FOCUS RISK MANAGEMENT THE QUARTERLY NEWSLETTER FROM GALLAGHER BASSETT ISSUE 43 JUL 2011 INSIDE SCOTTISH APPEAL JUDGES UPHOLD ASBESTOS COMPENSATION LAW COURT OF APPEAL RULES ON TIME LIMITED PART 36 OFFERS FURTHER CASE LAW ON MESOTHELIOMA CYCLIST SUFFERS HEAD INJURY DUE TO CONCRETE ON THE HIGHWAY SPENDING CUTS SUCCESSFULLY CHALLENGED WORKING AT HEIGHT 4.25M SETTLEMENT APPROVED AFTER DRINK-DRIVING CRASH RESULTED IN SERIOUS BRAIN DAMAGE INSUFFICIENT RESOURCES IS NOT A DEFENCE UNDER THE HIGHWAYS ACT 1980 WILKINSON v CITY OF YORK COUNCIL Court of Appeal January 2011 The claimant rode her bicycle along Whitby Drive, York. She hit a pothole, fell off her bike, and sustained a range of injuries. The council inspected the road annually. This was a departure from the National Code of Practice for the maintenance of highways which suggested that Category 4a roads, the category applicable to Whitby Drive, should be inspected every 3 months. The code goes on to say that any departure from its inspection frequencies should only be made following a risk assessment and approval by the authority s executive committee. The code itself is not legally binding but is considered to be an authoritative document. The evidence as to why there had been a departure from the national code was deemed by the court to be insubstantial. A District Judge found for the claimant but applied a 50% reduction in respect of contributory negligence. The High Court overturned the decision and found for the council. However, the Court of Appeal has restored the original decision in favour of the claimant, subject to the 50% reduction for contributory negligence. The Court of Appeal found that local authority resources do not have any role to play in the determination of the statutory defence under Section 58 of the Highways Act 1908. Lord Justice Toulson said, amongst other things, The obligation to maintain highways in a structural condition that leaves them free from foreseeable danger is an unqualified obligation of long standing Section 58 was designed simply to afford a defence to a claim for damages brought against a highway authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe Whilst many hope that higher courts will have an opportunity to reconsider this decision, this case is an important precedent for highway authorities to bear in mind when trying to balance conflicting demands on limited resources.
02 FOCUS RISK MANAGEMENT News in Brief Scottish appeal judges uphold asbestos compensation law A group of insurers has lost a legal bid to overturn the Damages (Asbestos-related Conditions)(Scotland) Act 2009, which allows sufferers of pleural plaques, a benign scarring of the lungs, to make compensation claims. The Scottish Government had estimated that compensation costs were likely to peak between 7 million and 19 million in the next decade. The insurers unsuccessful challenge was based on a claim that the costs over the next 20 years would average between 76 million and 607 million and that Members of the Scottish Parliament had ignored medical opinion and had opened the "floodgates" for claims. COURT OF APPEAL RULES ON TIME LIMITED PART 36 OFFERS C v D Court of Appeal. May 2011 The claimant brought an Application seeking a declaration that an offer to settle an action by way of a Part 36 offer was no longer open for acceptance and had not been accepted. The offer to settle was by way of a letter headed Offer to settle under CPR (Civil Procedure Rules) Part 36. The letter contained a reference to the offer being open for 21 days from the date of the letter. The letter went on to say that if the offer was not accepted, and the claimant obtained an equal or better settlement, then the claimant would rely on the Civil Procedure rules to seek an order for costs including an order on the indemnity basis with interest at 10%. The offer was not accepted within the 21 days mentioned. Almost a year later, and within three weeks of the trial, the defendant purported to accept the offer. The Court of Appeal ruled that: A Part 36 offer remains on the table unless and until it is formally withdrawn by a Notice of Withdrawal (following the case of Gibbon v Manchester City Council). The essence of Part 36 is that it has to be an offer which is not withdrawn, but which remains on the table and such an offer can only be withdrawn by a formal Notice of Withdrawal. In the absence of such a notice, the offeree can accept the offer at any time. Time limited offers are inconsistent with the intention of Part of the Civil Procedure Rules. In the subsequent correspondence between the parties there was nothing to suggest a formal withdrawal of the Part 36 offer. Therefore, claims handlers should note that time bound Part 36 offers are not effective in terms of an attempt to impose a time limitation. Should the offeror wish to withdraw a Part 36 offer, a formal Notice of Withdrawal should be served on the offeree. Further case law on Mesothelioma SIENKIEWCZ v GRIEF AND WILLMORE v KNOWSLEY MBC Supreme Court. March 2011 In the April 2010 edition of Focus we reported on the outcome of a Court of Appeal hearing in the case of Willmore v Knowsley MBC. The claim was based on an alleged exposure to asbestos when Mrs Willmore was a pupil at a school operated by Knowsley Council in the 1970s. During the removal of ceiling tiles for maintenance, the Judge had found that Mrs Willmore had been exposed to a risk from asbestos fibres on three particular occasions. At the initial trial the council was found liable on the grounds that the council had failed to take precautions to prevent exposure to airborne asbestos fibre. The council appealed against the decision on the grounds that it was based on an alleged exposure to a risk of asbestos rather than a risk of harm. The council also appealed on the grounds that there was no evidence of anything more than a minimal exposure. The appeal was dismissed. The case came before the Supreme Court in March 2011 along with the case of Sienkiewcz v Grief. In both cases the appeals to the Supreme Court were dismissed. In reaching this decision, the Court cited the special rules (known as the Fairchild principle) grafted onto the Compensation Act 2006 for mesothelioma cases. In the case of Grief it was determined that, amongst other things, liability for mesothelioma fell on anyone who had materially increased the risk of a person contracting the disease. The use of the word materially was intended to exclude insignificant risks which would be determined on a case by case basis. The defendant argued that occupational exposure to asbestos dust should only constitute a material risk if it more than doubled the normal environmental exposure. This argument was rejected. The challenge to the Court of Appeal s decision on Willmore was a challenge as to the facts. Although the Supreme Court felt that some plausible criticisms could be made of the findings of the Trial Judge, and of the approach of the Court of Appeal, these would not justify the Supreme Court in overturning the concurrent findings of the lower Courts in this case.
FOCUS RISK MANAGEMENT 03 CYCLIST SUFFERS HEAD INJURY DUE TO CONCRETE ON THE HIGHWAY THOMAS v WARWICKSHIRE COUNTY COUNCIL High Court. May 2011 The claimant sustained a significant head injury when he lost control and fell from, his bicycle when riding with a cycling club. At the time of the accident the claimant was riding along the highway. The claimant's case was that the highway was in a dangerous condition as there was a spillage of concrete which had stuck to the highway and was dangerous to cyclists. His bicycle foundered causing him to fall onto the highway when he was travelling at a speed of about 20 25 miles per hour. The concrete had hardened and bonded to the highway and thus became part of the fabric of the highway. The protrusion was up to 25mm in height and the largest spill was a meter long and 10cm wide. The claimant's case was that the dangerous condition of the highway was due to the defendant's failure to maintain the highway in breach of its duty to do so under Section 41 of the Highways Act 1980. The hearing involved a trial of liability and contributory negligence (other than in respect of contributory negligence alleged on the ground that the claimant was not wearing a safety helmet). The issues were: whether the highway was dangerous for traffic; whether the danger had been due to a failure by the defendant to maintain the highway; whether the danger had caused the claimant's accident; if the first three issues were determined in the claimant's favour, whether the defendant had nevertheless taken such care as, in all the circumstances, was reasonably required to secure that the highway was not dangerous for traffic; and if the defendant was liable to the claimant, should the claimant's damages be reduced for contributory negligence (other than contributory negligence alleged on the ground that the claimant was not wearing a safety helmet, which would be determined on a later occasion). The court ruled that the cause of the accident had been as a result of the claimant's front wheel striking the concrete. The fact that, in absence of specific intervention by a road mending gang, the change in the fabric caused by the bonding of the concrete to the road surface would be permanent, or at least long lasting, was sufficient to bring the case within Section 41 of the Highways Act 1980 Act, in that it was a dangerous defect. Having determined that the spillage had constituted a danger, the Section 58 defence being that the council had done all that was reasonably necessary to make the road safe for users, was not available as the defect existed at the time of the last inspection prior to the accident and no action had been taken to deal with it. News in Brief However, the claimant would have to bear the major part of the blame for the accident. If he had been travelling a safe distance from the cyclist in front he would have been able to see what was coming up in sufficient time to have made the minor adjustment to his course which would have enabled him to avoid running into or over the concrete spillage. Contributory negligence was, therefore, applied at 60%. Spending Cuts Successfully Challenged Cuts to the public services affecting London s most vulnerable people were brought to a halt by a recent challenge in the High Court. In the case of R (Hajrula) v London Councils, Mr Justice Calvert Smith ruled that London Councils consultation process was flawed and, in particular, that their statutory duties were not adequately considered. The case established that even in the current economic climate it was of paramount importance public sector funding cut decisions were properly assessed. The decisions of London Councils relating to cutting funding to some 213 projects run by 177 different organisations were quashed. The judge ordered London Councils to undertake a lawful process of reconsideration in accordance with the public sector equality duties and warned that no cuts be made until three months after the conclusion of the lawful consideration process. In a similar case, four severely disabled adults have started a legal action against Birmingham City Council in an attempt to overthrow a 53 million package of cuts.
04 FOCUS RISK MANAGEMENT Working at Height KMIECIC V ISSACS Court of Appeal February 2011 This is an interesting case involving a claim from an employee of a building contractor who was injured whilst working on the garage roof of a private householder. The accident occurred on 17th June 2006. At the time of the accident; the claimant was standing on a ladder owned by the defendant householder, Mrs Issacs. He was attempting to pass a roll of roofing material to a colleague on the roof. As he did so the ladder toppled and he fell and suffered a fractured elbow. It was accepted by all parties that the ladder was inappropriate as it was too short and the surface it stood on was not level. The claimant s employer, Mr Sniegula, was not insured so the claimant sued Mrs Issacs for damages. The claimant s case was that when the job commenced Mr Sniegula had told the claimant to use the step ladder in the garage. The claimant and a colleague told him it was too short so Mr Sniegula suggested they access the roof though an upstairs window which overlooked the garage roof. On the day of the accident, access via the window was not possible as a boy was asleep in the room. A telephone conversation took place with Mr Sniegula, who asked the men to use the step ladder. The claimant also alleged that Mrs Issacs had gone into to the garage and insisted that he should use the ladder. Mrs Issacs refuted this allegation and said that, if the ladder had been used, it was without her permission. The judge dismissed the claim against Mrs Issacs as the Working at Height Regulations 2005 applied in the case of a non employer to work by a person under his control, to the extent of that control. The Construction (Health & Safety and Welfare) Regulations 1996 only imposes a duty on a non employer in so far as they relate to matters within his control. On this basis the judge dismissed the claim. The claimant appealed. The Court of Appeal decided that, although the way in which the work was carried out was controlled by the means of access, just because Mrs Issacs had exercised a right over what means to access she would allow in her home, as a non employer she was not obliged to ensure the safety of whatever other access may be adopted. The appeal was dismissed. 4.25m Settlement Approved after Drink- Driving Crash Resulted in Serious Brain Damage A woman who suffered serious brain damage and almost died after a drink driver ploughed into a car in which she was a passenger has been awarded a compensation package worth 4.25m. Rhianna Millett was aged six on 17 March 1996, when Jeremy Hallett drove his Land Rover head-on into a car in which she was travelling. She suffered serious head injuries and a broken leg in the crash and her mother's partner, who was driving the car, died. Mr Hallett s insurers admitted liability for the accident in July 1998, and in May 2011 the High Court approved a payout totalling about 4.25m to settle the claim. The settlement consists of a 1m lump sum, plus index-linked and tax-free payments of 52,500 a year to cover the costs of her care for the rest of her life. Information If you would like further information on any of the articles contained in this issue, need guidance on whom to contact or just wish to pass on any comments, please call, Hannah Denne Telephone +44 (0)20 7208 8508 Email Hannah_Denne@gbtpa.com New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0)20 7208 8500 Facsimile +44 (0)20 7208 8501 www.gallagherbassett.co.uk
NEW SERVICES FROM THE GALLAGHER BASSETT LOSS CONTROL TEAM Support with the administration of medication Local authorities are increasingly involved in providing support with administration of medicines as part of personal and residential care and in educational establishments. Support can range from the purchase of home remedies on behalf of vulnerable individuals through to working with health care professionals to assist in administering medication, and to providing support for individuals with complex medical needs. Services are often delivered in partnership with other voluntary or commercial agencies. It is important, therefore, to ensure that procedures and record keeping are carried out to a common standard both within the different disciplines of the local authority and in partner organisations. Communication and coordination between health services, care and education services is vital. With this in mind, Gallagher Bassett has developed a detailed risk review designed to assist organisations in identifying the full range of support activities being undertaken, whether directly or through external agencies, and to evaluate the effectiveness of systems in controlling the risks. A successful pilot phase has demonstrated the value of the review to organisations as well as identifying the huge range of complex medical support provided by local authorities, both in social care and in education services. Management of asbestos The Government asked for a review of the classification of white asbestos in November last year, and it has now been confirmed by the Government s Chief Scientific Advisor that white asbestos should remain as a class one carcinogen. In February, the European Commission requested that the UK change provisions which currently excludes some maintenance and repair activities from the application of the EU directive on protection of workers from asbestos. The current asbestos regulations allow for some work on asbestos cement type products, providing it can be confirmed that exposure does not exceed control limits. Gallagher Bassett has revised and updated its reviews and training packages in the light of current standards and research and is able to offer training to managers which provides a means of understanding the risks of asbestos in buildings and how the risks can be controlled. The course will assist in evaluating the procedures used by employees and contractors to manage the risks of asbestos containing materials in buildings. The review provides a systematic evaluation of the effectiveness of asbestos management plans and control measures for persons encountering or working with materials containing asbestos. The survey identifies which functions provide support, the range of medications and care activities being carried out, and evaluates the effectiveness of control and communication systems. New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0)20 7208 8500 Facsimile +44 (0)20 7208 8501 www.gallagherbassett.co.uk 1
Continuing Professional Development Reorganisation, cutbacks, leaner management structures and pressures on budgets and time have resulted in a major reduction in the availability of continuing professional development training opportunities for organisations. Gallagher Basset has approached a number of major professional bodies and confirmed that our courses may be used as part of a CPD programme. We offer a range of open courses for individuals, available across England, Scotland and Wales throughout the year, together with the option of bringing courses in house as needed. Our courses are suitable for any member of a professional body and will be of interest to people such as solicitors and legal professionals, risk and insurance staff, safety and occupational health advisers and managers, human resources advisers, property and building managers, fleet managers and others. In July and August Gallagher Bassett will be running the following training courses at Port Vale Football Stadium, Stoke-on-Trent, Staffordshire, ST6 1AW: 12th July - 1 Day Managing Workplace Pressure Who should attend? Senior managers, line managers and supervisors Summary: To develop an understanding of the nature of stress, its causes and effects for individuals and the effects of stress upon organisational capabilities 19/20th July - 2 Day IRM Accredited Enterprise Risk Management Course Who should attend? Executives and senior managers and any person involved in managing risks including auditors, lawyers and insurance professionals Summary: A broad, yet comprehensive, introduction to risk management to help managers understand why risk management is important, the risk assessment process and help to embed risk management. 23th August - 1 Day Health and Safety for Risk and Insurance Managers Who should attend? Risk & insurance managers and any person involved in managing safety. Summary: An introduction to safety management. 24th August - 1 Day Accident/Incident Investigation Who should attend? Line managers, supervisors and anyone responsible for investigating accidents or incidents. Summary: To provide an understanding of the purpose and benefits of a good investigation. For more information on our training courses see our website at www.gallagherbassett.co.uk New Loom House 101 Back Church Lane London E1 1LU Telephone +44 (0)20 7208 8500 Facsimile +44 (0)20 7208 8501 www.gallagherbassett.co.uk 2