Bowes v Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Mulholland |
| Judgment Date | 05 June 2018 |
| Neutral Citation | [2018] CSIH 38 |
| Date | 05 June 2018 |
| Court | Court of Session (Inner House) |
| Docket Number | No 28 |
[2018] CSIH 38
Second Division
Lord Mulholland
Allan (AJ) (Blairnyle) Ltd v Strathclyde Fire Board [2016] CSIH 3; 2016 SC 304; 2016 SLT 253; 2016 SCLR 659
Bird v Pearce [1979] RTR 369; 77 LGR 753
Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] 3 WLR 1151; [1997] 4 All ER 771; [1998] PIQR P10; [1998] Lloyd's Rep Med 26; 39 BMLR 1; [1998] PNLR 1; (1997) 94 (47) LSG 30; 141 SJLB 238
Dewar v Scottish Borders Council [2017] CSOH 68; 2017 GWD 15–250
Fraser v Glasgow Corporation 1972 SC 162; 1972 SLT 177
Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057; [2004] 2 All ER 326; [2004] RTR 27; [2004] PIQR P32; 101 (18) LSG 35; 148 SJLB 419
Great North Eastern Rly v Hart and ors [2003] EWHC 2450
Honisz v Lothian Health Board [2006] CSOH 24; 2008 SC 235; 2006 GWD 19–414
Hunter v Hanley 1955 SC 200; 1955 SLT 213; [1955–95] PNLR 1
Hyde (Michael) & Associates Ltd v JD Williams & Co Ltd [2001] BLR 99; 3 TCLR 1; [2000] Lloyd's Rep PN 823; [2001] PNLR 8; [2000] NPC 78
Innes v Magistrates of Edinburgh (1798) Mor 13189
Jackson v Murray [2015] UKSC 5; 2015 SC (UKSC) 105; 2015 SLT 151; 2015 SCLR 235; 2015 Rep LR 42; [2015] 2 All ER 805; [2015] RTR 20; [2015] PIQR P16
K2 Restaurants Ltd v Glasgow City Council [2013] CSIH 49; 2013 GWD 21–420
Kane v New Forest District Council [2001] EWCA Civ 878; [2002] 1 WLR 312; [2001] 3 All ER 914; [2002] 1 PLR 7; [2002] JPL 409; [2001] 27 EG 132 (CS); [2001] NPC 100
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17
Levine v Morris [1970] 1 WLR 71; [1970] 1 All ER 144; [1970] 1 Lloyd's Rep 7; [1970] RTR 93; (1969) 113 SJ 798
Macdonald v Aberdeenshire Council [2013] CSIH 83; 2014 SC 114; 2014 SLT 2; 2014 SCLR 111; 2014 Rep LR 2
McFee v Police Commissioners of Broughty Ferry (1890) 17 R 764
McGivney v Golderslea Ltd (2001) 17 Const LJ 454
Muir v Glasgow Corporation 1943 SC (HL) 3; 1944 SLT 60; [1943] AC 448; [1943] 2 All ER 44
Murray v Nicholls 1983 SLT 194
Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 3 WLR 776; [2000] 4 All ER 504; [2000] 3 FCR 102; (2001) 3 LGLR 5; [2000] BLGR 651; [2000] Ed CR 700; [2000] ELR 499; 3 CCL Rep 156; 56 BMLR 1; 150 NLJ 1198; 144 SJLB 241
Rider v Rider [1973] QB 505; [1973] 2 WLR 190; [1973] 1 All ER 294; [1973] 1 Lloyd's Rep 524; [1973] RTR 178; 71 LGR 150; (1972) 117 SJ 71
Sargent v Secretary of State for Scotland 2001 SCLR 190; 2000 Rep LR 118; 2000 GWD 28–1089
Smith v Middleton 1971 SLT (Notes) 65
Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 All ER 801; [1996] RTR 354; 93 (35) LSG 33; 146 NLJ 1185; 140 SJLB 201
Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94
West Sussex County Council v Russell [2010] EWCA Civ 71; [2010] RTR 19
Yetkin v Mahmood [2010] EWCA Civ 776; [2011] QB 827; [2011] 2 WLR 1073; [2011] PTSR 1295; [2010] RTR 39
Highland Council, Bridge Maintenance Programme for Sutherland 2005–2015 (Highland Council, Inverness, October 2005)
Transport (Department for), Assessment and Upgrading of Existing Vehicle Parapets (IAN 97/07)) (Department of Transport, London, August 2007), para 6.7 (Online: http://www.standardsforhighways.co.uk/ha/standards/ians/pdfs/ian97.pdf (20 July 2018))
Transport (Ministry of), Technical Memorandum: Highway bridge parapets (BE5/67) (Ministry of Transport, London, January 1967)
Reparation — Personal injury — Roads authorities — Duty of care to road users — Standard of care to be applied — Whether defective bridge parapet constituted a hazard to road users — Whether interim safety measures required
Reparation — Negligence — Contributory negligence — Driver negligently losing control of vehicle before crashing through defective parapet
Anne Marie Bowes and others raised an action of damages against Highland Council following the death of David Michael Bowes in a road accident, on the basis of an alleged failure at common law to take reasonable care for his safety as a road user. The cause called before the Lord Ordinary (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. The deceased was driving when his motorvehicle crossed to the opposite side of the road, mounted the kerb, collided with the bridge parapet and fell into the water. Twelve of the stanchions forming the parapet had broken off as a result of the impact and swung out from the bridge. The defenders were the roads authority responsible for managing and maintaining the bridge and its parapets. An inspection in 2005 by the reclaimers had revealed “severe” defects with the parapet. The reclaimers instituted a monitoring programme but this was discontinued in 2008. A report commissioned from consultant engineers in September 2008 classified the parapet as “low containment”. No road restraint risk assessment or risk assessment in relation to the parapet was carried out before the accident. The defenders had identified interim safety measures but they did not implement them prior to the accident.
The pursuers brought an action against the defenders on the basis of their failure at common law to take reasonable care for the driver's safety while crossing the bridge. The pursuers contended that the defenders ought to have introduced interim safety measures or to have closed the bridge. The Lord Ordinary found that the driver's loss of control of his vehicle was due to negligence. The Lord Ordinary also found that, immediately prior to the accident, the defenders were aware that the parapet was not compliant with current standards and was defective, that its containment capacity was compromised, and further that had the parapet been acting to its design capacity, the driver's vehicle would have been contained by the parapet. The Lord Ordinary held that the defenders had owed a duty of care to the deceased, that the standard of care was whether a roads authority using reasonable care would have identified the hazard and taken steps to correct it, and that the defenders had breached their duty by failing to implement interim safety measures. The Lord Ordinary found that there had been no contributory negligence on the part of the deceased.
Before the Inner House, the defenders contended that: (1) while a duty of care was owed by roads authorities to motorists, that duty was circumscribed to prevent effectively unlimited liability arising and to recognise the financial constraints under which roads authorities operated; (2) the Lord Ordinary had erred in finding that the parapet was a hazard, by failing to appreciate that circumstances could only be described as hazardous if a hazard was presented to reasonably careful road users; (3) the Lord Ordinary had applied the wrong standard of care, and should instead have considered whether the hazard would have been apparent to a competent roads engineer exercising professional judgment; and (4) the Lord Ordinary had erred in failing to make a finding of contributory negligence on the part of the deceased.
Held that: (1) roads authorities had a duty of care towards roads users at common law, the scope of which had to be assessed in the same way whether the defenders were a local authority or a private entity, with the financial circumstances of the defenders no more than a relevant consideration (para 45); (2) the standard of care was that of a roads authority using reasonable care given that the defenders had already identified the existence of the hazard and that their subsequent actions were not dependent upon professional judgment but rather the application of common sense (para 47); (3) the defective parapet was a hazard which a roads authority was obliged to take steps to correct as it caused a significant risk of an accident of a type and severity that would not otherwise have arisen to a careful road user, the significant risk of falling from the bridge into the sea was a manifest danger against which the defenders were bound to take preventative measures (para 49); (4) the Lord Ordinary had made an identifiable error in failing to take account of the driver's negligence, and a finding of 30 per cent contributory negligence on the part of the deceased was appropriate (paras 57, 58, 61–64); and reclaiming motion allowed in part.
Macdonald v Aberdeenshire Council 2014 SC 114 considered and
Jackson v Murray 2015 SC (UKSC) 105 followed.
The cause called before the Second Division, comprising the Lord Justice-Clerk (Dorrian), Lord Menzies and Lord Drummond Young, for a hearing on the summar roll, on 10 and 11 April 2018.
At advising, on 5 June 2018, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court—
[1] This reclaiming motion arises from the death of David Michael Bowes in a road traffic accident, on 2 February 2010, on the A838 Kyle of Tongue bridge. Before the Lord Ordinary, the respondents founded upon the alleged failure at common law of the reclaimers, as the roads authority for managing and maintaining the bridge and its parapets, to take reasonable care for the deceased's safety while crossing the bridge. Specifically, it was alleged that the reclaimers, knowing prior to the accident that the bridge and parapet were in a defective condition, ought in the exercise of reasonable care to have introduced interim safety measures, or alternatively closed the bridge. The Lord Ordinary held that the death would have been prevented had the defenders and reclaimers not ‘breached [their] duty to deal with the hazard, namely the defective parapets, by implementing interim measures until the parapets were replaced’...
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