Saturday, November 15, 2008

None standard highway design and the risks involved for a Highway Authority

Cheshire County Council have recently produced yet another plan to complete the highway in the vicinity of my property.

Essentially they have now decided to minimise any impact on my property by bodging the highway footway further to well below normal highway design standards and ignore the need for adequate and proper drainage. Whilst this is excellent news for me regarding my right of way, the news is not so good for future highway users, particularly pedestrians. In essence all they have done is exchange one legal issue, my right of way, with others, actionable nuisance caused by flooding of my land due to their failure to provide adequate and proper drainage and claims by highway users should they injure themselves as a result of their none standard and dangerous design. Ironically, they have also opened the door for 'no win no fee' brigade to take them to the cleaners should anyone fall on the footway in the vicinity of my property.

I submitted a Freedom of Information request for a copy of the risk assessment they carried out because their design deviated from normal design practice only to be told by their solicitor that the roadway was designed within guidelines (using their own guidelines it is demonstrably not) and as such they didn't need to carry out a risk assessment (music to the ears of 'no win no fee solicitors'). Particularly when I tell a claimants solicitor that I would have accepted compensation or sold the Council the land necessary for them to complete the roadway to safe and normal adopted road standards. However, rather than accepting my gracious offer they chose to put peoples lives at risk and save the money it would cost doing the job properly.

You can view the Practical Guide to Appendix C of The Roads Board report "Well Maintained Highways - Code of Practice for Highway Maintenance Management" by clicking here.

I have extracted part of the document below and highlighted the relevant parts in blue.

4.1.3 Providing a defence for new works

Similar principles will be used in providing a defence. A local authority will need to provide evidence that:

new works were safe and properly designed, and did not inadvertently trap road users into danger.

a local authority may wish to cite in evidence that the works complied with appropriate standards or design guidance or according to principles that have been properly applied.

4.1.4 A system to manage risks

The local authority should operate a system that enables risks to be identified, assessed, and appropriately managed, with a record kept at each stage.

Local authority departments must cooperate in the introduction of risk assessment systems for all highways associated functions. Systems will need to identify areas of high claims experience and instigate lines of investigation to reduce the extent of potential claims.

Simply sitting back and hoping the problem will go away, or not happen, is a recipe for disaster. There needs to be a "culture" change in most organisations for both members and officers if everyone is to be aware of risk management. It is likely to be difficult to demonstrate that criteria for highways management or design are objective, where they have been influenced by short term political needs.

Information from the system should be communicated within and outside the local authority.

Interesting times ahead if someone is badly injured or killed as a result of their dangerous design. Especially since it was only done to get themselves out of their self created difficulties on the cheap. Their own solicitor's words not mine! Even worse for the York LGO because she stated that she was happy with what they are doing. Talk about putting your head on the block for your friends! If a child gets killed on the highway in the vicinity of my property we will have another Haringey. I warned Cheshire County Council and I warned the LGO neither would listen so on their heads be it.

In March 2005 Government published a draft Corporate Manslaughter Bill. The bill would introduce a new, specific offence of corporate manslaughter. An organisation would be prosecuted for this if a gross failing by its senior managers to take reasonable care for the safety of their workers or members of the public caused a person’s death. There have been some concerns that Highway Authorities may be liable under Corporate Manslaughter if it is found that a defect in design has resulted in death, and that this may stifle innovation in street design. The Government is alert to this issue and does not want to give design guidance the status of mandatory requirement by introducing the offence of Corporate Manslaughter. Authorities will need to show that they have carried out a risk assessment if departing from guidance, however. Again this points to the need for a documented and balanced design sign-off system that allows for authorities to move beyond normal design standards when appropriate. Cheshire County Council have not done that so it looks as though a Corporate Manslaughter charge against Cheshire County Council could be brought should anyone die as a result of their stupid and dangerous design.

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