When I was speaking to ABR Editor James recently, he told me of a near miss he’d had on mud and detritus left on the carriageway by a careless farmer, who had helpfully deposited a lot of his lovely topsoil on a wet and blind bend.
By stunning cat-like reflexes and excellent machine control (according to James) he didn’t go for an expensive and painful slide, but it did set him to thinking: what if he had come off his bike?
The law is clear and very old, like Robin Hood old. If the right of the public to use the King’s highway is interrupted by a mischief maker, then the mischief maker can be indicted by the sheriff. But things have moved on these days and the law does not require sheriffs. The test is now two-fold:
- Did a known person place material on the carriageway which could reasonably be foreseen to be dangerous to persons who might use the highway? If the answer is yes, then…
- Did a person suffer a special loss, over and above mere inconvenience suffered by anyone else using the road, as a result of the deposit on the highway?
As with all things legal, the crispness of this two-fold test has a potential extra layer of legal wrangling. This area of law is known as public nuisance and even if no one is hurt, a person can be prosecuted and fined for putting mud all over the council’s nice clean road.
According to a 1972 decision of the Court of Appeal, a person suffering special damage, for example James replacing his plastics on his bike, can sue even if there was no negligence involved.
But it is likely, notwithstanding the 1972 decision of the Court of Appeal, that when this area of law next goes to the Court of Appeal, there will be a requirement to show negligence, which is not a difficult hurdle to get over.
If you are a farmer you shouldn’t put topsoil over the road. You control your own tractor and, whilst it might be difficult to clean your wheels, you do not have the right to make the highway dangerous for your convenience.
James could see the field which gave him his squeaky bum moment, so it would have been easy to trace the culprit. However, I have had one case where a massive pile of ordure had been dropped and spread on a fast A-road and then liberally spread by passing traffic until one unfortunate rider hit very slippery farmyard waste.
The material had, on the balance of probabilities, been dropped by a road-going vehicle. It was treated, after an appeal by the Motor Insurers’ Bureau, as an accident involving an untraced vehicle when the Bureau was stumped by this simple question: if it wasn’t dropped off a trailer, who on earth would deposit by hand about three quarters of a tonne of cow shit on a fast A-road?
The senior and independent barrister called in to determine that point agreed that, it was more likely than not, that the offending material was on the road as the result of the negligence of a driver of an unknown vehicle, and our really quite badly injured rider was properly compensated.
Adventure Bike Rider – September / October 2021