Cool response to ice claims

The cold snap has thrown up some complex cases for personal injury claims

THE cold snap is likely to produce a spike in personal injury claims from people who have fallen or crashed on ice and snow, if previous experience during bad weather is anything to go by.

Emergency departments are seeing up to 10 times the normal number of patients with fractures due to falls in snow and ice compared with before Christmas, and insurers say they have been notified of hundreds of weather-related crashes, most of them thankfully minor.

However, county councils say they will stoutly resist any attempt to find them liable for accidents which occur because of road and pavement conditions during the cold spell.

Most personal injuries lawyers say they don’t expect any bonanza to accrue as a result of claims made by victims of the adverse conditions, largely because there is no liability in cases caused purely by natural conditions.

Cork solicitor Ernest Cantillon says lawyers have had “no joy” from ice-related accidents in the past. “If you’re driving on a road that’s iced up and you skid, lose control and end up in a ditch, then more than likely there is no liability. If, however, the road was iced up because of a leak from someone’s tap or gutter, you could have a case.”

Generally, in adverse conditions, road users are expected to exercise due care and maintain control of their vehicles rather than blame the condition of the road.

Dublin lawyer Stuart Gilhooly shares this view: “In my opinion, there is unlikely to be any liability in a case where someone falls on ice so long as the accident was due only to the ice.”

Gilhooly likens the situation to that applying to potholes. Where a pothole blamed for an accident has occurred naturally (so to speak), the local authority is not liable; if, however, the county council attempts to fill or repair a pothole and it still contributes to an accident, the situation changes.

So a local authority is not liable for its failure to maintain a road; the legal term for this is non-feasance. But it could be liable if it negligently repairs or maintains a road, causing a crash, a situation known as misfeasance.

The cold snap has thrown up some complex cases. In one, a motorist was advised by gardaí to abandon his car because of the snow. He left it overnight on a hill where it was later hit by another vehicle which lost control on the ice.

The roads authorities enjoy wide exemption from liability for weather-related accidents, far wider than applies to private property owners, for example. City and county councils have a broad obligation to maintain the roads but there is no particular requirement for them to grit roads or pavements to any particular standard or frequency.

As Cantillon explains, road authorities enjoy a specific exemption from civil liability provisions in relation to wear and tear on all routes. Half a century ago, legislation was passed to place exactly such an obligation on them but the ministerial order to bring it into force was never signed and an attempt to force the State to enact the provision was rejected by the Supreme Court some years ago.

So natural accumulations of snow and ice are things we are expected to deal with and no liability arises. Further, the law is likely to consider snow being tamped down by pedestrian or vehicular traffic, or puddles of water inside buildings brought in by pedestrians on their boots, as natural accumulations of snow and ice.

Kildare solicitor Liam Moloney differs from his colleagues in predicting “inevitable” litigation as a result of the bad weather. Local authorities may have created “traps”, he says, by gritting some parts of a road but not others, because of a lack of stock. The failure of governments to make councils liable for the upkeep of roads may not be enough to protect them from court litigation, he says.

The Personal Injuries Assessment Board (PIAB), through which all claims must be processed, says it has received just a handful of inquiries about weather-related incidents, though a spokesman said it was early days.

The requirement to show that someone was negligent in causing an accident was a “high hurdle” to cross in the current circumstances, he says, and it was highly unlikely that people would be able to claim successfully for falls on untreated ice and snow. “The worse things got, the bigger the defence local authorities would have,” he adds.

Roads are not classified as workplaces so the Health and Safety Authority has no jurisdiction in relation to them. Neither does the Road Safety Authority’s remit seem to run to the safety of roads and pavements after it has snowed.

Strangely, doing nothing may be the best defence against legal suits. Dublin City Council said it was contacted for advice by a Crumlin resident who, as he was gritting the pavement outside his house, was threatened with legal action by a passing lout who seemed to have a good understanding of the law.

“If you salt that, bud, and I fall, then I’m going to take you to court,” the neighbourly citizen was told. The council was unable to give the homeowner any advice because it was true that he could face liability if he in some way contributed to an accident.

Thus, for example, if you sweep snow from one part of the pavement to another, and this later causes injury to another person, there is a risk that legal action could be taken against you under the “tort of nuisance” law.

As Gilhooly explains, the exemption that applies to road authorities does not extend to private landowners. Thus, for example, in a private estate or apartment complex, the management company could find itself liable for problems arising from a failure to clear ice and snow. Again, though, Gilhooly believes the liability here may be more theoretical than real.