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RISK MANAGERS MUST PREPARE FOR FURTHER COURT CASES

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The plethora of recent court cases which touch on the duty of care of the local authority, the breach of that duty ...
The plethora of recent court cases which touch on the duty of care of the local authority, the breach of that duty and resultant right to damages are a major concern for local authority risk managers. This is one of the most difficult risk management areas as in many cases decisions need to be taken on a global scale.

In the successful claim by the insurers of Digital Equipment against Hampshire Fire Service, the court established that the fire service had a duty of care regarding the attendance at premises and the checks which need to be done. The case has encouraged local authorities to review indemnity limits under their public liability policies as a first step. Risk managers need to think beyond the particular circumstances of the case, however.

The solicitors involved will obviously urge other fire insurers to look at the possibility of recoveries in the future. Circumstances involving reignition or faults with sprinkler systems will be scrutinised. Insurance officers dealing with fire service claims which have already occurred should review incidents and files and ensure they have sufficient documentation if a claim is made.

In future, the courts could be deciding on situations where the fire service had a duty of care and decisions were made on the fire site which would not appear to be correct with hindsight. The number of cases on the court records provide some reassurance that in most cases judges will feel that wrong decisions do not amount to negligence.

Risk managers should discuss these aspects with the fire services and ensure that training in these areas is complete and that risk assessments are carried out for all possible scenarios. Generic risk assessments are possible for most emergency situations and these need to be available if the fire service is criticised.

Risk managers have to assume there is a duty of care and that a claim could materialise if this duty is breached.

Most risk and insurance managers will have breathed a sigh of relief after X v Bedfordshire but it is probably too early to say that all such claims will fail. There was obviously a duty of care imposed on social services in this case to look after the child involved. But the judge decided that while there was a duty of care and this had been breached, the Children Act 1989 does not allow for the injured parties to pursue a claim in the civil courts and to obtain damages.

The remedy as agreed in the House of Lords is judicial review or public inquiry to ensure these type of incidents do not recur. However, in certain circumstances judges might find in favour of the claimants.

Again it is important for risk managers to speak to social services departments, to obtain the necessary documentation on the procedures involved and to ensure staff have been trained.

Some cases heard with the Bedfordshire case give some cause for concern, however. The defendants were trying to get the actions struck out for want of a cause of action. But in regard to the education cases, the House of Lords decided there was a cause of action.

The education department had a duty of care as far as possible to educate the children involved. While the specific cases concerned education psychology services and so on, such cases will soon be tested in the courts.

A bizarre situation could be envisaged in which two cases are heard together. In the first, parents might allege that the child involved was educated in a special school and had suffered for not being part of the community. In a second case, parents might allege that a child who was educated in a mainstream school did not receive sufficient supervised one-to-one education.

Risk managers should again speak to education departments and obtain policy statements on the education of children with special needs in preparation for scrutiny by the High Court.

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