Risk, Liability and Designers

why is it so difficult to get anyone to try something radical on the roads?

It is the job of an engineer to take ideas or concepts and to come up with ways to make them work. It is also the job of an engineer to be able to balance the risks created by the options they generate. So, this being the case, why is it so hard to get something new tried out?

In my post about not blaming engineers all the time, I explained a bit about the training and experience needed to become a professional engineer and perhaps more importantly, how to stay on top of the game. The problem is that all too often we end up reverting to type and hitting the books - engineers do like to See Where It Is Written. So, what it out there to guide and inform us?

It all starts with The Law. For roads, highways, streets etc, there are a few pieces of legislation that engineers should be aware of; indeed campaigners and activists would do well in researching some of this as it will be quoted when they are told something cannot be done or must be done a certain way. I would warn you that some of it is exceedingly boring, but nobody becomes a lawyer for fun! 

There is primary legislation (Acts) such as the Highways Act 1980 which essentially sets out the powers and duties of highway authorities. Powers are things they might wish to do and duties are things they have to do (there is more, but it is oh so dull!). This act essentially allows the highway authority to adopt, improve and a control a highway, but makes it responsible to maintain. For those wanting to try a bit of clever engineering, there are powers to build cycle tracks, footways, humps, traffic calming, traffic signs - the list goes on.

There is also the Road Traffic Regulation Act 1984 which allows highway authorities to regulate and control traffic (often using Traffic Regulation Orders - TROs). It gives powers to restrict traffic from using a road, sets speed limits, allows pedestrian crossings to be built, install bollards, install traffic signs etc.

The Traffic Light Tree which used to be on the
Isle of Dogs in East-London - probably not in
compliance with the TSRGD2002!

Then there is secondary legislation (Regulations) which set out how things should be done. So, while the RTRA1984 allows highway authorities to install traffic signs, the Traffic Signs Regulations and General Directions 2002 sets out what signs should look like and how they are to be used. For example, traffic signals will be red, amber and green and placed in the right order - no going off and having pink traffic signals you know! We also have the Zebra, Pelican and Puffin Regulations and General Directions 1997 which sets out how such crossings should be laid out and gives pedestrians priority over traffic where they are being used.

I should also mention the Highways (Traffic Calming) Regulations 1999 which define what traffic calming works are, how consultation should take place for their implementation and confirmation that they cannot be used to prevent passage by vehicles which could otherwise be lawfully using that road - such a restriction would be enacted with a TRO. The legislation is often flexible, it is just that some people blindly follow it without understanding it. For example, did you know that a pedestrian refuge or traffic island in the middle of the road does not need to have a keep left bollard? Well, it is true. the HTCR1999 leaves it up to the designer if such things are needed. 

Look Ma, No bollards or signs!

There are more Acts and Regulations, but the point I am making is that they alone set out the regulatory framework on how highways are managed, improved or operated and so as long as a design complies with the law, it is lawful (it might not be very good, or it might be crazy-weird!). 

Next, we have Guidance. This will be a document which sets out a suggested way of doing something. These are not a legal requirement, more a measure of best practice. The Department for Transport produces a series of "Traffic Advisory Leaflets" which contain guidance from government on how highway schemes could be designed or operated. The "Innovatory cycle scheme Manchester - Mancunian Way signalled cycle crossing" leaflet from 1989 is one such example. It basically describes a scheme where we have a busy junction operated by traffic signals where there is a significant ahead movement by cycle users, but a heavy left turn demand from traffic. So, the layout keeps cycle users to the left in a little kerbed "jug handle" where they wait for left turning traffic to stop. They can then move across and back into the ahead movement in a protected stop line are. They then move ahead with the traffic again.

Now, this layout does nothing for the multi-lane, on-road conditions for cycle users, but looks to be quite a clever arrangement to deal with the issue of a busy left turning slip road (I haven't used it myself, so cannot comment in detail) and as far as I can tell from Google, it must be still there. This layout will not be found set out in the legislation, but is an example of various things coming together for a scheme which must have been pretty innovative nearly 25 years ago.

Parliament Square - too much movement and not enough place? 

The industry also produces guidance. The Chartered Institution of Highways & Transportation (CIHT) published a guide called "Manual for Streets 2" in 2010 which builds on an earlier government and industry guide (not surprisingly called Manual for Streets). Now, I cannot reproduce MfS2 information because of copyright, but in essence, it is looks at the relationship between movement and place and how designs can be tailored for the circumstances - at one extreme, a motorway is for movement (of traffic) and at the other, a quiet cul-de-sac is more of a place (for people) of course, a busy high street can be both!

The problem with guidance is knowing if it is still relevant and not out of date. I think the 25-year old Mancunian Way leaflet is still relevant and be give an idea to someone wrestling with giving cycle users priority in a busy junction. MfS and MfS2 are also still relevant. But, some guidance is definitely not! Take "High Occupancy Vehicle Lanes" which, published in 2006. The idea of High Occupancy Vehicle lanes (HOV lanes) is simply that vehicles with more than 1 person in them get to whizz past all of the single occupancy vehicles stuck in the traffic jam. Very few schemes have been implemented and many are basically bus lanes which some cars can use as bus lanes on their own were not justified where bus services were less frequent. 

Leeds HOV - cycles are kept to the edge as they only carry one
person.

In my view, HOVs are a bit rubbish and do nothing to provide an alternative to sitting in traffic - their uptake by commuters relies on car-sharing which is fine if you are able to find someone in your area who is working near you. Still, Leeds City Council thinks their one is a good idea, but I am not sure how they measure "success".

Another interesting piece of guidance is the Guidance on the Use of Tactile Paving Surfaces. This is a bit old and there is a debate raging in the industry (well polite disagreement, we are not all ranty!) about whether or not it should be used. Basically, tactile paving is a compromise between people with affected mobility and people with affected vision. For example, people using wheelchair can find it really difficult to bounce up a kerb when crossing the road. By contrast, blind/ partially-sighted people find kerbs really useful in telling them where the roads are. The compromise is that ramps are provided at road crossing points which meet the road surface flush to assist wheelchair users, people who walk with sticks, people with pushchairs etc and tactile paving is provided so blind/ partially-sighted people can find the crossing point rather than being left to walk into traffic. 

Here is some tactile paving at Gants Hill. It allows people with
reduced mobility to cross and tells blind/ partially-sighted people
where the edge of the road is.

Urban designers, architects and "place making" experts have a dim view of tactile paving as they think it is ugly and not in keeping with their grandiose plans to pave city centres in Chinese granite. On the other hand there are engineers who have no idea what they are doing and make a right hash of it. As with the reasons for its use in the first place, there is a compromise. Actually, I think the 7 kinds of tactile paving could be reduced, but if you know what you are doing, I cannot see any major problem. In my view, it is more important that all people are given the opportunity to move around our streets than it is to help an architect win an award for a paving scheme. Interesting, the London Borough of Newham has recently had its corporate butt kicked by a judge for not following tried and tested guidance, although the judge was careful not to make the guidance law!

Then we have Standards. These generally prescribe how to do something, often in quite a lot of detail. Again, they are not backed up by law, but are often used to control how things are built. for example, depending on the amount of traffic expected for a new road and how soft the ground is on which it will be built, then the road construction will need to be of a certain thickness, made of certain materials and surfaced to specific tolerances - many such things are contained in British or European Standards and set out to make sure things conform - so tarmac has to have certain types of stone sizes in it, a shade of red paint will always be the same and so on. In many cases, Standards are used to measure the quality of something. They are also used for safety reasons; for example on motorways, slip roads are laid out in a certain way so that people leaving and joining the motorway can expect a consistent road layout.

In London, TfL has its "London Cycle Design Standards" which were published in 2005. In fact, these are not standards, they are guidance and so don't be fooled by what those publishing something call it. Again, they are not legally enforceable.

So, engineers have things they must comply with, things which advise them and things which they can measure things by. With all of this information, why aren't people being more radical in designing things on the road network? The problem is that many engineers worry about risk and liability. Risk is the likelihood of harm being caused to someone because of a design and liability is effectively the risk being sued or prosecuted for something that has been designed (whether an individual or an organisation). So this ends up with engineers looking things up in the legislation, guidance or standards and then starting to design, whereas they might be better of designing first and then checking the design against the legislation, guidance and standards.

This means that nothing changes and even if there are poor things set out in guidance, they are perpetuated by practitioners who feel safer going by the book. Of course, if an engineer is in the unfortunate position of being in court defending themselves or their employer, then heavy reference will be made to legislation, guidance and standards, but you can only break the law if you haven't followed legislation.

Highway Risk and Liability Claims is an interesting guide into what claims are made against highway authorities and how the authority can become liable. We are all familiar with the "no win, no fee" merchants who help you sue the local authority because you tripped on a broken paving slab, but what about making a claim because the design of the highway layout was poor? Actually it is trips and vehicle damage (pot-holes) which constitute the majority of claims either settled out of court or where damages are awarded. Criminal prosecutions are very rare because of the need to prove negligence beyond all reasonable doubt.

Is this poor design, or poor installation?

Aside from the general state of the highway, design claims tend to be where a road user is drawn into a trap. For example, at a sharp right hand bend, a sharp left bend chevron sign is confusing and could lead a motorist into a trap. Of course, the design would be at fault if this was shown on the scheme drawings and then only if someone missed the problem during the installation stage.

A great deal of the balance in judgements is whether or not the user was at fault or partly at fault and following the famous Gorringe vs Calderdale case, it has been held that the road user must be responsible for their own actions - "taking the road as they find" (unless there was a clear design fault of course). The essence of this case is that Mrs Gorringe drove too fast towards the crest of a hill she didn't know was ahead and then braked sharply hitting a bus. She contended that Calderdale Metropolitan Council was at fault not not painting a "SLOW" sign on the road. The case went all the way to the House of Lords where Calderdale were judged not at fault and Mrs Gorringe had a responsibility for her own actions.

How does this apply to innovation? Well, many highway authorities successfully defend claims for trips and pot holes because they can show that they have robust inspection regimes in place. For designers, there is a parallel whereby the designer(s) who follow a robust design regime will be able to foresee the implications of their design, balance the risks, show that they have engaged with end users and reach a decision based on sound judgement - in other words, they can "show their working".

Highway Risk & Liability Claims has a whole section devoted to design, but the most important part I think is the concept of the "golden thread" (yes I know it is management-speak) and I reproduce the text below;


Golden Thread – the aim is to align the design and the decisions made with national policy, the strategy and objectives of the council, and needs and wants of stakeholders.

Vision – both Manual for Streets, LTN 01/08 and Design Streets stress the importance of
having an overall vision. This will often be about regeneration and job creation, improving
health or inclusion, and sustainability. But the vision and the objectives and design that flow out of it will also be informed by an understanding of the character the place and its purpose:

Policy review – this is about being aware of the policies that affect an area, in their
full breadth, including the council’s corporate and community plans.

Context – this is about the setting of the site in question; how the area functions in
terms of movement and place; how and why has the area has developed? How the
place is used now and the basis of the economy. What makes an area distinctive,
including local materials or styles, and landscape? Where/what are the key
buildings, open spaces, destinations etc? Who uses it and how, who doesn’t use it
and why?

Consultation – the vision of members of a community as to how they would like to see their area develop can be valuable contribution, and there will be instances where continued involvement of the community will be important.

Objectives and purpose – the objectives and purpose describes precisely what effect the
scheme is required to produce in contributing towards the overall vision. In new
development this can be included in the Design and Access statement.

Design / Decisions – this is where the flair of the professionals involved come to the fore. It
is they who are in command of the full information about the site, and it is they who should
make decisions rather than subordinating their judgement to guidance which inevitably will not have been prepared with that particular site in mind. Designs should be worked up
where possible using simple 3D illustrations to help people visualise what is being
entertained.

Quality Audit – there are a number of different types of audit that can be undertaken. The most important at the design stage is to assess whether the design is true to the vision and has fulfilled the objectives and purpose. Where safety audits are undertaken they are one consideration that go to making a balanced decision. It is important not to become bogged down in a bureaucracy of self-justification. These steps should be kept as concise and productive as possible.


I am not suggesting for a minute that all schemes will need all the detail and I would also think that monitoring is a vital step - did the scheme work, did it achieve its objectives? The key is being structured in the design process and showing how decisions were made. The fear that something might go wrong is not a reason not to try, as long as things are dealt with logically, the designer will have the proverbial get out of jail card.

Proposed CS2 bus stop bypass.

Of course, I am interested in designing for walking and cycling and so how does this fit in with innovation in these areas? I have covered the proposed extension to Cycle Superhighway 2 before and I assure you that I have no scheme insider knowledge. But, how would the golden thread work here and what are the potential risks and liabilities?

Well, the vision will be to create a real change in provision for cycle users which is actually and subjectively safer. The policy review would link to the Mayor of London's aim to increase cycle journeys by this week's target by whichever year (OK, a bit of sarcasm). The context will be unashamed movement (of cycle users) with thought given to how other users might be impacted (such as pedestrians at bus stops). Consultation will aim to engage with all road users, but especially cycle users and perhaps more importantly, potential cycle users. Access groups will also be important here.

Objectives and purpose would be along the lines of provided a high quality, protected and continuous cycle track from A to B. Design / decisions will be the professional people foreseeing how the scheme will work, who will be impacted, how issues and risks can be mitigated and possibly an acceptance that motorised traffic will lose capacity (as a lane is being lost to traffic). There will be debate about cycle user/ pedestrian interaction at the bus stops. Quality audit will then look at things such as road safety and how the scheme has met it's objectives. If this type of process is not followed and designers rely on following guidance, then we end up with the rest of CS2 which can be lifted out of the 8-year old LCDS, but with added blue paint. 

What I have tried to explain in this post is that while we have to meet legislation, everything is up for debate and needs to be questioned, not only by designers, but by users. Of course, if CS2 goes ahead, there will be drivers who complain that the scheme has adversely affected them and they haven't been considered. Assuming a logical process has been followed, the answer should be, "well, we did consider you, but the objective was to prioritise cycle traffic and so I am afraid that you have been placed at a lower priority to cycle users". I guess it comes back to politics again as this is the type of statement which needs to come from the mouth of a politician as, yes, they are the ones who make the decisions...