Let’s not take Sir Humphrey’s line

Wednesday 20th July 2011, 3:00PM BST.

From Philip Syvret.
I READ with concern the comments made by the Minister for Transport and Technical Services in relation to the proposition to amend current legislation so as to ensure that those who have the misfortune to be injured as a result of the poor state of roads and pavements can be compensated.

Your readers will recall that Transport and Technical Services are not presently required to compensate those who suffer injury as a result of the department’s failure to maintain or repair a roadway or pavement. This differs from the position in England and indeed the majority of Commonwealth jurisdictions which have adopted legislation so as to provide that where a person is injured in these circumstances the highway authority must pay compensation. Regrettably, it seems that the minister is seeking to delay similar legislation in Jersey.

In 2003 the Royal Court dismissed a compensation claim against the then Public Services Committee because of a failure to repair roads. The court acknowledged that its decision might not be regarded as satisfactory in modem times saying: ‘individuals who suffer damage through a failure by the Highway Authority to repair the highway should be entitled to recompense subject to appropriate safeguards for the Public or Parochial purse’. The court then invited the Public Services Committee to consider reform. Regrettably until now nothing was done to advance that reform.

The minister now seeks to further delay the matter by suggesting a referral to the Jersey Law Commission. With respect to the minister the potential solutions before him are not ones which need the assistance of the learned members of the commission. The decision is instead a political one as to how to prioritise the application of limited financial resources. (In the event that TTS become liable for injuries arising from failure to repair they may in future spend money on repairs which otherwise would have been spent in other areas.

The allocation of the minister’s financial resources however is not something upon which the members of the commission will advise. It is instead a decision to be made by the States.

The minister suggests that introduction of legislation permitting claims against his department would lead to ‘the development of a local claims culture’. It is regrettable that the minister seems to accept the myth created by media that a compensation culture exists. Lord Young as recently as October last year in his report ‘Common sense, Common safety’ concluded that ‘The problem of the compensation culture prevalent in society today is one of perception rather than reality’ and that the many stakeholders who had contributed to his report agreed ‘the rise of a compensation culture is largely a myth perpetrated by the national press’.

My firm represents many clients each year who have been injured through accidents in widely varying circumstances. I have no evidence of claims being made fraudulently. In any event the States’ insurers invariably put up a robust defence to any claim where they consider liability does not exist or a claim is being exaggerated.

There are clear benefits to any business, individual or indeed a States body being required to compensate individuals for injuries which arise because of a failure to maintain premises, roads or pavements. While money cannot ever truly compensate for a permanent physical injury, it is the most satisfactory system that we have for achieving redress between a person who has breached a duty to take care of another and the injured person.

The threat of action will however act as a deterrent against the department’s failure to maintain roadways and pavements. While compensation will fall to be paid by insurers rather than out of the States’ purse, if there is a multiplicity of claims the minister will be called to account for his department’s failure to take action on repairs and the cost of administering claims.

I fear that it is concern in relation to this calling to account that is the real motive behind the minister’s response to the present proposition. The proposition simply asks the States to agree that appropriate legislation should be brought forward. Effectively that will act as an instruction to the minister to carry out research before referring back to the States with legislation that achieves an appropriate balance between compensation and the costs of repairs or administering claims.

In that excellent BBC comedy Yes Minister the way Sir Humphrey would dispose of or delay an unwelcome proposal would be to refer the matter to an inquiry. Constable Jackson correctly accepts that the proposition is, in his words, ‘laudable’.

I would invite the States Members to encourage the minister to take responsibility for making an early decision in relation to this matter rather than taking Sir Humphrey’s line and referring the matter to inquiries whether internal or external.

1
Tony

July 20, 2011 at 3:53 pm

Cut back on Ozoufs expenses & will have plenty to repair road/pavements

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2
Mark G

July 20, 2011 at 6:24 pm

While there will no doubt be a minority who would try and fleece this to the maximum if robust laws are in place then these can be weeded out.

What worries me is that i could be walking to work and a car hits a large pot hole, swerves and hits me my only claim will be against the drivers insurance when in fact it would be the TTS departments fault. This is not right that if you have a fair and just claim against the States, the States get let off.

What happens if a person is killed and the States are proved beyond doubt to be at fault?
Is there any other laws to cover such events?

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3
Toastedteacakes

July 21, 2011 at 9:22 am

This might not be such a silly proposal by TTS. It leads the way for compensation for victims of ash inhalation from the proposed la collette site.

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4
Thirtysomething

July 21, 2011 at 10:55 am

2, Mark G,

What worries me is that you could be walking to work and a car, who’s driver is not paying attention to the road conditions (as is required in order to drive) hits a large pot hole, which should have been seen, but the driver did not bother to look, or was too close to the car in front, or simply ignorant of their requirement to pay attention, looses control, swerves and hits you, that you feel that your only options are to claim against the drivers insurance or TTS, (instead of the driver for dangerous driving, driving with undue care and attention, etc) and in fact you feel somehow that the drivers stupidity is the TTS departments fault.

Accidents happen, but all accidents are due to stupidity. If just a momentary lapse of concentration when chopping onions means you cut a finger, its still a stupid mistake, If a car crashes because the driver is not paying the attention required to drive and assumes that its their right to have glass smooth roads with no obstructions (such as pedestrians, red lights or other cars), its the drivers stupidity.

Please explain how a third party such as TTS can be held responsible for peoples own ignorance or unwillingness to follow the safe and correct procedures when using the road?

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5
Mark G

July 21, 2011 at 9:14 pm

4. Thirtysomething

I was using this as an example but lets look at this in detail. I am walking to work minding my own business, Car drives down road and no fault to the driver who is driving with in the speed limit driving normally hits a large pothole, pothole causes puncture resulting in driver not been able to control the car correctly, mounts pavement and hits me. So your saying that this is the drivers fault? How? even if you say the driver is reckless the hole should not be there in the first place. If you drive around Jersey you will always hit a pot hole of some kind because the conditions of the roads do not allow you to react in time, thats not reckless.

But moving away from Pot Holes and moving to wards buildings. What if a tile or window drops off the tax office and hits you… are you reckless? should you have been walking on the pavement at the time the tile or window fell out? are you not going to seek compensation for time off work? what if it kills you?

The letter above refers to roads but this issue also effects other claims.

You did not answer my question of if a person dies as a result of the States mis-management or failure to ensure the safety of the public want other laws, if any, cover this?

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6
Thirtysomething

July 22, 2011 at 2:58 pm

Mark, Thanks for clarifying, unfortunately, even looking closer in detail to your example, I cannot see how the instance is “no fault to the driver”. Whilst driving within the speed limit is a requirement to use the road, it is one of many. Another would be to be aware of the road conditions. If the condition of the road was so bad, then the driver should reduce their speed to avoid damage to the vehicle and not speed up to the designated limit.

Whilst I cycle to and from work, I do drive in the evenings and on the weekends. I suppose that being a part time cyclist, I am more wary of road conditions as a small bump or dip is more (painful?) noticeable on two wheels than four, and even a couple of drops of oil on the road can cause problems when a car would ignore it completely. Even so, I do not feel that the roads in Jersey are in the bad state that some people make out, and I haven’t seen any potholes that have not been filled quickly on anything other than dirt tracks. Some minor bumps, fair enough, the one at Rouge Bouillon hurts my man bits on a bike but is not noticeable in my car, but these are easy to spot and slow down for or even avoid if there is room. Failure to do so is simply driving with undue care. To be fair, I don’t travel all the roads in this island frequently, so I may have missed some stretches which may be pitted with what may seem to be hydrothermal vents.

But the point is that a third party is being blamed for someone’s stupidity. In your example, The pothole was hit, because the driver was not paying attention, The puncture occurred because the speed travelled was in excess of the conditions of the road. Or even, the tire was in a poor condition, bald perhaps, and should have been replaced anyway. Nether the less, the accident was the fault of the driver, not a states department.

To stray from the topic, With buildings, its the owners responsibility to keep a building in good repair (and also have insurance, just like drivers should keep their vehicles in good repair and have insurance) so a stray tile is not in good repair, so the buildings owner is at fault.
But, if you saw that building and watch a number of tiles fall off onto the pavement in succession, to continue to walk beside it rather than going round the obvious danger, it is back to the fault of the person hit. The situation was obvious and can be avoided. Potholes from your example are an obvious artefact that can be avoided. Unless one springs up out of nowhere under your car…

To answer your question, Yes, If it is the States mismanagement, there are laws already in place. But the subject of the issue is that a law is not being introduced to encourage the ability to gain money from taxpayers for wilful stupidity and ignorance.
Drivers can try to blame the road conditions for causing an accident, but they were in control and should have taken precautions to avoid it in the first instance. Driving is a privilege with requirements attached, too many people feel its a right to drive and ignore the rules.

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7
Mona Lot

July 22, 2011 at 3:56 pm

All of the preceeding letters are spot on
The whole of the UK accepts responsibility for pot holes, so does most of Europe.
Another thing that could only happen Jersey.
The SOJ are regularly accused of copying everything that happens in the UK, true, but not when it does suit them.

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8
Mona Lot

July 22, 2011 at 4:00 pm

Sorry, left out a word, meant to say “not when it does not suit them”.

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9
Mark G

July 22, 2011 at 10:14 pm

Thirtysomething

You have really gone out your way to reply to my post and i think we need to agree to disagree as you are not going to budge on your opinion. I will finish off by saying that until its happens to you you will not understand what i am trying to communicate with my opinion.

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