Snow and ice: be prepared

Employer

The Workplace (Health, Safety and Welfare) Regulations 1992 deal specifically with means of access to and egress from places of work.  Reg 12(3) states, 

…so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.”

In cases of snow and ice, we are normally looking at transient problems.  Whether the local authority is the owner of buildings or the sole occupier of buildings owned by someone else, if the authority employs the people working within those buildings, then the usual obligations arise under the statutory regulations above. They are required to take steps to comply with the legislation by implementing a system for dealing with snow and ice and ensure that they can demonstrate that these systems are followed by reference to relevant documents detailing their approach to assessing and managing the risks to their employees.

Defending claims

These cases are capable of being defended provided public bodies can show in documented format that they have taken reasonably practicable steps to:

• Reduce the risk of slips on ice, frost or snow, by assessing the risk and putting in a system to manage it.

• Identify the outdoor areas used by pedestrians most likely to be affected by ice, for example, building entrances, car parks, pedestrian walkways, shortcuts, sloped areas and areas constantly in the shade or wet.

• Monitor the temperature, as prevention is key. 

• Display signs with warning messages. If warning cones are used, remember to remove them once the hazard has passed or they will eventually be ignored.

• Have procedures in place to prevent an icy surface forming and/or keep pedestrians off the slippery surface.

• Use grit or similar, on areas prone to be slippery in frosty, icy conditions.

• Divert pedestrians to less slippery walkways and barrier off existing ones.

Highway authority

The largest number of public liability claims a local authority receives is in its capacity as highway authority.  S41 (1A) of the Highways Act 1980 imposes the following obligations:

In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”

Defending claims

The highway authority will need to show by way of documented evidence that it has acted in a reasonable and practicable way to meet the risk.  The burden of proof transfers to the local authority in these circumstances. The local authority should have documented systems and policies in place and evidence as to how these have been applied and followed.

It may be useful to bring together the following elements together in a detailed Winter Highway Maintenance Plan:

• Winter safety plan/policy to include the road/pathway hierarchies for gritting/salting with rationale e.g. prioritising a bus route.

• Any Code of Practice followed i.e. the Well-maintained Highways: Code of Practice for Highway Maintenance Management prepared by the Department for Transport.

• Ice and snow gritting/salting programmes, including trigger temperatures for gritting.

• Weather records, for example, Icelert, Met Office.

• Records of gritting/salting undertaken during the icy spell.

• Any complaints made in relation to gritting/salting of the highways by members of the public and the responses to these. 

Fraudulent claims

This is an ideal time for the fraudster to look for an opportunity to make a claim. Consider the following:

• Date of the accident and cross-reference with weather records.

• A & E/G.P records of injury – are they consistent?

• Photographs – if digital, check the metadata from the original photograph – this is not always accurate but can be a good way of checking to see that there is some consistency between the date of the accident and the photographs taken at the time.

• If the accident occurred in a public area and/or workplace, check that the site/premises were open on the date and at the time alleged.

• Consider claimant profiling and validation (see DWF’s Sonar product).

Courts are alive to the reality that local authority resources are finite and have to be managed shrewdly.  If there is a shortage of grit/salt and resources then this may be a defence but be wary of blanket policies confirming that a local authority will not grit or salt due to budgetary reasons.  Provided documents can be produced in the categories referred to above, the prospects of successfully defending claims when they come to light increase immeasurably.

See also:

James Neale extracts some useful pointers from the successful defence of recent employers' liability claim involving a snow and ice slip and breach of duty >

Find out more about Sonar, DWF's claimant profiling and validation product >

Contact

For further information please contact Denise Brosnan on DD +44 121 200 0415 or at denise.brosnan@dwf.co.uk