New guidance released on highway authority liabilities

New guidance on managing highways liability risk has been released by the Institute of Highway Engineers (IHE) – titled Well Managed Highway Liability Risk – providing a comprehensive framework for authorities across the UK.

The guidance discusses the crucial elements to consider when implementing the risk-based approach advised under the new code of practice, Well-Managed Highway Infrastructure, which officially supersedes the old guidance in October 2018.

UK highways authorities defend around 78% of the 30,000 claims a year they receive – mostly for personal injury or vehicle damage – however for those they do pay out on the cost to the public purse is at least £40m, insurance providers claim.

IHE experts suggest the new risk-based approach and the liability risk guidance offers highways authorities the opportunity to develop a more sophisticated understanding of spending priorities and to defend more claims in court.

The guidance covers:

  • Risk-Based Approach and highway liability risk management
  • The law on highway liability
  • Claims management
  • Training and assessment of competence
  • Information management and record keeping
  • Risk ownership when outsourcing services.

Tony Kirby, president of the IHE, said: ‘The guidance gives authorities a consistent approach on how they manage liability risk. Each authority will take their own view based on their own circumstances but this provides a framework around that. It sets out the key issues on training and competence, and how things differ in the devolved authorities.’

It follows a delay to the release of the new code of practice following fears in the sector over implementing the new risk-based approach in practice, following the removal of prescribed standards for local highways maintenance.

Mr Kirby said: ‘There are clear issues in this area. It’s quite clear why some authorities are risk adverse. Obviously there is limited funding and the constant risk of litigation is one of the key issues for them. It’s difficult for our members to persuade decision makers in authorities that you can be less risk adverse. We do it with winter maintenance, we accept we can’t grit every road, maybe on issues around liability we have a more risk adverse approach. This document provides an opportunity to address that.’

A central emphasis of the document is the importance of training and record keeping; providing practical advice on the training of staff, how to ensure competence in the highways team and how to maintain knowledge and competence over time.

Mr Kirby added: ‘As the climate around the insurance sector changes, it is clear that local authorities may have to take more liability themselves for these type of claims, which means the risk-based approach and the evidence base behind it and the record keeping of it, becomes more and more important.’

The guidance advises authorities should maintain records of the following:

  • Documented RBA and executive approval of the approach
  • Policy and procedures agreed at executive level (minutes of relevant meetings)
  • Training provided to staff and qualifications maintained
  • Guidance and instructions provided to staff
  • Complaints and reports made by members of the public
  • Network hierarchy classifications
  • Records of inspection and surveys
  • Maintenance records including work by independent contractors
  • Records of accidents
  • Records of previous claims.

A representative from insurers RMP speaking at the launch of the document said poor record keeping was on of the most ‘frustrating things about defending highways claims’.

The document also outlines the relevant case law and provides useful guidance on creating a collaborative approach between the local authority client and its private sector providers.

It states: ‘The development in consultation with the contractor of an agreed protocol on the handling of third party claims is essential. Experience has shown that standard contract terms are usually wholly inadequate to deal with the detail required.

‘The claims management protocol should set out the following:

  • Roles and responsibilities (including for first notification and response to claims).
  • Risk ownership for the various types of highway incidents / accidents.
  • Claims handling philosophy (eg reserving, economic settlements).
  • Claims handling process (eg approach to investigations, financial authority levels etc (process to be followed, including the interface with the low value claims portal (where relevant).
  • Data information sharing, ownership and access to records.
  • Communication and reporting arrangements.
  • Litigation process and arrangements.
  • Dispute resolution arrangements.
  • Post contract legacy arrangements (including responsibility for legacy claims and access to witnesses and records following cessation of the contract)’

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