Excessive overbanding strip causes loss of control.
During October 2022, Motorcycle Law Scotland was approached by Paul seeking assistance in pursuing a personal injury claim. He came to us after being told that Motorcycle Law Scotland staff were all motorcyclists and experts in pursuing motorcycle related injury claims.
Paul told us that he'd been involved in a serious road traffic collision while in the highlands, riding his bike east on the Old Military Road, also known as the A939. When Paul came off his bike, he was with a group of friends who had been touring Scotland from the North of England.
As motorcyclists, we know the A939 well. It's a wonderful two-lane road, full of gentle sweeping bends and some really nice up and down twisty sections, travelling across moors and through forests, all with magnificent views. It extends south from the seaside town of Nairn on the Moray coast, down through to Grantown on Spey, turns east through Tomintoul and then passes through the Lecht Ski Centre before continuing on to Ballater, where it joins the A93. In the summer months, this road is extremely busy as it’s a popular route for motorcyclists and other tourists.
On the October morning when Paul had his accident, the road surface was damp. Paul, who works with the Police service and is an Institute of Advanced Motorcyclist Instructor, as well as being an Advanced Police Motorcycling Instructor, was, as you might expect, riding to the conditions. After travelling through Grantown on Spey, Paul was nearing an area known as Dirdhu when he encountered a gentle left bend with high banking on the left side. The road is two way at this point and as an advanced rider, Paul moved towards the central dividing line to extend his view around the corner. Immediately, he encountered an excessive overbanding strip causing him to lose control of his front wheel and to come off his bike. Fortunately for Paul, there was no traffic approaching him in the opposing lane.
Shocking results at locus examination
Although specifically referring to a method of treating surface fretting, overbanding has grown to become a catch-all term used to describe any type of tarmacadam road surface sealant. The use of overbanding and other such joint sealants is controlled by the 'New Roads and Street Works Act 1991' and the Act covers the specifications for the Reinstatement of Openings in Roads. Section 11.7 specifically deals with overbanding and, amongst other things, it defines the minimum skid resistance value and tells contractors that tar banding should not exceed 3 mm in thickness or 40 mm in width.
Within days of Paul reporting his injury to us, we travelled the 165 miles to the scene of the crash to see things for ourselves and to carry out a full locus examination. We took a series of photographs and measurements, and what they revealed was truly shocking. The carriageway width was 5.5 metres, meaning each lane was approximately 2.75 metres wide. The section of joint sealant Paul encountered came out from the left side of the road by 2.1 metres, taking it to within 650mm of the road centre, which is right where an advanced motorcycle rider would position his front wheel! As if that wasn't bad enough, the overbanding then turned parallel to the centre of the road and travelled east for over 45 metres before turning back to the verge.
Highland Council: "we do not use overbanding."
We could not establish the exact depth (which should have been no more than 3mm) but it seemed to exceed the regulation. We could, however, measure the width and we did that at 8 different places. Mindful of the 40 mm maximum, what we found was astonishing: 70mm, 105mm and 80mm (see pictures).
Armed with this evidence, we notified Paul's claim to Highland Council in Inverness, who initially admitted working on the road three months prior to Paul's accident. When intimating Paul’s injury claim we also expressed our serious concern about the condition of the road and requested that further competent repairs be carried out.
Highland Council responded to Paul’s claim by denying liability and saying:
“We do not use overbanding, we use bitumen edging”
We were shocked that a local authority was willing to get into the semantics of what to call a defective hazard that they had installed rather than holding their hands up to the fact that they had been negligent, installing joint sealant with very little skid resistance which posed a considerable threat to motorcyclists and their safety.
Within a few months of Paul's collision, we heard that yet another motorcyclist had encountered a similar joint sealant at a different location, and we again asked Highland Council to make the road safe. This did not happen, and in June 2023 Highland Council contradicted itself by now saying they had no record of making any repairs!
Motorcycle Law Scotland fight Paul's corner
Our solicitors are never deterred, and through a Freedom of Information request we established that the road had been worked on by a contractor instructed by Highland Council. We also established that the road had been inspected by Highland Council and that their method of inspecting the road was to send a single person out in a van! We have to ask the question, how can a single person driving on a road pay attention to the condition of the road surface at the same time, and do they consider the safety of vulnerable road users such as motorcyclists?
In May 2024, all aspects of Paul’s claim were denied by Highland Council, but we had done our homework and we prepared our case for Court. It took until mid-December 2024, for Highland Council to finally admit liability and a five-figure settlement was offered which was duly accepted by Paul.
Motorcycle Law Scotland are committed to guiding vulnerable road users through the unknown and we're extremely happy to have helped Paul bring his claim to a successful conclusion. However, we cannot express how disappointed we are that Highland Council have so far refused to repair this dreadful road surface.
Our advice to anyone experiencing a similar situation is to take photos and measurements as soon as you're able. These can be invaluable if you raise a claim. Contact us if you'd like a Motorcycle Law Scotland ruler.
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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