Fraudsters know no boundaries Fraudsters do not specialise in one type

Transcription

1 Fraudsters know no boundaries Fraudsters do not specialise in one type of claim but will pursue compensation wherever and however they can. agents based across the country. It is no longer the case that a local AMC will work with a local firm of solicitors pursuing claims locally. Fraudsters do not respect Local Authority boundaries and claimants often pursue multiple claims against different Authorities, who in turn may have different insurers, anticipating that low value claims will pass unnoticed and that information sharing is unlikely or limited. FRAUD The answer is to have a robust fraud strategy with fraud indicator checklists that are designed specifically with the individual Authority in mind. The fraud concerns of an inner city suburb will be significantly at odds with those of a coastal holiday resort. One size does not fit all. It is now commonplace for claims to be pursued by solicitors hundreds of miles away from their clients; such is the inevitable result of Accident Management Companies selling claims to the highest bidder. So are we to be concerned about this and what in practice does this mean? Claims are often farmed out by Accident Management Companies (AMC) to a small panel of solicitors who are often unfamiliar to Local Authorities. Those solicitors who accept such instructions run the inevitable risk that they rarely see their own client and are denied the opportunity of fully assessing their client s credibility. claimants of dubious integrity similarly rely on this distance to avoid ever being pressed on unsatisfactory elements of their supposed accident circumstances. This potentially means that the first time solicitors have direct contact with their own client is often at Trial when it is inevitably too late for action to be taken. For those claimants pursuing fraudulent claims it also means that attending trial is the first time they will be challenged about their claim circumstances face to face. This perhaps may explain why claims that are considered suspect often demonstrate significant pre-trial settlement activity when claimants solicitors realise that their client has gone very quiet leading to trial! Investigations have however suggested more sinister activity whereby Accident Management Companies form part of large scale commercial enterprises who orchestrate bogus claims for commercial gain; the so called Fraud Rings. Despite the geographical base of the AMC, they often work on a franchise basis with The geographical spread of AMC activity was demonstrated recently in a cluster of cases handled by Forbes Anti Fraud Unit. The claimant was a known AMC agent who presented a tripping claim against a Local Authority. He volunteered two witnesses supporting his claim. The same claimant then presented a tripping claim against a second Local Authority, 40 miles away. Witness 1 also made a claim against that second Authority claiming to have tripped, suffering injury. Meanwhile, the brother of witness 2 presented a claim against a third Authority, this time some 15 miles from where he lived. Investigations subsequently revealed that witness 1 and the brother had been allegedly involved in several road traffic accidents. Revealing the information to the various claimants resulted in none of the claims being pursued. One AMC which is the subject of a current fraud investigation by Forbes Anti Fraud Page 2

2 Unit has presented claims to no fewer than 6 different Authorities with a significant geographical spread over much of the country. Our recent experience is that of an upturn in numbers of suspect claims particularly in the Highways arena and with the continuance of the current financial difficulties faced by most of the country, it is not expected that this will reduce in the short to medium term. It is also worth mentioning that successes by fraudsters against individual Authorities serve only to encourage fraudsters to pursue those Authorities who they perceive to be a soft touch. What do we learn from this? Fraudsters do not specialise in one type of claim but will pursue compensation wherever and however they can. They do not focus on one Authority despite where they live. They will pursue multiple claims expecting that low value claims will not attract attention and that information sharing will be limited. Recent successes have demonstrated that with a focussed strategy tailored to the individual client; significant inroads can be made into the activities of Insurance Fraudsters with the cost of investigation being dwarfed by the significant savings to be made. An example of a successful case sent to our Anti Fraud Department is detailed below. Forbes currently works closely with all the major public sector Insurers and has fraud initiatives in place with many of them. We offer a database Validation service and our investigation team of ex-senior police officers offer invaluable input into suspicious cases and activities. For more information on how to identify suspicious cases and individuals please contact Christopher Booth, Anti Fraud Manager on for a free risk assessment or simply a general chat. Zubaida Begum v Calderdale MBC The claimant in this matter claimed that she had fallen as a result of a defective area of pavement while en route back from a trip to the shops. Following receipt of a letter of complaint in relation to the accident, a site inspection was carried out by Council operatives who met with the claimant outside her house. The defect identified and measured by the Council operatives during the site inspection was revealed to be clearly below the level requiring repair and the decision was taken that no remedial action was required. The site inspection was unusual in that the aftermath saw two very different versions of events given. The claimant alleged that the Council operatives, due to her poor English skills, had misunderstood what she was trying to tell them in relation to the location of the defect and that she had failed to correct them due to a lack of self confidence. The Council operatives were adamant that it had been made perfectly clear which defect had been identified and, further to this, the claimant was accompanied by one of her Englishspeaking daughters at the time, something denied by the claimant. The claim ultimately presented related to an entirely different defect, some fifty metres away, which the claimant alleged, was the one she meant all along. The letter of complaint that had been received in relation to this accident was familiar to the Council as the contents and format of the letter set it out as having originated from the offices of a local Accident Management Company who had previously presented a number of suspicious claims in the area. A&E records also suggested the claimant had been injured as a result of a slip on snow or ice. When concerns emerged that the claimant may be linked to numerous other claims, the matter was transferred to Forbes Anti Fraud Unit for specialist fraud investigations to be carried out. Investigations revealed significant concerns:- The fact that the claimant and her family were directly linked to over 30 accidents in total comprising of motor claims, public liability claims and household claims. Family members were also linked to numerous individuals who had also been involved in large numbers of accidents. In total, over 60 accidents were identified as being directly or indirectly linked to the claimant or members of her family, with significant numbers of claims arising from these accidents. Whilst none of these claims involved Calderdale Council, claims of such volume from so few were naturally of concern. A previous, albeit unsuccessful, tripping claim made by the claimant was supported by an apparently independent witness, who, our investigations revealed, previously lived with the claimant back in the late 1990s and who was almost certainly a member of her family. The claimant s two tripping claims and a suspicious motor claim she had been involved in all displayed involvement of the Accident Management Company referred to above. Following the conclusion of fraud investigations, large numbers of documents that had emerged were disclosed to the claimant s solicitors almost 3 months before the trial was due to take place. Thereafter followed a period of silence from the claimant and her solicitors! The claim was subsequently discontinued 3 working days before trial with costs.

3 Legal Consortium Success STOP PRESS New Associate Naila Aziz Forbes Solicitors is pleased to announce that it has been successful in being appointed to the North West Legal Consortium (NWLC) Panel. The Consortium was originally set up in 2006 with just 4 members. However, NWLC now has 25 member Local Authorities in the North West. Solicitors firms and Barristers Chambers were invited to put forward proposals to NWLC under a formal procurement process which lasted for several months. A total of 35 Solicitors firms and a number of Barristers Chambers were approved under the rigorous process of selection undertaken by independent consultants First Law. Forbes was successful in being appointed to provide legal advice and assistance to Consortium members in five specific areas. Those areas are Civil Litigation and Prosecutions, Employment, General Legal Advice, Commercial Conveyancing and General Conveyancing. Martin Crabtree, Managing Partner of the Insurance Department at Forbes, comments, Forbes has had the privilege of acting for Local Authorities for in excess of 40 years. The Firm has handled a vast range of insurance related matters over the years and has long been acknowledged for its expertise and effectiveness in handling those claims. Unlike a number of our competitors, however, Forbes also has wide ranging expertise in many other legal areas. More recently Forbes has enjoyed successful partnerships with a number of legal departments of Local Authorities. The appointment to the Consortium is recognition of that expertise. Following appointment to NWLC Forbes are offering a presentation to Local Authority Legal and HR Departments on the new Equality Bill which is likely to have significant impact on Authorities. Further presentations are planned. For further information contact Martin Crabtree on or martin.crabtree@forbessolicitors.co.uk Forbes are pleased to announce the promotion of Naila Aziz to Associate Solicitor within the Insurance Department. Naila (pictured below) graduated from the University of Leeds and qualified in She specialises in defending Public, Employers and Occupiers Liability claims. She advises Local Authorities and Housing Associations on a regular basis on legal liability and quantum. Naila is based at the Blackburn office and regularly provides training to clients on a variety of legal topics. Martin Crabtree, Managing Partner of the Insurance Department, comments, Congratulations to Naila on her promotion, this is just recognition of her commitment and expertise.

4 Forbes at Trial Royle v Manchester City Council The claimant alleged that a fall down the stairs in his council house was caused by a defect that had been reported to the Council. The claimant alleged that he suffered a subdural haematoma as a result of the fall. The claim involved a significant number of issues. The date of the accident was in issue, which raised valid limitation arguments. There were causation issues as to how the injuries occurred, as medical records appeared to suggest the claimant may have fallen off a ladder. The claimant also had a history of alcoholism causing him to suffer blackouts and falls, which the Council contended could have been the cause of the serious head injury, and therefore that the head injury suffered in the alleged accident (if the claimant could prove causation) was likely to be minor. The Council also contended that there was the possibility of the claimant contributing to his symptoms by failing to attend hospital until some time after the accident to have the head injury checked out, as early diagnosis of subdural haematomas assists in their treatment. Further, the claimant was involved in a serious road traffic accident some 18 months postaccident where he also suffered head injuries. Accordingly, damages could be valued at anywhere between 1,000 and 250,000. Liability was also disputed by the Council, as it was their case that the claimant did not complain about the defect until postaccident and therefore they could not have been aware of the alleged defect. The matter was listed for a split trial to deal with limitation, liability and causation of injuries but the claim became stayed when the claimant produced medical evidence stating that he was unable to manage his own affairs. There was then a significant delay in the claimant appointing a next friend. On behalf of the Council an application was made to have the matter brought back before the Court to progress matters and in particular for the defendant to be granted access to medical records and to force the claimant to be medically examined by an expert appointed on behalf of the Council. Prior to the hearing of the application the claimant discontinued his claim and has paid the Council s costs. Denise Barber v Fun and Leisure Event Specialists and Bradford and Bingley Building Society Forbes has successfully defended a claim for personal damages arising out of an accident that occurred during a fun day. The event was organised by Fun and Leisure Event for Bradford and Bingley employees. The claimant participated in a game known as The Laundromat, a large inflatable game which involved the contestants negotiating various obstacles passing through a mangle and then entering a washing machine filled with 12 inches of water to retrieve a ball. The claimant then had to return the ball to the start and in so doing she fell and sustained an injury to her knee. The judge stated that both defendants owed the claimant a duty in tort. However, he concluded that there has to be a balance between risk and benefit, any sport is risky. The claimant volunteered for the event, she consented to the risk and she knew it was likely that she would fall on the inflatables. The defendants had mitigated the risk of a fall by using crash mats. Crucially, no evidence was put forward as to how the game could have been made safer. Accordingly, the judge dismissed the claim. This is not the first case arising out of It s a Knockout themed fun days. In a similar case, Uren v Corporate Leisure UK Limited and Others, Justice Field remarked that the question was whether the defendant took reasonable steps to ensure that the game was safe. He noted that enjoyable competitive activities are an important and beneficial part of life; such activities are almost never risk free. It is reassuring to see the courts adopting a pragmatic view in such cases.

5 Apex Management UK Limited v Bolton Council The claimant company was a car hire company. One of their vehicles was involved in a road traffic accident with a vehicle driven by an employee of the defendant Council. Liability was accepted by the Council and the pre-accident value of the claimant s vehicle was paid. The outstanding issue related to the claimant s claim for loss of income on the hire for a period of 109 days of a sum in excess of 12,000. It was the Council s case that a claim for loss of income was inappropriate and that the loss should more correctly by calculated as the loss of profit on the hire. The Council also sought evidence from the claimant that the vehicle would have been rented out during the period after the accident and that the claimant did not have spare vehicles that could have been rented to the driver of the claimant s vehicle in the alternative. Finally the Council requested evidence that the claimant company could not have afforded to repair or replace its vehicle which had a pre-accident value of 1400, in order to mitigate its loss. Shortly pre-trial it was ascertained that the damaged vehicle was put back on the road some four months post-accident at a cost of 910. Merely one week pre-trial the claimant company purported to serve witness evidence from one of its directors. This evidence did not deal with any of the issues raised by the Council in its defence. In order to try and clarify issues, the Council served a Part 18 Request for Further Information on the claimant the following day. The claimant failed to respond to this. At the trial the District Judge was concerned that the claimant s evidence had been served so late in the day and that it failed to deal with any of the issues that had been raised in the defence served on behalf of the Council. The District Judge indicated that he had no reasonable explanation why the statement was served late, and that he was concerned that no attempts had been made by the claimant to vary the court timetable. The District Judge stated that unfairness screams...from this whole scenario and debarred the claimant from being able to rely on its witness evidence. The claim was therefore dismissed, with an order for costs made against the claimant company. Pendragon Plc v Bolton Council The claimant company claimed damages for credit hire charges incurred as a result of a road traffic accident on 10th July The claimant s parked and unattended Mercedes C class vehicle was struck by one of the defendant s vehicles. Liability for the accident was conceded. The claimant claimed 3, for the hire of a BMW 3 series from Swift Rent-A- Car whilst its own vehicle was being repaired. The claimant company was, however, a company which described itself as the UK s leading automotive retail outlet and traded under the brands Evans Halshaw and Stratstone. The claimant s business interests included their own contract hire franchise. Given the nature of the business operations the claimant was put to strict proof as to their need to hire a replacement vehicle. The damaged vehicle was a company car driven by their employee, Mr Hogan. The claimant sought to rely on Mr Hogan s statement in support of their need to hire. Mr Hogan had gone on holiday on the day of the accident and took with him a different company vehicle. The vehicle from Swift was hired to replace the vehicle which Mr Hogan had taken on holiday. The defendant submitted that, as Mr Hogan was on holiday over the hire period, he was in no position to give evidence as to the use which was made of the credit hire vehicle. The claimant applied for an adjournment to adduce further witness evidence but this was refused by the District Judge. The District Judge found that on the evidence before him the claimant had failed to prove its need to hire a replacement vehicle. The claim for vehicle hire was accordingly dismissed. Stephens v Warrington Borough Council The claimant sought damages for personal injuries sustained when he tripped over a defect in the carriageway. He had parked his van part on the pavement and part on the road. As he stepped out of his vehicle, he placed his foot into a pothole and sustained a broken ankle.

6 The area of the accident is annually inspected and was inspected prior to the accident three months earlier. As a result of a complaint made after the accident, a further inspection was carried out and the defect was noted and ordered for repair. Due to the size of the defect, the Council maintained that if the defect had been present on the pre-accident inspection it would have been clearly visible. The Council provided evidence that at the time of the accident heavy contract traffic was passing through the area, which may have caused the defect to appear and deteriorate quickly. The Judge accepted that the Council s system of inspection was adequate and accepted that the defect was not present at the time of inspection. He also drew attention to external factors that could not be foreseen or controlled that would contribute to the rapid deterioration of the highways, in particular, the recent adverse weather conditions, which he stated could cause potholes to occur rapidly. Accordingly, the claim was dismissed and the Council was awarded its costs of the proceedings. Seddons (Plant and Engineers) Ltd v Warrington Borough Council and United Utilities In this claim the claimant company claimed damages arising from an incident whereby a car driven by one of its employees became submerged in a deep pool of water and foul waste which had accumulated on the highway under a bridge causing damage to the vehicle. The claimant alleged that the damage to the car was caused by the negligence and/or breach of statutory duty by both of the defendants or at least one of them. The road had on previous occasions been the subject of flooding and both of the defendants knew about this reoccurring problem. During periods of heavy rainfall the second defendant s nearby pumping station would sometimes fail causing the road to become flooded. The Council had installed their own pump to try to resolve the issue. The claimant alleged that the Council had breached their duty to maintain the highway arguing that they could have done more due to their knowledge of the problem and for that reason their section 58 defence failed. They argued that section 58(2)(e) placed a duty on the Council to put up warning signs and therefore they had not maintained the road adequately. They further contended that a Local Authority can be found liable for a failure to maintain even if the hazard is caused by the conduct of third parties arguing that an occasional act of flooding may not bring a finding of liability, however flooding on a number of occasions and which is apparent to the Local Authority may produce such a finding. The Council defended the claim on the basis that the Local Authority cannot be held liable merely because there is an absence of warning signs, signage and lighting. The Council relied on the cases of Gorringe v Calderdale Metropolitan Borough Council and Buster v Leeds County Council in that regard, arguing that it could not do anything more than install its own pump and it had done that. It was the treatment plant, that was the responsibility of United Utilities, that was not functioning properly. United Utilities argued that the flooding at the material location had more than one cause on this occasion. It was not just because the computer system had run into some difficulties, the pumps themselves had problems. The failings with the pumping station were not operational failures but were due to the system becoming outdated which required significant expenditure to correct. However, the court found that this was an operational failure, the key cause being the failure of the computer system which could have been corrected at a relatively modest cost. On that basis, the law did not afford the second defendant protection and they were held liable for the flooding. The accident was not caused by any defect in the state of repair of the road or by any failure of the Council "to maintain" the road. The cause of flooding was out of the Local Authority s control. The court was not willing to interpret the Council s duty to maintain to mean a positive duty to correct the acts of third parties. The Council s duty is to keep the road in good repair, which in this case they had attempted to do by installing a pump. There was nothing more the Council could have done and prior knowledge of the problem did not make them responsible. As such, the court held that no responsibility for this incident lay with the Council, and ordered the claimant to pay the Council s costs. Maureen Turner v North Lincolnshire Council The claimant sought damages for an accident when she tripped on a kerb in a car park. It was not alleged that the kerb was defective in any way, but that the design of the car park was such that the kerb was inherently defective. The claim was defended on the basis that the Council was not negligent in designing the car park and that the kerbed islands were a required feature to ensure that cars did not park in those areas.

7 In designing the car park, the Council had provided a walkway to enable users of the car park to access the ticket machines, which the claimant declined to use. The Council had also designed the car park in such a way that the kerbed islands were laid in a uniform manner. At trial it transpired that the claimant s solicitors had advertised in the local press for other members of the public who had tripped at this location. This advertisement had only resulted in one other trip being noted, from which a subsequent claim had been issued. At the end of day one of a three day Trial, Counsel for the defendant submitted that the kerb was similar to all other kerbs, that the design of the car park was such that it was necessary to include the kerbed islands, and as such the claim should be struck out. The Trial Judge agreed with the defendant s submissions and in dismissing the claim found that there was not a single reported case that such a traffic island is a breach of highway authority legislation or the Occupiers Liability Act by reason its construction and design. He was satisfied that the Council had not breached their duty and as such dismissed the claim. The claimant was ordered to pay the defendant s costs of the action and leave to appeal was refused. Rouani v Salford City Council The claimant alleged tripping due to a missing kerbstone. The claim was first intimated more than 2½ years postaccident and was alleged to have occurred on the day of the claimant s 25th birthday. The defect, which was significant, was not noted on the preaccident inspection and neither was it picked up on the two post-accident inspections. Accordingly, the claimant was pressed to provide details of when the photographs of the defect were taken, as it was considered unlikely that a defect of such magnitude could have been missed on three separate inspections. Further, when the claimant s medical expert had reviewed the medical records, he made reference to a letter from the hospital that stated that the injury occurred in France. The claimant was pressed for disclosure of his medical records in order that causation could be investigated. This pressure led to the claimant s solicitors coming off the record and the claim was shortly thereafter struck out with an order for payment of the Council s costs made against the claimant. Lisa Watson v Hull City Council Forbes recently acted for Hull City Council in successfully defending a tripping claim at trial. The claimant alleged she had fractured her wrist when she tripped in a pothole in the city centre on her way to work as a cleaner. Breach of duty was admitted pre-action in respect of the pothole however causation remained a live issue. The claimant attended A&E on the alleged date of the accident; the receptionist recorded the 'Place of Accident' as 'Work' and the triage notes recorded a history of 'Pulling out trolley at work, fell and knocked right arm'. The claimant maintained in her written evidence that the A&E staff had been busy and did not make any notes whilst examining her therefore they must have been mistaken. She relied on a witness statement from her work supervisor who stated the claimant was late to work on the day of the accident and told her she had just fallen in a pothole. We were able to produce evidence from the Triage Nurse responsible for making the contemporaneous notes who stated, although she did not specifically recall the claimant and nor would we expect her to, she would simply have written down

8 exactly what she was told. The claimant attended the Fracture Clinic the following day and this time the practitioner recorded a subtly different version of events to that recorded within the triage notes which indicates the notes were not simply regurgitated. The Trial Judge accepted the evidence of the Triage Nurse over the evidence of the claimant and her witnesses; he described the nurse as clear, professional and precise. The Trial Judge stated We have at worst 3 independent records. Even if we discount the computer records there are two and the professionals must realise the professional negligence implications of failing to keep accurate records. Therefore I find that the claimant has failed to prove the case on the balance of probabilies. The case illustrates once again the importance of contemporaneous medical records. The history recorded was so different to what the claimant alleged, it was difficult to see how the claimant could persaude the Court otherwise yet both she and her solicitors considered this to be insignificant. The evidence of the Triage Nurse was crucial to the successful defence of this claim and the Trial Judge ultimately concluded her evidence was more credible than the claimant's. Laura Smith v Tameside Metropolitan Borough Council This case concerned a personal injury claim which derived out of injuries sustained by Mrs Smith following a fall beside a bus stop. Having alighted from the bus, Mrs Smith alleged that she tripped on a protruding edge of a paving slab, which was found to measure 20mm. Mrs Smith maintained that the accident arose out of a failure on the part of the Local Authority to adequately maintain the pavement. The Local Authority defended the claim on the basis that the defect was simply not dangerous. In making his decision, the trial judge paid regard to the Court of Appeal authority in Mills v Barnsley, which laid down a three stage test when assessing liability in these types of cases: firstly, are the circumstances of the scene dangerous; secondly, is the danger a consequence of the failings of the Local Authority; and thirdly, has the injury sustained derived from a failure to maintain and the fact that the defect was dangerous. In respect of the first stage, the trial judge considered the fact that the scene of the accident was a bus stop and thus it must be reasonable to envisage lots of people passing over the defect. With that in mind, there is the greater potential for a person to sustain injury. However, the judge was satisfied that, with regard to the depth of the lip, there was no danger. It was therefore held that there was no failure on the part of the Local Authority and, accordingly, the claim was dismissed. Whilst the trial judge appreciated that the test is not a scientific one, this case shows that if Local Authorities have the necessary policies in place to assist in identifying dangerous defects and remain consistent in their approach when carrying out inspections, they will be in a strong position, when defending similar claims in the future. Kenneth Dodd v Tameside Metropolitan Borough Council In this case, Mr Dodd brought a personal injury claim against the Local Authority following a fall sustained when out walking his dog. It was alleged that Mr Dodd had been walking along the pavement on the edge of the kerb, when he placed his foot into a 35mm deep void left by a sunken kerbstone. As a result he lost his balance and fell over on his ankle into the carriageway. Mr Dodd maintained that the defect was dangerous and that the Local Authority had failed in their duty to repair it. In their defence, the Local Authority pointed to the case of Galloway v Richmondupon-Thames LBC as authority to differentiate between the levels of danger posed by defective kerbstones from those posed by defective paving stones. The case confirms that the conditions to be considered when assessing danger are two-fold. Firstly, there needs to be some reasonable foresight of harm to users of the highway. Here, it was found that the Local Authority had anticipated the harm which could be caused by sunken kerbstones as their code of practice established intervention levels as to when they should be repaired. However, in this case, the fact that the alleged defect was not located in the proximity of any point of interest (e.g. bus

9 stop, post box) meant that it did not give rise to their specific criteria. The second condition is that a reasonable person must regard it as presenting a real source of danger. Here, the trial judge accepted the argument that a defective kerbstone is not as hazardous as a defective paving stone. It would be unusual for a person to walk along a kerbstone as they are designed simply to signal a change in level between the pavement and the carriageway. When approaching kerbstones, pedestrians are required to lift or drop their feet and thus one can legitimately expect a person to pay closer attention when crossing the street then when walking along it. In applying the Galloway case, the trial judge found that the Local Authority had acted reasonably in applying different standards to kerbstones and paving stones. With that in mind, and given that the location of the accident amounted to a wholly unremarkable scene, the kerbstone itself could not be said to be dangerous in the Mills -v- Barnsley sense of the word. Judgment was therefore given in favour of the local authority. Barron v Preston College Forbes has successfully defended an occupiers liability claim brought against Preston College at trial. The claim was dismissed on the grounds that the judge did not find a foreseeable risk of danger. The claimant was walking to lectures at Preston College when she allegedly slipped on gravel which had escaped from an ornamental border on to the path. In evidence, the claimant described that it was raining at the time of the accident and the effect of walking on the stones was akin to walking on marbles. At the trial the defendant successfully argued that since the college had opened in 1995 over 2 million visitors had walked across the path without sustaining an injury. Deputy District Judge Jones found that the claimant had fallen on some stones which were wet and slippery. However, he commented that he did not find that there was a foreseeable risk of injury from these stones. He remarked I am conscious of the wording of the duty which is a duty to take reasonable care, it is not an absolute duty. He continued that it was true that the stones were not where they should have been or intended to be but was not comfortable with the suggestion that it was an unreasonable hazard and accordingly dismissed the claim. Road Traffic Act Protocol For road traffic accidents which occur after the 30th April 2010 and which have a value of less than 10,000 in relation to the claim for personal injury the new Road Traffic Act Protocol will apply. Much has been said about the various time limits given to the parties for completion of investigations and responding to offers but there may be a danger that some of these cases will fall through the cracks as a result of one issue which does not appear to have been given as much attention. The Protocol envisages that the fee of 400 will be payable to the claimant s Solicitors after stage 1. That payment must be made within 10 working days. At the end of stage is due to the claimant s Solicitors and that payment must also be made within 10 working days. If this timetable is not complied with, then the matter will fall out of the new Road Traffic Act Protocol and the financial advantages of keeping the case within its confines will be lost. Most insurers have spent time and effort in sharpening up their practices to ensure that the response times to the original letter of claim and to any offer in settlement made by the claimant are complied with but unless the administrative issues involved in procuring and authorising a cheque for the claimant s Solicitors fee entitlements are also similarly prioritised and supervised the danger is that all of the good work done by the Claims Handler and the Investigator could become undone because of what amounts to an administrative failure. It is probably the case that many claimant s Solicitors will not wish some of the cases which may be valued at the higher end of the bracket to remain within the Protocol for reasons of cash flow and it be akin to, using a World Cup metaphor, scoring an own goal if these matters fell out of the new Protocol because payments were not made on time when all other aspects had been complied with. For more information contact Joe Winstanley on or joe.winstanley@forbessolicitors.co.uk

10 School admission appeals To avoid potential litigation by parents it is essential that local authorities, governing bodies and admission appeal panels are fully compliant with the recently amended School Admission Appeals Code ( the Code ). There have been a plethora of cases brought by parents as a result of the failure of Admission Authorities to implement and follow school admission procedures correctly. As a result, the School Admission Appeals Code at paragraph 1.32 stipulates that all Admission Authorities must arrange and fund training for appeal panel members and clerks. Panel members and clerks must not take part in hearings unless they have within the last two years been given training on the requirements of the Appeals Regulation, the contents of any Code made under section 84 of the School Standards and Framework Act 1998, the role of the chair, clerk and panel members to an appeal panel, the statutory duty of the appeal panel pursuant to various pieces of legislation and the need for the panel to observe procedural fairness and the rules of natural justice. The appeals procedure is an extremely complicated and rigid process. The Admission Authority is responsible for making the arrangements for an appeal. The parents must first be advised in writing why their application was not successful in the light of the admission arrangements. If the parents choose to appeal, they must complete a form supplied by the Admission Authority and within the form they must complete their grounds for the appeal. Following the submission of the forms, the appeals must be heard by a panel within specific timescales. The timescales differ for both Secondary and Primary schools. The role of the appeal panel is to consider the evidence before them and to make a decision based on the principles of a fair hearing. The panel should be 3 or 5 panel members which must include a lay person and someone experienced in education, however they cannot work in a paid capacity for the school. The role of the clerk is vital. The clerk plays an important part in ensuring that all relevant facts are established and that the appeal hearing is conducted in a fair manner. The Admission Authority must appoint a clerk who is independent of the school and the education/ children s services department of the local authority. It is essential that the clerk has knowledge of all relevant admission legislation and other applicable laws and regulations as well as an understanding of the principles of a fair hearing. The role of the clerk is to make the necessary administrative arrangements for the hearing, explain the procedure to appellants, be an independent source of advice on the School Admissions Code and the law on admissions, ensure both parties have the opportunity to present the relevant facts and to record the proceedings, attendance, voting, outcomes, panel decisions and reasons and finally to notify all parties of the panel s decision in writing. In a number of cases the Ombudsman has been highly critical of instances where clerks have received no or little training and where crucial errors made by the clerks have resulted in findings of maladministration. Under the Admissions Code 2007 parents can now refer cases to the admissions adjudicator. The Code sets out a new two stage test for all appeals (except appeals against decisions made on the grounds of the infant class size prejudice). Firstly, the panel must consider whether the school s published admission arrangements were correctly applied in the individuals case and whether any admissions above the published admission numbers would cause prejudice to the school and secondly, whether the personal case outweighs the prejudice. To do this, the panel must carefully exercise its discretion, balancing the prejudice to the school against the individual s case. The difficulty here is establishing what constitutes prejudice and whether the individual s reasons are compelling enough to allow them to attend their preferred school. The panel is required to consider a number of factors as set out in the Code. Finally, once all of the appeals have all been heard the clerk must prepare letters to the parents setting out what matters were taken into consideration, stressing the matters of law and fact which were raised and establishing broadly on what basis the panel reached a decision so that parents can understand why the panel was unsuccessful if this was the case. In this complicated and technical area, Forbes has extensive experience in providing trained Clerks to Local Education Authorities Exclusion and Admission appeals and representing LEAs at special education needs tribunals. Our experience in these particular fields has been built up over many years and is part of our wider public sector work. Our USP is that we provide Lawyers as Clerks. We can also advise on whether your practices and procedures comply with the Code. For more information contact Sarah Wilkinson on or sarah.wilkinson@forbessolicitors.co.uk

11 Let Forbes take care of the proceedings These are difficult times for those working in Local Authority Social Services Departments especially those working within the realm of Children s Services. There have been a series of high profile cases, culminating in the Baby P case, which have received widespread and adverse media coverage. As a consequence of these cases there has been an adverse effect on the morale of staff working within Children s Services and there have also been significant difficulties with the recruitment of new staff particularly Social Workers. Also as a consequence of the increased publicity there have been significant increases in the number of new referrals to Social Services Departments. To add to the problems, we at Forbes have noticed a dramatic increase in the number of civil actions for damages that are being taken against Social Services Departments. claimants Solicitors are now more and more willing to take on these types of cases that were traditionally regarded as extremely risky from a claimant s point of view. In fact in some care proceedings the trial Judge dealing with the case has made a specific recommendation to the Official Solicitor that consideration should be given to a civil claim for damages as a consequence of the way the matter had been dealt with by the Social Services Department involved in the case. Initially the Civil Courts were reluctant to entertain claims for damages for negligence and breach of duty against Local Authority Social Services Departments. It was appreciated that the work carried out by Social Workers was demanding and that important decisions were taken under pressure and it was initially felt that as a matter of public policy such cases should not be allowed. However a series of House of Lords decisions have pushed back the boundaries and it is now possible for children to claim for damage which they allege was caused by negligence or breach of duty on the part of Social Workers. Broadly speaking the types of claim can be broken down as follows:- a) Claims against a Local Authority for failing to run, supervise or control an institution so as to keep children safe from personal injury within that institution e.g. a children s home; b) Claims against an Authority for failing to look after a child who is a subject of formal care proceedings whilst a child is in care, e.g. in foster care; c) Claims against an Authority for failing to protect a child from an abuser e.g. care proceedings not taken quickly enough. Page 12

12 June July For further information on Insurance Law contact: Martin Crabtree Blackburn Office Telephone Facsimile Leeds Office Telephone Facsimile Manchester Office Telephone Facsimile We have also noticed an increase in use of the Human Rights Act in such cases. claimants Solicitors continue to try to push back the boundaries. In one case handled by Forbes the claimant was a parent of one of the children involved. The Local Authority had taken out care proceedings in relation to the claimant s son on the mistaken premise that he had suffered non-accidental injury caused by her. This had led to a separation between the mother and child for a period of some 4 months. She argued that she had suffered psychiatric damage and sought damages. In this case Forbes argued that there was no duty towards the parent of the child in these circumstances and that view was upheld by the Court of Appeal. These types of cases are very complex and involve developing areas of law. Very often the claims go back over many years which adds to the difficulties of investigating the case. We have a team of highly experienced lawyers who are able to assist Local Authority Social Services Departments in defending such cases. We have worked together with Local Authorities for many years and we are acutely aware of the sensitive nature of these types of cases both internally and externally. Our experience suggests that early involvement of lawyers is very important if a letter of claim is received in this type of case. The issues relating to documentation are very complex. The documentation involved tends to be extensive and highly sensitive in nature. Issues relating to confidentiality, data protection, legal privilege and public interest immunity arise. The documents also require painstaking redaction and indexing and disclosure statements need to be produced. We are very experienced in carrying out the detailed investigations required in this type of case. We are very much aware of the need to put potential witnesses at ease and we are particularly mindful of the pressures that they are working under on a daily basis. A key aspect of dealing with these cases is working together with our Local Authority Social Services clients. In particular we believe that our clients should be involved in all key decision making at each stage of the process. If the view is taken that there are reasonable prospects of success then Forbes will robustly defend these cases to trial. In the alternative if the view is that the case is one for settlement we will engage in constructive negotiations with our opponents at the first available opportunity with a view to resolving the matter in a cost effective manner. We are also acutely aware of the potential for adverse publicity arising out of such matters and take all steps possible to ensure that we protect our clients to the best of our ability. Our team will be happy to assist if your Social Services Department are in need of any advice whatsoever in relation to such matters. Our team are also more than willing to provide training on any aspect considered to be of assistance. We have experts in all aspects of child protection, fostering and adoption and we are fully aware of the implications of all the relevant child legislation. If you require further information please contact Paul Geldard on or paul.geldard@forbessolicitors.co.uk or Siobhan Hardy on or siobhan.hardy@forbessolicitors.co.uk ALARM Conference 27th - 29th Southport Theatre and Convention Centre Please come to see us on Stand 35 The content of this newsletter is merely informative and should not be relied upon as a substitute for legal advice. All Rights Reserved. Forbes Solicitors 2010