Monday, January 29th, 2018
Iain Pocock v Highland Council  CSIH 76
Robert Milligan QC and Craig Murray of Compass Chambers appeared for the defender/respondent, while Jonathan Brodie QC of Arnot Manderson Advocates and David McNaughtan of Compass Chambers appeared for the pursuer/appellant in this Reclaiming Motion heard by the Extra Division of the Inner House.
The pursuer/appellant was a crofter, who tripped on uneven paving slabs on 9 February 2012, whilst walking in Inverness town centre. He fell and injured his left knee. The pursuer sued the defenders as the roads authority responsible for the street where he fell and sought damages on the basis of a breach of their common law duty of care owed to pedestrians. The pursuer alleged the unevenness had been identified on 20 December 2011 and again in January 2012, and the defenders had failed to repair the defect within seven days of that date, failing which within 21 days.
The pursuer’s primary case was that the defect was greater than 20mm and the defenders’ duty of reasonable care required them to repair it within 7 days of discovery. The pursuer’s arguments on this point were informed by examples of Local Authority practice within Well-maintained Highways – Code of Practice for Highway Maintenance (2005). In the alternative, the pursuer pled that the defender’s duty of care required them to repair the defect before the pursuer’s accident on 9 February 2012.
The pursuer took photographs of the defect soon after the accident. The pursuer later engaged an engineer to review the photographs. The engineer never saw the defect in person. In his evidence, the engineer estimated the defect’s height differential was 28mm, by reference to the matchbox shown in the photographs.
The Lord Ordinary, Lord Clark, concluded that the pursuer was credible and reliable. Nonetheless, he held that the pursuer had failed to establish as a matter of fact that the defect was greater than 20mm at the date of identification. Nor had he established that the defect ought to have been repaired. The defender’s failure to follow their repair policy did not amount to a failure to exercise reasonable care. Whilst a Roads Authority’s failure to follow its Repair Policy is relevant to an objective assessment of reasonable care, it is not, in itself, determinative of negligence.
Applying the objective test set down in MacDonald v Aberdeenshire Council, the Lord Ordinary concluded that the pursuer had not established “…that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it…”
The Lord Ordinary had regard to the evidence of the defender’s Roads Inspector, who was the only witness physically present at the dates of the inspections of the defect. She gave evidence that notwithstanding her classification of the defect as being due for repair within 21 days, it was less than 20mm deep at time of inspection. She had not noted the depth of the defect in her inspection records. The Lord Ordinary also noted that there was some variation in Scottish Roads Authorities’ practice towards road defects.
In reclaiming, the pursuer submitted that the Lord Ordinary ought to have concluded that the defect was, on the balance of probabilities, 28mm. Further, that the weight of evidence gave rise to an inference that the standard of care required of the defenders was to repair the defect before the pursuer’s accident. The defenders argued that the Lord Ordinary was entitled to conclude that the defect was less than 20mm. Further, it was for the court to decide whether the defect was a hazard, not the witness.
The Inner House rejected all the pursuer’s grounds of appeal.
The Court considered that the Lord Ordinary proceeded on the basis that he was satisfied that there had been a height difference of less than 20 mm on the inspection dates. On the evidence before him, he was entitled to do so and the Court would not interfere with that finding.
On the question of ‘reasonable care’, the Court discussed the main body of authorities, noting that the law required courts to strike ‘a fair and reasonable balance between the interests of road users and roads authorities’, and that the Lord Ordinary ‘required to form his own independent view of the dangerousness of a defect’.
It was therefore for the Lord Ordinary, taking account of all the circumstances, including, but not on a determinative basis, the defenders’ published roads maintenance policy and repair timetables, to exercise his judgment in assessing whether there had been a breach of the defenders’ duty of reasonable care. In carrying out that task, the Lord Ordinary took into account: the nature, size, and location of the irregularity; the need for roads authorities to have a system of prioritisation, related to the degree and nature of any risk; the categorisation of the height differential by the defender’s roads inspector as a medium risk with an expected response time of 21 days in terms of the defenders’ published policy; the roads inspector’s evidence that the majority of roads authorities would not intervene where the height differential was less than 20mm; and the expert evidence that “for the vast majority of roads authorities, the intervention level was 20mm”. The Lord Ordinary also took into account certain extracts from the Codes of Practice and the relevant authorities.
For those reasons, the Inner House considered that the Lord Ordinary had appropriately weighed the evidence in applying the MacDonald test and declined to interfere with his decision.
The reclaiming motion was refused.
The Opinion of the Court can be read here.