Ainsley McCabe | Senior Litigation Paralegal

When a Hazard isn’t Hazardous Enough

The recent Outer House decision in the case Peter Dewar v Scottish Borders Council [2017] CSOH 68 highlights the difficulties pursuers can face in establishing liability, even when they are faultless in a road traffic accident.

In the above case an action for damages was raised against Scottish Borders Council, the defenders, for an accident in which the pursuer, Peter Dewar, sustained serious injuries. The pursuer alleged that his motorcycle accident was caused by a dangerous defect on a road, resulting in him losing control of his bike. Scottish Borders Council, he alleged, had acted negligently by failing to inspect, maintain and repair the road. As damages had been agreed at £250,000 the case was restricted to liability only.

The defect was a damaged area of road surface along the nearside edge of the carriageway on approach to a right-hand bend. The pursuer claimed that the eroded area constituted a hazard that gave rise to a significant risk of an accident to a careful road user and maintained the defenders were at fault in failing to deal with the hazard before his accident. On the other hand, the defenders denied they were at fault saying the road was properly inspected and maintained. Whilst the defenders accepted there was some erosion of the road, it was their position that this was not severe enough to warrant repair. The defenders further claimed that the road was not dangerous to a motorcyclist, so long as he exercised reasonable care.

In making his decision, Lord Pentland found no fault in the pursuer’s driving and from hearing evidence was satisfied the pursuer had exercised reasonable care. However, he noted this was not sufficient for the pursuer to establish liability. He referred to MacDonald v Aberdeenshire Council 2014 SC 114 in which the Inner House held that for a roads authority to be liable for injuries sustained, a pursuer must satisfy two points, being:

a) the injury was caused by a hazard that would create a significant risk of an accident to a careful road user; and

b) the authority must be at fault in dealing with the hazard.

In relation to point b), in the present case the pursuer did not challenge the method of inspection of the road by the defenders. Rather, the pursuer’s position – and what half their case relied on – was the defenders’ employee carried out the inspection negligently.

In making his decision Lord Pentland found the erosion did not amount to a hazard that would create a significant risk of an accident and so point a) was not satisfied. Therefore, there was no need to address point b). However, Lord Pentland did add that, in any event, there was no evidence that would have enabled him to find the defenders’ inspection was carried out negligently.

The case highlights that even if an individual is blameless in being seriously injured, that in itself is not sufficient enough to establish someone else is at fault.

If you have been involved in a car accident or a motorcycle accident due to a hazard or defect in the road then Jackson Boyd can fully advise you on the prospects of pursuing a successful personal injury claim. Contact us on 0333 222 1855 or at contact us online.

Ainsley McCabe

Ainsley McCabe

Personal Injury Team

“Those unfortunate enough to be involved in an accident often find themselves dealing with challenging circumstances in the aftermath. I enjoy assisting clients through what can be a difficult time in their lives, helping them to resolve their issues and look positively to the future.”

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