Anne Marie Bowes And Others Against The Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Mulholland |
| Neutral Citation | [2017] CSOH 53 |
| Court | Court of Session |
| Published date | 24 March 2017 |
| Year | 2017 |
| Docket Number | A570/12 |
| Date | 24 March 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 53
A570/12
OPINION OF LORD MULHOLLAND
In the cause
(1) ANNA MARIE BOWES; (2) DAVID EWAN BOWES;
(3) JEMMA LOUISE ILLINGWORTH; (4) ANNE SCOTT; (5) JUNE BOWES;
(6) BRIAN BOWES; (7) DEBORAH BOWES and (8) CHRISTINE GRANT
Pursuers
against
THE HIGHLAND COUNCIL
Defender
First, Second, Third, Fifth, Sixth, Seventh and Eighth Pursuers:
Hanretty QC, and Lloyd; Aitken Nairn, W.S.
Fourth Pursuer: McSporran; Balfour and Manson LLP
Defender: Milligan QC and Reekie, Ledingham Chalmers LLP
24 March 2017
Introduction
[1] On 2 February 2010 at around 10am David Michael Bowes was driving his Toyota Hilux 4 x 4 pickup on the A838 road in a westerly direction. Whilst travelling across the Kyle of Tongue bridge the vehicle crossed from the westbound to the eastbound lane, mounted the kerb on the north side of the bridge, collided with the parapet and fell into the water. Unfortunately, Mr Bowes was unable to escape from the vehicle and drowned. In this action, his partner Anne Scott (fourth pursuer), parents June Bowes and Brian Bowes (fifth and sixth pursuers), children Anna Marie Bowes, David Ewan Bowes and Jemma Louise Illingworth, accepted by the deceased as a child of his family, (first, second and third pursuers) and sisters Deborah Bowes and Christine Grant (seventh and eighth pursuers) seek damages from the defender on the basis that the accident was caused by the defender’s failure at common law to take reasonable care for his safety whilst crossing the bridge.
[2] The case came before me for proof on liability. Quantum of damages was agreed in the event that liability was established. This is set out at paragraphs 7.1 to 7.5 of joint minute of agreement one (JM 1). At the proof the pursuers led evidence in support of their case. The fourth pursuer, Anne Scott, the deceased’s partner for 10 years, gave evidence and led evidence from Kristun Scott, the fourth pursuer’s son and the deceased’s apprentice. The first, second, third, fifth, sixth, seventh and eight pursuers led evidence from Ross Mackintosh, another of the deceased’s apprentices; John Findlay, a member of the public who was first on the scene; Ian Burns, a paramedic who attended the scene, PC Stokes, a police officer who attended the scene; Alexander Morrison, the area supervisor with the defender’s roads department and a coastguard who attended the scene and helped with the rescue; Ian Macleod, a paramedic who attended the scene; Douglas Potter, a friend of the deceased’s partner who took photographs of the bridge six days after the accident; PC Mathers, who carried out an accident reconstruction; Les Christie, the defender’s engineer who produced a report on the bridge in 2005; John Webb, a civil engineer who co‑authored a report on the bridge in 2008; Dr John Searle, a chartered engineer who produced an expert report; and Ian Hunt, a bridge engineer who produced an expert report.
[3] The defender led evidence at the proof. Evidence was led from Ian Moncrieff, the Chief Engineer of Highland Council; David MacKenzie, the Chief Structural Engineer for Highland Council; Donald Louttit, a Principal Engineer for Highland Council; Mark Littler, a Forensic Collision Investigator who produced an expert report; and William Day, a Chartered Civil Engineer who produced an expert report.
The Deceased, David Michael Bowes
[4] David Michael Bowes was born on 25 October 1963. He was aged 46 at the time of his death. He was self‑employed, running a heating and plumbing business, “David Bowes Heating and Plumbing”. He employed three people. He had three vehicles at the time of the accident, two vans and a pickup truck. He was a careful and slow driver. This was spoken to by his partner, Anne Scott, and Kristun Scott and Ross Mackintosh, two of his apprentice employees, who had all travelled in vehicles driven by him. Anne Scott referred to him having to be urged sometimes to go faster and that he pointed out to his employees that his name and reputation was on the sides of the vehicles that they were driving when reminding them of the need to drive carefully and observe the speed limits. Ross Mackintosh referred to a standing joke amongst the employees that on a Friday afternoon when travelling home having completed that day’s work, whilst the younger employees were eager to get home to prepare for a Friday night out, he would not be pressurised into driving faster to get home quicker. I accepted this unchallenged evidence.
The Bridge and Road
[5] The accident took place on the Kyle of Tongue bridge which is owned by the defender. The bridge, which was completed in 1971, forms part of the A838 which runs generally in an east to west direction. The bridge traverses the Kyle of Tongue waterway. The bridge carriageway is single lane with white centre lane markings. The carriageways are narrow in comparison to the width of more modern carriageways on bridges. The road surface is bitumen macadam with granite chip inlay. The road is 5.45 metres wide, consisting of two lanes of equal width. The road is bordered by a raised footway on either side. The footway is 1.3 metres wide on the south side and 0.75 metres wide on the north side. The length of the bridge is 183 metres and the overall width is 8.5 metres. The drop from the bridge to the water is around 3 metres. The road is straight. The speed limit for the bridge was 70 mph when built and in February 2010 was 60 mph. The bridge is not heavily trafficked and is the second longest bridge owned by the defender. The bridge is an essential link for the local community. It is used inter alia by a school bus provided by the defender, delivery lorries, tourist buses, a summer bus service between Inverness and Durness, and emergency service vehicles. If the bridge was closed, depending on the size of the vehicle, a detour of around one hundred miles would be required. Consequent to a special investigation in 1988, major repairs were carried out to the bridge in 1989. The defender is the authority for managing and maintaining the bridge and its parapets, which is one of 1,400 bridges under the management of the council. In addition to the management of bridges in the council area the defender is responsible for managing 700 culverts and over 1,000 retaining walls.
Events Prior to the Accident
[6] On 2 February 2010 the deceased, David Michael Bowes left home at just after 8 am. He met his employees to discuss that day’s work at the other end of the village where he lived with the fourth pursuer, Anne Scott. He returned to his home for a cup of coffee before setting off in his vehicle at around 9.20 am to see a potential customer in Durness. This required him to cross the Kyle of Tongue bridge in a westerly direction. He was in no hurry and was in a good mood. He drove his silver coloured Toyota Hilux 4 x 4 pickup truck, registration number SC09 VJL, to the bridge. He was alone in the vehicle. The weather between 9.20 – 10.00 am was poor with squalls of snow showers and the road surface was covered with snow and slush (JM1 at paragraphs 4.3 and 4.4). The deceased crossed the bridge at around 10 am. High tide on 2 February 2010 occurred at 9.50 am.
The Accident
[7] There are no witnesses to the accident and what happened has had to be pieced together inferentially from real, expert, oral and agreed evidence. As the deceased crossed the bridge his vehicle crossed from the west bound to the east bound lane, mounted the kerb on the north side of the bridge, collided with the parapet between stanchions 8 and 9 and fell into the water. The 12 west most stanchions (numbers 1 – 12 left hand side) and railings on the north side broke off at the welds over a distance of about 38 metres and swung out from the bridge. Stanchions 13 and 14 fractured but remained attached. Dr John Searle, a Chartered Engineer, Fellow of the Institute of Mechanical Engineers and Fellow of the Institute of Highways and Transportation, who had extensive experience in conducting tests of vehicles colliding with parapets and fences at the UK research facility, described this phenomenon as being akin to the “unzipping” of this section of the parapet. I accepted this evidence which was consistent with the photographs of the parapet post‑accident where the section of the parapet has separated from the bridge deck and swung away (appendix 2 photographs 7, 8 and 9 of the Northern Constabulary Collision Investigation Report which is 6/3 of the inventory of productions and photograph 14 of 6/79(c) which is one of a set of photographs taken by Northern Constabulary). It is clear to me, as confirmed by Dr Searle, that the parapet at this section has not behaved as designed. My finding in respect of this will be further set out in the section headed parapet.
[8] The witness John Findlay, who knew the deceased, having done some jobs for him in the past, was the first person to arrive on the scene. At or around 10 am he was driving to Tongue from Melness approaching the bridge at the west end of the causeway when he noticed that the railings on the north side of the bridge had disappeared off the bridge. He stopped to see what had caused the damage and saw the rear end of a vehicle visible above the water line. The vehicle was on its roof and the front of the vehicle was submerged. The vehicle was slightly back from the edge of causeway, around 20 – 25 feet from the edge of bridge, at a slight angle. The front of the vehicle was facing more to the east, skewed around clockwise. He described the current as flowing out to the sea and forming eddies due to the volume of water. He went to summon help and returned to the scene where paramedics and roads department personnel were in attendance. He managed, with the help of others, to get a hitch onto the vehicle. However, attempts to right it were unsuccessful and so a cargo strap was attached to the vehicle from a Roads Department gritter and the vehicle was pulled...
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Bowes v Highland Council
...(Mulholland) for a proof on liability. At advising, on 24 March 2017, the Lord Ordinary found the defenders liable to the pursuers ([2017] CSOH 53). The defenders reclaimed. The pursuers were relatives of a man killed in a road accident on 2 February 2010, on the A838 Kyle of Tongue bridge.......