Ruth Margaret Macdonald V. Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2012] CSOH 101 |
| Court | Court of Session |
| Published date | 14 June 2012 |
| Year | 2012 |
| Date | 14 June 2012 |
| Docket Number | PD982/09 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 101 | |
| PD982/09 | OPINION OF LORD UIST in the cause RUTH MARGARET MacDONALD Pursuer against ABERDEENSHIRE COUNCIL Defenders ________________ |
Pursuer: Jan McCall; Thompsons
Defender: Sheldon; Ledingham Chalmers
14 June 2012
Introduction
[1] A tragic road traffic accident occurred at about 5.30 pm on 8 May 2006 on the A97 Banff to Aberchirder Road at Mill of Brydock. The pursuer (who was born on 14 June 1978) was driving her Volkswagen Golf car westwards on the unclassified C2L Pole of Mintlaw to Brydock road in the course of her journey from Turriff to Inverness, with her mother and aunt as passengers in the car. She approached at about 30 mph a point on the road where it formed a crossroads with the A97. Buildings and yards on the east side of the A97 straddled the junction with the road on which the pursuer was travelling. The A97 was a two way single carriageway running north to south. Both it and the road on which the pursuer was travelling were rural single carriageway roads with a speed limit of 60 mph. White lines along the middle of the A97 at the junction indicated that traffic on the A97 had right of way at the junction. As a Transit van was proceeding along the A97 at the junction the pursuer drove her car straight through the crossroads into the path of the Transit van and collided with its offside. As a result of the accident the pursuer was injured and her mother and aunt were killed.
[2] The pursuer has brought this action against Aberdeenshire Council as the relevant roads authority blaming them for the accident by reason of their failure to erect sufficient signage on the road on which she was driving to alert drivers to the presence of its junction with the A97 and also to maintain road markings so that they were visible to drivers such as herself. She seeks damages for her own loss, injury and damage and also damages under section 1(4) of the Damages (Scotland) Act 1976 in respect of the death of her mother. The action, which proceeds under Chapter 43 of the Rules of Court, called before me for debate on the defenders' motion to have the action dismissed on the ground that the pursuer's averments are irrelevant and, separately, lacking in specification.
The pleadings
[3] The factual averments about the occurrence of the accident upon which the pursuer founds her case against the defenders are set out in statement 3 of the Record as follows:
"(ii) The pursuer was not aware that she was approaching a junction where she was to give way to traffic on the other road. The road along which she was travelling dropped into a dip and there was a rising left hand bend just before said junction. There was no advance view of the junction. She saw the road continuing westwards. She had driven along said road for some miles without coming to a junction. She saw no sign that she was driving on the road which was to give way at the crossroads. She expected that there would be a give way sign if she came to a junction where she was to give way to drivers on another road, such as the A97. Both roads at the locus of said accident were minor rural roads and visibility of the junction was poor. There were insufficient signs and markings on the road to alert drivers to the presence of said junction and that they were to give way to traffic travelling on the other road.
(iii) ...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 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 (sic) 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 (sic) the obvious priority to those driving towards said junction on the said A97. Give Way signs and Stop signs are subject to section 36 of the Road Traffic Act 1988. A motorist commits an offence if they (sic) do not comply with the sign. They are not advisory signs. The Statutory Instrument setting out the requirements for the provision of and standards for road traffic signs is the Traffic Signs Regulations and General Directions 2002. The Traffic Signs Manual published by the Department of Transport gives guidance thereon. Section 3 of Chapter 3 of said Manual states: '3.13 The Give Way sign, together with associated road markings (see para 3.15), should be used as follows: (i) in rural areas at all junctions of public roads with trunk and principal roads; (ii) in urban areas generally at junctions of public roads with trunk and principal roads unless the minor road is a residential or local street; (iii) at all other junctions where the traffic authority considers it desirable on account of traffic speeds or volumes; (iv) at rural crossroads where both roads are minor in nature and visibility of the junction is poor (eg hidden dip, blind summit, obscured by hedges narrow verges etc' and '3.15 The STOP and GIVE WAY sign must always be accompanied by their associated road markings ...'. The associated road markings at para 3.15 are detailed in diagrams and are white lines across the junction and a white Give Way triangle marked on the road. The Regulations require that the said sign and associated marking must be of particular dimensions. The said Manual provides that the Give Way sign ought to be visible from at least 60 metres prior to the junction. Further, the Highways Agency has published the Design Manual for Roads and Bridges which provides guidance to roads authorities. It includes advice on design and layout of junctions. It provides that the said junctions should be able to be seen from a distance of 215 m. In the absence of such a design a warning of the junction ought to have been given at said distance. The publications '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 (sic) be rectified within 24 hours. This was a category 1 defect. The defenders' own policy provided that such defects require 'immediate attention'. Perth and Kinross Council consider 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.
(iv) At the date of the accident the defenders' system was for inspections of the said road to be carried out monthly. An inspection had taken place in April 2006. There was an open works order for the road, indicating that certain works of repair were necessary and instructing that certain road markings be re-lined, and an appendix to the order specified the road junctions to be covered thereby. The defenders' system for inspection of roads was such that inspections recorded the condition of a road as satisfactory if there was a prior inspection report which identified a defect and a works order had been issued and was still 'open', the work required having not been carried out. The inspection of (sic) the defenders of said junction on about 20 April 2006 recorded its condition as satisfactory on the basis that it had previously been identified as requiring repainting. The open works order pre-dated the inspection on 20 April 2006. Esto it was dated about 1 April 2006 the defenders knew that the markings at said junction required repainting prior thereto. The inspection prior to that undertaken on about 20 April 2006 would have taken place in about March 2006. ...The said markings at said junction and the signage were in said condition at said date and probably for several months prior thereto. The defenders knew or ought to have known that there was inadequate warning of said junction to drivers approaching said junction driving on the CL2 from, at the latest, March 2006. 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. Further, no other road markings were renewed after the accident except a 'SLOW' road marking south of a bridge near Brydock Mill. Esto it did not, it should have done as said road markings were ineffective to alert drivers to the presence of said junction and thereby maintain the safety of the junction.
(v) 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 10 May 2006 and was carried out in accordance with Chapter 8 of the Traffic Signs Manual 1991. The work cost £150. A Give Way sign and plate which read 'GIVE WAY 70 Yards AHEAD' was erected by 15 June 2006 and was carried out in accordance with Chapter 8 of the Traffic Signs Manual 1991. This work cost £300. These steps ought to have been taken prior to...
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Ruth Margaret Macdonald V. Aberdeenshire Council
...a debate on the relevancy of the pursuer's pleadings, the Lord Ordinary (Uist) dismissed the action as irrelevant, on 14 June 2012 ([2012] CSOH 101). The pursuer reclaimed to the Inner House of the Court of Session. Cases referred to: Aitken v Scottish Ambulance Service [2011] CSOH 49; 2011......