The Lorry Lawyer: DWF keeping you moving forward

Don’t slip up on your duty of care in winter

Occupiers and employers owe a duty of care to both visitors and employees who enter/work on premises. It is worth remembering that ‘premises’ includes:

  • not just buildings but the entirety of the land and everything erected upon it
  • moveable structures such as vehicles.

So, each year, as the winter weather draws in, you need to ensure that you are fully aware of your responsibilities to those who are on or may come onto your premises.

An occupier’s duty to visitors

Section 2 of the Occupiers’ Liability Act 1957 states that:

“the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” 

The premises have to be reasonably safe and the requirement is that the occupier takes reasonable care. It will depend on all the circumstances of the case as to what constitutes reasonable care.

In the case of McCondichie v Mains Medical Centre [2004] L.R.4 snow had fallen and ice had formed on the car park in which the claimant slipped. The pathways had been gritted but the grit did not cover the whole of the path. The claim was dismissed on the grounds that the defendant had a reasonable system in place and had implemented this prior to the accident taking place.

Therefore, ‘reasonable’ care for smaller occupiers would most likely constitute a warning notice stating: “ice proceed with care” and some gritting of walkways. However, for the larger occupier or the occupier with multiple premises in different locations around the country, a formal winter policy may be required. The policy at the very least should cover the removal or combat of the risk of slipping on ice and snow when the risk arises for any extended period of time and include risk assessments and guidelines for depot managers to follow.

Employers are subject to a stricter duty of care towards employees working on their premises. As an employer you have a common law duty to provide a reasonably safe place of work and are also subject to the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992.

An employer’s duty to employees

The Workplace (Health, Safety and Welfare) Regulations 1992 applies to all premises which are a place of work and impose express duties on employers and those with control of the workplace or part of it. In particular, Regulation 12(3) provides:

“so far as is 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….”

Ice and other frozen material are substances liable to cause a person to slip, the effect of a cold snap if it causes a car park or walkway to freeze over would cause a breach of Regulation 12, subject only to the defence of reasonable practicability.

The employer would need to show that it had taken reasonably practicable steps to protect against the risk of slipping on ice. The court held in Edwards v National Coal Board [1949] 1 All ER 743 that an employer need not do all that is physically possible, however must undertake a computation between risk and sacrifice. This would usually mean that you should consider what might be done and then weigh up the cost of taking the steps identified. Obviously, the cheaper and less onerous the step the harder to justify not taking it.

The first step as an employer is therefore to establish a cold weather policy which should include risk assessments and guidelines for depot managers to follow when the freezing conditions hit.

The second step is to ensure that the policy is correctly implemented at all premises and make sure documentary evidence is available to show that the policy has been carried out at that particular site.

If snow falls, a policy of making sure internal traffic routes are free from water brought inside by visitors and employees, and outside ensuring key walkways and traffic routes are safe, should be regarded as a minimum.

Case law suggests that employers and occupiers have a higher duty of care inside than out. A pool of water inside is very likely to represent a substance which may cause a person to slip, whereas outside it is not, unless it is frozen. Even then, outside, it is clearly not possible or practical to ensure that each and every pool of water which freezes is gritted. This indicates that the court understands that it is not necessarily reasonable, nor practicable to clear every last snow flake or ice droplet from a car park or pathway. Nonetheless, reviewing your company’s approach to accident prevention may prevent you from slipping up on your duty of care this winter.

If you would like advice on any aspect of public liability or employers’ liability please contact Claire Farrell, Solicitor on 0113 261 6062 or Helen Elsworth, Partner on 0113 261 6010.

lorrylawyer@dwf.law

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