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Transcript of article for publication in Local Government Chronicle
Litigation Risk – A New Approach
The UK is in the grip of “compensation culture” with all its trappings - ambulance chasers, claims “doctors” and alluring “no win no fee” arrangements.
As large employers with plenty of risk-laden operations, local authorities are particularly vulnerable. But until now, little account has been taken of simple and inexpensive ways in which exposure to litigation, its costs and destructive repercussions, could be cut dramatically.
Robert Morton is a local government legal consultant who has spent fifteen years defending claims for personal injury. This experience led him to set up RIO Consulting, offering authorities a fresh approach to risk management.
He said: “The object is to put employers on the front foot by showing ways in which the legal system can work for rather than against them.
“To do this, we had to find a totally new and effective way to teach how claims could be avoided, when potential problems could be foreseen and what steps must be taken to limit damage.”
For example, Morton advises setting up a system in which all accidents are immediately and thoroughly investigated.
He explained: “If you start with damage limitation, virtually nothing is done at present, apart from making an entry in the accident book and completing a RIDDOR form. The Limitation Acts allow three years to make a claim, so you forget about it until a summons arrives in three years’ time. Just think how ridiculous that is!
“If you have a road accident, the police are called instantly, statements and measurements are taken on the spot, and a full report is prepared on which invariably any civil claim will depend. Can you imagine the police leaving it for three years before coming round to your home asking for a statement?”
He added: “Don’t forget that in the case of a child, he has until the age of 21 to make a claim - so you could have a five-year-old hurt in the school gymnasium suing the council sixteen years later! By then, teachers may have left, the accident book lost, and the school burnt down.”
Even complying with Health and Safety and having regular Risk Assessments won’t necessarily identify what could become weak spots if you ended up in court. A lawyer’s view of your day-to-day practices could be surprisingly different.
Morton said: “To the layman, the law can be intimidating. Witnesses are usually reluctant and afraid of personal blame, so they need bags of reassurance. I’ve often seen good staff left humiliated by aggressive and searching cross-examination about situations in which they truly believed they had done their best. How many times have I heard: ‘Why was I not taught this would happen to me? Why didn’t someone prepare us for this awful experience?’
“Compliance is essential, but it won’t reduce claims or protect you at court unless you learn how to apply an introspective approach, derived from our adversarial system. In practice this means teaching how weaknesses in everyday working systems could come under judicial scrutiny.”
RIO Consulting starts with a detailed look at the accident records of risk-prone departments, such as Education, Social Services and Surveyors. It identifies patterns of activity and factors common in claims, offering solutions to stop the cycle.
Morton continued: “We can then move on to provide two or three-day seminars for a particular department - or maybe for delegates from a variety of departments or different authorities.
“The talks deal with a variety of topics, some plainly introspective, such as barriers to learning and lateral thinking, and others, more practical, such as the value of risk, damage limitation and documentation.
“Central to our theme is communication. An effective risk management programme depends on freedom of access to information and advice between all levels of staffing.”
Morton also shows how claims can be inflated from humble beginnings. “For example, you could end up with post-traumatic stress disorder and clinical depression from a simple soft-tissue injury which would normally resolve within a few weeks.
“The bottom line is that no incident can be put away and forgotten because at some time - maybe years ahead - it will sure enough reappear in the shape of a summons.”