Michael Macdonald Against Comhairle Nan Eilean Siar
| Jurisdiction | Scotland |
| Judge | Lord Matthews |
| Neutral Citation | [2015] CSOH 132 |
| Court | Court of Session |
| Published date | 08 October 2015 |
| Year | 2015 |
| Date | 08 October 2015 |
| Docket Number | PD2424/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 132
PD2424/14
OPINION OF LORD MATTHEWS
In the cause
MICHAEL MacDONALD
Pursuer;
against
COMHAIRLE NAN EILEAN SIAR
Defender:
Pursuer: Hajducki QC; Thompsons
Defender: Murray; Ledingham Chalmers LLP
8 October 2015
Introduction
[1] This is an action of damages for personal injury arising out of an accident in the early morning of 27 November 2011. The pursuer was making his way home when he lost his footing and fell, resulting in a broken ankle which required medical treatment and a lengthy period off work. Damages were agreed.
[2] The claim against the defenders is based on fault and negligence at common law, although, as will be seen, the situation was rendered more complex by references to certain provisions of the Roads (Scotland) Act 1984.
[3] The pursuer’s case on record can, I think, be summarised as follows.
[4] It is averred that the defenders are and were at November 2011 the local roads authority in terms of the Roads (Scotland) Act 1984 and that they were responsible for providing and maintaining lighting for roads in the village of Lochboisdale, South Uist. Street lights were positioned along the A865 road and in particular at the locus of the pursuer’s accident which was at a point between the junction of that road with the roads known as Slighe Choinich (Kenneth Street) and Braehead. It is said that at some point before about November 2011 the defenders introduced a practice of causing street lighting at the locus, amongst other places, to be switched off between about midnight and about 7am. On the day in question the pursuer “required to walk to his home subsequent to and then leaving his employment at the Lochboisdale Hotel”. He claims that he lost his footing because he was unable to see where he was placing his feet. That caused the injury from which he undoubtedly suffered. It is said that the defenders knew or ought to have known that Lochboisdale had an approximate population of 300 residents, that patrons and employees of the hotel would have to walk along the streets and footways between midnight and 7am and that in an area with no other forms of artificial lighting the defenders’ failure to provide appropriate street lighting would cause the pursuer and others to be at risk of injury. Reference is made to the British Standard code of practice for the design of road lighting then in force, which stated at paragraph 9.1 that “the main purpose of lighting for subsidiary roads and areas associated with those roads is to enable pedestrians and cyclists to orientate themselves and detect vehicular and other hazards”. At 10.1 it states that it “is important to remember that during the late evening and during the night when shops are closed and the commercial light is reduced or extinguished, the public lighting should aid the security of property and the safety of pedestrians”.
[5] The defenders in answer say that the circumstances of the accident are not known and not admitted. They refer to the code of practice for its terms. They accept that they are a roads authority but as far as lighting is concerned they refer to section 35 of the Roads (Scotland) Act 1984. Section 35(1) is in the following terms:
“A local roads authority shall provide and maintain lighting for roads, or proposed roads, which are, or will be, maintainable by them and which in their opinion ought to be lit.”
They aver that at the material time there was no defect in the lighting at the locus and that it was their opinion that it did not require to be lit throughout the hours of darkness at the material time. They aver also that the pursuer knew or ought to have known that it would be dark when he was walking at the locus and ought to have been using a torch.
[6] As I have indicated, the pursuer avers quite starkly that the claim was based upon the defenders’ fault and negligence at common law. The ingredients of the alleged duties which they are said to have breached were amplified in submissions before me and I will turn to them in due course.
[7] The defenders for their part aver that no review of their decision to operate lighting at the locus at certain times had ever been sought. Since they were acting under permissive powers they were not liable for accidents arising from a failure to light. The pursuer was called upon to specify the legal basis upon which he contended they were under a duty to provide lighting at the locus and it was said that the pursuer’s averments were irrelevant and lacking in specification. Esto they were to any extent liable in damages the pursuer contributed to the accident by his own negligence.
[8] It was against that background that the case called before me for proof.
[9] At the outset Mr Hajducki moved me to allow late an additional list of witnesses and two further inventories of productions. This motion was opposed. I was told that the first witness on the list was an expert whose report was disclosed at the pre-trial meeting. There had been difficulty obtaining an expert in this field. The third inventory of productions was his report and the fourth inventory was a selection of documents received from the defenders under a Freedom of Information request.
[10] Having heard counsel I allowed witnesses 9 to 12 to be led but I refused to allow the alleged expert to be led and refused to allow the inventories of productions.
[11] In the first place it seemed to me that the report of the expert effectively covered material which was contained in a late minute of amendment which had not been allowed. Secondly, it came very late. Thirdly, there was no real expertise involved in the sense in which that is properly understood. See Kennedy v Cordia Services LLP 2014 SLT 984. Mr Murray indicated that he had never seen the documents recovered through the Freedom of Information request. It appeared that they concerned questions of policy, which was not a matter on record and if they concerned previous complaints or incidents then there was no record for those either. Mr Murray had referred to the case of Smith v GGHB 2014 SLT 137 but I need not go into that for present purposes. His opposition to the remaining witnesses was fairly muted and I saw no prejudice in allowing their evidence to be led.
The evidence
[12] This is a brief summary of the evidence which will be supplemented during my discussion of the submissions.
[13] The pursuer said that around 0200 hours he was going home. His house was a two minute walk from the Lochboisdale Hotel where he then worked as a chef. It was pitch black and he could not see his hand in front of his face. He realised that he had left his keys in the house of an Angus McIntyre and he turned round. As he did so he caught the edge of the kerb. He could not see where his feet were placed and this would not have happened if the lights were on, as he had expected them to be. He did not have a torch or a mobile phone. He would have taken a torch if he knew the lights would be off. He had lived in Lochboisdale for about two years and he did not remember the lights ever going out at night. When he arrived home after work he would stay up quite late and he never saw the lights going out before he went to bed. He was not aware of any change. No one had told him, he was not looking and he did not notice any change. There were no signs to indicate that that would be the case. After the accident Angus McIntyre and his wife were driving past. They saw the pursuer hanging onto a lamppost and he was taken to their house. He was asked if there would be many people around after midnight and he said that there were usually people leaving the pub at 0100 when it closed. The staff would have to clear up after that. Sometimes the ferry from Barra got in after midnight because it ran late.
[14] In cross examination he said he had worked at the hotel for four years but had not lived in Lochboisdale before that. He finished his shift that day at midnight, left the hotel around 0015 and then went to Mr McIntyre’s house where he stayed until around 2 o’clock. The kerb was about an inch and a half deep. Before November 2011 the lights were never turned off between 0100 and 0700 that he knew of. As far as he knew there was a change on 1 November 2011 when the lights were turned off between midnight and 0630. He was not sure if from February 2013 the lights were off between 2300 and 0630. He was aware that around the time of his accident the lights were turned off between midnight and 0630. There was some consultation after the accident but he was not aware of any meetings before it. Neither was he aware of any internet survey conducted by the defenders in 2010/2011. He heard of no change in lighting policy in or around May 2011 and saw no press release about it on 10 August 2011. He heard nothing on the BBC about it nor did he see any announcements on the defenders’ website.
[15] In re-examination he said he was unaware of lights going out anywhere in South Uist during November 2011. He had been out and about sometimes at midnight or at 0100 hours after work. As far as he was aware the lights were on then.
[16] The next witness was Eileen Beaton, now a trainee solicitor. She lived in Lochboisdale and her house was about 300 metres from the pursuer’s. She moved to Lochboisdale with her family in 1996 as a teenager. She was frequently out at night and she said the lights never went off. That covered a period from 1996 until 2002/3. She frequently came home to visit for long periods and the position was the same. There was an alteration in 2011 and she noticed the difference. It was very dark and some nights in winter were dangerous. There were some areas where one could see before but could not now and one had to bring torches. She thought that some lights were on now in these areas. She visited her father at Christmas 2011 and noticed that the lights were off then. She would have been there in the summer of that...
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