As most of the country has been affected by snowfalls and plummeting temperatures this week. Most of us will have taken steps to try to clear the snow and ice from our properties, but what about the surrounding areas. Many members of the public are unsure if they would be liable for any injuries caused by a slip or fall on an area they may have cleared or helped to clear.
It was the case many years ago where the local community would be out in force with shovels clearing the local roads and pathways of snow to assist the whole of the community; especially the elderly members of the community who were more liable to slip or fall in icy conditions. In December 2017 the NHS published an article warning of the slips, trips and falls dangers faced by the elderly in Winter which stated that between November 2016 and February 2017, North West Ambulance Service responded to over 30,000 incidents in relation to falls in the region .
Of course, it is not the responsibility of the local community to ensure that Highways are cleared, under legislation, such as The Highways Act 1980, the highway authority must ensure that they comply with Section 41(1A), so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. This does not mean that all roads will be treated.
Highways England are responsible for gritting Motorways and main A roads. The local authority will be responsible for all other roads. Northamptonshire County Council report that:
“If ice and/or snow are forecast, we prioritise gritting all…A roads and B roads, traffic sensitive roads and other roads, including at least one road to a village community. These roads are called the precautionary network (P1) and cover 46% of the total road network…..Please remember that the majority of minor roads will receive no treatment at all”
So as not all highways will be treated we can assume that pathways will not be treated at all. Do you, as an occupier of a property, have a duty to clear snow or ice? Should you assist with clearing the snow from a road or pathway that is not your property? Will you be sued if you clear the snow and a person falls on an area you have cleared?
Your legal duty is defined by The Occupiers’ Liability Act 1957 s.2(2) in so far as you have a duty to ensure that your property, is reasonably safe for visitors for which you have invited or are permitted to be at your property. You should therefore ensure that you maintain a cleared pathway that is reasonably safe for any visitors or persons invited or permitted to be at your property.
In the recent case of Cook v Swansea City Council [2017] EWCA Civ 2142. Mr Cook (the Claimant) lodged an action against Swansea City Council (the Defendant) pursuant to The Occupiers’ Liability Act 1957 s.2(2), which states:
‘The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’.
The facts of this case were that on the day of the incident the Defendant had gritted the car park in the early hours. After the car park had been gritted it rained and as such the rain washed away the grit and froze, thus causing icy conditions in the car park. The Claimant attended at the car park that morning and on his way to purchasing a ticket he slipped and fell causing an injury. The Claimant submitted that the Defendant was liable for his injury as the operator and occupier of the car park. A station car park is a place to which drivers are "invited".
The Defendant’s policy in relation to gritting the unmanned open-air car park was that they would grit the car park if complaints were received by customers or members of staff who had attended at the car parks to issue tickets or collect monies reported the issues. All staffed car parks were gritted as and when was necessary.
Upon hearing the case The Court of Appeal had to consider numerous legal principles; such as the standard of care and causation. The Court of Appeal upheld the trial Judges finding that the there was no breach of duty committed under The Occupiers' Liability Act 1957. The Claimant was therefore unsuccessful in his action.
The provisions of s2 of the Occupiers’ Liability Act 1957 clarify the responsibilities of the owner or occupier. It does not however assist us in relation to being community spirited and assisting with clearing roads or pathways that are not your property.
The Government’s advice on this approach is: ‘You can clear snow and ice from pavements yourself. It’s unlikely that you’ll be sued or held responsible if someone is injured on a path or pavement if you’ve cleared it carefully.
So, what does this mean in real terms? The advice given states that it is ‘unlikely’ that you would be held responsible, it does not say that you will not be held responsible. How do you deem if you have cleared the pathway ‘carefully’? The Government advises that when you clear snow and ice you:
• Do it early in the day - it’s easier to move fresh, loose snow.
• Do not use water - it might refreeze and turn to black ice.
• Use salt if possible - it will melt the ice or snow and stop it from refreezing overnight (but do not use the salt from salting bins as this is used to keep roads clear).
• Use ash and sand if you don’t have enough salt - it will provide grip underfoot.
• Pay extra attention when clearing steps and steep pathways - using more salt may help.
It would appear from the advice given by the Government you should ensure that if you do assist in clearing a road or pathway as long as you do it carefully you would not be held liable. If, on the other hand, you cleared the snow or ice using water, which in turn formed into ice and someone injured themselves, then you could face action being taken against you.
Precautions, when clearing snowy or icy areas as per the Governments’ advice, could still be taken but there is no guarantee that action would not be pursued against you through the courts.
If you have cleared an area of ice or snow and you find yourself in the situation where an action has been taken against you it can be very daunting. We would be able to advise and guide you through the process. Each matter would be assessed on a case by case basis by our team of specialist solicitors.
We have offices in London, Birmingham, Cambridge, Oxford, Market Harborough and Leicester.
Contact us on 0800 567 7595.
