Paul Forman Transport Research Laboratory

Transcription

1 INFRASTRUCTURE - A PUBLIC LIABILITY? Paul Forman Transport Research Laboratory 1. INTRODUCTION More people are now claiming financial recompense for personal injuries they sustain. The amounts being paid out for each claim have been steadily rising in recent years. Increasingly, the targets of such claims are highway authorities and property owners. In some fields, the total cost of personal injury claims is now disproportionately high compared to the amounts spent on the maintenance and improvement of the built environment. Inconsistencies between design standards, safety improvement policies and maintenance regimes for the more common vehicle-based infrastructure can weaken an authority s position when it comes to assessing their prior knowledge of potentially hazardous environments. This has direct implications on their likely success at defending public liability claims. As we move towards intelligent transport systems and greener modes of transport the liability situation will change yet further. Trams tracks and the associated pylon infrastructure now grace a number of cities. Cyclists require routes clear of debris, vertical depressions and upstands. Even the existence of pedestrian routes beside otherwise low priority traffic routes is testing the robustness of highway authority policies and practices. With more authorities now being exposed to the rigours of claims handling, it is clear that there are principles that can be applied to the engineering process which can reduce the exposure of the authority whilst simultaneously improving public safety. The key is to recognise the vulnerability and apply the principles pro-actively. 2. LIABILITY 2.1 Duties And Powers A highway authority has a duty to maintain its public highways and powers to improve them. However, liability does not just hinge on whether a highway authority breaches its statutory duty. Claimants can also base their actions on negligence on the part of the authority or indeed nuisance. Slips, trips, falls and potholes form the basis of the majority of claims against a highway authority. But they are not the only types of claim being pursued. Inadequate or inconsistent facilities, facilities encouraging a risky manoeuvre or those involving a trap, are not uncommon allegations. Ignoring previous similar incidents however few relative to an authority s intervention or trigger criteria, will also be alleged. More recently, claims have intimated that authorities have been negligent in that they have failed to invest in the latest technology to aid their decision-making. 131

2 The mere existence of an obstruction does not automatically render the highway "out of repair". Essentially, for a claim to be successful, the plaintiff has to prove, on the balance of probabilities, that the part of the highway where the accident occurred was not reasonably safe and that the accident was caused, at least in part, by the dangerous condition. Even where a highway authority is found to have breached its statutory duty to maintain the highway, it may be cleared of liability for the consequences of an accident if it can establish that it took such care as was reasonably required to ensure that the pertinent section of the highway was not dangerous to traffic. However, the burden of establishing this defence is placed on the defendant authority. Crucially, the duty requires an appropriate standard of maintenance for the traffic that may reasonably be expected to pass along the highway. This aspect reveals perhaps one of the most common inconsistencies found within highway authorities - where one section of the authority is aware of the increased usage of a part of the highway network but fails to advise those in another section. Engineers must remember that it is the authority that is sued, not an individual team or department within. The boundary between maintenance and improvement is not as clear as one might think. Typically, an authority will not be held liable for failing to exercise their powers. It is however important to note that maintenance goes further in some instances than just repair. 2.2 Negligence Plaintiffs can also allege negligence on the part of the highway authority. Negligence typically applies to a decision making process and the link between that process and accident causation has to be established. Authorities are not usually vulnerable in the formulation of their policies. Indeed, allowing such discretion enables highway authorities to demonstrate their individuality and innovation. However it is crucial that the authority has documented policies which are not too ambitious for its resources. Contributory negligence of the claimant can be a valid mechanism for reducing liability in an action. However, highway authorities should not feel too confident about contributory negligence pleas, particularly with pedestrian accident claims. Even drivers falling asleep at the wheel or exceeding the speed limit can be successful in their claims against highway authorities for the severity of injuries they sustain. 2.3 Nuisance One M e r avenue for a plaintiff's claim is that of public nuisance. This typically involves an act or omission that inhibits the use of the highway. The highway authority has a common law and statutory duty to prevent highway nuisances. A plaintiff who alleges that the highway is dangerous does not have to prove that the danger resulted from an obstruction. However, if an obstruction caused the accident, then the plaintiff will not only have to prove this, but also that the highway was dangerous and that the danger was reasonably foreseeable to the authority.

3 Interestingly, it is not necessary to prove negligence to establish public nuisance. Generally, if there is a dangerous nuisance on a highway, then the authority will be liable for damage that results from it. However, it must be shown that the highway authority knew or should have known of the nuisance and then failed to take any reasonable steps to remove or mitigate it. Where a road user accidentally deviates from a highway and is injured on adjacent land by an object which, had it been on the highway, would have constituted a public nuisance, the owner of the adjoining land will usually be liable as if that object were a highway nuisance. This does not apply to situations where a road user leaves a highway deliberately. Public nuisance and a breach of statutory duty can often cover the same issues. There will be occasions where a nuisance is not a breach of statutory duty, for instance where an obstruction is caused by an object on top of the surface of the highway but which has not damaged the surface. To maximise their chances of success, plaintiffs will often allege both public nuisance and a breach of statutory duty, allowing the courts to decide. 3. THE CLAIMS PROCESS Typically the plaintiff has some three years after an accident to initiate Court proceedings. The timetable is more complex for claims involving children. The Court will then set a timetable for exchange of documents and evidence. Such timetables can be very difficult to adhere to when one considers the breadth of a claim, the number of personnel and agencies who may have relevant documentation or involvement, and the age of some of the documents. The proposed fast-track court systems will further challenge multi-disciplinary and bureaucratic bodies. It is worth stating that ignoring claims will not make them disappear. Delay can also increase the value of a claim. Despite most technical staff within an authority wanting to contest certain types of claim, economics can often dictate a more appealing route involving settlements. This factor can often alienate technical staff from those insurance staff and claims handlers dealing with a multitude of claims. As with most activities that may possibly lead to financial gain, a proportion of claims are fraudulent. Securing thorough, consistent and corroborative evidence will minimise the chances of such claims being successful. The sharing of data between corporate bodies can also expose the dishonesty. Many authorities responsible for infrastructure consider that they will be damned if they do something and damned if they do not. This matter is particularly pertinent when it relates to an authority following strict data-led policies, but then initiating action at a site immediately after a high profile or politically sensitive accident. There is no simple answer to this dilemma but thorough documentation outlining the engineering judgement process used to justify action or inaction can pay high dividends. 133

4 4. THE BUILT ENVIRONMENT The vast majority of the infrastructure around us does not comply with new-build standards and it would not be realistic to expect retrospective mass action. It must also be remembered that some design standards have dated prematurely, others incorporate anomalies. Fundamentally however, adherence to design standards cannot guarantee an accident-free environment. Construction details on new build schemes still incorporate features that are a hazard to road users and even the materials used on, and adjacent to, traffic routes are often not conducive to safe passage. Whilst safety audit has gone some way to mitigating adverse effects on new schemes, there is still scope for a more holistic approach. It is crucial that authorities should pro-actively review their infrastructure and more importantly assess how the lay public might perceive it. Practitioners must find ways of assessing the suitability of existing surface materials and inventory items rather than just react to defects in their condition, even though this approach can be difficult to reconcile with an otherwise data-led approach to engineering. 5. MAINTENANCE No inspection frequency can guarantee that defects are noted and programmed for rectification before a road user might encounter a hazwd. Increasingly though, even the inspection criteria are being brought into question for not being sufficiently robust to identify the hazards pertinent to accident causation. Where a non-standard item of inventory is installed or an experimental material is used, the maintenance requirements must be reviewed and adapted to suit. Otherwise, an authority will stumble at the first hurdle of proving an adequate monitoring regime. During winter maintenance operations, spot salting by its very nature leads to variations in surface condition and difficulties as regards documentation of treated sites. Technology such as GPS may ultimately assist in forensically proving that a treatment was applied but such equipment is a long time off universal application. Furthermore, although applying a hierarchy is good practice, authorities must be aware of special cases on less strategic routes. They should also consider desire lines and how road users would fare if they decide to take altemativehhorter routes, for instance pedestrians not using the more circuitous grade-separated facilities. The success of reinstatements can depend heavily on the original choice of pavement material. Materials picked for aesthetic reasons will often not be conducive to trip-fiee reinstatement. Compounding this is the problem that authorities cannot always rely on third parties to document the extent to which they have affected the highway environment. 134

5 6. RISK MANAGEMENT The key to successful claims handling and litigation is thorough records. Any documents which relate to the decisions made and whether those decisions accorded with the authority s policies or procedures are relevant. Certain documents will be privileged but generally it should be assumed that all documents would be made available. From experience, some Quality Assurance systems have led to key technical officers not seeing and disseminating the latest advice and standards received by a controlled library. This is of particular concern when it comes to the less kequent advice requiring pro-active review of the highway network, as opposed to a new specification which would be consulted when design reaches that level of detail. The externalization and transfer of functions within highway authorities and even property portfolios is leading to weaknesses in the dissemination of prior knowledge. Key professionals tend to build up specialised knowledge over years of monitoring specific inkastructure. Such bowledge is typically used to tailor intervention criteria or mitigate the transient effects of weather related incidents at particular sites which may periodically affect road user safety. Without such knowledge, authorities have found themselves vulnerable, particularly when evidence canvassed from local residents may infer obvious hazards that the authority should have been in a position to mitigate. The private financing and operation of both existing and newer public inhtructure schemes is also complicating previously straightforward liability claims. A superseded library of past policies pays dividends when investigating an old claim. When new best practice guides are published, it is imperative that a nominated officer within an authority vets the advice, reporting whether the authority should adopt the principles and disseminating this to all relevant colleagues and third parties. Alternatively, they should minute why those principles should not be adopted, citing their authority s pertinent circumstances. If the authority does not do this, then the Courts can justifiably judge them against nationally accepted best practice and criteria of the time. 7. SUMMARY Few practitioners are aware of the range of highways and occupiers liability claims. Despite the expense, there are positive aspects that manifest themselves in defending such claims. These will often be in the form of identifjmg systems or policies which are either inconsistent or which ignore available information. Mitigating against these factors can help to target scarce resources and ultimately improve safety. 135

6 8. BIOGRAPHY Paul Forman is Head ofinvestigations & Risk Management at Tm. He specialises in litigation support on public liability claims, particularly those involving highway safety issues. Paul appears as Expert Witness in court and regularly advises authorities and corporate bodies on systems conducive to both improving public safety and minimising exposure to claims. He is currently Chairman of the Institute of Trafic Accident Investigators. Copyright Transport Research Laboratoiy 1998 Whilst every effort has been made to ensure that the material presented in this article is relevant, accurate and up-to-date at the time ofpublication, the Transport Research Laboratory cannot accept any liability for any error or omission. 136