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Snow and ice liability

View profile for Martin Herson
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After the first flurry of snow falls, home and business owners are often faced with the difficult decision on whether it is safe to clear snow and ice from outside the front of a property. This annual dilemma often finds its way into the media given the potential liability from “doing the right thing”. Martin Herson, Associate in the Personal Injury department discusses further.

What are the Local Authorities responsibilities?

Under the Highways Act 1980, the Local Authority is responsible for ensuring ‘safe passage’ along a highway, so far as reasonably practicable. The definition of highways includes adopted roads, public footpaths and pavements.

The Local Authority are more likely to concentrate on the main roads and therefore highly unlikely to get involved in clearing pavements in residential areas. Section 58 of the Highways Act 1980 gives Local Authorities a defence against claims involving snow and ice. This stipulates that they only have to clear where is reasonably practicable. There is no requirement to keep all routes clear, all of the time.

What is the reasonability of the homeowner/occupier?

Private occupiers of houses are not obliged to clear snow or ice from the public highway. If they do and someone is injured, can they be sued? The answer is potentially yes!

If the owner clears snow away in a less than satisfactory manner and leaves ice (which is potentially more dangerous than a covering of snow) then they may be liable to passers-by who can fall and injure themselves. This is because an occupier owes a common law duty of care to others (also called the ‘law of negligence’) and therefore the occupier should not do anything that makes an area unsafe for others.

What if the owner/occupier wants to clear snow from their own property?

On the occupiers own land, the owner owes visitors a duty of care under the Occupiers Liability Act 1984. It is therefore the responsibility of an occupier to take ‘reasonable care’ to ensure that any visitor is safe. This includes the postman, milk man or anyone else who has an implied licence to walk up to the front door. The same principle applies to businesses. Entrances and exits from premises should be maintained in a condition that is safe and as far as possible, without risk.

The issue of liability is not necessarily whether an occupier has attempted to clear the snow or not. An occupier can be liable for injuries caused by ‘failing to act reasonably’ in order to prevent an accident.

The question is – as a home owner, should you bother at all? The rule of thumb is that an owner is more at risk of doing half a job than doing no job at all. Clearing the snow to expose ice or wetting and allowing to freeze can create a high risk of liability. Leaving a blanket of snow is highly unlikely to result in a successful claim. Anyone wanting to sue for a slip or trip in the snow must prove their claim on what is called the ‘balance of probability’ i.e. that negligence (or breach of a statutory duty in the case of a local authority) was more than 50% likely to have caused the accident.

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