Defensibility of claims under the new Well-managed UK Highway Infrastructure Guidance
The Well-managed Highway Infrastructure Code (WMHI) was published in October 2016, but its two year transition period has now ended. The code was touted as a review of existing practice, as opposed to a complete rewriting, with the focus shifting to a risk-based approach to reflect the flexibility required to enable authorities to adequately respond to each specific sector.
Its 36 recommendations, broadly split across 6 different focussed areas, are officially in force and the WMHI will now be relied upon by local authorities, practitioners, experts, lawyers and the courts as guidance when the adequacies of the network in question are challenged.
This article focuses on a few key areas of the WMHI and highlights important considerations when dealing with civil claims for damages.
There has been extensive consultation, engagement and debate as to the changes contained within the WMHI – the most significant being the asset management approach to highway infrastructure based on the establishment of local levels of service through risk-based assessment – Recommendation 7.
Each authority is now left to determine and implement its own network agenda based on its assessment and evaluation of specific needs. A useful reference point is ISO 31000:2009 Risk Management Principles and Guidance. This sets out the management process and model to maximise the effectiveness of a risk-based approach, which can then be adapted to each highway network.
The risk-based approach permeates all of the guidance and includes operational and asset plans, the classification and hierarchy of the network itself, the frequency and method of inspections, investigatory levels and repair timescales.
It is imperative that any decision made in relation to a network risk is documented and recorded so that evidence can be obtained to justify that decision if and when challenged. This could include, amongst others, defined policy and procedures, documented and approved minutes from executive committees, classification data, records of previous accidents and previous claims.
Unfortunately, the extent of what a court may wish to consider in order to rule on an authorities’ classification of risk is currently unknown, but it is clear that such information will be a critical consideration in any defence to a claim.
Part of the management of a risk-based approach is also the need to review and monitor the risks of the network. This may be through periodic reviews of usage classifications, new data models and/or condition surveys and a review of defensibility of claims both in the local authority and elsewhere. Evidence will be required to prove that risks are continually being assessed and reviewed.
For potential developers within an authority, consideration will need to be given, and evidence provided, as to whether the use of the network will alter and how this can be justified should such a development progress.
Accurate, up to date and accessible data is key. The WMHI specifically states that “A risk-based approach to highway maintenance needs to be founded on information that is sufficiently robust to enable decisions on levels of service to be taken and reviewed over time.” It is clear that the collection, accuracy and analysis of data will be paramount when explaining the risk-based decisions adopted by each local authority under the WMHI.
The recommendations identify the importance of data management as it requires a review and analysis of a number of factors including but not limited to: current/expected levels of use; resilience; local economic and social factors; together with a review of the scale, nature and use of individual assets such as schools and hospitals. This background network data will be relied upon in any defence of a claim as the justification for the risk level in each case.
Careful consideration must be taken as to how such data is collected and reviewed and authorities should consider the adoption of new and emerging technologies as part of their highway service as evidence will be required when the authority is required to justify its categorisation within the network hierarchy.
Collaboration and communication
One of the underlying themes throughout the WMHI is one of integration, collaboration and communication. Within recommendations 3, 4, 5, 6, 8, 24 and 30 it has an important impact on all stages of risk assessment. Whether this be the need for each individual authority to work closely with its internal highway divisions, to publish policy and strategies, to facilitate transparency through data or for each neighbouring authority to be aware and involved in the approach adopted elsewhere, there is a clear push for a unified approach to be adopted and explained. In promoting consistency for all network users irrespective of geographical location, the WMHI encourages local authorities to work closely together when determining levels of service and to justify the approach they have adopted.
The effectiveness of the new recommendations should be encouraged through the establishment of relevant forums, peer-to-peer training and sharing of experiences. However, each authority may well have to differ its approach depending on the characteristic of the assets it has within its control. The relative strength and defensibility of each policy decision will then depend on its ability to record, share and explain its reasoning before court.
There is some concern that the inherent flexibility envisaged by the risk-based approach leaves an authority potentially exposed to large amounts of data and information requests disproportionate to the value of the claim itself. This may lead to satellite litigation to determine the appropriate disclosure of relevant information and is something one would expect to be considered by the courts in the near future.
Competencies and Training
Another area open to challenge within a civil claim is the proven competency of persons involved in the implementation of the guidance in the network itself. Recommendation 15 specifically states that appropriate competencies for all staff should be identified. Training should be provided for directly employed staff (where needed) and contractors should be required to provide evidence of the appropriate competencies of their staff.
Because of the reliance placed on the need to explain each risk-based decision, it is inherent within the system that those persons who will assess the risks are suitably qualified to do so.
Individual training and development plans should be established and reviewed and formal training records should be kept. The use of external training providers and vocational qualifications may be relied upon as evidence of the competency of those whose decisions are being challenged. The need for regular review and refresher training will also be paramount to demonstrate the suitability of qualifications and experience.
Consideration should also be given to membership of professional bodies and/or the need to evidence compliance with industry standards and qualifications provided by an accredited programme. There are a number of diplomas and courses currently available but it is expected that more courses specifically designed to address the risk-based approach will be made available to practitioners as challenges to the competency of persons involved in the network develops in the courts.
The intention behind the WMHI is to promote flexibility and transparency. Whilst each local authority is able to devise its own risk based approach, it must be able to justify and evidence those decisions. The intention is that this is not undertaken in isolation but that there is the opportunity and desire for shared learning across the country to help achieve a more unified network.
As the recommendations only came into force on 28th October 2018 the courts are yet to interpret how the recommendations should be implemented. There will certainly be challenges ahead as the new approach is explored in court but there are clear opportunities for both local authorities and businesses involved in the highway infrastructure to fully maximise the increased flexibility encouraged through the risk-based approach as long as careful consideration has been given as to how they are able to explain, evidence and justify the relevant decisions made.