On thin ice: the legal side of handling the frozen roads of Scotland

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With the latest lockdown, one of the only opportunities to get out of the house is exercise.

But even that is proving difficult with snow and ice on many sidewalks and roads across Scotland, and many health departments are alert of a rise in weather-related slips and falls.

And who is responsible for making sure that without fracturing a hip we can all get out and about?

The answer depends on where you want to go, explains Alan Calderwood, associate solicitor at Thompsons.

The solicitor notes that the local authority is responsible for the clearing and gritting of most roads and highways, while the owner is responsible for other areas, such as supermarket parking lots.

Employers also have a much greater responsibility to make sure that their workers are safe.

He said, “The highway authority in Scotland is responsible for keeping roads and sidewalks away from ice and snow, and that is the local authority in the end.”

“This power derives from Section 34 of the 1984 Roads (Scotland) Act, which reads, “The Roads Authority shall take such measures as it deems fit to avoid the endangerment of pedestrians and vehicles on public roads by snow and ice.”

It can be seen from this that it does not state that X, Y and Z have to be achieved, but that they should take certain measures as they find necessary.

If the local authority feels it is fair to do what they have done, so that is all they have to do within the scope of the law.

He said, “The law has evolved to say they have to do what is appropriate under the circumstances,”

“That usually starts with the A roads and then works its way through the priority lists, which is why most people’s roads never get gritted because they’re never that far down the list.”

It is legally acknowledged that municipalities have limited resources, Mr. Calderwood explained, and must therefore prioritize the most frequently traveled or vulnerable roads. This can include routes, as well as A paths, near schools or fire stations.

Once this policy is established, however, municipalities must stick to it or they will be held accountable for legal action.

“If you slip on ice or your car goes off the road, the main thing you need to check is whether the municipality has followed its own policy,” he said.

So if their guidelines state that when the temperature hits -1 degrees Celsius or anything like that, they grit A roads, then you should check the records to see if that day they actually followed their guidelines. If they did not obey their own guidelines, then they are incompetent and responsible for any losses that occur.

They may, in short, decide what they’re doing, but they have to stick to it. Since there are not enough gritting vehicles available, they can’t change their strategy at night.

Mr. Calderwood clarified that every year, Thompsons wins many lawsuits in which municipalities have neglected to implement their winter maintenance plans, sometimes resulting in life-changing implications for their customers and substantial public agency payouts.

“As an attorney, it’s always a mystery to me why municipalities don’t allocate the right resources,” he said.

“It costs them a lot of money to pay claims, and I’d much rather see them put the money where their mouth is to prevent the accidents from happening in the first place.”

The attorney added that the occupant must maintain and clean the property used by individuals or corporations. For example, a store will have to ensure that its parking lot is gritted, whereas private individuals are liable for their own driveways and walkways.

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