Cyclist injured in fall from bike due to road ‘hazard’ awarded damages after suing council for ‘negligence’

Lady Wolffe ) in the Court of Session held that the defenders were in breach of their common law “duty of care” owed to the pursuer over their failure to deal with the “hazard”.

The court heard that the pursuer David Robinson was one of a number of cycling club members who had set off from Edinburgh for a Sunday morning ride of about 65 miles on 1 December 2013.

The group were travelling towards Broughton Village from the south and approaching the small bridge over the Biggar Water, when the pursuer, one of two front riders, suddenly came into contact with a steel strip and then felt the handlebars being “ripped out of his hands” as he was thrown over bike on to the ground.

The purser contended that Scottish Borders Council, as the roads authority, were at fault because of the state of the road, namely, that he was injured as a result of his front wheel becoming trapped between two metal strips, and that the defenders failed to identify the hazard and correct it.

Quantum had been agreed between the parties, but the defenders denied liability.

The pursuer’s submissions on the evidence were that on the balance of probabilities, the cause of the accident was his front bicycle wheel coming into contact with the metalwork present in the northbound lane of the A701 at Broughton Bridge.

Counsel contended that the metalwork was a “hazard” in that, in its condition, it presented a “significant risk of an accident” to the pursuer, who had been proceeding with “due skill and care”.

It was argued that the defenders were liable in negligence at common law for their failure to deal with the hazard in that it was, or ought to have been, “apparent to a competent roads engineer/inspector on a reasonable visual inspection”.

The defenders admitted that there was a longitudinal metal strip on the bridge, which was a vertical differential movement joint between an old masonry arch and newer concrete deck widening constructed in 1990.

The evidence about the state of the road surface on the bridge revealed that at least some parts of these metal strips sat proud of the road surface.

Furthermore, there was a gap or small hole in the road immediately to the south, or at the start of, the right hand metal strip, which meant that a little more of that edge was exposed than would be the case if the rest of the tarmac road material had been filled in around, and up to, the level of these strips.

The only positive averment that the defenders made was that the metal strip “did not constitute a defect, or anything which the defenders as roads authority were under any duty to remove or alter”.

But the council did admit that they carried out work in about May 2015 to tarmac over the metal strip and grooves.

In respect of the pursuer’s evidence, the defenders argued that there was “no reliable evidence” from the pursuer as to the precise cause of the accident.

He had initially suggested his wheel had slipped but then later became more convinced that his wheel had been trapped, but the defenders said “he had not been watching where he was going”.

However, the judge rejected the defenders’ analysis that there was a difference in the pursuer’s evidence in his description of his bike “slipping” and the front wheel “trapping”, adding that she accepted the pursuer’s evidence “in its entirety”.

In a written opinion, Lady Wolffe said: “There was ample evidence about the physical state of the metal strips and the road surface where they were embedded. I also accept the unchallenged evidence of the particular risk the larger metal strip posed to two-wheeled road users by reason of its longitudinal alignment along the direction of travel.

“On the evidence, these features could pose a hazard in a variety of ways. The nature of the material and the longitudinal position of the strips posed a risk of a destabilising slip to two-wheeled vehicles. The gap between the two strips had the potential to catch or trap a bike wheel if it was sufficiently thin, and approached these at a similar angle.

“In short, I accept that the metal strips posed a hazard to road users by reason of these features I have described. It matters not, in my view, that the pursuer is unable to say precisely which of these features caused him to lose control of his bike in the way he described. I reject the defenders’ criticism of this aspect of the pursuer’s evidence.”

She added: “There is no foundation in the evidence to suggest that the pursuer should have seen the metal strips, or appreciate the hazard it posed, before he did. By then, it was too late. There was no suggestion or evidence that he was riding inappropriately in either speed or manner, having regard to the weather and road conditions.

“Accordingly, I find that the pursuer was travelling with due skill and care. It follows that I find that the state of the road surface at the bridge, and in particular the presence and position of the metal strips, posed a hazard in the relevant sense.”

“On the whole evidence, I find that the hazard posed by the road at this point, as described above, would have been apparent to a roads authority of ordinary competence using reasonable care,” Lady Wolffe concluded.