No, it ain\’t legislation

Pavements are being left covered in ice because of “ludicrous” laws that put home owners and businesses at risk of being sued if they try to clear them.

Later in the piece they refer to legislation. And it ain\’t legislation.

But the Institution of Occupational Safety and Health, the professional body representing 36,000 health and safety experts, gave warning that this could lead to legal action.

In guidance to its members, who advise businesses through­out the country, it said: “When clearing snow and ice, it is probably worth stopping at the boundaries of the property under your control.”

Clearing a public path “can lead to an action for damages against the company, e.g. if members of the public, assuming that the area is still clear of ice and thus safe to walk on, slip and injure themselves”.

No, it ain\’t legislation. It\’s Common Law.

BBC confirms  that this isn\’t H&S, but what\’s known as a \’tort of nuisance\’.

Simply put, snow and ice are natural things, no one\’s fault. But if you attempt to clear and don\’t get it right then people might assume that it\’s clear and then if and when they injure themselves you\’re responsible. \’Coz you didn\’t clear it properly.

Yes, sure, you could pass a law changing this. But the Common Law is built on interlocking reasoning: who in hell knows what else you would change by changing just this little bit? As with Tony Blair doing away with the office of Lord Chancellor, it\’s not as simple as just changing one little bit of the system.

8 thoughts on “No, it ain\’t legislation”

  1. One observation- I generally find the bits of footpath that have been cleared of snow more slippery than the bits that have been left alone- particularly after a day or so. It’s the water from the thawing snow around that re-freezes overnight that does it. I head for the least trodden, uncleared bit available.
    So I think the common law has some sense to it.

  2. Leaving householders and businesses with potentially large liabilities just stifles initiative. And the result is that the elderly, the wheelchair bound, and young mums who need to use a pram or baby buggy for their child, end up effectively housebound until the stuff thaws naturally.

    I think if I fell on a cleared section of the pavement, through simply assuming it had been done perfectly, the fault would be my own. You know that when there have been freezing conditions, you should take extra care. Drivers are expected to cope responsibly with black ice conditions, even if the road surface looks fine.

    Tripping on wonky paving slabs might be a different matter, because we all pay local authorities to do their statutory duty of maintenance.

  3. Good point(s).

    I noticed Dale was twittering on about this earlier…with the strange effect of making him sound like a civic republican socialist. Most odd.

  4. Pingback: Iain Dale the…civic republican socialist? « Bad Conscience

  5. But how can you legislate for what assumptions people can or do make?

    The change is not in the law, but in our assumptions about what people have to be told explicitly, lest they turn out to be idiots on the borderline of being a danger to themselves or others. The point is that in the past we would assume that people would know cleared pavements could ice up again, and simply do our best. Now we have to assume they won’t, and leave lethal hazards in the path of little old ladies with fragile bones so that the danger is more obvious.

    The proposed law (or whatever it might be) would simply have to say that people are not entitled to assume a public environment is totally safe with regard to natural (or obvious) hazards simply because of the existence of some safety measures.

  6. My understanding is that the injured party would have to prove that your actions (clearing the snow from the pavement) was done with malicious intent, that you had in fact cleared the snow to deliberately injure them.

    Not even the ambulance chasing ‘no-win-no-fee’ solicitors would touch a case like this with a barge pole. It’s just another example of H&S nonsense infecting the masses.

  7. Hi Tim,

    The Sunday Telegraph Report about businesses gritting public spaces was inaccurate – there is no IOSH guidance telling businesses not to grit. We were contacted by the Telegraph for a comment last week and supplied one saying that we encourage businesses to be a good employer and neighbour by gritting beyond property boundaries to prevent accidents and to make sure that the task is carried out thoroughly.

    This comment was ignored, and instead they took words from the “Just Ask” column of SHP magazine in February last year, contributed by legal consultancy Croner, and attributed them to IOSH, passing this off as guidance issued by IOSH to its members.

    IOSH has been completely misrepresented. Full details of the story and inaccuracies of the Telegraph report are on our website

  8. Pingback: Snow clearing isn’t against “elf ‘n’ safety” « 5 Villages' Voice

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