risk management progress report june11

Report of the Agenda Item No: Service Director Finance Meeting: 29 June 2011

NORTH LINCOLNSHIRE COUNCIL

RISK MANAGEMENT PROGRESS REPORT

2. BACKGROUND INFORMATION

2.1 In April the Audit Committee approved the Risk Management Strategy and Action Plan for 2011/12 and copies are available on request or on Intralinc. Members receive regular reports throughout the year to update them on key risk management issues. This provides an important source of assurance on the adequacy of internal control and governance arrangements and provides supporting evidence for the approval of the Annual Governance Statement. Regular updates are also recognised as good practice by professional bodies CIPFA (The Chartered Institute of Public Finance & Accountancy) and ALARM (Association of Local Authority Risk Managers).

2.2 Following the Corporate Management Team’s (CMT) review of groups

across the council the Strategic Risk Management Group (SRMG) has been reformed and renamed as the Risk Management Group (RMG). Whilst membership has been rationalised there is sufficient representation from all Directorates and at an appropriately senior level.

2.3 A new risk management system has been procured. The system will

allow for better management of the council’s risk and is capable of analysing strategic and operational risks and providing comprehensive and timely management information. The first set up meeting has been held with the successful supplier and we are currently working with them to populate the system to our needs. Training on the system has been scheduled for July with the system going live soon after.

AUDIT COMMITTEE

1. OBJECT AND KEY POINTS IN THIS REPORT

1.1 To inform members of key issues arising from Risk Management work.

1.2 Regular reporting on Risk Management issues is an important

source of assurance for Members to fulfil their role and provides supporting evidence for the annual approval of the Governance Statement.

2.4 RMG has approved the new format of the Operational Risk Register. This will provide a more improved analysis of risk which will in turn help the prioritisation of risk. Guidance is currently being out together with training scheduled for later on in the year.

2.5 An important aspect of the risk management action plan is to continue to raise awareness across the council. This is achieved through comprehensive training programmes and communication networks. Regular risk management training is available and in February training was provided as part of the induction for new managers’ programme. In addition to information available on the web page and Intralinc the 7th edition of the Risk Roundup newsletter was also issued in February (Appendix A).

2.6 Internal Audit’s independent review of risk management arrangements

has been completed. The review showed that arrangements were generally good and adequate assurance could be provided by Internal Audit.

2.7 The annual council wide review of operational risk registers is

complete. All registers have been received and analysed. 2.8 The CIPFA/ALARM risk management benchmarking questionnaire has

been completed. This is the second year of the benchmarking club which will provide comparative measures, help develop SMART indicators and highlight areas for improvement in current arrangements. The results are due in July/August and benchmarking club outcomes will be reported to the Committee in September.

3 OPTIONS FOR CONSIDERATION

3.1 The Committee should consider whether this update provides sufficient

assurance on the adequacy of risk management arrangements detailed in this report. The Committee should ask questions about the contents of the report and seek clarification as necessary.

3.2 The Committee may consider that the report does not provide sufficient

assurance on the adequacy of risk management arrangements detailed in this report or may seek further clarification.

4. ANALYSIS OF OPTIONS

4.1 This progress report updates Members on key internal control issues and complies with professional guidance available and is designed to provide this Committee with the assurance required. Members should ask sufficient questions to ensure adequate assurance is provided.

4.2 The option set out in paragraph 3.2 represents an opportunity missed

to receive an important source of assurance to assist the Committee to fulfil its role effectively if adequate clarification is not provided.

5. RESOURCE IMPLICATIONS (FINANCIAL, STAFFING, PROPERTY.IT)

5.1 Resources are met from Internal Audit and Risk Management budget.

5.2 Regular reviews of risk management arrangements should safeguard the council’s assets and ensure that value for money is achieved in the use of resources. There are no staffing, property or IT implications.

6. OTHER IMPLICATIONS (STATUTORY, ENVIRONMENTAL, DIVERSITY,

SECTION 17 – CRIME AND DISORDER, RISK AND OTHER)

6.1 The Chief Financial Officer has a statutory duty under the provisions of the Local Government Act 1972 to ensure the proper administration of the council’s financial affairs. The council also has a duty under the Local Government Act 1999 to make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

6.2 The evaluation of the council’s arrangements will help to promote good

corporate governance. Risk management work, as a component of the council’s internal control framework is a key source of assurance to support the Annual Governance Statement. The risk management framework addresses all key risks the council may face. It promotes appropriate action to manage risks to an appropriate level.

7. OUTCOMES OF CONSULTATION

7.1 The Risk Management Group is made up of representatives from all services and is therefore risk management outcomes are the result of a comprehensive consultation process.

8. RECOMMENDATION

8.1 The Audit Committee should consider the assurance provided by the Risk Management progress report on the adequacy of risk management arrangements detailed.

SERVICE DIRECTOR FINANCE Pittwood House Ashby Road SCUNTHORPE North Lincolnshire DN16 1AB Author: Caroline Wilson/ Carol Andrews Date: 07 June 2011 Background Papers used in the preparation of this report Risk Management Strategy and Action Plan 2011-2012

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School gymaccidentpage 7

Issue 7February 2011

A quarterly digest of risk management issues

This dispute concerned theclaimant’s (BT’s) right tomaintain its apparatus laid inthe public highway, and thedefendant council’s duty tomaintain the highway. Theunderlying issue was, if thecouncil carried out road workswhich made it necessary tomove BT’s boxes, which of theparties had to pay for therepositioning work?

At three locations in Wales,the council carried outresurfacing – “street works”under the New Roads andStreet Works Act 1991(NRSWA). This involved layingtarmac which covered BT’sinspection covers. BT sued thecouncil for damages, allegingbreach of statutory duty,negligence, conversion andtrespass to goods.

BT told the council theycould not re-level BT apparatuswithout signing an agreementwith BT. The council did notaccept the proposed terms. Thecourt held that BT threatenedto hold the council liable intrespass if the councilinterfered with the apparatuswithout signing the agreement.

Under s.81 of the NRSWA,an “undertaker havingapparatus in the street” must

ensure it is maintained to thesatisfaction of the relevantauthority. If re-surfacing raisedthe level of the highway, re-levelling of BT’s apparatus hadto be at their own expense.

Under s.83, the authoritycarrying out works must takereasonably practical steps togive the apparatus ownerreasonable facilities to monitorthe works. The authority mustcomply with any requirementby the owner reasonablynecessary to protect theapparatus and BT saidrequiring the council to enterinto the agreement was such arequirement.

The court held that s.83 wasconcerned with physical stepsto protect apparatus, notcontractual terms. BT could notrequire the council to agree toany particular terms.

The judge held there was nobreach of the NRSWA and thats.83 does not impose civilliability – BT could not sue fordamages; there is a criminalsanction for a breach (a fine).

With regard to negligence,the judge held that the tarmacdamaged the covers whichneeded to be cleaned orreplaced. However, the councilhad a duty to maintain the

highway and was not obligedto pay BT’s costs of re-levellingBT’s frames and covers.

With regard to conversionand trespass to goods, thejudge held that the councilhad the statutory authority tointerfere with BT’s apparatus.BT’s rights did not takeprecedence over the council’sduty to maintain the highway.If utility companies had thepower to veto road works, thiswould conflict with anauthority’s duty to maintainthe highway. The claim failed.

BT fails in claim against councilNEW ROADS AND STREET WORKS ACT – COSTS OF REMEDIAL WORKS British Telecommunications plc v Carmarthenshire County Council 21.04.10, Swansea County Court

Though only a countycourt decision, thisjudgment provides auseful and detailedexamination of the rightsof both a highwayauthority and a utilitycompany under the NewRoads and Street WorksAct 1991.� BT failed toconvince the court that,on carrying outresurfacing works, thecouncil had breached itsstatutory duty, wasnegligent in damaging thecompany’s apparatus, orhad committed acts oftrespass or conversion.�

2

“The lawmust not setunreasonablyhighstandards,otherwise anunreasonableburden wouldbe placed onhighwayauthorities.”

North Lincolnshire Council Risk Roundup February 11

On a fine, bright day in June2007, the claimant was ridinghis Honda motorbike at nomore than 35mph along an Aroad in Shropshire. A friendwas riding behind on anothermotorcycle, carrying a pillionpassenger. As the claimantwent round a right-hand bendhe lost control of his motorbikeand collided with a brick wall.He was thrown from hismotorbike and sustained injury.The claimant was in his mid-forties at the time and gainedhis motorcycle licence in 2001.

The claimant claimeddamages from the highwayauthority, alleging failure tomaintain the highway inbreach of s.41 of the HighwaysAct 1980 (the Act). He alsoalleged nuisance, claiming theuse of a high-adhesion surface(“shell grip”) made thehighway dangerous to users.He said that loose gravel fromthis surfacing material causedthe front wheel of hismotorbike to lose its grip.

The defendant deniedliability, denying that thesurface of the road created aforeseeable risk of danger. Italso argued it had a defenceunder s.58 of the Act through

a reasonable inspection system.Monthly driven inspectionswere operated, one havingbeen done two days before theaccident, noting no defects.

Further, under thedefendant’s skid resistancestrategy a satisfactory skidsurvey or “SCRIM” test* wascarried out about 11 monthsbefore the accident. Thedefendant had no knowledgeof previous accidents at thislocation.

In a split trial, the judgenoted that shell grip and loosegravel are major concerns tomotorcyclists and that theHighway Code refers tomotorcyclists as ‘vulnerable’.

The judge held that thedefendant is not a “guarantor”against all highway accidents.The law must not setunreasonably high standards,

otherwise an unreasonableburden would be placed onhighway authorities and scarceresources would be divertedfrom more urgent repair needs.

The judge held that thepresence of grit on thehighway does not indicatefailure to maintain. Themonthly driven inspectionswere reasonable, given theabsence of footpaths.

Further, on the allegation ofnuisance and followingSandhar v Department ofTransport (2004, Court ofAppeal), there is no commonduty of care to maintain thehighway. The defendant hadnot failed to maintain thehighway and the claim wasdismissed.

*The test is carried out by asideway-force co-efficient routineinvestigating machine.

No council duty to remove gravelTRANSIENT MATERIAL – “SHELL GRIP” – HAZARDS TO MOTORCYCLISTS Broom v Shropshire County Council 16.06.10, Central London County Court

Although only a county court judgment, this is a clear andcomprehensive reassertion of the principle that a highwayauthority is not under a statutory duty to remove from thehighway transient materials such as grit� Readers will beaware that the duty to remove snow and ice has beenseparately dealt with by s41A of the Act� The presence ofgrit will not by itself be evidence that the highway wasdangerous to users� The duty is to maintain the fabric ofthe highway, not to remove material on it, but detachedfrom the surface, such as grit.�

In 2006 the claimant, then aged eight and ahalf, was playing with other children on a vergebetween a road and playing fields near hishome, in Verwood. The defendant acceptedthey occupied the area at that time.

Two mature oak trees on the verge had beenfelled by the defendant but their stumpsremained. One stump was approximately threefeet high with a cavity surrounded by sharpwoody edges. While playing on this stump theclaimant’s left leg became impaled on part ofthe edge.

The claimant, through his father, claimed

damages from the defendant for personal injury,alleging negligence and/or breach of statutoryduty under either the 1957 or 1984 Occupiers’Liability Acts. His allegations included permittingthe stump to remain a danger, failure to renderit safe and failure to warn the claimant of itsdangerous condition.

The defendant denied liability, contending thatthe claimant had no permission to play in thearea and that he was a trespasser. They said theyneither knew, nor had reason to know, thatchildren played on or around the stump. The

No liability for trespasser’s injuryTRESPASSERS – CHILDREN – TREE STUMPS – RISK OF DANGER Price (a child) v E Dorset District Council 18.06.10, Poole County Court

Continued on page 3

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No liability for trespasser’s injury

This ruling provides a reminder of thefactors a court will examine whendeciding liability to trespassers underthe Occupiers’ Liability Act 1984� Thejudge focussed on the danger posed bythe state of “the premises”, whetherthere were reasonable grounds for theoccupier to believe a danger existed,and the seriousness of the injury thatcould result� The social value of theactivity – children playing on a treestump – was also considered, as well asthe cost of the defendant takingpreventative measures.

trees had been felled about four months beforethe accident and they had not received any othercomplaints. They also argued contributorynegligence.

The judge accepted the accident occurred asalleged but was puzzled that the claimant’smother, who lifted the claimant from the stump,did not give evidence. He accepted the evidenceof the defendant’s witness and held the claimantto be a trespasser under the Occupiers’ LiabilityAct 1984 (the Act).

Under the Act, an occupier owes a duty topersons other than visitors in respect of any riskof injury to them, from any danger due to thestate of the premises, if the occupier is aware ofthe danger or has reasonable grounds to believeit exists.

The judge held that the risk posed by thestump was not one against which the defendantshould have taken more care to protect theclaimant. The defendant had not breached its

duty under the Act nor was it negligent.Thejudge also considered the defendant’s treebudget and the cost of reducing felled trees toground level. He held the costs involved wouldbe disproportionate.

Continued from page 2

The claimant was a pupil at aschool in Bristol. In November2003, during a chemistrylesson where the pupils wouldneed to use a Bunsen burner,the claimant sustained burns toher right hand. She alleged thisinjury was caused by thenegligence of the teacher,who was employed by thedefendant.

The claimant, aged 20 at thedate of trial, claimed damagesup to £5,000. She alleged,among other things, res ipsaloquitur, ie that the facts spokefor themselves – she sustainedburns, she said, due toinadequate supervision andbecause the experiment wasnot carried out withappropriate care.

The defendant denied liabilityand disputed certain factsabout the experiments takingplace on the day of theaccident. The claimant saidthat the class were carrying outthree tests but the teacher saidthere were two. The claimantalso alleged that the pupils

were left to distribute thechemicals required but theteacher was adamant this wasnot the case and that he gavethem out himself. The courtaccepted that it was “muchmore likely” that the teacherwould control the distributionof chemicals to the class.

The court noted that no one,including the claimant, wasable to say how the claimant’shand came into contact withthe materials that burned it.

The court held that theexperiment was not an unusualone and there could be nocriticism of the organisation orsupervision. The judgeaccepted the teacher’sexplanation as to why gloveswere unnecessary. He alsoaccepted that there was noneed for a safety screen.

The judge rejected theargument that the facts speakfor themselves – there is noevidence that the accidentwould not have happened hadthe teacher not beennegligent. It could have

occurred without anynegligence. Further, the dangerwas not under the solemanagement of the defendant– the pupils were essentiallycontrolling the experiments.The claim was dismissed.

Chemistry teacher not negligentSCHOOLS – HAZARDOUS MATERIALS – INJURY DURING CHEMISTRY LESSON Travers v Bristol City Council 15.06.10, Bristol County Court

The judge rejected theallegation that thischemistry lesson accidentwas caused by thedefendant’s negligence;even the claimant wasunable to say how ithappened� The judge saidthat the pupils, about 28in number, had beenproperly instructed andsupervised and the teachercould not “work with allpupils all of the time”� Heaccepted that pupils areexpected to learn whathappens whenexperiments work andthat science “would be avery dull affair otherwise”.

4

“The claimantclaimed thathis right... toeducation, hadbeenbreached.”


The claimants were three householders inRochdale, their homes being situated next toland formerly used as playing fields and ownedby the second defendant, D2. Part of this landwas sold to the first defendant, D1, who builthousing. D2 kept the rest.

During construction, D1 filled in part of a ditchwhich drained to a culvert. The culvert was alsofilled in by D1. This meant water from the landkept by D2 sometimes flooded claimants’properties, causing damage.

The claimants claimed damages from thedefendants. D1 denied liability but the trialjudge found against them. He also held D2liable for breach of a “measured duty” to takereasonable steps to abate the nuisance causedby water from their land flooding on to, anddamaging, the claimants’ land. The trial judgeheld that D2 should have co-operated in solvingthe flooding problem and should haveconstructed the necessary drainage ditches toavoid future flooding. D2 appealed.

The Court considered the notion of a“measured duty of care” thought to haveoriginated in a Privy Council appeal from anAustralian High Court case, Goldman v Hargrave(1967). In that case, fire from a gum tree spread

and damaged the claimant’s property. One ofthe law lords held that the standard of effort toabate the nuisance and the expenditureexpected should be viewed, in law, in the lightof what is reasonable, given the occupier’sparticular circumstances. Further, if a duty to actarises, it arises from when the occupier knew orcould reasonably have known of the existence ofthe hazard.To resolve the flooding risk D1 wouldneed to construct suitable drainage on D2’sretained land. However, it was not fair, just orreasonable to impose on D2 a duty to carry outand pay for any of the works necessary as D2were not responsible for the cause of theflooding. In this case, D2’s duty extended onlyto co-operating with D1 in solving the floodingproblem. The appeal was allowed.

Landowners not liable for flood riskNUISANCE – DRAINAGE – PROPERTY DAMAGE Lambert and others v (1) Barratt Homes Ltd, (2) Rochdale MBC 16.06.10, Court of Appeal

This is an important reminder of theextent of duty owed by an occupier toothers whose property is damaged byhazards created on the original occupier’sland. The court revisited the concept of a“measured duty of care”, reaffirming thefactors that will be considered whendeciding the extent of the duty owed bythe occupier from whose land the hazardarises.�

The matters concerning thiscase took place in 2002-2003when the claimant was aged12 and 13. The claimant suffersfrom several acutelychallenging disabilities. Theschool he attended could notcope and, for health and safetyreasons, the defendant madearrangements for him toreceive educational materials athome pending finding asuitable alternative placement.A five-year placement waseventually found for him.

The claimant claimed that hisright under art.2 of the FirstProtocol of the EuropeanConvention on Human Rights(A2P1), ie his right toeducation, had been breached.He claimed, under s.6(1) of theHuman Rights Act 1998 (theAct), that the defendant hadacted in a way incompatible

with his A2P1 right. He claimeddamages for “justsatisfaction” of the allegedbreach.

The claim had been madebeyond the one year limitationperiod for claims under the Actand earlier Courts had refusedto allow it to proceed due tothe low prospects of success.The claimant was givenpermission to appeal to the

Supreme Court.The Court considered many

cases alleging breach of theA2P1 right, most importantlyAli v Governors of Lord GreySchool, (2006, House of Lords)(Court Circular, May 2006). Inthat case, the Lords held thatthe A2P1 right is a right not tobe denied access to the UKeducation system, not a right

The nature of the right to educationHUMAN RIGHTS – AUTISM – RIGHT TO EDUCATION A v Essex County Council 14.07.10, Supreme Court

The Supreme Court has reaffirmed the nature of theright to education under art�2 of the First Protocol of theEuropean Convention on Human Rights� Again it isstressed that it is a child’s right not to be denied access toeducation rather than a right to a place at any particularinstitution� Here, although the child was out of school forseveral months, the local education authority had doneeverything conceivably possible to arrange suitableeducation for the severely disabled claimant� It was not acase of wanton failure to assist him, or of abandonmentof him.

Continued on page 5

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“A school withsprinklerscould be backin action thesame day; ayear or morelater ifunsprinklered”


Why sprinklers workZurich Municipal has beencampaigning on school firesafety and sprinkler use forover 20 years. Luckily, therehave been no school firefatalities in the UK and,

importantly, there have beenno fire deaths in the UK in abuilding fitted with a fullymaintained sprinkler system.“But we don’t want to wait fora pupil or teacher to be killed

or injured in a fire to provesprinklers are worth having,”says Graham Page, PracticeLeader (Public Sector) ZurichRisk Engineering.

In recent years improvedsecurity and new technologyhas meant that school arsonattacks in the evenings andholidays are reducing. Butschool fires do happen andincreasingly are happening inschool time, putting people aswell as buildings at risk. Anincrease in daytime arsoncombined with an increase inelectrical fires makes sprinklersystems even more valuable ina school, academy, college oruniversity.

“All Zurich’s biggest schoolfires in the last six years havebeen electrical in origin,”explains Larry Stokes, PropertyUnderwriting Manager, ZurichMunicipal. “It is a worryingtrend.” Fires that occur duringschool time are hazardous forstudents and teachers. “Thereis even greater need forimmediate extinguishment andsprinklers are effectively a 24hour fire service,” says Larry.

Graham believes customersneed to demand sprinklersfrom the start to get the mostbenefit from cost advantages.“Sprinklers need to be part ofthe design, not applied to thedesign.” But even if they are asecond thought, don’t dismissthem out of hand: “One of myteam will come out and adviseyou on the best solution,” saysGraham. Free advice on safetyand security features is part of

FIRE PROTECTION

to be educated at or by aparticular institution. The Courtheld that the defendant hadnot denied the claimant hisA2P1 right but had done all itcould to arrange a suitableplacement. Lord Brown saidthat a denial “implies a

substantially higher degree ofblameworthiness…anabandonment of the… child’splight…or a completebreakdown in the handling ofthe… child’s case”.

With regard to theapplication to waive the

limitation period, the Courtheld that, were permissiongiven, the claim would beunlikely to succeed and, if itdid, the amount in damageswould be minimal if anything.The appeal was dismissed.

The nature of the right to educationContinued from page 4

Sprinkler myths debunkedIn a fire, ALL sprinklers come on and if fire doesn’tdamage property, lots of water will• Contrary to what is shown in the movies, sprinkler headswork individually and only operate if directly over a fire. Asingle fire source does not activate all sprinkler heads in abuilding. Inside the sprinkler head is a bulb containing aliquid chemical that expands with heat; the liquid in thebulb allows the water to fall directly on to the fire.• Fire hoses are more random, are applied when thebuilding is well alight and are often used from outside thebuilding. As a result fire brigade intervention will result inmuch more water in a building than sprinkler control.

Sprinklers aren’t effective in high risk areas• Sprinklers are designed in line with the potential firerisk that could occur in higher risk areas in schools likelaboratories, libraries or theatres. In high risk areas, thesystem is designed to deliver more water to control whatcould be a larger fire.

Sprinklers cramp modern building design• Sprinklers actually allow freedom in design as other firemanagement features may not be necessary if a sprinklersystem is installed.• If the brief includes sprinklers the design can includelarger open spaces and more flexibility in terms of com-partmentation and fire detection.

Sprinklers are expensive• Not if they are considered from the beginning of aproject. For example, if a void above a ceiling is more than800mm, the rooms below and the space above requiresprinklers. But if sprinklers are designed into newbuildings or major refurbishment programmes from thestart then the use of an open cell ceiling could alleviatethe need for sprinkler protection in both areas, halvingthe cost. • Insurers are so confident about sprinkler systems thatthey will give a significant reduction in premiums. Zurichgives a guaranteed discount for sprinklers.

Continued on page 6

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Why sprinklers work

the Zurich insurance package.Graham wants customers totake advantage of this service:“We have specialist publicsector expertise we can shareand we have many years’experience with schools andpublic buildings.”Zurichdoesn’t want it to take atragedy to change perceptionon the real value of sprinklers.For advice on sprinklers, go toyour Zurich risk and insuranceconsultant or underwriter, oremail [email protected]

School sprinkler savings

• Life safety – firefighters’ livesare put at risk at a burningschool, especially those withstructures of lightweight,consortia building materials,where fire spread in hiddenvoids has a high potential forflashover and building collapse

• Life safety – an increase in

daytime fires increases the riskof life safety, should children orstaff become trapped inburning buildings

• Contamination – school firesoften involve release ofasbestos and othercontaminants in water run-off,which is considerably reducedwith sprinklers

• Water – a sprinkler uses just5 per cent of the water of asingle fire service hose

• Fire brigade time – it takestwo to five tenders with firecrew six to twelve hours to putout an average fire wheresprinklers are not fitted

• Rebuild time – a school withsprinklers could be back inaction the same day; a year ormore later if unsprinklered

• Build cost – a sprinklersystem can reduce buildingcosts on new-build orextension as a trade-off can be

made against items such aspartition walls and protectionon escape routes

• Design – sprinkler protectionoffers the potential to exploremuch greater flexibility andinnovation in design for newbuild and rebuild. (The ZurichMunicipal School and AcademyDesign Guide offers specificadvice on sprinklers anddesign. To find out more, go towww.zurichmunicipal.com)

• Cost – Zurich offers asubstantial reduction in fireinsurance premiums for thelifetime of the sprinkler system

• Cost – Zurich removes themandatory deductible (average£100,000)

• Cost – schools can be moredifficult to insure because oftheir historic loss record. Aschool with sprinklers is farmore attractive to a widerinsurance market.


In August 2007 the claimant was walking in anindoor market and, as she passed by a poultrystall she slipped and fell, injuring herself. Sheclaimed damages from the council, who wereresponsible for the market, alleging breach ofduty under s.2 of the Occupiers’ Liability Act

1957. The claimant said she slipped in water about

half an inch deep. The entrance to the marketwas about 10-15 yards from where she fell. Shesaid the water should not have pooled in thearea and there were no signs warning of thewet floor.

The defendant denied liability, arguing theyoperated a suitable system to deal with thesafety of visitors. They employed several staff tocheck the floors, patrol the market and mop upwhere necessary. Also, the management couldcontact them by radio. Floors were regularlygritted, signs warned of the wet floor and allreasonable steps had been taken to ensure thesafety of the market.

The judge considered the cause of the fall andwhether it could have been prevented. He saidthat as the floor had a camber and slopedtowards the poultry stall, puddles would notform but water would travel down the slope.The judge held that any water on the floor hadprobably been trodden in by other visitors to themarket. The judge noted the defendant’s systemof cleaning, mopping and arranging signage

Wet market floor not council’s faultINDOOR MARKETS – LIABILITY FOR INJURY FROM SPILLAGEBrown v Bolton Council, 04.10.10, Manchester County Court

This ruling reinforces the extent of theduty of occupiers to ensure their visitors’safety under the Occupiers’ Liability Act1957 – it is to take all reasonable steps toensure visitors’ safety. The claimantcomplained about slipping on a wet floorjust a few yards from the entrance of anindoor market, on a rainy day, arguingthe floor should not have been wet. Thejudge held that too high a burden wouldbe placed on the council if it had toensure the floor was free from moisturedespite thousands of people coming in ona rainy day, inevitably and unavoidablybringing with them some moisture ontheir footwear. Evidence of the wet floorwas not evidence of a breach of thecouncil’s duty as occupier.

Continued on page 7

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The claimant now an adult,was a pupil at one of thedefendant’s primary schools.During a physical educationlesson she said she was to tryto vault over a vaulting ‘horse’.As she did, she said she caughther feet on the box and fellforward beyond the crashmats, fracturing both herwrists. The claimant was agedseven at the time.

The claimant claimeddamages from the defendantfor her injuries. Her allegationsincluded failure of one of theteachers being close enough tothe vault to support her ifnecessary, there wereinsufficient teachers tosupervise the class of up to 30,the crash mats wereinsufficiently placed, and shehadn’t been properly instructedhow to use the vault. At trialshe amended her claim to saythere were no mats.

Ten years had elapsedbetween the accident and thedefendant being notifi ed ofthe claim.

The defendant deniedliability, contending the crashmats were suitable in size,being at least 25mm deep, and

suitably placed. They arguedthe lesson was adequatelysupervised. They said thatchildren of the claimant’s agewould not be told or permittedto vault over the vaultinghorse. The two sections of itwere about 94cms in heightbut they would only climb onto the top section, about40cms in height, and jump offon to the crash mat. Theybelieved that the claimant fellforwards on to her hands whilejumping down.

The hospital records recordedthat the claimant jumped off abox and landed onoutstretched hands – there wasno mention of vaulting. Thedefendant denied the accidentwas reasonably foreseeable,

that they could have taken anysteps to avoid it, or that theyfailed to take reasonable carefor the claimant’s safety. Theysaid that if the claimant didvault over the vaulting horse asshe says, the accident wascaused or contributed to by hernegligence in failing to followinstructions.

The judge considered theevidence, noting that it wasnot disputed that before thelesson in question the childrenin this class had only everclimbed on to the horse andjumped off. The judge notedconflicts in the claimant’sevidence and said she hadfailed to establish thedefendant’s liability. The claimwas dismissed.

Court rejects school accident claimPHYSICAL EDUCATION – VAULT – INSTRUCTION AND SUPERVISIONWilliams v Bristol City Council, 06.07.10, Bristol County Court

The judge accepted the claimant forming a view of heraccident but said she was wrong and this wasunderstandable as it happened 13 years ago. Theclaimant only notified the defendant of a claim 10 yearsafter it occurred but the defendant was still able toprovide credible witness evidence of the events. Theclaimant’s own evidence did not satisfactorily support hercase – the unexplained conflicts and improbability of keyareas of it resulted in the court rejecting it, preferring thedefendant’s persuasive and credible evidence.

The claimant worked for thedefendant as a home careassistant. She claimed damagesfor personal injury in relation totwo matters, an alleged assaultand a method of carrying out a

particular task.With regard to the alleged

assault, the claimant said aresident at the care homewhere she worked, X, a lady inher 80s, assaulted her. She

alleged the defendant wasresponsible through itsnegligence. There had been noprevious similar incidents.

The judge held that,

Injury not caused by delayCARE WORKERS – SAFE SYSTEM OF WORK – FORESEEABILITY – MANUAL HANDLING –PUWERRoberts v Bristol City Council, 21.05.10, Bristol County Court

warning of the wet floor. He accepted that itwas the defendant’s normal practice to placewarning signs and that they would have beenpresent that day. He said, with thousands ofpeople in the market on a rainy day, there wasbound to be moisture on the floor.

The judge held that the defendant operated areasonable system for keeping the area safe. Theduty under the Act is to take all reasonable stepsto ensure visitors’ safety and the defendant hadcomplied with that duty. The claim wasdismissed.

Wet market floor not council’s fault

Continued on page 8

“Thedefendantdenied theaccident wasreasonablyforeseeable,that theycould havetaken anysteps to avoidit, or thatthey failed totakereasonablecare”

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While every effort has been made to ensure the accuracy of these reports, this publicationis intended as a general overview and is not intended, and should not be used, as asubstitute for taking legal advice in any specific situation. Neither Zurich Municipal, norany member of the Zurich group of companies, will accept any responsibility for anyactions taken or not taken on the basis of this publication.

The council gratefully acknowledges the contribution made by its insurers, Zurich Municipal, inproviding articles for this publication.

Any employee intending to take action arising out of these articles should, if in any doubt, contactthe council’s legal section for advice before doing so.


although X was capable ofassaulting a healthcareassistant, there was noevidence that she had everdone so. The defendant couldnot have reasonably foreseenthat X would assault theclaimant and held that she hadnot assaulted her as such.

With regard to the secondallegation, the claimant allegedshe developed a back injuryfrom the equipment withwhich she and an assistantwere required to help anotherresident, Y. The claimantalleged that the defendant’sfailure, for nearly two weeks,to provide a better type of slidesheet (a ‘Ross Turner’)amounted to a breach of bothreg.4 of the Manual HandlingOperations Regulations 1992(the MHO) and reg.4 of theProvision and Use of WorkEquipment Regulations 1998(PUWER).

The claimant accepted that asuitable risk assessment hadbeen carried out but thequestion was whethersufficient steps were taken toreduce the risk of injury to thelowest level reasonablypracticable.

The judge said it wascommonsense there would bea time gap between carryingout the assessment anddelivering the new equipment.He held the defendant hadtaken reasonable steps underthe MHO to reduce the risk ofinjury.The court heard of theclaimant’s extensive experienceof lifting and moving objects inthe course of her work, andconsidered liability underPUWER. Essentially, theclaimant alleged the defendanthad not provided her withsuitable work equipment whileawaiting delivery of the newslide sheet.

The judge disagreed, sayingthat a Rolls Royce might be abetter car than others butthose others are not unsuitablefor their purpose. The judgeconsidered the causal linkbetween the claimant’s injuryand the time before the newslide sheet arrived. He heldthat, although this type of slidesheet would have made thetask easier, its absence did notcause the claimant’s injury. Thejob might have led to her backproblems but these were notcaused by any breach of duty

by the defendant. The judgeheld the claimant was not amalingerer and she was tellingthe truth, but dismissed theclaim.

Injury not caused by delay

Where a risk assessmenthas been properly carriedout and suitableequipment provided, anemployer will notnecessarily be liable foran employee’s injury. Thiswill particularly be sowhere the employee hada wealth of experience inthe task, had notidentified any particulartraining that shouldallegedly have beengiven, nor shown thatany training would haveavoided the injuryalleged. Further, wheredelivery of a type ofequipment is awaited,other availableequipment that had beenregularly used withoutcomplaint was not to beregarded as unsuitablesimply because theawaited equipment wasmore sophisticated.

“The judgesaid it wascommonsensethere wouldbe a time gapbetweencarrying outtheassessmentand deliveringthe newequipment.”

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NOTICEBOARD

Operational Risk Registers

A number of updated ORRs are being received for the

financial year 2010/11 which contain actions for control

improvements which should have been completed in

2009/10.

For example ORR dated 1 October 2010 but on

examination of the register it states that control

improvements will be implemented by 31 March 2010.

Where identified, control improvements are important to

ensure that those risks are being managed to an

acceptable level.

Owners of registers should ensure that any actions are

carried out on or before the due date. In addition, the

QPR champions in each service should be monitoring ORRs

to ensure that this happens.

Please note that Rob Walters is retiring in March 2011, so if

you have any amendments, please send these to him by

Friday 4 March.

Any amendments to ORRs after that date should be sent to

Caroline Wilson, Group Auditor, who will be taking over

responsibility for checking and summarising these

documents and reporting progress to SRMG.

Strategic Risk RegisterReminder: Position Statementsshould all have been returned by31 December 2010. Together these form theCouncil’s Strategic Risk Register.If you have not already done so,please complete them and sendthem to Carol Andrews as soonas possible.

SRMG Intralinc siteThere is a wealth of riskmanagement informationon the council’s intralincsite. Access the site via:councilwide issues, groups,strategic risk managementgroup

risk management progress report june11

Documents

Transcript of risk management progress report june11