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dolmans insurance bulletin welcome to the january 2012 edition of the dolmans insurance bulletin in this issue we cover report on no duty of care for slippery `highway bridge david huggett v cardiff council focus on november 2011 update to the well maintained highways code of practice 2005 case update costs road traffic employers liability accident circumstances occupiers liability failure of safe system part 36 costs part 36 offers personal injury occupiers liability appeal coming up training opportunities details on tailor-made training seminars aimed at local authorities their brokers claims handlers and insurers employment briefing and workshops overview on employment briefings and half day workshops if there are any items you would like us to examine or if you would like to include a comment on these pages please e-mail the editor justin harris partner at justinh@dolmans.co.uk www.dolmans.co.uk 1

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dolmans report on no duty of care for slippery `highway bridge david huggett v cardiff council his honour judge curran qc handed down a reserved judgment in this matter at cardiff county court on 6 january 2012 dismissing the claimant s claim for personal injuries arising from a slip on a wooden bridge his honour had conveniently as far as the defendant s were concerned heard the very similar case of young v merthyr tydfil county borough council in which we had also represented the council in 2011 in which he had found for the council consequently the judge was fully familiar with the arguments in relation to the existence of a duty of care in respect of the bridges in both cases however in huggett some additional arguments were put forward by the claimant s solicitors which sought to widen the duty of the council facts on 25 may 2008 the claimant slipped in the rain on the wooden humpbacked footway bridge that spans the oval basin in cardiff bay and broke his ankle the bridge had been designed and constructed by cardiff bay development corporation in 1999 in 2000 its ownership had passed to the council and it had been managed ever since by the council s harbour authority it was not clear whether any non-slip material had ever been applied to the wood when initially constructed however the defendant had not applied any such material to the bridge during its ownership of the same further although the council did have rangers who inspected the bay area including the bridge in order to pick up any disrepair or hazards no repair or other works had been carried out to the wooden section of the bridge during the defendant s ownership of it some time after the accident but not due to the occurrence of the accident the defendant had installed non-slip inserts between the wooden slats when replacing the slats the bridge had `slippery signs placed at either end of it www.dolmans.co.uk 2

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dolmans report on during the 12 month period prior to the accident there had been two accidents on the bridge in the year prior to that a cyclist had slipped on the metal section at one end of bridge as a result of this incident the defendant decided to paint a non-slip coating on to the metal sections of the bridge but it was not considered necessary to apply such a coating to the wooden sections allegations the claimant pleaded liability under the highways act 1980 and the occupiers liability act 1957 and/or in negligence although the claim was allocated to the fast track the claimant was given leave to rely upon expert engineering evidence that identified that the bridge was of poor construction because at the steepest part of the bridge the wooden slats changed from running horizontally across the bridge to running vertically across it which rendered that section of the bridge inevitably much more slippery than the rest of the bridge and introduced an unnecessary and avoidable risk of slipping it was on this particular section of the bridge that it was accepted the claimant had slipped by the time of the expert s inspection the bridge had been renewed with the non-slip inserts between the wooden slats which the expert identified provided very good slip resistance the expert identified that the poor design of the bridge did not create a danger if non-slip coating was in place the legal arguments ­ in relation to the existence of a duty of care initially the claimant sought to argue that the court should infer that the bridge was `highway maintainable at public expense and therefore fell under the highways act 1980 however that was plainly not the case the act sets out precisely how highways can become `highway maintainable at public expense and the bridge did not reach the requirements it was not adopted highway at trial therefore the claimant abandoned the allegations under the highways act 1980 www.dolmans.co.uk 3

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dolmans report on it was however agreed by the parties that the bridge was a `highway ­ a way over which the public had the right to pass and re-pass without hindrance the defendant submitted that with reference to the occupiers liability act 1957 the claimant was on the bridge as of right and not as a `visitor consequently the occupiers liability act did not afford any protection for the claimant as there is no liability under the act for negligent non-feasance in respect of land over which there is a public right of way or a `highway as identified in the cases of mcgeown v northern ireland housing executive 1995 ac 233 hl and the young case initially the claimant s counsel argued that the judgement of browne-wilkinson in mcgeown created an exception to the rule on the basis that the council had an interest in attracting people to the location of the bridge this was abandoned at trial however as the council had no interest in the properties either side of the bridge and so had no direct commercial interest in encouraging use of the bridge further the comments were obiter the claimant s counsel therefore accepted the force of mcgeown but sought to avoid the effect of mcgeown in the following ways:i it was argued that in painting the metal section of the bridge with non-slip material the council was liable in misfeasance as it had carried out a positive act which caused it to assume responsibility to maintain the whole of the bridge alternatively relying upon the case of gorringe v calderdale mbc 2004 1 wlr 1057 it was argued that the council had created a trap by undertaking a system of inspection and applying non-slip covering to the metal section thereby creating a reasonable expectation about the state of the bridge ii judgment his honour judge curran qc was satisfied that the claimant had slipped as a result of a combination of the wet surface and the wet leather soles of his shoes further the reduction of grip referred to by the claimant s expert was a significant factor in causing him to slip www.dolmans.co.uk 4

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dolmans report on he accepted that the council had not undertaken any form of application or renewal of any coating on the timber sections of the bridge further any defect in any original non-slip coating was either the fault of the parties involved in the construction of the bridge or the result of deterioration due to wear and tear in relation to the claimant s counsel s arguments to seek to avoid the effect of mcgeown the judge found as follows:i in relation to the claimant s argument that in painting the metal sections of the bridge with the non-slip coating the council were liable in misfeasance the judge distinguished non-feasance and negligent misfeasance he said that if the defendant had applied non-slip surface to the wood but had done it in such a way that it materially contributed to the fall then that might have amounted to actionable misfeasance but on the contrary as far as the section of the bridge in question was concerned the council did nothing the council did not contribute to the slipperiness of the wood on the bridge by any positive action therefore there was no misfeasance he did not accept that the council had created a trap as the claimant was not aware of the inspections he had slipped over before he had reached the metal section and the claimant had not been lured into any false sense of security by the appearance of the bridge he was well aware of the hazard and that the slats were very slippery because it was raining if there was a trap there at all it was one which was created by the parties involved in the design and construction of the deck involving the change of direction of the slats on the steepest section of the bridge and not one that was created by the defendant ii in any event the judge considered that whatever criticism the expert made about the design it was impossible to take the view that the footbridge was in a dangerous condition when hundreds of thousands of people had used it with only two reported falls in the year before www.dolmans.co.uk 5

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dolmans report on in conclusion he applied mcgeown and identified that the defendant only owed the claimant a duty of care not to interfere with the footbridge in such a way as to create a risk of injury to him the council had not done that further even if the kind of duty contended for by the claimant existed the judge identified that he would have found that the defendant was not in breach of the same to add salt to the claimant s wound the judge identified that he would have made a finding of one third contributory negligence for the plain and obvious risk of walking on a slippery wet wooden surface in the rain while wearing leather soled shoes this case illustrates that judges remain reluctant to find the existence of a duty of care in the mcgoewn type scenario even where it would be attractive to do so even with an honest and impressive witness such as the claimant the area in question being located in one of the most well used areas in the capital city and some imaginative arguments from the claimant s counsel the judge was not prepared to dilute the principle set out in mcgeown clare hoskins partner dolmans solicitors for further information regarding this article please contact clare hoskins at clareh@dolmans.co.uk or visit our website at www.dolmans.co.uk www.dolmans.co.uk 6

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dolmans focus on november 2011 update to the well maintained highways code of practice 2005 the winter of 2010/2011 was the coldest and most extended winter for 30 years it brought days of snow ice and general disruption winter maintenance services across the country were pushed some to their absolute limit salt stocks ran low and in some instances ran out altogether it was therefore no great surprise at the beginning of this winter to see the supermarkets had gone in to winter overdrive stocking snow shovels buckets of salt and shelf upon shelf of deicer there is certainly nothing wrong with being prepared even if the average temperature for december 2011 was more akin to early spring than the depths of winter being prepared is a theme which has followed through into the november 2011 update to the well maintained highways code of practice 2005 aside from a few minor adjustments to other parts of the code the most significant change is the complete re-write of the winter maintenance policy section as well as a brand new winter maintenance technical appendix the uk roads liaison group who produces the code of practice has essentially consolidated all of the previous winter guidance documents and has included new information on salt spreading rates salt moisture content and new guidance about the timing of spreading www.dolmans.co.uk 7

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dolmans focus on when the railways and transport safety act 2003 brought into force the new s41 1a highways act 1980 duty to ensure so far as is reasonably practical that safe passage along a highway is not endangered by snow or ice local authorities their insurers and legal teams braced themselves for the new claims to come in the claims did not flood in and those that did come in such as the rhiannon pace v city and county of swansea claim handled by dolmans reaped good results for the local authority with the bad winter of 2010/11 and the not quite as bad winter of 2009/10 there followed an increase in the number of s41 1 a claims being made when defending these types of claims the spotlight inevitably falls upon the winter maintenance policy of the local authority and whether the guidance in the code of practice has been followed with the revised winter maintenance guidance in the code becoming more extensive and the technical parameters changing the challenge for local authorities is ensuring their policy of winter maintenance does not mature too much so as to fall below the new standards as an example the code of practice when published in july 2005 made 13 recommendations regarding winter maintenance the latest re-write of the winter maintenance section of the code contains no less than 20 recommendations the revised winter maintenance guidance encourages local authorities to prepare for adverse winter weather conditions through a planned and considered approach to their winter maintenance policies with specific contingency plans being made for the most extreme winter weather www.dolmans.co.uk 8

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dolmans focus on the revisions recommend local authorities should consult and formally adopt local service standards for the resilience of their winter maintenance service the local authority should be able to sustain a minimum number of days of continuous salting on a defined minimum winter network for both the overall winter period as well as for the core winter period the code recommends local authorities should review their approach to climate change when assessing their resilience standards there is also an emphasis on collaborative arrangements such as shared services and depots in order to create a value for money approach to increasing the winter maintenance resilience of local authorities and consistency of approach between neighbouring authorities in terms of the technical guidance the technical appendix to the winter maintenance section of the code has also been completely revised the simple spreading rate tables used by local authorities to determine how much salt to spread and when has had a number of caveats added to it which local authorities will need to take into consideration the approach taken by different local authorities to the provision of winter maintenance services varies across the country the latest revision of the guidance in the code significantly lifts the profile of winter maintenance as an essential part of the management of the highway network winter weather can be volatile and unpredictable the challenge facing a local authority is being sufficiently prepared to respond at short notice in order to keep the core infrastructures working and to meet their statutory duties the best winter maintenance policy is of course only as good as the manner in which it is implemented paul veysey partner dolmans solicitors for further information regarding this article please contact paul veysey at paulv@dolmans.co.uk or visit our website at www.dolmans.co.uk www.dolmans.co.uk 9

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dolmans recent case update costs road traffic solomon v cromwell group plc oliver v doughty [2011 ewca civ 1584 in these conjoined appeals the claimants had accepted part 36 offers before proceedings were issued for sums of less than £10,000.00 in road traffic accident claims the amount of the settlements thus fell within the scope of the road traffic accidents ­ fixed recoverable costs regime under section ii of cpr part 45 the parties were unable to agree the amount of costs and the claimants commenced costs only proceedings pursuant to cpr 44.12a both claimants submitted that their costs should be assessed on the standard basis in accordance with the provisions of cpr 36.10 the defendants submitted that the claimants were confined to recovering fixed recoverable costs by virtue of cpr 44.12a4a which provides that in proceedings to which section ii of part 45 applies the court shall assess the costs in the manner set out in that section the court acknowledged that there was a degree of conflict between cpr 36.103 and cpr 44.12a4a however it could not have been intended that a claimant in a low value road traffic accident claim who accepted a part 36 offer before proceedings had been commenced should be entitled to recover costs assessed on the standard basis whereas a claimant accepting an offer not made under part 36 should be limited to fixed recoverable costs further cpr 45.7 and 8 made clear that the costs allowed in proceedings under cpr 44.12a were those prescribed in part 45 part ii cpr 36.10 contained general rules whereas part 45 pt ii contained rules specifically directed to certain cases part 45 pt ii governed the cases to which it applied to the exclusion of other rules making different provision for the general run of cases the offers in these cases had been intended to be part 36 offers carrying the consequences for which the cpr provided and accordingly neither claimant could recover more than the amount prescribed in part 45 pt ii employers liability accident circumstances nutting v andrews haulage qbd 12.12.2011 the claimant brought an action against his employer for the injuries sustained in an accident which occurred during the course of his employment the claimant worked for the defendant as a driver and operator of lorries fitted with cranes used to load and unload materials www.dolmans.co.uk 10

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dolmans recent case update when operating controls drivers were to sit on the seat provided next to the controls he alleged that as he stood up from the seat provided the ridged base of the seat tipped upwards and forwards catching the back of his legs and causing him to lose balance and jump to the ground so to minimise injury the claimant alleged that the defendant breached its duties pursuant to the workplace health safety and welfare regulations 1992 and the provision and use of work equipment regulations 1998 and in negligence the defendant denied that the accident occurred as alleged relying on evidence about the state of the seat after the accident what the claimant had allegedly said after the accident and the work carried out on the vehicle following the accident the court was required to determine liability as a preliminary issue the seat was a fixed seat it was difficult to envisage how if the seat was loose it caused the claimant to lose his balance so significantly the three operatives who inspected the crane did not encounter difficulties with the seat further repair work later carried out on the seat did not relate to it being loose unstable or in danger of collapsing there was also evidence from witnesses who said that the claimant had informed them that he had stepped on to the back of the lorry stumbled and fallen the court found that on the balance of probabilities the seat was not loose or unsecured and did not play any part in the accident but instead was probably caused when he stepped on a loose kerb stone as he made his way along the flat bed of the lorry that could not be attributed to a breach by the defendant of its statutory or common law duty occupiers liability failure of safe system dufosse v melbry events ltd lawtel 14.12.2011 court of appeal the claimant had gone to visit santa s grotto which was operated by the defendant event management company and had fallen in the grotto as a result of stepping on a plastic bauble from the tree which had fallen on the floor where it was partly hidden by a train www.dolmans.co.uk 11

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dolmans recent case update the system in operation was that the grotto was operated by two of the defendant s employees the elf escorted the visitors in and out and checked that there was nothing loose on the floor and santa had 90 seconds between each visitor to look and check from his seat that there was no danger the judge at first instance considered that as the bauble had not been seen by the employees and as there was a good system in place there had been no breach of duty the appeal was allowed as the only proper inference on a balance of probabilities was that as the bauble was there to be stepped on it was there to be seen therefore although the system was excellent it was possible that on occasion the employees were not as careful in their checks as they should have been and the defendant was liable there was no contributory negligence as the claimant had stepped backwards at the request of the elf and the grotto was small and dimly lit part 36 costs epsom college v pierse contracting southern ltd [2011 ewca civ 1449 court of appeal the claimant claimed damages for a leak caused by the defendant at the claimant s premises pre-action the claimant made a part 36 offer of £19,200.00 which was rejected just prior to the expiry of the 21 day period proceedings were issued for just over £25,500.00 and two further offers were made by the claimant one a part 36 offer of £12,768.50 and the other an offer that was inclusive of costs both were rejected following the discovery of key evidence by the claimant the claimant withdrew both of the offers made post proceedings stating that the first offer remained open at trial the claimant was awarded £21,075.00 the judge awarded costs in the claimant s favour on the basis of the second part 36 offer he did not consider that it was just to award costs on the basis of the first offer as at the time it was made the key evidence had not been located by the claimant www.dolmans.co.uk 12

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dolmans recent case update on appeal it was agreed that as the second offer had been withdrawn the award of costs on the basis of that offer was wrong the court of appeal identified that the first part 36 offer was valid and reliance on that offer could be substituted for the second offer from a suitable period after production of the key evidence consequently although the basis of the judge s decision was wrong the essence of the judge s disposal of costs was upheld part 36 offers thewlis v groupama insurance co ltd [2012 ewhc 3 tcc on 24 september 2008 before the issue of proceedings the claimant s solicitors made an offer to settle the proceedings the offer was rejected on 1 october 2008 proceedings were subsequently issued on 25 may 2011 on 17 october 2011 the defendant purported to accept the offer the claimant submitted that the offer was no longer open for acceptance the defendant applied for a declaration that the proceedings had been stayed pursuant to cpr part 36.11 on the grounds that the defendant had accepted the claimant s part 36 offer the offer letter was headed offer made pursuant to part 36 of the cpr and included the phrase `this offer is made pursuant to part 36 of the cpr and remains open for acceptance for a period of 21 days from your receipt of this offer letter thereafter it can only be accepted if we agree the liability for costs or the court gives permission part 36 was substantially amended with effect from 6 april 2007 the wording of the letter was consistent with the provisions of part 36 prior to the amendments but the final phrase above was not in accordance with the amended part 36 the defendant submitted that read as a whole the offer was plainly intended to be a part 36 offer the judge considered that it was not clear that the claimant did intend the letter to have the consequences of the new part 36 the final sentence of the first paragraph was inconsistent with part 36 furthermore whilst the letter referred to some of the consequences of part 36 it did not refer to them all the judge held that the offer letter did not comply with cpr 36.2 and was not therefore an offer within part 36 the defendant s application was refused www.dolmans.co.uk 13

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dolmans recent case update personal injury occupiers liability appeal maynard v wigan metropolitan borough council ca civ div 21.12.2011 the claimant visitor brought a claim against the defendant local authority for damages when she sustained an injury after stepping within a hole in a grass verge outside her property the defendant denied that the hole represented a danger and a breach of its duty under the occupiers liability act during the hearing the court was referred to various photographs of the verge taken at least three years post-accident some of which suggested that the hole was approximately 2 inches deep the claimant accepted that these photographs bore the greatest resemblance to the verge as at the time of her accident but that the size of the hole was greater the claimant also stated that she had complained of the hole to the defendant but nothing had been done the judge found her to be a truthful witness and found in her favour the defendant sought to appeal the decision on the basis that the judge had made no clear findings on the nature and size of the hole and that he had inferred that it was dangerous on the basis that the claimant had fallen and had complained about it the court of appeal found that the trial judge seemed to accept that the hole was large enough for an adult to step into it and had accepted the claimant s account as an honest witness even though he had not expressly found that the hole was deep enough to be able to get stuck in it and had not made any findings about its dimensions however as the trial judge had not erred in implicitly accepting the claimant s evidence as truthful and accurate the appeal was dismissed for further information on any of the above cases please contact clare hoskins at clareh@dolmans.co.uk or amanda evans at amandae@dolmans.co.uk or teleri davies at telerid@dolmans.co.uk www.dolmans.co.uk 14

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dolmans coming up training opportunities at dolmans we want to ensure that you are kept informed and up-to-date about any changes and developments in the law to assist you in this we can offer a whole range of training seminars which are aimed at local authorities their brokers claims handlers and insurers all seminars will be tailored to make sure that they cover the points relevant to your needs seminars we can offer include defending claims ­ the approach to risk management highways training flooding and drainage ­ duties and powers of landowners and local authorities for drainage under the land drainage act 1991 common law rights and duties of landowners in respect of drainage flooding and drainage ­ duties and powers of highway authorities for drainage and flooding under the highways act 1980 consideration of case law relating to the civil liabilities of the highway authority in respect of highway waters employers liability update employers liability claims ­ investigation for managers and supervisors corporate manslaughter ministry of justice reforms housing disrepair claims public liability claims update liability of local education authority for accidents involving children the display screen regulations ­ duties on employers bullying harassment intimidation and victimisation in the workplace ­ personal injury claims industrial disease for defendants apportionment in havs cases pre-action protocol in relation to occupational disease claims ­ overview and tactics conditional fee agreements and costs issues if you would like any further information in relation to any of our training seminars or wish to have an informal chat regarding any of the above please contact our training partner clare hoskins at clareh@dolmans.co.uk www.dolmans.co.uk 15

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