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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Taylor v. Smith & Ors [2003] ScotCS 220 (05 August 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/220.html Cite as: [2003] ScotCS 220, 2003 SCLR 926 |
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Justice Clerk Lord Macfadyen Lord Carloway
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X167/01 OPINION OF THE COURT delivered by LORD MACFADYEN in RECLAIMING MOTION in the cause KEVIN TAYLOR (AP) Pursuer and Reclaimer; against GEORGE SMITH and OTHERS Defenders and Respondents: _______ |
Act: Cullen QC, Dunlop; Balfour & Manson (Pursuer and Reclaimer)
Alt: Dorrian QC, Lindsay; Solicitor to the Scottish Executive (Third and Fourth Defenders and Respondents)
5 August 2003
Introduction
[1] This is an action of damages for personal injury arising out of a road accident which took place on 21 January 1993 on the A96 Inverness to Aberdeen road just west of Fochabers. The pursuer was travelling as a passenger in a van belonging to his employers, the second defenders, Culag Fishing Company Limited. The van was driven by his fellow employee, the first defender, George Smith. While overtaking a lorry, the van hit black ice, the first defender lost control, and the van turned over onto its side. The pursuer was injured in the accident. [2] The pursuer blamed the first defender for the accident, and convened the second defenders on the basis that they were vicariously responsible for the first defender's negligence. He also convened as third defender the Secretary of State for Scotland (now succeeded by the Scottish Ministers), and as fourth defender the Moray Council (as successors to Grampian Regional Council). He blamed the third and fourth defenders for negligence in the winter maintenance of the road where the accident happened. [3] After proof the Lord Ordinary assoilzied both the first and second defenders and the third and fourth defenders. In this reclaiming motion the pursuer seeks to bring under review only the Lord Ordinary's decision in respect of the third and fourth defenders. He accepts that the first and second defenders were rightly assoilzied. In the course of submissions, no distinction was made, on either side, between the respective positions of the third and fourth defenders. The reclaiming motion proceeded on the basis that either they were both liable jointly and severally, or neither of them was liable. Accordingly, except where the context requires otherwise, we shall for brevity's sake refer to the third and fourth defenders as "the defenders".The agreed facts
[4] To a considerable extent there is agreement between the parties as to the relevant facts. For the purposes of the reclaiming motion, they entered into a Joint Minute recording an agreed account of how the accident happened, and various other agreed facts. It is convenient to set these out at this stage, although an abbreviated version of the agreed account of the accident is sufficient.|
"1. |
In the early hours of Thursday 21 January 1993 the pursuer was a passenger in a VW Caravelle minibus. The first defender was driving. It was a fine night ... The route followed was ... [latterly] eastwards along the A96. ... [The] first defender came up behind two ... lorries driving one behind the other in tandem. These lorries were travelling at about 40 mph. A little east of Lhanbryde between Evergreen and Kennieshillock the first defender pulled out and overtook the rear lorry. He regained his own side of the road before pulling out again to overtake the leading lorry. The road bends to the left there in a long sweeping bend, but it was possible to overtake safely if the road ahead was clear, which it was. However, immediately after the first defender had overtaken the leading lorry and regained his own side of the road, his vehicle hit black ice. As a result he lost control of it. It started to zig zag ... turned over onto its side ... skidded along the nearside edge of the road and the verge ... [and] hit a compressor ... The accident occurred shortly after 3.00 a.m. ... The pursuer was injured as a result. |
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2. |
The black ice which caused the accident formed at the locus at some point between midnight and 3.00 a.m. on Thursday 21 January 1993. |
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3. |
The A96, including the locus of the accident, had not been treated with rock salt between 12 noon on Wednesday 20 January 1993 and the time of the accident. |
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4. |
Decisions as to whether or not to treat a road with rock salt are made on the basis of all information available to the decision maker at the time of making the decision, which would include (a) available Met Office forecasts; (b) local knowledge on the part of the decision maker; and (c) information from 'icelert' sensors. |
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5. |
No such decision was made by Mr MacKay or Mr Dunbar [the relevant officers of the fourth defenders] following receipt of No. 32/2 of process [the Met Office amended advice sheet referred to in paragraph 7 below]. |
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6. |
The Met Office 'advice sheet' which forms No. 32/1 of process (appendix p. 654) became available to the third and fourth defenders at or about 12.50 p.m. on Wednesday 20 January 1993. |
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7. |
The Met Office 'amended advice sheet' which forms No. 32/2 of process (appendix p. 655) became available to the third and fourth defenders at or about 9.27 p.m. on Wednesday 20 January 1993. |
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8. |
Each of the aforesaid forecasts related to a geographical area which included the locus. |
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9. |
Each of the aforesaid forecasts indicated likely weather conditions which were correctly described by the two expert witnesses and by Mr MacKay as 'marginal', by which is meant conditions which are difficult to assess from a winter maintenance point of view because of uncertainty as to whether freezing of surface moisture will occur or whether frost will form." |
The proper approach
[5] Submissions were made on both sides as to the proper approach to be adopted by an appeal court when dealing with an appeal on matters of fact which did not turn on issues of credibility or reliability. In the present case, before the Lord Ordinary, there had been an issue as to the reliability of one witness only, namely Alastair McKenzie, a night attendant with the fourth defenders' predecessors at their depot at West Tullos, Aberdeen (see para. [14] of the Lord Ordinary's Opinion). For the purposes of the reclaiming motion, however, the pursuer's counsel accepted that that issue was immaterial. The case was therefore one that turned on the proper inferences to be drawn from the evidence, rather than on issues of credibility and reliability. Junior counsel for the defenders cited Thomas v Thomas 1947 SC (HL) 45, per Viscount Simon at 47 and Lord du Parcq at 62 (but not the more elaborate propositions formulated by Lord Thankerton at 54). Junior counsel for the pursuer, however, relied upon Benmax v Austin Motor Co Ltd [1955] AC 370 in which Lord Reid, having quoted the observations of Lord Thankerton in Thomas, said (at 376):"I think that the whole passage which I have quoted refers to cases where the credibility or reliability of one or more witnesses has been in dispute, and where a decision on these matters has led the trial judge to come to his decision on the case as a whole. ... But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from the proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."
Reference was also made to Whitehouse v Jordan [1981] 1 WLR 246, per Lord Fraser of Tullybelton at 263, and senior counsel for the pursuer also cited Dunn v Dunn's Trustees 1930 SC 131 per Lord President Clyde at 144 and 146. Senior counsel for the defenders submitted that there was no real difference between the parties as to the proper approach in the circumstances of the case. We agree. It is, in our view, for the reclaimer to satisfy us that, on a proper understanding and evaluation of the evidence, the result should be different from the one reached by the Lord Ordinary. In reaching our conclusion on that matter we are entitled to examine the whole evidence, and are not subject to the restrictions which might apply if the case turned on matters of credibility and reliability in respect of which the Lord Ordinary had an advantage which we do not share (cf. Caledonia North Sea Ltd v London Bridge Engineering Ltd 2000 SLT 1123, at 1156, 1170, 1210 and 1220).
The issues
[6] Junior counsel for the pursuer submitted that the two crucial issues in the reclaiming motion were as follows:-It was not disputed that the decision taken by the defenders after receipt of the original advice sheet at about 12.50 hours on 20 January 1993, which was in effect to rely on the levels of residual salt already on the road, was one which was open to a reasonable roads authority exercising reasonable care. Nor was it disputed that the position was not in fact reviewed (Joint Minute, para. 5), and nothing additional or different was in fact done, by the defenders in the light of the amended advice sheet. The dispute related to the course which ought to have been followed by a reasonable authority on receipt of the amended advice sheet.
[7] We have the impression that the case for the pursuer was in some difficulty from the outset on this now critical issue. Counsel for the pursuer called as a witness the defenders' expert, Mr Adrian Runacres, whose Report, which had the effect of exonerating the defenders, had been lodged before the proof. Moreover, the pursuer's own expert witness, Mr Michael Duffy, was not an expert on the vital question of the interpretation of readings from icelert sensors (Appendix, p. 449), and acknowledged that his lack of local knowledge and experience put him at a certain disadvantage (Appendix, p. 441). For reasons that we shall explain, we consider that Mr Runacres' conclusion on this issue, which was supported by the defenders' other key witness, Mr Hugh MacKay, is decisive of this reclaiming motion. [8] Before the Lord Ordinary the principal issue was somewhat different. At that stage the parties were in dispute (as they no longer were in the reclaiming motion) about whether the decision taken by the defenders in the afternoon of 20 January 1993 was one that a roads authority exercising reasonable care might have taken. The Lord Ordinary (at para. [23] of his Opinion) resolved that issue in the defenders' favour, preferring the evidence of Mr Runacres to that of Mr Duffy. Although the Lord Ordinary (at para. [21]) notes Mr Duffy's opinion that the situation should have been assessed again after the amended advice sheet was received, he also notes (at para. [17]) that the forecast in the amended advice sheet "was not significantly different and the action recommended was the same and had already been taken". It seems clear that before the Lord Ordinary there was thus much less focus on the question of proper response to the amended advice sheet as a separate question from the proper response to the original advice sheet. Indeed the Lord Ordinary appears to have proceeded on the basis that, since the forecast and recommendations remained the same, no separate issue arose. Now that the pursuer has accepted that the original decision was not negligent, and takes his stand solely on the proposition that a careful authority would have taken different action in the light of the amended advice sheet, it becomes necessary to examine in some detail the evidence bearing on that outstanding issue.The original and amended advice sheets
[9] For ease of comparison it is convenient to set out the relevant features of the Met Office advice sheet which is No. 32/1 of process (paragraph 6 of the Joint Minute) and those of the amended advice sheet which is No. 32/2 of process (paragraph 7 of the Joint Minute) in parallel:|
No. 32/1 of process |
No. 32/2 of process |
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1. |
It bears to have been issued at 1250 hours on 20 January 1993 to Moray Division for the area "below 600 ft", and to relate to the period of twenty-four hours from 1 p.m. on 20 January. |
It bears to have been issued at 2115 hours on 20 January 1993, again to Moray Division, and again for the area below 600 feet. It bears to relate to the period from 9 p.m. on 20 January to 4 p.m. on 21 January. It bears to have been faxed from the Aberdeen Weather Centre to the Regional Council depot at West Tullos at 2127 hours. |
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2. |
It contains a forecaster's note in the following terms:- "Some showers possible at first, more general rain tomorrow." |
It contains a forecaster's note in the following terms:- "Showers, mainly of rain, but occasional sleet/snow showers down to all levels. Rain later." |
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3. |
There then follows a table in which weather features are selected by ticking boxes in a column headed "F" (meaning forecast). The boxes which were ticked were those for "Air above 0°C", "Rain (slight)" and "Rain (heavy)". The latter two entries are explained by an annotation which states:- "slight is drizzle etc unlikely to remove present, heavy - will wash away salt". |
The boxes ticked in the forecast column of the weather table were "Air above 5°C" and, as before, both the rain boxes. |
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4. |
A second table deals with "Minimum/Worst Road Surface Conditions" in a similar format. The boxes ticked in the forecast column were "Ice warning +2°C - 0°C (meaning that the forecast range was from two degrees down to zero degrees); "Road temp. 0°C -2°C" (meaning that the forecast range was from zero down to minus 2 degrees); "Road wet/ice (viz RST)"; and "Road dry". RST means road surface temperature. The time of minimum road surface condition was given as "03", i.e. 0300 hours on 21 January. |
The boxes ticked in the forecast column of the "Minimum/Worst Road Surface Conditions" table were "Snow up to 3 cm" and "Road wet/ice (viz RST)". The evidence was, however, that the amended document did not necessarily repeat entries for forecasts that remained unchanged. On that basis it can be taken that the ice warning and road temperature forecasts remained the same. |
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5. |
All the boxes ticked in the forecast column (with the exception of "Rain (heavy)") are also ticked in a second column headed "A" (meaning actual). The entries in the "actual" column bear to have been made by the Grampian Regional Council DLO (direct labour organisation). |
No "actual" boxes are ticked in these two tables. Indeed, none of the parts of the document intended to be completed by the DLO have been completed. |
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6. |
A section headed "Action - Advice Recommendations" then follows. The latest action time is given as 2200. In a table headed "Evening", the boxes ticked in the column marked "R" (meaning recommended) were "Stand-by", and "Presalt to bring level to 10g/m2". The latter recommendation is annotated in manuscript "where roads are wet". In the table headed "Early morning", the box ticked in the recommendation column was "Patrol/Inspection". |
In the section headed "Action - Advice Recommendation", the same boxes as before were ticked in the recommendation column of both the "Evening" and the "Early morning" tables. The manuscript annotation to the pre-salt recommendation was not repeated. |
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7. |
All the boxes ticked in the recommendation column are also ticked in a column headed "T" (meaning taken), again by the DLO. |
No "taken" boxes were ticked in this section. |
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8. |
A further section of the document is headed "Reasons for Variation from Advice (To be completed by DLO)". It contains the manuscript entry, "Salt Value All Outstations 3". That entry was made to record that the recommendation to pre-salt to bring the level to 10g/m2 was complied with not by carrying out further salting of the road but by confirming, by means of information obtained from icelert sensors as to the residual level of salt, that there already was on the roads more salt than the recommendation required. Value 3 was substantially in excess of 10g/m2. |
The "Reasons for Variation from Advice" section is blank. |
The icelert information
[10] The other information available to the defenders at the time when they received the amended advice sheet included the information provided by icelert sensors. The information which would have been obtainable during the course of the night of 20-21 January 1993 from the sensors located at Fochabers, some 2.75 km from the locus, is evidenced by the documents that form Nos. 32/3 and 32/4 of process (Appendix, pp. 656 and 657). The period of time covered by those documents happens to be from 1213 hours on 20 January to 1213 hours on 21 January, but the evidence was that at any time during the relevant period the defenders could have obtained a print-out of the data for the immediately preceding period of twenty-four hours. [11] The icelert sensors include equipment for measuring a number of different aspects of weather conditions. Precipitation is measured by a device situated at the roadside. No. 32/3 of process indicates inter alia when, during the twenty-four hours which it covers, precipitation was recorded by that device at the Fochabers location. The result is given for periods of thirty minutes. The occurrence of precipitation within the half-hour in question is denoted by the letter Y, and an absence of precipitation by the letter N. Precipitation is recorded as having occurred in the thirty minutes beginning at 1243 hours, in the thirty minutes beginning at 1613 hours, and in the hour beginning at 1813 hours. No further precipitation is recorded as having occurred after that. [12] Surface temperature and the salt level on the road surface are measured by sensors situated on the road surface between the wheel tracks of one lane of the carriageway. No. 32/4 of process records both the surface temperature and the salt level on the road surface at the Fochabers location half-hour by half-hour throughout the same period of twenty-four hours. The surface temperature is recorded as having fallen to (but not below) 0°C for about forty-five minutes beginning at about 2030 hours, and again for approximately half an hour just before midnight. The salt level on the road surface is also given for half-hour periods. It is expressed as surface conditions 1, 2, 3 and D. According to the Lord Ordinary's findings, surface conditions 1, 2 and 3 are respectively broadly the equivalent of 10, 20 and 40g/m2 of salt on the road surface. Where the surface condition is denoted as D, that indicates that the sensor is not recording salt on the road surface. That does not, however, necessarily mean that there is no salt present on the road surface. The icelert sensor can only detect the present of salt and quantify the amount that is present if moisture is also present. A surface condition reading of D thus indicates either that there is no salt present or that the road surface is dry and the sensor therefore cannot detect and measure the amount of salt that is present. No. 32/4 of process records surface condition 3 from 1213 hours until 1543 hours, 2 for the next half-hour, rising again to 3 for the half-hour beginning 1613 hours, falling to 2 until 1813 hours, rising to 3 for the half-hour until 1843 hours, falling again to 2 until 2043 hours, and falling further to 1 from 2043 until 2343 hours. From then until 0543 hours the reading was D.The pursuer's submissions
[13] The primary submission for the pursuer was that a roads authority exercising reasonable care would, on receipt of the amended advice sheet at 2127 hours, have conducted a review of the decision which had been taken in the afternoon about the precautions to be taken against the formation of ice on the roads in their area. That would have involved a reassessment of the whole information by then available. If that had been done, an authority exercising reasonable care would, in the light of the information then available, have decided to carry out at once further salting of the roads. The weather conditions were, as is a matter of agreement (Joint Minute, para. 9), marginal. The advice of the Met Office was to pre-salt the roads to bring the level of salt to 10g/m2. The duty of the reasonable authority acting carefully was to give effect to that recommendation unless there was sound justification for not doing so (Grampian Regional Council's Winter Maintenance Operational Plan, quoted by Mr Runacres in his Report at para. 6.28, Appendix, p. 764). It was accepted that there could be circumstances in which it would be legitimate to decide not to carry out recommended pre-salting, if the residual salt levels were sufficient. It was submitted, however, that the evidence was that it was only legitimate to rely on the residual salt levels if (i) all the icelert sensors in the area were registering a residual salt level of 3 and (ii) the authority had satisfied itself by further inquiry that those readings were representative of conditions generally. If these criteria were not satisfied, a roads authority exercising reasonable care would not rely on residual salt levels. [14] It was further submitted that the onus was on the defenders, if they sought to rely on the icelert readings as justifying refraining from carrying out the recommended pre-salting, to lead evidence to justify their decision (Walkers on Evidence, second edition, para. 2.2.4). Faced with the clear recommendation in the amended advice sheet to pre-salt to bring the level up to 10g/m2, it was for them, if they sought to justify reliance on residual salt levels as a reason for not following that recommendation, to establish the circumstances that made such reliance legitimate. They had not done so. At 2130 hours, the salt level at Fochabers was only 1, and there was no evidence that the defenders had done anything to check whether that figure was valid or representative. Alternatively, if the onus was on the pursuers, they had discharged it. The circumstances were peculiarly within the defenders' knowledge, and therefore slight evidence was sufficient to discharge any burden on the pursuer (Walkers, op. cit., para. 2.2.5; Cruickshank v Smith 1949 JC 134, per Lord Jamieson at 152). There was sufficient evidence to enable the pursuers to discharge that light onus, if it was indeed incumbent on them, of showing that the circumstances were not such as to justify reliance on the residual salt levels. [15] The submission that residual salt levels could only be relied upon if the criteria mentioned in para. [13] above were satisfied was said to be supported by the evidence of Mr Runacres. Heavy reliance was placed on passages in his report (Appendix, p. 770) which were in the following terms:|
"7.11 |
When basing winter maintenance decisions on residual salt levels, it would be normal for decision making engineers to confirm the validity of the ice detection station readings by using their own local knowledge, checking with members of staff who have recently travelled on the network, or by undertaking some inspection themselves. |
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7.12 |
If it is accepted that all of the ice detection stations were indicating 'salt 3' and, assuming that the maintaining engineers had satisfied themselves that this information was representative of conditions across the network, then I consider it reasonable for them not to instigate a planned precautionary salting operation during the evening of 20 January 1993." |
That was said to be the crucial point in the case. When what was actually done was measured against those criteria, it could be seen that the defenders had not taken the precautions which a reasonable authority would have taken if acting carefully. At 2130 hours on 20 January 1993 the salt level at the Fochabers location was no longer at 3, but had fallen to 1. Moreover, there was no evidence that any steps were taken after 2130 hours to check whether the salt level readings were valid or representative.
[16] It was accepted that section 7 of Mr Runacres' report was concerned with the original decision taken in the light of the original advice sheet, but it was submitted that there was an important relationship between section 7 and section 8 which dealt with the situation which existed after the amended advice sheet had been received. His acceptance of the sufficiency of the decision taken in light of the original advice sheet was conditional on all the icelert sensors showing salt level 3 and on the engineers satisfying themselves that they were representative of conditions across the network. In fact, when the amended advice sheet was received, none of the steps desiderated in para. 7.11 of his report were taken. Moreover, the icelert sensor at Fochabers was recording a salt level of only 1. Mr Runacres' attempt to explain away that salt level by reference to the drying of the road surface was unsatisfactory. Even if that was the correct explanation for the low salt level recorded at Fochabers, it was not valid for the locus. The evidence was that the presence of tree shelter at the locus meant that the road surface there would be slower to dry. Properly understood, Mr Runacres' evidence contained an acceptance that in respect of the locus it was not reasonable to assume that by the time of receipt of the amended advice sheet there was still a sufficient residue of salt on the road surface. Reference was made, in particular to a part of Mr Runacres' evidence (at Appendix, pp. 255 to 262) which contained the following passages. [17] Commenting on para. 7.12 of his report, which dealt with the original decision made in light of the original advice sheet, he said (at 255E):"... I would have to say that, from the ice detection station alone, the data alone, there's pretty strong evidence that the network was exhibiting over 10 g/m2 of salt. If it had been, if the ice detection stations had been reading 'Salt 1' or 'Salt 2', then I would definitely consider that they should have perhaps gone out and done a physical inspection themselves at the time the decision was taken."
At page 260D he noted that the salt level recorded by the Fochabers sensor steadily dropped back during the evening, and in response to the question "Indicating what?" he replied:
"Indicating that either the road surface was drying out or that salt was being taken off the road ... [by] the action of traffic coupled with rain, showers".
He then said (at 260F-261A):
"It's likely that the change from 3 to 2 was as a result of the showers";
and in relation to the change from 2 to 1 (at 261C-262C)):
"... [I]t's difficult to say but it could have been the last vestiges of moisture from the shower coupled with the actual traffic on the wet road. ... Because the road's wet and because its being trafficked it is quite possible that although no more moisture is getting on to the road, the salt is actually still being washed off the road by the actual traffic."
Mr Runacres was then asked: "And we also have to remember that this is Fochabers?" and replied (at 262D):
"That's right, yes; which was an exposed site and would have started to dry out fairly quickly after rain stopped."
In answer to the next question: "What would you have expected for a site that wasn't going to dry off quickly?" he replied:
"Well, I would expect the salt levels to reduce and it to remain damp."
In the light of those passages in Mr Runacres evidence, it was submitted that it would not have been reasonable for a roads authority to base a decision not to carry out the pre-salting recommended in the amended advice sheet on a salt level reading of 1 at the Fochabers location. It was unreasonable to assume that the Fochabers reading meant that there would be adequate residual salt on the road surface at the locus. There had been rain in the interval between the issue of the two advice sheets; the locus was a sheltered site which, unlike the Fochabers location, was therefore likely to remain damp; the salt level at the locus was therefore likely to be truly falling, rather than merely appearing to fall because of drying of the road surface. It was no part of the pursuer's case that the locus was a known accident black-spot, but it was not unreasonable to expect the defenders to understand that road conditions were likely to vary because of topographical factors.
[18] The conclusion that it was unreasonable to rely on the residual salt level was also, it was submitted, supported by the evidence to that effect given by Mr Duffy at pp. 406-407 of the Appendix. At p. 433D he said:"I don't think you could always be sure unless one did check the network that you had residual salt present."
(See also at p. 466F-467A).
[19] If it was established that a reasonable roads authority on receipt of the amended advice sheet would only have relied on residual salt levels if the readings remained at level 3 and further checking confirmed that the readings were valid and representative of the area, the defenders were negligent in not carrying out further salting of the roads after 2130 hours. In that situation the question of causation remained: would the accident have been prevented if the decision had been taken after 2130 hours to carry out further salting? In support of the submission that that question should be answered in the affirmative, reliance was placed on evidence given by Mr Runacres (at para. 5.13 of his report, Appendix, p. 755) that in accordance with the Code of Practice (which, although only issued later in 1993, reflected what was already good practice at the time of the accident) the aggregate of response time and treatment time should not exceed three hours. On that basis, there was ample time for a decision to pre-salt in accordance with the amended advice sheet, taken after 2130 hours, to have been carried into effect before the accident occurred at about 0300 hours. If such treatment had been carried out, the evidence was that it would have been effective to prevent the accident (see in particular the evidence of Mr MacKay, Grampian Regional Council's DLO Engineer for the Moray Division, at Appendix, pp. 540C and 601C; and Mr Dunbar, Roads Supervisor for the Moray Division, at Appendix, p. 636E). On that basis the court should hold that a decision to pre-salt the roads in light of the amended advice sheet would have been likely to have resulted in prevention of the accident.The defenders' submissions
[20] The primary contention advanced on behalf of the defenders was that the amended advice sheet, properly understood, did not require them to take any further or different measures from those which they had decided to take in the light of the original advice sheet. The advice which the amended advice sheet contained was no different from that contained in the original advice sheet. It was reasonable to construe the icelert data available at 2130 hours as indicating that the road surface was drying out rather than that the residual salt level on the road surface had truly fallen from 3 to 1. There was therefore no occasion to do anything additional or different. In that situation it did not matter that no fresh decision was in fact taken in the light of the amended advice sheet. [21] It was submitted that the pursuer's case, as now presented, depended on the proposition that it was only reasonable to rely on residual salt levels if all the readings were at level 3, and some physical check had been carried out to see that the icelert data was representative. That proposition was unsound. It depended on a misunderstanding of Mr Runacres' evidence. He did not say that it was only legitimate to rely on residual salt as a reason for not following a recommendation that there should be pre-salting to 10g/m2 if the salt level readings were at 3. He did not say that level 3 readings were a prerequisite to reliance on residual salt levels. The correct position was that it was legitimate ("a commonly accepted technique") to rely on residual salt levels if they showed that there was enough salt already on the road surface to deal with the forecast conditions. Mr Runacres said that in evidence (Appendix, p. 295E). In paras. 7.11 and 7.12 of his report, Mr Runacres was expressing an opinion in relation to the soundness of the original decision, made in the course of the afternoon of 20 January 1993, that it was not necessary to pre-salt to bring the salt level up to 10g/m2 because that amount of salt was already present on the road surfaces. In that context, it was natural that he should refer to the actual residual salt level shown by the icelert sensors at that time, namely level 3. Paragraph 7.12 could not reasonably be construed, however, as laying down a minimum residual salt level that was required before residual salt could be relied on as making pre-salting unnecessary. [22] Likewise, it was submitted, it was wrong to treat what Mr Runacres said in para. 7.11 of his report as applicable at the stage of reviewing, in the light of an amended advice sheet, a decision made earlier in the day. What required to be carried out after receipt of the amended advice sheet at 2130 hours was a review, in light of the new information, of the decision that had been made earlier. It was not a matter of considering the matter afresh without regard to what had been decided earlier and the basis on which it had been decided. The forecast in the amended advice sheet was little changed, and the recommendation was unchanged. What Mr Runacres said in evidence at pp. 247-251 and 325-328 of the Appendix was concerned with the original decision. When he was asked about the amended advice sheet, he did not say that the whole exercise required to be repeated. On the contrary his position was set out (at Appendix, p. 331) as follows:|
Q. |
"Is there anything in your opinion in this amended advice sheet which should have caused the Roads Engineers in Moray to re-assess their initial decision not to carry out a presalting and to rely on residual salt levels?" |
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A. |
"Not at all, no. They should have taken it into account and they should have reviewed the decision made earlier, but my opinion as regarding the content of this amended sheet is that it should not have led them to change in any way their previously made decision." |
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Q. |
"And why do you say that?" |
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"It really doesn't change anything from the previous forecast in any way that's significant in regards to treatment of roads" |
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"And the advice in the amended sheet, is it the same as the previous one?" |
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"Indeed it is, yes." |
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"And, in particular, the level to which the road requires to be presalted, has it been altered?" |
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A. |
"No, it hasn't, no." |
Mr MacKay also expressed the view that there was nothing in the amended advice sheet that would, if he had seen it on the evening of 20 January, have led him to change his initial decision (Appendix, p. 508B). Mr Duffy's evidence as to what he would expect to be done on receipt of the amended advice sheet (Appendix, p. 404) was predicated on his view that the earlier decision should have included provision for patrolling the network (Appendix, pp. 388 and 410B). That contention was no longer maintained by the pursuer. Mr Duffy did not address the question of what should have been done after receipt of the amended advice sheet if there were no patrols in progress.
[23] The most important issue was how a competent engineer exercising reasonable care in reviewing the situation after receipt of the amended advice sheet would have interpreted the information then available from the icelert sensors. Mr Duffy said that he did not pretend to be an expert on the matter (Appendix, p. 449D-E). Mr Runacres, shown Nos. 32/3 and 32/4 of process and asked if there was anything in those charts which should have alerted anyone to the need to change the decision [not to pre-salt], said "I don't believe so, no" (Appendix, p. 332E). In section 8 of his report (Appendix, pp. 771-772), Mr Runacres had said:|
"8.5 |
... [T]he Fochabers ice detection station (which is only approximately 2.75 kilometres (1.7 miles) from the accident site) was recording 'Salt 3' during the early afternoon of 20 January 1993. Two short lived showers were recorded at this site before 1900 GMT that evening, but the residual salt level recorded at that time was still 'Salt 2'. This would normally indicate that the road surface at this site was still exhibiting over 10g/m2 of salt, despite these showers, which must have been relatively light in nature. |
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8.6 |
The Fochabers ice detection station did not record any further showers overnight. However, the residual salt level is recorded as dropping to 'Salt 1' at around 2100 GMT on 20 January 1993 with the road surface becoming dry and no salt being recorded at around midnight. |
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8.7 |
However, I consider this apparent reduction in residual salt level to be a function of the method utilised by such equipment to measure salinity levels, rather than a real reduction." |
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There followed an explanation of the phenomenon, and the report then continued: |
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"8.9 |
The road surface at the Fochabers ice detection station became dry around midnight 20/21 January 1993 and I consider that the gradual drop in recorded salinity levels during the preceding period is entirely consistent with the road surface simply drying out. ... |
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8.10 |
The phenomenon of these sensors under-recording residual salt levels on dry(ing) roads is well known to highway engineers and I assume that the maintaining engineers considered residual salt levels to be still relatively high at the time that the updated weather forecast was received. Based upon the data from the ice detection stations, I certainly consider that this would have been a reasonable assumption to have made." |
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Mr Runacres was wrong in his assumption that the defenders' engineers had actually reconsidered the matter after 2130 hours, but that did not affect the validity of his opinion as to what would constitute a reasonable interpretation for an engineer to place on the icelert data. He reaffirmed that opinion in evidence (Appendix, p. 338D). That interpretation of the icelert data was consistent with the view expressed by the forecaster in the amended advice sheet, which Mr Runacres interpreted as meaning that rain sufficient to wash off residual salt was not expected (Appendix, p. 311C). The evidence was that it had not rained after 1915 hours, at which time the Fochabers icelert was still showing a salt level of 2. Mr MacKay also interpreted the falling recorded salt level as indicative of a dry or drying road surface (Appendix, pp. 510 and 570), and said that if he had been monitoring the icelert data overnight, nothing in it would have caused him to change his initial decision (Appendix, p. 511). Mr Runacres was quite firm on this critical point in his evidence (Appendix, pp. 332-338).
[24] In response to the pursuer's submission that Mr Runacres was misguided in relying on the Fochabers icelert data as a basis for concluding that it was reasonable not to change the original decision after receipt of the amended advice sheet, it was accepted that because of the stand of trees adjacent to it, the locus was relatively sheltered, and could therefore be slower to dry out and more susceptible to ice than the site of the Fochabers icelert. It was submitted, however, that it was unreasonable to expect the defenders' engineers to be aware of the properties of every inch of road in the area for which they were responsible. It might be reasonable for them to be expected to be aware of accident black-spots, but the locus was not an accident black-spot (Mr Runacres at Appendix, pp. 354D-356B). The locus would therefore not be specifically in the mind of a reasonably careful engineer as requiring special consideration when a decision on whether pre-salting was required was being taken. [25] It was submitted that in the result it should be accepted that, although a reasonable roads authority would, on receipt of the amended advice sheet, have reviewed its decision to rely on residual salt levels to provide the recommended level of 10g/m2, there was nothing in the amended advice sheet itself to suggest that that decision required to be modified. The icelert data required to be interpreted as an experienced roads engineer would interpret it, and the evidence supported the conclusion that so interpreted it would be regarded as indicating that the road surface was drying, rather than that the salt level was truly falling. On that basis it could not be said that any reasonable road authority would have ordered pre-salting of the roads in Moray which would have been carried out at the locus before the accident happened. It therefore could not be said that the accident had been caused by negligence on the part of the defenders.Discussion
[26] In our opinion the issues which have been raised in this reclaiming motion require to be considered in the context of the matters that are no longer in dispute. The pursuer no longer maintains that in deciding on the afternoon of 20 January 1993, in the light of the original advice sheet and the other information then available and taken into account, that the residual salt levels on the roads in Moray were sufficient to deal with the forecast weather conditions, and that in particular they made it unnecessary to carry out pre-salting in order to achieve the salt levels recommended by the Met Office, the defenders acted negligently. That involves an acceptance by the pursuer that the Lord Ordinary was entitled to prefer the view expressed on that matter by Mr Runacres to the view expressed by Mr Duffy. The issue in the reclaiming motion is therefore a narrower one, which was not sharply focused before the Lord Ordinary. That issue is whether a roads authority, exercising reasonable care, would, on review of its earlier decision in the light of receipt of the amended advice sheet, have come to a different conclusion, and would in particular have decided that it was, after all, necessary to carry out pre-salting in order to achieve the recommended salt level. It is not disputed that a roads authority exercising reasonable care would, on receipt of the amended advice sheet, have reviewed its earlier decision. The parties are not, however, agreed as to what such a review would have required. [27] We are not persuaded that the evidence justifies the conclusion that a reasonable road authority, on receipt of the amended advice sheet, would have embarked on a complete reconsideration of the matter de novo. The matter had been addressed only a few hours earlier. At that stage, consideration had been given to the terms of the original advice sheet. The data obtained from the icelert stations had been considered. The other steps desiderated by Mr Runacres in paras. 7.11 and 7.12 of his report had been undertaken. As a result, a conclusion had been reached that the residual salt levels were sufficient to guard against the formation of ice in the forecast conditions. That conclusion is now accepted by the pursuer as having been one which was open to a reasonable authority exercising a proper degree of care. In that situation, what was required, in our opinion, was a review of the earlier decision in light of the new material provided by the Met Office and obtainable from the icelert sensors. Clearly the same scope for cross-checking conditions in the field as was available and resorted to during working hours, was not available at 2130 hours in the evening. We therefore consider that the evidence supports as reasonable the approach of considering (i) whether the forecast and recommendation have changed significantly, and (ii) whether the available data about residual salt levels has changed significantly. We therefore reject the submission that the review after 2130 hours required to contain all the elements that were required in the making of the original decision. [28] It is, in our opinion, clear that there was no material change in the forecast or the Met Office recommendation. In particular, the recommendation remained that pre-salting should be carried out "to bring level to 10g/m2". We accept the evidence of Mr Runacres and Mr MacKay that there was nothing in the amended advice sheet to suggest that the original decision required to be changed. [29] The original decision not to pre-salt was, of course, taken in the light of the icelert data available at the time of that decision, and it was therefore appropriate that, when the decision was under review after 2130 hours, account should have been taken of any change in that data. We reject the submission that the fact that the icelert sensors were no longer recording salt level 3 was per se sufficient to require pre-salting to be carried out. The submission that Mr Runacres' evidence was to the effect that reliance on residual salt levels was only legitimate if the salt level was 3 in our opinion clearly involved a misconstruction of para. 7.12 of his report. What he was there discussing was the actual data available in the afternoon. He was not purporting to set a minimum salt level necessary as a precondition for relying on residual salt levels. The true position, in our opinion, is clearly that residual salt levels may legitimately be relied upon if they are sufficient to meet the level which the Met Office recommended should be achieved by pre-salting. What matters is not whether the salt is already on the road surface, or applied to the road surface by pre-salting, but whether, one way or another, there is sufficient salt on the roads to prevent the formation of ice in the forecast conditions. [30] The issue therefore, in our opinion, comes to be whether a reasonable road authority, exercising proper care, would have interpreted the icelert data available at 2130 hours as showing (i) that the residual salt levels remained sufficient to meet the forecast conditions, or (ii) that the residual salt levels had fallen to such a level that they could not be regarded as sufficient to meet the forecast conditions. To a layman, uninformed as to how the icelert sensors operate, the fact that by 2130 hours the salt level at the Fochabers location had fallen to 1 might be thought to indicate that it was thus on the very margin of sufficiency, and that the trend was towards insufficiency. The matter must not, however, be judged by the view which an uninformed layman might take. We accept the evidence which explained that a falling salt level reading may be indicative of a drying road surface. We also accept the evidence of Mr Runacres and Mr MacKay that to them, as experienced road engineers, the salt levels recorded at 2130 hours reflected a drying road surface rather than a falling level of salt on the surface. It seems to us that that conclusion fits intelligibly with the actual weather conditions recorded that evening. We therefore accept Mr Runacres' conclusion that a reasonable road engineer would have construed the data in that way, and would have been entitled to conclude that the residual salt level was still sufficient to deal with the forecast conditions. [31] We do not consider that there is merit in the point which was made on the pursuer's behalf by reference to the difference between the weather conditions at the locus and those at the Fochabers icelert station. We accept that because of the adjacent stand of trees the microclimate at the locus was probably such that the road surface there dried more slowly than did the surface at the Fochabers icelert station, and was on that account more susceptible to icing. That is no doubt why the accident happened. We do not consider, however, that on that account the defenders were disentitled from drawing general conclusions from the icelert data. No doubt if the locus had been a known accident black-spot, the defenders would have been expected to know about that and make allowances for it. We accept Mr Runacres' evidence, however, that the locus was not in fact an accident black-spot. The decision which the defenders had to make was one for the Moray area as a whole. They cannot reasonably be expected to make individual decisions for individual lengths of road that are not known to present unusual hazards. We regard the evidence of Mr Runacres, supported by Mr MacKay, as justifying the conclusion that a roads authority exercising reasonable care would, in all the circumstances, have been entitled to conclude that the residual salt levels could be relied upon to achieve the salt levels recommended by the Met Office. [32] In all the circumstances we are satisfied that, if the defenders had reviewed their decision in light of the amended advice note, they would have been entitled to take the view that the decision did not require to be changed. We therefore hold that the proper conclusion on the evidence is that the defenders' failure to pre-salt the roads in Moray did not constitute negligence on their part. [33] Had we taken the view that a roads authority exercising reasonable care would, after consideration of the amended advice sheet, have decided to carry out pre-salting, we would have concluded that such presalting would probably have prevented the accident. We would have reached that conclusion on the basis put forward on the pursuer's behalf (see para. [19] above). In the event, however, that issue does not arise.Result
[34] For these reasons we shall refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 19 April 2000 by which he assoilzied the third and fourth defenders.
