Do you operate a business in a heritage property? Your guide to defending public liability claims

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1 Do you operate a business in a heritage property? Your guide to defending public liability claims

2 Our partners The Heritage Alliance, set up in 2002 to promote the central role of the independent movement in the heritage sector, is now the biggest alliance of heritage interests in the UK. Everywhere we look, history surrounds us. English Heritage champions our historic places and advises the Government and others to help today s generation get the best out of our heritage and ensure that it is protected for future generations.

3 Defending public liability claims This report has been written for anyone who runs a business from a heritage property. It s fair to say that the tough economic climate has brought both new opportunities and challenges to the heritage sector. More owners of heritage properties are opening their doors to the public and there are an increasing amount of visitors to heritage properties. This is due in part to the growing trend of staycations and increased promotion of places to visit (during 2011 UK residents took a total of 1,545 million tourism day visits 1 ). Although a direct comparison can t be made, the nearest survey of this type, the Great Britain Day Visits Survey, estimated over a 12 month period the UK adult population took 1,078 million tourism day visits of the 1,545 million visits in 2011, 108 million included going to see a visitor attraction nearly 7%. Increased visitor numbers and potentially a wider range of visitors than your property is used to receiving, for example older people or families with young children, could lead to more public liability claims. Our recent research shows that public liability is the biggest concern of heritage clients. The heritage organisations we interviewed 2 who had concerns said they felt the biggest risk facing their business was public liability (14%), followed by cash flow/factoring (11%) and the current recession (10%). Easy money The UK s current compensation system is failing. While most organisations know they have a moral and legal responsibility to claimants to whom they ve caused injury, a claims culture is being fuelled which encourages people to believe that they can make easy money from often speculative and sometimes even exaggerated and fraudulent claims. The volume of public liability settlements recorded by the Compensation Recovery Unit has rocketed in recent years, rising by 18% between 2007 and We want to share our knowledge and experience of public liability claims with you, in particular advising you of recent changes to the way claims will be dealt with and what this means to you Great Britain Day Visit Survey (GBDVS) commissioned jointly by VisitEngland, VisitScotland and Visit Wales. 2 Survey of 173 UK heritage organisations conducted by telephone in January/April 2013 by FWD, an independent research company. 1

4 I hope more of these sorts of cases are publicised to hopefully stem the flow of no win no fee claims Representative of Hampton Court Castle and Gardens Hampton Court Castle from South Lawns

5 Case study: Hampton Court Castle and Gardens The following case study demonstrates that Ecclesiastical s appetite for defending the owners of heritage properties has not diminished in any way. Hampton Court Castle and Gardens are situated in the Herefordshire countryside. The castle dates back to 1427 and despite numerous alterations still retains its basic original form. The Castle and its 1,000 acres of stunning parklands provide a popular destination for weddings, corporate events and private parties. The incident In early September 2010, whilst attending a wedding reception at the Castle, a member of the wedding party failed to notice the presence of one of the Castle s ha-has and accidentally stepped over the edge of it, falling a distance of 4 feet and fracturing his arm. An accident was reported to the Castle s management three days after the incident and a claim against the property followed soon after. The claimant alleged that the ha-ha was inherently dangerous and even though its presence was highlighted by a marker rope, insisted it should have either been fenced off or had its presence drawn to the public s attention by way of appropriate warning signs. In addition, it was alleged that the lighting in the area was inadequate and should have been improved. Defending the claim It was clear from the outset that not defending this claim could have serious implications not only for the Castle, but also for a multitude of other heritage properties with similar landscape features. Therefore, following an initial investigation of all the available evidence and information provided on the claim by Ecclesiastical and Plexus Law, the decision was made to put a tailored defence strategy in place. The defence case was clear: first and foremost, the ha-ha was an intrinsic feature of the castle and to have it removed or altered in any way would have a significant impact on the aesthetics of the property. A similar argument was raised in relation to the installation of fixed barriers and high visibility warning signs. In all, it was contended that given the nature of the premises in question, all reasonable steps had been taken by the Castle to ensure the safety of their guests and visitors. The proceedings were served in May 2012 and the case went to county court in January The robust defence by Plexus Law and Ecclesiastical meant that the case was struck out with the Judge clearly accepting the arguments put forward by the defence team relating to the importance of preserving the aesthetics of the Castle grounds. Declaring his verdict on the case the judge said: In this regard, I have also considered the issue and the fact that the defendant s premises is a Grade I listed building. It is clearly a historic building and I must take that into account when considering to what extent signage and warning signs should be placed around the premises. A word of thanks Hampton Court Castle were thrilled with the result and praised the way in which the defence strategy was put into place. In an to the defence team, they wrote: Thank you very much for you and your team s efforts on the court case. We are all so pleased to hear the result! I hope more of these sorts of cases are publicised to hopefully stem the flow of no win no fee claims. I said at our post trial meeting that I had found the whole thing shocking and can t think of another word that describes the whole experience for us. I m happy that it s all over. 3

6 Understanding your obligations Whilst you may be concerned by the possibility of receiving public liability claims, we have found that this often stems from misunderstanding the duties you actually face as occupiers of premises. What is reasonable will depend on the nature of your premises, its age and the number of visitors it receives. A visitor should not have unrealistic expectations of floor surfaces and surroundings when visiting a heritage property. You are not under a duty to warn visitors of a risk which is or should be obvious to the reasonable observer. When considering what is reasonable the court will consider the risk of injury occurring, the extent or seriousness of any that may be sustained, the cost of implementing preventative measures and the social value of the activity or premises concerned. Whilst it must always be remembered that children are likely to be less careful than adults, you are entitled to assume they will be appropriately supervised by their accompanying parent or guardian. The duty is to take such care as in all the circumstances of the case is reasonable to see that a visitor to the premises will be reasonably safe in using the premises for the purposes for which he/she is invited or permitted by the occupier to be there Jason Burt, Partner, Plexus Law Becoming a venue for weddings and business conferences is a great way to attract more funding, but can bring a unique set of issues that need addressing from a risk perspective. You must be alive to the nature of the visitors you are trying to attract and ensure their reasonable needs are met. The introduction of new attractions, fairground rides for example, can significantly affect your risk profile as well as place you under additional regulatory obligations. Having recently had a claim brought against us by a member of the public, I was surprised by the significant amount of time and resources that had to be expended in defending the claim. Arranging visits from the loss adjuster, preparing witness statements, taking photographs and drawing up floor plans, reviewing and commenting on papers as well as keeping trustees briefed at all times all this inevitably diverted attention from other responsibilities. Mr Hugh Pierce, The Ipswich Institute 4

7 In 2012 we saw 112 public liability claims brought against our heritage customers. Of these, just over half were for slips and trips (57%) Claims Customer Relationship Manager, Ecclesiastical Tape in use during incident at Cholderton House

8 it would be highly undesirable if we required the appearance of our medieval country churches to be infected by warning notices or surrounded by flat grating systems which was suggested to be the appropriate solution in this case A George III painted Hall Chair from the entrance at Weston Park, Shropshire

9 Preserving the integrity and aesthetics of heritage property Heritage Open Days, which celebrate England s extraordinary architecture and culture by offering free access to places usually closed or charging for public admission, have grown in popularity. They are organised by a partnership between The Heritage Alliance, Civic Voice and the National Trust. In 2012 some 43,000 volunteers helped make it the most successful in its 18-year history. Every record was smashed; more visitors, more volunteers, more events and more awareness than any year previously. We are acutely aware of the importance of preserving the originality of historic/heritage properties and the problems this can, on occasion, create for owners who permit visitors access to their premises. That s why we only partner with similarly specialist providers, such as solicitors Plexus Law. In 2003 we defended the interests of a parochial church council (PCC) of a medieval church in a claim brought by a visitor who allegedly stumbled on an uneven pathway. Accepting the defence we put forward on behalf of the PCC, the judge stated it would be highly undesirable if we required the appearance of our medieval country churches to be infected by warning notices or surrounded by flat grating systems which was suggested to be the appropriate solution in this case. Such an attitude would offend anyone s sense of reasonableness and proportionality especially taking into account the costs of such remedial works and the damage to the aesthetic features of the building In 2008, the same defence team represented a cathedral in a claim brought by a visitor who sustained injury after she stumbled and fell as a result of placing her foot in a depression in the surface of a stone step leading to an ancient Saxon crypt. The claimant contended that the step should have been repaired and that a handrail should have been provided. In dismissing the claim the court concluded that given the nature of the premises, the depression did not create a foreseeable risk of injury and that is was not reasonable to expect a handrail to be fitted. The Judge confirmed that in attempting to reduce the risk of injury, alterations to the fabric of the building should be regarded as a remedy of last resort. For English Heritage, it is vitally important that any changes we make to our sites in the interests of our visitors safety do not compromise the integrity of the historic fabric, nor the various other ways in which our sites are significant. Striking the right balance is crucial. Jeremy Ashbee, Head Historic Properties Curator, English Heritage Sharing our heritage and the vivid stories that bring it alive is one of the most exciting ways of getting people to understand and care for our historic buildings. The Heritage Alliance is delighted that its sponsors Ecclesiastical are championing the importance of appropriate insurance to make sure the experience is a pleasure for all. Kate Pugh, Chief Executive, Heritage Alliance 7

10 Planning ahead is crucial Attracting more visitors brings its own challenges. It is essential that heritage organisations regularly monitor activities to ensure that any changes to the way in which you operate are properly considered and assessed. As a specialist heritage insurer, we can assist you in identifying issues which increase your risk exposure, as can your broker. Prevention, it s said, is better than cure. Here are some of the precautionary actions that you should take to manage your risk. Risk assessments While risk assessments can take time, they re not difficult. A thorough risk assessment can avert the easily preventable and sometimes not so obvious risk, which could lead to a liability claim in the future. The task of carrying out the assessment can be shared, but should always be overseen by the person with overall responsibility for health and safety. Training Ensure your employees are properly trained and that such training is recorded and regularly refreshed and updated. Understand your requirements On occasions it might be necessary for you to utilise the services of third-party contractors. In this case, make sure you appreciate what your respective responsibilities are, to avoid the possibility of inadvertently assuming some of the contractors obligations and potential liability, and ensure they have appropriate liability insurances in place. Keep accurate records Ensuring the organisation, in all its forms, has evidence and detailed records of any incidents, means that the validity of any potential claims can more easily be assessed. The Rules of Court mean that an injured party can often wait years before bringing a claim. So having a proper system for the long-term retention of records and other documentary evidence is essential. Ecclesiastical has the expertise to defend the interests of our customers when the circumstances of a claim demand it. We also have a responsibility to do the right thing. As appropriate, claims are settled as quickly, ethically and fairly as possible. Our duty is to protect the interests of customers and sometimes this requires a more pragmatic approach to avoid creating precedents that could have a harmful impact on other customers in our niches. Our team of specialist claims handlers take such considerations into account when deciding the best way to proceed with any claim. David Bonehill, Claims & Risk Services Director, Ecclesiastical 8

11 Ensuring the organisation, in all its forms, has evidence and detailed records of any incidents, means that the validity of any potential claims can more easily be assessed. Pages from a book with the daily recordings from barograph and barometer readings of the weather at Weston Park which have been kept since 1866

12 The Royal Arms banner photographed at the National Trust s Textile Conservation Studio. Reproduced with kind permission of the Dean and Chapter of Westminster. The implementation of the Jackson Reforms herald the most wide-ranging changes there have ever been in the way in which personal injury claims are dealt with.

13 Introducing the Jackson Reforms The main beneficiaries of the Compensation Culture and the rise in liability cases are not claimants but rather the lawyers who represent them who routinely seek disproportionately high legal costs which significantly exceed the actual value of the claim. The implementation of the Jackson Reforms herald the most wide-ranging changes there have ever been in the way in which personal injury claims are dealt with. Whilst the reforms present a number of challenging issues both to the insurance sector and legal profession alike, the underlying benefits are welcomed. Lord Jackson was charged with the responsibility of addressing this issue and his proposals were detailed in his report the Review of Civil Litigation Costs. He advocated a series of reforms designed to reduce the overall costs burden and to rebalance costs liabilities between claimants and defendants without reducing access to justice. The Jackson Reforms will change the way personal injury claims are dealt with in two significant ways: Revised Civil Litigation Costs; introducing a wide range of fixed fees and predictive fees. This gives insurers certainty on the level of legal costs claimant solicitors can claim in a wide range of cases. The introduction of an online portal through which claims will be directly referred to your insurer, along with a modification of the existing rules to curtail the time limits for various steps of the claims process. Together, they are intended to substantially reduce the legal costs associated with bringing claims for personal injury as well as making the system more efficient and streamlined. What do these Reforms mean to you? Whilst anything that caps a claimant s legal costs is to be welcomed, the significant reduction in claim response time limits will present significant challenges. So, looking ahead, you should: 1 Ensure that all relevant accident documentation is immediately made available to your insurer so they can properly investigate and consider claims. 2 Respond promptly to any request for information/assistance from your insurer. 3 Let your broker and/or insurer know if an incident occurs which you think could result in a future claim. 4 Consider an insurer who specialises in handling heritage properties. Not all insurers are the same and not all have the experience to judge when a claim has a genuine chance of winning, when it looks better to settle and when to fight. Ask your broker about insurers with a specific track record in supporting and protecting heritage buildings. For more information on the Jackson Reforms visit the claims section of our website: 11

14 Ecclesiastical A proud supporter of the heritage sector Committed to the sector and protecting its future We know that letting litigious claims pass by, no matter how small, can set a precedent and expose other heritage properties in the future We enable heritage properties to focus on their core operations in such tough times and not be burdened with unnecessary claims We pay out when it s the right thing to do, not simply when it saves us money. Providing specialist expertise Expert in-house survey team Specialist underwriting team with a wealth of experience Tailored cover created using feedback from heritage clients and insurance brokers. Helping our heritage customers to reduce risk Providing in-depth risk management guides tailored to the heritage sector Publishing topical and seasonal advice on our website. Delivering a proven claims approach We re rated in the top 3 for claims services (2011/12)* We know when to pay a claim and when to defend it Settlements are made as promptly, ethically and fairly as possible. We re rated in the top 3 for claims services (2011/12)** *Source: the Annual Insurance 260 Business Insight Report (40 insurers) **Source: UK Guide to Company Giving 2011/12 12

15 Staff at Weston Park moving two dining chairs in the prescribed conservation way wearing gloves and holding them firmly and safely by their seats.

16 Whilst Ecclesiastical has used reasonable endeavours that the information in this report is correct at the time of publication, please note: (a) the information is not intended to constitute a definitive or complete statement of the law on any subject, (b) the information may over the course of time become incorrect or out of date; and (c) neither Ecclesiastical Insurance Office plc. nor its subsidiaries can accept any responsibility or liability for action taken or losses suffered as a result or reliance placed on the information provided in this article. Ecclesiastical Insurance Office plc (EIO) Reg. No Registered in England at Beaufort House, Brunswick Road, Gloucester, GL1 1JZ, UK. EIO is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority.

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