Snow, ice, winter and other stuff

Running a successful business is hard work. The costs associated with accidents can push a business over the edge and damage its commercial reputation. Sometimes it seems that Mother Nature is not helping us! According to the HSE, slips & trips tend to peak in the autumn and winter due to natural phenomena, including things such as:

• there is less daylight
• leaves fall onto paths and become wet and slippery
• wind chill factors can give rise to lower apparent temperatures
• cold weather spells cause ice and snow to build up on paths

Every year the inclement weather covering areas of the country with snow and ice receives a lot of national media coverage. Local press attention goes to the more personal cases associated with the injuries that people suffer due to falls. Some of these injuries result in claims for damages pursued through the courts.

There are some simple and effective actions that you can take as a business to reduce the risk of a slip or trip. Regardless of your site’s size, always ensure that issues affecting regularly used walkways are tackled promptly.

Widespread misconception

There is a misconception amongst employers and business owners that if they take steps to clear or grit a pathway to prevent an accident occurring, they are automatically accepting responsibility for any slips or trips that may occur on their premises. It is also commonly thought (equally wrongly) that if they do not clear the ice and snow that they cannot be held liable for any injuries that may occur.

The simple truth is that an employer (or occupier of premises) should take all reasonable steps to reduce the risk of an accident occurring. In this way, they can greatly reduce the chances of being successfully sued for any accident that may occur.

Some simple points of law

The starting point for many claims arising from such slips and falls is the Occupiers Liability Act 1957. Under Section 2 of this Act, the occupier has 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”

What constitutes ‘reasonable steps’ is a question of fact and is determined within the circumstances of each case. Whilst the courts may be sympathetic to occupiers who are faced with unprecedented weather conditions this will not be the case when there are longer durations of the cold conditions and when the premises have been left apparently untreated. Key considerations in such claims are the length of time for which the ice or snow has been present, whether or not the road or path where the accident occurred was frequently used by other persons, what efforts have been made by the employer or business owner to clear the ice or snow and whether or not anyone else has had a fall in the same area as a result of the ice or snow being present.

To protect yourself and your business from claims from damages arising from slips and falls in icy conditions, good evidence will be required regarding what was actually done to clear snow and keep surfaces free of ice.

In the event of an accident, consider how you would be able to answer the following:

•       Does the organisation have a policy for dealing with access and egress in icy weather?
•       Is the policy effective
•       Was a risk assessment carried out?
•       Were walkways prioritised for treatment, and if so, how?
•       How many staff (including contractors) were deployed to the task?
•       Were extra staff drafted in, if not, why not?
•       How much grit was used?
•       What sort of snow clearing equipment was used?
•       What pressures were there on resources?
•       Were grit supplies rationed or even exhausted?
•       What measures did schools take to increase supervision of pupils entering and leaving school and during any external playtime?

Claims obviously occur after the event, and it may be some time before claims are notified or reach court. In these cases, recollections of exact details will most likely fade: facts will be forgotten or will be misremembered. Wherever practical, any written records of the steps taken (timesheets/rock salt usage, etc.) should be retained where it is suspected that claims may arise.

The employer/employee situation

Employees may also try to bring a claim against their employer due to their slipping on ice or snow under Regulation 5 of the Workplace (Health, Safety, and Welfare) Regulations 1992. This states that:

“the workplace … shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair”

Regulation 12(3) of these Regulations states that only reasonable steps need to be taken to avoid the risk of slipping. However, the Approved Code of Practice makes the employer’s duty clear:

“arrangements should be made to minimise risks from snow and ice. This may involve gritting, snow clearing and closure of some routes …”

Importantly, working following the Approved Code of Practice can be used as a legal defence. Conversely, failure to do so leaves the employer in the invidious position of having to prove that the steps that they took were suitable and sufficient to reduce the risk to as low a level as was reasonably practical in the circumstances.

Snow and ice – advice from the HSE

·        To reduce the risk of slips on ice, frost or snow, you need to assess the risk and put in a system to manage it.

·        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.

·        You need to take action whenever freezing temperatures are forecast. Keep up to date by visiting a weather service site such as the Met Office or the Highways Agency.

·        There are also smart signs on the market, available to buy at low cost, displaying warning messages.

·        Put a procedure in place to prevent an icy surface forming and/or keep pedestrians off the slippery surface;

o   Use grit (see separate article below for more detail) or similar, on areas prone to be slippery in frosty, icy conditions;

o   Consider covering walkways, e.g. by an arbour high enough for people to walk through, or use an insulating material on smaller areas overnight;

o   Divert pedestrians to less slippery walkways and barrier off existing ones.

·        If warning cones are used, remember to remove them once the hazard has passed or they will eventually be ignored.

Be clear about your areas of responsibility

While the Highways Agency and local authorities have responsibility for clearing public highways and pavements, other areas such as: car parks, access roads, access routes and pathways are the responsibility of the occupier of the premises.

Simple procedures for smaller areas

A pedestrian access route pathway of at least one metre wide should be cleared to allow access for pedestrians, pushchairs and wheelchair users. Snow and ice should be completely removed using suitable equipment (such as snow shovels). Snow and ice must not be brushed or melted using hot water. After the pathway has been cleared, then grit (salt) should be used to prevent it reforming and to provide additional grip. Extra care should be taken when clearing sloping pathways and steps.

What about bigger areas?

It is possible to use a similar process for clearing bigger areas, such as car parks, playgrounds, etc. This would require greater manpower to clear the area effectively in a reasonable timescale. In this case, snow clearing machinery (such as snowploughs, snowblowers, etc.) should be used and then the area should be gritted. This can lead to genuine business concerns relating to the cost and the storage of such dedicated and lightly used equipment as well as issues relating to the training of operators. It is possible to commission the services of professionals (contractors who have this sort of equipment) to do the clearing operation for you. You also need to consider where you put the snow that is cleared from larger areas!

What about appointing a (competent) contractor to do the job?

You can either manage the issues arising from snow and ice directly, or you can get professional help (so that you can concentrate on your core business). If you appoint a contractor to clear snow and ice for your business, they must be competent. While you can appoint someone to do the work for you, you cannot give away your responsibilities. If you appoint a poor contractor, you will still be responsible for their work. To ensure that this does not happen your business should have a policy for the selection and control of contractors. The people that you appoint to clear snow and ice and to grit your premises should be appointed through this process. You should be able to demonstrate that you consider them to be competent.

Appointing competent contractors can help you demonstrate that you have suitable arrangements in place and could be a legal defence (see Gitsham v CH Pearce and Sons PLC (1991) below).

Planning is always import: If you are going to appoint a competent contractor, don’t leave it too late. Make your arrangements well in advance of expected bad weather. From a business point of view, it makes sense to start developing a winter maintenance plan now. Getting your winter gritting and snow clearance requirements sorted during summer means one less thing on your ‘to-do’ list later on in the year.

Gritting

The most common method used to make roads and pathways safe is gritting. It is relatively cheap, quick to apply and easy to spread. Rock salt is the most commonly used ‘grit’. It is the substance used on public roads by the highways authority.

Without going into the science, salt can stop ice forming and can cause existing ice or snow to melt. It is most effective when ground down, but this will take far longer on pedestrian areas than on roads.

When to Grit

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. The best times are early in the evening before the frost settles and/or early in the morning before employees arrive. Salt doesn’t work instantly; it needs sufficient time to dissolve into the moisture on the floor.

If you grit when it is raining heavily the salt will be washed away, causing a problem if the rain then turns to snow. Compacted snow, which turns to ice, is difficult to treat effectively with grit. Be aware that ‘dawn frost’ can occur on dry surfaces, when early morning dew forms and freezes on impact with the cold surface. It can be difficult to predict when or where this condition will occur.

Don’t be taken in by myths

There are no health and safety regulations that prevent people from clearing snow at their home, their business or at their neighbours’ homes, despite newspaper stories in previous winters to the contrary.

Some cases

Despite a great many “hospital episodes” (stays and admissions) each year arising from falls on snow and ice, there are fewer reported cases brought under the Occupiers’ Liability Act where injuries have been caused by snow or ice than you might expect. This is most likely that most claims are settled out of court.  Despite the compensation culture that now exists in the UK claims being are settled before trial – probably because liability is often not disputed in these cases. There were 5,439 Finished Consultant Episode (FCE) bed days reported for 2012-2013 {FYI: data from the HSCIC.gov.org website}.

In the 1992 case of Murphy v Bradford Metropolitan Council, a teacher sustained an injury from falling on an icy path that had been cleared of snow by the school caretaker and had been treated with rock salt less than an hour before the fall. The employer (the Council) was found to have failed in their duty of care, under the Occupiers’ Liability Act, to see that the claimant was reasonably safe. In this case, the slope where the teacher fell was dangerous and notorious for slips. As a result, the court felt the Council should have given it a greater degree of attention.

Other cases have highlighted other important factors that the courts will consider.  If a short period elapses between the relevant area being safe to walk on, and the hazard forming or re-forming, so there is not enough time for the occupier to notice and rectify the hazard, the occupier is less likely to be held liable, as in the 1995 case of Marsh v Kerwin.

Your employer should take steps to ensure that walkways into the building where you work are gritted if there is a freezing weather warning or, if they cannot be gritted, that they are closed or cordoned off for use.

An important case showing that a suitable Gritting Policy can protect the Company

In the Court of Appeal case of Gitsham v CH Pearce and Sons PLC (1991), an employee brought a personal injury claim following a slip on a snow-covered roadway outside his place of work. The premises were situated on a 6-acre site on high ground and exposed to wind and weather. On the morning of the accident (which happened at 08:45 am) the weather conditions were poor. It had snowed overnight and continued to snow that morning and conditions were described as a windy blizzard. The employer’s system of gritting began at 7:00 am before people arrived for work at 7:30 am and if carried out with no delays would complete at around 08:05 am which would have been before the Claimants accident. The court heard evidence that the gritting took longer that morning and the area on which the Claimant slipped and fell had not been gritted. The Court, however, held that the Defendants had done all that was reasonably practicable having regard to the weather circumstances at the time. Importantly, the court found in favour of the employer (occupier) because:

·        they did have a gritting policy in place, and

·        this had been carried out to the extent that was reasonably practicable

The Court of Appeal found that the employer had an extensive procedure for clearing snow and ice which was being properly carried out on the morning of the accident and that the defendant had done all that was reasonably practicable in the severe weather conditions to ensure that the access roads were safe.

Be particularly wary of water leaks

Freezing conditions may cause old (or poorly protected) pipes to fail, resulting in water leaks. Where water freezes it is particularly hazardous. The Water Industry Act 1991 imposes strict liability on water undertakers for the escape of water. If an accident has been caused as a result of a leaking pipe and the water has then frozen there would be no difficulty in making a successful civil claim.

Wet and decaying leaves

Nature is great, but not always friendly to human endeavour. In autumn, many trees shed their leaves and these decay and feed the soil. However, fallen leaves that become wet or have started to decay can create slip risks in two ways; they can:

•       conceal other trip hazards that may be on the path, or
•       create a slip risk themselves

As with snow and ice, occupier liability for this natural phenomenon exists. You need to put in place a procedure for clearing up and removing leaves at regular intervals. Leaves need to be collected, not merely blown about to recollect or to collect elsewhere.

Slippery surfaces from moss and similar

Moss is another natural phenomenon, and while it may not cause damage to the path, it can make access routes treacherous. Paths and steps covered in algae-like growths, liverworts, lichens and moss are likely to be slippery, leading to falls.

Winter is traditionally the time when algal, moss and liverwort growth is most significant, but a build-up can occur during any wet period or in shady, humid areas.

Algae-like growths, liverworts, lichens, and moss can be controlled through various chemical treatments and non-chemical methods of control. It is usual for this to be controlled through the landscaping contractor or another specialist contractor. As a business owner, you should ensure that such risks are controlled properly on areas under your control.

 Simple Steps (snow and ice)

·        Develop a policy for dealing with snow and ice.

·        Make suitable arrangements in advance – appoint a competent contractor now or provide your staff with the right equipment, materials and training.

·        Clear snow and ice from roads and pathways on your premises.

·        Avoid making pathways more dangerous – don’t allow them to refreeze.

·        Clear snow and ice from steep slopes and steps.

·        Prioritise important and well-used routes over lesser-used routes.

·        Clear a route 1m wide access route on pathways.

·        Apply grit or salt to keep roads and pathways from freezing.

·        Make checks at appropriate intervals to ensure that roads and pathways remain clear where temperatures remain below freezing.

·        Consider the needs of employees and visitors, in particular disabled and elderly visitors.

·        Ensure that adequate equipment and human resource is available to clear snow and ice.

·        Monitor the performance and effectiveness of your snow and ice contractor.

Simple Steps (fallen leaves)

·        Develop a policy for dealing with fallen leaves.

·        Make suitable arrangements in advance – appoint a competent contractor now or provide your staff with the right equipment, materials and training.

·        Clear fallen leaves from roads and pathways on your premises regularly.

·        Prioritise important and well-used routes over lesser-used routes.

·        Carry out checks to ensure that roads and pathways remain clear.

·        Consider the needs of employees and visitors, in particular disabled and elderly visitors.

·        Ensure that adequate equipment and human resource is available to clear fallen leaves.

·        Monitor the performance and effectiveness of your fallen leaves contractor.