The realisation of what is unfolding hits you just as you pass the point of no return and into what you expected to be a straightforward bend in the road.

Every other hard bend on a fast road is signed up with chevrons, or a ‘Slow’ in the road, and as you fish yourself out of the undergrowth wishing you’d worn earthtone underwear that morning, you’ll be thinking to yourself – ‘that really wasn’t my fault’.

Then again, consider this situation: you are riding along when your bike slides out from beneath you. Anyone who has slipped on diesel, or black ice, will know that immediate sensation of loss of control that happens on this kind of situation. It turns out there’d been an accident earlier. The Police arrived, swept away the debris, but left a diesel slick behind. Surely the Police must be under an obligation to make the roads safe? If not they should be picking up the bill for all that expensive damage to your pride and joy.

No duty to you

The short answer to both these scenarios is the public authority. Whether this means the Highways Authority (which usually means the local council) or the Police, they have no duty to you.

The law distinguishes and draws a very clear line between what is duty and what is power. The local authority have the power to erect road signs and paint the word ‘Slow’ in the road, and the power to put up advisory speed limits and they do these things for a number of reasons…

The first is councils are run by public servants who tend to place the safety of their residents and road users pretty high up on their list of priorities. The second reason is that it is very expensive to keep paying for Police and fire fighters to rescue vehicles and locals get a bit fed up if the road is shut down weekly for the Police to extract crashed vehicles. So, they exercise this power, but there is no compulsion upon them to exercise this power. They can, but they don’t have to.

They have the power

Exactly the same applies to the Police. They have the power to shut the road, but no duty to do so. The Police officers at the scene don’t even have to exercise discretion. However, all is not lost for motorcyclists in situations such as these because whoever caused the crash which led to the diesel spill is the one who is on the hook.

It is very well established law – and every conceivable argument has been tried. Indeed I have tried my luck with them, to conflate the power into a duty, and even the giant legal brains of the Court of Appeal in dissenting judgements have been persuaded that where a power is not used and it strays into the grossly negligent, then liability can arise, but these dissenting judgements do not make law.

The law will not impute a power into a duty and in the test for liability in English civil law there must be a tripartite test of duty, breach of duty and loss. If there is no duty there can be no breach so all you are left with is loss, however harse the outcome.

Andrew Dalton

Bike Magazine July 2022