This article was published in 2010, in Newsletter 93.
With winter approaching, we have a collection of tips and suggestions compiled by members in the harsh weather last winter later in this Newsletter. In the meantime, there was a “‘elf and safety gone mad” story doing the rounds during last winter’s severe weather suggesting that people might be sued if someone slipped on an area where they had cleared away snow. In a letter to a constituent which was subsequently published, David Howarth, the city’s then MP, and a lawyer, outed it for the canard it is. As wintry weather approaches, we thought you might like to see the letter, since it is as true for good neighbours clearing the way for cyclists as for pedestrians.
…Fortunately, the law is not what the media like to give the impression that it is. Liability in these circumstances is well nigh impossible.
There is no liability for failing to put right dangerous conditions that one had nothing to do with creating. If one attempts to improve a dangerous situation, there can be no liability if the situation that results from one’s intervention is the equivalent in terms of risk, or is less risky, than the original situation. This is so no matter how badly injured the passer-by.
Furthermore, in the very unlikely case where the intervention does make the situation more risky, it is not enough to show that the passer-by fell over. The passer-by would have to show that he would not have fallen over anyway, or would not have injured himself just as badly in some other way – something that is very hard to do.
Finally, even if the risk was made worse and the injury was caused specifically by the enhancement of the risk that the householder was responsible for, there is still no liability unless the passer-by can prove that the householder acted in an unreasonable way. Since most people think, as you and I do, that it is perfectly reasonable to clear the snow from the pavement outside one’s house, even if the case had not been thrown out previously, it would fail on this point.
There is no known case of anyone in this country ever being sued successfully in these circumstances. The nearest we have ever come is a case in which the fire brigade turned up at a fire, did nothing apart from turn off the building’s sprinkler system and then left, leaving the building to burn down. In a case in which the coastguard looked for some canoeists who had fallen into the sea and went off in entirely the wrong direction so that they were always looking in the wrong place, so that the canoeists drowned, the court decided that they were not liable because they had not made the situation any worse for the canoeists.
There is no need for a change in the law. What we need instead is a change in the quality of the people who write and edit newspapers.
Yours sincerely, David Howarth MP