161228 CCTV Retention Letter

02/10/2019 @ 08:20
Subject: Securing & Retention of vital CCTV Evidence [04/10/2019 Response received – read more here]

Update of 12/2016 circular:

We regularly encounter ‘swerve to avoid’ incidents on our roads; collisions with roadside infrastructure, such as motorway barriers, that occur due to the negligent driving of another who subsequently fails to stop. The unfortunate driver taking evasive action is often disbelieved by contractors and Public Authorities but subjected to aggressive costs recovery on behalf of Highways England. CCTV is operated on many highways and monitored in order to detect interruptions to flows, such as collisions. This monitoring is undertaken by staff employed by contractors or Highways England.

Currently, we understand CCTV is seldom retained, often being disposed of within 7 days, upon the grounds of cost. We ask that this practice stop with immediate effect in relation to footage where accidents or incidents have been observed. The intentional destruction of this evidence, which is vital to the defendant, is highly prejudicial and indirectly causes disproportionately increased costs in the claims adjustment process.

As the Authority / contractor responsible for an area of our highways, often being the first party notified and attending an incident, it is obvious that you are in the best position to request the CCTV evidence within the short window of opportunity currently available. Failure to do so will put the potential defendant (driver, fleet or insurer) at a disadvantage compared with yourselves. We expect to have a real opportunity to present our case or challenge a claim against our client. It is unreasonable to expect a driver to seek the evidence within 7 days and often, by the time an insurer is aware of the incident, weeks, if not months, have passed.

We remind you (having written in late 2016 on the subject), we anticipate, where an incident occurs and the carriageway is monitored by CCTV, you will secure the evidence immediately and retain this where a claim or potential claim will arise.  We understand CCTV coverage is all the more prevalent following implementation of ‘Smart Motorways’.

In the absence of this data being retained, it should be the presumption that the onus of proof lies upon the claimant to prove that a swerve to avoid did NOT occur when the driver reports this fact. This would redress the current imbalance caused by the deliberate failure to retain highly relevant data at the time of the incident.

The evidence is also often required to establish pre-existing condition of the road and evidence of the extent of damage.

We look forward to receiving your response to the above request for a change in current protocol, which in our view would not incur significant cost and may in fact streamline the claims recovery process.

Yours faithfully,

Claims Management & Adjusting Ltd
Our Ref: A03A001/L540030

04/10/2019 Response received – read more here


From: Microsoft Outlook <MicrosoftExchange329e71ec88ae4615bbc36ab6ce41109e@claimsman.onmicrosoft.com>
Sent: 02 October 2019 08:20
To: Philip Swift
Subject: Relayed: Securing & Retention of vital CCTV Evidence

Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server:

  • Reardon, Tim (tim.reardon@highwaysengland.co.uk)
  • NSORC@highwaysengland.co.uk (NSORC@highwaysengland.co.uk)
  • TR430 (TR430@highwaysengland.co.uk)

 


Subject: Securing & Retention of vital CCTV Evidence

28/12/2016 – The following letter was sent to Highways England and their contractors:

Dear Sirs,

Securing & Retention of vital CCTV Evidence

We regularly encounter ‘swerve to avoid’ incidents on our roads; collisions with roadside infrastructure, such as motorway barriers, that occur due to the negligent driving of another who subsequently fails to stop. The unfortunate driver taking evasive action is often disbelieved by contractors and Public Authorities but subjected to aggressive costs recovery on behalf of Highways England. CCTV is operated on many highways and monitored in order to detect interruptions to flows, such as collisions. This monitoring is undertaken by staff employed by you or Highways England.

Currently, we understand CCTV is seldom retained, often being disposed of within 7 days, upon the grounds of cost. We ask that this practice stop with immediate effect in relation to footage where accidents have been observed. The intentional destruction of this evidence, which is vital to the defendant, is highly prejudicial and indirectly causes disproportionately increased costs in the claims adjustment process.

As the contractor responsible for an area of our highways, often being the first party notified and attending an incident, it is obvious that you are in the best position to request the CCTV evidence within the short window of opportunity currently available. Failure to do so will put the potential defendant (driver, fleet or insurer) at a disadvantage compared with yourselves. We expect to have a real opportunity to present our case or challenge the claim against our client. It is unreasonable to expect a driver to seek the evidence within 7 days and often, by the time an insurer is aware of the incident, weeks, if not months, have passed.

As of 01/01/2017, we anticipate, where an incident occurs and the carriageway is monitored by CCTV, you will secure the evidence immediately and retain this where a claim or potential claim will arise.

In the absence of this data being retained, it should be the presumption that the onus of proof lies upon the claimant to prove that a swerve to avoid did NOT occur when the driver reports this fact. This would redress the current imbalance caused by the deliberate failure to retain highly relevant data at the time of the incident. We look forward to receiving your response to the above request for a change in current protocol, which in our view would not incur significant cost and may in fact streamline the claims recovery process. Yours faithfully,

P. Swift
Director Claims Management & Adjusting Ltd
Our Ref: A03A001/L540030


It does not appear unreasonable for CCTV footage to be retained when:

  • the matter appears on an NCC operator’s camera
  • a charge is made for the operator and / or
  • the Authority or their contractor is seeking recovery of repair costs from the incident captured on CCTV