Motorcycle loses grip on overbanding on rural Angus road
Max approached Motorcycle Law Scotland after being involved in a motorcycle accident in Angus. He’d previously engaged another well-known personal injury firm to assist as he had been unaware of Motorcycle Law Scotland.
However, after being recommended to us by his local motorcycle dealer, he learned about our expertise, not just as experienced motorcyclists, but as a team who consistently and successfully pursue overbanding claims. With this knowledge to hand, he immediately changed his representation.
Max explained that he had been riding his BMW R1250 south on a rural road in Angus travelling at about 45mph. He was accompanied by his two adult sons. Max is a highly experienced motorcyclist having ridden motorcycles for 55 years.
As Max negotiated a left hand bend, his motorcycle suddenly fell from underneath him. He was forcibly dismounted from his machine and thrown across the road. It turned out that Max’s front wheel had encountered excessive joint sealant, also called overbanding.
Fortunately, it was a quiet road, so Max did not end up in the path of oncoming traffic but he was seriously injured sustaining over ten rib fractures and a blunt head injury. Thankfully, one of his sons managed to capture it all on his 360 view camera.
Investigation reveals excessive road surface joint sealant
This photograph shows what is informally known as overbanding but is perhaps more appropriately described as ‘tarmacadam road surface joint sealant’.
Joint sealant work is strictly regulated by the New Roads and Street Works Act 1991 and the Act gives authority to the Specifications for the Reinstatement of Openings in Roads. Section 11.7 specifically deals with overbanding and amongst other things it requires that tar banding at surface level should not exceed 40mm in width.
From the photographs taken shortly after the accident, we were able to establish the sealant measured approximately 200 metres in length and went up to around 90mm in width in places.
We attended the scene of the accident as part of our own investigation and recorded the width of the overbanding was on average between 55mm and 80mm in width.
Angus Council denies liability for the motorcycle accident
We submitted Max’s claim for personal injury and loss to the responsible Roads Authority, Angus Council, on the basis that they had failed to adequately maintain the road. We also submitted Freedom of Information requests to Angus Council and obtained statements from the emergency services who attended afterwards.
We instructed a highly experienced civil engineer. His opinion was that the poured bitumen (overbanding) provided minimal slip resistance, and it existed at a point in the road where motorcyclists could be expected to be riding. He commented that poured bitumen as joint sealant was once common practice, but that had not been the case for many years! Our expert went so far as to say that, in his opinion, Angus Council should have prohibited its use as a joint sealant.
Despite setting out our case and providing photographs, the Council confirmed that they considered the road to be in good condition. Liability was denied.
We raised Max’s case in court stating the joint sealant presented a significant risk to motorcyclists and this should have been apparent to a competent roads inspector and rectified. The Council responded with a continued denial of liability stating that as an experience motorcyclist, Max should have adjusted his speed and position to avoid the overbanding!
Specialist motorcycle lawyers secure settlement before court
With this denial, battle lines were drawn and we prepared to fight for Max all the way. The Council failed to appreciate that in blaming Max, they were accepting that the sealant was an obvious hazard and that being the case, their inspector should have noticed it.
With a meticulous case prepared and organised to go to court, the Council all but admitted defeat. With only a month to go before the final court hearing, a good offer was made and accepted.
As a team of motorcyclists, our main priority is supporting vulnerable road users from start to finish. We are the only personal injury firm in Scotland whose lawyers also ride and understand what it means to be a motorcyclist.
Whilst we are always here to help motorcyclists when they are injured through no fault of their own, our preference is that such accidents do not happen in the first place. It has been known since the 1980s just how dangerous untreated joint sealant can be to those on two wheels . We are committed to raising awareness amongst roads authorities just how dangerous this kind of overbanding can be.
We believe that all those involved in road maintenance and inspection should be trained to understand the experience of different road users and to base their decisions on how the most vulnerable road users, such as motorcyclists, are affected.
Our Award Winning Team
Brenda Mitchell
Senior Partner
Brenda has been a Personal Injury Lawyer for over 38 years and for the last 20 years has specialised representing injured motorcyclists, cyclists and pedestrians.
Jodi Gordon
Partner
Jodi is a Partner at RTA Law LLP with 14+ years’ experience in catastrophic injury claims for vulnerable road users including cyclists and motorcyclists.
Thomas Mitchell
Partner
Thomas represents clients who have been involved in road traffic incidents and he specialises in representing vulnerable road users such as pedestrians, cyclists and motorcyclists.
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