Is it Wise to Remove The Snow From The Pavement Outside Your Home
In England and Wales the pavement and roads are technically the Crown’s property and therefore under the Highways Act 1980 the duty to inspect, maintain and manage the Highway including the pavement is often delegated to the appropriate Local Authority.
In Greater London this would be in the hands of the various London Boroughs. For example, our Offices are in the London Borough of Tower Hamlets and therefore all pavements and roads are to be the responsibility of the appropriate Department of London Borough of Tower Hamlets.
It is for this reason that whenever somebody trips over a paving slab or a defect in the pavement a compensation claim is made against the appropriate Local Authority. Primarily therefore the duty to remove the snow and/or to have in place a system so that the snow does not accumulate creating dangerous hazards to members of the public lies in the hand of the appropriate Local Authority.
For many reasons, including economics, in the current severe cold weather Local Authorities have not had the resources nor the system in place to take preventive action before the event causing many areas around the British Isles to be dangerous.
There has been many questions raised in the media about the risk of householders adjacent to these pavements clearing the snow before it accumulates and the dangers involved in that. Many opinions have been expressed as to the danger of householders clearing up the snow as there is a likelihood that in doing so would create a surface of water which may freeze overnight creating a even more dangerous situation for members of the public. That if a member of the public is injured as a result of that ice he or she could bring a claim against the owner/occupiers who had removed the snow having created a trip/a trap.
In principal the action of the householder would be an act of intervention. As the primary responsibility to clean the snow is that of the Local Authority, the action of the householder would be an intervention by a third party and if in fact that leads to a dangerous pavement then in principal an injured member of the public could bring a claim against the householder for having created a trip/trap.
Should you still remove the snow?
An Act of Parliament does give legal defence to Local Authorities as regard any claim brought by members of the public for having created a dangerous pavement. The Defence provides that if the Local Authority can produce evidence that they have a reasonable system in place to inspect and maintain the pavement then notwithstanding a trip or trap being created and a person being injured a Court of Law would hold that they are not legally responsible for the cause of the accident.
In the same way it is my view that if a claim is brought against a householder for having removed the snow and having a created a trip or a trap by the freezing ice there is a Defence available though it would not be a statutory Defence as is available to the Local Authority.
It is my view that a claim such as that which would be in tort of negligence, a Court of Law would consider a Defence of Public Policy.
What I mean by that is that in cases of justice a Court would have a discretion to consider a claim brought by a member of the public and whether or not it would be in the public interest to hold owner/occupier responsible for removing the snow.
In my view removing the snow is an act of civic duty and it is in the interest of the public at large. Therefore a Court of Law would be reluctant to impose a duty and hold the owner responsible for removing the snow on the grounds of Public Policy. Moreover, a Court would take a strict view of legal responsibility of an owner particularly in an environment where it is considered that compensation culture has taken leave of its senses.
It is quite clear that if all of us carried our public duty and removed the snow outside each of our houses the problem that we have come across in the London area in the last week would have been much less so. A Court of Law would take a positive view of this development and would encourage such an act rather than impose a sanction.
Finally, I understand that in the USA and Canada there is a duty imposed on householders by a Law to remove snow and ice and whilst we have no such legal obligation a Court of Law is likely to look at other Common Law jurisdictions when determining the issue between the injured member of the public and the owner.
Therefore I recommend that we all should be brave and carry out our civic duty. Should you happen to find yourself in a position where someone wishes to sue you for carrying out your public duty, please feel free to contact us and we will be more than happy to assist.
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