Protecting Your Customers

Whilst all utility companies would like to protect there customers from harm if they could, this is not always possible or practical when it comes to apparatus in the highway or the customers own premises.

Recently utility companies, particularly those in the water sector, have reported an increase in the number of costly personal injury claims emanating from customers who have tripped slipped or fallen due to defective, loose or missing manhole/inspection covers. In an ideal world, utility companies would love to have the resource to routinely inspect each and every piece of apparatus, unfortunately this is rarely possible. However the increasing number of Claimant solicitors specialising in such claims seek to challenge that point of view.

Following the implementation of the private drains and sewers (PDaS) regulations in 2011 water companies also find themselves responsible for all ‘accessories’ such as manhole covers which provide access to shared sewers and drains. Whilst investigations may have identified the number and likely location of these sewers and drains, water companies may be wholly unaware of the existence of the inspection/manhole covers let alone have any idea as to when they were installed or what condition they may be in. Post PDaS water companies have experienced claims in which the householder or a member of their family seeks compensation for injuries sustained when tripping on either defective or raised manhole covers within there own gardens. Following investigation the cause of the cover sitting proud of its surround may prove to be the result of re-landscaping of the area by a former house owner or the customer themselves rather than initial poor fitting.

When it comes to apparatus located on a public highway, utility providers can rely upon the local highway authorities (County Councils) routine inspection of public highways and footpaths pursuant to their statutory requirement under section 58 Of the Highways Act 1980. The act and subsequent Department for Transport guidance requires highway authorities to inspect all public roads and highways on a frequent basis subject to category of use. However case law tells us that sometime defects are missed or cannot readily be observed by the usual drive by/or walk inspections operated by councils. In which case responsibility for any harm caused by a defect is usually shared by the utility company and the council.

However what if the apparatus is located in one of the 40,000 unadopted roads in the UK or, on private property? Clearly here there can be no reliance upon the highway authority as they are not obliged to inspect or repair the road. Whilst arguably the resident’s of the street in which the apparatus is located otherwise known as the ‘frontagers’ have an equal duty under the Occupiers Liability Act to ensure that lawful visitors along their stretch of road are kept free from harm, human nature as it is often means that defects are neither reported nor repaired.

Where manhole covers are situated on private property, an added difficulty, even if the utility provider is aware that it has apparatus on the premises, is in obtaining access. This will usually require the giving of notice and getting over the physical hurdles of gaining access, gates, dogs etc. where the householder is less than co-operative

So how can a utility company help protect its customers whilst at the same time guard against expensive claims? Reported case law generally supports the proposition that utility companies cannot reasonably be expected to routinely examine tens of thousands of such covers over large swathes of the country. Judges in dismissing arguments that utility providers should have in place a system of routine inspections have commented that such a regime “would impose a huge and quite unreasonable burden” and there is no need to employ “manhole scouts” just in case they fail.

Nevertheless utility providers should invest in resources to allow them to quickly respond and repair defects once reported by the customer or the council. This responsive regime may be usefully supplemented by asking their own employees to keep their eyes open and report problems whilst carrying out routine maintenance or investigations in any particular area. In order for such a system to be effective customers needs to know how they can check whether the apparatus belongs to a particular utility company, how and to whom to report a problem. Clear and readily accessible information on the provider’s website will assist for example “If there is a broken manhole cover on your private land call…. and we will come and check who owns it”.
In short in order to protect customers utility providers should have robust systems in place which they should ‘pressure test’ from time to time from the customers perspective: Is the information a customer needs clear and readily available? How quickly can you respond to reports and repair defects? Can you evidence that new or replacement covers are of good quality and properly installed? Do you have in place a system for renewal of apparatus within its life expectancy?

Noel Walsh, head of the water utility group, Weightmans LLP