Personal Injury – Occupiers’ Liability in Adverse Weather

Spring will soon be upon us, and we can therefore reflect on how the winter has affected legal services to clients. Winter is the most common time for personal injury accidents to happen due to slipping on ice and snow. The first question on most people’s minds would be “Whom can I sue?” Whilst a civil litigation personal injury claim may be considered, one must not forget that there are also other aspects of private law which could be considered, including Occupier’s Liability.

Unfortunately Britain is not always equipped to deal with adverse weather conditions. The weather is down to ‘Mother Nature’, and when weather warnings are put in place stating, ‘Go out only when necessary’, they should be adhered to. It is up to the individual to decide whether to take the risk. Therefore, in many cases, any injury you incur will not be claimable as it is simply just an accident.

There is also the question as to whether all pathways and roads should be gritted to avoid such accidents and, if they are not, whether the local authority then breaches a duty of care. In answer to this, the councils are not duty bound to salt and grit any roads. The major roads are gritted, including motorways and some A roads, to ensure the delivery of food supplies, fuel and other vital essentials. Other areas are gritted only as a matter of courtesy if there is enough salt to spare. Surprisingly, bus routes do not have to be gritted.

It is not just the local authority that can be considered. Occupiers’ Liability concerns the liability of an ‘occupier’ of land or premises for the injury or loss or damage to property suffered by claimants while on the occupier’s ‘premises’.

Occupiers’ Liability is a fairly recent tort and is found in two statutes: 

  1. The Occupiers’ Liability Act 1957 – which is concerned with the duty of care owed to all lawful visitors
  2. The Occupiers’ Liability Act 1984 – which is concerned with the duty owed to people other than lawful visitors, the major group here being trespassers

By s. 1(2) OLA 1957 the classes of people to whom the occupier owes a duty remains as it was under the common law. These are called visitors:

  • Invitees – These are people who not only have permission to enter but whose entry is in the material interest of the occupier, e.g. friends making a social call or people invited onto land, for example, to give a quote for work.
  • Licensees – These are people whose entry is in the material interest of the occupier, for example, customers. They can include anyone with permission to be on the premises for whatever purposes.

An implied licence can also be created in the following situations, for example:

  • Those entering under a contractual agreement which could occur in one of two situations:
  • Where the person has a direct contract with the occupier, for example, a painter or plumber.
  • Where the person entering has a contract with a third party, for example, a subcontractor. In this case, they act as a licensee. 
  • Those not requiring any permission to enter because of a legal right to enter, for example, meter readers or Police officers in execution of a warrant. 

The extent of the duty of care to such lawful visitors is set out in s. 2(1) OLA 1957, which states that “an occupier owes the same duty, the common duty of care, to all his visitors except insofar as he is free to do and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise.” The 1957 Act imposes no duty of care towards trespassers. A more limited duty is owed to trespassers under the Occupiers’ Liability Act 1984. 

If a shop or business opens to members of the public during adverse weather conditions, they have a duty to ensure that the environment is safe to both their employees and visitors. If they do not do so, they could face a claim under the Occupiers’ Liability Act 1957. Therefore, if you slipped in a car park, footpath, entrance, etc. which had not been freed of ice, then you could have a potential claim. This would also include hospitals and other public services.

It must also not be overlooked that as a private person you also owe a duty of care to visitors to your property, for example, others such as the postman, the milkman, delivery drivers, and even friends and relatives. If you fail to sufficiently clear your own path and driveway from ice and snow, you could open yourself up to a potential claim, also under the Occupier’s Liability Act 1957. It should also be noted that if you do attempt to clear parts of the road near your home but do not do this properly, you could be making the area worse and increasing the risk of a claim against you.