Kelly Elizabeth Morton (ap) V. West Lothian Council
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2005] CSOH 142 |
| Date | 03 November 2005 |
| Docket Number | A304/01 |
| Court | Court of Session |
| Published date | 03 November 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 142 | |
| A304/01
| OPINION OF LORD GLENNIE in the cause KELLY ELIZABETH MORTON (A.P.) Pursuer; against WEST LOTHIAN COUNCIL Defenders: ________________ |
Pursuer: D. Batchelor, Q.C., Primrose; Balfour & Manson
Defenders: L. Murphy, Q.C., McBrearty; Simpson & Marwick, W.S.
3 November 2005
Introduction
[1]At about 9 a.m. on Saturday 23 December 1995 the pursuer was driving her Vauxhall Astra car in an easterly direction along the B9080 from Linlithgow to Kirkliston. The road is a two-way road, carrying a single lane of traffic in each direction. The pursuer was travelling behind a bus. As the bus reached the junction (which I shall call the "Bridgend junction") between that road and the unclassified road to Bridgend (which, for convenience, I shall call the "Bridgend road" though some witnesses referred to it as Auldhill Road), the driver of the bus indicated to turn right and moved into the filter lane which allowed traffic intending to turn right to wait in the middle of the two carriageways until it was safe to do so. The bus could not turn right immediately due to the presence of an oncoming vehicle. As the bus moved into the filter lane, the pursuer passed it on its nearside. As she did so, her car skidded on a patch of black ice and she lost control of it. Her car skidded broadside across the road and into the path of a Rover 800 coming the other way. The Rover struck the passenger door of the pursuer's car. The passenger in the pursuer's car was killed. The pursuer sustained serious head injuries.
[2]The circumstances of the accident as narrated above are admitted on Record. Further, the parties have lodged in Court a Joint Minute agreeing quantum (in the event of the defenders being found liable); and further agreeing that, as a result of the head injuries sustained by her, the pursuer has no memory of the circumstances of the accident. It is not averred that there was any fault on the part of the pursuer or on the part of the driver of the Rover.
[3]At the time of the accident, Lothian Regional Council, as Roads Authority for the area in terms of the Roads (Scotland) Act 1984, were responsible for the management and maintenance of the B9080. In terms of the Local Government (Scotland) Act 1994, the defenders have now assumed the rights and liabilities of the Lothian Regional Council in respect of their management and maintenance of roads in West Lothian, including the B9080. The pursuer contends that the accident was caused by the fault and negligence of Lothian Regional Council, the defenders' predecessors, for whose acts and omissions the defenders are liable. Since there is no dispute that the defenders are liable for the acts and omissions of their predecessors, I shall (except where the context requires me to do otherwise) refer to the defenders and to their predecessors as "the Council".
The pursuer's case
[4]The pursuer contends, in Article 3 of Condescendence, that the Council were under the following duties: to take reasonable care for the safety of those (such as the pursuer) using the roads for which they were responsible in terms of the 1984 Act; to take reasonable care to have regard to the prevailing weather conditions within the area and to salt the road as necessary; to take reasonable care to ensure that the system of salting they operated provided for the salting of all areas of carriageway on primary routes such as the B9080; to take reasonable care to ensure that the routes adopted by their gritting lorries were such that all areas of carriageway on primary routes such as the B9080 were salted; to take reasonable care to ensure that no areas of carriageway were missed by the gritting lorries as a result of the route taken; to take reasonable care to ensure that the area of the eastbound carriageway of the B9080 opposite the Bridgend junction was salted. She contends that the Council failed in such duties and by their failure caused the accident. Separatim, in Article 4 of Condescendence, she claims that the accident was caused by the fault and negligence of the gritting crews who had undertaken the gritting at the material time, for whose acts and omissions the Council were vicariously liable. She contends that they were under the following duties: to take reasonable care to ensure that all areas of the B9080 carriageway were salted; to take reasonable care not to miss out any areas of carriageway from their route when gritting the road; to take reasonable care to ensure that they adopted a route that allowed all areas of the carriageway to be salted; to take reasonable care to salt areas of the carriageway such as the area of the eastbound carriageway opposite the Bridgend junction to ensure that all such areas received a coating of salt.
The Council's winter maintenance policy
[5]It is convenient at this stage to say something about the winter road maintenance policy operated by the Council at the material time; the relevant depots and equipment then in use; and the records kept by the Council and what they bore to show about the gritting operations carried out at the material times by Council employees.
[6]Mr. Pringle gave evidence about the winter maintenance policy operated by the Council in 1995. He is a civil engineer and is presently roads manager with the defenders. At the time of the accident, he was assistant director of "InRoads", an organisation providing in-house contracting to the Council in the field of road construction and maintenance, including winter maintenance of the roads. He headed up the roads organisation within the relevant part of the Edinburgh and West Lothian areas. Mr. Pringle explained that he, with others, would be working at a supervisory level, as "duty officers". Below them would be "nightshift foremen", manual workers who would oversee the running of the service. The "duty clerks", also drawn from the manual workers, manned the centre at Bathgate 24 hours a day and kept records of gritting activities, temperatures, etc. The main depot was at Bathgate. There was another depot on the M9 at Burghmuir, which provided salt storage for winter, but this depot was manned only by one man with a loader; no gritting lorries were kept there and the records were all completed and kept at Bathgate. There was some discussion in the evidence about another depot on the B9080 at Kildimmery, but as the evidence came out it became clear that this depot had closed down about two or three years earlier.
[7]Mr. Pringle referred to a document entitled "Highway Maintenance - A Code of Good Practice - Winter Maintenance Supplement". He described it as a general code of practice for local authorities. Although the copy with which I was provided carried a date stamp of December 1998, I was told that the same document was used in 1995. This would be used as a reference document, as setting out general standards which the local authority might adopt. The Summary of Recommendations at the front of the Code of Practice sets out a number of actions that a highway authority should take, including the following: prepare a winter maintenance policy statement; produce a winter maintenance plan and update it annually; designate in the winter maintenance plan a hierarchy of carriageways and footways; and examine the scope for improving weather forecasts, including the use of ice detection systems. Para. 8.1.1 of the Code of Practice identifies three distinct phases of treatment of the highway: "precautionary salting" to prevent ice from forming; "post salting" to melt ice or snow already formed; and removal of snow. In this case the focus of attention has been on precautionary salting. Para. 8.2.5 states that the Winter Maintenance Policy Statement and Plan should reflect the level of resources available and define the standards to be achieved in terms of specified treatments and timescales on a defined hierarchy of carriageways and footways, and should cover the three distinct phases of treatment already referred to - but the need to retain some flexibility is also emphasised in para. 8.2.5. In para. 8.5.1 it is stressed that the efficiency of the winter maintenance service depends on (i) the definition of the hierarchy of carriageways and footways to which different levels of priority will be given in each phase; and (ii) the planning of routes to ensure that priority carriageways and footways are treated to predetermined timescales. Para. 8.5.6 recommends that highway authorities should aim to complete the precautionary salting of priority carriageways by 7.30 a.m., before the morning rush hour. The Code of Practice recommends, as a general rule, the use of rock salt (para. 8.10) and its storage under cover in salt barns to prevent it getting wet and coagulating; though it recognises that most authorities keep the salt in the open. Mr. Pringle emphasised that what was required by way of treatment of the roads depended on the actual and anticipated weather conditions. If conditions were dry, and there was a hoar frost, one gritting could last for days. In other conditions, rain might wash away the salt within hours. Appendix 2 to the Code of Practice illustrates by a table the decision-making procedure. It inter-relates the road conditions (wet, wet patches, dry, or "pre-salted within last 24 hours with no rain since"), the road surface temperature ("may fall below freezing" or "expected to fall below freezing") and the likelihood of precipitation either before or during freezing. It then defines actions related to these factors. Thus, if road conditions are wet, the road surface temperature is expected to fall below freezing, and it is expected to rain before freezing, the recommendation is to salt after the rain stops, though if the rain has not stopped by morning there should be a supervisor and crews on standby to start spreading salt. On the other hand, if road conditions are wet, the road surface temperature...
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