On the 22nd of October 2018, Donna was involved in a motorcycling incident whilst riding South on the A7 between Heriot and Stow in the Scottish Borders.
As Donna entered a left hand bend, both of her wheels suddenly became stuck in a rut which had formed in the centre on the carriageway. Her bike immediately went into a “tank slapper” resulting in her losing control and sliding down the road.
At the time of the incident, Donna was training for her Institute of Advanced Motorcyclists test. Unfortunately, no amount of practice or training could have prevented the incident. She had adopted the correct line heading into the left-hand bend in order to extend her vision around the corner, however the rut in the road was simply unavoidable and represented a hazard to motorcyclists.
The rut itself was approximately 20m long, 5cm deep and 10cm wide for the majority of its length.
Donna came to Motorcycle Law Scotland in order to help her pursue a claim against the Local Authority, Scottish Borders Council, who are responsible for upkeep of the roads.
We requested records from them under Freedom of Information legislation and discovered that there was only one previous complaint regarding the A7 at Donna’s incident location. It had been logged in April 2018 and related to potholes.
In the absence of any previous incidents or complaints regarding the roadway, Donna’s case was going to be very difficult to prove. In order to be successful in a claim against a Council’s Roads Dept, Pursuers must prove that the Council knew or ought to have known about the particular defect in question. It was clear from the records recovered under FOI legislation that the Council could not reasonably have known about the defect. Therefore, Motorcycle Law Scotland had to prove that the Council ought to have known about it and this would require criticism of the Council’s Roads Inspection regime.
We intimated a claim directly to Scottish Borders Council. Their insurers, Zurich Municipal, initially denied liability on the basis that a Highways Authority has a statutory defence if it can demonstrate that it operates a reasonable system of inspection, maintenance and repair. In this case, Scottish Borders Council’s insurers insisted that the roadway had been inspected at monthly intervals which is appropriate for the particular type of road. They confirmed that the last inspection had been carried out eleven days prior to Donna’s incident and that no actionable defects had been found. Following the reporting of Donna’s incident, the road had once again been inspected by a Road’s Inspector for Scottish Borders Council and again no actionable defect had been found.
The images of the defect speak for themselves but Motorcycle Law Scotland’s position was that the rut in the road represented such a glaring “actionable defect” that Scottish Borders Council ought to have noted it within their inspection records and taken action in order to remedy it, as it represented a hazard to motorcyclists. In not doing so, they had acted negligently and were therefore liable for the loss, injury and damage Donna had sustained. We provided the Council with an ultimatum that they either reconsider their stance on liability failing which, we would be raising Donna’s case in Court.
In the interim, we sought a provisional opinion from Mr Peter Dixon, a highly respected Civil Engineer who is recognised as an expert witness in relation to highway investigations. Mr Dixon was of the opinion that the defect would have been present for some time and certainly longer than the monthly inspection interval operated by Scottish Borders Council. He was highly critical in relation to the inspections carried out by the Roads Inspectors from Scottish Borders Council and of their classification of the rut in the roadway as “non-actionable”.
Following submission of this report to the Council’s insurers along with a video clip showing the incident taking place and finally a witness testimony from a motorcyclist travelling behind, Scottish Borders Council altered their position on liability in March 2020. Not long after this, we were able to swiftly conclude Donna’s case and obtain the compensation she deserved.
PERSISTENCE IS KEY
This case demonstrates the importance of remaining determined in pursuing claims on behalf of motorcyclists who have been injured as the result of a road defect.
Motorcycle Law Scotland have dealt with a number of road defect cases in the past and the experience gained from these previous cases is of enormous assistance when progressing our clients’ cases.
Even in the face of compelling evidence showing negligence on the part of a Roads Authority, the position always adopted by their insurers is one denying liability. The heavy burden placed upon Pursuers to prove that an authority knew or ought to have known about a defect can be a hurdle too high for many personal injury solicitors to overcome.
However, with the right determination and investigations, even if the Roads Authority has not noted a defect as actionable, it does not mean that they are not negligent. A confusion often arises regarding a policy decision a local authority has made regarding the classification of a defect and what actually represents a defect in law.
Many Councils or Roads Authorities in Scotland will not classify a defect as actionable i.e. one they should repair, until it has reached a depth of 40mm or more. This ‘one size fits all’ policy in relation to road defects can mean that defects such as the one in Donna’s case, can fall through the cracks, quite literally. A rut in the road which stretches for up to 20m is clearly, on any reasonable view, an actionable defect that would represent a hazard to ordinary road users. Despite this, the Council were determined to maintain a denial of liability on the basis that the rut did not measure to a depth of 40mm or more.
Thankfully, thanks to Motorcycle Law Scotland’s investigations, this stance was eventually retracted and we were able to settle Donna’s claim.