Peter Rainford V. Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Neutral Citation | [2007] CSOH 127 |
| Court | Court of Session |
| Date | 13 July 2007 |
| Published date | 13 July 2007 |
| Docket Number | PD1347/06 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 127 | |
| PD1347/06 | OPINION OF LORD REED in the cause PETER RAINFORD Pursuer; against ABERDEENSHIRE COUNCIL Defenders: ________________ |
Pursuer: Di Rollo, Q.C., Gardiner; Thompsons
Defenders: Woolman, Q.C., P. Milligan; Ledingham Chalmers
13 July 2007
Introduction
[1] At about 7:45am on Tuesday 23 November 2004 the pursuer, a Scottish Gas engineer, set off in his van from his home in New Pitsligo, Aberdeenshire, towards a destination in Ellon. Before he set off, he noticed that there was no ice on the van. He drove eastwards along the A950 until its junction with the southbound A981, then drove in a southerly direction along the A981. The journey was "normal". A short distance south of the junction he skidded on ice and went off the road. He was injured. It was about 8am.
[2] Mr Colin Philip was travelling in the opposite direction from Kingwells, just west of Aberdeen, to Fraserburgh. He noticed that there was no frost when he left home at about 7am. It was not until he was about 25 miles into his journey, and about six miles south of the locus of the pursuer's accident, that there was a change, when he noticed that two vehicles had gone off the road. When he reached the locus of the pursuer's accident, he stopped to help the pursuer. He had been driving for about an hour.
[3] Mr David McNicol was another Scottish Gas engineer who was on the same road that morning. He had left his home in New Pitsligo, at about 7:15am. He had not noticed any signs of frost. There was no frost on his van. He drove first to Fraserburgh, to the north east. He then drove south, through Strichen, to the junction mentioned previously, and then continued south on the A981. When he reached the locus of the pursuer's accident, he also skidded on the ice and collided with Mr Philip's van. He had been then driving for about 45 minutes.
[4] Mr William Hadden had set off from Portsoy, to the west of Banff, at about 7:15am. His route took him south-eastwards through New Pitsligo and then eastwards along the A950 (following the route which the pursuer had taken about 15 minutes earlier) towards its junction with the A981. Just before the junction, he skidded on ice and went off the road. He had been driving for about 30 miles without there being any indication of frost. It was about 8:15am when he went off the road.
[5] Mr Philip had telephoned the emergency services. PCs Ian Fraser and David Anderson responded to the call. They set off from Mintlaw Police Station, to the east of the junction mentioned previously, shortly after 8am. They headed westwards along the A950 towards the junction. PC Anderson was driving fast, with the blue lights flashing. At the first corner to the west of Mintlaw the rear end of the car skidded. They continued at a more moderate speed and arrived at the locus of the pursuer's accident. They found that the road there was icy.
[6] The pursuer contends that his accident was caused by the negligence of the defenders, who are the local roads authority. Although the pursuer's pleadings also refer to the defenders' statutory duty under section 34 of the Roads (Scotland) Act 1984, the case as presented in argument was based solely upon the breach of a common law duty of care. It is accepted on behalf of the defenders that they owed the pursuer a duty of care. It is not suggested that the accident was caused to any extent by the pursuer's own fault. The quantification of damages is agreed. The only issue is whether the defenders were negligent.
[7] Evidence was given at the proof by the individuals already mentioned, all of whom were credible and reliable witnesses. Evidence was also given by three other witnesses who were involved in the events in question: Mr Stuart McFarlane, the employee of the defenders who had decided on the afternoon of the day before the accident, on the basis of the weather forecast, that there should not be any gritting that evening or on the following morning; Mr Alan Morrison, a more junior employee who was on duty overnight and was responsible for monitoring any change in the weather; and Mr Stuart Brooks, a Met Office weather forecaster who advised Mr Morrison during the night of a change in the weather forecast. All of them appeared to me to be credible and reliable witnesses. Evidence was also given by two other witnesses who had considered the events in question ex post facto: Mr Angus McIver, a colleague of Mr McFarlane; and Mr Iain Farquhar, a forensic meteorologist giving expert evidence on behalf of the pursuer. Both of them appeared to me to be credible and reliable witnesses. Evidence had also been given on commission by Mr John Edgar, a consulting civil engineer giving expert evidence on behalf of the pursuer. His evidence appears to me to be less valuable, for reasons which are explained below.
The defenders' winter road maintenance system
[8] It is convenient at this stage to say something about the winter road maintenance system operated by the defenders at the material time. Aberdeenshire is a county with an area of 2500 square miles. Its topography is varied, ranging from the mountains of the Cairngorms to the low-lying farmland of the eastern coast. According to the evidence of Mr Brooks, its weather conditions are diverse; and Mr Farquhar said in evidence that the differences in temperature across the county might be as much as 10ºC. The county has a public road network of 3350 miles. About one third of the road network - 1200 miles - is designated, for the purposes of the winter road maintenance system, as priority one routes. There are 32 priority one routes. The locus of the pursuer's accident is on route 10, most of which comprises the road between Strichen and Ellon. The pursuer had joined route 10 at the junction of the A950 and the A981, just before his accident. The police car travelled along route 10 on its way from the police station to the locus of the accident. Mr Philip had joined route 10, coming from the opposite direction, shortly before the locus of the accident. Neither the location where Mr Philip had seen other cars which had left the road, nor the location where Mr Hadden left the road, was on route 10.
[9] The defenders had at the material time a written document entitled Winter Maintenance Operational Plan 2004/2005. The system which operated in practice, as it was described by witnesses, was largely (but not entirely) as set out in the plan. The system was based primarily on the use of gritting vehicles to carry out morning and evening patrols during the winter months (from 1 October to 15 May) when warranted by weather conditions. The morning patrols (when required) normally started at 5:30am. If no patrol was necessary, the crews performed other duties. If the crews were sent out on patrol, they would spread salt if necessary. They could also be sent out expressly to treat the roads with salt. There was in addition an emergency standby service, outwith normal working hours, with the ability to mobilise gritters to deal with specific emergencies or an unforecast deterioration in weather and road conditions.
[10] Responsibility for planning winter maintenance operations during the working day rested with the duty officer. His role was described in the plan as being to "agree and co-ordinate the planned winter maintenance operations during the working day to ensure that they are carried out in a consistent, though not necessarily uniform, manner across Aberdeenshire". As that passage suggests, it was normal, if gritting was carried out, for it to be confined to certain routes, reflecting the variation in anticipated road conditions across the county. The defenders' six principal network engineers took turns to perform the role of duty officer on a daily basis. Outwith normal working hours, the duty officer's role changed, in the words of the plan, to that of "line manager/consultant/advisor to the Winter Maintenance Operations Room Attendant". The role of the Winter Maintenance Operations Room (WMOR) attendant was described in the plan as follows:
"The Winter Maintenance Operations Room (WMOR) Attendant will assume the role of communication, coordination, monitoring and reporting outwith normal working hours previously carried out by the Duty Officer. The WMOR Attendant will be the nominated emergency contact, outwith normal working hours, for all requests for assistance in relation to winter maintenance operations for the road network. He will take the appropriate action in relation to any calls he receives. The Duty Officer will be available for consultation by the WMOR Attendant on technical and other matters".
There was also a role played by the duty supervisors, who were in effect the foremen of the crews of the gritting vehicles. They were expected to take immediate action, on their own initiative, on receipt of adverse weather advice or in the event of sudden frost or snowfall.
[11] The information on which decisions were based came from two main sources. First, a network of automatic roadside weather recording stations, linked by computer to the defenders' operations offices and to the Met Office, provided up-to-date information relating to local weather and road conditions. The information available included the road surface temperature and the road state (ie wet, damp, dry or icy). Access to this information was provided through software provided by the Vaisala Ltd Icecast System. Secondly, weather forecast information was provided by the Met Office every day before 2:30pm. The Met Office would also contact the WMOR attendant by telephone to advise of changes to forecast information outwith normal working hours.
[12] Finally, the plan draws attention at the outset to the need "to try to control the level of expenditure within the sum provided in the annual budget". Evidence was given (by Mr Farquhar) that salt-spreading is a very expensive operation; and the defenders...
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