Ms O’Connor is a motorcyclist who sustained serious injuries following an accident in September 2016.

On that date, Ms O’Connor visited a petrol station in Luton to fill up her Ducati 800 Scrambler motorcycle with fuel. As she was leaving the petrol station, she lost control of her motorcycle and accelerated across the road into the path of an oncoming car. She suffered considerable injuries as a result of the collision, including a brain injury, which left her with no memory of the incident.

Road surface defect on exit from petrol stationIn order to recover the costs of her personal injury and the damage sustained to her motorcycle, she made a claim against Luton Borough Council on the basis that they were responsible for that section of the road.

Her claim against Luton Borough Council was based on the evidence from a motorcyclist whom she had been aiming to join as she pulled out of the petrol station. That motorcyclist asserted that as Ms O’Connor had pulled out of the petrol station, her back wheel had dropped into a rut, causing her front wheel to rise up and propel her motorcycle into the path of the oncoming car.

The crucial issue for the court to decide was whether it had been the defect that had caused Ms O’Connor to lose control of her motorcycle and, if so, whether the defect had rendered that section of the road dangerous to traffic.

To help the court reach a decision, Luton Borough Council instructed a range of experts, including accident reconstruction experts and motorcycle handling experts.

The accident reconstruction and motorcycling handling experts both gave independent evidence to the effect that Ms O’Connor had likely carried out a phenomenon known as a ‘whisky throttle’ which had caused her to collide with the car. A ‘whisky throttle’ is a natural reaction to a danger and involves a person gripping the throttle too tightly, thus causing the bike to rev up and accelerate forward in an uncontrolled fashion.

The court accepted that as Ms O’Connor had left the petrol station and joined the road, there had been a momentary loss of grip to the rear wheel. When the rear wheel had regained traction, it had caused her motorcycle to lurch forward with Ms O’Connor then instinctively gripping the throttle and accelerating into the road: the whiskey throttle phenomenon.

The court was then interested in ascertaining what had caused Ms O’Connor to lose traction. As Ms O’Connor had no recollection of the incident herself, she relied upon the evidence of the motorcyclist who claimed to have seen her back wheel go into a rut and that it was this which had caused the loss of control and the collision.

Unfortunately for Ms O’Connor, the court did not accept the evidence provided by the motorcyclist on the basis of unreliability. The court held his evidence to be unreliable for a variety of reasons. Firstly, when speaking to the police officers at the scene, he had failed to mention that he had seen Ms O’Connor enter a rut and it had been this which had caused her accident. He then failed to report the defect, which he had deemed to be dangerous, to the Local Authority, after witnessing such a serious incident.

The court concluded that, as a motorcyclist, Ms O’Connor would have had a wide choice as to which part of the road to use to exit from the petrol station, particularly as the exit in question was some 8.5 meters wide. In addition, there was no evidence to suggest that she had indeed ridden over the defect. The driver of the car involved in the collision gave evidence to the effect that she had seen Ms O’Connor exit the station at the right-hand side of the junction, meaning Ms O’Connor would have avoided the rut completely. Unlike the motorcyclist, the driver’s evidence was deemed to be reliable and consistent throughout.

So, what caused Ms O’Connor to lose traction if it was not the defect? The court found it likely that Ms O’Connor would have been anxious to join the line of traffic at just the right moment so as to meet up with her fellow motorcyclists. In her hurry to do so, she let go of the clutch too quickly causing her motorcycle to lurch forward thereby setting off the train of events described above.

The court determined that even if the incident had been caused by Ms O’Connor riding over the defect, her claim would still have failed because the highway was not deemed dangerous to traffic. The court based this decision on the evidence provided by a highways expert. Despite its presence in the road for at least two years, no member of the public had complained about it. Nor had any accident, other than that of the Ms O’Connor, been reported. Further, it was held that it was a type of minor defect that is not often seen on a road and could readily be avoided by a person paying proper attention.

Case dismissed!

You can read the full decision here.

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