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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacLeod v. Scottish Ministers & Anor [2003] ScotCS 293 (13 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/293.html Cite as: [2003] ScotCS 293 |
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OUTER HOUSE, COURT OF SESSION |
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A2716/01
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OPINION OF LORD CLARKE in the cause MHAIRI MACLEOD OR MACDONALD Pursuer; against (FIRST) THE SCOTTISH MINISTERS (SECOND) HIGHLAND COUNCIL Defenders:
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Pursuer: Wallace; Lindsays, W.S.
First defenders: Sheldon; R. Henderson, Scottish Executive
13 October 2003
Introduction
[1] In this action of reparation the pursuer seeks damages from the defenders in respect of injuries she sustained in an accident which she avers occurred to her on the A9 road, at a point approximately 1 mile north of the Dornoch Bridge, on 24 December 1993, at about 6.05pm. Only the first defenders have entered appearance. The first defenders make averments in answer 2 to the effect that "The Second Defender's statutory predecessors, Highland Regional Council ("the Council") entered into an Agency Agreement with the First Defender in terms of Section 4(1) of the Roads (Scotland) Act 1984, whereby the First Defender delegated to them the repair and winter maintenance of trunk roads within the Highland Region". The reference to the first defender in those averments is a reference to the Secretary of State for Scotland who was the relevant defender when this action was first raised in 1998. The now first defenders are the Scottish Ministers, who are his statutory successors.[2] The pursuer avers that the accident, which occurred to her, happened when a vehicle she was driving, skidded on black ice at the locus referred to above. In Article 2 of Condescendence, at page 7 of the closed record she avers that her fiancé who was a passenger in the car was killed in the accident and her sister, who was also a passenger, was severely injured.
[3] In Article 2 of Condescendence, at pages 6-7 of the closed record the pursuer makes the following averments:
"Explained and averred that at around the time of the accident the section of the road where the accident occurred was badly affected by black ice. The road surface temperature at the locus of the accident at around 6pm, on 24 December 1993 was sufficient to have created black ice but no lower than - 1C".
In Article 3 of Condescendence the pursuer avers as follows:
"It was the Council's duty therefore to take reasonable care for the safety of persons using the roads for which they were responsible, including motorists on the said road such as the Pursuer and to avoid exposing them to unnecessary risk of injury. In the performance of their said duties it was their duty to take reasonable care to prevent snow and ice endangering the safe passage of vehicles over public roads. In the circumstances condescended upon it was their duty to have gritted or salted the stretch of the said road where the Pursuer's said accident occurred. The Council failed to respond to their own reports and grit or salt roads in a dangerous condition. In particular they failed to grit or salt the section of road where the accident occurred at any time during the course of 23 and 24 December 1993 and up until the time of the accident. They failed to salt the said section of the road during the said period having undertaken to do so. Had the Council fulfilled all duties incumbent upon them the Pursuer's said accident would not have occurred".
First Defenders' Submissions
[4] The case came before me for discussion on the procedure roll. Counsel for the first defenders invited me to dismiss the action by sustaining the first defender's plea in law as to the relevancy of the pursuer's pleadings. Counsel advised me that his basic position was that the pursuer had simply failed to aver a relevant case of negligence. Her case, as pled, appeared to be one of absolute liability. What was missing from the pursuer's case were averments of the kind which had been set out as being necessary, in a case of this kind, in an opinion of my own in the case of Syme v The Scottish Borders Council 2003 SLT 601. In the present case the pursuer, it was submitted, periled her case on the basis that the locus of the accident should have been salted by the Council, at some time during the 23-24 December. Counsel for the first defenders drew my attention to calls made upon the pursuer at page 9 of the closed record by the first defenders. They are in the following terms:
"The pursuer is called upon to condescend upon the basis in fact for her averment that the Council did not salt the road during the course of 23 and 24 December 1993. She is further called upon to aver why any such failure was negligent".
The first defenders themselves specifically aver, at page 9, that on the 23 December 1993 the locus of the accident was salted by the Council as a precautionary measure and they go on to aver that the road was not re-treated thereafter because the weather conditions did not suggest that further treatment was necessary. The pursuer's case of fault was, it was submitted, baldly stated in Article 3 of condescendence, in the terms already quoted that is, "In the performance of their said duties it was their duty to take reasonable care to prevent snow and ice endangering the safe passage of vehicles over public roads. In the circumstances condescended upon it was their duty to have gritted or salted the stretch of the said road where the Pursuer's said accident occurred". What was absent were any averments that it would have been not only practicable for the Council to have done so but reasonable, in the circumstance, for them to have done so. The averments in Article 3 of Condescendence do go on to state that the Council failed to respond to their own reports and to grit or salt roads in a dangerous condition. Counsel for the first defenders then referred to the averment of the pursuer (at page 12 of the record) to the effect that the Council failed "to salt the said section of road during the said period having undertaken to do so". It was difficult, counsel submitted, to see what these averments meant and on what factual averments by the pursuer they proceeded. The pursuer did not even aver, in the present case, that it would have been reasonable and practicable for the Council to have gritted or salted the locus immediately before the accident. As was said in Syme even that would not have been sufficient. It would have been necessary when such averments were made to go on and say why any failure to take that step in the circumstances of the case was negligent see Syme at page 611 E-L. For example, there was no attempt, by the pursuer, in the present case, to aver that any failure to have salted or gritted the locus by the time of the accident resulted from a failure of the Council to establish a programme for dealing with such hazards or that any such programme or its implementation was clearly inadequate having regard to the programmes and conduct of other roads authorities. There were no averments of a previous accident, or accidents, having occurred at that locus, shortly before the pursuer's accident which had been brought to the attention of the Council and which, accordingly, may have placed a particular obligation on them to attend to it as a matter of priority. There was lack of specification, in any event, in the pursuer's averments, as to precisely when she maintained the salting or gritting should have been done which might have prevented the accident.
[5] The first defenders aver that the Council had decided to rely on residual salt levels which they considered would be sufficient for the conditions at the locus. The pursuer did not aver why that was unreasonable. The first defenders aver that Council ordered their vehicles to commence operations at 5pm on 24 December in response to a police report of icing up at a point 13 miles north of the locus of the accident. There were no averments by the pursuer as to why that, in the circumstances, was not a reasonable course for the Council to adopt. The pursuer's case, as had been said, was periled simply on what, in effect, amounted to a case of absolute duty upon the Council to have gritted or salted the locus so that it was free of black ice at the time of the accident.
Pursuer's Submissions
[6] In reply counsel for the pursuer took no issue with the law as I had endeavoured to set it out in the case of Syme. Counsel, however, said that, in the special circumstances of the present case, it was not necessary of the pursuer to make the appropriate averments regarding fault which were desiderated in Syme and the cases cited therein. That was because, in the present case, the pursuer seeks to establish that on 23 December the Council set out to grit the locus. She avers that they did not in fact do so. Counsel's submission was that as soon as the "Council set out" to do something they had to follow this through and actually do what they had set out to do. All it was contended the pursuer had to establish, after proof, was that the Council did not salt the stretch of road in question having "set out to do so". They meant to salt it but they did not do so. If it was not salted, there had been a failure to exercise reasonable care. The pursuer required to go no further, for the purpose of establishing liability. Counsel made these submissions under reference to one authority, namely, the case of Gibson v Orr 1999 SC 47O. In that case the Lord Ordinary, Lord Hamilton, was concerned with deciding whether or nor police constables, who had been called out to deal with a bridge which had collapsed, owed a duty of care to a passenger in a car which was driven on to the collapsed bridge, when the police constables had left the scene, without having had received confirmation that any barrier or warning had been placed at the bridge. His Lordship considered that it was, in the circumstances, fair, just and reasonable that a duty of care should be held to have been owed by the police constables to persons such as the pursuer. Counsel for the pursuer, in the present case, insofar as I could understand his submission in this regard, appeared to be contending that that case supported the approach of the pursuer in the present case in that the Court had imposed a duty of care where the police constables, in question, had undertaken the responsibility of making safe the locus of the accident. But, I am afraid that I am at a loss to see how that assists the pursuer's position, in the present case, where it is accepted in Scotland (though not it appears in England see - Goodes v East Sussex County Council (2000) 1 WLR 1356) that a roads authority owes a common law duty of care to road users in respect of hazards on the roads arising from snow and ice. The question, in the present case, is not whether or not there was a duty of care owed, but whether or not the pursuer's averments are sufficient to set out a relevant case of a breach of that duty. On this question counsel for the pursuer appeared to consider that it was sufficient to latch on to the first defenders averment that on 23 December 1993 the Council did salt the locus as a precautionary measure. She herself denies that that was done and counsel submitted if she succeeds, after proof, in showing that it was not done she would have established a common law case of negligence. Counsel for the pursuer was reminded that the pursuer's case, as averred, is not that the alleged breach of duty occurred by reason of failure to salt the road on 23 December, the Council having set out to do so on that day, but that the Council failed to do so at any time during the course of 23-24 December 1993 and up until the time of the accident. Counsel for the pursuer sought leave to amend to remove the words "and 24" and the word "and up until the time of the accident". That motion was opposed by counsel for the first defenders, and on hearing the opposition, counsel for the pursuer withdrew his motion, being content to base his submissions on his pleading as they stand. In conclusion counsel for the pursuer advised the Court that if the first defenders established that the locus was salted on 23 December, that is some 24 hours before the accident, then the pursuer would fail in her action.
First Defenders' Reply
[7] In reply counsel for the first defenders pointed out that the pursuer's pleadings did not indicate nor did her counsel submit why the locus should have been salted on the 23 December, apart from saying that the first defenders averred that the Council had done so. But even on the pursuer's own averments the hazard of black ice at the locus did not appear to arise on 23 December and continue until the time of the accident.
Decision
[8] In this case the pursuer avers that the accident occurred because of the fact that the vehicle she was driving skidded on a patch of black ice. She avers at page 6 that "at about the time of the accident the section of the road where the accident occurred was badly affected by black ice". She does not aver that that situation had continued from at least the 23 December and that the Council were aware of that being so. What she does aver is "the road surface temperature at the locus of the accident at around 6pm, on 24 December 1993 was sufficient to have created black ice but no lower than -1C." At page 7 of the closed record, she avers that "this section of the road had been left by the Council during the course of 23 and 24 December 1993 in a dangerous condition". It will be noted that the reference is to "this section of the road". I take it that the reference to the road is a reference to the A9. The pursuer does not specify the length of the section she is referring to nor does she indicate between which points in the road that section referred to is located. There are no averments by the pursuer referring to the Council not having programmes, systems or practices in place for dealing with icy roads in winter or any failure by them to implement any such programmes, practices or systems. There are no averments of accidents having occurred at the locus prior to the accident to the pursuer due to the presence of black ice and there are no averments of any such accidents having been reported to the Council. There is an averment in Article 2 of Condescendence page 5-6 to the effect that "prior to the said accident Detective Constable Jennifer Bowen of the Northern Constabulary, Inverness had reported treacherous road conditions on the stretch of the said road past the Dornoch Bridge to Mr McLennan of Highland Regional Roads." There is no specification given as to when that report was made and it was conspicuous, in any event, that counsel for the pursuer did not even refer to that averment in his submissions to support the position he did adopt in the discussion before me. It is an averment that is not carried through, in any event, to the averments of fault. Those averments are as previously noted. I am satisfied that the averments of fault simply do not meet the requirements of law set out in the previous authorities for instructing a common law case of negligence in such a situation, which authorities I sought to analyse and apply in my decision in the case of Syme. As I have already indicated, counsel for the pursuer did not seek, in any respect, to challenge my reasoning in Syme, or the decision itself, or any of the previous decisions upon which I relied, in my judgement, in that case. The only point, in the present case, which counsel for the pursuer advanced to allow the pursuer to avoid the requirements, as set out in the previous authorities, was, as I have already indicated the first defenders' averment that the Council did salt the locus on 23 December. The pursuer's averments of fault are not predicated on the duty being simply one of salting or gritting the locus at some point in time on 23 December but they are predicated on a duty extending over a longer period up until the precise moment of the accident. Ultimately testing the matter simply on the pursuer's own pleadings, what she avers is that no gritting or salting was done "on the stretch of the road" whatever that phrase means, over the period of 23-24 December and up until the point in time of the accident. She does not even aver that it would have been reasonably practicable for the Council to have done so. As, however, the cases of Gibson v Strathclyde Regional Council 1993 SLT 1243 and Gordon v Inverness Town Council 1957 SLT (notes) 48 make clear, even such averments would be insufficient in themselves for the reasons explained in those cases and in my own judgement in Syme.
The need for some precision in averments of fault, in a case like the present, is, in my judgment obvious when one considers that it is simply impossible for a Roads Authority, particularly in a large geographical region like the Highlands, to ensure that every patch of black ice which appears on roads within their area, is treated simultaneously and indeed continuously so as to avoid any vehicle skidding. As Lord Migdale said in Gordon v Inverness Town Council "the effects of a severe frost accompanied by snow cannot be overcome everywhere at the same time and the order in which measures such as applying sand are carried out is a matter within the discretion of the defenders and their servants".
[9] In the foregoing situation I am of the opinion that the pursuer cannot escape the need to specify why the fact, if it be a fact, that the Council did not salt or grit the locus on 23 or 24 December up until the time of the said accident, amounts to a failure on the part of the Council to take reasonable care, in the particular circumstance in line with what is desiderated in Syme and the other authorities. She does not do so and, accordingly, in my opinion, her case is irrelevant and falls to be dismissed. I, accordingly, sustain the first defenders' plea in law and dismiss the action.