While after the resignation of Scottish Transport Minister Stewart Stevenson on 11 December 2010 there can be no doubt of the possible political liabilities flowing from not dealing properly with the consequences of lots of falling snow, there is perhaps some room for discussion of individuals' legal liabilities to those injured by falls of snow from the roofs of their buildings, or by falling on uncleared pavements in front of the buildings.
When snow deposits itself in great quantities on the roofs of buildings (and indeed atop hedges and walls, as your correspondent has seen in Edinburgh over the last two weeks), and then slides off on to unfortunate passing pedestrians on the pavements outside, have such persons a claim against the owner of the buildings (or the hedges or the walls) in respect of any injury suffered thereby? The question seemed live to those within the Scottish Law Commission last week when a great wadge of snow crashed to the pavement opposite from the roof of the National Library's Causewayside building; and there was too the unfortunate case reported by the BBC of the Berwickshire schoolgirl severely injured by snow and ice falling on her from the roof of a farm building on 3 December.
The Occupiers Liability (Scotland) Act 1960 makes occupiers liable only to those who enter their property, not to those on the streets outside. There is common law on that latter situation, however, and the debate, not fully resolved by the First Division in McDyer v Celtic Football Club 2000 SC 379, is whether liability is fault-based or, under the Scots law version of the Roman actio de positis vel suspensis, strict. The latter remains possible largely because the law is so stated in Bankton's Institute, at Book I, chapter 4, paras 31-32, where he says:
31. The second improper delinquency is, when any thing is thrown over or poured out, from windows of houses, into the streets, highways, or other common passage, whereby damage is done to those that pass by, the master of the family is liable to repair it, as if it had been done by himself, because he ought to have prevented such damage: indeed, by the civil law double damage was due to the person aggrieved, but that cannot take place with us, the private party having no more than redress of damage, in the case of real delinquencies, except where it is otherwise specially provided by statute. 32. A THIRD is, where there is any thing hung up or placed above common passages, which may, by the fall, do damage to persons passing by; the person that did it, or suffers it to be done, is liable to a definite penalty by the civil law; and no doubt by our law, upon a regular complaint, he will be compelled to take it down; but no penalty can be due with us without an express statute, which we have not in this case: however, if it is not removed, when the party concerned is required by lawful authority, at the instance of persons in the neighbourhood, he may afterwards be punished.
Bankton doesn't quite have snowfalls in mind when he is talking about things thrown over or poured out or hung up or suspended, obviously. Scots Law News suspects that the Romans didn't think too much about snow either; but nonetheless, as the court emphasises in McDyer, the Roman law received in Scotland is adapted to Scottish circumstances, and, whatever Bankton's weather experiences may have been in the balmy age of enlightenment, in this country now snow is a pretty regular occurrence.
Even if any liability is fault-based, then McDyer shows that the circumstances may often give rise to an application of the doctrine of res ipsa loquitur. In McDyer the pursuer, who was inside Celtic's stadium, was injured by a piece of wood falling from its roof that should not have been there, so that was a relatively easy case for the res ipsa loquitur doctrine. But what if snow, or an icicle, had fallen on him instead? What could the owner of the roof have done about it? The National Library took the precaution of roping off the pavement outside its building, but will such a thing always be possible for a private householder? Might you then be exposing the passer-by to the risk of injury on the roadway?
With regard to the other problem of uncleared pavements, the Scottish Government guidance helpfully says there is no law against clearing paths and pavements outside your house, and that if you do it carefully you shouldn't be liable for any passer-by's injury suffered as a result of your efforts. Having slithered his way to work for a fortnight through the otherwise well-heeled streets of the Grange district in Edinburgh, your correspondent is much more interested in the liability if people fail to clear a path or pavement outside their properties. He had always understood there to be some sort of legal duty to do this, but can find nothing to this effect on either the Scottish Government or the Edinburgh City Council websites. Nor is there anything relevant in the Civic Government (Scotland) Act 1982. There is such a duty in the law of other countries (although not, we believe, in Antarctica), and the time may have come to impose it here if it is not already the law.