Ooops, not quite all good new on the snow myth-busting front. Despite good news from many parts of the country about councils laying to rest the myths around people being sued if they clear snow from outside their own homes, Wigan Council has gone for reinforcing rather than rejecting the legal myths:
HOMEOWNERS and businesses could risk being sued for clearing snow from the front of their premises if someone slips or falls, legal experts at Wigan Council have warned…
With more snow forecast for this weekend, Wigan Council’s borough solicitor Kevin Lawson said: “It is the council’s responsibility, so far as is reasonably practicable, to ensure that safe passage along a highway is not endangered by snow or ice.
“All available council operatives were redeployed to snow clearing duties in the town centres, medical facilities and other locations after the heavy snowfall just before Christmas, but we do appreciate the public’s efforts.
“Private landowners are not obliged to clear snow or ice from the highway. If they do and they create a hazard or danger that results in an injury to another, it is possible that they could be held liable for those injuries, but that would depend on the particular facts of the case.” (Wigan Today)
It’s a classic poor legal response, because whilst nothing in the quote is untrue the way it is worded gives the wrong impression of the actual legal risks involved. Because the reality is that no-one so far has been able to identify any case of someone ever being successfully sued in the UK (or even cases going to court and being lost). A good answer would accurately reflect the position by putting it the other way round – pointing out how no-one has been sued and if you carry out normal snow clearing behaviour you can’t be sued.
If you are wondering whether this is just a case of a local newspaper inaccurately editing an answer from a council lawyer – it seems not, because the council’s press team has declined to respond to a question that gave them the chance to say just that. The council’s press office has also declined to other questions on the matter, included whether they agree with the very different tenor of legal advice given by central government and if not, why not.
Having these sorts of legal scare stories raised in the local press and then declining to comment is underwhelming, to put it mildly. Wigan could and should learn from what others have been saying, and fighting rather than encouraging mythical fears.
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12 Comments
That was the exact same reason given to me by Cllr. Hag Harris (Lab, Lampeter on Ceredigion Council) when I asked him why the pavements of Lampeter couldn’t be made accessible following a severe snowfall on November 30th 2010.
The only objectionable bit is the way that the paper put the ‘possibility of getting sued’ centre stage in that first paragraph. There’s nothing objectionable about the quote supplied by the legal team. What myth exactly are they spreading?
‘All available council operatives were redeployed to snow clearing duties in the town centres, medical facilities and other locations after the heavy snowfall just before Christmas, but we do appreciate the public’s efforts.
“Private landowners are not obliged to clear snow or ice from the highway. If they do and they create a hazard or danger that results in an injury to another, it is possible that they could be held liable for those injuries, but that would depend on the particular facts of the case.’
Perfectly true. Would it be better to pretend that people who do ‘create a hazard or danger that results in an injury to another’ won’t get in trouble for it?
Wouldn’t be that it’s a Labour council would it?
The point is that it’s not a myth. Clearing away snow enthusiastically leaving ice underneath generally makes it more dangerous and you’re likely (and deserve) to be sued if someone is injured on it.
This is all about some rose-tinted idea of a big society all clearing up because the council can’t be bothered. Drop it. And leave the snow outside your house alone. It’s safer that way.
Chris: You say people are “likely” to be sued – so can you give me an example of it ever happening? (By the way, if you want a practical example of how easy it is to clear snow without making things more dangerous, you are welcome to visit the pavement outside my house after a snowfall 🙂 )
Mike: No.
And as for the tone of the overall news story – I asked the council if they thought it didn’t accurately reflect their views and they didn’t take the opportunity to say so.
I think this item is a magnificent example of how some authorities, the press and the public in general have a very poor understanding of risk and reasonable behaviour. The courts are usually much better than this.
We live in a world of risk, so assessing risk is realistically is important. For someone to sue successfully, they would have to show that the action had made things more dangerous for them – fairly remote in itself (they would have to be people who couldn’t assess the normal risks of icy surfaces) – and that they had suffered from it by injury or loss. Following on from that the injured party would have to be sufficiently litigious to consider it worthwhile to spend the time and to have the hassle of suing. All these factors are each less than one, and multiplied together they give a very small risk. It’s no wonder there aren’t any cases of successful suits.
They then need to be set against the other risk – that someone is hurt outside your front door because you didn’t clear a hazard on the pavement. Though you would apparently not be responsible legally , morally might be a different matter.
And there is a contribution of the media. Headlined reports of horrifying incidents make for increased impact. The problem starts when people think that the number of newspaper reports gives a real measure of the level of risk involved. I write as someone who, on the evening of 9/11, was happy to board an airliner. I reckoned, that with all the other planes flying round Europe that day, the chances of a terrorist attack on plane from a Dutch-owned airline flying from Vienna to an underused UK airport were very small.
Ian Sanderson – Well, that is one way of looking at it, can I posit another. I would suggest that many people actually understand health and safety very well (and I am at a loss as to what Wigan has done wrong here). The problem is not to be found in the stats on personal injury litigation, or even the courts’ decisions. The problem is the RISK of litigation, as distinct from the volume of cases. The effect of this is to ramp up insurance premiums to a level that makes things unviable. I used to run a badminton club which, following an insurance review of litigation risk, had to close because we could not afford to insure against potential litigation. The HSE did not close us down, the risk of no win no fee litigation very much did. Look at things like public toilets being closed, trees hacked down, playgrounds dismantled. Maybe the litigation was not real, but the RISK is.
I did like the bit in the article, ‘whether they agree with the very different tenor of legal advice given by central government and if not, why not.’ One can only hazard a guess at what the, ‘tenor,’ (whatever that means) of central advice would be if it were the centre that was bearing the litigation risk.
You may well think that this is an overreaction, and you might be right. But the stark reality is that there are people out there simply looking to sue councils, sport clubs and the like and these people are a very large risk, regardless of whether or not that risk reifies. If you don’t believe me, go to youtube and type in Harris Fowler or injurylawyers4u.
As an aside here, the Coalition seems to think that things like playgrounds could be maintained and run locally in the Big Society. Lawyers will be circling looking for any big society organisation to sue – I would hope the Coalition has factored insurance costs into the Big Society. Quite why anyone would want to be a school governor is beyond me.
Keep up the good work, Mark.
Dara: What Wigan did wrong was say “Watch out! You might be sued” rather than “It’s ok – no-one is ever sued”. In fact, part of this is the very point that you go on to make about risk – Wigan is saying there’s a risk (which puts people off) without pointing out that in fact no-one has ever been able to find a case of this risk occurring.
This year an old lady stopped me while I was clearing snow, and told me that because I do it every year (and grit it too), she felt confident in going out. She was on her way to the bus stop, and confident in getting into town. It was definitely safer than the other side of the road, where the snow had been compacted into ice…
Selective quotation to try and make a fairly cheap political point I’m afraid. The article also said the following:
“Council legal experts admitted there is a legal risk to private landowners if conditions are made worse by their attempts to clear snow or ice.”
The moral being don’t make things worse – just better and there is nothing to fear.
If you want a cheap political point – what about the criticism of the LibDem council in Warrington who failed to clear the streets and pavements for a council byelection – which you lost nevertheless.
Dara
I’m sorry to hear about your badminton club, and I suspect, but don’t know, that in a way it backs up my thesis that even professional assessment of risk is a bit hit and miss. This includes the risk of being successfully sued! I can give another example: I am the chair of a scout group, and we used to have a minibus. One year, for no particular reason, the best premium our broker could find tripled. Inquiries established that insuring minibuses is a very small market, verging on monopoly. Equally mysteriously, the following year the premium halved. (We don’t have the minibus any more, but though insurance costs were one factor, the others were declining usage, since the maximum age of scouts in the group went down from about 16 to about 14, and the capital cost of a replacement.)
As someone who has been a school governor for over 16 years, I am pretty sceptical about the Big Society producing enough governors long-term to take these responsibilities in Michael Gove’s schools, without the support that councils can give schools.
On the question of parks, we have in this borough several Friends of XXXX Parks Organisations, which do some of the things that were in the distant past done by the council and could access funds to equip playgrounds from government grants. This Big Society initiative predates the Coalition and was part of central government’s urge to micromanage what councils spent money on. But don’t let me start on the imbalance of funding between central and local government, going back to the fudge that ended the Poll Tax or before…….