In my days in working in liability insurance, this sort of thing rarely went to court - the insurance company would have made the decision. The deciding factor used to be predictability, if it could reasonably have been assumed that an accident would arise then the policy holder should have taken steps to improve the situation. If it had never been reported as hazardous and it was a genuine accident then they threw it out. Icy pavements, people fall over (I have to say I do it frequently, I fell out of the car on the ice last winter, I wouldn't have dreamed of suing either the council or Daihatsu!).