Ruth Margaret Macdonald V. Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Drummond Young,Lady Paton |
| Judgment Date | 18 October 2013 |
| Neutral Citation | [2013] CSIH 83 |
| Court | Court of Session |
| Date | 19 October 2013 |
| Published date | 18 October 2013 |
| Docket Number | PD982/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 83 | |
| Lady Paton Lord Drummond Young Lord Wheatley | PD982/09 OPINION OF LADY PATON in the cause RUTH MARGARET MACDONALD Pursuer and reclaimer; against ABERDEENSHIRE COUNCIL Defenders and respondents: _______________ |
Defenders and respondents: Milligan QC, Sheldon; Ledingham Chalmers
18 October 2013
Collision at a country crossroads[1] At about 5.30 pm on 8 May 2006, the pursuer was travelling west from Turriff to Inverness. She was driving along a Class C country road known as C2L. There was a crossroads where the C2L road crossed over the A97 Banff to Aberchirder Road (a Class A road with single carriageways in each direction). As the pursuer drove through the crossroads at about 30 miles per hour, she came into the path of a van travelling north on the A97. A collision occurred. The pursuer was injured, and her passengers were killed. The pursuer subsequently raised an action for damages against the defenders as the roads authority with responsibility for the junction. The defenders challenge the relevancy of the pursuer's pleadings, and seek dismissal of the action. The Roads (Scotland) Act 1984
[2] Section 1(1) of the Roads (Scotland) Act 1984 provides inter alia:
"... a local roads authority shall manage and maintain all such roads in their area ... and for the purposes of such management and maintenance (and without prejudice to this subsection's generality) they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or over any part of it, may be exercised."
The claim against the defenders[3] The defenders were the local authority with responsibility for the A97 and the C2L. In her summons, the pursuer avers that the defenders had painted white lines along the centre of the A97, although there was a gap in the lines at the crossroads with C2L. The middle‑of‑the road white lines indicated to drivers on the A97 that they had priority over side roads. The defenders had also painted double white lines and a white triangle across the C2L at its junction with the A97. They had placed a "Give Way" sign on the C2L, just to the left of the junction.
[4] In Statement 4 of her summons, the pursuer avers:
"There were no signs giving sufficient advance warning of the presence of the junction with the A97 road. There had been road markings, double white lines and a white triangle, marked on the road by the defenders, but they had been 'scrubbed' by traffic passing over them over a period of time. All that remained were lines at the extreme ends of the mouth of the junction. There were no lines in the centre of the road in the path of the pursuer. As a result, the road markings did not give a clear and effective warning of the approaching junction, and the need to give way. There was a Give Way sign erected, but it was offset to the left and at [an] angle, and not obvious to road-users approaching said junction. It was not visible at all until the pursuer was less than 40 metres from the junction. The form of the junction was only apparent for a road-user until about 10 to 15 metres before the junction with the A97 and in any event no feature identified the priority of the junction to the pursuer in contrast with the obvious priority to those driving towards said junction on the said A97 ... a warning of the junction ought to have been given at [at least 60 metres]. The publication 'Well maintained Highways - Code of Practice for Highway Maintenance' published in 2005 and 'Delivering Best Value in Highway Maintenance' published in 2001 supported, endorsed and recommended by the Convention of Scottish Local Authorities are the principal guidance for local authorities. In terms thereof said roads ought to have been inspected monthly. The said Code identifies that road markings that are missing, misleading or badly worn create a serious risk to road-users that should be rectified within 24 hours. Perth and Kinross Council consider worn Stop or Give Way markings are defects which warrant rectification within 24 hours. The defenders inspected road markings monthly but took no steps to renew the road markings. They did not do so within 24 hours."
[5] Further averments at page 11B‑E refer to the defenders' inspection of the crossroads in March 2006, as a result of which an open works order had been issued indicating that certain repair works were necessary and instructing that certain road markings be re‑lined. A further inspection of the crossroads in April 2006 recorded its condition as satisfactory on the basis that it had previously been identified as requiring repainting. As the pursuer avers at page 12B‑C:
"... Given the condition of the markings at said junction as hereinbefore condescended upon, the pursuer believes and avers that the open works order included re-lining of road markings at the said junction ... Within days of the accident, the defenders arranged for road markings at the junction to be re‑lined and in about June 2006 erected a Give Way warning sign in advance of the junction. The renewal of said Give Way markings was carried out on 10th May 2006 ... The work cost £150. A Give Way sign and plate which read 'GIVE WAY 70 yards AHEAD' was erected by 15th June 2006 ... This work cost £300. These steps ought to have been taken prior to said accident ..."
[6] The pursuer avers at page 7B that she was not familiar with the roads. Her position was that the form of the junction was only apparent at about 10 to 15 metres before the junction (page 9B‑C). She did not have clear and effective warning of the approaching junction or of the need to give way (page 9A‑B). She accordingly drove through the junction without slowing down or stopping. The van‑driver, for his part, understood from the lines painted in the middle of the A97 that he had right of way. Accordingly he did not slow down at the junction.
[7] In Statement 6 of the summons, the pursuer avers:
"STAT 6. The said accident was caused by the fault and negligence of the defenders at common law. The defenders created a danger to road users of said roads. They managed the said roads and had decided and marked them so that drivers on the A97 were given priority at the said junction and they accordingly placed appropriate markings on the road. Drivers on the said roads had a reasonable expectation that junctions on said roads would be marked. The defenders had a duty to devise institute and maintain an effective system of management of the roads for which they were responsible. They had a duty to take reasonable care to devise institute and maintain a reasonable system of installation, inspection and repair of the road signs and markings at said junction. The defenders failed to maintain said road markings for drivers driving on the C2L towards the junction. They failed to repaint said Give Way markings on the road within 24 hours of knowing of their said condition. They had a duty to take reasonable care to act in terms of their policy and take immediate action. They had a duty to take reasonable care to carry out said steps prior to 8th May 2008. It would have been reasonably practicable for them to do so. They failed to adequately warn motorists of the existence of said junction. They failed to erect a Give Way sign 60 metres prior to said junction. It was reasonably foreseeable that if motorists on the C2L did not give way at said junction an accident could occur as in fact happened. The defenders averments in answer are denied except in so far as coinciding herewith."
[8] The defenders sought a debate, which took place before Lord Uist. They argued that the action should be dismissed, as there was no duty of care owed to the pursuer by the defenders. The Lord Ordinary ultimately concluded that:
" ... the defenders were not under the duty of care averred to the pursuer or her mother [one of the passengers] and the action is fundamentally irrelevant."
By interlocutor dated 14 June 2012, he dismissed the action. The pursuer reclaimed. The defenders cross-appealed, submitting that the Lord Ordinary had erred in rejecting their argument that the summons was irrelevant and lacking in specification.
Submissions for the pursuer[9] Senior counsel for the pursuer submitted that the Lord Ordinary had dismissed the action as fundamentally irrelevant because the duty of care averred by the pursuer did not exist. Two arguments were advanced in reply:
[10] First, in contrast with English law, the common law of Scotland recognised a broad duty resting on roads authorities to take reasonable care to keep roads in their area safe for road‑users. That duty covered the present case. As Lord Reed had observed in Rainford v Aberdeenshire Council 2007 Rep LR 126 at paragraphs [50] and [52], it was not unknown for there to be differences between Scots law and English law.
[11] Secondly, even if the duty of care was narrower, and even if issues of misfeasance or non‑feasance were relevant, it could not be said, without inquiry into the facts, that the pursuer would inevitably fail (Jamieson v Jamieson 1952 SC (HL) 44 at page 50; Miller v South of Scotland Electricity Board 1958 SC (HL) 20, at page 33).
Broad duty of care at common law
[12] The pursuer did not rely upon a duty to remedy the defects within 24 hours (despite an averment to that effect on record). The pursuer's position was that the appropriate road signs should have been put in place at some time prior to the accident. As for the lines painted on the road: the road was inspected monthly; there was a works order dated 1 April 2006 from which one could infer a requisitioning of the re‑painting of the lines (page 12B‑D of the reclaiming print). The pursuer's case was not based upon her having previously travelled through the...
To continue reading
Request your trial
-
Reclaiming Motion By Renfrew Golf Club Against Motocaddy Limited
...he had done so wrongly. Such an application required to focus upon the facts of the particular case (Macdonald v Aberdeenshire Council 2014 SC 114, Lady Paton at 33; Marc Rich (supra), Lord Steyn at 236). ICL Tech v Johnston Oils (supra) had been decided after proof. Here, there was damage ......
-
Judicial Review Of A Decision By Aberdeen City Council As Roads Authority Dated 6 March 2018 In Respect Of Bridge Street, Aberdeen
...it in a proper state of repair must be to try to secure that it can be used safely as a road (see Macdonald v Aberdeenshire Council 2014 SC 114 Lord Drummond Young at para 65). Where something requires to be done to keep a road in a proper state of repair so that it may safely be used as a ......
-
A J Allan (blairnyle) Limited And Another Against Strathclyde Fire Board
...Scots law to take reasonable care to remove hazards, as exemplified by the numerous cases discussed in Macdonald v Aberdeenshire Council, 2014 SC 114. Liability for a failure to act may also be imposed where there has been an undertaking of responsibility on the part of the defender to safe......
-
McCalls Ltd v Aberdeen City Council
...Committees of Fifeshire County Council 1911 SC 266; 1910 2 SLT 354 Logan v Wang (UK) Ltd 1991 SLT 580 Macdonald v Aberdeenshire Council [2013] CSIH 83; 2014 SC 114; 2014 SLT 2; 2014 SCLR 111; 2014 Rep LR 2 Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42; [2003] 3 WLR 1603......