For some time now we have been anticipating the introduction of the revised Highways Code of Practice. Well, that is now with us and time is ticking for the Code to be implemented by highway authorities by October 2018. That is naturally at the forefront of our minds. To that extent we have tailored the day to provide a number of speakers to deliver practical and engaging perspectives on the changes to come. Confirmed speakers come from diverse backgrounds, to include, engineering, risk and insurance, legal and of course the local authority angle. We will consider the practical implications of implementing a risk based regime, through to the likely approach of the courts and the steps authorities can take to improve their ability to defend claims going forward.

1. Highways Symposium
November 2017, London

3. UKRLG Code of Practice –
seismic shift or business as
usual?
James Fawcett, Browne Jacobson

4. Opportunity / Challenge
 Implementation by October 2018
 The intention of the Code “is that Authorities will develop their own levels of
service..” - tailor to specific needs and challenges
 Dynamic approach to highway maintenance – through implementation of the risk
based approach, but also more widely across the Authority
 Collaboration – genuine opportunity to work together
 Affordability – how far can we push it? “We couldn’t afford it sir”…

5. Challenge / Opportunity
 Shift from interventions levels > investigatory levels (assessment of risk)
 Greater scrutiny of the Highway Inspector’s decision making – potential to
leave the inspector and authority vulnerable, or justify decisions
“Coroner fears rise in pothole-related road deaths” (BBC News)
(Assistant Coroner for Greater Manchester North – Regulation 28 report to prevent future deaths)

6. Challenge / Opportunity
 Implementation of the Code against a background of continued pressure to deliver
savings
 Councils could face a £14bn pothole repair bill over the next two years, the Local
Government Association has warned.
 1 in 6 local roads may need to be replaced within the next 6 years (Annual Local
Authority Road Maintenance Survey 2017).
 Outsourcing of highway maintenance – the statutory duty to maintain the highway
remains with the Authority, even where the practical delivery rests elsewhere.

7. Contact us…
James Fawcett
E: James.Fawcett@brownejacobson.com
T: 0115 908 4874

29. Risk Based approach to Highway
Service delivery
Richard Hayes CEng FIHE DMS
Chief Executive
Institute of Highway Engineers

30. Outline of presentation
• WMHI
• ISO 31000
• Appetite for Risk
• Local factors
• Discuss options
• Deadline approaching
• Who is going to be first to defend its RBA

31. Management of highway infrastructure maintenance,
including setting policy, strategy and levels of service,
establishment of inspection and condition assessment
regimes, determining priorities and programmes,
procuring the service and management of all associated
data and information should all be undertaken against a
clear and comprehensive understanding and
assessment of the risks and consequences involved.
The principle of this Code is that Highway Authorities will
adopt a risk-based approach in accordance with local
needs (including safety), priorities and affordability.

32. Recommendation 7 – Risk Based ApproachRecommendation 7 – Risk Based Approach
• A risk based approach should be adopted for all aspects
of highway infrastructure maintenance, including setting
levels of service, inspections, responses, resilience,
priorities and programmes
Recommendation 8 – Information ManagementRecommendation 8 – Information Management
• Information to support a risk based approach…should be
collected, managed and made available in ways that are
sustainable, secure, meet statutory obligations and
facilitate transparency for network users

33. Recommendation 14 – Risk ManagementRecommendation 14 – Risk Management
• The management of current and future risks
associated with the assets should be embedded
within the approach to asset management.
Strategic, tactical & operational risks should be
included [HIAMG 11]
Recommendation 16 – InspectionsRecommendation 16 – Inspections
• A risk-based inspection regime, including regular
safety inspections, should be developed and
implemented for all highway assets

34. Recommendation 19 – Defect RepairRecommendation 19 – Defect Repair
• A risk-based defect repair regime should be
developed and implemented for all highway assets
Recommendation 21 – Climate Change
Adaptation
Recommendation 21 – Climate Change
Adaptation
• The effects of extreme weather events on highway
infrastructure assets should be risk assessed and
ways to mitigate the impacts of the highest risks
identified

35. WMHI - risk based principleWMHI - risk based principle
ISO 31000ISO 31000
• Communication and consultation
• Establishing context
• Risk assessment
• Risk treatment
• Monitor and review

36. Communicationandconsultation(5.2)
Monitoringandreview(5.6)

37. 3. Risk Assessment
Identification
1.
Communication
& Consultation
5.
Monitoring &
Review
4. Risk Treatment
2. Establishing Context
Analysis
Evaluation

38. Highway infrastructure is highly
visible and important to many
groups both internal and
external
Highway infrastructure is highly
visible and important to many
groups both internal and
external
• Consider local needs and priorities
• Other Council services are impacted
Communication and
consultation inform the
understanding and evidenced
gathering that underpin the RBA
Communication and
consultation inform the
understanding and evidenced
gathering that underpin the RBA
• Recommendation 4 –
Engaging &
Communicating with
Stakeholders
• Elected members
• Council executive
• Insurance
• Legal
• Contactors
• Road users
• Environment groups
• Suppliers
• Business groups
• Professional bodies
• Claimants
• Claimant solicitors
• Neighbouring Councils
(Recommendation 5)

39. • Every time you see the word RISK substitute the word
EVIDENCE

41. Describes the internal and external environment in which
you operate and underpins your approach to risk
Describes the internal and external environment in which
you operate and underpins your approach to risk
Some factors generic to all, such as –Some factors generic to all, such as –
• Highly visible and valuable asset
• Non-delegable statutory duty to maintain
• Publicly funded and resources are finite
Factors that will differentiate include –Factors that will differentiate include –
• Characteristics of your network and your location
• Local policies, priorities, affordability
• Service delivery model – in-house / outsourced

42. Identify – Events that might happen ?Identify – Events that might happen ?
• Injury or damage to network users
• Damage to network infrastructure
• Inconvenience or delay to users
• Socio- economic threats (or opportunities)
Analyse – Nature and scale of the eventsAnalyse – Nature and scale of the events
• Impact
• Likelihood
Evaluate - Am I bovvered stage!Evaluate - Am I bovvered stage!
• Risk tolerance /appetite
• Cost benefit / opportunity

43. LIKELIHOOD
OF EVENT
OCCURRING
CONSEQUENCE OF EVENT OCCURRING
NEGLIGIBLE LOW MEDIUM HIGH SEVERE
NEGLIGIBLE
1 2 3 4 5
VERY LOW
2 4 6 8 10
LOW
3 6 9 12 15
MEDIUM
4 8 12 16 20
HIGH
5 10 15 20 25
KEY TO RISKS
LOW MEDIUM HIGH
HMEP, UKRLG, Highway Infrastructure Asset Management Guidance Document,
2013, p79

44. Management and control activitiesManagement and control activities
• Action to reduce likelihood
• Routine inspections
• Response to reports
• Repair programme
• Improvement and upgrade schemes
• Action to reduce impact
• Insurance fund and cover to manage financial impact
• Risk transfer to contractors
• Infrastructure designed to minimise damage from
incidents

45. WMHI emphasises the need for regular
evidence-based reviews to underpin the RBA –
WMHI emphasises the need for regular
evidence-based reviews to underpin the RBA –
• Has the context changed?
• Are risk assessments sound?
• Are risk treatments effective?
Information and data will be keyInformation and data will be key
• Defensibility / repudiation rates
• Liability decision analysis

46. 3. Risk Assessment
Identification
1.
Communication
& Consultation
5.
Monitoring &
Review
4. Risk Treatment
2. Establishing Context
Analysis
Evaluation

47. This image cannot currently be displayed.
Well-maintained Highway Infrastructure
part 2 –Highways Section 7 Winter Services
• Compliance by October 2018
• Risk based approach throughout
• Fewer if any prescribed standards
• Appendix H removed and to be replaced by NWSRG
Practical Guide due during 2017
IHE Risk Seminar 2 June 2017

48. This image cannot currently be displayed.
Recent County Court Decision
• Brenda White v Nottinghamshire County Council
(Nottingham County Court HHJ Owen QC 19 April 2017)
• Claimant slipped on ice on pavement
• Section 41 (1)(A) breach claimed
• Defence relied on Winter Services Operational Plan
• Claimed dismissed as WSOP had appropriate method to it
and was applied
• Only County Court Decision
IHE Risk Seminar 2 June 2017

49. This image cannot currently be displayed.
Testing of Policy establishment
• Rhiannon Pace v The City and County of Swansea 2007
• Was the local authority's winter maintenance plan proper and
reasonable
• “ It is clearly impossible for a HA to eliminate all risk of ice forming
on roads. It is almost impossible for the plans to be devised at so
high a level of protection that the very greatest level of protection
is always provided. A highway authority must instead devise a plan
in accordance with best practice, using resources to address the
foreseeable risks efficiently …….”
IHE Risk Seminar 2 June 2017

50. This image cannot currently be displayed.
Well Managed Highway Infrastructure
Key issues to be examined
• Is the WM policy reasonable?
• Is it compliant with Best practice e.g. WMHI ?
• Good Record keeping essential in establishing a Section 58
defence
IHE Risk Seminar 2 June 2017

51. This image cannot currently be displayed.
Risk or Evidence based approach
• Are you able to justify through sound evidence of network,
likelihood, impact and affordability that the Winter
Services Policy in your authority satisfies the requirements
of Section 41(1)(A) of the Highway Act 1980
IHE Risk Seminar 2 June 2017

52. This image cannot currently be displayed.
Questions and Discussions
Richard Hayes CEng FIHE DMS
Richard.hayes@theihe.org

53. Counter fraud and Intelligence
in Highways Claims
Mike Tuffin, Intelligence Manager

54. • Insurers detected 125,000 dishonest insurance
claims valued at £1.3 billion. The number was
down 5% on 2015, while their value fell 3%.
• The level of organised fraud fell by around 30% on
2015, with 15,000 frauds valued at £174 million
detected.
2016 Fraud Stats

55. 2016 Fraud Stats
• Both the number and value of detected motor frauds
fell. The number, at 69,000, fell 4% on 2015; their
value, at £780 million, was down 5%. The reduction in
organised frauds, such as crash for cash scams,
contributed to this reduction.
• Property insurance frauds showed a slight fall. The
number dropped 4% on 2015 to 26,000, while their
value fell 2% to £106 million.

56. How serious is fraud for Highways
claims?
- The local government counter fraud and corruption strategy 2016-2019

57. What does the market think?
Insurance Fraud Bureau: Future Strategy (2015-2019)

58. Path of Least Resistance

59. Recent Media Reports

60. Prior Form

61. Where’s the defect?

62. Non Fraud Risks

63. Counter fraud strategies

64. Photographic evidence

65. Photographic evidence

66. Photographic evidence

67. Photographic evidence -
http://regex.info/exif.cgi

68. Photographic evidence
http://regex.info/exif.cgi

69. Geotagged Social Media Content

70. Geotagged Social Media Content

71. Well-managed Highway
Infrastructure A Code of Practice
• RECOMMENDATION 7 – RISK BASED APPROACH
A risk based approach should be adopted for all aspects
of highway infrastructure maintenance, including
setting levels of service, inspections, responses,
resilience, priorities and programmes.

72. Heatmaps (Hotspot Mapping)

73. Questions?
Intelligence queries:
Mike Tuffin, Intelligence Manager
t: 0121 237 4575
m: 07778 591 853
e: mike.tuffin@brownejacobson.com
intercept@brownejacobson.com

74. Panel discussion
• Peter Mason – Executive Director – Arthur J
Gallagher
• Colette Dark – Director – KWD Associates Ltd
• Andy Cole – Devon County Council
• Our very own David Maggs

75. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270
6000.
© Browne Jacobson LLP 2017 – The information
contained within this document is and shall remain the
property of Browne Jacobson. This document may not
be reproduced without the prior consent of Browne
Jacobson.