DAVID ROBINSON AGAINST SCOTTISH BORDERS COUNCIL
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 indicate knowledge of this particular part of the road. Indeed, the defenders accept that they were aware of the state of the road at this point. So far as the evidence disclosed, the road at this location had been in this state for at least several months prior to the pursuer’s accident.
The evidence about the pursuer’s accident
[16] The pursuer is a life-long athlete. He is a skier and mountain biker. He came more recently to cycling. He is a member of a cycling club. On the day of the accident, he joined the slower of the two groups that set out. He was riding a drop-handle road bike with standard 23 mm road tyres. These were well inflated. There was no suggestion that the pursuer was travelling at excessive speed or that he was riding in an inappropriate manner or road position. There is no case of contributory negligence made against him.
[17] As the group approached Broughton Village from the south, as I have explained above, the pursuer was cycling toward the bridge. The weather that day was overcast. There had been showers overnight, but the roads were generally dry. There is no suggestion that the weather contributed in any way to the accident. The approach to the bridge involved a very slight descent, a slight bend to the left and then a gentle bend to the right. The pursuer was going at about 15 to 18 mph. As the pursuer described it, he suddenly came into contact with the steel strip. He hit it, his bike twisted under him and he was catapulted off the bike. The handlebars were “ripped out of his hands”. His impression was that the front wheel stopped abruptly, and he was catapulted with great force over the handlebars. The pursuer was adamant that this was more than a slip. He had slipped and fallen from his bike before. This was different. It was as if his front wheel had become anchored or, as he put it at a later point, as if the front wheel was trapped between the two strips. As a consequence of the abruptness of that stop, he was thrown off with a greater degree of force than if he had just slipped. He described it as a combination of slipping on the metal strip and a trapping of the front wheel, and which resulted in the handlebars being ripped out of his hands. Whatever the precise movements of the front wheel, the pursuer was unwavering that it was the contact of his front wheel with the metal strips that caused him to fall in the forceful way he described.
[18] In cross examination, he confirmed that he did not see the metal strip as he approached. He only saw it when he came upon it. It was not as visible on the day as compared to how it appeared from the photographs taken from Google earth. Those were taken from a higher perspective. The colour of the strips and the immediately adjacent road surface was very similar. This feature, together with the fact that the approach was down a slight descent with the road falling away, and around a bend, meant that in any event on this approach he had a less good view of the metal strips; they were more obscure. The metal strips were easy to see on the photos. He was adamant that he did not have such a clear view of them on that section of the road.
[19] The pursuer accepted that he did not know what caused his front wheel to stop. However, he consistently maintained that the front wheel came to an abrupt stop; the front wheel went one way; the bike rotated under him and he flew off with great force. It was more than a slip. There was a trapping of his front wheel.
[20] The pursuer also led evidence from one of the other riders further back in the group. This was Mr David George. He confirmed the pursuer’s position at the front of the group and that everyone was positioned and riding appropriately on the road as they approached Broughton Village. The pursuer crashed suddenly and very dramatically in front of the group. His bike suddenly seemed to stop abruptly and revolve around the front wheel. It was the front wheel that had stopped abruptly. It was a very sudden stop and which, in his experience, was very unusual. Immediately after the accident, as the pursuer was being attended to by others, he took photos. He spoke to these and described the metal strips. His view was that the metal strips posed a cycling hazard. It was at that very point of coming upon them that, as he put it, something untoward brought the pursuer down. The defenders did not cross examine Mr George.
[21] The pursuer also led the evidence of a specialist bike mechanic, Alexander Gilchrist. Mr Gilchrist was a very experienced bike mechanic and in the past had worked for international cycling racing teams maintaining and repairing their racing bikes. He had prepared a report on the damage done to the pursuer’s bike. As a consequence of the accident, the front wheel was out of alignment from the front fork and the rest of the bike frame. More significantly, there was damage to the drop handlebars. One of these had been very badly damaged. It was bent inwards to a greater degree than was consistent with just a slipping accident. (The pursuer gave evidence to the same effect.) He attributed this significant damage of the bike to the degree of force involved in the crash. The nature and degree of the damage to the bike was, in his opinion, without a doubt attributable to an accident in which the front wheel was trapped or came to an abrupt stop. He was cross‑examined briefly, to clarify the location at which he took one of the photos and the questions posed in his letter of instruction. His evidence as to the causal link between the force and nature of the crash, as inferred from the type of damage to the bike, was unchallenged.
Mr Dixon’s evidence
[22] In addition to the witnesses already noted, the pursuer led evidence from Peter Dixon. He had produced a report addressing inter alia the presence and purpose of the metal strips on the carriageway and whether a reasonable risk assessment or inspection would have identified the metal strips as posing a hazard to certain classes of road users. In submission, although this was not a particular focus in cross examination, the defenders put in issue whether Mr Dixon had the relevant expertise. It is therefore necessary to set out his experience and qualifications in detail.
[23] Mr Dixon has a BSc in civil engineering. He is a chartered civil engineer, a fellow of the Institution of Civil Engineering and a fellow of the Chartered Institution of Highways and Transportation. He was also a member of the Institute of Traffic Accident Investigators. After graduating he was employed for eight years with a large English local authority engaged in a variety of design and maintenance function. This included a period of time in a divisional office engaged on routine and winter maintenance of roads. Thereafter he spent 20 years with a major transport and engineering consultancy. For the last 15 years with that consultancy he was an associate director responsible for infrastructure projects in north‑west England. These projects were of all sizes, from small urban developments to multi-million pound motorway projects. He then moved on to work for nine years with the Transport Research Laboratory. He established his own independent consultancy in 2014.
[24] His professional work included dealing with routine highway maintenance as well as infrastructure design. He has regularly been instructed to undertake forensic investigations into road traffic accidents with a highway environment as a factor. He had produced reports dealing with such matters for the purposes of litigation for the last 18 years. As part of that work, he was regularly called on to analyse highway maintenance systems. He also provided an advice and auditing service for local authorities on routine as well as winter maintenance systems and procedures in order to improve road user safety and reduce risk.
[25] Mr Dixon did not visit the locus but prepared his report (number 6/26 of process) from photographs, statements from the pursuer and other witnesses and upon a consideration of the plans and other material produced by the defenders relative to the 1990 bridge-widening works. In respect of the metal strips, he understood them to have been installed in 1990 to act as an expansion joint between the new and older parts of the bridge. The nature of the material of these strips, being made of metal, meant that they had a lower coefficient of friction than the surrounding roadway. In short, they lacked skid resistance. What was of particular significance in his view was the position of these strips relative to the direction of traffic. If they had been perpendicular to the direction of traffic, then any wheeled traffic would pass quickly over them and the relative lack of grip of this surface would pose minimal risk. Here, however, by reason of the shallow angle, a vehicle or bicycle would travel for a considerable distance along the length of the strips. Its effective width was significantly increased. In his 34 years of professional life, he had never seen anything like this. Their manner of installation was unusual. In his opinion, the design solution suggested in 1990 of having expansion joints inserted in such an angle should have been rejected.
[26] He opined that by reason of the nature of the material of the metal strips and their particular alignment, these metal strips were a hazard for cyclists. The effect of the particular alignment had a disproportionate effect on two-wheeled vehicles. He also spoke to the degradation of the road surface in the immediate vicinity of the metal strips and how, in his view, this would have exacerbated the risk.
[27] In response to questions as to what aspects of these features of the road surface would have been obvious to a reasonable roads inspector, he explained that there was a certain measure of common sense. It was known that metal offered less friction than normal road aggregate does. It is for this reason that metal manhole covers have a rough surface and, as they are worn smooth by traffic, require to be replaced. From other surface patching immediately adjacent to the larger of the metal strips, the attention of the defenders’ engineering staff would have been focused on this part of the roadway. The presence of the longitudinal strips of metal on the road surface , on a curve, would have been obvious to them. Given that this material offered less skid resistance, and its unusual placement so that traffic travelled along much of the length and surface of it, he opined it would, as a matter of common sense, be highly significant for bicycles (and possibly also for motorcycles) when travelling at speed due to the inherent instability of such vehicles.
[28] Mr Dixon also noted that certain current design guidance for expansion joints in bridges, contained in a design manual for roads and bridges, stipulated that the skid resistance of such joints should not cause a hazard to road users and that the skid resistance should be at least equal to the minimum requirement of the adjacent carriageway surfacing. On the material available to him, the road surface at the bridge as it was at the time of the pursuer’s accident did not comply with this guidance.
[29] Mr Dixon was aware from information from the defenders that remedial work had been undertaken in about the middle of 2015 and had cost about £1000.
[30] The cross-examination of the Mr Dixon was limited. He confirmed his view that the proposed joint design in 1990 should have been rejected. He accepted that he had only seen the design drawings and did not know what other considerations might have informed the decision to accept and implement that design. He accepted that he had not visited the locus. It was put to him that he had prepared his report on the basis that the pursuer’s wheel had “slipped” or “skidded”. He replied that his understanding was that the wheel had gone across the metal strip and lost traction. If that was the case then the pursuer’s stability would have been affected.
[31] In re-examination, certain features of the evidence from the pursuer and from Mr George were emphasised. These were the evidence about the pursuer’s wheel being “anchored” or “trapped” and Mr George’s evidence of his surprise at how quickly the pursuer had gone down. He confirmed that none of this caused him to change his opinion as regards the hazard posed by the metal strips.
The defenders’ evidence
[32] The defenders called two of their employees, David Cunningham and Kenneth McCudden. Mr Cunningham was a chartered civil engineer, having qualified in 1992. He had been employed with the defenders for 24 years. He was a civil engineer in their bridges and structures department. That included oversight of the 1201 bridges in the defenders’ geographical area of responsibility and maintaining the bridge structures.
[33] In relation to the metal strips, he agreed that these operated as an expansion joint. He concurred in the view that this particular one was quite unusual. He also confirmed that remedial work was done to the bridge in 2015. This had entailed cutting away along the edges of the metal strips; cutting the strips down to reduce their profile, and then resurfacing the road to cover these strips.
[34] When asked about maintenance generally, he explained that he would only consider works on some feature of a bridge if it “deteriorated” or “causes a problem”. His initial position was that the metal strips did not fall into either category. When he was asked what had led to a change, such that the remedial works he described were undertaken, he explained that there had been a number of accidents occurring at this site. The pursuer’s accident had been the first. There hadn’t been deterioration but as a “trend” was starting to develop, then the remedial works were undertaken. He was not sure why the accidents were happening.
[35] In relation to whether or not the metal strips themselves should have been apparent as a hazard, he answered that this feature of the bridge had been designed by experts in 1990 and had not changed since. In his view, because it was “fully designed up, it was obviously fine”. There were no accidents associated with it and so nothing to say the defenders should take action. So long as there was no deterioration, in his view it was “not an issue”.
[36] In cross, Mr Cunningham confirmed that he understood that a hazard was something that significantly increased the risk of an accident. He was asked a number of questions about roads department inspections. He endeavoured to answer these. The proposition was put to him that in determining what to do, the defenders would only react if something deteriorated or started to cause a problem. He accepted this position as regards the bridges department and surmised that this was also what happened in the defenders’ roads department.
[37] Mr McCudden had worked in the defenders’ roads department for 30 years. He was a technical assistant roads inspector for the defenders, and had held that post since 2007. He explained that his main work was for labour organisations and dealing with enquiries from members of the public or insurance claims. He explained that the defenders had a programme of regular road inspections. There was a set programme from month to month or year to year. He carried the road inspections by travelling in a vehicle at 20 to 25 mph. He dictated anything of significance as he drove along, and logged these later upon returning to the defenders’ offices. He looked out for defects. This was anything that was a hazard to road users and could include low telephone lines, potholes, animals on the road and so on. He confirmed that the last inspection of that part of the road where the pursuer had his accident had been inspected a few days before, on 28 November 2013, in the manner he described.
[38] When Mr McCudden was asked to consider the metal strips, in his view the metal strips were just part of the carriageway. He had not thought of them as a defect. They were just part of the carriageway.
[39] In cross examination, he accepted that there had been other patch repairs immediately adjacent to the wider of the two metal strips. He was aware of this part of the roadway. He did not pick up on the metal strips as a defect at all. He had always been under the impression that this was part of the roadway. He accepted that road users would include cyclists, including cyclists riding side by side, and that the defenders owed duties to them, too.
[40] Certain features of the metal strips and their condition were put to him under reference to photo number 2 of 6/21 of process. This included the apparent depth of the hole or gap around the strips. He was asked if this posed a danger to cyclists or whether it was likely that a cyclist would fall off if he came into contact with the exposed strip. In reply to these questions, Mr McCudden acknowledged that this was possible. He accepted that the metal strips were of a similar colour to the road and that this part of the road was approached by a slight downhill. Mr Dixon’s position that the metal strips posed a hazard was put to him. He did not endeavour to meet that opinion, or to explain why his view differed. He contented himself with stating that “that was his opinion”.
The parties’ submissions
The pursuer’s submissions
[41] The pursuer’s submissions on the evidence may be summarised as follows: on the balance of probabilities, the cause of the accident was the pursuer’s front bicycle wheel coming into contact with the metalwork present in the northbound lane of the A701 at Broughton Bridge (reference was made in particular to photograph 2 of number 6/21 of process); the accident was caused by the negligence of the defenders; the defenders are liable in negligence at common law for any failure to deal with a hazard that existed on a road under its control; the metalwork present in the northbound lane of the A701 at Broughton Bridge was a “hazard” in that, in its condition, it presented a significant risk of an accident to the pursuer; the pursuer was proceeding with due skill and care; the defenders were at fault for failing to deal with the hazard in that it was, or ought to have been, “apparent” to a competent roads engineer/inspector on a reasonable visual inspection: the defenders are in any event vicariously liable for the acts and omissions of their employees in the course of their employment with them.
[42] Counsel for the pursuer, Mr Love, noted that much of the pursuer’s case was unchallenged. In that circumstance, under reference to Bryce v British Railway Board 1996 SLT 1378, he invited the court to draw the most favourable evidence from the unchallenged evidence. In particular, he noted that there was no cross examination of Mr Dixon about his evidence as to (i) what would have been obvious to a competent roads engineer on inspection, (ii) the hazard or hazards presented by the metal strips; and (iii) the risks presented to cyclists.
[43] In respect of the law, parties were agreed that the test to be applied is as stated in the case of MacDonald v Aberdeenshire Council, which I have set out in paragraph [3] above. By way of an illustration of a hazard (being a spillage of concrete) encountered by a group of cyclists in similar circumstances, on a downhill slope on a left-hand bend, he cited the case of Thomas v Warwickshire County Council 2011 EWHC 772 (QB). In that case, Mr Justice Wilkie found that the concrete spillage constituted a hazard to cyclists as a category of road users. He considered (at paragraph 82) that the absence of prior accidents at that site was not determinative in the defendant’s favour.
The defenders’ submissions
[44] In respect of the pursuer’s evidence, the defenders argued that there was no reliable evidence from the pursuer as to the precise cause of the accident. He had initially suggested his wheel had slipped but then later became more convinced that his wheel had been trapped. These were not the same thing. The pursuer could not say where on the metal strip he came into contact; he had not been watching where he was going. There was no comment on Mr George’s evidence. In relation to Mr Dixon, it was argued that he did not have the relevant expertise, he had not visited the locus; his evidence had focused on slip resistance. The court should not accept his conclusion that the proposed design with the use of the metal strips should have been rejected in 1990. In respect of Mr Gilchrist, he was not an expert in accident reconstruction. He was the only person to take measurements of the metal strips. Many of the photos were of poor quality; only one of these contained any marker indicating scale.
Discussion and decision
[45] The law in this area is not in dispute and I have set this out above, in paragraph [3]. The first question is whether the metal strips posed a hazard to a road user proceeding with due skill and care. If that is answered in the affirmative, then the next question is whether a roads authority of ordinary competence using reasonable care would have identified the hazard and taken steps to correct it. I turn now to consider these questions in the light of the evidence.
1) Did the metal strips pose a hazard, in the sense of creating a significant risk of an accident, to road users proceeding with due skill and care?
[46] There was ample evidence about the physical state of the metal strips and the road surface where they were embedded: the material was slippery in nature; the metal strips were proud of the surrounding road at the point where it was likely that the pursuer’s front wheel first came into contact with one or both of these; there was a small gap at the protruding or sharp edge of the right-most strip; there was a slight depression or gap between the two strips at their south-most parts; and there was a degree of degradation of the road surface at its southernmost point where the pursuer’s wheel first came into contact with the strips. I also accept the unchallenged evidence of the particular risk the larger metal strip posed to two-wheeled road users by reason of its longitudinal alignment along the direction of travel. On the evidence, these features could pose a hazard in a variety of ways. The nature of the material and the longitudinal position of the strips posed a risk of a destabilising slip to two-wheeled vehicles. The gap between the two strips had the potential to catch or trap a bike wheel if it was sufficiently thin, and approached these at a similar angle. The proud end-on or leading edge of the larger strip, in combination with the degradation of the road surface around it, was capable of deflecting a bike wheel.
[47] I found the pursuer to be reliable and credible, and I accept his evidence in its entirety.
[48] I reject the defenders’ analysis that there was a difference in the pursuer’s evidence in his description of his bike “slipping” and the front wheel “trapping”. The pursuer was consistent each time he described what happened. Further, there was a strong coherence between the pursuer’s account and the other evidence about what happened. The striking feature of the pursuer’s accident was the abruptness with which his front wheel stopped and, as a consequence, the force with which the pursuer was catapulted over the handlebars. The pursuer and Mr George both described this. Furthermore, the damage to the handlebars of the pursuer’s bike supports the inference that a great deal of force had been brought to bear on them. This kind of damage was not consistent with just a slip accident. The pursuer and Mr Gilchrist both spoke to this. Mr Gilchrist’s evidence in this respect was not challenged indeed there was no cross-examination of his evidence. His evidence did not amount to an accident reconstruction being attempted, as suggested by the defenders in submissions.
[49] In short, I accept that the metal strips posed a hazard to road users by reason of these features I have described. It matters not, in my view, that the pursuer is unable to say precisely which of these features caused him to lose control of his bike in the way he described. I reject the defenders’ criticism of this aspect of the pursuer’s evidence.
2) Was the pursuer riding with due skill and care?
[50] There is no case of contributory negligence against the pursuer. However, the defenders suggested in submissions that the pursuer was not watching where he was going and had not seen the metal strips. By implication, the suggestion was that he was not a road user using “due skill and care”. I reject this criticism. The pursuer’s unchallenged evidence was that he did not see the metal strip until he came upon it. To the extent they were asked, the defenders’ own witnesses accepted that the colour of the roadway and of the metal strips was similar. Evidence was also elicited from the pursuer in cross-examination to the effect that he did not see the metal strip until he came upon it. However, it was not put to him that he should have seen it. There was unchallenged evidence that the metal strip was more visible in the photographs than to a road user; the photos were taken from a higher position. Further, the other evidence about the features of the road way as it approached the bridge (including the slight descent, the slight left and then right bends on approach) made the metal strips less visible. Again, this was unchallenged evidence. There is no foundation in the evidence to suggest that the pursuer should have seen the metal strips, or appreciate the hazard it posed, before he did. By then, it was too late.
[51] In any event, on this argument, I accept the analysis of Mr Justice Wilkies in Thomas, cit. supra. He dealt with a similar contention in that case, that the plaintiff cyclist should have seen the road hazard, as follows:
“…in my judgment, the question whether a particular rider, riding within a group, would have been expected to see [the hazard] in sufficient time to take avoiding action is not a matter affecting the reasonable foresight of the danger, but affecting the contribution of the cyclist to that danger eventuating in an accident causing injury”. Ibid at paragraph [81].
I agree with that analysis.
[52] It was not put to the pursuer in terms that he was not travelling with due skill and care. There was no suggestion or evidence that he was riding inappropriately in either speed or manner, having regard to the weather and road conditions. There was no challenge to the evidence of the other features of the approach that rendered the metal strips and the bridge surface less visible. Accordingly, I find that the pursuer was travelling with due skill and care. It follows that I find that the state of the road surface at the bridge, and in particular the presence and position of the metal strips, posed a hazard in the relevant sense.
3) Was the hazard one that would be apparent to a roads authority of ordinary competence using reasonable care?
[53] I turn first to consider the defenders’ evidence. It was accepted that they were fully aware of the surface of the road at the bridge end and of the presence of the metal strips. They knew this by reason of the regular inspections of the roads. This part of the road had last been inspected only a few days before the pursuer’s accident. In any event, the presence of other tarmac patches adjacent to the metal strips would support an inference of the requisite knowledge. This is not a case that turns on any asserted failure of an inspection regime. It does not raise any question of imputed knowledge of the hazard in question. It relates to the quite specific features, described as being virtually unique, of the presence and placing of the metal strips, and the material of which they were composed. It is a case that turns very much on its own facts.
[54] The striking feature of Mr Cunningham’s evidence was his assumption that, because the metal strips were designed into the bridge by an engineer when it was widened in 1990, no other thought required to be given to them. Similarly, to the extent that the roads inspector responsible for this stretch of the road, Mr McCadden, ever considered matters, the strips were just metal strips. In the light of that evidence, it would appear that the defenders never actively considered the question of whether the metal strips were a hazard posing a significant risk of an accident to road users. The defenders did not lead any expert evidence as to what would or would not have been apparent to a competent roads authority. While it is relevant to lead the evidence of the actual road inspector, his failure to have appreciated a hazard does not exonerate the defenders. It is not determinative of the question of fault. Such evidence may, indeed, be eloquent of the negligence or omission of the defenders. The only means of inspection described was in a four-wheeled vehicle traveling at 20 to 25 mph. There was nothing to suggest that the defenders actively applied their minds to other categories of other road users such as cyclists, and whether that manner of inspection sufficed to identify significant risks of accidents to this type of road user.
[55] Turning to the pursuer’s case, and in particular to Mr Dixon’s evidence, the defenders did not in cross-examination challenge his evidence that the features of the metal strips and their placement in the road presented an obvious hazard that would have been apparent to a competent roads authority. It was not put to him that he did not have the relevant expertise to form any view on that matter. The fact that he was active principally in England – a point only taken in submissions - was, in my view, irrelevant to the matters on which he was asked to express his opinion. This related to questions of hazard, not to the legal duties incumbent upon roads authorities. In any event, as I have noted above in paragraph [24], Mr Dixon had long professional experience in advising local authorities about road maintenance and reduction of risk to road users. I found Mr Dixon to be credible and reliable. A pragmatic common sense underpinned his evidence. He was not advancing a counsel of perfection or seeking after the fact to impose a high standard. He demonstrated considerable knowledge and experience about matters of road maintenance and safety issues. I accept his evidence. In any event, at its material points it was not challenged.
[56] On the whole evidence, I find that the hazard posed by the road at this point, as described above, would have been apparent to a roads authority of ordinary competence using reasonable care.
[57] The final question is whether, having identified the hazard, would a competent roads authority have taken steps to correct it. This was not really an issue between the parties. It was agreed that the remedial work was done. It had cost only £1,000. It was not suggested that this work was unduly burdensome to undertake. The remedial work had been done.
[58] Accordingly, on the whole evidence I find that the defenders were in breach of the common law duties they owed to the pursuer. I shall grant decree in the agreed sum. Before doing so, however, I will put the matter out by order to deal with the issue of expenses and any ancillary matters.