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  • Children walking on snow

    Snow walking carries risks

    On 3 December 2010, the plaintiff, in the High Court case of Margaret McErlean –v- The Right Reverend Monsignor Ambrose Macauley & Ors (Queens Bench Division 2011/ 090028), then a teacher at St Bride’s Primary School (“St Bride’s”), slipped and fell on a snowy and icy footpath at Windsor Avenue while escorting a group of pupils to the chapel in Derryvolgie Avenue for choir practice.  She suffered a nasty fracture to her left distal radius.  The issue for the court was whether the defendant, as her employer, was liable to compensate her for those personal injuries.  The plaintiff claimed that the defendant was guilty of breach of statutory duty and negligence in and about her employment. 

    The Facts

    The weather conditions that winter had been harsh.  Snow had fallen in November and early December.  The temperature on 3 December was in or about freezing point. There had been many complaints in the newspapers that winter about the state of the footpaths in the Greater Belfast area.  These arose out of the failure of the Council either to clear the footpaths or to apply grit and/or salt to them, it was claimed. While some schools had closed, St Bride’s had not.

    Bear slips

    Even bears slip!

    A risk assessment had been carried out at an earlier date in respect of the journey from Ashleigh to the chapel as this was a regular excursion for pupils and teachers at St Bride’s.  It was approximately 180 metres in length.  The risk assessment concentrated exclusively on road traffic risks. The Headmaster had walked almost the entire length of the footpath up to the chapel to assess whether or not the footpath was safe to allow the pupils and teachers to use it. He had concluded that the footpath was passable with care and that the trip to the chapel could go ahead.  The plaintiff did not agree.  She had complained in no uncertain terms that it was foolish to undertake such an excursion given the weather conditions.

    The pathways linking the two campuses had been cleared of snow and ice and were gritted and salted.  The plaintiff slipped as she made her way along Windsor Avenue on the footpath and fell heavily fracturing her forearm.

    The Court`s Decision

    Was the defendant in breach of its duty to the plaintiff by requiring her and the other teachers and the 48 children in their care to make their way along the public footpath of Windsor Avenue to the chapel on 3 December 2010?

    Legal Principles

    Icy footpath

    Icy footpaths carry risk

    The accident happened while the plaintiff was in the course of her employment.  The defendant, as her employer, owed to the plaintiff a non-delegable duty to exercise reasonable care for her safety. The fact that the accident happened on a public highway did not remove the duty of reasonable care owed by the defendant to the plaintiff.  But the standard to be applied to the defendant’s own premises will necessarily be very different to that applied to the public highway.  While it might be a breach of an employer’s duty not to grit paths on premises within its control, it might not be a breach to require an employee to use an un-gritted public footpath.  It depends on “all the circumstances”.

    There will be no liability if there is no real risk to employees acting with sufficient care. The Judge stated : “A frequent complaint is made that the present risk averse culture makes it difficult for schools and other institutions to carry out many activities that they had carried out in the past.  Reasonable care does not guarantee there will never be a risk of injury or that every risk will be avoided or that there will never be an accident.  Matters other than foreseeability have to be weighed in the balance, including the magnitude of the risk, its obviousness, the previous experience of running that risk.  It is what is reasonable “in all the circumstances”.  All activities necessarily carry a risk and it is important that institutions such as schools do not abandon a worthwhile activity simply because there is a risk of injury.  To suggest that an employer should not require an employee to carry out an activity because there is a foreseeable risk of injury is to misunderstand the nature of the employer’s duty of care”.

    The Judge did however hold that it was incumbent upon the defendant as a reasonable and careful employer exercising reasonable care to identify, assess and evaluate the risks of that route. This included a public road that provided access to the place at which the teachers (and pupils) had to travel in order to carry out their duties.


    Man slipping

    Accidents will happen

    Foreseeable risk of slipping and/or falling does not make the footpath unsafe.  In this case the Headmaster was in a good position to make an assessment of the safety of the footpath and whether it was safe for the pupils and the teachers at St Bride’s to use it because he had inspected almost its entire length shortly before the plaintiff, the other teachers and the pupils commenced their passage to the chapel.

    The Judge found, having heard the Headmaster and the other witnesses, that he was entitled to conclude that passage along the footpath was safe immediately following his inspection, provided that caution was exercised.  He accepted that a different headmaster could have reached a different conclusion.  However this did not make this Headmaster, and the defendant who was vicariously liable for him, negligent.  The Headmaster did see that there was a risk but it was an obvious one and having considered the actual conditions, he satisfied himself that such a risk could be managed and the teachers and their pupils could make their way safely along Windsor Avenue.
    The Judge concluded that this was a most unfortunate accident.  But the plaintiff’s fall did not mean that the risk assessment had been carried out carelessly or that the Headmaster exercised a lack of reasonable care. In those circumstances he found that the plaintiff had failed to prove that the Defendant was guilty of negligence and/or breach of statutory duty to the requisite standard.

    Sympathy for the Plaintiff but Claim dismissed

    The Judge commented that all activities involve an element of risk.  Accidents do happen.  On the facts that he heard, he reluctantly concluded that this was a simple accident, which occurred without legal fault on the part of the plaintiff`s  employer, his servants and agents.

    Morgan McManus solicitors practise in the Republic of Ireland and Northern Ireland. Whether your Claim arises in Counties Monaghan, Cavan, Fermanagh or Tyrone contact Brian Morgan for further advice at 0035347 51011