Personal injury claims from slipping on ice
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With December just around the corner and snow forecast for this year, this article will look at what Highway Authorities, Employers and Occupiers need to bear in mind to avoid slipping claims.
The Health and Safety Executive has provided guidance for individuals looking to bring a claim as a result of a slip on snow or ice. Who is responsible for clearing the snow, ice and frost on the ground will depend on who owns the land. For example whether the land is council owned highway, private land or land under the control of an employer.
Council highways: Highways Act
Under the Highways Act the Highways Authority has a responsibility under s.41 of the Act to ensure that the highways are maintained. These are defined as: roads, footpaths, bridges and bridleways. The section of the Act states that a Highway Authority is: "Under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice". They will therefore be judged by a standard of what is reasonable. The duty is not absolute and merely the presence of ice, snow or frost on the pavements which leads to an accident will not be sufficient to find them at fault. Case law sets out what the Courts consider to be reasonable in these circumstances which is in the main judged by firstly, whether the Highway Authority has a reasonable Winter Weather Gritting Policy and secondly, whether this was actually implemented.
In the case of Pace v Swansea City and County Council ( 2007) the Council was not found to be at fault for a road traffic accident that had been caused owing to the presence of ice on the road. Pace, had lost control of her care on a bend in the road because it was icy. It was accepted the accident was caused by ice. However, the Council were able to rely on the Defence under s.41(a) of the Act as it could show that the road had been salted in the early hours of the morning of the accident in accordance with their Winter Weather Gritting Policy. The Court found that the council had in place an adequate and proper policy for salting roads and that this system had been implemented. The claim therefore failed.
As an aside the Court stated that it was clearly impossible for a Highway Authority to eliminate all risk of ice forming on the roads and it was impossible for the plans to be devised at so high a level of protection that the very greatest level of protection was always provided . To place almost limitless amount of salt on the road could increase the levels of protection but would do so at an entirely unrealistic and undesirable economic and environmental cost. Conversely, an example of where they may be a claim is where the Highway Authority had not gritted in accordance with its Winter Weather Gritting Policy following a forecast of below freeing temperatures.
Private land: Occupiers Liability Act.
If you fall on someone's property as a result of snow or ice you may have a claim against them as the Occupier of the land under the Occupiers Liability Act 1957. For example this may be slipping in a supermarket car park, leaving a hotel, restaurant , leisure centre or slipping or falling in hospital grounds. It may also be slipping and falling on private residential property.
Under this Act the owner of the land has 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 suing the premises for the purposes for which he is invited or permitted by the Occupier to be there". The land owner only has a duty to do what is reasonable. Again, the duty is not absolute. The Court will look at the facts of each accident to ascertain whether the land owner is liable and will look at factors such as: - whether the area had been gritted - for example removing snow and failing to grit may be considered negligent if ice forms as a result- whether warning signs were in place- whether there was a Winter Maintenance Policy and whether this was implemented - whether there had been a weather warning of below freezing temperatures that was not heeded - how long the ice/snow/frost that caused the incident was present.
In the case of Philip Marsh v Kerwin and Kerwin (1995) the court found that the landowners, Mr and Mrs Kerwin, were not liable for injuries sustained by Marsh who slipped and fell on freezing rain that had formed ice on their steps whilst he was visiting them. The Court noted that the Kerwins had come home some half an hour before Marsh visited and ice was not present then. It had arisen in the meantime. The Court held that it was unreasonable to impose a duty of care in respect of the formation of ice in what must had been a very short period of time. The Department for Transport has issued a Snow Code, which provides guidance for private land owners about removing snow and avoiding potential claims which should be covered by most household insurance policies in any event.
Workplace (Health and Safety Welfare) Regulations 1992.
If you fall on your walk into work on work premises you may have a claim under the Workplace (Health and Safety Welfare) Regulations 1992. These regulations states that under S. 12 (1) that "Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used. (2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that (a)the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety ". In addition the approved code of practice to the Workplace Regulations states that:
Arrangements should be made to minimise risks from snow and ice. This may involve gritting, snow clearing and closure of some routes, particularly outside stairs, ladders and walkways on roofs.
Your employer should take steps to ensure that walkways into the building where you work are gritted if there is a freezing weather warning or, if they can not be gritted, that they are closed or cordoned off for use. An example of where claims has failed against employers (albeit pre 1992 regulations) is the case of Gitsham v CH Pearce and Sons PLC ( 1991). In this case the employee brought a claim for personal injury following a slip on a snow covered roadway outside his place of work.
The factory premises were situated on a 6 acre site that was situated on high ground and exposed to wind and weather. On the day of the Claimants accident, which happened at around 8:45am in the morning the weather conditions were poor. It had snowed over night and was continuing to snow that morning and conditions were described as a windy blizzard.
The employers system of gritting began at 7:00 am before people arrived for work at 7:30am and if carried out with no delays would complete at around 08:05am which would have been before the Claimants accident.
However the court heard evidence that the gritting took longer that morning and the area on which the Claimant slipped and fell had not been gritted.The Court however held that the Defendants had done all that was reasonably practicable having regard to the weather circumstances at the time. It therefore made the finding that (1) The Defendant did have a gritting policy in place and (2) that this had been carried out to an extent that was reasonably practicable.
What can be done to reduce the risk of accidents from slipping on snow, ice and frost?
The Health and Safety Executive provides some useful guidance on factors to consider to reduce slips on ice frost and snow. These will be useful for all landowners alike which can be summarised as follows:
- Identify areas outside that are used by pedestrians that are most likely to be affected by ice. These may be for example entrances to buildings, designated walkways, known shortcuts and sloped/ shaded areas.
- Keep up to date with weather forecasts. You need to be aware that when freezing temperatures are forecast that you take steps to put in place any winter gritting policy. Websites to use are the Met Office, BBC weather etc.
- Have a Winter Weather Gritting policy and procedure. For example consider gritting areas or covering walkways in their entirety with a canvas tunnel for example which is tall enough for people to walk through.
- Consider closing walkways and cordoning them off it they can not be safely gritted or covered.
BL Claims Solicitors are here to help
If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at firstname.lastname@example.org