Man who struck motorway barrier ordered to pay maintenance contractor just over £8k for repairs

About this case:

• Citation:
  [2025] SC PER 66
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff S G Collins

Bear Scotland Ltd, which was responsible for maintaining the, raised a claim for £10,611.38 against Scott Dammer for the costs it incurred in fulfilling its contractual obligations to the Scottish Ministers. It was not disputed that the defender’s fault and negligence was the cause of the damage, with proof restricted to whether there was sufficient evidence to prove the loss claimed by the pursuer.

The case was heard by Sheriff Simon Collins KC, with Clyde & Co., solicitors, appearing for the pursuer and DWF LLP, solicitors, for the defender.

Worrying precedent

On 12 December 2019 the defender was driving a motor vehicle on the M90 motorway, approaching a major road sign near Junction 5. A safety barrier extended from the location of this sign along the left side of the carriageway in the direction of oncoming traffic, which had been constructed relatively recently and was not in need of repair. As the defender’s vehicle approached the sign it left the carriageway and collided with the P4 terminal at the end of the barrier, causing damage to it and to the section of the barrier to which it was attached.

Evidence was given by the pursuer’s commercial director, Mr Godsell, who explained the pursuer’s established process for barrier repairs. The repair in this case was classed as a category 1, requiring repair within 28 days. As a result, it was done using items already held in stock, with no invoices capable of being produced, and by the pursuer’s own employees rather than subcontractors.

Both parties referred to the Court of Appeal’s decision in Coles v Hetherton (2015) and a series of English county court decisions establishing that damage to highway furniture constituted damage to a chattel, and therefore equated to corporeal moveables in Scots law, with the appropriate award one for damages for diminution in value. For the pursuer it was submitted that if the defender was successful in trimming components of its costs it would set a worrying precedent for organisations contracted by the Scottish government to carry out road repairs. The costs produced were based on a competitive tender and the evidence of Mr Godsell should be accepted as credible and reliable.

The defender’s solicitor noted that Mr Godsell had not been directly involved in the management of the repairs, and he had repeatedly referred to documents not produced for the court. The evidence of the defender’s witness Mr Johnson, a highways loss adjuster who placed the value of the claim between £6,000 and £7,000, should be preferred. To allow the pursuer to rely on the costs charged by it would be to permit them to set their own market rate, which would be undesirable.

Threshold test

In his decision, Sheriff Collins said of Mr Godsell’s evidence: “I found it to be detailed and clear, and demonstrated his long experience in adjusting claims of this type and familiarity with the many technical issues involved. I accepted him as a credible and reliable witness, and this is reflected in my findings in fact based on his evidence. It is true that the contract and schedule, the price fluctuation index, and the CECA rates, were not lodged, but it was not submitted that Mr Godsell’s evidence was inadmissible in the absence of them. He was familiar with these documents and was able to give clear evidence about those parts of them relevant to the items of work set out in the valuation.”

He continued: “If the defender had wanted to challenge Mr Godsell’s evidence by reference to the documents mentioned, it could have readily obtained and lodged those which are publicly available, and recovered the relevant parts of the contract and schedule by specification, but did not do this. In the circumstances I was prepared to accept Mr Godsell’s evidence as credible and reliable even in the absence of the documentation just mentioned.”

Considering whether the pursuer had pled a relevant case, Sheriff Collins said: “The county courts in England and Wales have held that unless the total sum claimed in a highway furniture quantum dispute appears ‘clearly excessive’, it need not be examined in detail. This threshold test seems to have been introduced – in effect - as a matter of legal policy, mindful of the large number of such disputes being litigated. It immediately begs the question, clearly excessive relative to what point of reference? I consider that contractual charges can in this case provide such a reference point. This difference comes down not to matters of law, but to the nature and extent of the evidence led.”

He concluded: “As no subcontractors were involved in the work, and all the pursuer’s employees would have been entitled to a double time uplift for night time working, I am not satisfied that the application of a 15% uplift across the board is excessive in this case, or represents an unreasonable addition to the cost of the repairs overall. In other cases conceivably it may do – for example where a greater proportion of the total cost comprises plant and materials relative to labour. But in any event, as I have made deductions in relation to the claims for both the extension to the barrier, and consequently the traffic management costs, so the uplift for night time working must also be reduced.”

Decree was therefore granted for payment of the sum of £8,179.18 as compensation for the loss occasioned by the defender’s negligent driving.