Injured motorcyclist’s £250,000 damages claim against council dismissed

A judge in the Court of Session ruled that the pursuer had failed to prove that the defenders had acted negligently in failing to categorise the eroded surface as a “defect” which required repair.

Lord Pentland heard that the pursuer Peter Dewar sued Scottish Borders Council for damages arising from the motorcycle accident in August 2011.

The pursuer was riding his Pan European Honda ST 1300 touring motorcycle northwards on the A701 Moffat to Edinburgh road at about 2.30pm on the day of the accident.

At a point about one mile south of the village of Tweedsmuir there was a double or ‘S’ bend in the road for northbound traffic.

At the time there was a damaged area of road surface, some 15 to 20 metres in length, along the nearside edge of the northbound carriageway as one approached the right-hand bend, which continued to a point at about the apex of the first bend.

The pursuer’s motorcycle left the road at the end of or perhaps just beyond this eroded area and continued straight ahead onto and across the grass verge.

Its front wheel then struck a large stone concealed in thicker undergrowth slightly beyond the grass verge and the impact caused the motorcycle to come to an abrupt halt, throwing the pursuer from his motorcycle.

As a result of the accident he suffered severe injuries, from which he had not fully recovered.

The pursuer alleged that the accident was caused when he lost control of his motorcycle due to a “dangerous defect” in the road surface, which the defenders had “negligently failed to inspect, maintain and repair”.

He claimed that the eroded area constituted a “hazard” that gave rise to a “significant risk” of an accident to a careful road user and that the defenders were at fault in failing to deal with the hazard before his accident.

However, the defenders denied that they were at fault, saying that they had a “reasonable system” of road inspection and that the road was “properly inspected and maintained”.

While they accepted that there was some erosion of the carriageway surface at the roadside, they contended that it was “not of sufficient severity” to warrant repair under and in terms of their maintenance and repair policy.

The defenders’ position was that the road was not dangerous to a motorcyclist, so long as he exercised reasonable care.

The judge held that the “most probable” explanation for the accident was that the pursuer drove his motorcycle over the area of eroded strip, but he found in favour of the defenders.

In a written opinion, Lord Pentland said: “The preponderance of the evidence points towards the accident having occurred when the pursuer’s motorcycle drove over the area of eroded road surface, causing it to leave the carriageway. This seems to me to be the most probable explanation for the accident.

“As to the issue of speed, I do not consider that the evidence supports a finding that the pursuer was driving at an excessive speed or that he failed to exercise a reasonable level of care and attention as he drove round the first part of the ‘S’ bend in the road.

“These findings are not sufficient to allow the pursuer to establish liability, however. In MacDonald v Aberdeenshire Council 2014 SC 114 the Inner House held that for a roads authority to be liable, an injury must be caused by a hazard that would create a significant risk of an accident to a careful road user and the authority must be at fault in dealing with the hazard. The second part of these requirements means that the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it; the hazard must be apparent to a competent roads engineer.”

The pursuer did not advance any criticism of the defenders’ system for inspecting the road where the accident occurred and he accepted that the approach governing inspection and maintenance set out in the defenders’ plan was “entirely reasonable”.

His case was wholly based on the proposition that an inspection carried out on 19 July 2011 by the council’s roads inspector Kenneth Mr McCudden was negligent because he failed to identify the strip of eroded surface as a defect and therefore did not categorise it as such.

“In my opinion, the pursuer has not proved either of those key points,” Lord Pentland said.

He added: “In conclusion, I find that the pursuer has not established the critical factual issues on which his case depends; accordingly, he cannot succeed in the present action. I have great sympathy for the pursuer, who sustained serious injuries with lasting effects. In order to obtain damages from the defenders he must, however, prove that Mr McCudden acted negligently. On the basis of the evidence led before me, I am not satisfied that the pursuer has done so. It follows that I must assoilzie the defenders from the first conclusion of the summons.”