As temperatures drops in the winter months, the number of people who are injured as a result of slipping on ice and snow increases. When a person falls on ice, they can sustain serious orthopaedic injuries, such as broken bones or pulled ligaments which can have a massive impact on their day to day life.
Legally, the right to make a claim for compensation will depend on the circumstances of the accident and who is responsible for the area where the accident happened.
Firstly looking at local authorities, when the temperatures start to drop, we all make the same complaint – why haven’t the roads and pavements been gritted?! In time of austerity (despite numerous promises of the hard times being behind us!), local authorities are on a tight budget and have to allocate resources appropriately. On this basis, council’s across Scotland operate a process whereby the implement a Winter Maintenance Policy. This policy will set out the council’s gritting priorities and where resources shall be allocated.
The Winter Maintenance Policy must have a system in place which makes it clear when gritting should commence and where the gritting should take place. Unfortunately, it would not be reasonable to expect local authorities to grit every road and pavement at the slightest dip in temperature.
The usual practice is that main roads and pavements, and access roads to school and hospitals will be gritted first. These are deemed to be the routes with the most use and the highest footfall. These routes are considered to be priority one. Thereafter, the local authority will continue to allocate resources to lower priority areas until they have looked at all roads and pavements within their boundaries. Often roads and pavements in residential streets are deemed to be the lowest priority for gritting and shall only be treated once higher priority areas have been gritted. This means it can be a number of days before the local authority is able to reach the lower priority routes within their plan and would only do so if the temperatures justify this taking place at this stage.
The process of resource allocation is not particularly helpful, however, to an injured person who has fallen on ice in an area which has not been gritted. Unfortunately, under Scots law, there is no automatic right to compensation. It is for the injured party to prove that the council have been negligent in their duty of care by failing to treat the area where an accident has happened. In order to show this, it has to be proven that the local authority has failed to implement their own policy and this failure has resulted in the injuries sustained. It is very unlikely that a case would be successful where the council have followed their policy. Attempts have been made to argue to a court that some Winter Maintenance Policies are unsuitable however the courts are not willing to dictate how a local authority allocates their resources.
Slips on ice which occur on private property, such as at the entrance way to a shop or in a privately owned car park, are treated differently than cases against a local authority. In cases of this nature, it has to be shown that the occupier knew, or ought to have known, about the hazard (ice) prior to the accident and that they failed to take reasonable steps to prevent an accident occurring.
The occupiers of private property should operate a system of inspection to ensure that their property is free of hazards, such as ice and snow. If they do not operate such a system, and it can be shown that it was unreasonable to fail to do so, then they can be held liable for injuries caused as a result of a fall.
If you are in the unfortunate position where you have fallen as a result of ice or snow, once seeking appropriate medical advice, the accident should be reported to the body responsible for the area and thereafter you should seek advice from a solicitor regarding whether you have a right to claim compensation.
Blog by Eilish Lindsay, Solicitor
