Was a road inspector negligent in his failure to mark a worn road surface which he observed, and which played a role in a subsequent accident, as in need of repair?
It is common for road surfaces, especially on routes used by heavy lorries transporting goods, to become worn in parts. On occasion, this can present difficulties for road users, particularly those on motorcycles, such as happened here.
The issue for the court in this matter was whether such wearing at the edge of a road surface should have been picked up by the roads inspector – and if it should have been, whether it was negligent to have failed to remedy this.
On 12 August 2011, Peter Dewar was travelling by motorbike from Cumbria to Fife to see his brother. After stopping for lunch at Gretna Green, he continued up the A701 Moffat to Edinburgh road. As he approached the village of Tweedsmuir, he had to negotiate an ‘S’ bend in the road.
His recollection ended with him approaching the right hand bend. The next thing he knew, he was in hospital, and it was three days later. His motorcycle had left the road as he negotiated the bend.
The evidence at trial was that the road surface at the nearside edge of the bend he had been negotiating had worn away. There was dispute about how badly worn away it was; while one witness described it as “horrendous,” estimates of the depth of wearing ranged from 25mm to 50mm. All estimates were taken from photographs and a video that had been taken some time after the accident.
The road had last been inspected on 19 July 2011. At that time, the roads inspector for Scottish Borders Council had noted the top layer of the surface was breaking up slightly, but had not marked it is as potentially dangerous or something that required repair. It was not uncommon for a road surface to be in such a condition.
There was a suggestion from an expert for Mr Dewar that failure to classify the road surface as in need of repair at that inspection was negligent. The expert conceded however that he had no experience of working as a road accident investigator, nor had he worked as a roads engineer.
The Council argued that Mr Dewar may have been travelling at an excessive speed, and had taken the wrong line into the bend. In any event, there was no negligence on the part of the roads inspector.
Lord Pentland found in favour of the Council.
There was no evidence that Mr Dewar was travelling at excessive speed, and the evidence suggested he had indeed travelled over the worn section of road. That was not however sufficient to establish liability.
In MacDonald v Aberdeenshire Council  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.
Mr Dewar did not argue that the system of inspection was unreasonable, only that the inspection carried out on 19 July 2011 was negligent in failing to categorise the wear to the road surface as requiring repair.
However, no satisfactory evidence was led to suggest that the wear in fact should have been noted as requiring repair. There had been no previous accidents because of the condition of the road.
Further, there was no evidence that would have allowed the court to find the inspection had been carried out negligently. There was no witness led by Mr Dewar that had any practical experience of carrying out road inspections.
On that basis, Lord Pentland held that without evidence of what would have been acceptable or unacceptable in terms of reasonable practice, the court was not able to decide whether the inspector fell short of reasonable level of skill and care.
What can we learn?
All road surfaces will to some extent have some wear and tear. However, even where the state of the road may have played a role in an accident, that alone may not be sufficient to establish liability, as this case demonstrates. This case demonstrates that if the relevant roads authority can show a reasonable system of inspection, it will be for the claimant to demonstrate why such inspection was negligent.
It also serves as an important reminder of the importance of instructing the correct expert. Although Mr Dewar had a supportive expert, his qualifications ultimately meant that his findings were of little assistance in the final determination of the matter.