Page 1 of 5 IHT HALF DAY SEMINAR 18 November 2009. Public Liability Claims Managing the Risk A Client s Perspective Stephen Murphy Solicitor / Head of Central Claims Unit 1. THE SCOPE OF THE LIABILITY RISK FOR ROADS SERVICE. Extent of the Risk.
Page 2 of 5 Three types of public liability claim risks personal injury, vehicle damage and property damage claims. Risk exposure is an average of approximately 3000 public liability claims each year. The largest head of claim continues to be in respect of vehicle damage. Sources of the Risk. Normal routine maintenance issues. Seasonal weather conditions will affect the quantity and type of claims. Exceptional emergency situations, for example, flooding or technical surface dressing failures. Specific Issues in Highway Claims Risk Assessment. Susceptibility of highway authorities and contractors to fraudulent claims. Achieving the balance statutory duties and discretionary powers v available finite resources. The intrinsic problem - No system can ensure immediate discovery and repair of all hazards. Comment of Lord Justice McCollum in upholding the Department s statutory defence in the unreported judgment of Frances Balmer v Department of the Environment for Northern Ireland, delivered on 24 October 2003 Specific Risks Identified. Roads (Northern Ireland ) Order 1993 Article 8 - maintenance and inspection issues, including gullies. Article 9 - discretionary powers to salt **. Article 10 - obstructions on the highway. Article 43 - discretionary power to improve. Article 44 - discretionary power to illuminate. Design issues pre and post 1 October 1973 and NIHE design issues. Street trees - roots and branches damage issues.
Page 3 of 5 ** Note difference with duty to salt set out in section 41 (1) (1a) of the Highways Act 1980 and section 34 of the Roads ( Scotland) Act 1984. Street Works (Northern Ireland) Order 1995 Article 42 - liability for loss and damage caused. Human Rights Act 1998 Works / Diversions / Rat-Runs / Loss of business. Article 8 of the European Convention on Human Rights Right to respect for private and family life. Article 1 to the First Protocol Protection of property /fair balance test. Andrews v Reading Borough Council [2004] EWHC 970 (QB) and A2 / 2005 / 0346. Cliff v Welsh Office [1998] EWCA Civ 1278. 2. ACTIONS TO ABATE RISK. Prevention is always cheaper than the costs of a successful defence. Legal Aid is granted to most personal injury claimants. When Roads Service successfully defends an action brought by a legally-aided claimant, they are not allowed to recover their defence costs. Current maintenance standards are contained in: - Roads Service Policy and Procedure Guidance RSPPG EO19 Roads Maintenance Standards for Safety 27 March 2009. Winter Service RSPPG EO22. NI adaption of the updated Highway Risk and Liability Claims code of practice for highway maintenance management of the UK Roads Board
Page 4 of 5 - Second Edition July 2009. Mechanical Jurisprudence: - The Roads Maintenance Standards are normally accepted as a fair balance between the scope of the statutory maintenance duties and the finite budget available to Roads Service. A judge will assess every case on its own facts and will not always follow the Standards. Key proven elements of the Roads Service defence: - Regular inspections and prompt reaction to complaints. Well trained and reliable staff. The Highway Inspector is a crucial witness. A successful defence is a team effort and all evidence is essential from proof of complaints, job cards to engineering evidence. Accurate, reliable contemporaneous records are essential. Use of contemporaneous digital photographic evidence. Flexibility of Section Engineers to adapt the Roads Maintenance and other relevant Standards to particular road conditions or problems. Notification of defects in utility street furniture or problems with works to utilities or their contractors. Notification of works to householders and businesses and maintaining access during works. 3. ACTIONS TAKEN BY CENTRAL CLAIMS UNIT TO DEFEND CLAIMS Origin and purpose. CCU set up in 1989 as a dedicated centralised claims handling unit to support Roads Service on Northern Ireland Audit Office and Public Accounts Committee recommendations to combat the steady increase of claims in the early eighties. Claims rising to 6093 in 1986/87 and 6053 in 1987/88 and compensation figure 6.25 M in 1988/89. Role now within PSA 13 Objective 2 of the Programme for Government 2009/11 ancillary legal and claims support in the maintenance of the roads infrastructure. Work Undertaken: - Claims investigation through the Section Offices or other relevant contact colleagues. Targets in business plan to deal with claims as follows:- Vehicle damage claims 4 months. Property damage claims - ROUTINE 6 months. Property damage claims- EMERGENCY FLOODING SITUATIONS 6 weeks. Personal injury claims 7 months. Advisory work to Roads Service with update on new legal trends both proactive and reactive work.
Page 5 of 5 Claims clinics work in emergency situations. Checks made: - Family history checks. Checks on hospital and ambulance records. Inconsistent medical injuries identified. Insurance cross checks on the new CUE liaison system since 2003 replacing NIPAR (Northern Ireland Personal Injury Anti Fraud Register set up in 1995). Regular meetings with NI Insurers to keep abreast of new claims scams and practices. Retainer of firm of loss adjusters to investigate property and vehicle damage claims. Use of private investigators, where appropriate, within the new human rights law protections to claimants. Use of the local knowledge provided by Section Offices. Liaison procedures agreed with QPANI for claims referrals. Liaison and claims referral procedures with Northern Ireland Water Limited.