice, it is vital that the situation is not made worse and the Health and Safety Executive has plenty of advice on how to do that.
But still, clear advice on responsibility and liability remains very difficult to give, because it is impossible to cater for every set of circumstances. In the absence of that, it is perhaps instructional to see what personal injury lawyers think of their chances of a successful claim.
The website of one such firm takes potential claimants through the various scenarios outlined above and while not closing the door to the possibility of being able to make a claim against a householder or business for slipping, it seems that ‘slam dunks’ are hard to come by.
“So, in a nutshell, if you are walking on icy paths, take care – you are unlikely to be able to claim compensation for any injuries sustained,” this particular lawyer advises.
Which should be heartening for anyone concerned about their liability, but it is unwise to offer or seek out cut and dried advice and rely upon that. While it seems that facing litigation for clearing a path is unlikely, there is the heavy caveat that it is important to do it properly and in line with Government advice.
