At our recent claims club, we covered the following topics: • potential implications for highway claims from the revised UKRLG Codes of Practice - Steven Conway has been involved with the Department of Transport/UKRLG review of the highway code of practice since 2011 as a contributing member and provides an update as to the progress of the review together with a look at the potential implications for highway claims from the revised code • social care issues provide some of the greatest challenges to insurance and risk managers. Our panel of experts discussed; non-delegable duties and vicarious liability for foster parents (in the light of the Court of Appeal's consideration of our case of NA v Nottinghamshire); child sexual exploitation claims; the Goddard Inquiry; human rights claims in the family courts; and historical abuse claims - what you need to know • rounded off with a quiz on the legal highlights of the last 12 months. https://www.brownejacobson.com/insurance

1. Claims club 2015-16

2. Potential implications for highway
claims from the revised UKRLG
Codes of Practice
Steven Conway

3. Well-maintained Highways
• Code of Practice for Highway Maintenance Management
• 2005 edition – last updated 18 September 2013

4. Well-maintained Highway
Infrastructure - 2015
• Release date: October 2015 – now July 2016 - tbc?
• Part 1: overarching principles
• Part 2: highways
• Part 3: structures
• Part 4: lighting

5. Draft code…proposed changes

6. Draft code…proposed changes

7. Draft code…proposed changes

8. Draft code…proposed changes

9. Status of the Code
1995 edition

10. Status of the Code:
what the Courts say 1
• Wilkinson -v- The City of York Council – Court of Appeal [2011]
• “It is not a document which carries the force of law”
• “It makes plain that it does not purport to be mandatory”
• “I bear in mind that the national code is not a statutory
document. It is a document which provides guidance”
- Lord Justice Toulson

11. Status of the Code:
what the Courts say 2
• TR –v- Devon County Council– Court of Appeal – 2013
• “the code is clearly evidence of general good practice, its status
must not be overstated. It has no statutory basis”
• “the code does not set out mandatory rules. It is evidence of good
practice. Authorities must exercise their own judgment”
- Lord Justice Hughes

12. Status of the revised Code
• Revised Code (Draft 2) - September 2015:

13. Status of the revised Code
• Revised Code (Draft 2) – September 2015:

14. Revised Code: overarching principles

15. Overarching principles: collaboration

16. Revised Code: risk-based approach

17. Revised Code: no default standards

18. No default standards, a risk-based
approach…

19. Safety inspection frequency:
old Code

20. Safety inspection frequency: revised
Code
• Part 2, Section 5: Inspection, Assessment & Recording
• Part 1, Section 5: Risk-Based Approach

21. Defect identification: old Code
• Appendix B: example from Westminster City Council

22. Defect identification:
revised Code
• no guidance
• to identify all defects likely to create danger or serious
inconvenience

23. Defect categorisation: old Code

24. Defect categorisation: revised Code
• there isn’t one
• the degree of deficiency in highway elements will be
crucial in determining the nature and speed of response
• on-site judgment will always be needed

25. Revised Code: competency & training

26. Revised Code: competency & training

27. Revised Code: competency & training
• but beware…

28. Inspection manuals
• Need to review current inspection manuals to check fit for purpose
• Check qualifications of staff – consider accredited training and
keep records

29. To do….
• Review current highway policies against new Code
• Ensure competency of staff
• Document all decisions
• Train staff on new Code
• Collaborate with other authorities

30. By when?
• Previous Code remains valid until 1 October 2017 (tbc?)

31. Any questions?

32. Contact…
• Steven Conway
• 0207 337 1037
• 6 Bevis Marks, London, EC3A 7BA
• steven.conway@brownejacobson.com

33. Independent Inquiry into Child
Sexual Abuse
The Goddard Inquiry

34. Scope & Approach
Three guiding principals to shape the Inquiry’s work.
• Comprehensive (transparent)
• Inclusive
• Thorough

35. Scope & Approach – Sept 2015
It has taken four months to build the architecture of
the Inquiry’s work.
• Further work needed: -
• Recruitment – researchers, research lead, Barristers,
Information Technology procurement process, helpline.
• Scope
• No cut off date.
• All state and non-state institutions.
• Sexual abuse only.
• England and Wales only.

36. Scope
“The naming of people that have been responsible for the
sexual abuse of children, or institutions that have been
at fault in failing to protect children from abuse is a core
aspect of the Inquiry’s function”.

37. Architecture of the Inquiry
• 5 workstreams: -
– Each led by a member of the Panel supported by 2
Junior Counsel, a Solicitor and a team of
Researchers.
– 3 core projects: -
• The Research project .
• The Truth project.
• The Public Hearing’s project.

38. The 5 workstreams
• Allegations of Abuse by People of Prominence in
Public Life.
• Education and Religion.
• Criminal Justice and Law Enforcement.
• Local Authorities and Voluntary Organisations.
• National and Private Service Organisations.

39. Research Project
• This will include some of the country’s lead
academics in Child Protection.
• Responsibility of a full time Research Director.
• Will need clear guidance from the Inquiry’s Legal
Team.

40. Truth Project
• Will enable any victim to share their experience at
a private session of the Inquiry.
• May take place in regional offices which are likely
to be established over a period of time.
• Private session of the Inquiry (Inquiry will not make
individual factual findings).
• Opportunity to leave short message as legacy for
the nation.

41. Public Hearing’s Project
• Up to 5 paradigm cases from each of the 5
workstreams.
• 25 paradigm cases in all.
• 25 modular Inquiries (4 - 6 weeks each).

42. Powers 2005 Inquiry’s Act
• May order any person to attend and give evidence
at a hearing (will not use those powers in relation
to victims and survivors).
• May order production of documents.
• May make findings of fact.
• Failure to comply punishable by imprisonment.

43. Findings of Fact
• “Let me make it perfectly clear that this Inquiry
will make its fact finding powers to the full, and
will not hesitate to make findings in relation to
named individuals or institutions where the
evidence justifies this”.
Inquiry will issue warning letters to those liable to be
criticised.

44. Core Participant Status
• If person played a direct and significant role.
• Has a significant interest in an important aspect of
the Inquiry.
• May be subject to explicit or significant criticism.

45. Core Participant Status - Costs
• May appoint lawyers.
• Will not automatically be entitled to funding of
those legal costs
• The Inquiry generally expects major organisations
to fund their own legal representation.

46. How will it link to other
Inquiries?
• The Historical Institutional Abuse Inquiry (Northern
Ireland) (HIA).
• Historical Child Abuse Inquiry (Scotland).
• Royal Commission into Institutional Responses to
Child Sexual Abuse (Australia).
• Independent Jersey Care Inquiry.

47. How will it link to other
Inquiries?
“Our jurisdiction includes National Institutions … in
certain circumstances the Inquiry may need to look
at events occurring outside England and Wales …
because the event relates to an Institution that is
based, or carries out at least a part of its operations,
within England and Wales”.

48. Implications for Public Sector
Organisations
Final paragraph of the opening statement
“I urge you to take a pro-active stance towards the
Inquiry – to review your files, records and procedures
voluntarily and to take the initiative to self report
instances of institutional failure – rather than
waiting for us to come and see you”.

49. Cost and Resource Implications
• Is your organisation likely to come under scrutiny from
the Inquiry?
• Some organisations have appointed staff to commence
gathering information for the Goddard Inquiry.
• Some are waiting to see what requirements will be put
upon them.
• It is clear that documents must be preserved and your
Information Management Teams need to be notified.
Letter to Chief Execs have been despatched

50. Cost and Resource Implications
Potential internal relevant material.
• Claims history?
• Complaints history?
• Reports to Local Authority Designated Officers.
• Child Protection issues.
• Internal Management Reports over the last 40
years

51. Insurance Protocol
• Is there a duty of care/breach?
• Basis of any potential claim?
• Multiple potential Defendants?
• Multi-agency working ( police, children's services,
housing, health)

52. Since September?
• September – website address changed –
inadvertently leading to all “share your
experience” forms up to 2 October 2015 being
deleted.
• October - VSCP Terms of Reference settled. One
of the panel members resigns because of a possible
conflict of interest – might be a witness
• November – Truth Project Opens in Liverpool

53. 12 Investigations announced
• Children in the Care of Lambeth Council
• Children in the Care of Nottinghamshire Councils
• Cambridge House, Knowl View and Rochdale
Council
• Child Sexual Abuse in the Anglican Church

54. 12 Investigations announced
• Child Sexual Abuse in the Roman Catholic Church
• The Sexual Abuse of Children in Custodial
Institutions
• Child Sexual Abuse in Residential Schools
• The Internet and Child Sexual Abuser

55. 12 Investigations announced
• Child Exploitation by Organised Networks
• The Protection of Children Outside the United
Kingdom
• Accountability and Reparations for Victims and
Survivors
• Allegations of Child Sexual Abuse Linked to
Westminster

56. Next steps for the investigation?
“The Inquiry is not accepting applications for core
participant status or requesting evidence just yet. We
will do so soon and details of how to do this will be
set out here…. Although we are not requesting
evidence for our investigations at this stage, the
Inquiry is encouraging all victims and survivors of
child sexual abuse to share their experience.”

57. Accountability and Reparations
• “…. focuses on the support services and legal
remedies………….responds to multiple reports of
inadequate support services, obstructive insurance
companies and a civil justice system that may not
deliver genuine reparation. We will also examine
the adequacy of other compensation schemes,
including awards made following conviction in
criminal proceedings and awards by the Criminal
Injuries Compensation Authority.”

58. What might happen?
• Australian Redress scheme
• But for now “Until the states change their laws you
can apply to churches and institutions for
compensation and an apology. You can also go on a
waiting register until a national redress scheme is
set up. Once the laws are changed you may be able
to sue in the courts without being stopped by the
limitation period or vicarious liability problems”

59. Damages
Monetary payments “should be to provide a tangible
recognition of the seriousness of the hurt and injury
suffered by a survivor”, according to the
recommendations, with an average payment of
$65,000 (£31,200) , no less than $10,000 ( £4,800) per
person and up to a maximum of $200,000 ( £96,000)

60. Where would the money come
from?
• Australian Royal Commission
• “$4 billion national redress scheme…compensation,
counselling and psychological care…funded by the
institutions where the abuse occurred, or by
governments if the abuse happened in a state-run
facility or where a non-government institution no
longer exists.”

61. Other services in Australia?
Timetabled for 2017
• Unlimited counselling for survivors
• Fast-track access to records
• “medical expenses, dental expenses, funeral plans
and other support may be available.”

62. For you
• If your LA is named, or is likely to fall within any of
the ToR, marshal your documents now – the
preliminary hearings are in February
• Consider whether you need to support witnesses
• Monitor the IICSA website weekly
• Look at your claims history – repeat customers?
• There may be no need to hold back on settling
meritorious claims based on vicarious liability.

63. Contact…
Sarah Erwin-Jones
0115 976 6136
Sarah.Erwin-Jones@brownejacobson.com
Kate Bear
0115 976 6104
Kate.Bear@brownejacobson.com

64. Contact…
Leah Jones
0115 976 6550
Leah.Jones@brownejacobson.com
David Maggs
0207 337 1005
David.Maggs@brownejacobson.com