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By Caroline Elson

May 14th, 2020

Increasing occurrences of extreme weather events may mean more claims for Councils

Flooding


The claims risk

In November 2019 record breaking rainfall in South Yorkshire led to a number of unprecedented floods. In February storms Ciara and Dennis resulted in storm damage and brought flooding to South Wales, the West Midlands and Cumbria. In Hereford the Wye river was the highest on record.

Councils need to consider whether they have effective risk management strategies to minimise their exposure to claims.

The legal principles

Causes of action arising from flooding events are likely to focus on nuisance, negligence and breach of duty:

Rylands v Fletcher (1868) – in this historic case there was an escape of water from a reservoir onto neighbouring land. It was established that a landowner may be liable if water is artificially collected on the land, if the course of a natural stream is altered, or if the escape occurred outside normal and proper use. Under these conditions the owner or occupier is strictly liable, irrespective of negligence, for all damage which is a natural consequence of its overflow.

Points to note

A council will not normally be liable for a flooding event, providing it flowed onto a claimant’s land or property naturally. For a claim to succeed, the claimant has to show that the defendant’s activities amounted to a `non-natural’ use of land, but they do not have the burden of proving that the defendant was at fault: this is for the court to determine.

Top tips to deal with flooding and drainage claims

  • As a starting point, try to identify the cause of the flood.
  • Consider whether the claim can be shared with other parties, including: landowners, occupiers of land, water undertakers, the Environment Agency or contractors.
  • Consider expert evidence on causation to narrow the issues at a very early stage. For example, meteorological evidence may assist in demonstrating the extent of the extreme weather.
  • Ensure flood prevention schemes are being operated effectively.
  • Keeping records to identify and map well known flood risk areas will assist the authority to demonstrate the risks have been considered and assessed, managed and monitored. Also, never override old documents and save as ‘new’ as this can prove to be an effective audit trail.
  • Keep records of any preventative measures taken when flood warnings are issued by the Met Office and the Environment Agency. If a flooding event occurs, document the response, for example, signposting people to flood products such as sandbags and other defences, drying out facilities, and managing road diversions.
  • Consider adapting systems of maintenance and inspection for drainage to ensure these are able to sustain and withstand the changing weather conditions.
  • Document your systems of maintenance and repair of drainage systems, to include gully cleansing records. Don’t forget to date the documents.  

Under common law, all trees within the highway, whether they were planted by the council, a third party or are self-sown, are the responsibility of the highway authority.

Drainage


The claims risk

Blocked or damaged drainage systems can lead to pooling water on the highway, which may cause damage to the highway or result in accident. Further, it may lead to water flowing onto adjoining property causing damage to land or buildings.

The legal principles

The highway authority owes a duty pursuant to Section 41 of the Highways Act 1980. Case law tells us this duty includes the maintenance and repair of highway drainage. However, it is important to note the duty does not extend to improving the drainage or installing drainage where none exists presently.

In Burnside v Emerson [1968] this case the claimants were driving along a main road during a torrential rainstorm. A car coming from the opposite direction ran into a pool of storm water across the road. Although it was found the highway authority had installed a good drainage system, it had not been maintained. The highway authority was responsible as the failure to maintain the drainage system had led to the build-up of surface water.

In Department of Transport, Environment & The Regions v Mott MacDonald Limited, Amey Mouchel Limited and Cornwall County Council [2006] three road traffic accident claims arose as a result of standing water on the highway due to drains blocked with silt, debris and vegetation. The Court of Appeal stated the drainage system was an intrinsic part of the design of a modern road. As a result, the statutory duty was not restricted to the ‘surface’ and maintenance extended to the ‘structure and fabric of the roadway’. The highway authority was found to be liable for failing to maintain the drains.

Point to note

A storm which temporarily and suddenly floods a road, despite a normally effective drainage system, is unlikely to lead to a finding of liability on behalf of the highway authority. However, as the case law above suggests, liability may attach where a stretch of road persistently floods during wet weather due to blocked drains. The highway authority can still defend these claims if they can evidence a Section 58 defence.

Storms


The claims risk

High winds and storms can cause council trees to become unstable and pose a danger to members of the public and road users. In some cases, the consequences of falling trees can be fatal. The types of civil claims that arise may include property damage and personal injury.

The legal principles

The duties arise under common law negligence, the Occupiers’ Liability Acts and the Highways Act 1980.

Councils must take reasonable care to ensure that all visitors to land owned and/or occupied by them are reasonably safe.

Under common law, all trees within the highway, whether they were planted by the council, a third party or are self-sown, are the responsibility of the highway authority.

The courts expect occupiers to undertake regular inspections of trees that (due to their location) could place people or property at risk.

In Cavanagh v Witley Parish Council (1) D Shepherd (2) (2017) the Claimant’s vehicle was damaged as a result of a tree falling across a road. The land was owned by the Council and inspected every three years. The roots of the tree were extensively decayed. The court found that the tree was on a busy public road and in a high-risk position. It required regular inspection - more frequently than every three years. It was said that a two year inspection cycle would have been reasonable.

Additional inspections following storms or severe weather events: consider undertaking emergency checks following severe weather or storms for those trees in areas of high public use. However, be mindful of carrying out inspections alone, consider lone working in such conditions.

Obtain weather reports: it will be important to consider whether the fallen tree was due to high winds or extreme weather.

Record-keeping: documentary evidence is crucial to defending claims. Types of documents the court expects to see includes; tree maintenance policies, detailed and accurate contemporaneous records of inspections, surveys, repairs and maintenance.

Climate change and adverse weather is an ever-present and ongoing challenge to resources. Councils need to be mindful of what steps to take to manage the risks, and what processes should be in place to put them in the best position to defend claims. Evidence is also key to defending any claims.

Top tips for dealing with tree claims

Tree maintenance policies: have a policy which sets out the regime for planting, maintaining, surveying and protecting trees.

Tree management plan: make sure the plan is updated regularly and well documented. Include a tree inventory as part of the plan.

Surveys and inspections: prioritise inspections based on the risk a particular tree poses and consider usage zones to dictate the frequency of inspections. Inspections should be undertaken by a trained arborist or expert. Timing of inspections may be key. Routine inspections are best undertaken during autumn when signs of decay or disease are most visible.

Risk assessment: a risk assessment should consider:

  • The location of the tree
  • The scale of potential harm relating to people, buildings, and vehicles
  • The nature and type of any damage that could occur
  • What practicable steps are in place already and could be taken to safeguard the tree?
  • What is the likelihood of the tree falling? Is it old and diseased or exposed to high winds? What is the age and condition of the tree? Some trees and species are better able to withstand decay than others.
  • How often should it be inspected?

Top tips on storm claims was published in Spring 2020 stronger, ALARM's member journal. ALARM is a membership organisation run by members, for members, supporting risk professionals that support our communities and citizens. For more information, please visit alarmrisk.com.

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