Court Success: A welcome result for Scottish Borders Council and other road authorities

  • Zurich Municipal welcomes the success of Peter Dewar v Scottish Borders Council (Court of Session, Edinburgh)
  • The claimant sought damages of £500,000 following a motorcycle accident on the way to Edinburgh
  • The case was an excellent outcome for Scottish Borders Council and other roads authorities

Background
The claimant sought damages of £500,000 following a motorcycle accident on the A701 Moffat to Edinburgh Road in August 2011. He claimed that there was a large defect at the side of the carriageway, whereby the surface of the carriageway had broken off. This caused him to lose control of his motorbike and sustain serious injury.

The law
A claim was brought in terms of the common law. In particular it was claimed that the defenders were vicariously liable for the acts and omissions of their roads inspector in the course of his employment with them.

Legal arguments
The claimant’s legal case was a narrow one, based on the defenders’ inspection of the road on 19th July 2011 being negligent, because it failed to identify the broken carriageway as an actionable defect in terms of the defenders’ carriageway lifecycle plan.

Decision
Lord Pentland found that the evidence pointed towards the accident having occurred when the claimant’s motorcycle drove over the defective area. He did not consider that the claimant was driving at an excessive speed or that he had failed to exercise a reasonable level of care and attention.

However he did not consider these findings were sufficient to allow the claimant to establish liability and referred to another Zurich case of McDonald v Aberdeenshire Council 2014 in which it was 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. He considered that the claimant required to establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it; and that the hazard would have been apparent to a competent roads engineer.

He noted that the claimant did not advance any criticism of the adequacy or sufficiency of the defenders’ system for inspecting the road and had accepted that the carriageway lifecycle plan was entirely reasonable. There was no challenge to the defenders’ evidence in relation to the method of inspection.

He therefore found that the claimant had failed to prove that the defect was an actionable defect in terms of the defenders’ carriageway lifecycle plan, and that if there had been such a defect, the defenders’ inspection was not negligent in failing to identify it.

Commentary
This is an excellent outcome for Scottish Borders Council and other roads authorities. We anticipate that to establish negligence in such cases going forwards, claimant’s agents will require to lead evidence challenging the reasonableness of any road inspection.

This claim was handled by Tracey Pike, Manager of the Catastrophic PI Team. Our panel solicitors Clyde & Co represented us at Court.