MUNICIPAL ENGINEERING FOUNDATION VICTORIA 

STUDY TOUR

September / October 2002

CANADA, UNITED STATES OF AMERICA, UNITED KINGDOM

 

Best practice strategies to minimise public risk in the

management of roads and paths

Michael Edgar

Latrobe City

November 2002 

  CONTENTS

Acknowledgements

Background

Overview

            Canada

            United States of America  

            England  

 Risk Management Practices

            City of Richmond  

            City of Surrey  

            City of Redmond

            City of Kirkland 

            City of Independence

            Department for Transport, England  

  Borough of Hammersmith and Fulham

            Bristol City

            Transport Research Laboratories  

            Oxfordshire County

Conclusion

ACKNOWLEDGEMENTS 

I wish to acknowledge the Municipal Engineering Foundation for continuing to make the annual study tours available for Engineers working in the Local Government field.  I thank Keith Wood, a trustee of the Foundation, whose experience and knowledge was most helpful in planning the study tour. 

I would like to acknowledge the support of Latrobe City, and particularly Richard Hancock, Chief Executive Officer, and Larry Naismith, General Manager City Infrastructure, in providing encouragement and support for the study tour. 

I thank my wife and daughters and also my work colleagues, whose support enabled me to undertake the tour. 

I would also like to thank all of the tour hosts as listed below.  The people we met were generous with their time and most willing to share information.   

City of Richmond, British Columbia, Canada   www.city.richmond.bc.ca  
City of Surrey, British Columbia, Canada www.city.surrey.bc.ca  
City of Redmond, Washington State, USA     www.ci.redmond.wa.us
City of Kirkland, Washington State, USA  www.ci.kirkland.wa.us
City of Independence, Missouri, USA  www.ci.independence.mo.us  
Department for Transport, London, UK  www.dft.gov.uk
Borough of Hammersmith and Fulham, London, UK  www.lbhf.gov.uk  
City of Bristol, Bristol, UK   www.bristol-city.gov.uk  
Transport Research Laboratories, Berkshire, UK www.trl.co.uk  
Oxfordshire County, Oxford, UK   www.oxfordshire.gov.uk   

I would like to particularly thank Paul Forman, Head of Investigations and Risk Management, Transport Research Laboratories.  Paul was extremely helpful in providing advice and establishing contacts with the UK hosts.

BACKGROUND

Maintenance of public infrastructure accounts for a significant portion of local government expenditure and a considerable risk in relation to public liability.  Information provided by Civic Mutual, Local Government insurers in the State of Victoria, shows that footpath and road related claims constitute the majority of claims for Local Government across Victoria. 

The high number of claims can possibly be attributed to a range of factors including

-        An increase in public awareness of litigation

-        A rise in public expectation of Council services

-        Deterioration in the condition of the local road and footpath networks 

Recent High Court decisions in Australia have resulted in abolition of the long standing “non feasance” immunity for accidents on roads and paths.  These decisions provide greater incentive for Local Government to develop proactive risk management policies and procedures. 

It also needs to be recognised that Councils do not have unlimited resources and that road and footpath networks cannot be maintained in perfect condition.  Processes therefore need to be established to identify risks, analyse risks, treat or control risks and to monitor risks. 

With the United States being reported as being a litigious society and with the general immunity of highway authorities from civil claims being withdrawn in England in 1959, a study tour including these countries should prove to be most informative.

OVERVIEW 

This section provides an overview of the government structures in each of the countries visited, to assist in providing context, and outlines a broad summary of the risk management findings.

Canada

Government in Canada has its roots in the British system and is therefore similar to Australia.  As well as the Federal Government there are 10 Provinces (equivalent to our States). 

Local Government operates under the framework of a Provincial Local Government Act.  Local Government provides similar services to those provided by local government in Victoria with the addition of police and fire services.  Water supply and sewerage is generally managed on a regional basis, with local government taking responsibility for the reticulated systems within their respective municipality. 

Provincial Government has responsibility for Highways and provides a contribution to local government for the maintenance of major regional roads.  Local Government income is largely drawn from property taxes (rates), Provincial Government grants and development fees. 

There is a Provincial Occupiers Liability Act that requires the occupier of land, whether that be local government or private, to keep the property in a safe condition. 

Canadian law still provides non feasance protection for road authorities, and the community is quite litigious, possibly due to the USA influence.  The risk management approach adopted by the Councils visited was to establish policy for programs and level of service and to undertake inspections in accordance with the adopted policy.  Programs determined by policy as being a low priority are not included on a risk management inspection program. 

It is apparent however that this creates a dilemma with respect to asset management.  If the risk management policy dictates that inspections should not be undertaken for a class of asset, any inspections undertaken for the purposes of developing an asset management plan could compromise the Council’s non feasance protection. 

In my opinion this is detrimental to the proper management of the assets, as it discourages the development of asset management plans and associated condition audits necessary to develop a knowledge of how the assets are performing.   

United States of America

The United States has Federal, State and Local Government with several tiers within the local government framework.

County Councils are responsible for a range of services to the community including police, fire, libraries, roads, water supply, schools, social services, etc. There are 24 County Councils in Washington State. 

City Councils are formed by the annexation of a portion of the County by plebiscite.  State law sets out the processes, and approval of the County is required.  City Councils then provide the same range of services provided by the County.  Cities also have community councils or voluntary neighbourhood associations that provide a means of community consultation. 

Property tax is collected by Counties and a portion distributed to the Cities within the County.  Other income is derived from utility taxes and sales taxes, with sales tax being the largest revenue source.  A portion of the sales taxes collected by the State Government is distributed to Local Government. 

Local Government is quite autonomous in the US.  The Federal Government and State Governments provide some funds for specific programs, but there is no controlling legislation such as exists in Australia and Canada. 

America is renowned as being highly litigious and this view was reinforced on the tour.  Councils and Council officers are forever mindful of their exposure to being sued for negligence.  In fact this is uppermost in their thinking.  One City Engineer advised that he has been personally sued on a number of occasions as part of the “scattergun” approach generally employed by litigants. 

State laws vary and while one State on the tour had legislation to cap public liability payouts, the other State did not have similar legislation.  It was apparent that the public liability cap provides a high level of comfort to Highway Authorities within that particular State. 

There is a high emphasis on formal adoption and adherence to recognised design standards as a means to minimise exposure to risk.  There is also a very strong emphasis on recording, inspecting, documenting and ensuring follow up on reported or noted infrastructure defects.  While this is important it is a reactionary approach, that is heavily resourced.  It is apparent that there is not a great deal of attention paid to long term asset management planning, and it seems that the benefits of asset management are not well recognised, including the risk management benefits that would result from a well planned and comprehensive asset management plan. 

England

Government in England consists of Central Government and traditionally three tiers of local government.  County Councils are very large and deliver a broad range of services including education, public housing, social services, transport and road maintenance, with budgets of up to 100 million pounds. They may be governed by up to 70 Councillors, often on party lines.  

District Councils undertake a reduced range of services and may receive funding from the County for specific service delivery.  For example a District Council may take on the responsibility for road maintenance, with funding from the County. 

Parish Councils and Town councils are generally quite small and deliver a limited range of services, with budgets of up to 500,000 pounds. 

In recent years there has been restructure of local government in some areas, with the formation of Unitary Authorities.  These are formed by the merging of the District, Parish and Town Councils within a County and then forming a number of regional unitary councils. 

Local Government income is derived predominantly from Central Government grants, property taxes and developer contributions.  In relation to road maintenance, Central Government grants account for approximately 70% of the expenditure. 

In the UK the central governments of England, Scotland, Ireland and Wales have produced a document “Delivering Best Value in Highway Maintenance – Code of Practice for road management”.  This is a big step towards the development of uniform and consistent standards for each of the adopted road classifications, and in turn provides a defence against road related claims, if the national standards are adhered to. 

Local Government is being encouraged by the Code to develop long term asset management plans that include regular condition audits.  The code also encourages the development of risk management policies, flowing on to the adoption of technical and operational standards. 

It is apparent that progressive Councils have been embracing this philosophy while others are focussed on maintaining their central Government grants.  The approach by central Government should provide the benefit of an overall improvement in asset management and risk management across the UK.  There is some risk that progressive and innovative Councils could be disadvantaged, as a result of the needs based formula applied to the allocation of additional road funding that Central Government has made available.   

RISK MANAGEMENT PRACTICES

City of Richmond, British Columbia, Canada

About Richmond

Richmond is an island city that is directly south of the City of Vancouver, with an area of approximately 130 square kilometres.  It has a population of 165,000 with recent population growth attributable to Asian immigration.  The Asian population is around one third of the total city population. 

Vancouver international airport is located in the City of Richmond resulting in airport service and aviation industries.  The Asian community has also added to the small business and retail sector.  The annual operating budget of the City is around $166M. 

Risk Management in Richmond

The City of Richmond has a vision to be the most appealing, liveable and well managed community in Canada.  The corporate plan focuses on the key strategies of community safety, urban infrastructure management, financial sustainability, community vibrancy, civic beatification and design, service excellence, corporate leadership culture and environmental sustainability.  Cross divisional strategy development project teams are formed around each core strategy.  Community consultation is incorporated into the planning for new works and programs and volunteerism in the City is quite high. 

The community is quite litigation conscious and risk management is incorporated into the operational frameworks. Risk management is largely based on policy development, inspection programs and insurance coverage. 

Canada is still operating under non feasance protection. The City of Richmond establishes Council Policy for its programs and levels of service to be delivered.

There has been acceptance from the courts that if the policy decisions are made on a sound basis, including consideration of financial constraints, then this provides an immunity from litigation. 

Inspection programs are based around what is achievable, and if there is no funding for a particular program, inspections will not be undertaken.  In these cases action will be reactionary, instigated from community complaints. 

For example there is a policy relating to sidewalk (footpath) repair that includes the requirement for an inspection within 24 hours of notification, and for repairs to be scheduled if the panel is out of alignment by more than ¾’’.  There is no timeframe for the repair but the policy includes a requirement for temporary precautions such as barricades, warning signs or temporary fills in the interim.  

The city self insures up to $1M and is covered with Municipal Insurers Association up to $30M.  The City works closely with the insurers association and they will undertake risk assessments.  For example the association carried out an assessment on a newly constructed BMX track and offered advice for safety improvements. 

The Canadian Standards association has developed standards for playgrounds, and the City has determined that, from a risk perspective, it is important to maintain these standards.  This includes monthly inspections and follow up works to maintain the playgrounds within the specified standards. 

The City has a team of qualified legal professionals, who are heavily involved in risk management.  This fits well with the corporate philosophy of a cross functional team approach. 

City of Surrey, British Columbia, Canada

About Surrey

Surrey has a population of 350,000 and is one of the fastest growing cities in Canada, with an area of 300 square kilometres.  It takes pride in its parks, with around 400 parks in the City.  It is a gateway to the US being located on the border.  Approximately one third of the land area is utilised for agriculture and the City aims to retain this as well as promote business development to support the growing population. 

The City has not increased rates for 9 years and has not borrowed funds for 20 years.  Capital improvements are funded solely from developer levies, so planned development is actively sought and encouraged. 

Risk Management in Surrey

Surrey adopts similar principles to Richmond in risk management. It has found that if it can demonstrate due diligence in the establishment of policies to minimise risk, this is a legal defence. 

A significant difference in approach is that Surrey undertakes a comprehensive inspection program on its roads and paths.  This is related to a pavement management system that has been in place for the past 10 years.  The City has determined that it could be considered unreasonable to reduce or cease the inspection program, and thus would leave itself exposed to greater risk of claims. 

As with Richmond, risk management in Surrey is a high priority and five solicitors are employed by the City in a risk management unit.  They effectively operate on a consultancy basis to operational divisions.  A quarterly employee newsletter called “Riskwatch” is produced, that reports on claims trends and raises staff awareness of risk management issues.

There is an overarching Council policy that “The city does not accept responsibility for a claim unless it is the judgement of risk management and/or legal staff that the City would be held legally responsible for the injury or damage”. 

Over the past 10 years only about 15% of submitted claims have resulted in a payment.  As with Richmond, Surrey is self insured up to the first $1M and in the past 10 years there have been no insurable losses in public liability, and the annual premiums are currently at their lowest level. 

The risk management unit places emphasis on “who controls the activity bears the risk”.  For large contracts the documentation puts the risk on the contractor, whereas for small subcontracts under direct supervision the Council will continue to bear the risk. 

Risk management is given consideration in the development of Council strategies.  For example a tree hazard management strategy is incorporated in the “Natural areas: access and recreation” strategy.  The document highlights that tree failures and incidents are the third highest cause of claims after roads and drainage claims.  The document states that the primary strategic direction for managing tree hazards, is to provide for safe use, reduced corporate liability and increased benefits to natural area ecosystems.  It then goes on to make a series of operational recommendations to achieve this. 

The City is placing a greater emphasis on working with service clubs and community organisations to become involved in areas such as park development and maintenance.  Initially this was instigated to value add to the limited resources that the Council could provide.   It is also having the benefit of community ownership and pride, a changing of attitude towards criticism of Council, and a softening of the litigious attitudes.

City of Redmond, Washington State, US

About Redmond

Redmond is located in greater Seattle, 20 miles east of downtown Seattle, with an area of 17 square miles.  It has a population of 50,000 and has experienced significant population growth since 1983 with the establishment of Microsoft. The City offers a high quality lifestyle with 42 schools, a range of parks and relatively modern infrastructure. 

The City has developed on the technology industry with Microsoft, Nintendo and AT&T Wireless being some of the larger industries located in the City.  The annual budget of the City is around $355M. 

Risk Management in Redmond

The United States does not have non feasance immunity; has always been in a situation of risk liability; and nobody has immunity from prosecution.  Council officers have been personally sued on a number of occasions, and in these instances the municipality does support them.  Risk management is therefore at the forefront of all activities. 

The risk management approach taken by Redmond is essentially to apply reasonable standards and to establish Council policy in relation to the standards.  Where appropriate national or state standards exist these are adopted and supplemented by municipal standards where necessary. 

Some States, such as Colorado, have enacted legislation to limit the payment on a claim made against the state or a local authority.  However this does not apply in the State of Washington. 

The law in Washington is such that if a party is found to be only partially negligent, even as low as 1%, it can still bear the full cost if the other parties are unable to pay. 

Richmond City has a self managed public liability insurance program in conjunction with other municipalities to cover claims up to $100,000.  Claims for trips and falls on sidewalks is increasing due to the impact of street trees.  This has resulted in a program of grinding joints and undertaking temporary patches, as there are insufficient funds to replace all of these paths. 

Claims are generally settled out of court rather than the risks associated with taking them to a jury court.  An interesting concept employed for serious claims is one of mock trials.  These can cost in the order of $25,000 with a number of mock juries engaged to test the likely verdict if the case was to proceed to court. A more informed decision can then be made on whether to proceed to court or to settle out of court.

City of Kirkland, Washington State, US

About Kirkland

Kirkland is another City in greater Seattle. The City promotes its high quality lifestyle and has frontage to Lake Washington.  Business is predominantly made up of small businesses, light industrial and technology. The total budget for the City is around $141M. 

Kirkland was incorporated in 1905 with an area of one square mile and a population of 530.  Since then it has grown in geographic size to 11 square miles through consolidations and annexation, with a current population of 46,000. 

Risk Management in Kirkland

As with Redmond, risk management is high on the agenda.  Risks are identified and programs are developed to minimise the risks, within budgetary constraints.  The concept of “notice” is important.  If a problem is noted or advised then it is imperative to do something about it. 

The City places an emphasis on developing inventories of assets, together with condition ratings.  Sidewalks were identified as being an issue due to complaints from citizens.  The City carried out an inventory and identified that a budget of $150,000 per annum would be required to upgrade the paths, with a grinding and replacement program.  This was beyond the capacity of the City to fund and an allocation of $30,000 was made that is proposed to be reduced next year.  The claims are generally minor and the defence to be used will be that the City has other higher priority funding requirements. 

This will therefore revert to a reactionary program, where complaints are addressed on an individual basis.  The City maintains very detailed records of complaints, and inspections and all follow up action is very well documented.  This is imperative in order to defend a possible future claim.  There is a three year statute of limitation for people to file a lawsuit. 

The City has adopted the national “Manual of uniform traffic control devices” and applies this diligently in street design, as it is the recognised national standard. 

The American Disabilities Act has been recently enacted by the Federal Government.  This Act fundamentally requires progress towards enabling the disabled to be able to travel unimpeded.  It is becoming a significant driver on the capital works programs for roads and paths.  

City of Independence, Missouri, US

About Independence

Independence is part of greater Kansas City with a population of 120,000 and an area of 78 square miles.  The Santa Fe, Oregon and California wagon trails originated in Independence, so the area has a rich history.  It was also the home of President Harry Truman and a museum has been constructed to commemorate his achievements. 

The City is approximately 150 years old and the infrastructure in the older section of the City is in disrepair.  No taxes had been raised by the City for 25 years.  In 1998, through a community consultation process, agreement was reached to impose a sales tax to upgrade the streets and parks over a five year period. This program, now in its fourth year, is showing the benefits.  This contributed to the city being selected as an “All American City” in 2001. 

Being located in the heart of America the city is at the crossroads of major transportation connections.  The annual budget of the City is $185M.    

Risk Management in Independence

The City of Independence approach to risk management is to adopt uniform, recognised standards, to develop comprehensive records of infrastructure and to have a fully documented follow up system to complaints.  There is also State legislation in Missouri that limits public liability claims to $100,000. 

In addition the State of Missouri has a law of sovereign immunity that in 1977 was amended to bring in exceptions that resulted in the following current situation. 

“The City is liable for injuries on it’s property if, and only if, the property was in a dangerous condition which was caused by a City employee or about which the City knew or should have known, and the dangerous condition was such that it would cause an injury of the type suffered and did directly cause the injury suffered”. 

Examples

Williams vs City of Independence, 1996. While driving, Williams crossed the centre line down the wrong side of the road, through several yards and hit a culvert headwall eight feet off the road.  City liable?  No.  Injury not foreseeable.  Therefore no duty to warn. 

Feely vs City of St. Lois, 1995.  Branch fell from tree in park, crushing parked car and killing boy.  Tree’s decaying condition should have reasonably been apparent to the City.  Constructive knowledge of danger. 

Liability  

Trumbo vs Metropolitan Sewer District of St. Louis, 1994.  Child trips on crack on concrete sewer channel and drowns.  Liability?  No defect in the channel, no liability. 

The key to avoidance of liability is prompt remediation of dangerous conditions.

Department for Transport, London, England

About Department for Transport

The Department for Transport is one of 150 Highway Authorities in England and is responsible for setting the standards and maintaining the 10,000 km of motorways and trunk roads. The other 149 highway authorities, being local government authorities, are responsible for setting the standards and maintaining the 270,000 km of local roads.  

It should be noted that in England the terminology of “highway” applies to all roads, including motorways, trunk roads and local roads. 

Section 41 of the Highways Act 1980 places a duty upon all Highway Authorities to maintain the highways for which they are responsible.  The act also provides a defence for highway authorities in an action against them for failing to maintain a highway if they can prove that they had taken reasonable care to ensure that the highway was not dangerous for traffic.   

Risk Management – Department for Transport

In 2001 the Department for Transport, in partnership with the governments of Scotland, Ireland, Wales and local government associations developed a document  “Delivering Best Value in Highway Maintenance - Code of practice for maintenance management”.  The code is intended for use by all highway authorities in the United Kingdom.

The suggested recommendations of the code are not mandatory on authorities.  Authorities however have certain legal obligations with which they need to comply, and which will, on occasions, be the subject of claims or legal action by those seeking to establish non compliance by authorities, and the contents of the code may be considered to be a relevant consideration.  In these circumstances where authorities elect in the light of local circumstances to adopt policies, procedures or standards differing from those suggested by the code, it is essential that they be identified, together with the reasoning for the differences. 

The code of practice is essentially providing a uniform guide for the whole of the United Kingdom, and if adopted and adhered to by highway authorities, would provide consistency of standards for highway users and a defence against road related claims. 

One of the key objectives of the code is to encourage the adoption and regular review of a risk management regime in the determination of local technical and operational standards. 

As well as introducing the code, the Department for Transport is also facilitating a national road condition survey.  This has been achieved to date on a sample basis for all classes of road, and two years ago it was determined that the local road network was in the worst condition for 30 years.  To address this the government has allocated 31 billion pounds over a ten year period, which is an increase in road funding of 47 % compared to the previous 10 years.  The additional funds are to be allocated on the basis of need. 

The rationale is to bring the road network up to a reasonable standard, thus minimising ongoing maintenance costs, with a secondary benefit being reduced risk as a result of the improved condition. 

It is also proposed that by 2006 Treasury will require all highway authorities to value the roads and to make provision in their budgets for deterioration. 

It has been noted in the UK that fraudulent claims is on the increase, society is becoming more litigious and that lawyers are becoming more active in attracting customers.

Borough of Hammersmith and Fulham, London, UK 

About Hammersmith and Fulham

The London Borough of Hammersmith and Fulham is one of 33 local unitary authorities in the Greater London area.  It is quite small in area being only 6 square miles, but densely populated with a population of 150,000.  Approximately 8,000 businesses are located in the borough and the municipality is one of the largest employers, with a staff of around 6,500. 

The Borough has full statutory authority for the delivery of education, social services, public housing, environmental and technical services. The borough owns approximately 25% of the housing within the municipality. 

As a Highway Authority the Borough is responsible by statute for all of the roads in the Borough with the exception of the A4 and A40 arterial roads.  The total annual budget of the Borough is 450 million pounds. 

The Council includes 16 wards with two or three Councillors per ward.  There are a total of 46 Councillors who are elected on party lines, with 28 being labour aligned and 18 being conservative aligned.  Thus Labour holds the majority and controls the Council.  Around three years ago the Council moved to a cabinet system whereby the controlling party elects a leader and five deputies, who have the authority to establish policy. 

The full Council meets approximately five times per year but doesn’t set policy.  Scrutiny panels of Councillors are also established with particular portfolios, each serviced by a senior officer.  These panels are able to provide advice and scrutinise decisions of cabinet. 

Risk Management in Hammersmith and Fulham

The Borough of Hammersmith and Fulham has for the past eight years been developing policy, processes and work procedures for highway maintenance, with risk management being incorporated into the documentation. The Borough has adopted the Code of Practice for Highway Management as this fits within their processes. 

In conjunction with this the Borough undertakes a detailed investigation and analysis of all claims and defends those that it believes are defensible.  This has resulted in a reduced number of spurious claims. 

Issues relating to pedestrians rather than vehicles are more significant due the very high pedestrian volumes in the Borough.  For example the underground station of Hammersmith has a throughput of approximately 100,000 pedestrian per day. 

The Borough has in recent times instigated a sidewalk inspection program and has instigated agreements with service authorities in relation to issues within their area of responsibility, such as uneven pit surrounds.

Bristol City Council, Bristol, UK 

About Bristol

Bristol City is a unitary Council that was established in 1994 with the abolition of the County of Avon and creation of four unitary authorities, with Bristol City being one of these four.  Bristol City has a population of 400,000. 

The City has statutory authority for services including education, public housing, social services, environment, transport and leisure. 

Bristol City has responsibility for all roads within the municipality other than motorways and trunk roads, which come under the jurisdiction of the Department for Transport. 

Bristol City consists of 35 wards with two Councillors elected in each ward.  The labour party has the majority and has elected the seven member Executive (Cabinet) that has decision making power.

Risk Management in Bristol

Bristol accepts the principles of the code of practice for highway maintenance, however has issue with the Department for Transport proposal to make a determination on the road network condition by means of deflectographs.  Experience in the City has shown that failures are predominantly top down and the City places a heavy emphasis on periodic maintenance, with a comprehensive road reseal program.  The City also spreads its budget further by means of sprayed seals rather than asphalt overlays, which is uncommon in urban situations in England. 

Along with a maintenance program to maintain the network in reasonable condition the City provides training to staff to avoid situations leading to potential negligence claims. 

The City undertakes a detailed investigation and prepares a comprehensive report on all claims.  Where it is considered that negligence does not apply the claim is strongly defended.  This has resulted in a reduction of payouts in recent years. 

It is apparent that there is concern that the innovation being shown by Bristol is not being recognised by Central Government, and that it will limit their funding opportunities to attract the additional funding that has been made available on a needs basis.

The City is in quite a strong financial position and realises that other Councils require more Government assistance.  However, I think it is important for Government to recognise good performance and to develop a process for sharing of innovative practices.

Transport Research Laboratory (TRL) 

About TRL

TRL is an internationally recognised centre providing research, advice and solutions across the world for issues relating to land transport.  Paul Forman heads the investigations and risk management group that provides advice to a range of organisations and authorities, including Highway Authorities. 

The group undertakes accident investigations utilising experts in human behaviour, vehicles and highways. This information can then be utilised to provide advice on policy and system improvements.

Risk Management - TRL

TRL advice to highway authorities is to fulfil their generic duty to maintain highways in accordance with section 41 of the Highways Act, as failure to do so leaves the authority vulnerable to claims arising from members of the public alleging that the failure to maintain is linked to the cause and severity of the accident.  There is a requirement on the claimant to connect the accident with this duty. 

Section 58 of the Highway Act provides a special defence if the highway authority is able to demonstrate that it had taken “reasonable” measures in maintaining the highway.  Record keeping is thus absolutely crucial, as good records provide the building blocks for the defence of a claim.

 Reasonableness can be argued by:

Inspections and surveys are important, as you “ought to have known”.  Highway Engineers are paid experts and must make themselves aware of the condition of the assets.  Lack of money is no defence in civil cases, so if funds do not allow the repair to be undertaken, other measures such as interim warnings and/or temporary repairs to make the condition safe must be employed. 

The main areas of vulnerability for Highway Authorities in relation to risk management include:

Oxfordshire County Council, UK 

About Oxfordshire

Oxfordshire County Council has a population of 630,000.  It is home to Oxford University that was established in the eleventh century, and today has a student population of around 100,000.  Oxfordshire has a range of industries including tourism, vehicle manufacturing, with BMW manufacturing the Mini, high technology, medical and biotechnology.  Approximately two thirds of the land area is devoted to agriculture and the Counties planning strategy aims to retain the agricultural base.  The County is a significant employer with 16,000 employees. 

The County has 70 wards with a single Councillor representative from each ward. The Councillors are elected on party lines and the current make up is Conservative – 26, Liberal democrat – 19, labour – 24, green – 1.  A cabinet, or executive, of nine members is elected from the conservative/liberal democrat factions, who are in the majority, and this executive has authority for establishing policy.  Decisions of the executive can be reviewed by five scrutiny committees. 

Oxfordshire operates under the traditional local government model and there are five District Councils and 317 Town and Parish Councils within the boundaries of Oxfordshire County, each with their own elected representatives. 

The District Councils generally have responsibility for functions such as environmental health, housing, leisure & recreation, planning applications and waste collection. 

The annual expenditure of Oxfordshire County is 405 million pounds.  Income is derived predominantly from Council property rates and business rates, Central Government support grant and other specific government grants.  The Council rates are distributed on a proportional basis to the County, District, Town and Parish Councils.  Oxfordshire County has responsibility for all local roads in the County except those in the Oxford City District. 

Risk Management Oxfordshire

Oxfordshire has developed a policy manual for highway maintenance and is developing processes and practices to accord with the code of practice. This is the third version of the code, which is less prescriptive and provides highway authorities more tolerance to establish standards that reflect their particular region or specific conditions. 

In recent years highway funding has come under pressure from other funding priorities and particularly social services and education. It has been necessary to cease maintenance on some minor roads and to place appropriate signage warning motorists of the deteriorating condition. 

Sidewalks had been neglected for many years and an analysis was carried out and report prepared indicating a substantial cost to bring the paths up to a reasonable standard.  A decision was made not to spend this money as there were higher priorities for funding and the risk was determined as being low. 

The code of practice provides sufficient flexibility for highway authorities to make these decisions as part of their policy development.  The risk was assessed as being low due to the low claims history.  It seems that the community has accepted the deteriorating condition of the paths, which has been occurring over a long period of time. 

I believe that the approach is short sighted and highlights the focus on risk management to the detriment of asset management.  The development of an asset management plan for the footpath network, with community input, could determine the needs based on usage, linkages, growth, etc; identify what paths could be retired; the need for new paths; a prioritised long term rehabilitation plan, etc.  This would also result in risk management being addressed in a more comprehensive manner.

CONCLUSION

The legislative framework varies in each of the countries visited, and in the USA there can be significant variations from State to State.  Risk management is a high priority in all authorities visited.

Some of the key actions taken by authorities to minimise public risk in the management of infrastructure include:

·        Incorporate risk management into the Council’s strategic plans and corporate plans.

·        Develop sound, achievable policy that is linked to the organisation’s strategic plan.

·        Ensure funding priority is given to absolute duties before spending on discretionary items.

·        Ensure that management systems and processes are capable of delivering on policy.

·        Develop operational frameworks and procedures that support policy.

·        Demonstrate that prioritisation of works is based on adopted policy.

·        Maintain a detailed inventory of the assets and knowledge of the asset condition.

·        Develop and diligently implement processes to inspect and report on notified issues, including all action taken to make safe and repair.

·        Ensure prompt remediation of unsafe conditions. 

It is apparent that the Victorian State Government is proposing a similar model to that in place in the UK.  The Bracks Government has recently announced that it will be invoking the Transport (Highway immunity) Bill to temporarily reinstate the “highway immunity rule” to protect Councils and other road authorities from claims for damage from road users.  Another bill to cap general damages payouts will also be introduced, legislation that is in place in a number of American States. 

The State Government will then, in partnership with the MAV and Local Government, develop a new road management framework.  This will include the development of statewide principles for road management and the requirement for Councils to develop road management plans to address road classifications and maintenance & repair of roads, taking into account local needs and resources. 

Based on the limited experience in the UK, with a similar framework, it is expected that the benefits of this model would include:

·        Development of consistency in road classifications and in road standards for the respective classifications, whilst retaining reasonable diversity consistent with local choice.

·        Consistency in approach to collection, processing and recording of road inventory and condition information.

·        Development of regular reviews of policies for road maintenance and of the risk management regime in the determination of local technical and operational standards. 

The UK code is founded on the key principles of “Best Value”, being that services should be based on the needs of users and the community, rather than the convenience of the service provider. 

It is apparent, from the authorities visited, that risk management is not necessarily linked to asset management, and that the advantages of developing a comprehensive long term asset management plan are not well recognised.  Approaches are generally based on establishing policy, processes and procedures to minimise exposure to risk. 

All authorities indicated that more funds are required to adequately maintain their infrastructure, however there are strong competing demands for funds in areas such as social services, health, education, etc, which is no different to what we face in Australia. 

As Engineers responsible for the management of the community assets we have a responsibility to ensure that these assts are managed effectively now and into the future. 

I believe that the non feasance immunity, while providing some protection from litigation, has not been conducive to proper forward planning in relation to road infrastructure, and has allowed policy makers the discretionary right to divert necessary funds to other programs.  We should not be lulled into a reliance on the Victorian Government proposal to temporarily reinstate non feasance protection. 

The opportunity is with road authority Engineers across the State to take a proactive approach to educating the public and politicians on the real needs for our road infrastructure. 

This can be achieved by Local Government working with the MAV and State Government to develop comprehensive asset management plans for their respective road networks.  By working together uniformity can be achieved in relation to road classifications, maintenance standards, condition audits, etc. 

If Local Government is prepared to embrace this on a united basis, rather than treating it as a minimalistic exercise to satisfy State Government legislation, the benefits could be quite significant.  Road authorities will have documented plans of their road assets that demonstrate the long term maintenance needs.  This can be communicated, along with the funding requirements, to the public and to politicians, based on factual information and well researched analysis, rather than perception.

In my opinion the implementation of asset management plans will clearly result in an improved risk management regime on a more sustainable long term basis. 

In short, the current situation has provided an opportunity for road authority Engineers to work cooperatively with State Government, and to influence the outcomes of the long term management of our road systems.