The Court of Session ruled that the motorcyclist had failed to prove that the defenders had acted negligently in failing to categorise the eroded surface as a “defect” which required repair. 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 when he approached a double or ‘S’ bend where there was an eroded, gravelly area of some 15 to 20 metres in length. The motorcycle left the road and Mr Dewar was thrown over the handle bars, suffering severe injury.
Ground of action
The claimant alleged the gravelly area was a hazard and a “dangerous defect” which should have been maintained and repaired. 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 there was some erosion it was “not of sufficient severity” to warrant repair under and in terms of their maintenance and repair policy and if motorists took reasonable care it was not dangerous.
The judge said: “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. He then said
“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”.
Here the claimant led no expert evidence to show that when the inspector attended he should have identified the worn area as a hazard requiring attention.