Recent months have seen forecasts of the UK being faced with the 'coldest winter' ever. Amidst predictions of increased snow and ice, insurers of employers and occupiers will be keen to ensure that they are complying with any obligations to protect employees and visitors from the risk of slips and falls.
Key issues to consider:
- The Occupiers' Liability Acts, together with the Health and Safety at Work Act 1974 and associated regulations, impose duties protecting the safety of individuals while at work or visiting property
- For occupiers (businesses and individuals) this means the removal of ice and snow from paths and car parks. Warning signs will not usually be sufficient to discharge the duty owed
- Employers have a duty to ensure the safety of employees in the areas in which they work
- If a claimant has voluntarily undertaken a hazardous activity or has taken a risk, then this could negate any cause of action against a defendant or mean a finding of contributory negligence. There is no duty on defendants to protect against all risks
- Risks should be assessed, with systems put in place to manage it where appropriate. This may take the structure of monitoring temperatures, identifying areas likely to be affected by ice, and actions to be taken, such as gritting, diversions or covering thoroughfares
- A delay in implementing suitable risk prevention and the time available to respond to events will be a factor when a determination is made on whether or not there is a breach of duty
Key legislation and guidance:
- The Occupiers' Liability Acts 1957 and 1984
- The Health and Safety at Work Act 1974 and associated regulations, impose duties protecting the safety of individuals while at work or visiting property
- Guidance from the Health and Safety Executive
The Occupiers' Liability Act 1957 s2(2) imposes a duty on both private and business occupiers to:
- Take care as is reasonable in the circumstances
- To ensure that visitors are safe for the purposes that they are invited or permitted by the occupier to be there
- Ensure that pathways and areas accessible to visitors are cleared of hazards caused by snow and ice
These areas can include car parks, entrances, exits, driveways and pathways.
Using a sign to warn people of the risk of snow and ice is unlikely to be sufficient to discharge the duties of an occupier.
A warning sign should be used in conjunction with positive action to prevent slips and trips – this may be the clearance of ice and snow or salting/gritting the affected areas.
As to the statutory background of what actions are considered when discharging the duties, s(2)(4)(a) of the 1957 Act states:
"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—
(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not, to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
The HSE issued guidance earlier this year on how to prevent risks from ice and snow:
- 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
- Take action whenever freezing temperatures are forecast. Use weather sites such as the Met Office where available
- Put a procedure 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
- Consider covering walkways or use an insulating material on smaller areas overnight
- Divert pedestrians to less slippery walkways and barrier off existing ones
- Remove warning cones/signs once the hazard has passed or they will eventually be ignored
The HSE has also provided guidance on how/when to use gritting and salting facilities, confirming that salt is most effective when it is ground down and placed down before the frost/ice can settle.
Gritting should be carried out when frost, ice or snow is forecast or when walkways are likely to be damp or wet and the floor temperatures are at, or below freezing.
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