Don't get caught offside: show ice and snow claims the red card

A winter (football-themed) personal injury case study, with outcomes

• Jonathon Tetley – Partner, Plexus Law• Vicky Lopez – Director, De-ice

Kick off

The big matchMr Duane Looney, a famous footballer, is out shopping with his wife Maureen at their favourite store, “WAGS R US”

Whilst walking across the car park, Duane slips on an icy patch and falls to the ground injuring his knee in the process

The car park had not been gritted or otherwise treated. There had been ice and snow around for several days, and the weather forecasts were for continuing ice and snow

Other customers had slipped and nearly fallen and had complained to the store’s management

The injury keeps Duane out of the game for many months and he misses the World Cup. England go on to win it! And he misses out on a World Cup winner’s medal

The footballer brings a claim under the Occupiers’ Liability Act against the owners of the store

The cross examination

The FM working on site at ‘WAGS R US’ is called into court to provide his evidence

Post match analysis

You be the Judge…What are the facts?Does Duane Looney win his claim, or does he lose?

Duane wins his case and is awarded £2million in compensation including compensation for:

Pain, suffering and loss of amenity

Loss of earnings

Care and assistance

Private medical expenses/cost of surgery

The court case makes headline news and attracts bad publicity for the store resulting in a drop in customers and sales

The results

WAGS R US – the losers

The defendants lost this case because:

The accident was foreseeable given the prevailing weather conditions at the time and in the days leading up to the accident and due to the fact that other customers had slipped and complained to the store’s management

The defendants failed to take any or any reasonable steps to grit or clear the area in question and had no winter maintenance policy

Rules of the game

Companies and other organisations who occupy private premises owe a legal duty of care to visitors to their premises

Visitors can be members of the public or employees i.e. any person entering with permission

Premises means not just buildings but the entirety of the land including car parks and private access routes (not maintainable by the highway authority)

An occupier is any person with control of the premises or that part of them to which the visitor is invited; most commonly the owner or tenant of the particular premises

The duty of occupiers to members of the public

Section 2 Occupiers’ Liability Act 1957:

“…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 duty of employers to employees

Regulation 12 (3) Workplace (Health, Safety and Welfare) Regulations 1992:

So far as is reasonably practicable, every floor in a workplace and the surface of

every traffic route in a workplace shall be kept free from any article or substance

which may cause a person to slip, trip or fall.“ ”

Application to snow and ice

The duties under the Occupiers’ Liability Act and Workplace Regulations apply to snow and ice

Reasonable steps must therefore be taken by occupiers and employers to guard against and reduce as far as reasonably practicable the risk of members of the public and employees slipping and injuring themselves in snowy and icy weather

The referee’s considerations

The severity and duration of the conditions

The number of visitors (including employees)/footfall

The size of the company/organisation

Resources

Reasonable practicability

Financial and reputational

Winners will have a ‘match plan’

Organisations have to appreciate that when it comes to removing ice and snow the responsibility falls firmly on them. Failure to properly protect employees and site visitors could result in claims exposure running to millions of pounds

Getting the right team in place

• De-ice is one of the UK's longest-established and leading winter gritting and snow clearance specialists

• Providing winter maintenance services, and helping to keep businesses, hospitals, schools and retail outlets safe and open during extreme weather

• Focused on ensuring customers' sites are made safe and remain open during periods of adverse weather

• With the latest gritting equipment and expertly trained operatives• We have built a bespoke technology system which monitors the weather and triggers

service delivery alerts• In the event of a possible claim, De-ice customers can rely on an extensive service

audit trail in order to evidence that a site or an area was fully serviced

How to defend yourselfEvidence and documents required:

Risk assessments

Winter policy/policy for dealing with snow and ice (formulation and implementation)

Salting and gritting/overnight and through day (including gritting logs/schedules)

Weather forecasts/monitoring of weather conditions

Specialist sub-contractors/gritting companies

Warning signs

Car parks/parked cars/accessibility of areas requiring gritting

Instructions/training of staff

Not reasonably practicable to grit or clear area in question?

Conclusions

• More severe winters + compensation culture/solicitor advertising = more claims

• BUT can be defended with right systems, evidence and documentation!

• The best way to avoid and reduce claims is to avoid and reduce accidents… and that does not require lawyers!

Make sure you’re on the winning team…