Thomas Mitchell

Any death on Scotland’s roads is a tragedy, but the occurrence is even more tragic when the cause of death is avoidable. Maintaining Scotland’s roads is not an easy job; local authorities and Transport Scotland are burdened with maintaining endless miles with finite funds available.

The Roads (Scotland) Act 1984 confers powers and duties upon roads authorities. It sets out their obligation to users of the road network including “maintaining” the roads. Why then are so many accidents happening because of road defects?”

Scotland plans to spend £4.6 billion on Net Zero, Energy and Transport in 2023/24, so there must be sufficient budget to ensure the roads are maintained adequately and kept free from hazardous defects? Regularly we see roads authorities blame a lack of available funds for their failure to meet their maintenance obligations, but in my view, that is not a valid excuse.

In my opinion, there’s been a gradual deterioration of what was once a more proactive approach by many roads authorities regarding road repair. The austerity programme introduced by David Cameron’s coalition government of 2010 has a lot to answer for across many facets of society, but the cost cutting imposed has had a profound impact on the ability of councils to meet their maintenance obligations. Scotland-wide, there has been a move from proactive road repair to reactive repair. This has consequences for road safety and is reflected in the casualty figures resulting from road defects.

However, an enforced reactive policy does not result in cost saving. If a defect causes the death of a road user and negligence can be established, the cost to the local authority in paying damages to the bereaved family will greatly exceed the cost of repair in the first place. Furthermore, the loss of life is an absolute tragedy. We know it is the most vulnerable, two wheeled road users, that need better protection.

As a civil lawyer representing cyclists and motorcyclists killed or injured on Scotland’s roads, I’ve seen the attitude of roads authorities towards claims intimated against them for failing in their statutory duty to maintain the highway. Most deny liability at an early stage, maintaining they have a reasonable system of maintenance and inspection. This attitude of almost universal early denial leads to increased litigation and cost. Highland Council frequently don’t even acknowledge claims intimated to them under an agreed protocol, thus forcing litigation as the only route to resolve the claim. Often cases are settled at a late stage. One must question whether the costs incurred in increased legal bills would surely be better spent repairing the roads in the first place.

Roads authorities must be held to account. Cost cutting is understandable and perhaps unavoidable but cutting costs in one area that leads to increased costs in another is surely not an acceptable practice.

Scotland’s road users, particularly motorcyclists and cyclists, deserve a road network that is safe for use. The figures quoted by Police Scotland highlight a serious and costly problem with the current road inspection and maintenance practices. We believe that these figures only show a fraction of the incidents occurring due to poor road maintenance as many are never reported to Police Scotland. There must be a call to action to make our roads safer for all users.

Thomas Mitchell is an associate solicitor at RTA LAW LLP