Street Furniture

Street furniture is a common feature of our highways and unfortunately is something which is regularly damaged. By definition, it cannot be responsible for causing an accident and so there should be a liable party for its damage, but is the cost of repair or replacement recoverable as often as it should be? These costs can be problematic to recover if there is a dispute between Insurers relating to responsibility for a collision but even more so if there is some irregularity in the insurance arrangements around the responsible vehicle or driver. How many times has an attempt at recovering the cost of replacing street furniture been abandoned because of some issue between the policyholder and the Insurer about policy cover? In addition, stolen vehicles are known to regularly damage street furniture but are the costs involved being recovered? Why should a problem with policy cover leave the innocent local authority out of pocket? Any money recovered can then be put back into the budget and used for maintenance purposes.

This question was raised with Forbes by one local authority and as a result we sought to assist their efforts. The result, we have been advised by them, has been an increase of almost 100% in the recovery of the cost of replacing items such as pedestrian barriers and road signs for them.  In one particular case for a different authority a stolen vehicle caused damage which amounted to around £80K to repair. The matter was almost six years old and nearly out of time when it was referred to Forbes. After contract from Forbes the Insurer involved has agreed in principle to make payment subject to agreement on the costings.  These examples demonstrate the effectiveness of a through and systematic approach to this issue, as well as the impact provided by the involvement of solicitors.

There will be cases where recovery will not be possible but even though the Insurers may initially reject a claim there may still be a possibility of a recovery from them so we would recommend considering your options carefully before abandoning a recovery attempt. Often carefully worded pre-litigation letters can prove to be sufficient in the majority of cases to resolve the dispute without the need for legal proceedings and the subsequent expense that follows.

The problems experienced in terms of these recoveries may not however end there. The cost of repairing street furniture and crash barriers is generally calculated by reference to work done by the in-house workforce, or perhaps by outside contractors under terms agreed by means of a contract or tender. This may not be enough to satisfy the Court that the cost is reasonable and that figure may be capable of being challenged. The responsible party is liable to reimburse the reasonable cost of repair.

In two recent cases the lower Courts have taken the view that if a claim is brought for diminution in value of the damaged barriers/signs, and the figure submitted is challenged, as seems to happen on every case, then the Claimant must provide evidence of the reasonable cost of repair. Crucially, contractual rates are not regarded as evidence of the reasonable cost of repair. To do so has been deemed to be akin to allowing the Claimant local authority to set the market rates for such repairs.

 The issue bears resemblance to the case of Coles v Hetherton (2013) which related to the costs of repairing a motor vehicle. The Insurer in that case arranged for repairs to be done at a contracted figure but then claimed a different (higher) figure using documents with headings such as “Breakdown of Invoiced Costs”. The matter reached the Court of Appeal who found in favour of RSA by saying that the correct measure of damages was the diminution in value of the damaged vehicle measured by the reasonable cost of repair. The actual cost of repair was deemed to be irrelevant to the legal principle involved. The reasonable cost of repair was assessed by the cost the Claimant could have obtained on the open market: it did not matter that his insurer might have been able to obtain a better rate through its industry connections. Given that the repair of street furniture, signs and barriers is largely an issue only affecting local authorities or bodies such as National Highways the evidence of the market rate for such work may be more difficult to obtain than the motor repairs sought in the case above.

There have been cases where, as only the contractual rates were before the Court, the case was dismissed and nothing was recovered. It therefore follows that careful investigation of the repair cost incurred including the costs of the replacement equipment supplied and the labour costs involved as well as the costs involved in hiring traffic management equipment for the duration of the repair period all need to be presented to the Court in a manner which gives the Claimant the best prospect of a successful recovery.