In a previous blog about landlords' duties during the winter months, we highlighted the possible duty for landlords under the Occupiers Liability (Scotland) Act 1960 to ensure that they are gritting common areas.
Continuing the gritting common areas theme, a very interesting judgement has now been released in a sheriff court case. The case is Bonham v Pentland Housing Association.
-? Ms Bonham was a tenant of Pentland HA
-? In December 2009, she fell on the pavement area outside her home, breaking her ankle
-? At the time, that area was badly affected by compacted snow and ice
-? Damages were agreed at ?11,000
-? The question for the court was whether Pentland were liable
The case failed because Ms Bonham admitted in her evidence that she did not know what caused her to fall. She could not say that her fall was caused by the compacted snow and ice, despite being invited to do so by her lawyer. The sheriff held that her case failed because there was no evidence that the snow had cause her fall. The sheriff then considered what he would have done had he accepted that the snow had caused the fall.
He initially considered a ?contractual? case based on the tenancy agreement and secondly, a case based on the Occupiers Liability (Scotland) Act 1960.
- The tenancy agreement and associated handbook set?out obligations for the landlord and the tenant. The tenants were required to take their?turn in keeping common parts ?clean and tidy?. The landlords were obliged to keep those?parts ?in repair?.
The sheriff concluded that clearing snow/ice was more akin to ?cleaning than ?repair?. Accordingly the sheriff held that the tenant?s claim would have failed based on contractual duties even if he had concluded the tenant?s fall had been cause by the compacted snow.
- The sheriff also looked at the duty which arises?under the Occupiers Liability (Scotland) Act, requiring the ?occupier? of?premises to take care to prevent danger to persons entering the premises.
The tenant?s lawyer argued that this Act placed a duty on the landlord to implement a winter maintenance programme. The landlord?s lawyer argued that it was for the tenant to prove that there was a duty to grit and not that it was ?reasonable or practicable?. The tenant had to demonstrate to the court that gritting was something that was commonly done by other bodies and thus should have been done by the landlord. The sheriff held that the tenant had failed to do so and indicated that her case would also have failed on this point.
Although the landlord has been successful in this case, it does not follow that this decision means there are no duties regarding gritting common areas. This decision is based on the specific facts and law raised in court.
Other cases may involve:
- tenants who are able to state that the cause of the fall?was the compacted snow
- different wording in tenancy agreements and?handbooks
- tenants may be able to produce evidence of practices?generally adopted by local authorities and landlords in the area which?involve gritting and clearing of snow form common areas.
In such circumstances a different result may occur. ?Housing associations should not treat this decision as authority to do nothing during the winter months!!?? Get in touch if you'd like to discuss gritting common areas further.
