Roger Hamer

Interim Chlef Executive

Our Ref PJG/LG

Your Ref

Date 11 October 2017
Please ask for
Direct Line 0161 253 5102
E-mail

HM Coroners Court
Coroner's Service,

Phoenix Centre

L/Cpl Stephen Shaw MC Way
Heywood

OL10 1LR

Sent via email to [a

Dear Sirs

Inquest touching the death of Roger Hamer (deceased)

COUNCIL \Y

A Regulation 28 Report to Prevent Future Deaths was sent to Bury Council dated 21%
August 2017 following the investigation into the death of Roger Hamer which concluded at

the end of the inquest on 11" August 2017.

The response set out below seeks to address the Coroner's concerns raised in Box 5 as

follows:

1) Bury Council, as Highway Authority, ensured that their procedures and systems

of inspection were in accordance with best practice guidance as set out within
the Well Maintained Highways — A Code of Practice for Highway Maintenance
‘Management 2009.

Highway Inspectors during the course of safety inspections and when
responding to specific complaints are trained and instructed to undertake an on-
site risk based assessment of any safety danger which may give rise to a risk of

injury.

All identified safety defects giving rise to a real source of danger to reasonable
users of the highway would be recorded by the highway inspector on to a
handheld device which identifies the nature, location and type of defect to
enable the repair team to easily identify the repair when an order is raised.

For operational and safety issues not all safety defects identified in the
carriageway would be measured as this in itself would raise risk management
safety concerns for the highway inspector who may be faced with oncoming
traffic. Highway inspectors using their experience of identifying safety defects
would use their on-site judgment in assessing any safety defect and order a
time response repair accordingly.

Electronic or fax service of Legal documents is not accepted

Town Hall, Knowsley Street, Bury, BL9 OSW
www. bury.gov.uk

Bury | Prestwich | Radcliffe | Ramsbottom | Tottington Whitefield

2)

Due to the technology requirements which would be required and the storage
facilities for data, photographs of defects have not previously been taken.
There is no specific guidance with the Code of Practice that this was deemed to
be good practice or a requirement.

The Jury in their narrative recorded that accurate measurements of each defect
and use of spray paint and pictorial evidence are only used for insurance claims
and not all defects identified. That is the case in insurance claims in order to
secure and preserve available evidence which are requirements for the
purposes of establishing the nature of the defect and where measurements of
defects are helpful in order to assess whether a particular defect would be
deemed to be a real source of danger as a matter of law.

Ail safety defects identified in the footway are measured if borderline with
industry standard intervention levels of safety defects or defects may be visibly
obvious to represent a danger without the need to measure a defect during
safety inspections. Appropriate repair orders are raised to allow the repair
teams to respond to remedy and repair safety defects within timescales which
are based on and dependent on the levei of risk posed by a particular safety
defect, given its location and use etc.

Each Highway inspector is assigned an area in which they operate and carry
out safety inspections to scheduled inspections or in response to specific
enquiries from members of the public.

Bury New Road, Ramsbottom, was subject to regular monthly safety
inspections which was in accordance with the recommendation of the Code of
Practice. Given the regular frequency of safety inspections being undertaken
on this highway, the Highway Inspector was essentially monitoring and
assessing the condition of the highway in order to ensure that there were no
safety defects which gave rise to real source of danger.

It is not accepted that the lack of images or measurements of the pothole
restricted the Highway Authority's ability to effectively supervise and monitor the
highway inspector or did not allow it to comply with its statutory duty under the
Highway Act 1980 to ensure that they had taken such care as in all the
circumstances was reasonably required to secure that part of the highway was
not dangerous for traffic.

Due to investment in the highway maintenance procedures and IT systems,
highway inspectors now routinely take photographs of defects giving rise to a
real source of danger. Repair crews also take photographs prior to and post
repair.

The Highway Authority does not paint markings around potholes especially in
the carriageway. As identified above this is for reasons of safety of the highway
inspector who would otherwise place himself in a position of danger caused by
traffic.

Paint markings are not used to highlight defects to users of the highway. If they
were historically used then this would have been to allow a pothole raised for
repair to be identified by the repair team. The need to mark defects is no longer

3)

4)

necessary given two factors, namely the use of handheld GPS devices which
co-ordinates the exact location of the defect requiring repair and the repair
response time when safety defects are identified using the risk based matrix for
repair.

Given the speed at which vehicular traffic uses Bury New Road, Ramsbottom,
the Highway Authority contend that markings alone would not have been
sufficient to highlight the presence of the pothole to Mr Hamer.

If a safety defect is identified to represent an imminent danger to users then
Highway Inspector can order emergency repairs requiring repairs within 2 hours
or 24 hours dependent on the nature of the risk.

GMP investigates highway incidents and reports these to Bury Council by the
STATS 19 process. Any incidents linked to road defects (either condition or
layout) are acted upon as soon as possible.

The Council have acknowledged the need for a formal procedure to be
implemented for a follow up investigation following such notifications of
incidents from the GMP. It is proposed to implement a procedure by March
2018.

The DFT commissioned a report to review the current Code of Practice. The UK
Roads Liason Group published “Well-Managed Highway Infrastructure — A
Code of Practice” in October 2016. In addition, the Institute of Highway
Engineers provided guidance on risk and liability within the highways sector in a
publication “Well Managed Highways Liability Risk” in March 2017.

The emphasis and recommendations of the new guidance Code is for Highway
Authorities to implement local levels of service through risk based assessment.
There is a change from reliance on specific guidance and recommendations to
a risk based approach determined by each Highway Authority which involves
appropriate analysis, development and requires approval through the executive
process.

Highway Authorities are also required to collaborate with neighbouring
authorities in determining levels of service across boundaries.

The Code is not statutory but guidance only, based on Highway Authorities own
legal interpretation, risks, needs and priorities.

The Risk based approach of the “new code” will consider all road users
including the varying types of users including cyclists.

There is a recommendation that all defects observed that provide a risk to users
should be recorded and the level of response shall be based on the Highway
Inspector applying a risk based matrix to assess the likely impact of a safety
defect and the probability/likelihood of interaction with highway users. This is
an on-site assessment made by the Highway Inspector based on various factors
including location, the classification of the highway, the level of traffic that uses
or likely to use a highway where a safety defect is identified. The emphasis is
on locai discretion.

Bury Council in collaboration with the other 9 Greater Manchester Highway
Authorities, are seeking to agree an “Overarching Framework of Agreed
Principles” which would provide consistency of approach across the boundaries
on the following matters: frequency and classification of highways, the risk
based approach to safety inspections, the risk based approach to repair
timescales, the investigatory levels which would trigger the Highway inspector to
apply the risk based matrix for assessing the risk.

Given the basis of the risk based approach for safety inspections, Highway
Inspectors would have on-site discretion to identify safety defects which do not
meet the investigatory level, applying the risk based criteria and order repairs
where necessary taking into account various factors including pedestrian
volume, traffic sensitive routes, accident data, character and traffic use and
location and positioning of the safety defect.

Although some general guidance can be given on the likely risk associated with
particular defects, on-site judgment will need to take into account of particular
circumstances.

All Highway Inspectors are scheduled to undergo specific training and
competency checks to ensure that they understand how to undertake their role
under the new Code of Practice.

The Highway Authority aim is to ensure consistency of approach in application
of both the current and the new Code of Practice. The new risk based approach
and specific training of inspectors on their role in accordance with the WMHI
Code of Practice should allow the Highway Authority to apply a consistent risk
based approach where the reasons for taking specific decisions will be
evidenced. There will be regular evidence based reviews of the new Code of
Practice and monitoring.

Safety inspections are designed to identify all defects likely to create danger or
serious inconvenience to users of the highway network. The risk of danger is
assessed on site and the defect identified with an appropriate priority response.

Long term planned maintenance schemes in conjunction with safety inspections
are undertaken by means of condition surveys, which are primarily intended to
identify deficiencies which if untreated, are likely to adversely affect long term
performance, serviceability and safety.

It is recognised that the loss of life is a tragedy in any circumstances and the Council are
focused on ensuring that there are lessons leamt from such incidents and that their
highway network is as safe as reasonably practicable for road users by managing the
presence of any safety defects on the highway.

Yours faithfully

Interim Chief Executive

From the Secretary ofState
The Rt Hon. Chris Grayling
D tm t Great MinsterHouse
I I 33 Horseferry Road
for Transrort London
I” SW1P4DR
Tel: 0300 330 3000
Peter Sigee
Web site: www.gov.uk/dft
Assistant Coroner
Greater Manchester North Our Ref: MC/204663
Coroner’s Service
Phoenix Centre
‘
L/Cpl Stephen Shaw MC Way
Heywood
0L10 ILL
Dear Mr Sigee, 20 September2017
Thank you for providing me a copy of your report into the death of Mr Roger
Hamer.
I was very saddened to hear of the circumstances leading to Mr Hamer’s
death. The Department for Transport considers the safety of all road users,
including cyclists, a priority. The Government is providing just under £6 billion
from 2015 to 2021 to allow local highway authorities in England, outside of
London, to improve the condition of local roads across they are responsible
for. In addition, we have topped this funding up with an extra £250 million
specifically to tackle the blight of potholes.
However, as you will be aware, local highway authorities, in this case Bury
Council, have a duty under Section 41 of the Highways Act 1980 to maintain
the highways network in their area. The Act does not set out specific
standards of maintenance, as it is for each individual local highway authority
to assess which parts of its network are in need of repair and what standards
should be applied, based upon their local knowledge and circumstances.
Central Government has no powers to override local decisions in these
matters.
That said, the Department endorses a code of practice, issued by the UK
Roads Liaison Group of which we are a member. This code of practice
provides guidance to highway authorities on how to maintain and manage
their highways: http://www.ukroadsliaisonqroup.orcj/en/utilities/document
summary.cfm?docid4F93BAl 0-D3BO-4222-827A8C48401 B26AC
In accordance with Section 41 of the Highways Act 1980 and the code of
practice, it is for local authorities to decide and determine the dimension of a
pothole as a basis for their decision-making. This could include adopting a
risk-based approach where a highway inspector makes a judgement. Most
authorities adopt an approach that combines consideration of both the
dimensions and the risk.
I hope this letter has been helpful.
Rt Hon Chris Grayling MP
SECRETARY OF STATE FOR TRANSPORT