FOCUS RISK MANAGEMENT THE QUARTERLY NEWSLETTER FROM GALLAGHER BASSETT REDUCE HOW MUCH YOU SPEND ON MOTOR CLAIMS

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1 FOCUS RISK MANAGEMENT THE QUARTERLY NEWSLETTER FROM GALLAGHER BASSETT ISSUE 46 MAR 2012 INSIDE ESSEX COUNTY COUNCIL FOUND NOT LIABLE FOR SWIMMING ACCIDENT GOLFER WINS 400,000 IN DAMAGES AFTER BEING HIT BY A GOLF BALL CLAIMANT FALLS ON GRASS VERGE SUFFOLK COUNTY COUNCIL FINED 48,000 FOR HEALTH AND SAFETY BREACHES WINTER HAZARD PARK AND RIDE REDUCE HOW MUCH YOU SPEND ON MOTOR CLAIMS The average credit hire invoice being presented is 1,500, more than three times higher than a like for like vehicle on the rental market Post Magazine 26 January Gallagher Bassett International can help you avoid credit hire costs. We now provide a 24/7 First Notification of Loss facility and a dedicated extended hours third party capture team ( third party capture being early contact with a third party to manage the third party s loss at the lowest cost). The main features of the service include: A quality assured national repair network. A repair management process which is monitored through performance indicators. Fraud and Motor Insurers Database checks at the time the claim is notified. Alternative/courtesy vehicle provision. Motor engineers inspections. The benefits of this service are: A reduction in the time that the vehicle is off the road. Reduced hire costs. Reduced engineers costs. Reduced incidence of credit hire. Overall reductions in credit hire charges. Dedicated management information enables our clients to track the service delivery and the savings made. Service level agreements underpin the arrangements and guarantee the time taken to contact the third party and also the time taken to authorise repairs. To find out more about how this facility can save you money please contact Ian Ross-Bain on or by ian_rossbain@gbtpa.com News in Brief Changes to RIDDOR reporting As of 12 September 2011 a number of changes to the statutory reporting of work related injuries to the Health and Safety Executive under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 took effect. Reporting has moved to an on line system and employers should no longer report incidents by , post or fax. Fatal and major incidents can still be reported to the HSE s Incident Contact Centre by telephone. Otherwise online forms should be used for: F2508 Report of an Injury F2508 Report of a Dangerous Occurrence F2508A Report of a case of Disease OIR9B Report of an Injury Offshore OIR9B Report of a Dangerous Occurrence Offshore F2508G1 Report of a Flammable Gas Incident F2508G2 Report of a Dangerous Gas Fitting For more information please visit the HSE website at ROAD ACCIDENT VICTIM AWARDED 9M SETTLEMENT Leigh Blinkhorn has been awarded a lump sum of 2,875,000 plus annual index linked payments of 191,758 as compensation for injures she sustained when she was hit by a car 15 years ago. Leigh, now aged 23, suffered severe brain injuries in 1996 and, explaining the long delay in settling the case, her barrister explained that her prognosis changed over the years. The total package is worth more than 9m and is believed to be one of the highest ever awards in a road accident case.

2 02 FOCUS RISK MANAGEMENT ESSEX COUNTY COUNCIL FOUND NOT LIABLE FOR SWIMMING ACCIDENT WOODLAND v ESSEX COUNTY COUNCIL AND OTHERS Queen s Bench Division October 2011 Annie Woodland was a 10- year-old pupil at Whitmore Junior School in Basildon when she was found submerged in the water during a swimming lesson at the town's Gloucester Park Swimming Pool in Despite resuscitation attempts, her brain was starved of oxygen and she suffered severe hypoxic brain injuries. She has been left with severe learning difficulties and cannot live independently. The accident happened when she went with her class to the swimming pool. The lesson was organised that, in groups of three or four abreast, at five to ten second intervals, the class members were required to dive into the pool at the deep end, swim the length to the shallow end, exit the pool, and return by the pool side to the deep end ready to swim the next length when it was their turn to do so. The swimming lesson had been supervised by a swimming teacher, who was in the pool, and a life guard (the third defendant) at the side of the pool. The swimming pool facilities were run by Basildon Council (fifth defendant). The third defendant life guard and the swimming teacher were both employees of the BS, a swimming service provider (second defendant). BS provided swimming lessons for school children and organised the arrangements under which the children had their lessons, including the availability of the pool for that use. The case was heard in the High Court in October The court ruled that Essex County Council could not be held responsible for the failings of a private lifeguard not employed by the council. The Judge also rejected the argument that the school, and through it the council, was in loco parentis and owed a non delegable duty to ensure her safety. Ruling on the extent of duties owed by schools to their pupils, the Judge said that the school does not assume responsibility for the health of its pupils as a matter of primary responsibility. He added that the plea that the council owed Miss Woodland a non-delegable duty of care was bound to fail. Through her father, Miss Woodland is also claiming compensation against the Swimming Teachers Association, which arranged insurance for the company that ran the class, Direct Swimming Services, and also against the lifeguard at the lesson. All deny responsibility for the accident, as does Basildon District Council which ran the pool facility. The Judge granted permission to challenge his decision in the Court of Appeal, recognising that the case raised issues of important general principle. We will of course monitor developments on this case and report further. Golfer wins 400,000 in damages after being hit by a golf ball McPHEE v GORDON AND NIDDRY CASTLE GOLF CLUB Court of Session November 2011 A judge in the Court of Session has awarded damages of 397,000 in favour of a golfer, Mr McPhee, who lost his eye after being hit by a wayward shot. Mr McPhee was an inexperienced golfer and had never played the Niddry Castle course before. Mr McPhee and his companions were walking on a path leading from the 6th green to the 7th tee, when he heard a shout of Fore!. Despite ducking and raising a hand for protection, he was hit in the left eye by a shot struck from the 18th tee by a Mr Gordon. He felt his eye "explode" and he has lost his eye. Mr McPhee then sued both Mr Gordon and the club, and both were held liable, to the extent of 70% and 30% respectively. The incident occurred on a path which runs along the side of the 18th fairway. Mr Gordon took a tee shot from the 18th tee. The path was some 150 yards distant and 65 yards to the left of his intended line. His shot was wayward and the accident occurred. The Judge found that Mr Gordon had failed to consider the risk his tee shot posed to Mr McPhee, whilst the golf club had failed to install proper safety signs warning of the risk of stray shots at that point on the course. Despite the fact that there had been no history of accidents or near misses at this point, the club ought to have carried out a risk assessment and warning signs should have been erected at the path and at the 18th tee. Operators of golf courses should be aware of the extent of the duty of care imposed by this case and review current risk assessments accordingly.

3 FOCUS RISK MANAGEMENT 03 Claimant falls on grass verge MAYNARD v WIGAN METROPOLITAN BOROUGH COUNCIL Court of Appeal December 2011 In August 2006 Mrs Maynard, the claimant, and her family were walking across a grass verge outside her house to the car. She was carrying her four month old child and as she walked across the verge she fell and twisted her left ankle. She claimed against the Council alleging that her fall had been caused by her foot going into a hole in the grass and that the hole had amounted to a breach of the Council s duty of care as occupier of the grass verge. The Council accepted that it was the occupier of the land and owed Mrs Maynard a duty of care and it also accepted that she had fallen on that day and roughly in the place alleged. However, it denied any breach of duty and, in particular, denied the presence of any hole capable of amounting to a danger. At the initial county court hearing, there was insufficient evidence regarding the existence and size of the hole. Although Mrs Maynard had not measured the hole at the time of the incident, she estimated the hole to be at least four and a half inches deep. Her husband had estimated it to be six inches deep. Various sets of photographs were produced in evidence, none of which were taken at the time of the accident. One set of photographs, taken in 2010, showed a hole or indentation in the grass in the position at which the claimant had said that her accident had taken place. Measurements taken at the time of those photographs showed the hole to be two inches deep from its base to the level of the grass. Mrs Maynard accepted that those photographs gave the best visual impression of the appearance of the hole at the time of her accident but she did not accept that the actual depth of the hole as measured in 2010 was the same as it had been at the time of her accident in She gave evidence that she had complained to the authority about the hole on several occasions prior to her accident but that nothing had been done. The Judge in the county court indicated that he accepted Mrs Maynard as a truthful witness. He also accepted that she had complained about the hole and he stated that he was satisfied that it was as a result of stepping into this hole that Mrs Maynard suffered her fall. The Judge stated whatever the precise dimensions of the hole at the time of the accident, it was a potential and, in the event, an actual source of danger. Had there been no complaints to the council, then it may well be that I would not have found that there was any breach of the occupiers common duty of care under the Occupiers Liability Act But I have already accepted that complaints were made; and, on the evidence, nothing was done in response to those complaints. As a result, Mrs Maynard suffered a fall. In those circumstances it seems to me that she has made out her case on liability. The Judge found contributory negligence on the part of Mrs Maynard at 50%. Full damages had been agreed at 3,000 and consequently, the claimant was awarded 1,500. The Council appealed against this decision on the grounds that: the Judge had not made clear findings about the size, depth or characteristics of the hole, instead he inferred that the hole had been dangerous because the claimant had fallen after stepping in it; and he had inferred that the hole had been dangerous because the claimant had complained about it. The appeal was dismissed. The Court of Appeal found that although the county court judgment had been open to criticism as regards the clarity of the reasoning, the conclusion that the Council had been in breach of the common law duty of care had been supported by a process of reasoning. Based on the judgment as a whole, the Court of Appeal felt that it had been clear that the Judge had, in fact, accepted the detail of the claimant s account of how the accident had happened. Although he had not said so expressly, he had intended to find that the hole had been sufficiently deep for the claimant s foot to get stuck in it. That was a finding of fact that had plainly been open to him and it was the only fact consistent with his observations about the claimant s truthfulness. Had the hole been deep enough to have that effect, it had to have been considerably more than two inches deep and it would have been reasonable to infer from the precise way in which the accident had happened that the hole had to have been foreseeably dangerous. This decision presents difficulties to occupiers of verges and open spaces to which the public have access. However some comfort can be taken from the comment that it would not have been found against the Council had it acted on the complaints made prior to the accident.

4 04 FOCUS RISK MANAGEMENT News in Brief Suffolk County Council fined 48,000 for Health and Safety breaches Ipswich Magistrates Court fined Suffolk County Council 48,000 after the Council admitted breaches of health and safety laws at three separate locations, including two schools. One incident, at Burton End Primary School, occurred when a pupil fell more than 1.5 metres from a climbing frame and landed on concrete slabs below. The Health and Safety Executive found that the Council had ignored a requirement for an impact absorbent surface to be installed under the climbing frame. After a theatre production at Farlingaye High School, an IT Technician fell from a temporary aluminium platform which was being pushed whilst he was on the top of platform. Here, the HSE found that the Council had failed to train employees and had failed to monitor working at height in schools. The third incident related to four road workers who developed vibration hand arm syndrome. The Council admitted its failure to assess the risk from vibrating machinery. As well as fines totalling 48,000 Suffolk County Council were required to pay costs of 43,000. Winter hazard Park and Ride FERNQUEST v SWANSEA CITY AND COUNCIL Court of Appeal December 2011 Mr Fernquest drove from his home to a park and ride facility where he parked his car and took a bus to Swansea city centre. The Council operated the park and ride scheme and had been the owner and occupier of the car park, but it had not operated the bus itself. Upon reaching his destination, Mr Fernquest alighted from the bus and took a few steps along the pavement when he slipped on ice. He fractured a bone in his left hand and tore the ligaments. Proceedings were issued against the Council in the county court under Section 41(1)(a) of the Highways Act 1980 and in negligence on the basis of the Council s role in the operation of the park and ride service. The claim under the Highways Act failed. The Judge found that the Council had adopted a proper scheme of winter maintenance and there had been no breach of its duty under Section 41 of the Act. In respect of the negligence claim, the Judge held that the Council had not been negligent in continuing to operate the park and ride service in the prevailing weather conditions as it had been possible for pedestrians, with care, to avoid slipping. However, the Judge concluded that: the council had been aware of the problems at the destination bus stop and knew it was not possible to deal with the ice quickly; it was, therefore, reasonable to expect the Council to warn passengers of the presence of the ice and; and in failing to do so, the Council had been in negligent breach of a duty of care owed to passengers. The Council successfully appealed. The Court of Appeal found that the trial Judge had been wrong to conclude that the Council had been in breach of a duty of care owed to the claimant in failing to warn him, as he boarded the bus, of a hazard near the destination bus stop. This would have been a considerable extension of liability in the tort of negligence, particularly given that the hazard could not be regarded as unusual and people would have been aware of the weather conditions on the day of the accident. The Court of Appeal went on to say that the proximity of Mr Fernquest was too remote from the Council to bring about a duty of care given that the Council was not the operator of the bus service. This seems to be a sensible outcome to what would, otherwise, have been an onerous duty of care. The principles of the case will be of relevance when looking at other claims for slips and trips in wintry conditions. Information If you would like further information on any of the articles contained in this issue, need guidance on whom to contact or just wish to pass on any comments, please call, Hannah Denne Telephone +44 (0) Hannah_Denne@gbtpa.com New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0) Facsimile +44 (0)

5 FUNDAMENTALS OF RISK MANAGEMENT Gallagher Bassett International has been selected to act as the tutor on the Fundamentals of Risk Management (FoRM) training programme. Taught over two days, FoRM is a course that has been developed by the Institute of Risk Management (IRM) to provide a comprehensive introduction to practical enterprise risk management and ISO31000, the global risk management standard. The course is proving to be very popular and regularly sells out. For further details of the course please visit the Gallagher Bassett website Gallagher Bassett will run the course on the following dates: London 2nd/3rd April 22nd/23rdMay 18th/19th June Manchester 26th/27th April 10th/11th July Edinburgh 20th/21st March 26th/27th September Public Sector clients can use their allocation of risk control days to fund attendance but for this to happen the course must be booked through Gallagher Bassett and not directly with the IRM. In addition to the FoRM course we will, over the next few months, be running two other training programmes accredited by the IRM, Communicating Risk and the Influence of Perception and a brand new Risk Assessment Techniques course. See the website for more details and to download course brochures. Alternatively please phone your local Risk Control Consultant to discuss this further. New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0) Facsimile +44 (0)

6 RISXFACS.COM WEBINARS Gallagher Bassett is moving forward with technology as a platform to deliver Risxfacs.com training in an easier and more accessible format. It is intended to hold a webinar each month to enable clients to join, listen to and watch a demonstration of the Risxfacs.com system. The demonstration covers the very basics all the way through to the creation of reports in Excel. The sessions will, therefore, be ideal for both initial and refresher training needs. Each session lasts for two hours and numbers will be limited to 22. Clients will be asked to log on through a secure website and dial a conference phone number. The next Risxfacs.com webinars will be held on: Thursday 19 April 10.30am Wednesday 23 May 2.30pm Further dates will be released each quarter. To join a Risxfacs.com webinar please submit your details on: New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0) Facsimile +44 (0)