Danny Thomas Ryder V. The Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2013] CSOH 95 |
| Court | Court of Session |
| Published date | 13 June 2013 |
| Year | 2013 |
| Docket Number | PD2550/11 |
| Date | 13 June 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 95 | |
| PD2550/11 | OPINION OF LORD TYRE in the cause DANNY THOMAS RYDER Pursuer; against THE HIGHLAND COUNCIL Defender: ________________ |
Pursuer: Hood; Drummond Miller LLP
Defender: C Murray, Ledingham Chalmers LLP
13 June 2013
Introduction
[1] In the early hours of 9 December 2008, the pursuer's mother, Anne Jayne Sutherland or Ryder ("the deceased"), sustained fatal injuries in a road traffic accident while travelling south on the A99 from John O'Groats to Wick. She was 36 years of age. The pursuer seeks reparation from the defenders in respect of the loss and damage that he has sustained as a consequence of his mother's death. The grounds of fault alleged are concerned, firstly, with an operational decision taken regarding precautionary gritting of roads during the previous evening and, secondly, with the defenders' policy with regard to the overnight gritting of roads in winter conditions.
[2] Evidence was led at the proof from the pursuer, from various officials and employees of the defenders, and from certain eye witnesses regarding road surface conditions. There was no challenge to the credibility or reliability of any of these witnesses and I accept their evidence. Both parties also led expert evidence. On behalf of the pursuer, evidence was led from Mr Michael Hopwood, a civil/road engineer who has since 2007 been an associate with Hawkins & Associates Ltd, Wilmslow, Cheshire, carrying out investigations of "all types of civil and highway engineering matters". Between 1994 and 2007 Mr Hopwood was employed by Cheshire County Council, latterly as Principal Engineer. His professional experience included a period of years acting as duty officer making decisions regarding the treatment of roads affected by snow or ice. He had undergone a 5-day training course in accident reconstruction. On behalf of the defenders, evidence was led from Mr Adrian Runacres, who carries on business at Alresford, Hampshire, as an independent consultant undertaking collision investigations and research. Prior to June 2005 he was Head of the Investigations and Risk Management Department at the UK Transport Research Laboratory. He is the Technical Advisor and Secretary of the National Winter Service Research Group and has over 20 years' experience of highway maintenance and winter maintenance activities. Mr Hopwood and Mr Runacres both provided written reports. Neither had visited the locus of the accident. Both were instructed primarily to provide opinion evidence concerning the defenders' winter maintenance service policy and the decisions made by the duty officer during the day prior to the accident. At the end of the proof counsel for both parties provided me with detailed written submissions on the evidence and the law, for which I am most grateful.
The locus of the accident
[3] The A99 runs in a north-south direction along the east coast of Caithness for 17 miles from John O'Groats to Wick and then continues further south until it joins the A9 at Latheron. Between John O'Groats and Wick the A99 is not a trunk road, and the defenders are responsible for its maintenance, including winter maintenance. For the purposes of the defenders' Winter Maintenance Policy, discussed below, it is a Priority 1 route. Approximately four miles south of John O'Groats, the road passes through the settlement of Freswick. At this point the road is close to the sea at Freswick Bay and is about 10 metres above sea level. As the A99 approaches Freswick from the north it runs downhill and takes a slight bend to the right, at or about its junction with an unclassified minor road that runs east to Skirza. Evidence was given at the proof by PC Iain Mathers, a collision investigator with the Northern Constabulary, that the bend was sufficiently shallow that it could be negotiated safely in dry conditions at a speed in excess of the national speed limit of 60 mph. It did not therefore require warning signs. To the south of the junction with the road to Skirza the A99 straightens out and crosses a bridge over the Freswick Burn.
Circumstances of the accident
[4] At the time of the accident, the deceased resided at Huna, near John O'Groats, having moved there from Wick only a few days previously. She was in a relationship with a Mr Anthony Cundall who was at Huna with her during the night before the accident. The deceased was employed by Tesco as a price integrity assistant at their supermarket in Wick. On the day of the accident she was due to commence work at 6am. She owned a silver Toyota Aygo motor car registered in 2007 which she used to travel to and from work.
[5] At the time of the proof, Anthony Cundall could not be traced and did not give evidence. In a statement given to the police shortly after the accident and referred to by PC Mathers in his collision investigation report, Mr Cundall stated that he had been aware of the deceased getting out of bed at around 4am. He did not know when she left the house but she did not appear to be rushing. In favourable weather conditions the journey to Wick would take about 20-25 minutes. Nothing more is known of the deceased's movements prior to the accident. Mr Barry Metcalf, who lived in a house beside the A99 close to the Skirza road junction and who gave evidence at the proof, was awake from about 5.10am. He heard no car passing before 5.35 and then four or five cars passing during the next half hour, all except one travelling in the direction of Wick.
[6] At about 8.15am, after it had become light, a driver travelling south from John O'Groats noticed the deceased's car lying on its roof in a field to the west of the road and just south of the bridge over the Freswick Burn. The deceased was in the car and the engine was cold to the touch. He contacted the emergency services and an ambulance arrived at 8.45am. The crew could not gain access to the deceased but found no pulse present. One of the crew noted that she was wearing a seat belt. She was pronounced dead by a doctor at 9.37am. The cause of death was stated in the death certificate as "head injury - vehicular collision". I return below to consider the evidence as to the cause of the accident.
[7] On the basis of the foregoing information it seems likely that the accident occurred at some time between about 5.35 and 6am, and I so find. This was not a matter of controversy at the proof.
National Winter Maintenance Standards
[8] In 2001the UK Roads Board (UKRB) was created and issued a Code of Good Practice entitled "Delivering Best Value in Highway Maintenance" developed in partnership with national and devolved governments and local authorities. It was supported and recommended by, among others, the Scottish Executive, COSLA and the Society of Chief Officers of Transportation in Scotland (SCOTS). In 2005, the 2001 Code was superseded by a document entitled "Well Maintained Highways - Code of Practice for Highway Maintenance Management" published by the UK Roads Liaison Group, a specialist sub-group of the UKRB. (The 2005 Code has now itself been superseded by a version published in 2012.) Each Code contains the statement that "The suggested recommendations of this Code are explicitly not mandatory on authorities". However, the expert witnesses were in agreement that the Codes afforded a reasonable benchmark against which to measure the policies and practices adopted by a particular local authority. Both the 2001 and 2005 Codes contained sections dealing with Winter Service, i.e. winter maintenance, including an appendix dealing inter alia with decision-making procedure. Within the appendix there was a table entitled "Decision Matrix Guide" providing guidance as to decision-making with various permutations of road surface temperature, precipitation, and predicted road conditions. The matrix included the observation "All decisions require continuous monitoring and review."
[9] Mr Hopwood also referred to a publication by the Institution of Civil Engineers entitled "Highway Winter Maintenance, a practical guide" (2000). It was less widely available than the Codes and would be used more for training purposes than for day to day use.
The defenders' Winter Maintenance Policy
[10] The defenders' Winter Maintenance Policy at the time of the accident was set out in a document dated October 2003. The document notes that the defenders as roads authority have a duty under section 34 of the Roads (Scotland) Act 1984 to take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads. With regard to treatment of roads (i.e. salting, gritting and snow ploughing), the policy is stated inter alia as follows:
"3.0 Treatment of Roads
Salting and gritting operations for ice and light snow conditions on adopted roads will be carried out as detailed below. Each gritting route will take a significant length of time to complete. The length of time taken will vary from day to day depending on actual weather conditions.
3.1 Network Hierarchy
It is not possible to provide a winter maintenance service on every road at the same time. In general priority routes will be treated before those of a lower priority. The following prioritised hierarchy has been adopted.
PRIORITY 1 - Main Routes
PRIORITY 2 - Other Strategic Routes including Bus Routes*
PRIORITY 3 - Main Urban Streets and School Bus Routes†*
PRIORITY 4 - All other routes as resources permit.
* Note route gritting will not necessarily be completed before buses start their journeys.
†* Contracted school buses or mini buses
The treatment routes, based on the priorities set out above, will be agreed by Area Committees and leaflets with maps showing the Priority 1 and 2 routes together with target treatment times will be distributed to the public at the start of each winter period.
3.2 Treatment Times - Monday to Saturday
The service will be provided between 6am and 9pm,...
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