Road defect found not to cause claimants injuries

In this case the Court considered whether a defect, that was alleged to have caused a serious motor accident, was in breach of Section 41 of the Highways Act.

The Claimant claimed damages for injuries sustained when she lost control of her motorcycle resulting in her colliding with a car on 13 September 2016. The claim was advanced against the Highways Authority with it being alleged that the Claimant lost control of the motorcycle as she was leaving a petrol station due to the dangerous condition of the road.
There were several witnesses to the incident. 

As a result of the incident the claimant suffered serious life changing injuries. 

The family of the claimant notified the Local Authority of the incident and the condition of the highway 13 days after the incident occurred. The Highways Authority inspected the area the following day and undertook the necessary repairs to the area concerned on the same day. The claimant in part relied on the speed of repair and the fact that the Highways Inspector gave the repair the highest possible priority, implying, an acknowledgement that the highway was dangerous at this point.

The claimant, due to her injuries, had no recollection of the incident therefore the court relied on the various witnesses testimony as to the happening of the incident.

The Court immediately ruled out any contact with any kind of spillage or contaminant on the forecourt of the Petrol Station such as diesel, oil or petrol based on the witness’s evidence and investigations undertaken by the Police at the scene.   

The second preliminary point noted by the Court was that it was necessary for the Claimant to show the particular point of the highway which caused the accident and for it to be dangerous. This entails with establishing the route or trajectory taken by the claimants motorcycle. As Lloyd Lord Justice held in James and Another v Preseli Pembrokeshire District when he stated 

“The question in each case is whether the particular spot where the plaintiff (claimant) tripped or fell was dangerous … But if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous or that the area as a whole was due for resurfacing”. 

The Court divided the first issue into 2 questions: first, as a matter of motorcycle handling and physics, what happened to cause the motorcycle to shoot across the road and into the motor vehicle; second, whether the fact that this happened is attributable to the defect in the road of which complaint is made. 

Upon hearing the various witnesses, noting the claimant herself was unable to recollect the event, the Court was of the view that everyone seemed to have a slightly different version of what occurred and a different opinion on the cause, whether it was user error in driving of the motorbike or a defect/issue with the road surface. The Court took the view that the claimant may have simply given the machine a little too much power on pulling away which caused her to lose control. Furthermore, the Court did not find that the facts of the accident point inexorably to a significant problem with the carriageway: there are a multitude of factors which could have contributed, and found the evidence pointing towards the particular defect of which the complaint is made as being the culprit unconvincing and unreliable.

The Court heard from the defendants two local authority inspectors who had carried out the inspections and who were responsible for the defendants highways maintenance programme as well as two independent highways experts. The collective opinion of all four was that the defect, where the claimant alleged she had ridden over, was between 30-50mm in depth. 

Shortly before the index incident the Defendant had carried out a walked inspection of the area and had not considered this section of the road to be in breach of its intervention policy. The intervention criteria for this type of road would, under the Defendant’s then applicable policy, have been a defect 150 mm wide and 50 mm deep.

 

Decision 

The Court accepted this position as well as the Defendants advices that no previous complaints had been made about that section of the road and therefore took the view that these defects were not, as a matter of law, dangerous. 

In summary the judge found that he did not accept that the defect caused the claimants loss of control and it was likely her rear wheel momentarily lost traction when exiting the petrol station which in turn caused the motorcycle to lurch forward, the claimant likely gripped the handle bars and therefore the throttle tighter which caused the motorcycle to shoot forward out of control and strike the oncoming motorists vehicle. 

Importantly the Court commented that even if it had found that the accident was caused by the Claimant riding over the referenced defects and losing control as a result, the claim would nevertheless have failed because the highway was not dangerous. 

This case is a key reminder that the mere existence of a defect does not constitute a breach of section 41 and that the precise facts of the matter remain relevant for a Court in determining liability.

While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these article.

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