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The “Beast from the East” has blitzed through the country this week leaving a trail if destruction in its path. For some the last week has been a winter wonderland with a day off school to enjoy sledging. For others it has meant long walks to work, huge traffic delays and a constant battle to stay warm. Communities have, however, come together. Selfless voluntary acts of community spirit have been seen in abundance but what are our basic obligations to keep each other safe? 

The short answer it depends who you are:

Snowy pathLocal Authorities:

They have duties at common law given they have control and possession of public roads and pavements. They require to manage and maintain these. They are also the “Local Roads Authority” in terms of Roads (Scotland) Act 1984. A document called “Well Maintained Highways” issued in 2005 is adopted by most local authorities and is well recognised as the standard by Scottish Courts. This accepts that resources are finite and that Local Authorities cannot grit all roads at the first touch of frost. Local Authorities require to designate priorities and have discretion to do so. Roads near schools or fire stations for example are likely to be high priority and therefore gritted first. Usually pavements are lower priority than roads. This has been held reasonable by the courts on the basis that a skidding vehicle poses more danger and that pedestrians can look out for snow and ice and take precautionary measures easier than drivers.

The policy cannot be reviewed by a court. Councils have discretion.  However, if the Local Authority has failed to follow their own policy and that failure results in an accident then there are reasonable prospects of proving negligence. However the fact you slipped or were in a car accident because a road was not gritted is not by itself sufficient to constitute negligence. Essentially to be successful you require to prove that no reasonable roads authority would have failed to grit a certain road by a certain time.  

Your house and garden

What if you fail to clear and grit your path and a visitor slips? This is covered by Occupiers’ liability (Scotland) Act 1960 which mirrors the common law obligation. The act requires an occupier (not owner) to take reasonable care in all the circumstances to ensure the visitor is safe when using the premises for the reason they have been allowed access in the first place. To prove negligence you must show there was a hazard. Snow and ice, unless it is a trivial amount is likely to be considered a hazard. In most cases it will be obvious that the occupier ought to be aware of the hazard. The next step is to prove what steps the occupier ought to have taken. This very much depends on the circumstances of each case. It depends on the forecast, weather conditions, ability of the occupier i.e. age, and how long the snow has been there before the accident. Ultimately, it is very unlikely that an occupier would be negligent in these circumstances because there is no obligation to protect a visitor from risks which are obvious and willingly accepted. If the snow is heaped high and the mail man decides to deliver he willingly accepts that risk. If, however, there is ice which cannot be seen, the occupier is aware of it and takes no steps to address it or to warn visitors, he may be negligent.

You have no obligation to clear the public pavements or public road outside your house and no liability whatsoever should someone slip and injure themselves there.

Supermarkets:

The same law applies here as above, however, given the resources supermarkets have and the level of traffic the reasonableness criteria would be weighted differently. They should have a system of inspection and a policy for gritting. They should partition off any area not gritted. Should they fail to take reasonable steps they are likely to be negligent. Further, as they are a workplace the below higher standers are likely to be held to apply.

Workplaces:

The duty on employers to safeguard employees slipping at their place of work is significantly higher than elsewhere. This applies whether it is on the steps to your office, or an industrial yard. In spite of the Enterprise and Regulatory Reform Act which removed civil liability for breach of the workplace regulations, breach of those regulations is almost certain to mean that there is a breach of the common law. Regulation 12 (3) of the Workplace (Health, Safety and Welfare) Regulations 1992 requires employers to take all reasonable steps to prevent the presence of a slipping hazard.  The key word is “ALL”, taking some steps is not sufficient. Whether it is reasonably practical depends on the circumstances but employers would be expected to have a policy in place, monitor the weather and to follow that policy. Unlike with local authorities the reasonableness of these policies can be challenged. For example if the policy is to grit at 10am but staff arrive at 9am that is likely to fall below the standard of care expected.  

Blog by Alan Calderwood, Solicitor

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