Failing to mark a road defect for repair

The Council, as roads authority, accepted (eventually) that they had failed to take reasonable care to identify a road surface defect which ought to have been noted as a hazard by their employee during a road inspection.

On 14 April 2019, Martyn was riding his Kawasaki Z1000 on a trip to Oban with some friends. They were travelling through the town of Kilmartin on the A816.

Approaching Kilmartin, he reduced his speed to around 15mph. Whilst passing the Kilmartin Hotel, he hit a series of potholes. His motorcycle toppled to the right and he fell to the ground sustaining a fractured right clavicle.

Martyn reported the accident online to Argyll and Bute Council. He received an automated acknowledgement but no further response, so he contacted Motorcycle Law Scotland.
Thankfully, one of Martyn’s friends had taken photos of the pothole just after the accident. Martyn didn’t know how long the pothole had been in existence prior to the accident, so we sent a request to the Kilmartin Hotel for a copy of their CCTV footage. Unfortunately, none was available.

We intimated a claim for damages to the Council explaining that Martyn had been injured due to the road surface defect as seen in the photos and, that by failing to adequately inspect and repair the defect in a timely manner, they were liable. We called upon them to produce all their inspection, maintenance and repair records to enable us to investigate what, if any, action had been taken in the lead up to the accident.

The Council have a duty to inspect the road and instruct repairs of defects measuring approximately 40mm or more in depth. Although we had photos of the road surface defect, unfortunately no measuring device had been placed next to the defect to give an indication of its depth.

The Council denied liability for Martyn’s accident on the grounds that they had inspected the road on 20th March 2019, 25 days before his accident and had noted ‘no actionable defects’. They were not prepared to accept that the road surface defect had been bad enough to warrant repair.

Upon review of the Council’s inspection and maintenance records, we could see details of their visit on 20th March and the ‘no actionable defects’ position noted. Of further importance, we noted that they had carried out an inspection on the 15th April 2019, 1 day after Martyn’s accident and had marked the road defect for repair within 30 days. This was the evidence we needed to prove that if the road defect had been present one day after the accident, it was most likely present at the Council’s previous inspection 25 days prior to the accident. By failing to mark it for repair, they were in breach of their duty of care and therefore liable for the injuries sustained by Martyn.

To build our case further, we instructed a roads engineer expert to produce a liability report. The expert concluded that the defective carriageway Martyn had encountered would likely have been present and constituted an ‘actionable defect’ at the last inspection prior to the accident.

Raising a Court Action.

The Council lodged defences stating that the road defect had not been identified during the pre-accident inspections because the defect had not been deep enough and that it was only repaired shortly after the accident in response to the injuries sustained by Martyn.
We established following a further review of the Council’s records that they had carried out approximately 60 repairs to similar sized road defects in the year preceding Martyn’s accident. The average time between the Council identifying and carrying out the repair was 11 days. We said that if the Council had correctly identified the pothole that caused Martyn’s accident in their inspection 25 days before the accident, then going by their average repair time of 11 days, the defect should have been repaired well before Martyn’s accident. Faced with this allegation , the Council made an offer of settlement in August 2022 , more than three years after the event.

This case highlights the reluctance of Councils to take early sensible decisions to compensate motorcyclists injured as a result of road surface defects. We ultimately secured a successful settlement for Martyn, but if the Council had accepted liability pre-litigation, the costs and time incurred in the Court Action could have been avoided.

We strongly advise anyone who has been injured due to a road defect to take photos of the defect with a measuring instrument in place if possible and also to obtain contact details of any witnesses who may have seen the accident or who can confirm how long the defect has been in place.

Martyn had this to say :-

"Motorcycle Law Scotland were excellent to deal with. Jo and the team were very professional, supportive and informative. I was kept informed every step of the way even throughout Covid with video calls when required. I would highly recommend them to any biker who finds themselves in the position I was in. Thank you to everyone at Motorcycle Law Scotland for all the hard work and positive outcome achieved"