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Title: Biker wins compensation after losing control on sand on the road

Amount: Amount to be quantified

BikeLawyer acted for Mr Wade in this unusual case which we believe has set a very useful precedent for other bikers who come off as a result of sand on the road. The Motor Insurers' Bureau (MIB) rejected the claim so Bikelawyer appealed to a MIB Arbitrator who found fully in favour of our client with no reduction for contributory negligence.

 

PRELIMINARY DECISION OF ARBITRATOR
 
Preliminary Decision of Arbitrator pursuant to Clause 22(3) of the Untraced Drivers’ Agreement (Compensation of Victims of Untraced Drivers) between the Department of Transport and the Motor Insurers’ Bureau dated 14 February 2003
 
Applicant: Martin Wade (Case No. 1434228/P127)
 
                           Arbitrator: Frank Burton QC
 
 
1.         At approximately 7.50 am on 3 August 2010 Mr Wade was riding his Honda 500cc motorcycle registration number N471 BMC along Launders Lane, Rainham, when he lost control and fell off fracturing his clavicle. Mr Wade contends that the reason he lost control was because there was a coating of sand on the road which had been deposited by vehicles leaving a building site. Accordingly Mr Wade made an application for an award of damages under the 2003 Agreement on the basis that had the vehicle or vehicles which deposited sand on the highway been identified they would have been liable in negligence or nuisance to him.
 
2.         The MIB investigated the application but declined to make an award on the basis that they were not satisfied that Clause 4(1)(a) had been satisfied namely that the accident had occurred due to the use of a motor vehicle on a road.
 
3.         Solicitors, Bikelawyer acting on behalf of the Applicant filed a Notice of Appeal contending that the MIB were wrong to refuse to make an award because the only reasonable explanation for the deposit of sand on the highway was that vehicles had shed part of their load due to negligent overloading or negligent control of the loads they were carrying.
 
4.         The matter accordingly comes before me to determine the issue of eligibility and to make a preliminary decision pursuant to the provisions of Clause 22(3) of the 2003 Agreement. I am satisfied that I have been provided with sufficient information to determine the decision.
 
5.         In his Claim Form Mr Wade, who was born on 20 September 1980, and who is an engineering planner, states that he lost control of his motorcycle on sand which had been spilled or deposited on the highway by an untraced driver.
 
6.         In a statement taken by the MIB from the Applicant Mr Wade explains that he was familiar with Launders Lane and was intending to turn left into New Road and the accident happened on the last bend before his intended left turn. Mr Wade explains that he was familiar with the motorcycle and he had passed his motorcycle test in 2004. He used the route every day when he went to work. He therefore knew that before the junction there was a sharp right bend and he also knew that on the left-hand side there was an entrance to a site which a lot of construction traffic used as they were building a golf course there. He said he rode towards the bend and looked slightly to his right to ensure nothing was coming towards him and cutting the bend on his side. He says he was about 100 yards away when he saw a patch of wet on his side of the road and he slowed from 40 to 20mph before he reached the bend which would be his normal speed for negotiating the bend. He then says as he got closer he saw the wet patch was about a length of a car and went two-thirds round the bend. He slowed down to 15 miles an hour but did not brake. He said he was leaning a degree or two over but was attempting to stay as straight as possible and was not cutting the bend. He said as he started to go round the bend the front wheel just went from under him and lost traction. He says after his accident he looked at the road surface and saw there was a slight amount of sand on the road. The he smelt the wet patch as he slid along it and it was water.
 
7.         The Police were called and before he was taken to hospital to attend to his broken right shoulder he saw a vehicle leave the site and drop sand about 50 metres along the road.
 
8.         I have been provided with photographs from the Applicant which show on the bend in question a large deposit of what appears to be a sand-like substance spreading over the whole of the Applicant’s part of the highway and extending to several metres. The Applicant in his statement thought that the sand was about 12-18 inches wide and about 3½ metres long going from the gateway across the road. The sand was just before the wet patch.
 
9.         I have also been provided with a set of photographs taken by the MIB’s investigating agent which show the straight approach to the right-hand bend. To the left there is a very degraded entrance to the building site which shows a number of vehicle tracks through it. This substance looks like mud rather than sand in photographs 5 and 6.  However in photograph 8 the substance looks much more like sand and indeed deposits of a sand or gravel type substance are apparent around the whole of the gateway and as one looks to the photograph to the left of a green building there is a very substantial mound of sand/gravel at a height of probably over 3 metres.
 
10.       The MIB’s contention in this case is that the deposit on the road was not caused by vehicles spilling their load and did not in fact come from vehicles at all but came from the road verge. However the MIB also  state this is a known building site with multiple vehicles entering and leaving the site implying some causal effect to moving traffic. The MIB say that from the locus pictures it can be seen the verge has been worn down by vehicles travelling across it onto the road. The MIB contend that in those circumstances they do not believe that negligence has been proven against an untraced driver or vehicle. The MIB express a view that what needs to be proven is that the sand was deposited by one vehicle onto the road surface.
 
11.       In contrast the appeal notice contends that it must be the case that this substantial amount of sand has come from vehicles and it is not necessary to show that it was only from one vehicle what needs to be shown is that any vehicle depositing sand did so negligently and the issue is not whether the sand in question was due to one or several depositers but that all deposits were due to negligence.
 
FINDINGS
12.       There seem to be four possible causes of the deposit on the highway in this case. Firstly this could be a case of the highway verge simply eroding due to weather conditions, poor drainage, and the effect of passing vehicles. In these circumstances no individual car or lorry user could be said to have committed an act of negligence. Secondly the material on the road could have been caused by vehicles using the exit and entrance to the site and dragging the substances from the site directly onto the road. In these circumstances given the substantial deposit of the sand-like material on the road and the overwhelming likelihood that the vehicle users would know that they were dragging potentially hazardous material onto the highway there would be grounds for establishing negligence. Thirdly the verge itself could have been degraded by the usage of vehicles running over it when entering and exiting the site. This seems to be a distinct possibility given that there are no other deposits in the road despite the similar characteristic of the verge at other points abutting directly onto the road surface. Fourthly the deposit could have been caused due to a lorry or  lorries shedding their load particularly if they were overfilled and braking and turning at the exit point.
 
13.       The only evidence I have apart from the photographic evidence of the deposit is from Mr Wade who says that when he was waiting to be taken to hospital he saw a lorry emerge from the site and shed some of its load albeit 50 metres down from the accident point. The photographs clearly show a large deposit of sand/gravel type material in the site itself and the substance appears to be similar in colour to that found which is deposited around the exit/entry and on the highway itself. I am accordingly satisfied that the most likely explanation for the deposit of sand on the road in this case is that it came from a negligently overloaded lorry or lorries which left  deposits at the exit and entry site particularly as the lorries would then have had to brake and turn out of the exit. It may well be, as was found in the case of Misell -v- Essex County Council 93 LGR108 [1994] decision of Colman J that the deposit on the highway in this case is due to a combination of the aggregate being dragged from the site on the wheels of lorries as well as being deposited by the lorry itself.
 
14.       I accordingly find as a fact that the cause of the deposit on the road in this case was that sand was dropped by one or more vehicles as those vehicles took away deposits of sand from the building site. I am satisfied that each deposit from any such lorry was negligent as no lorry should deposit substantial quantities of sand due to overloading or any other reason. I accept the Applicant’s evidence that he saw such a deposit being left by a lorry after his accident. Further it is unlikely that this deposit had been left on the road due to a build up of minor spillages because the Applicant was familiar with this route and travelled it everyday and does not say the site was always contaminated. This is not therefore a case where small non-negligent accumulations of sand have been left by a series of lorries which have built up over a period of time.
 
15.       I am satisfied that the cause of this accident was due to the position and presence of a large quantity of sand on the highway which caused the front wheel of this motorcycle to lose traction. In these circumstances I am satisfied that the lorry or lorries which deposited the load or loads were negligent. The fact that one or more lorries may have been negligent does not mean that the Applicant cannot succeed as obviously if one or more tortfeasors are responsible for a tort then each is jointly and severably  liable.
 
16.       I have considered in this case whether it would be appropriate to reduce the award for contributory negligence. However I am satisfied that on the evidence the Applicant was aware only of a wet patch on the road.  The Applicant did slow to a reasonable speed of 15 miles per hour. It does not appear that the Applicant was aware of the position and presence of the sand until he was almost on top of it or even only after the accident. In those circumstances I do not reduce the award for contributory negligence.
 
DECISION
 
17.       The decision in this case is to allow the appeal. I am satisfied that the likely explanation of the position and presence of the substantial quantity of sand on the highway was due to a negligent deposit from one or more vehicles and accordingly Clause 4(1)(a) is made out. I am also satisfied that Clause 7(6) is made out namely that the deposits were caused by one or more vehicles each of whom was negligent in failing to control the load which they were carrying. I do not find this was a case where the deposit was a gradual accumulation of small non-negligent deposits from a series of vehicles. 
 
FRANK BURTON QC
3 May 2011

 

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