Occupier duties for snow and ice – to grit or not to grit?

By Emma Drew

December 8, 2015

Occupier duties for snow and ice – to grit or not to grit?

Perkins Slade is pleased to share the guest blog by Chris Gough, Consultant for Mills & Reeve LLPThe blog provides some useful guidance for sports organisations, ahead of what is predicting to be one of the hardest winters since 1963, to ensure visitors are safe to use club premises’ during adverse weather conditions. 

It may have forged the Lake District over 10,000 years ago but sports organisations are still struggling to grasp the extent of their duties to “visitors” in the face of the obvious hazard caused by a build-up of snow and ice during inclement weather. Should they take “some steps” but risk being criticised if the hazard remains, or is “do nothing” the option that leaves visitors having to make their own assessments by taking their own chances when confronted with a “natural hazard”?

Case law is thin on the ground and statute is vague (intentionally), so the facts play a huge part in determining what may or may not be reasonable for any “responsible occupier” of a sports club listening to a forecast reporting of freezing temperatures and excessive precipitation (falling as snow).

Any sports organisation, or individual capable of exercising control over their club premises owes a duty of care towards its visitors under the Occupiers Liability Act 1957. The duty is a broad one; to take reasonable care in all the circumstances to ensure the visitor is safe when using the premises for the reason they have been allowed access in the first place.

On a snowy day for example, this will include visitor safety between the car park and the front door, or while availing themselves on other outdoor access routes that pedestrians are likely to frequent during their visit. As soon as the visitor sets foot within the boundary of the premises the duty bites, even if the public highway they have just left is still covered in a deep layer of powder.

But isn’t the presence of snow and ice (presumably not “black ice”) an “obvious hazard” that a visitor has accepted knowingly and decided to run their own risk as they try and make it to our front door?  That is certainly an argument to consider, and if for example the premises are an outdoor country park the answer will undoubtedly be a resounding “yes”, but if the premises is an indoor sports centre or club house, then the occupier is more than likely to owe an active duty of care to its lawful visitors.

The answer lies in assessing what is “reasonable” in all the circumstances. That begins with giving the issue some thought (assessing the risks, considering the resources currently available and their adequacy, and identifying the steps that can be taken to address the hazard in a structured and proportionate way).

The practical answers to that process will have lead the occupier to:-

  • Identify the outdoor areas used by pedestrians most likely to be affected by ice
  • Identify those thoroughfares most likely to be used on a given day
  • Monitor the temperature
  • Take preventative measures where freezing and/or snow is forecast
  • Apply procedures to prevent the formation of ice or the build-up of snow (gritting and shovelling)
  • Keep pedestrians off slippery or untreated surfaces (warnings and even “no entry, untreated path” signs)

The Courts have accepted that keeping all access-ways absolutely clear of ice and snow at all times during bad weather is not a realistic standard to impose on either occupiers or employers for that matter (Burrows v Northumbria Water 2014). As the McCondichie case in Scotland suggested in 2003, Landlords are unlikely to be liable for someone who may have had an accident in a car park if, for example, they have put in place a reasonable system to clear access routes.  As indicated in the more recent but unreported case of B v Newcastle Upon Tyne (2014) it is enough, even in the face of heavy snowfall, to have done what was reasonably practicable in all the circumstances, even if that meant the snow clearance and gritting done perfectly well earlier in the day was an ineffective measure against a late but heavy flurry just before visitors were likely to depart the premises.

A 24 hour response service to the threat of ice and snow however desirable, is rarely cost-effective or viable for anything other than a local highway authority, and even then only in respect of its major roads. For those occupying large sites with heavy footfall a good grasp of where the “many” visitors are likely to wander is essential so that resources can be appropriately targeted. It may not be essential to hire-in an external contractor but the occupier will need to show that some careful thought and planning has gone in to prioritising certain areas.

The allocation of duties between club owners or Facilities Management agents is always a cause for concern once the first snowflake descends. Leases and the covenants flowing in both directions might be rarely considered. Provided the lease and service charges are being paid by the club occupier and the property owner doesn’t leave it too long to deal with the leaking roof or broken lights illuminating the common parts, little thought may be given to who is responsible for what.  So when it does snow, all concerned can be left very much “at sea” in deciding who is going to address the hazard and face up to the possibility that all potential interested parties may have a role to play as occupier!

Thought should have been given to the issue when the Lease was being entered into, that the “contract” should determine whether “snow and ice clearance” falls within the duty to keep the premises reasonably maintained and most importantly, on whose side of the line that obligation is going to rest. Where the Lease is silent, don’t presume that the property owner will be fixed with a snow clearing duty, or under yet another contract (for services) will necessarily be obliged to do the hard labour.

The property owner as well as the Facilities Management agent may be the “obvious suspects” and often the first target for any claim or litigation, but these cases are “fact sensitive” and only by investigating the (several?) contractual positions and most importantly the reality “on the ground” will you be able to answer “who occupies?” and then map the extent of the duty that is owed.

How can we help?

For further advice please contact Chris Gough, Consultant for Mills & Reeve LLP

Chris Gough (2)

MR logo purple 600dpi - for white backgrounds (2)

Chris is a litigation specialist within the Mills & Reeve insurance disputes practice. He resolves complex and high value injury and property claims, usually acting for insurers or directly for corporate clients who have a direct financial interest in their claims experience. Chris also protects businesses and individuals facing investigation by the police or HSE, helping them avoid or minimise any regulatory sanction.

For more information on safeguarding your sports club, please contact sportsenquiry@perkins-slade.com or call on 0121 698 8000.

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