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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jackson v. City of Edinburgh Council [2004] ScotCS 240 (04 November 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/240.html Cite as: [2004] ScotCS 240 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF J. GORDON REID, Q.C. (Sitting as a Temporary Judge)
in the cause WILLIAM GORDON JACKSON Pursuer; against CITY OF EDINBURGH COUNCIL Defenders: ________________ |
Pursuer: Lloyd; Thompsons
Defenders: R.W. Dunlop; Edinburgh Council (Legal Department)
4 November 2004
Introduction
[1] The pursuer sues the Council for damages for personal injuries. He slipped, fell and suffered injury because of the presence of rutted ice on the pavement where he was walking. The Council says the case is irrelevant in law. A Procedure Roll discussion took place on 22 September 2004 to determine the issue.
Factual Background
[2] For the purposes of the Procedure Roll discussion, the facts averred by the pursuer are assumed to be true. In summary, (which I take from article three of the Condescendence), the pursuer avers that on 15 December 1999, shortly after 9am, he was walking on the pavement on the south side of Johnston Terrace, Edinburgh, making his way up the hill to Parliament House. At a point just before Castle Rock Hostel, he slipped and fell because of the presence of rutted ice on the pavement. The ice had been present for some time.
Weather conditions
[3] He proceeds to make general averments about the weather conditions over the preceding five days. He then avers that in Edinburgh on Tuesday 14 December 1999 there was a fall of rain, sleet and wet snow beginning at about 6.30am. Temperatures fell later in the afternoon giving rise to freezing conditions. The consequence of this, he avers, is that where pavement surfaces had not been sufficiently treated with salt and grit, underfoot conditions on 15 December were likely to be treacherous. He then makes the following further averments in article 3 of the Condescendence at page 6B of the Closed Record, as amended:-
"The place where the pursuer fell lies beneath the castle esplanade, and in the shade. A wall runs along the south side pavement, screening it from the sun, making ice more likely to form there, and less likely to melt. The hill at Johnston Terrace is steep and very close to where the pursuer fell there are steep steps, leading down to the Grassmarket. Johnston Terrace, itself, is reasonably busy in the morning with pedestrians. Many office workers park their cars at its foot and walk up. At its top, Johnston Terrace is high, being approximately 88m above sea level. The said local features of Johnston Terrace were or ought to have been known to the defenders. The steepness of the hill made it more likely that a pedestrian might slip and fall, sustaining injury, in the event of the presence of ice than in an area less steep."
Defenders' System
[4] The pursuer avers that the Council had a system for treatment of pavements with salt and grit during winter weather; this was to enable the Council to fulfil its obligations under the Roads (Scotland) Act 1984. Johnston Terrace was a primary route for vehicular traffic and had the highest priority ranking (6C).
The pursuer sets out the Council's system for treating pavements which identified priorities, at page 6D, as follows:-
"(i) Urban shopping areas and precincts;
(ii) Other areas of high pedestrian concentration (routes to health clinics, hospitals, homes for the elderly and schools)
(iii) Main routes to residential areas (also steep hills in housing developments)".
Implement of the system
[6] The pursuer avers that salt and grit were spread on the Johnston Terrace carriageway on 14 December, by gritting vehicles, between 8.05am and 10.21am and again between 5.10pm and 6.45pm. No priority was given to the Johnston Terrace pavements. At about 3.30pm on 14 December, the Council received a request from the Scottish Parliament Police Unit, for the spreading of salt and grit at the area of the Mound/George IV Bridge junction, about 278m from where the pursuer fell (pleadings at page 7A-7B). This was said to be a good indicator of likely conditions at the top of Johnston Terrace.[7] The pursuer asserts that pavements which had been sufficiently well treated with salt and grit on 14 December, or earlier, would have been damp or wet but not icy. No effort was made by the defenders to spread salt and grit on the pavements of Johnston Terrace at any time in the period from 10 December to the morning of 15 December. On that morning between 8.35am and 3pm, the Council sent a mini tractor to spread salt and grit on the pavements of a route including Castle Terrace/Johnston Terrace/the Mound/Market Street/Waverly Bridge. (For convenience I refer to this as the Johnston Terrace Route). Between 8.35am and 12.30pm on 15 December the Council sent a hand spreading squad to spread salt and grit on Castle Terrace/Johnston Terrace. Between 11am and 3pm a second mini tractor was sent out over the Johnston Terrace Route. When the pursuer fell, the pavement where he fell had not been salted or gritted. According to the pursuer, had the Council spread salt and grit over the same route earlier, the pursuer's accident would not have happened.
The Council's failures
[8] The pursuer avers that when he fell the Council had taken no steps to spread grit over the Johnston Terrace Route (this does not quite square with the timings referred to in the previous paragraph). He asserts that the Council was on specific notice from 13 December that the roads and footways were liable to be icy. He refers to weather forecasts received at 12.15pm on 13 December and at 6.44am on 14 December. He avers that, conform to their own system, Road Supervisors would have checked the condition of the footways in Johnston Terrace at least on 13 and 14 December. He avers that "properly carried out these checks would have revealed that footways were affected by ice" (8C-D). He says there were good reasons to treat Johnston Terrace following the weather forecast received at 12.15pm on 13 December. A mini tractor was in fact sent to spread salt and grit over Johnston Terrace on the morning of 15 December.[9] All depots were instructed to stand down on 13 December at 7.05am and no effort was made to spread salt and grit on carriageways or pavements anywhere until 5.15am on 14 December. The Council had additional resources available to them to deal with the spreading of salt and grit on footways which were not, although they could have been, deployed on 14 December.
Fault on the part of the Council
[10] The pursuer's case is based on common law fault. An earlier statutory case has been deleted. The heart of the case of fault is pled in article four, at page 17C-E of the Closed Record, as amended, as follows:-
"They knew or ought to have known that the route, including Johnston Terrace, included streets with steep hills, which were reasonably heavily used by pedestrians, and where, by reason of their local characteristics (including the steepness of the road), pedestrians were at greater risk of falling on untreated pavement surfaces ... (I)t was the (Council's) duty not to have continued the stand down of the gritting depots following the forecast at 12.50pm on 13 December 1999 and to have spread salt and grit on the pavements of the route referred to in article 3 of Condescendence, no later than 14 December 1999."
Submissions
[11] Mr Dunlop referred to Cameron v Inverness County Council 1935 SC 493, X v Bedfordshire County Council 1995 2 AC 633, which he argued reflected Scots law, and submitted that (i) if the act or omission complained of fell within the area of the statutory discretion of the defenders, it was not justiciable or actionable at common law (X v Bedfordshire County Council at 736B), (ii) if factors relevant to the exercise of that discretion touched the question of policy, the court will not interfere and no common law duty of care exists (ibid at 736H). If the act or omission is so unreasonable as to fall outwith the ambit of discretion and deals with operational rather than policy matters, then liability may arise (ibid at 736B and 738H). He adopted Lord Browne-Wilkinson's analysis of the question whether a person who has suffered damage in consequence of a statutory authority's performance or non-performance of that function, has a right of action in damages against that authority under reference to passages at pages 730F, 731A, 734H, 735B, 736A, 737E, 737G-H and739A, and submitted that the present case was a category C case (i.e. a statutory duty giving rise to a common law duty of care); liability would arise for example if oil instead of salt had been spread on the roads or footways.[12] Mr Dunlop also referred to Gordon v Inverness County Council 1957 SLT (Notes) 48, which he submitted supported the propositions that (a) priority of gritting is a matter of discretion, and (b) in relation to the operational decision to treat the roads and footways, the question is whether there has been delay so unreasonable as to fall outwith the ambit of the local authority's discretion. He also referred to Grant v Lothian Regional Council 1988 SLT 533 at 534, Gibson v Strathclyde Regional Council 1993 SLT 1243 at 1245 and 1246, and Syme v Scottish Borders Council 2003 SLT 601 at 611E-612, which, he submitted, followed X v Bedfordshire County Council and MacDonald v Scottish Ministers 2004 Rep. LR 16 at paragraph 8. Mr Dunlop pointed out that MacDonald was a stronger case than the present as there had been a report made concerning the locus.
[13] Mr Dunlop then analysed the pleadings. He submitted that the passage at page 6B (quoted above) did not distinguish the locus from hilly areas or areas in the shade in Edinburgh. There was nothing to differentiate the locus from any other ice bound area in the whole of Edinburgh. The pursuer accepted that Johnston Terrace was not a priority route for treatment (6D). The decision not to give it priority was not justiciable. The special circumstances founded upon must have existed when the question of priorities was considered by the Council. The reference to the Mound area being 278m from the locus was irrelevant as otherwise every point within such a radius would then have special status. The pursuer did not rely on the practice of other local authorities to show fault on the part of the Council. To aver that "There were no good reasons for not treating Johnston Terrace prior to the afternoon of 14 December" (9D), is the same as the bare averment of reasonable practicability in Gibson which was held to be irrelevant. The weather forecasts founded upon affected the whole of Edinburgh and were therefore of no assistance to the pursuer. The pleadings do not explain why it was negligent to treat the pavement at Johnston Terrace on the morning of 15 December but not negligent to treat it in the afternoon or evening of 14 December. Nor is there any explanation of why standing down the depots on 13 December was so unreasonable as to fall outwith the scope of the Council's discretion; this was a matter which related to the allocation of the Council's finite resources. The pursuer's averments in McGeouch, cited by Mr Lloyd, were relevant only because there had been a reported risk of danger; that factor did not exist in the present case; there were no complaints or reports averred. The action was therefore irrelevant and should be dismissed.
[14] Mr Lloyd submitted that a proof before answer should be allowed and referred to the well known passages in Jamieson v Jamieson 1952 SC(HL) 44 at 50 & 52 and Miller v SSEB 1958 SC (HL) 20 at 32 & 33. The relevant passages are quoted in Gibson at page 1245.
[15] He pointed out that the pursuer does not aver that the gritters carried out their job inadequately. The order of treatment fell within the Council's discretion. The pursuer's complaint was the implement of the Council's system; its policy was not being challenged. He submitted that the test of relevancy in this type of case was as set out by Lord Clarke in Syme at 611K, "What one requires to do ... is to aver not simply what could have been done, or what might have been reasonably practicable to do, but what should have been done in the exercise of the duty of reasonable care and to set out specific averments in support thereof." There were factual features in the case relevant to infer negligence on the part of the Council. He referred to the pleadings at 6B (quoted above). Johnston Terrace had the highest priority ranking in respect of vehicular traffic.
[16] The decision to grit or not to grit was an operational matter not a policy issue. That decision is informed by weather forecasts local circumstances, complaints and the results of inspections. He relied on passages in the pleadings at or beginning at page 6D, 9C, 12D, 7A-B, and 8C, and to an admitted passage in the Council's pleadings (12C-D, 8D-9A). The failure to spread grit until the morning of 15 December should be seen in the wider context of a period of frosty weather; the gap between 13 and 15 December suggest slackness or delay in dealing with the pavement. Johnston Terrace should have been dealt with before other areas because of the special features and circumstances pled (6B). The request by the Scottish Parliament Police Unit was a relevant factor. The Johnston Terrace pavement ought to have been seen to be icy having regard to the general weather conditions between 10 and 15 December and the weather warning on 13 December. He referred to McGeouch v Strathclyde Regional Council 1985 SLT 321 at 322 col 2, and to Syme at 611L-612B. He pointed out that Gordon was decided before Miller. While he accepted the authority of X v Bedfordshire County Council, he drew my attention to paragraph 5 of Lord Clarke's Opinion in Syme where his Lordship noted that it had been held in England that there was no common law duty or a statutory duty owed by roads authorities to individual pedestrians or drivers to keep pathways and roads under their control free of snow and ice.
Discussion
[17] The pursuer's pleadings are elaborate and detailed for a slipping type case. I therefore begin by identifying what appear to be the essentials of the pursuer's claim.[18] The pursuer's case, stripped to its essentials, is simply that he slipped and fell on rutted ice on the pavement in Johnston Terrace before the Council gritted it on 15 December and that the Council should have gritted it on 14 December. It is a necessary ingredient of such an argument that the operation of the Council's policy of giving priority to other routes was at fault in some respect or that their policy was arguably so unreasonable as to fall outwith the ambit of their discretion. The pursuer does not challenge that policy. He relies on various features of the locus. However, in this case, that is simply attacking the Council's policy by the backdoor because the allocation of priorities depends upon the various features of the area in question. The general allocation of priority to some routes and not others falls within the ambit of the exercise of statutory discretion by the Council. It is not suggested that the allocation is so unreasonable as to fall outside the ambit of that statutory discretion. In any event, a consideration of the features pled reveals that, either in isolation or in combination, they are neither special, exceptional nor obvious or otherwise sufficient to justify a conclusion that the Council ought reasonably to have gritted the locus sooner than they did or given it some sort of special priority which would have led to it being gritted prior to 15 December.
[19] There is, in my opinion, no sufficient explanation as to why it was the Council's duty not to have continued the stand down of the gritting depots following the weather forecast on 13 December; nor is there any explanation as to why it was the Council's duty to spread salt and grit on the pavements of the relevant route no later than the afternoon of 14 December (pleadings page 17E). Moreover, in one sense, these matters relate to the allocation of resources and the distribution of risks and thus relate to the taking of decisions involving policy matters (cf Lord Browne Wilkinson in X v Bedfordshire County Council at 738E-H).
[20] Further, there is no causal connection between the decision to stand down the depots on 13 December and the absence of grit on the pavement on the morning of 15 December which led to the pursuer slipping and suffering injury The real reason why Johnston Terrace was not gritted sooner than it was derives from the Council's policy of giving certain areas priority over other areas. That is a matter for the exercise of their discretion. The Council's policy is not challenged in this action. In these circumstances, the pursuer can have no relevant case. Even if the road supervisors, as averred by the pursuer, had checked Johnston Terrace and had noticed the presence of ice, there is no basis for concluding that Johnston Terrace would thereupon have been given priority which would have led to the point on the pavement where the pursuer slipped being rendered safe to walk along before the morning of 15 December. There is no basis for singling out Johnston Terrace as a particular danger. There is nothing special in the local characteristics averred by the pursuer. No contrast is made with other areas. Even if there were something special in the local characteristics, the pursuer does not criticise the Council's system, and the implementation of it appeared to be in conformity with the policy, on the pursuer's own averments.
[21] The request by the Scottish Parliament Police Unit does not assist the pursuer. Assuming that the conditions on the Mound/ George IV Bridge Junction were a good indicator of likely conditions at the top of Johnston Terrace, I cannot infer that the Council was negligent in failing immediately i.e. before 15 December to proceed to grit areas within a radius of 278m of that junction.
[22] The pursuer's case does not appear to disclose any negligence on the part of the Council and no inference of negligence on their part can be drawn. He fails to meet the test accepted by counsel for the pursuer, namely to aver what should have been done in the exercise of the duty of reasonable care and to set out specific averments in support thereof. Accordingly, this seems to be one of those cases, where even if the pursuer proves all his averments, he is bound to fail. Is there anything in the authorities which would enable me to conclude that it cannot be said at this stage that the pursuer's case is irrelevant?
[23] In Cameron, the pursuer based his case on statutory duty (creating an absolute obligation) and alleged delay in clearing public roads causing loss to his farming enterprise. The statutory case was held to be irrelevant at debate and on appeal. The court however, also considered the case as if it had been laid on negligence. The Inner House concluded that none of the averments pointed to negligence. They rejected, as a waste of time, the argument that the defenders ought to have at their command a staff large and mobile enough to undertake simultaneous clearing operations over the whole of its area (at 498). The court recognised that a failure on the part of the roads authority to exercise their discretion properly might lead to liability in negligence (497, 499). The Lord President observed, at page 498, that it was for the defenders to "fix priority as between the claims of one line of traffic and another to immediate attention." It was also noted that there was no averment of slackness or unnecessary delay (at 497). I do not regard the averment that it was the Council's duty not to have continued the stand down of the gritting depot as a sufficient averment of slackness or delay.
[24] In Gordon a pedestrian slipped on an ice bound road averring that the locus was steep and rendered it particularly dangerous to pedestrians. Lord Migdale dismissed the action following a Procedure Roll discussion, observing that "the order in which measures such as applying sand are carried out is a matter within the discretion of the defenders and their servants". It was not enough to aver delay and that the delay could have been attributed to slackness. In Grant a similar action was dismissed after proof. The defending roads authority's system, not surprisingly, was similar to the Council's in the present case; there was no precise categorisation of priorities in relation to footways, although central streets and higher, hilly areas received priority. Lord Prosser was satisfied that the evidence did not establish any significant difference between the locus and countless other side roads so as to indicate that it should have some priority within a smaller and more important category. In the present case the pursuer has averred no basis in his pleadings from which he could lead such evidence. Lord Prosser also rejected an argument (again not to be found in the present case) that it was unreasonable for the roads authority to delay low priority work until high priority work had been done, or to eliminate such priorities and delays by attempting to have a vast force on call to deal with even the least important areas (at 534).
[25] In Gibson the pursuer was injured when she stepped into an uncovered drain inspection hole in a pavement in central Glasgow. The pursuer averred that it was reasonably practicable to inspect the drains daily. This extreme averment was not supported by any other averments of fact. Her case was held to be irrelevant. The case is of interest because of the indication by the Inner House of the type of averments which make a relevant case. These included the practice of other local authorities, special circumstances existing at the locus (page 1246), and previous complaints. There were no such averments in that case and there are none in the present case. In particular, the averments at page 6B quoted above and much relied upon do not amount to special circumstances. It would be necessary to aver that these circumstances were either individually or collectively unusual in comparison with other areas within the jurisdiction of the Council. There are, not surprisingly no such averments. I agree with Mr Dunlop's submission on this point. Lord Murray, in Gibson, observed that in the absence of averments of practice or of particular circumstances from which it may reasonably be inferred that daily inspection is both reasonable and practicable, what is asserted is simply that daily inspection is possible, which lacks specification. In the absence of such averments, no duty in law could be inferred (at 1247). Lord Weir was of a similar view pointing to the absence of averments of common practice, or special, exceptional and obvious circumstances giving rise to an inference of negligence (at 1247-8).
[26] In my view the pursuer, in the present case, in spite of the elaborate nature of his pleadings, has made no adequate averments of common practice or special, exceptional and obvious circumstances from which an inference of negligence might be drawn. In particular, it cannot be inferred from the facts averred that the Council were under a duty not to have continued the stand down of the gritting depots, and to have gritted and salted certain pavements no later than the afternoon of 14 December (page 17D-E).
[27] Syme raised similar issues. There, the pursuer, who slipped on an icy pavement, sued under section 34 of the Roads (Scotland) Act 1984 and at common law. The statutory case was held to be irrelevant as section 34 was not intended to confer on individuals a right to sue additional to and distinct from the common law right (610 I). The common law case was also irrelevant. Gibson was applied and followed (611 E&L). Lord Browne-Wilkinson's analysis of the circumstances in which a public authority, charged with statutory duties will be held liable in damages to individuals injured by the authority's failure properly to perform such duties, led to the same result as construing section 34 having regard to the existence of common law duties in the law of Scotland (611B). It was not sufficient to aver that the road or pavement could have been treated before the accident (611K-L). I agree with this approach and with Lord Clarke's treatment of the relevant part of X v Bedfordshire CC. Syme provides little comfort for the pursuer in the present case.
[28] In Macdonald the problem was black ice on the A9 road. The action was dismissed by Lord Clarke as the pursuer's averments failed to contain any of the necessary ingredients desiderated in Syme. The pursuer did not aver why the fact that the locus was not gritted before the accident amounted to a failure to take reasonable care. The reasoning and the decision in Syme were not challenged.
[29] In McGeough, the pursuer averred that the danger in question had been specifically drawn to the road authority's attention on several occasions before the accident. This distinguishes the case from the present action where no such previous complaints are founded upon.
[30] In my opinion, therefore, the authorities cited to me do not assist the pursuer. In these circumstances, I have no alternative but to dismiss the action as irrelevant.
Result
[31] I shall sustain the defender's first plea-in-law and dismiss the action. All questions of expenses are, meantime, reserved.
