George Scott Bennett (ap) V. Messrs. J.lamont & Sons And Others And Fife Council
| Jurisdiction | Scotland |
| Judge | T.G. Coutts, Q.C. |
| Date | 30 September 1999 |
| Docket Number | O1727/5 |
| Court | Court of Session |
| Published date | 30 September 1999 |
| OUTER HOUSE, COURT OF SESSION
| |
| O1727/5/97
| OPINION OF T G COUTTS, Q.C., SITTING AS A TEMPORARY JUDGE in the cause GEORGE SCOTT BENNETT (AP) Pursuer; against (FIRST) MESSRS J LAMONT & SONS & OTHERS AND (SECOND) FIFE COUNCIL Defenders: ________________
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Pursuer: Wylie, Q.C., Ellis, Balfour & Manson
Second Defenders: Paton, Q.C., Mure, Simpson & Marwick, W.S.
30 September 1999
Introduction
On the evening of 12 December 1994 the pursuer was driving between 50 and 60mph in the dark along the B946 road between Tayport and Newport. At a point on that road approximately .78 of a mile west of its junction with Scotscraig Drive, Tayport, the pursuer collided with one or two cows which were on the carriageway. He sustained very serious injuries. Another driver at or about the same time, at or about the same locus in another motor car died as a result of another incident with the cows. Which accident came first was not averred.
The pursuer in this action sues as first defenders the farmers whose fields adjoin the road at this point and to whom the animals in question belonged and Fife Council as roads authority as second defenders. As between the pursuer and the first defenders a proof before answer has been agreed. The second defenders argued at procedure roll in support of their first plea in law for dismissal of the action.
Averments of fact
In relation to the circumstances of the accident, the pursuer's averments in Condescendence 3 are that both cows had earlier on the day in question been separated from their calves and had been put into five fields (sic) belonging to the first defenders lying to the north side of the said road. At a point about 400 yards west of the locus of the accident, the westmost field was bounded by a stone wall which bounded the road. Elsewhere it was bounded by a stob and wire fence erected by the first defenders. For most of the length of the roadside boundary, one and a quarter miles, there was a fence in good condition which was about 3 feet 6 inches high. At the said point 400 yards west of the locus of the pursuer's accident the field was bounded by a stone wall only. At that point, for a length of about 25 feet, the stones on the top of the wall had, over a number of years, fallen down. The height of the wall on the field side at that point was about 2 feet 6 inches but in the field below the grass bank sloped downwards away from the wall. The first defenders knew about the particular circumstances of the separation of the cows from their calves. Fife Council did not. According to the pursuer's averments, the boundary was inspected every day by one of the first defenders' partners. The pursuer avers that Fife Regional Council, the second defenders' predecessors, knew or ought to have known for a number of years that the wall structure was dilapidated. The basis for that averment was that the second defenders' Roads Engineer gave evidence at a Fatal Accident Inquiry that Fife Regional Council had received complaints from the first defenders generally as to the security of sections of the wall. "The complaints involved (sic) concern as to the ability of the structure to maintain stock", is the precise averment thereafter.
The pursuer further avers that any reasonable inspection of the road by the second defenders for the purpose of checking on potential dangers to users of the road would have revealed that the wall was the barrier to keep stock off the road and that it was dilapidated and not stockproof. It was said that it was the practice of reasonable roads authorities to inspect the roads in their area at least once a year, but the pursuer continues "any reasonable inspection carried out by the second defenders within 12 months before the accident would have revealed the dilapidated state of the wall and that it was not stockproof". The pursuer asserts that the field was obviously one which was used for livestock and that Fife Regional Council repaired the wall after the accident. The pursuer gives no date for that repair and denies the second defenders' averment that the repair was on 21 May 1995. The pursuer does not aver and the second defenders do not admit that the repair to the wall which was carried out made that wall the equivalent of a stockproof fence and although the whole basis of the pursuer's case of fault is that the second defenders should have seen to it that the partition between the field and the road at that specific place was stockproof, there is no averment that that is the present situation. Furthermore there is no averment about the ownership of the wall.
Averments of Fault
Although the pursuer's grounds of fault against the first defenders include the particularity of the separation of the cows from their calves, there is no particularity in the averments of fault against the roads authority.
It is important that the precise averments of fault against the road authority in the circumstances be examined with care. These appear in Condescendence 7 and are as follows:-
"It was the common law duty of Fife Regional Council as Roads Authority to take reasonable care to keep the B946 road safe for road users such as the pursuer as a result of the statutory duty incumbent upon them in terms of section 1(1) of the Roads (Scotland) Act 1984. It was their duty to take reasonable care to avoid danger to road users from reasonably foreseeable hazards that could arise on the road from adjacent land and its use. It was their duty to take reasonable care to carry out inspections of the roads in their area at least once a year for the purpose inter alia of checking on potential dangers to users of the roads. They knew or ought to have known that the presence of cattle or other livestock on the road would be a danger to road users. They knew or ought to have known that livestock including cattle were likely to be kept in the field which had a boundary of the broken down wall as aforesaid. They knew or ought to have known that there was a risk of cattle escaping onto the road at a point where the wall was broken down as aforesaid. They knew or ought to have known that the wall was the barrier to cattle obtaining access to the road. In the circumstances it was Fife Regional Council's duty to take reasonable care to see to it that livestock, including cattle, could not escape onto the road. It was Fife Regional Council's duty to take reasonable care to see to it that said wall was maintained in such a condition as to obviate danger to road users. It was Fife Regional Council's duty in the circumstances to see to it that there was a barrier at said section of wall at a height sufficient to prevent cattle or other livestock escaping onto the said road. In each and all of said duties Fife Regional Council failed and thus caused or at least materially contributed to the pursuer's accident".
Argument of parties
The Court was favoured with and obtained great assistance in the difficult matter posed by this action from the carefully researched submissions from both sides of the bar. Senior counsel felt able to adopt their junior's arguments in total when it came to their turn to speak and accordingly it is possible to outline each party's argument without specifically making an attribution of portion of it to senior or junior counsel.
Second defenders' argument
Counsel for the second defenders conceded that if there was a duty owed to the pursuer by the second defenders, the essential test of proximity in a case based upon omission as in the case here was satisfied in the averments of the present case. It was contended however that the averment failed to meet the requirements (1) that the harm suffered by the pursuer was the reasonably foreseeable consequence of the Council's omission; (2) that there was a breach of duty; (3) that there were sufficient averments of causation of harm and finally (4) that in all the circumstances there was insufficient averment to establish that in all the circumstances it was fair, just and reasonable to impose a duty of care on the Council of the scope contended for. Although the cause of injury was clear, being the presence of cows on the roadway, there was insufficient to show that it was a reasonably foreseeable consequence of the...
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