Dreaming of a white Christmas or dreading the nightmare before?

Having a flutter at the local bookmakers on the appearance of the illusive ‘White Christmas’ may be harmless fun but if you are an occupier of property the prospect of accidents occurring as a result of snow and ice and the subsequent claim for injury need not be a gamble.

Occupiers Liability – back to basics

An occupier is someone with control of the premises; the power to do something about the condition of the premises or what happens on the premises (Wheat v E Lacon and Co Ltd (1966). It should not be seen as synonymous with ownership. Control is a fact sensitive issue and it is possible for more than one party to have control in a given situation.

Visitors are those with express permission to enter premises i.e. those specifically invited or with implied permission to enter premises for example a postman delivering mail.

Occupiers owe visitors what is known as a common duty of care defined in the Occupiers Liability Act 1957 s2(2) as a duty ‘to take such care as in all the circumstances is reasonable to see that visitors are reasonably safe in using premises for purposes upon which they are invited or permitted by the occupier to be there.’

Discharging the Duty

The duty is not absolute but one of reasonableness. The existence of a duty of care and the happening of an accident does not automatically equate to a breach of duty.

What does the occupier need to consider when addressing the risks posed by snow and ice. At the risk of stating the obvious the greater the risk the greater the duty on the occupier to do something about it.

• Degree of footfall: the duty on occupiers of a busy shopping centre is likely to be greater than that on a local corner shop keeper.
• The type of visitor e.g. the elderly or infirm.
• Are you dealing with an unexpected cold snap or a prolonged period of snow and ice which had widely been forecast?
• The larger the organization the more resources they are likely to be required to deploy.
• Courts are likely to expect larger organizations to have formal systems in place which are proactive rather than reactive.

Although cost is a relevant factor organizations should not view cost as an excuse to skimp by doing as little as possible. s2 (4) (a) of the Occupiers Liability Act 1957 gives guidance that a warning is not to be treated as absolving the occupier from liability. Signs warning of ice underfoot should generally be seen as part of rather than the entirety of an occupier’s steps to safeguard visitors.

Many large organizations may employ facilities management contractors whose duties may extend to gritting and clearing snow and ice. S2 (4) (b) of the Act provides a potential defence to the occupier if they have satisfied themselves as to the competence of the contractors. A note of caution however. Remember that it is possible for there to be more than one occupier in a given instance and it would be unusual for all control of the premises to be transferred to the contractor.

Section 5 of the Act provides that the common duty does not impose on an occupier an obligation in respect of willingly accepted risks. This defence will however be viewed in conjunction with whether the occupier has taken reasonable steps to safeguard the visitor.

Having said that snow and ice can sometimes act as a magnet particularly for children who may not necessarily be appreciative of the dangers. The Act recognizes this, s2 (3) requiring an occupier to take into account that children may be less carful than adults.

Trespassers

What about those people an occupier doesn’t want on his premises? The extent of the duty is set out in the Occupiers Liability Act 1984. An occupiers has a duty to trespassers if

• He is aware of the danger or has reasonable grounds to believe it exists.
• He has reasonable grounds to believe the other is or may come into the vicinity of the danger.
• The risk is one in against which in all the circumstances it is reasonable to offer the other some protection.

Warning signs may suffice but positive, proportionate steps to discourage the taking of the risk may be preferable for example locking the entrance to a car park which has become frozen and which would be attractive to children as an ice rink.

Employers

It should come as no surprise that an occupier’s duties of care to their employees are greater than those owed to members of the public

As well as the common law duty of care and the provisions of the Occupiers Liability Act 1957 an employer also has duties imposed by the Workplace (Health, Safety and Welfare) Regulations (1992). Regulation 12(3) provides:

So far as reasonably practicable, every floor … and the surface of every traffic route in a workplace shall be kept free from …any … substance which may cause a person to slip...

The burden of proving this rests upon the employer once the Claimant has established that a slip has occurred. The employer is required to demonstrate that it had taken reasonably practicable steps to avoid the risk of slipping. This duty is not absolute and falls short of doing all that was physically possible to discharge the risk.

However the duty may extend further. Regulation 5 says ‘the workplace…shall be maintained ….in an efficient state... and in good repair. Judicial opinion is divided as to whether and to what extent this strict duty under regulation 5 applies to transient conditions (of which snow and ice would be a prime example and is dealt with by the qualified duty under Regulation 12(3)

Protecting your position & the key requirements to build a successful case

Remember the Jackson reforms extend to liability claims from April 2013 and bringing with them increased pressure on both insurers and insureds to respond to claims more thoroughly and quickly

• Possession of a documented pre-accident assessment of risk and with details of the implementation of the policy. Regulation 3 of the Management of Health and Safety at Work Regulations (1999) imposes a statutory duty on employers to risk assess.
• Evidence that the risk assessment is reviewed annually and as accidents occur. Again the Management of Health and Safety at Work Regulations (1999) require employers to carry out post-accident risk assessments.
• Accurate records demonstrating compliance to the policy such as gritting or inspection records and weather monitoring will be beneficial – lack of knowledge of weather conditions is not a defence.
• If contracting a company to deal with gritting or the removal of snow or ice, a contract that is drafted with sufficient certainty to provide which areas are covered and what services are expected.
• Have a detailed and clear contemporaneous accident reporting system which includes names and addresses of witnesses.
• A short statement taken from key personnel shortly after an accident has occurred commenting upon circumstances and procedures. If signed with a Statement of Truth at the outset of a claim, this can reduce the evidential problems if the witness disappears by the time a case reaches trial some years down the line.
• Witness statements are also required from those responsible for implementing any snow and ice policy.
• The HSE has recently given practical guidance for businesses to help with reducing the risk posed by snow and ice and can be found at www.hse.gov.uk/logistics/slips-trips-bad-weather.htm#ice