highways express Helping you manage your Highways claims Introduction

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1 highways express Helping you manage your Highways claims Introduction Highway authorities are facing increasing pressure to provide high quality highway services while maintaining tight control of costs and improving efficiency. With road user compensation claims rising 20% in 2013/14 1, in addition to tight, stringently applied deadlines under the Pre-Action Protocol For Low Value Personal Injury (Employers Liability and Public Liability) Claims ( EL/PL Protocol ), it is imperative that highway authorities adopt efficient and accurate processes to investigate claims under the Highways Act The EL/PL Protocol gives highway authorities just eight weeks from the date the Claim Notification Form (CNF) was sent, to investigate a claim, gather evidence, obtain relevant disclosure and decide on liability. There is no scope for extensions and if a deadline is missed, so is the opportunity to secure potential cost savings. Controlling the cost of a highways claim Control of costs is important in any claim. DWF understands the need to identify the chances of successfully defending a claim at the earliest opportunity. Our specialist local authority team understands the implications of the EL/PL Protocol and works in partnership with clients to control costs at every stage. Highways Express is DWF s new online platform for handling highways claims. Highways Express saves valuable time by streamlining the collation and sharing of evidence between inspectors and claims handlers. It generates a clear rating on each claim s merit, for both breach of duty and the statutory defence. This allows handlers to make informed, timely decisions on liability and case strategy, well within the timescales required by the EL/PL Protocol in conjunction with the EL/PL Claims Portal. Who will benefit? Insurer and local authority claims handlers acting on highway maintenance liability claims Highway authorities or third party highways claims investigators Benefits Quick, consistent liability decisions with efficient investigation and fraud screening Reduces the risk of costly, incorrect decisions throughout the claim lifecycle Early identification of potentially fraudulent claims MI to assist with resource allocation, inspection policies and budget planning Minimises claims leakage, lowers the cost of claims and delivers bottom line benefits for both the highway authority and insurer 1 Source: ALARM asphalt industry survey 2013

2 Case study 1 Claims information: Mrs Goodby suffered an alleged accident on 12 December She claimed to have tripped in a pothole on a footpath whilst carrying shopping home along Roughly Hill. A photograph taken by Mrs Goodby shows a deep pothole, measuring 50mm in depth. The claimant reported the incident by telephone on 13 December 2013, and submitted a Claim Notification Form that same day. A liability decision was due by the Council on 10 March Highways Express: Claimant details Upon receipt of the Claim Notification Form (CNF), the claims handler entered the claim onto Highways Express, recording the claimant s details and circumstances of the accident. 2. Highways Express: Defect details The Highways Inspector began an investigation into the claim. It soon became apparent that the defect had already been repaired and so an onsite investigation was not required. He recorded his investigation on Highways Express. At this point the case reverted back to the claims handler to generate the report from Highways Express.

3 3. Highways Express report: Breach of duty Breach of duty (Section 41) This result is based on the claimant s photographic evidence On the basis of the measurements provided (50mm) the defect is likely to represent an example of a stretch of highway in want of maintenance or repair at the time the measurement was obtained. The time period between the date of the photograph and the accident is 1 day. Consider any lapse in time and if you are satisfied that the photograph is likely to depict the condition of the defect on 12 December 2013 then breach of statutory duty could be admitted. The defect was repaired on 20 December 2013 following the notification of the claimant s accident. This could indicate that the highways authority felt it was dangerous or alternatively, it may have been routine response to the accident. Highways Express provided the claims handler with the indicative s.41 outcome. In this case, the report indicated that this defect represented a probable breach of duty under section Highways Express report: Statutory defence Statutory Defence (Section 58) On the assumption that the last pre-accident inspection was completed competently at face value the defendant appears to have a valid s.58 defence The Defendant adopts an intervention level of 20mm (depth) for this type of defect. Inspection Frequency according to the highways authority is to conduct walked inspections every 6 Months The last inspection was on 3 October The accident was on 12 December Therefore the accident occurred within the period prescribed for the next statutory inspection. Highways Express provided the claims handler with the indicative s.58 outcome. In this case, the report indicated that the highway authority did have an opportunity to raise a statutory defence. The highway authority decided to defend the claim and the case proceeded to trial. The court found that the highway authority could rely on the special defence afforded to it under s.58. On this basis the claim was dismissed.

4 Case study 2 Contributory negligence: The facts of Mrs Goodby s case are slightly altered. The last pre-accident inspection took place on 1 May 2013, over seven months prior to Mrs Goodby s accident. A complaint by a member of the public concerning this defect was received on 5 December 2013 but had not yet been repaired. Highways Express report: Statutory defence Statutory defence (Section 58) The Defendant is unlikely be able to rely on a section 58 Defence The Defendant adopts an intervention level of 20mm (depth) for this type of defect. Inspection Frequency according to the highways authority is to conduct walked inspections every 6 Months The last inspection was on 29 May The accident was on 12 December Therefore the accident occurred 42 days after the date upon which the last statutory inspection ought to have occurred. The Highways Inspector has indicated that there may be preaccident complaints which are relevant they have provided the following information: Complaint about this defect a week before the accident which was not actioned (Ref: PN826975). There is no change to the s.41 output in the Highways Express report and so it remains a case where the defendant is likely to be in breach of duty. However, the s.58 output has changed to red, suggesting that the highway authority is unlikely to have a valid s.58 defence. The claims handler accepted that this was a case to settle but in most highways tripping claims there is a realistic prospect of raising contributory negligence arguments. The claims handler wanted to consider the financial implications of alleging contributory negligence, which would see the case fall out of the EL/PL Claims Portal, even if a full admission of liability were made. The claims handler processed the claim through evaluate to see what the likely cost implications might be from raising arguments of contributory negligence. evaluate report Questions Scenario 1 Scenario 2 Scenario 3 Value of Gross Damages Liability % Accepted What are the injury related damages? Disbursements including VAT Has the case settled within Stages 1&2? Yes No No Does the user want to stay within the Portal? No No In this instance, the claims handler observed that achieving a finding of 20% contributory negligence would result in an overall saving on the claim of just 68. Therefore they decided not to pursue a contributory negligence argument, and admitted full liability at stage one, keeping the claim within the EL/PL Claims Portal. Is the case Pre-Litigation or Litigated? Pre-Litigation Pre-Litigation Stage of Litigation? Is the case going through to trial? Answers X X X Reference Claimant Name Note highway toolkit brochure Mrs Goodby Remember to deduct any Stage 1&2 costs already paid Final Damages Figure 4, , , Solicitor s Costs (including uplift and success fee if applicable) , , Solicitor s Costs (including Counsel s fee if applicable) Solicitor s Costs (including Counsel s fee if applicable) + VAT 1, , , Solicitor s Costs (including Counsel s fee if applicable) + VAT + Disbursements 2, , , Total Amount Payable 6, , ,044.00

5 Case study 3 Fraud: The facts of Mrs Goodby s case are slightly altered. Mrs Goodby submitted her Claim Notification Form two years after the date of the accident, having previously not reported it. The defect had since been repaired; however, the record and/or date of repair could not be found. Identifying fraud with intelligence Highways authorities are increasingly the target of insurance fraudsters. Personal injury claims handlers rarely have access to internal systems to profile claimants and are often unaware of the depth of analysis available. As a consequence, unidentified fraud is rising, resulting in leakage and an increase in the overall cost of claims. Highways Express has been designed to identify case specific fraud triggers and integrate seamlessly with DWF s fraud database to provide immediate notification of potentially fraudulent claims. Key indicators ensure appropriate cases are automatically selected for Sonar claimant validation intelligence searches, helping insurers and highway authorities to identify fraud at the earliest possible opportunity. Upon receipt of the CNF, the claims handler entered the claim onto Highways Express and the highway inspector inputted the investigation findings onto Highways Express. The key facts of the defect are identical to those in case study 1. The claimant maintained that the photograph had been taken within a couple of days of the accident on an old camera which she no longer owns. She only had hard copies of the printed photographs. Highways Express took information from the individual case, and cross-referenced with DWF s in-house fraudulent claims database, D:cypher, to generate an overall assessment of fraud risk. Highways Express report: fraud risk rating Highways Express identified this case as a high fraud risk. Fraud risk rating D:cypher has identified that this claimant is linked to a known fraud ring This claim has been identified as a high fraud risk. You should identify any previous claims registered with the DWP ascertainable from CACHE. You may wish to consider instructing DWF to produce a Sonar report. The claims handler heeded this warning and instructed DWF to produce a Sonar report (see over) to look further into the background of the claimant.

6 Sonar report social networking search Social networking searches have identified a profile for a Judith Goodby. This is likely to be the claimant as there are only two profiles by this name and this is the only one covered by this highway authority: Judith Goodby s profile is limited in the open content due to the security settings; however, there have been a number of pictures uploaded, both pre and post-accident. Of note are two pictures where Judith Goodby is shown with her sister, Jane Goodby, at a local ski centre (as per the profile tags and comments). Next to this picture there are a number of comments of note, ten days before the index incident: looking forward to starting two weeks of advanced ski lessons with sis, woop There is a later comment just one day after the accident. This date corresponds with the day the claimant stated in the CNF that she first sought medical treatment: was doing so well but now thinking it may have been too soon to move on to the advanced lessons, serious fall today, wrist hurts, thinking a trip to the emergency walk in centre may be in order

7 Sonar report linked parties in the claim Source: Generated using 12 Technology Outcome Highways Express and Sonar enabled the claims handler to identify this as a claim that involved fraud and/or fundamental dishonesty. This enabled the highways authority to manage the claim accordingly.

8 Go further DWF is a business law firm with international reach. We combine legal expertise with deep sector insight, supported by a firm commitment to client service; helping you to anticipate issues, create opportunities and achieve the outcomes you need. Find out how DWF can help you Mark Whittaker Partner Insurance DD +44 (0) mark.whittaker@dwf.co.uk Paul Donnelly Associate Insurance, Casualty DD +44 (0) M +44 (0) paul.donnelly@dwf.co.uk DWF LLP 2014 DWF LLP is a limited liability partnership registered in England and Wales with registered number OC The term Partner is used to refer to a Member of DWF LLP or an employee or consultant with equivalent standing and qualifications. DWF LLP (registered number OC328794) is authorised and regulated by the Solicitors Regulation Authority. ISO 9001:2008 Certificate No LRQ ISO 14001:2004 Certificate Number LRQ DWF LLP is authorised and regulated by the Financial Conduct Authority to carry out consumer credit activities with consumer credit licence number: DWF LLP is also recognised as an incorporated practice by the Law Society of Scotland with registered number ISO 27001: 2005 Certificate Number GB12/ DWF Fishburns is a brand name of DWF LLP. A list of the Members of DWF LLP and of the Non-Members who are designated as Partners is open to inspection at its registered office, 1 Scott Place, 2 Hardman Street, Manchester, M3 3AA. Go further