David Robinson Against Scottish Borders Council
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 47 |
| Court | Court of Session |
| Published date | 29 March 2016 |
| Year | 2016 |
| Date | 29 March 2016 |
| Docket Number | PD1637/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 47
PD1637/15
OPINION OF LADY WOLFFE
In the cause
DAVID ROBINSON
Pursuer;
against
SCOTTISH BORDERS COUNCIL
Defenders:
Pursuer: Love; Thompsons
Defenders: MacPherson, Solicitor Advocate; Clyde & Co
29 March 2016
Introduction
The accident
[1] On 1 December 2013, the pursuer was cycling as one of two front riders in a group of about 12 cyclists traveling north along the A701. The rest of the group were immediately behind the pursuer and the other person forming this pair. They had set off from Edinburgh several hours earlier for a Sunday morning ride of about 65 miles. The group had come from Drumelzier and were approaching Broughton Village from the south. As the pursuer approached the small bridge over the Biggar Water, he noticed grit at the base of the left-hand wall of the bridge. As the pursuer had an inexperienced cyclist to his left, the pursuer moved to his right, that is closer to the centre line of the road, to give this other cyclist room to avoid the grit. Suddenly, and without warning, the pursuer’s bike came to an abrupt halt. He described the handlebars as being “ripped” from his hands. He was catapulted over the bike with a great deal of force and injured. The bike was also badly damaged.
[2] The defenders are called as the roads authority. It is contended that the state of the road surface presented a hazard to persons using the road.
The issue
[3] The question is whether the state of the road, about which there was a great deal of evidence, was a “hazard”; that is, did it present a “risk of an accident to a person proceeding along the road in question with due skill and care”: per Lord Drummond Young in MacDonald v Aberdeenshire Council 2003 SC 114 at paragraph [63]. In that case, an Extra Division of the Inner House took the opportunity fully to consider the common law duties incumbent upon roads authorities in Scotland. Having defined what constitutes a hazard, Lord Drummond Young then set out (in paragraph [64]) the test to be applied in such cases:
“This means that, for a roads authority to be liable to a person who suffers injury because of the state of a road under their charge, two features must exist. First, the injury must be caused by a hazard, the sort of danger that would create a significant risk of an accident to a careful road user. Secondly, the authority must be at fault in failing to deal with the hazard. This 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, whether by altering the road, or by placing suitable signs, or in an extreme case by closing the road (as in McFee and Gibson v Orr, if the latter case had involved the actings of the roads authority). Those two requirements are in my opinion of great importance. The first means that roads authorities are entitled to act on the assumption that drivers and others who use the roads proceed with reasonable skill and care. That means that it can be assumed that drivers will have regard to any obvious dangers on the road and drive accordingly. There is no obligation on a roads authority to protect drivers from anything that is obvious. Obvious dangers would include bends, blind summits, visible road junctions, and the fact that the driver's view is restricted, whether by buildings, vegetation or features of the land and the configuration of the road. In all such cases, a careful driver should slow down and look carefully ahead. If he does not do so, the accident is his own fault.” Ibid.
[4] The parties are agreed that the foregoing is a correct statement of the modern law of the duties of a roads authority, arising at common law, in relation to hazards posed to road users.
[5] The pursuer contends that the defenders were at fault in the way described by Lord Drummond Young. The defenders deny liability. However, quantum has been agreed.
The case on record
[6] In submissions, the defenders made certain criticism on the basis that the pursuer’s evidence at proof differed from the case he pled on record or on which certain reports he instructed had proceeded. In particular, in his evidence at proof the pursuer focused more, it was said, on his front wheel being “trapped” whereas his position prior to that appeared to emphasize “slipping”. It is therefore necessary to set out the relevant passages of the pursuer’s pleadings.
The pursuer’s case on record
[7] This action is governed by chapter 43 of the Rules of Court. The pursuer sets out his case, with commendable clarity and concision, as follows:
“As the pursuer cycled over the bridge he lost control of his bicycle and fell to the ground. As a result he suffered the following loss, injury and damage. The pursuer lost control of his bicycle because of the presence of an approximately 4 metre long metal strip and grooves set into and positioned at an acute angle across the road surface on the northbound carriageway. The defenders were the local roads authority for the area in terms of the Roads (Scotland) Act 1984. They were liable to maintain the road at that point. In its condition the road surface presented a hazard to persons using the road, particularly cyclists. The presence of the longitudinal metal strip and grooves was or ought to have been obvious on any reasonable visual inspection carried out by or on behalf of the defenders. Prior to the pursuer’s accident the defenders had carried out road repairs in the vicinity of the said metal strip and grooves”. (emphasis added.)
The defenders case on record
[8] The defenders admit the following: that they are the roads authority for the A701; that there was a longitudinal metal strip on the bridge which was a vertical differential movement joint between an old masonry arch and newer concrete deck widening constructed in 1990; that the detail and bridge widening was constructed or designed by JB Schofield & Partners; and that the defenders carried out work in about May 2015 to tarmac over the metal strip and grooves.
[9] The only positive averment that the defenders make is that: “the metal strip did not constitute a defect, or anything which the defenders as roads authority were under any duty to remove or alter.”
The evidence about the state of the road surface on the bridge
[10] The accident occurred on the bridge. Before setting out the evidence about the pursuer’s accident, it is helpful first to record the evidence about the surface of the bridge and how features of it came to be there. My findings as to the design features of the bridge are derived from a combination of the evidence of the defenders’ witnesses and the pursuer’s expert, Mr Dixon. As this chapter of evidence was largely uncontroversial, it is not necessary to detail more precisely from which of these witnesses the following evidence was given.
[11] After the accident it was immediately noted that there was a 4 metre long metal strip, of about 2 or 3 inches in width, running in a diagonal line, running from southwest to northeast across the path of the left-hand carriageway of the bridge. Immediately to the left of this wide metal strip and running parallel to it, there was a narrower metal strip albeit it was marginally shorter in overall length than the larger strip. One of the other cyclists in the group took photos of the state of the road. These were produced and spoken to by a number of witnesses, including Mr George who took them. Some of these were also reproduced in certain reports produced by the pursuer.
[12] These metal strips came to be inserted into the roadway in the following fashion. The bridge had been widened in about 1990. In practical terms, this meant that a wider concrete slab was built onto the left (or west-most) side of the bridge. At the same time as it was widened, it would appear that the alignment of the bridge was altered slightly. By its nature, the concrete slab will have more flexibility or “give” than the more rigid brick substructure. In order to allow for the differential movement of the new and old parts of the bridge, a movement joint was inserted. The movement joint was comprised of the two long metal strips referred to.
[13] The defenders had found some, but not all, of the structural drawings relating to the bridge expansion work in 1990. These were spoken to by one of the defenders’ witnesses, Mr Cunningham. The metal strips were expansion joints. The relevant drawing detail showed these end-on. If looked at end-on, the strips had an “L” shaped profile. The right‑hand metal strip was laid so that the orientation of this “L”, was a quarter turn in a clockwise direction. This meant that the long part of the “L” formed the flat surface which was embedded face-up in the road surface. The piece of metal to the left was fitted with the thin edge of the small part of the “L” facing up. This meant that the visible part of the left piece of metal was much smaller and, from the photos, slightly rounded in profile where it protruded, at points, above the surface of the roadway.
[14] On the whole evidence, at least some parts of these metal strips sat proud of the road surface. Furthermore, there was a gap or small hole in the road immediately to the south, or at the start of, the right hand metal strip. This meant that a little more of that edge was exposed than would be the case if the rest of the tarmac road material had been filled in around, and up to, the level of these strips. As noted above, the two strips ran parallel to each other. The distance between them was not large. On the evidence, there was a slight gap or loss of infill material at certain points in between these two metal strips.
[15] The photos also showed some previous tarmac patch repairs to the road surface, to the right of the larger metal strip. It was not suggested that these were a cause of the pursuer’s accident, but they did...
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