A Consultant s Perspective. Gary Livingstone. November 2009

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1 Public Liability Claims Managing the Risk A Consultant s Perspective Gary Livingstone November 2009

2 Contents Understanding Liability Managing the Risk - Identification Managing the Risk - Minimise Project related examples Conclusion

3 Understanding Liability Types of Liability Public Liability Death of or bodily injury to a person (not an employee of the Consultant) or loss of or damage to property resulting from an or failure to take action by the Consultant. Professional Liability Failure of the Consultant t to use the skill and care normally used by professionals providing services similar to the services. Employers Liability This insurance is arranged to protect employers against claims for injury or illness brought by employees. Public Liability Professional Liability

4 Understanding Liability Types of Claims Example of Liability Comment 1. Failure of maintenance operator Risk to operator* to clear out gullies resulting in flooding event. 2. Damage to persons or property Risk to the consultant as a result of direct action by consultant 3. Collapse of existing structure Risk is to the owner* resulting in damage to property or/and injury. 4. Damage to property (ie fields) by Risk to contractor* contractor during works 5. Damage to persons or property resulting from latent defect in design. 6. Damage to persons or property resulting from latent defect in design by sub consultant t Risk to the consultant Risk to the consultant

5 Understanding Liability - Impacts of a Claim Waterline Cost of paying legal profession Cost of company time defending di a claim Possible increase in Insurance premiums Declaration of any claims in tender submissions Possible effect on share price Possible dismissals / demotions Possible criminal action (through HSE) Negative change in company reputation Change in organisations culture blame culture Low morale leading to people leaving the company WEAKENS THE MARKET POSITION OF THE BUSINESS

6 Managing the Risk Identification Highway Design King v. DETR- QB, RCJ, May 2002, [2003] EWCA Civ 730, JPIL (2003) C141 A motorcyclist suffered severe injuries as a result of a collision with a roundabout. It was argued that the highway authority was liable for the design and construction of a motorway slip road which led to the plaintiff travelling too fast towards it. The lower court found the DETR liable but also that negligence by the motorcyclist had contributed to the accident. On appeal the judgement was that the lower court had incorrectly found the design of a roundabout and its approaches a cause of the accident. Kane v New Forest DC [2001] 3 ALL ER 914 A pedestrian emerging from a footpath built by the District Council onto a road was hit by a car. The sightlines from the footpath onto the road were poor. The Court of appeal found the District Council negligent, in that it had been aware as planning authority that the sightlines were poor, and that they had caused the danger. Levine v Morris 1969 A motorist lost control of his car in heavy rain on a bend on a dual carriageway, having just overtaken a vehicle. His car left the road and collided with the concrete column of a road sign, resulting in the death of the passenger Mr Levine. The court held the Department of Transport 25% liable, taking the view that it was foreseeable that accidents would happen on the bend, and that given that there were alternative sites that presented less risk, there was a duty to have considered them.

7 Managing the Risk Identification Other disciplines Drainage, Structural and Geotechnical Design / Project Manager publicradio org/collections/special/2007/ bridge_collapse/

8 Managing the Risk Identification Increased complexity Traditional Design and Tender Design and Build Design, Build, Finance and Operate (DBFO) Public, Private Partnership (PPP) Early Contractor Involvement (ECI) Managing Area Contracts (MAC)

9 Managing the Risk Minimise the Risk Why do incidents happen.. Lack of briefing to staff prior to going on site Professional carrying out a task without the relevant skills Professional work overload leading to short cuts (economic boom output) Lack of training Poor engineering judgement Failure to adhere to quality procedures (i.e. designer risk assessments or reviews) Commercial pressure leading to short cuts (economic bust output) Excessive use of design software / no understanding of outputs Lack of Governance of Project

10 Management of the Risk Minimise the Risk How to minimise the risk.. Establish a good understanding of the project Good understanding and relationship with the client / stakeholders Establish the risk strategy (i.e. risk register with ownership and mitigation) Implement the correct training if required Ensure compliance with IMS polices and procedures Implement review teams consisting of experienced professionals Set up system checks for outputs t from engineering i software Price the project correctly to ensure the above has been incorporated Ensure you have Project Sponsor support If something goes wrong make sure its not swept under the carpet - Educate

11 M50 Gantries - Dublin

12 Broadway Underpass Westlink, Belfast

13 Conclusion Understanding the implications Critically assess the risk Make use of past experience Exercise sound management Raise awareness / educate Learn from the best Never let complacency set in

14 Thank You

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