Proof of Service for Gritting Contracts: What to Record and Why

A slip on an icy car park in January can turn into a claim the following summer, or three years later. When it does, the first question is what was done on that night, and the best answer is a record made at the time.

This guide covers who owes the duty on a private site, why records matter when a claim comes in, how long to keep them, and what a useful gritting record shows. It is written for contractors who grit private sites such as car parks, retail parks, business parks and forecourts, and covers the law in England, Wales and Scotland. It is not legal advice.

Who owes the duty

The occupier. In England and Wales, the Occupiers' Liability Act 1957 requires an occupier to take such care as in all the circumstances is reasonable to see that a visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there. The Act calls this the "common duty of care". A slip on ice on a private site is usually claimed under this duty, often alongside negligence. Under the 1957 Act, a warning, such as a sign or a cone, does not by itself discharge the duty unless, in all the circumstances, it was enough to enable the visitor to be reasonably safe.

In Scotland the Occupiers' Liability (Scotland) Act 1960 sets a similar duty, owed to anyone entering the premises.

The employer. Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 requires every floor and traffic route in a workplace to be kept free, so far as is reasonably practicable, of anything that may cause a person to slip, trip or fall. A workplace includes the roads and paths used to get in and out of it, other than public roads, so an employer's own car park and access roads are covered. The Management of Health and Safety at Work Regulations 1999 require employers to assess risks, including slip risks such as ice, and employers with five or more employees must record the significant findings.

The highway authority, on public roads only. Highway authorities in England and Wales have a duty under section 41(1A) of the Highways Act 1980 to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. In Scotland, section 34 of the Roads (Scotland) Act 1984 requires roads authorities to take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads. Those duties cover highways maintainable at the public expense in England and Wales, and public roads in Scotland. They do not reach private car parks, forecourts or unadopted roads, which is where private gritting contracts come in.

Why records matter in a claim

Since 1 October 2013, a breach of health and safety regulations such as the Workplace Regulations is generally not actionable in civil proceedings on its own in Great Britain. Someone who slips has to prove negligence or a breach of the occupier's duty of care, although a breach of the regulations can still be evidence of negligence. That puts evidence of a reasonable system, and records of what was done under it, at the centre of most defences.

The highway rules show how this works. Under section 58 of the Highways Act 1980, a highway authority has a defence if it proves it took such care as was reasonably required. If it relied on a competent contractor, it must also prove it gave the contractor proper instructions and that the contractor carried them out. Section 58 does not apply to a private occupier, but the same two things help one: a record of what the contractor was asked to do, and proof that it was done.

Two more points matter to a contractor:

• In England and Wales, an occupier is not automatically liable for a danger caused by an independent contractor's faulty construction, maintenance or repair work, if it acted reasonably in entrusting the work to the contractor and took such steps as it reasonably ought to satisfy itself that the contractor was competent and the work properly done (section 2(4)(b) of the 1957 Act). That is one reason clients ask their gritting contractor for evidence. It is not clear that gritting counts as maintenance work for this purpose.
• A business contract, such as a gritting contract, cannot exclude or limit liability for death or personal injury caused by negligence (section 2(1) of the Unfair Contract Terms Act 1977, and section 16 for Scotland). That does not stop the client and the contractor agreeing between themselves who bears the risk, through indemnity and insurance clauses.

How long to keep records

In England and Wales, a personal injury claim must normally be started within three years of the accident, or of the date the injured person had the relevant knowledge if that is later, and the court can extend the time. A claim form issued at the deadline can still be served up to four months later. For a child, the three years do not start until they turn 18, so a slip suffered as a child can be claimed for up to their 21st birthday.

In Scotland the period is also three years, from the injury or, if later, from when the injured person knew, or could reasonably have known, the relevant facts. Time does not run while someone is under 16.

So keep gritting records for more than three years, and longer where children are likely to be, such as schools and retail parks. If your insurer or the contract asks for longer, keep them for that.

In England and Wales, a public liability injury claim worth up to £25,000, and above the small claims limit, starts through a pre-action portal, where the defendant's insurer has 40 business days to respond. Keep records where they can be found and sent to the client's insurer within days.

What a useful gritting record shows

We found no official guidance on what a private gritting contract or record must contain, so what follows is practice, not law. A record that can answer a claim usually shows:

1. The forecast you relied on. Gritting decisions are made on road surface temperature forecasts, not air temperature: road surfaces lose heat faster at night, so frost can form on the road while the air is still above freezing. Keep the forecast itself, not a note of what it said: for example, the PDF from a commercial road weather service such as the Met Office's OpenSite.
2. The decision for each site. Treat or not, and the reading behind it. A night you decided not to grit needs a record as much as a night you did.
3. The treatment. Who treated the site, when they arrived, which areas they treated, and photos.
4. What could not be treated, and what was done instead. Areas blocked by parked cars, routes closed off or people diverted, and where warning signs went.
5. What the contract asked for. The trigger, the areas in scope and the response time agreed with the client, so the record can be read against them.

HSE's guidance is not law, but it shows what HSE expects of an employer. Its slips guidance says to:

• identify the outdoor pedestrian areas most likely to be affected by ice, such as building entrances, car parks, walkways, shortcuts, slopes and areas that are always in shade or wet;
• monitor temperatures and put a system in place to manage the risk;
• grit when frost, ice or snow is forecast, or when walkways are likely to be damp or wet and floor temperatures are at or below freezing;
• grit in the early evening, before the frost settles, or early in the morning, before people arrive, which it names as the best times;
• where not every route can be treated, tell people which routes are prioritised, divert them away from icy routes or bar those off, and remove warning cones once the hazard has passed.

It also sets out salt's limits: it needs time to dissolve into the moisture on the surface, heavy rain can wash it away, compacted snow that has turned to ice is hard to treat, and dawn frost can form on dry surfaces.

Keeping the record in Field Forge

Field Forge's winter gritting and salting is built around that record:

• Upload the nightly OpenSite road weather forecast PDF and Field Forge reads a temperature and colour state for each of your zones for you to check and correct before anything is applied. Each run records where each zone's reading came from: the forecast as read, the forecast as edited, or a reading typed in by hand.
• One tap generates a gritting job for every site that triggers on the night's readings, and the run keeps each zone's reading and decision, including the zones you decided not to grit.
• Engineers clock in on their phones with a geofenced arrival check, and each visit, or a month of visits, becomes a proof-of-service pack you can send to the client.

Sources

• Occupiers' Liability Act 1957, section 2, legislation.gov.uk
• Occupiers' Liability (Scotland) Act 1960, section 2, legislation.gov.uk
• Workplace (Health, Safety and Welfare) Regulations 1992, regulation 12 and regulation 2, legislation.gov.uk
• Management of Health and Safety at Work Regulations 1999, regulation 3, legislation.gov.uk
• Slips and trips: frequently asked questions and advice for employers, HSE
• Highways Act 1980, section 41 and section 58, legislation.gov.uk
• Roads (Scotland) Act 1984, section 34, legislation.gov.uk
• Enterprise and Regulatory Reform Act 2013, section 69, legislation.gov.uk
• Unfair Contract Terms Act 1977, section 2 and section 16, legislation.gov.uk
• Limitation Act 1980, section 11, section 14, section 28 and section 33, legislation.gov.uk
• Civil Procedure Rules, Part 7, Ministry of Justice
• Prescription and Limitation (Scotland) Act 1973, section 17, legislation.gov.uk
• Pre-action protocol for low value personal injury (employers' liability and public liability) claims, Ministry of Justice
• Air temperature and road surface temperature and independent gritting, Met Office