Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER110
PD1228/09	OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause JILL KING GIBSON Pursuer; against WEST LOTHIAN COUNCIL Defenders: ________________

Pursuer: Mr Conway, Solicitor Advocate; Bonnar & Company

Defenders: Callum Wilson, Advocate; Simpson & Marwick

[Date of Issue]24 June 2011

Introduction

[1] This is a personal injuries action arising out of an accident on 24 December 2007. On that date the pursuer was driving her Mini Cooper car, west along the A70. She lost control of the vehicle when it skidded, struck a wall and rolled. She avers that she encountered a patch of black ice on the road which had formed from water that had not drained properly from the road. She sues the defenders as the local authority responsible for the A70. She alleges that they failed to take reasonable care to provide adequate drainage on the road. The pursuer also avers on record that prior to her accident, there had been a number of accidents at the site and that the road regularly flooded in wet weather. By the time of proof quantum had been agreed by the parties and the matter was contested on liability only.

Evidence in the pursuer's case

[2] The pursuer lives in Carnwath, is 42 years old and is a registered midwife. She trained in the mid-1990s and has worked as a midwife since she qualified in 1997. From July 2001 she worked as a community midwife based at Tollcross Health Centre in Edinburgh. She commuted each day from Carnwath to Edinburgh and travelled along the A70, a road popularly known as the "Lang Whang". The A70 running between Carnwath and Edinburgh is an A class road but there are no major towns on it after leaving Balerno on the west side of Edinburgh. It is effectively a country road. There is a speed limit of 60 miles per hour. The road is unlit and has no pavement. The pursuer explained that she travelled the road every day by car. It took her about an hour to commute from Carnwath from the centre of Edinburgh.

[3] On 24 December 2007 she and her partner, Colin Meikle, had been in Edinburgh delivering some Christmas presents to colleagues. She was not working that day. She and Mr Meikle spent some time in Edinburgh and left at about 8pm. She was driving home in order to attend the Church Christmas Eve midnight service. She and her partner had a meal but she consumed no alcohol, her partner having consumed one drink. The pursuer began driving in a westerly direction along the A70 after leaving Edinburgh. She came to a farm near to the Harperrigg Reservoir which she knows to be called Cairns Farm. She said she was driving at a speed of between 40 and 50 miles per hour. It was dark, being between 9 and 10pm in December. After passing Cairns Farm the pursuer said she could see a flood ahead in her lane of the road. Her headlights were on full beam and she could see that the water on the road extended from the grass verge on the left right to the centre of the road. She said that length wise it extended for between 12 and 20 feet in length. She decided to drive into the right hand lane to avoid the water as there were no vehicles travelling towards Edinburgh in the opposite direction. She reduced speed to about 40 miles per hour to take a bend. Thereafter she drove into the right hand lane to avoid the water. The car went into a spin when she did so. She had negotiated most of the flood area when the car went out of control and started to skid and spin. She explained that the accident happened within a very short period of time, a "split second". She tried to steer into the skid but it made no difference and the car spun round until it was facing the opposite direction to that in which she had been travelling. The car had rolled on to its roof and went straight through part of a dry stone dyke which was demolished by the impact. She and her partner ended up in a field north of the A70. Mr Meikle was able to get out of the car and summon emergency help.

[4] The pursuer was taken to Edinburgh Royal Infirmary where she was an inpatient for 5 to 6 days. Her car was beyond repair and taken to a scrap yard. The pursuer was shown a series of photographs, No. 6/10 of process. She confirmed that 6/10/4 was a photograph taken by her brother to show the damage to her car. On 14 January 2008 the pursuer and her partner Mr Meikle went to the locus of the accident. The pursuer took photographs on her mobile phone. The first photograph, No. 6/10/1 of process was said by the pursuer to show the area of flooding involved in her accident. This evidence was allowed subject to competency and relevancy as it related to a post-accident state of the road. The pursuer confirmed that the photograph showed precisely the same area as that where her car had skidded. The dry stone dyke throughout which her car crashed appears in the photograph. Photograph 6/10/2 and 6/10/3 were taken on the same date, also at the locus. On the day the photographs were taken the pursuer and her partner visited the field in which her car had ended up at the time of the accident. She found one or two items from her car in the field on that date. The pursuer said that there were numerous pieces of plastic that looked as if they might have come from other vehicles such as pieces of bumper in the field. She didn't think these had come from her own car because her brother had retrieved the debris from that.

[5] The pursuer also gave evidence about some photographs taken in March 2008, again that evidence being heard subject to issues of competency and relevancy. The photographs No. 6/7/1-9 of process are photographs taken by the pursuer at that time. She travelled with her brother Derek Pitkethley to the locus. In the photograph 6/7/1 of process the pursuer identified a "SLOW" sign and a flooded area of road. She confirmed that this was the same flooded area involved in her accident. She thought that there was more water present on the road than there had been on 24 December 2007. The pursuer also spoke to further photographs taken in April 2008. These photographs comprise Nos. 6/8/1-11 of process. The first of these was taken looking towards Edinburgh on the A70. Again the pursuer identified the same flooded area involved in her accident. She said it was smaller in size at this point but was similar to the one she had encountered on 24 December 2007. The other photographs in 6/8 of process showed the same area from different places or angles. The pursuer said that she was aware that drains had been installed at the side of the road in the area where the accident took place. She thought this was some time after April 2008. She had visited the locus again in June 2008 and thought that the drains had been installed by then. She had not seen the work being done. She had been absent from work for a few months following the accident but still used the road occasionally during that period. According to the pursuer, the drainage works carried out some months after her accident have been effective and she has never seen flooding on the road since. The pursuer was asked whether she had seen the area of road involved in her accident flooded before 24 December 2007. She confirmed that she had travelled the road daily from 2001 and that about four to six times per year there would be flooding on that part of the road. She had not given any particular thought to it prior to the date of her accident. She re-iterated that her best recollection was that the road would be flooded between four and six times per year in the winter from 2001 onwards.

[6] Under cross-examination the pursuer accepted that it was important to drive with due care and attention and to be able to respond to any situation that might arise. She said that it had not been raining on the evening of her accident and was not particularly cold for the time of year. There had been no ice in Edinburgh and she said she was not distracted when she was driving. The pursuer was shown No. 7/16 of process, a map of the area on which Harperrigg Reservoir is indicated. Two sharp bends are identified on the map and the pursuer confirmed that that was where she had slowed slightly to take the bends. She indicated that the bend she had taken shortly before the accident was not particularly sharp although it depended on the direction one was travelling in. It was a noticeable bend. The pursuer was unable to be accurate about precisely the speed she had been travelling at when the accident took place. She knew that she had slowed down for the bend and she had been travelling at 40 to 50 miles per hour prior to that. The pursuer identified the gap in the dry stone dyke seen in the photograph No. 6/7/8 of process as being the spot where her vehicle had travelled backwards through the wall. She confirmed that while she had been back to the locus several times since the accident the first occasion on which she had visited the scene was on 14 January 2008. That was when she had found some items in the field. She agreed that she could not be sure whether any plastic in the field could have been from her car rather than other vehicles as she had not been the one to remove same. However, she said that her brother had taken the photographs on 3 January and that the pieces of plastic seen by her on 14 January seemed chunkier and from a bigger vehicle than her own car. She agreed that photograph No. 6/3 of process showed part of the number plate of her own vehicle.

[7] The Pursuer's brother, Derek Pitkethley, having given evidence on Commission prior to the diet of proof, James Savage, a 54 year old lorry driver from Lanark also gave evidence in the pursuer's case. Mr Savage has worked as a qualified HGV driver for about 26 or 27 years. From 2004 onwards he was working for a Mr Campbell who had a depot at Carstairs Junction, not far from the A70. In the course of his employment he required to drive along the A70 regularly. He drove articulated "tippers" where the cab is separate from the body of the vehicle. The vehicles he drove were about 50 foot long and 44 tonnes in weight. While the usual speed limit on the A70 is 60 miles per hour, Mr Savage confirmed that for an HGV the limit was 40 miles per hour.

[8] Mr Savage said that he had been involved in an accident on the A70 on 5 January 2008. He had been driving along the road on his way to Newbridge on the outskirts of Edinburgh. After the junction signposted for Harburn, Mr Savage noticed that there was water on the road. The conditions were damp and it was 9am. He saw that the water on the road had splashed across the carriageway and frozen. He thought the road would have been gritted earlier in the morning but the place that he came across was icy. He took a right hand bend and drove straight into a sheet of ice. He realised he could not continue to drive round the corner. He was doing a speed of about 30 to 35 miles per hour. He was concerned that if he tried to turn his vehicle the lorry would end up on its side. So he tried to slow down as much as he could and drove straight on into the grass verge. The vehicle did start to slow down when it touched grass but it hit the dry stone dyke and stopped on top of it. The impact had knocked part of the wall down. The police arrived shortly and took particulars from Mr Savage who was not injured. He noticed that the complete width of the road from left to right was covered with ice in the area where he skidded. He thought that the length of the area was about 50 foot as it was approximately the same length as his vehicle. Mr Savage was shown the photographs Nos. 6/7 of process. He recognised these as being photographs of the part of the A70 on which he was driving that day. In 6/7/1 of process he confirmed that the area on the right hand side of the photograph was the dry stone dyke through which his vehicle had crashed. He identified the flooding on the road in the photograph and confirmed that that was where the iced area that he had gone through was on. He said that there was no "SLOW" sign at the locus on the day of his accident. He did not think there was a flood sign there either. Prior to his accident Mr Savage had noticed that if there was heavy rain there was flooding on that part of the A70.

[9] Under cross-examination Mr Savage confirmed that he was familiar with the A70, that it was a country road, there was a number of bends and that it was quite exposed and bleak. He agreed that one part of the terrain on the road looked much the same as the next given the agricultural nature of the area. He specifically recollected that there was a left hand bend shortly before the place at which his accident occurred and that there had been no difficulty with it. On being shown the photographs No. 6/7 of process Mr Savage said he was certain that these showed the place where his accident occurred.

[10] Graham Hamilton, a 48 year old farmer who owns Cairns Farm, also gave evidence in the pursuer's case. Mr Hamilton is the fourth generation in his family to own Cairns Farm. His farm is primarily now used for grazing sheep and he runs a small building company. His farmhouse is located about half a mile from the main road, near Harperrigg Reservoir. He owns a number of fields around the A70 and is very familiar with the road. He knew that the speed limit on the A70 was 60 miles per hour although felt that it should be less. He said that many vehicles travel up to and beyond the 60 mile per hour limit on the A70. Mr Hamilton said that there were two accidents he knew of on the stretch of road in question either on 24 December or around that time. Both accidents involved a dry stone dyke at the side of the road. Mr Hamilton does not know the pursuer personally. He became aware of her accident because his shepherd phoned him and said that a car had gone through the wall. Mr Hamilton sent his shepherd to attempt to fence off the area temporarily. His shepherd told him that when he was there for the repair work he had to take evasive action himself and that other cars were slipping on the road. The pursuer's accident was not the first time Mr Hamilton knew of cars running into problems in this spot of the A70. He said that his wall was peppered with places where cars had gone off the road. He had had to tidy up the walls or fences after such incidents. It was a lot easier to effect temporary repairs to a fence but sand stone walls were more difficult. As the owner of the land and the walls and fences on it, Mr Hamilton had undertaken these tasks himself or delegated them to his employee. On being shown the photographs Nos. 6/7/1-9 of process, Mr Hamilton identified the flooded area on the bend of the road as being that involved in the accident he spoke of. He had seen the road flooded on a number of occasions over the years.

[11] While Mr Hamilton was aware that some drainage had been carried out on that stretch of the A70 some time in 2008 he did not travel the road in a westerly direction very often. Insofar as he had noticed he thought the drainage work had assisted the situation. Some years previously, when he was still farming on a full-time basis, Mr Hamilton said he would see flooding on the road on almost every occasion after there had been heavy rainfall. The ground surrounding the area seemed impermeable and did not drain easily. The water had a tendency to go to the lowest point and it accumulated at that spot. Mr Hamilton also identified the part of the dry stone dyke with a hole in it caused by a vehicle in 6/7/8 of process. He also recalled the articulated lorry going through the wall around that time. He identified the stretch of the road in question on the map No. 6/7/16 of process.

[12] Under cross-examination Mr Hamilton agreed that cars often travel too quickly on the A70 and there were a number of reasons why they might go off the road into the dry stone dyke. Many were travelling too fast for the conditions.

[13] Colin Meikle, the partner of the pursuer, also gave evidence. Mr Meikle is a 51 year old hygiene inspector for the Food Standards Agency. He works mainly in Carlisle and Annan. He confirmed that on Christmas Eve 2007 he and the pursuer had gone to Edinburgh to drop off some Christmas presents. They had a meal together before they left Edinburgh. He consumed a glass of wine with that. He recalled that he and Mrs Gibson had left Edinburgh at some point between 7.30pm and 9.30pm and that the weather was fair with no rain or snow. He was travelling as a passenger in the car when the accident took place. He confirmed that he saw water on the road on a bend and that the water extended to about one half of the width of the road. He recalled that the pursuer had travelled out on to the other carriageway to miss the flood and seemed to have hit black ice. Like the pursuer he described the car as having gone into a spin, picked up momentum and crashed through the wall backwards, eventually landing in the field to the north. After rolling a couple of times the vehicle landed on its four wheels. Unlike the pursuer Mr Meikle was able to move and it was he who summoned the emergency services. Mr Meikle also said that the pursuer was travelling between 40mph and 50mph other than when taking bad corners where she had slowed down. Although Mr Meikle had suffered some concussion in the accident his memory of it was clear enough.

[14] Mr Meikle explained that he had visited the locus of the accident with the pursuer in the middle of January 2008. He had gone to the field where the car had landed and had retrieved some CDs, a couple of bits of paperwork and a pair of boots all belonging to the pursuer. It was on that occasion that he took the photographs at No.6/10 of process. He confirmed that 6/10/1 showed the corner where the accident took place. So far as photograph no.6/8 of process were concerned these were taken by the pursuer or her brother according to Mr Meikle. He recognised the location shown in them as being where the accident took place.

[15] Under cross examination Mr Meikle agreed that it was important to drive in a manner suitable for the road conditions and to be able to avoid hazards. He agreed that the A70 was an exposed and rural road that was unlit and that the pursuer was driving in the dark on the evening in question. He disputed that it was raining when he and the pursuer left Balerno. He had not been concerned about the pursuer's driving in terms of speed or manner at the time of the accident. He disputed that she was distracted. When asked whether he too had raised proceedings in respect of the accident he agreed that he had. He accepted that in the action he had raised against the Council and Mrs Gibson herself it is alleged that Mrs Gibson was to some extent blamed for the manner of her driving. He said that his lawyers were dealing with the matter and he knew little about it although he acknowledged that he was blaming her to some extent for the accident in those proceedings.

[16] In re-examination Mr Meikle agreed that the pursuer had lost control of the vehicle at the time of the accident and that that was what he had told his lawyers in the litigation being pursued on his behalf.

[17] The next witness for the pursuer was a Derek Young. Mr Young is a 59 year old land economist who lives at Old Medwyn Mill in Carnwath in Lanarkshire. He has resided at his present address for 3 years but prior to that he lived just north of Carnwath for 20 years at a farm known as Kersewell Mains. Motor sport is his main hobby and he used to rally. He now rides a motor cycle. He is very familiar with the A70 road between Carnwath and Edinburgh. Much of his business and leisure travel has been to Edinburgh at least since 1988. He is familiar with the stretch of road near to Cairns Farm. He described it as quite a difficult road to drive being undulating and twisting.

[18] Mr Young recalled hearing about an accident involving the pursuer. On being shown the photographs nos.6/7/1-9 of process he agreed that these showed an area of the A70 with which he was familiar. On being shown the flooded area with the slow sign in 6/7/1 of process Mr Young said that he had seen the road in that condition frequently prior to December 2007. He felt that the flooding on the road was caused by a lack of drainage, although it could also be caused by wet conditions or snow that thawed. He said that the road could be flooded for weeks. When he saw it in that condition he would move to the crown of the road to avoid the flooded water. It was possible to drive through the flooded area but it would be dangerous to do so at speed. Mr Young was aware that at some point there were drainage works carried out at the spot in question and that that part of the road had been dry since then. Mr Young recalled that on Christmas Eve 2007 he had gone to his previous home at Kersewell Mains from which he had recently moved at the time. When he arrived there he discovered that there were burst pipes and water cascading through the farmhouse. It was very cold and he spent all of the evening on Christmas Eve dealing with it. It was icy and had been raining during the afternoon. The temperature had dropped and it had begun to freeze.

[19] Under cross examination Mr Young agreed that the A70 was an exposed road with open moorland and stretched for about 18 to 19 miles between Balerno, west of Edinburgh and Carnwath. He agreed that it often rained and there were lots of puddles on the A70. He agreed that there were dips in the road where water can gather when it rains. Mr Young was well acquainted with maps and was able to recognise the locus on 6/17 of process. On being shown the photographs 6/7/6 of process Mr Young agreed that he did not know how deep the puddle in the photograph was. It was possible to see the white line marking the edge of the roadway through it. Mr Young agreed that he was not suggesting that he saw a puddle or flooding on that spot of the A70 every day, and that the level of any water on the road varied. He agreed that sometimes it was just like any other wet road.

[20] In re-examination Mr Young confirmed that he would not be surprised to come across the stretch of the A70 in question in the condition shown in the photographs No.6/7 of process.

[21] William Douglas, who was also called in the pursuer's case. Mr Douglas is 52 and is employed by the defenders in their Roads Department. He has been so employed for about 23 years. He attends to gritting the roads during the winter period and he is part of a team working from Bathgate and covers roads all over West Lothian. During the summer time he is engaged in repairing the roads. Between November and March Mr Douglas' duties include tarring the road or gritting the road. Much depends on what is required. He works for about 7 hours each day, although some times he works a night shift duty when he is gritting. He also requires to be on standby and can be called out from home or from the depot on those occasions. When Mr Douglas is involved in gritting the roads he drives a lorry by himself as the vehicle grits both sides of the road at the same time. He explained that the A70 is always gritted in the winter when required. He is not the decision-maker. Someone makes a decision based on the weather forecast and he is instructed to grit the roads before the frost. On occasions Mr Douglas is required to grit the roads twice. If they had been gritted for icy conditions and then it started to rain he and the other members of the team have to go out again and grit a second time because the rain tended to wash the salt off the road. Mr Douglas' route included most of the A70 right up to Kirknewton. Going towards Carnwath he would turn off the A70 at the Tarbrax junction two or three miles after Harburn Road. Mr Douglas was shown the gritting record No.7/15 of process. Page 33 related to 24 December 2007. Mr Douglas confirmed that the route there mentioned, Route No.9, was the A70. There appeared to be a record that one person had carried out gritting on a vehicle that day between 1435 and 1615. When asked whether he saw flooding on the road Mr Douglas said that he had no recollection of that as it was over 3 years ago and the first he heard of these proceedings was 10 January 2011. He had no recollection of reporting any flooding on that day. He said that he reported floods all the time in West Lothian and he simply could not say if he did or did not on any particular day some years ago. Mr Douglas had been sent a set of photographs No.6/7 of process and recognised the area shown on them. He was clear that had he come across a flood on the A70 on 24 December 2007 he would have told the clerk when he went back in after the gritting job. So if there had been a flood on the day in question and he had seen it he would have reported it. He had reported floods on all roads in West Lothian in the past. He had only once reported a flood on the A70 at a farm near Kirknewton. He said that was the only flood he had ever seen on that particular road. Mr Douglas was not cross examined.

[22] An expert witness, Mr Peter Cheesman, was called in the pursuer's case. Mr Cheesman is a 66 year old retired academic with expertise in all aspects of building and construction. His CV was produced at No. 6/16 of process. He has prepared independent reports in construction and related matters for about 35 years.

[23] Mr Cheesman was asked about what drainage one would expect to find on a road such as the Lang Whang. He said that his two concerns would be the lie of the land and the weather conditions. The A70 was a road which would have been sealed initially about a hundred years ago and then re-sealed a few times, including the laying of tarmacadam. The camber of the road was where the middle was raised to allow water to roll off. Originally the road will have had ditches on both sides. Then, according to Mr Cheesman, land drains might have been inserted. These took the form of a perforated pipe in the bottom of a ditch which is then filled with clean stones to its full depth. The perforated pipe leads to a sealed pipes which would take the water downhill to a ditch or stream. Sometimes it might just soak into the fields. However with the passage of time gaps would be created between the stones and would fill up with silt such that water could percolate through. Sometimes in Mr Cheesman's experience the pipes themselves will silt up. The effect of that will be that there is no working drain. Water might gather on the road from having run down a nearby hill or having collected on the ground after it has been raining. Water will always find the lowest point to accumulate.

[24] Mr Cheesman confirmed that he was instructed to meet with the pursuer and had attended at the locus of the accident with her in August 2008. The pursuer had pointed out to him where on the A70 her accident took place. Mr Cheesman noted that there were three road gullies in place of the stones in the land drain at the side of the road. There was no flooded area on the road at the time of Mr Cheesman's visit. He wanted to establish the gradient of the road. The pursuer showed him where the water on the road had been and where her vehicle had gone through the dry stone wall. Various photographs were taken and these were lodged at No. 6/17 of process. Evidence about them was heard subject to the competency of their being lodged. Mr Cheesman confirmed that 6/17/2 of process showed a section of the A70 looking towards Carnwath. He pointed to two of the gullies at the side of the road. There were kerbstones which seemed to form a bank and the gully was within those kerbstones. That was where Mr Cheesman understood the flooded area had been at the time of the accident. The date of his visit was 18 August 2008. The concrete structure that could be seen on the right hand side of the photograph was, Mr Cheesman confirmed, a pipe under the road to take water from where it would drain into the field. Mr Cheesman said that the tarmac seen in the photographs would be more or less impermeable. Photograph 6/17/5 showed the enclosure where the water was allowed to file into the gully. The outlet of the gully would allow the water to flow into it and under the road. There were three gullies on the same side of the road where the flood had been and roughly the length the flood was. In photograph No. 6/17/7 Mr Cheesman identified a grid to catch grit and said that the outlet pipe for the water would be near the top of the gully. Manholes were identified in 6/17/8 and 6/17/9 of process. Mr Cheesman was then shown a plan prepared by West Lothian Council Operational Services in connection with the new road gullies. This plan forms No. 6/11 of process. Mr Cheesman confirmed that the plan for the new gullies coincided with what he had seen on the ground. He said it was clear that somebody must have made a decision that the drainage wasn't working in that area and thus drew up a plan for the gullies that he had seen and photographed. The plan appeared to show an existing land drain at the relevant stretch of the A70. The plan illustrated that the water would be collected on the south side of the A70 and would drain into the field on the other, north side, of the road. When Mr Cheesman visited the A70 in August 2008 the drainage works were relatively newly completed. It was a wet day but the water was getting down the gullies and away. He thought that the work required to install such drainage was relatively minor in the scheme of things and would probably have taken a week or two with a cost of something in the region of £20,000-£40,000, depending on how much digging was required. He thought it likely that before carrying out the work the Council would have undertaken rodding with a high pressure hose. Only the outflow pipe seemed to have been replaced. Mr Cheesman thought that 90-95% of the water that had flooded the A70 must have come off the farmland. There would be a flow of water from the lowest point which would spill onto the road. The other 5% or so was just rain water hitting the road.

[25] Mr Cheesman explained that he had found the A70 to be cambered for its full width. This tilted the road such that water would run down and flood at the side until it found an outlet. Before the gullies had been installed in 2008 it would simply fill up with rain water. The land was high at the carriageway going towards Edinburgh. The water would run down to the side of the road where the flooded area was in the carriageway towards Carnwath. Mr Cheesman indicated that the level of water collected on the road would be directly related to the amount of rain. A single heavy rainfall lasting less than two hours would probably disappear within two hours after that. However, if there was heavy rain for three to four days then a flood in the area could last for up to a week. On being asked to comment about Mr Savage's accident, Mr Cheesman confirmed that what appeared to have happened was that the patch of what looked like ice to Mr Savage was probably a mixture of snow, water and gritting on wet ground which had frozen during a cold snap. He thought it likely that there was a flooded area that had frozen where Mr Savage had his accident. On being asked to comment on the photographs taken after the accident on 17 February, 11 March and 2 April which all showed some water on the road, Mr Cheesman said these indicated that at each of those times there was flooding but one could only guess what it was like at other times. It was clear that the problem had now gone and the gullies that Mr Cheesman inspected would have to be blocked for some time for there to be a problem.

[26] On being asked to comment about the defenders system of safety inspections for roads once a month, Mr Cheesman confirmed that inspecting with that regularity would seem to be reasonable. He would suggest repeating it out of sequence if there had been extreme weather, but once a month was generally fine. He was shown the Code of Practice for Highway Maintenance Management, No. 7/13 of process. Mr Cheesman confirmed that this was a Code that local authorities would use as the basis for their policies. It contained an over-arching framework in terms of which the local authorities would implement their duties. It was effectively a statement of good practice. Under a section headed "drainage" at page 104 of the Code it was suggested that frequency of the inspection of highway drainage systems would depend on local circumstances. Mr Cheesman agreed with that and indicated that for a road of this type inspection would be at least once a month and after inclement weather. Mr Cheesman found it difficult to see how it had come about that the flooding on the A70 hadn't been picked up during the defenders regular inspections. He commented that people prefer inspecting roads when it isn't pouring with rain. He was also referred to the defenders own guidance document is lodged at No. 7/11 of process. This document cross refers to the main Code of Practice already referred to. For strategic routes such as the A70 the defenders' own guidance confirms that the frequency of safety inspection will be once a month. There is specific reference to inspecting items such as debris or spillage on the roads. On being asked to comment on whether the state of the road described by the witnesses was a hazard, Mr Cheesman agreed that it was and that the hazard increased once the water had frozen. He explained that distilled water freezes at zero but with salt in it, it will freeze at a lower temperature than that. If the water is moving it freezes at an even lower temperature. For example sea water freezes at about -10◦ centigrade. Vehicles going through the water would hinder the freezing process.

[27] Details of the weather forecasts for 24 and 25 December 2007 were put before Mr Cheesman. These had been lodged by the defenders at No. 7/6-7/9 of process. The forecast for the period 23 and 24 December was a picture of a couple of days of light continuing rain but no downpour. On being shown the flooded area in the photographs No. 7/3 of process (taken in March 2008) Mr Cheesman confirmed that the depth of the flooded area appeared to be about three inches of water at its deepest point, feathering to nothing by the mid point of the road. The carriageway was about eight to ten feet for each half of the road. He thought that the length of the flooded area might be about 20 to 30 yards. It was quite a substantial puddle. The water in the photographs was in the same area as where the gullies had now been installed.

[28] Under cross-examination Mr Cheesman agreed that in the photographs No. 6/17 of process, No. 3 of those showed one of the three culverts or gullies installed at some point between May and July 2008. He also confirmed that the area of flooding shown in No. 6/8/1 of process was the same as that where the pursuer said she had her accident. There were two telegraph poles in the top left of the photograph and a patch of broken terrain which was roughly the same spot as the pursuer had identified. The drainage was situated beyond the only bend in that part of the road. Mr Cheesman agreed that he hadn't seen the conditions on the road prior to the drainage works being carried out. He thought the Council must have known that there was some sort of drainage system at the roadside prior to 2008. He agreed that he had no evidence of the weather conditions at the time of the pursuer's accident and accepted that the forecasts that were put to him in evidence were not evidence of the conditions that had actually occurred. He accepted also that he hadn't seen anything that pinpointed a time or date when the defenders should have inspected outwith their routine monthly inspections. Further, Mr Cheesman acknowledged that he had seen no reports or documentation to support the contention that flooding on that part of the A70 was a problem most of the time over the winter.

[29] So far as the 2005 Code of Practice, No. 7/13 of process was concerned, Mr Cheesman agreed that the section on drainage networks conjured up an urban situation. In a town reaction time and reporting would be much quicker than in the countryside. Good practice involved a system of inspection and acting upon reports from public and the police. He agreed that one wouldn't expect there to be drainage over the whole of a road such as the A70. He agreed that the relevant authorities should identify the risks associated with drainage elements. On being shown paragraph 9.11.4 of 7/13, which indicated that inspections should be carried out during or immediately following periods of heavy rain, Mr Cheesman agreed that he had seen nothing to confirm that there had been any period of heavy rain at the time of the pursuer's accident. Extracts from the defenders' inspection records were put to Mr Cheesman. These form No. 7/10 of process. The Council's guidance confirmed that inspection of roads took place from a slow moving conspicuously marked vehicle with one person driving and the other looking. This was all consistent with the Code. 7/10/1 was a record of a mobile inspection of route No. 2 on the A70 on 4 June 2007. Mr Cheesman agreed this was a standard form safety inspection. It confirmed that two men were surveying the carriageway. The documents indicated that twenty small potholes had been found and the date of repair of those was recorded as 13 June. Mr Cheesman's attention was then drawn to page 2 which recorded an inspection on 16 July 2007. It was noted that there was very heavy rain on that day and those inspecting had given the road the all clear. The reports for the relevant route for the months of August, September, October and November of that year were also put to Mr Cheesman and on 3 December 2007 the records indicated that some form of defective street lighting had been found. There was no mention of flooding in the reports. Mr Cheesman agreed that additional inspections would be required only if there were either abnormal weather conditions or someone reported a defect to the Council. He explained that the causes of flood on the roads could include a thunder burst although it depended how quickly the heavy ran following that dried. Slow continuous rain for a few days could cause flooding if the ground was already saturated.

[30] In re-examination Mr Cheesman agreed that section 9.11 of 7/13 of process could relate to both urban and rural networks. Traditionally, hedges and ditches tended to be part of the farmers remit. If culverts were under the road they would have to be checked to ensure they were not blocked up. Mr Cheesman was not sure where that would appear in the records. He agreed that a bystander might never see the drainage in situ. Mr Cheesman re-iterated that a local authority should try to carry out monthly inspections including times when there was likely to be a problem after heavy rain. He agreed that the records put to him for the second half of 2007 recorded no single report of standing water on the road during inspection. The only matter that seemed to be recorded were potholes.

Evidence in the defenders case

[31] Evidence was led in the defenders case from Andrew (Andy) Johnstone. Mr Johnstone is 42 years old and is employed as a roads operations manager by the defenders at their Bathgate depot. His work involves the delivery of a front line construction service including the carrying out of road maintenance and the delivery of winter services. He takes instructions for works to be carried out including repairs to roads. He is not responsible for roads inspection. On being shown a bundle of works orders contained within No. 7/14 of process, Mr Johnstone confirmed that these were typical of the type of instruction his department would receive. He is familiar with the part of the A70 where the pursuer's accident took place. He was involved in organising the instruction of the drainage works of the A70 near Cairns Farm in 2008.

[32] Mr Johnstone said he was aware that the defenders had set up a complaints centre where the public can make complaints about matters such as the state of the roads. All complaints go through an electronic system and are picked up by a network team. Any work requiring to be done is then followed up by an order sent to his department. He was also aware that the defenders implemented a system of roads inspection although he was not involved in that. There is an advertised telephone number through which the public can make complaints. Mr Johnstone was not aware of any complaints having been made of flooding on the area of the A70 where the pursuer's accident took place. He was not aware of there having been any works carried out to drainage on the road before 2008.

[33] Under cross-examination Mr Johnstone confirmed that the stretch of road seen in No. 6/7/1 of process was the area where he had been told the pursuer's accident took place. On the photograph taken on 11 March 2008 there was a "SLOW" sign and a road works sign. Mr Johnstone confirmed that these would have been put there by workmen who patrol the roads when there has been a storm or days of heavy rain. The putting up of such signs is part of the road maintenance activities of the defenders. If surfacing work to the roads cannot be carried out due to heavy rain then the workers are put on beats and patrol for floods in pick-ups or light goods vehicles. This happens frequently during the course of the winter. Mr Johnstone confirmed that those carrying out such work are not roads inspectors as such. Mr Johnstone clarified that he would not be the person responsible for putting up the signs on the roads. Mr Johnstone agreed that he could not say there had never been any complaints of flooding on the A70, just that it is not something that he saw. His involvement would be restricted to receiving an order to carry out works on the roads. On being shown the flooded area, No. 6/7/3 of process, Mr Johnstone agreed that the water on the road was a possible hazard although it depended on how someone was driving when they came across it.

[34] In re-examination Mr Johnstone agreed under reference to the photograph No. 6/10/1 of process that when that photograph was taken on 14 January 2008 there would appear to have been warning signs up at the side of the road. In relation to whether the area of water shown on the photographs was a hazard, Mr Johnstone re-iterated that he thought it was a possible hazard but that there was room on the other side of the road to manoeuvre round the pool of water.

[35] Norman Adamson, a 57 year old engineer employed by the defenders, was also called to give evidence. Mr Adamson confirmed that he is employed as a roads maintenance manager by the council. His responsibilities include budgeting for roads, footpaths and car parks and to arrange the maintenance of all of those. Examples of the maintenance and repair works that he would instruct would range from having potholes filled in to large scale resurfacing of the roads. Some of his responsibilities were devolved to area engineers with Mr Adamson carrying out the organisation on the larger schemes.

[36] Mr Adamson was aware of the pursuer's accident on 24 December 2007. He was not personally involved in the subsequent work carried out to the drainage system. That decision was made by his colleague a Mr Jones the area engineer. Mr Adamson was aware, however, that one of his inspectors, a John Hewitt was looking at another problem on the A70 when he noticed that there was standing water on the road. The problem was reported to Mr Hewitt's manager (Mr Jones) and a decision was taken to carry out the drainage work. Mr Adamson had become aware that during the investigations carried out thereafter a pipe was discovered that they didn't know was there. They had spoken to the farmer and reached agreement that water would be taken from his land under the road to the other side. The Council had no knowledge that there was a land pipe in situ before those investigations.

[37] When asked about the system for complaints to the Council in relation to the roads, Mr Adamson confirmed that the call centre system was the main vehicle for complaints and that had been operative for about ten years. The call centre is manned by trained operators who send the complaint to the correct department. The police were also able to report problems on the roads direct to the defenders although generally most complaints came from the public.

[38] On being shown the map No. 7/16 of process Mr Adamson was able to point to the part of the road where the drainage work was carried out. It was in close proximity to the West Calder junction. He was very clear that he was unaware of any complaints being made to the defenders in relation to that stretch of road prior to 24 December 2007. He explained that the system of safety inspections for the A class roads for which the defenders are responsible followed closely the Code of Practice of 2005. The roads are inspected every month by two men observing from a slow moving vehicle. Reference was also made to the Council's own guidance No. 7/11 of process. Mr Adamson also confirmed that he was familiar with the inspection records No. 7/10 of process but that the minor repairs required would be dealt with by his more junior colleague Mr Jones.

[39] Under cross-examination Mr Adamson confirmed that he reported to the road manager who was the highest employee for roads in West Lothian. Mr Adamson himself was responsible for the running of the system. It was not the policy of the Council to substitute complaints from the public for any safety system. It was helpful to rely on the public as a pair of eyes but the inspection safety systems of the Council were the primary method of complying with the Code. Mr Adamson was not aware of any paperwork involved with the identification of the problem on the road by John Hewitt. He thought it unlikely it unlikely that Mr Hewitt would fill in a form if he was not on a formal route inspection. He might just have checked the roads when he was in the area and reported the problem to his superior. Mr Adamson agreed that the purpose of the safety inspection records was designed to illicit information about urgent and non-urgent work required to the roads. His attention was drawn to paragraph 10 of No. 7/11 of process relating to standing water as well as the items for inspection. Mr Adamson confirmed that the roads inspector would pick up and report standing water if he thought it was a hazard. He thought that the issue of whether a particular pool of standing water created a hazard depended on how good a person's car was, the abilities of the driver, the quality of the tyres and so on. He agreed that the inspection records in No. 7/10 of process for the period July to December 2007 contain no single report of standing water. However, he said that standing water would only be reported if it was a hazard. There are puddles everywhere on most roads. It was a judgement call on the part of an inspector whether to report a puddle. There was no particular rule on depth. He did agree that he would expect an inspector to pick up standing water of the type shown in the photographs taken in March 2008 (No. 6/7). He agreed that if the position was that the road was in the condition shown in the photograph from time to time over a number of years he would expect anyone seeing it to report the matter. He also explained that the wet weather flood squads were not safety inspectors and were really there to clear the road of water when there had been flooding.

[40] When asked whether there was an inventory of land drainage for the area, Mr Adamson confirmed that the Council didn't own much land but that they were currently building an inventory of road drainage. They held historic building records but there had been instances where a pipe had been run underneath the roadway and they were unaware of it. Such pipes are supposed to be self-cleaning and the Council would only clean them if a problem was identified. Accordingly, where the Code of Practice of 2005 refers to drainage inspection, that would only apply to a situation where the Council knew that drainage was in place. The wet weather teams who went out after torrential rain were clearly not going to be able to cope with every water problem but they would report to their supervisor who would have a duty to report further. Mr Adamson was not personally involved in such reports.

[41] In re-examination Mr Adamson confirmed that he had no reason to doubt the accuracy of the roads inspection records No. 7/11 of process. An inspector could only be expected to assess the roads on the particular date of the inspection. So far as the photographs No. 6/7 of process were concerned these clearly showed that there were warning signs placed on the road indicating that hazard had been identified in the area. He re-iterated that the A70 was given monthly checks by two highly experienced safety inspectors in compliance with the Code of Practice.

[42] Stuart Baird a 48 year old roads inspector employed by the defenders was also called as a witness. Mr Baird has been a roads inspector with the Council for about six years. Prior to that he was a road worker for approximately eight years. He knows the West Lothian roads well and inspects them regularly. Each month he and a colleague go out a van. One man drives and the other looks for anything that might cause danger to anyone using the roads. They look primarily for potholes but also for overhanging trees, collapsed gullies and flooding. They drive at 20 to 25 miles per hour. The routes are split into east and west. The whole of the A70 is on the east side, from the Edinburgh boundary to the Lanarkshire boundary. The A70 is marked as route No. 2 on the safety inspection sheets. Mr Baird had received in-house training from an engineer before inspecting the roads. The Council's guidance No. 7/11 of process is held by the roads inspectors in a folder during the course of their work so that it can be used as a reference guide. Mr Baird also had some familiarity with the 2005 Code of Practice. The list of defects to be noted during the inspection includes standing water. Mr Baird confirmed that No. 7/10 of process comprised the sheets used by him when carrying out the inspections. Most of the handwriting on the sheets lodged was his. On one sheet the writing was not his but that would be because he was driving. The purpose of the mobile inspection was to check both safety and condition of the roads. It was marked on the sheet. Where a defect that requires repair such as a pothole was noted on the sheets these would be submitted by Mr Baird and his colleague once back at the office into an electronic system. Attention was drawn to an entry "VERY HEAVY RAIN" on the inspection sheet No. 7/10/2 of process. Mr Baird confirmed that he made that entry where there was exceptional weather to confirm that the inspection was not taking place on a normal day. Mr Baird confirmed the rest of the contents of the sheets as being accurate. When shown the photographs No. 6/7 of process Mr Baird agreed that these showed flooding on the road. Had he seen the road in that condition during an inspection he would have contacted his supervisor at Guildhall and told him that the gully cleaners ought to be sent out. He would do that because he considered it a hazard if cars had to pull over to the other side to avoid flooding on the road. Mr Baird did not recollect seeing the relevant stretch of the A70 in the condition shown in the photographs No. 6/7 of process on any day he inspected. Had he done so he would have asked for a gully cleaning machine to come out and take the surface water away. The lack of reference to flooding on his inspection sheets meant that there was no flooding on the days he had inspected.

[43] Under cross-examination Mr Baird was asked how long an inspection of the A70 would take, assuming a section of about seven or eight miles. He said that in a normal day where there were no defects to report it would only take about three quarters of an hour. If there were a lot of defects it would take longer. While Mr Baird was aware that there were numerous farms along the A70 he was not familiar with Cairns Farm. There were numerous bends on the road with dry stone dykes. On being shown the photographs with flooding on the road where the pursuer had her accident, Mr Baird confirmed that he had never come across the road in that condition. He was unclear how the warning signs in the photographs Nos. 6/7 of process had come to be placed there although he agreed it would be the defenders roads department that would have done so. Further inspection reports were then lodged and form No. 25/1, 25/2 and 25/3 of process. On being shown these Mr Baird agreed that these were inspection reports for the A70 for January, February and March 2008. He agreed that the defects noted on those sheets were potholes and that the section for recommendation that the route be re-visited for further assessment was not marked. It was put to Mr Baird that the photograph that is No. 6/7/3 of process was taken on 11 March the day after he had inspected the road, albeit that he had said he'd never seen the road in that condition. Mr Baird commented that it could have rained after his inspection but he didn't recollect. He was clear that he had never seen water of the dimensions in the photographs on the road when he inspected. He had seen water lying at the side of the road and on the grass but that wouldn't concern him. What would concern him was if the water on the road was such that a car had to move over the white line in the centre. If he saw that he would have reported it. He probably wouldn't report a depth of water at the side of the road such that a vehicle could drive through it. The depth of the water would be a factor and his engineer had told him what to look out for. It was a question of judgement on all occasions. Mr Baird agreed that standing water has potential to freeze if the temperature drops. He agreed that a puddle of less depth is more dangerous because it freezes quicker. It was suggested to him that he had never reported standing water but Mr Baird confirmed that he had. He recalled a few occasions during the winter period when he had telephoned the base depot and reported standing water. The depth of that water would be anything from three inches to a foot. He disputed that the relevant section of the A70 had been in a hazardous condition with standing water on any time he carried out his inspection. He was clear that he would have reported any water that extended to the point where a car had to move over the white line to avoid it. Had he seen standing water in the same place on a number of occasions he would also have brought it to the attention of the engineers, but that hadn't occurred at the point in the road in question. It was suggested to Mr Baird that his inspections concentrated on potholes and that he wasn't looking for standing water. He disagreed and confirmed that he looked for all hazards on the road. He had been inspecting the roads for at least six years.

[44] In re-examination Mr Baird agreed that in the photographs 6/7 of process there appeared to be water on the road and signs that had been placed by the Council. He agreed that the photographs taken in January 2008 No. 6/10 of process showed that the signs had already been placed by that date. It was not Mr Baird's practice to measure or report every puddle.

[45] Stephen Jones a 53 year old roads engineer employed by the defenders also gave evidence for them. Mr Jones has been engineer for about 12 years and prior to that was a structural technician within the Department of the Environment. He is now based at the Bathgate depot of the defenders in the maintenance section. He deals particularly with the maintenance of the roads in the east section which stretches from West Calder to the Edinburgh boundary and down to the foreshore. His job was to act on reports of defects on the road from the safety inspectors. Mr Jones again explained that members of the public can report defects by telephone, but that the defenders had their own system of monthly inspection. Mr Jones has two inspectors reporting directly to him. One of those is a John Hewitt who looks after the A70. When a report of a problem is received Mr Hewitt attempts to look at it that day. Potholes are treated on a four hour emergency system although sometimes they require to be put off until the following day. Mr Jones would become involved if Mr Hewitt attends a road following a report but finds a problem beyond his capabilities, such as a collapse. In that event he would call Mr Jones to investigate.

[46] Mr Jones explained that following the Code of Practice 2005 the defenders identified various roads that needed three monthly, six monthly or annual safety inspections. However, as the A70 is an A class road the safety inspection required is a monthly inspection, again in accordance with the code. As it is a strategic route this greater frequency was considered appropriate. The roads are inspected in all weather conditions unless there is snow lying on the ground. The instruction to the roads inspectors is to report what they see either through a phone call or by completing forms such as those lodged at No. 7/10 of process. Mr Jones had no knowledge of the pursuer's accident until a request for information was received in March 2008. Once the defenders became aware there was a problem on the road they undertook an investigation and carried out the drainage works. Mr Jones personally went to the A70 to satisfy himself about the place requiring drainage work. He also made sure that the works were carried out properly. When a trial hole was dug in the road the defenders found a drainage system buried under two to three feet of soil. They found a land pipe and they employed a high pressure jetter to probe and find the extent of it. When they found it went into the farmer's field on the south side of the road they decided to fit a new manhole and three new gullies which redirected the water onto the north side. The Council do not know who put the original land drainage system in.

[47] Mr Jones confirmed that prior to December 2007 he was unaware of any flooding problems at the location in question. He had received no complaints about flooding at that location.

[48] Under cross-examination Mr Jones confirmed that his recollection of the information request being received was that it was in March not January 2008. When he received the request he was already aware of the problem at that location because an inspector had brought it to his attention during the winter of 2007. There had been snow at the time and then a thaw which caused flooding all over West Lothian. There had been a problem about half a mile away from the locus of the pursuer's accident. An inspector came back with a photograph of part of the road where the pursuer had had her accident showing the flooding on it. Mr Jones confirmed that all reports of problems on the road are reported back to the Guildhall base. Because someone reported standing water the flood storm boards were placed at the side of the road. On being shown the "men at work" sign, Mr Jones explained that when the Council ran out of flood boards sometimes other warning signs were erected to alert drivers. Mr Jones confirmed that No. 6/11 showed a plan of the drainage works that were carried out where the three new gullies were installed. The UPVC pipe was the new pipe put in place with the agreement of the farmer. Albeit that there had been existing manhole at the site, it was down an embankment and the defenders knew nothing of it before they conducted their investigations. They raised the manhole to a level where it is visible. When the problem was investigated it was found that there were no gullies or rat holes to allow the water to get in. That was the purpose of installing the gullies. Mr Jones was unaware of whether there had been a longstanding problem in that area of the road but if there had been, the Council certainly weren't aware of it until the end of 2007. Had they been so aware they would have attended to the problem. The 2005 Code of Practice was a good practice guide which the defenders have adopted and formulated their own guidance from it. On being shown paragraph 9.11 of the Code in relation to service inspection of highway drainage systems, Mr Jones agreed that the Council had not been aware of there being any drainage of any kind in the relevant part of the A70 and thus there was no reason to inspect it prior to 2008. His position was that the Council always acts on reports from the public or through the roads inspectors but they were unable to act on any defects or problems that they knew nothing about.

[49] Mr Jones also confirmed that the teams who were sent out on wet weather days were directed to a particular location and would report back if there were problems, albeit that there was no formal reporting system for that. He agreed that it might be better to have a more formal reporting system for a main arterial route. Mr Jones agreed that the conditions of the road in the photographs at Nos. 6/7 of process were hazardous. He agreed that if safety inspectors had noticed that amount of water on the road he would expect them to report it. When it was put to him that the difficulties on the road had arisen because of a problem with drainage Mr Jones confirmed again that there was no road drainage in place at all on that part of the road. There was land drainage from one field to another. The works carried out in 2008 by the Council could be described as road drainage. The land pipes will have been there for over 50 years, perhaps longer. It was put to Mr Jones that a local landowner had given evidence that there had been a problem in existence for up to 20 years. Mr Jones' response was that had the local landowner highlighted a problem to the Council it would have been dealt with. There were no records indicating flooding at the location of the pursuer's accident. The Council couldn't be expected to fix something they didn't know about. They relied on their safety inspection and reports from members of the public. If there was a longstanding problem with flooding on a road over a period of years that had not been picked up by the routine inspections he would have expected that a member of the public would have reported it. However, if the road was routinely flooded he would have expected a safety inspector to notice. Mr Jones again confirmed that the reason he had knowledge of the area flooding was a complaint by a lady who lived about 500 yards from the place where the pursuer had her accident. A problem had been identified and the Council spent about £30,000 resolving it. Had anyone reported a problem in the particular location of the pursuer's accident earlier the Council would have acted. Mr Jones recalled that the winter of December 2007 to February 2008 had involved a period of snow followed by a quick thaw and heavy substantial rain on more than one occasion. It was highly unlikely that the roads inspections would have taken place during the period of snow. Mr Jones thought that if Mr Baird had seen flooding on the road he would have telephoned Mr Jones and made a note of it on the relevant sheet.

[50] In re-examination Mr Jones agreed that all of the photographs that had been put to him showed warning signs of one type or another on the A70. These would have been erected by the direct labour organisation, although in some instances the police put signs up where reports are made out of hours.

[51] The last witness called in the defenders case was John Hewitt. Mr Hewitt is a 43 year old roads inspector with the defenders. His responsibilities include dealing with public complaints and attending to those. He has been carrying out such work for about seven years and is based at Bathgate. In early 2008 Mr Hewitt went out to check a complaint on the A70. While he was doing so he drove through the whole road and became aware of a problem at the location later identified as the place where the pursuer had her accident. It was Mr Hewitt's practice to drive the whole of a road over which there had been a complaint. He thought the first time he had seen a flood in the area was on 14 February 2008. He took photographs of the flooded area he saw. He recognised the photographs in 6/10 of process as being in the same location as where he had stopped and taken his own photographs. As there was a flooded area that he hadn't seen before on the road he took a photograph so that he could inform his superior back at Bathgate. He thought that there was a sign erected in the area when he took his photographs. He thought that there were also flood boards up. He reported the matter to Steven Jones. As far as he was aware work was subsequently carried out to rectify the problem. He had no involvement in that. During the seven years that Mr Hewitt has been a roads inspector for the Council he had driven along the A70 about once or twice per month. The frequency would depend upon the level of any complaints.

[52] Under cross-examination Mr Hewitt agreed that his responsibilities tended to be restricted to responding to complaints from the public. The complaint that had been received in early 2008 related to a stretch of road further west than the junction on the A70 for Harburn. He agreed that there was no pavement and relatively few houses. In relation to the number of complaints on that particular road Mr Hewitt confirmed that over the years there had been some difficulties caused by leaves blocking gullies and the like. Mr Hewitt confirmed that the flood boards he saw on the day he had taken the photographs had not been erected by him or anyone under the authority of Mr Jones.

Submissions for the pursuer

[53] At the outset of his submissions Mr Conway tendered a joint minute confirming that quantum had been agreed on full liability at £25,000. He lodged and spoke to a written note of arguments. He accepted at the outset that there is no direct right of action for any breach by the defenders of the provisions of the Roads (Scotland) Act 1984. The duty on the defenders is to take reasonable care to maintain the highway in a condition safe for users. This was a common law duty and the pursuer's case proceeded on the basis that there had been a breach of the duty of care. Reference was made to the case of Syme v Scottish Borders Council 2003 SLT 601 where it was confirmed that there was no right to sue the Roads Authorities for breach of statutory duties additional to and distinct from existing common law rights. It could not be disputed that the pursuer required to prove negligence.

[54] Mr Conway submitted that the evidence about the circumstances in which the accident took place were effectively unchallenged. There was some corroboration of the locus conditions on 24 December 2007 from Mr Hamilton, the farmer who said that his stockman told him of another accident that night and that he (the stockman) required to take evasive action whilst fixing the fence. There was also evidence of a number of previous accidents on the route from Mr Hamilton, albeit that it was accepted the circumstances of those and the reason for them was not fully established. It was accepted that those previous accidents were not in themselves sufficient to put the defenders on notice of problems at the locus. There was unchallenged evidence that there had been an accident on 5 January 2008 involving Mr Savage.

[55] It was submitted that if the pursuer had managed to establish that the accident locus was routinely flooded during conditions of heavy rainfall then it was reasonably foreseeable that standing water conditions would present a hazard to road users, particularly in winter when ice might form. There was no suggestion of a failure to grit ice that had formed, but rather a failure to treat the substantive cause of the problem, namely inadequate drainage which caused standing water to be on the roadway. That failure had to be a material and not negligible cause, Wardlaw v Bonnington Castings 1956 SC (HL) 26 at 32.

[56] Mr Conway sought to rely on the approach to flooding on the highway cases taken in the English courts in the cases of Burnside v Emerson [1968] 1 WLR 1490, Tarrant v Roland and Another [1979] R.T.R.144 and Mitchell v Department for Transport (CA) [2006] 1 WLR 3356. These all raise the issue of whether a local authority should reasonably have known about a pool of water standing on the road on wet days. In Tarrant it was said that something must have gone wrong with the inspection system for them not to notice a pool of water that was regularly there. In Mitchell it was held that Burnside v Emerson was still good law. In Burnside the issue was pinpointed as being whether the flooded road was a hazard that was reasonably foreseeable. Mr Conway submitted that all of the defenders' witnesses in this case agreed that the pool of water shown in the photographs constituted a hazard. The photographs at Nos. 6/10 of process were taken on 17 January 2008. Although the pursuer had said initially that these were taken on the 14^th of that month it does appear that the visit to the locus was after her hospital appointment on the 17^th. Mr Conway argued that one could draw an inference about the state of the road on 24 December 2007 from those photographs. The obvious danger on the road in freezing or wet weather was ice and snow. The subsequent drainage works carried out on the A70 illustrated that there was a problem. There was evidence that the flooded conditions shown in the photographs was not unusual at the locus prior to December 2007. Mr Cheesman had estimated the length of the flooded area as being between 60 to 90 feet and 3 inches deep at the roadside tapering to nil as the water reached the crown of the road. So far as the accident involving Mr Savage was concerned he had given evidence that the whole width of both carriageways was affected by ice extending to a distance of about 40 feet on 5 January 2008. The danger with standing water was the obvious one of it freezing during icy weather. Mr Young had given evidence that the Lang Whang was two to three degrees colder than Carnwath.

[57] On the particular issue of whether the pursuer had proved a frequent and longstanding hazard, as opposed to an occasional flooding in extreme or exceptional weather conditions, the evidence of Mr Hamilton, Mr Young, Mr Savage, Mr Cheesman, on the evidence of Mr Jones and the pursuer herself were all relied upon. Particular emphasis should, it was argued, be placed on the evidence of Mr Hamilton and Mr Young who were independent of the pursuer and not challenged on the topic of the extent and frequency of the flooding. Both had a longstanding connection with the roadway and a reason to know its condition.

[58] Mr Conway argued that the next step was, assuming the condition of the road had been established, was whether the defenders had proved that they had taken all reasonable care. The issue arose of whether they should have known of the hazard that the pursuer encountered. In relation to an alleged failure to carry out a proper system, reference was made to McGeough v Strathclyde Regional Council 1985 SLT 321. It was suggested that Mr Baird was clearly not doing his job properly as he must have seen conditions which at the very least required a closer look and investigation. If he had done so and investigation had then been carried out the drainage problem would have been discovered and repaired. Mr Jones had spoken of three categories of roads defect, the longest period for repair of any of them being seven days. Mr Baird had completed nine months of reports with no mention anywhere of standing water and no suggestion that the route be re-assessed. That was notwithstanding the clear evidence that the road was in a flooded condition on the date of the accident and on a number of dates thereafter. It was also submitted that the evidence of the "SLOW" and "flood" signs being put at the side of the road was typical of the defenders system in that no one could explain when the signs had been put in place or when they were removed, by whom and for what reason although it was accepted that they must have been responsible for them. Mr Baird was apparently not aware of the existence of the signs until these proceedings.

[59] Some analysis of the practice suggested in the 2005 Code was then undertaken. The defenders' case was that they had a reasonable system of inspection and repair by virtue of their monthly inspection system and their wet weather squads. It was accepted that clear guidance has been provided to local authorities and that guidance is contained within the Code. While there was of course room for some local discretion, if the local authority omitted a major part of it that is an indication of negligence. The critical failure was the defenders lack of any information gathering system after periods of wet weather. It was accepted that the defenders did not have a full drainage inventory and no criticism was made that the drains had not been examined or cleansed regularly during the five year default period suggested by the Code. However, the lack of information about the drainage system made it even more important that trained personnel were sent out to inspect and examine a major highway such as the A70 after periods of heavy rainfall. Mr Jones had accepted that the provision of an ad hoc system comprising mainly of stood down road workers being given things to do during periods of wet weather did not meet this requirement. Those workers had no specific reporting instructions. In Harrison v Derby City Council [2008] EWCA Civ 583, the Court of Appeal accepted that the 2005 Code of Practice had evidential value. In that case the Court held that the footways in question which had been inspected twice a year should have been inspected more frequently. It was clear from the decision that each case depended on its own facts but the principles in the Code were relevant to infer liability, albeit that a breach of it was insufficient on its own to establish that liability.

[60] On the issue of contributory negligence, reference was made to McGowan v W & GR Watson Ltd [2006] CSIH 62. In that case it was confirmed by the Inner House that if contributory negligence is averred on record, then the defenders cannot rely on a different contributory negligence case than that pled. The defenders' averments on record in this case to the effect that the pursuer is being sued by Mr Meikle in respect of the accident but there is no particularly duty she is said to have breached such as driving too fast through the water. While it was accepted that in a road traffic case involving Chapter 43 pleadings there is a limit to what would require to be pled. Nonetheless no particular duty alleged to have been breached was put to the pursuer in evidence. It was not put to her that she should have driven more slowly, the question of why she lost control of the car was not explored. While it might be said that crashing through the dry stone dyke in the manner she did could infer that she had been driving too fast there was no evidential basis for that. Mr Savage, an experienced driver had seen the hazard but was still unable to do anything about it. It was submitted that the defenders negligence had placed the pursuer in a position where she had to make a choice in the agony of the moment. Under reference to Easdon v A Clark & Co [2008] CSOH 29 it was said that where the defenders had created the danger they ought not to be minutely critical of what the pursuer had done when faced with the danger created by them.

[61] Mr Conway concluded by addressing the various objections that had been taken during the course of the proof and the evidence that, as a result, had been allowed subject to competency and relevancy. In essence the defenders argument was thought to be that post-accident incidents are collateral and not relevant to the issue for determination by the court. The pursuer's response to that was that the material should be admitted on the basis of the dicta in O'Brien v Chief Constable [2005] 2 AC 534 and Strathmore Group v Credit Lyonnais 1994 SLT 1023. Even at the lowest, the evidence was probative of the averment that the road was routinely flooded before the accident. The evidence of flooding (or ice from standing water) on 5 January 2008 and in March and April of that year might allow the court to infer that the road flooded regularly prior to that. It was suggested that there was no "magic" in the point of time. In O'Brien there had been a murder in 1987 giving rise to the action which was for damages for malicious prosecution after the plaintiff's acquittal. The similar fact evidence on which he wished to rely related to the conduct of the same police force in relation to investigations in 1982 and 1990. Despite the gap of some years the House of Lords had no difficulty in accepting that the "post circumstance" events could be relevant, holding that the test was that the evidence would be admissible if it was potentially probative of an issue in the action. In Mood Music Publishing Ltd v De Wolfe Ltd 1975 1 Ch 119 the plaintives had set a trap by issuing a recording which appeared not to be in copyright when it was. The defender had paid a fee for it in 1970 and then claimed it as their own. There was an argument about whether similar fact evidence about the propensity of the defenders should take on other work and present it as their own should be allowed. The court agreed that actings in 1970 could be relevant to infer conduct in 1966. Again it was held that the courts would admit such evidence if it was logically relevant in determining the facts in issue. So far as Scottish authority was concerned in Alexander & Sons v Dundee Corporation 1950 SC 123 the issue was an allegedly dangerous road surface when a bus had skidded on a street. Averments by the pursuers of a number of other occasions on which skidding, sometimes followed by an accident had occurred, four during the two months prior to the date of the accident, several later on the same day and others on days in the preceding year were all held to be relevant as having a direct bearing on the condition of the street and the knowledge of the defenders as to its condition.

[62] In all the circumstances Mr Conway invited me to find for the pursuer and award damages in the agreed sum.

Submissions for the Defender

[63] Mr Wilson submitted that the defenders should be assoilzied. He argued that any statutory case under the Roads (Scotland) Act 1984 was irrelevant and that the pursuer had failed to prove a case at common law. As Mr Conway had accepted that he required to prove common negligence and that there was no direct right of action in breach of statute (Sime v Scottish Borders Council 2003 SLT 601) concentration was then on the common law case.

[64] The central requirement, according to Mr Wilson, was that the pursuer required to prove that on a balance of probabilities the defenders knew or ought to have known that the locus would flood. The pursuer sought to establish that it was reasonably foreseeable that the particular section of the A70 in question would flood. The two main ways in which it was sought to establish reasonable foreseeability were (a) evidence of prior accidents and (b) evidence of the road regularly flooding in wet weather. So far as the evidence of prior accidents was concerned, I was invited to treat with great care Mr Hamilton's evidence of the possibility of another accident at the locus on the same day as the pursuer's accident. Mr Hamilton himself said in examination-in-chief that he couldn't say for sure that both accidents occurred at the same location on the road although he believed so. In any event, he had not witnessed any accident at all, the hearsay evidence of this possible other accident coming from his stockman. Further, Mr Hamilton's evidence in relation to other accidents generally was quite vague. He referred to cars hitting fences and walls on both sides of the road and accepted in cross-examination that these could be attributed to other reasons. Further, the evidence of wreckage in the fields was unsatisfactory. The pursuer spoke to visiting the field on about 14 January 2008 to retrieve personal items. She spoke of seeing numerous pieces of plastic on that occasion which she thought were not from her own vehicle. However, the pursuer's own registration plate was still at the locus when photographs were taken on 2 April 2008. Mr Pitkethley, the pursuer's brother, who gave evidence on commission, said that when he attended the field on 11 March 2008 he had seen not only part of the pursuer's number plate but also bits of debris from other vehicles on the north verge of the road. There was no evidence to show when such debris had come to be there or where it was from. In any event, as it was now known that Mr Savage had an accident on about 5 January 2008 at the locus that could explain such debris. However, Mr Savage's accident was said to be of no relevance to the question of reasonable foreseeability given that it took place after the pursuer's accident. Importantly, the pursuer accepted that these previous accidents were not in themselves sufficient to put the defenders on notice of the problems at the accident locus.

[65] On the second foreseeability issue of the road regularly flooding in wet weather, Mr Wilson discussed the evidence of each witness who spoke to this. He emphasised that the pursuer herself, who travelled five days a week on the A70 between 2001 and the end of 2007 said on more than one occasion that she had seen the locus flooded perhaps four or maybe six times per year. James Savage, who also had an accident at the locus, had said that there were always various bits of the A70 flooded in heavy rain but did not direct his answer to the locus itself. Again, Graham Hamilton, the farmer, said that he had seen the locus in a flooded condition on a number of occasions over the years. However, he clarified that it would be in that condition after heavy rainfall and that he travelled only rarely west along the A70. The pursuer's partner, Colin Meikle said nothing of any prior knowledge of flooding at the locus. Derek Young did give evidence of the road regularly flooding but his evidence was inconsistent with the pursuer in that he indicated it could be in that state for weeks and that it could be more or less continuously so over the winter. William Douglas knew the A70 because he gritted it in the winter when required. He had no recollection of seeing any flooding on the A70 when he gritted the road on the day of the pursuer's accident. Had he seen flooding he would have reported it as he had done elsewhere on the A70 on other occasions. Peter Cheesman, Andy Johnstone, Norman Adamson and Stuart Baird gave no evidence of flooding problems at the locus. John Hewitt had seen a flood in the area around the time of the pursuer's accident and thought that was the first time he had done so. Mr Wilson submitted that on the basis of all of that evidence the pursuer had failed to prove on a balance of probabilities that the road was flooded on such a regular basis that it had to be known or ought to have been known to the defenders. In the absence of any complaints being made to the defenders from which knowledge might be set up, it was then left to the pursuer to seek to establish what has been termed "the difficult inspection case" (Stewart: "Reparation: Liability for Delict" at paragraph A22-007).

[66] In relation to inspection, it was clear that the defenders operated a system of monthly inspections in accordance with their own roads inspection and safety procedures and guidance and the well-maintained Highways Code of Practice for Highway Maintenance Management ("the 2005 Code"). That safety inspection system had been accepted as a reasonable system by the pursuer's expert Mr Cheesman. The pursuer's criticisms were (1) that the inspections were inadequately carried out and (2) that there ought to have been additional inspections. It was submitted that it was not enough for the pursuer to say that because there was evidence of the road and the particular locus being flooded on occasion, that there was operational negligence on the part of the Council. It could not be said that the lack of a report of flooding or water on a number of inspection reports meant that those reports were wrong and that there was flooding that had not been reported. In any event, in relation to the evidence of flooding/water on the road prior to the accident, it was not possible to say that any of the evidence pointed to there being flooding on a specific day when the defenders were carrying out a monthly inspection and that they had missed the water on the road. The A70 was only assessed on the basis of the state of the road on the day each safety inspection was carried out. There was accordingly no basis for the "inevitable conclusion" suggested by Mr Conway. Further, there was evidence from Mr Baird and Mr Jones that on occasions inspectors would make reports by telephone of things they saw while out on an inspection. Mr Baird had in fact reported standing water in the past on a different part of the A70.

[67] It was important that the pursuer relied very heavily on post-accident evidence. The defenders' position was that such evidence was irrelevant for the purpose of establishing foreseeability. While the pursuer could point to evidence of flooding on various dates following the accident, there was no evidence as to whether the flooding was continuous post 24 December 2007 until the latest photograph in early April 2008 or whether it came and went. There was no evidence that flooding was present on any of the days when inspection was carried out. Even if the locus was flooded in early 2008 it was clear from the photographic evidence that flood warning signs and other warning signs such as "SLOW" signs had already been erected by the defenders or their Direct Labour Organisation. Even if there was water on the road during any inspections post December 2007 the water had been noticed and the warning signs put in place.

[68] The second contention for the pursuer on inspection, namely that there ought to have been additional inspections was also not made out. Mr Cheesman gave evidence that additional out of sequence inspection reports could occur after very bad weather. There was no meteorological evidence to indicate when such inspections ought to have taken place. Mr Cheesman did not suggest that it was incumbent on the defenders to go out on additional inspection every time there was some heavy rain. It appeared to be suggested on behalf of the pursuer that the 2005 Code recommended additional inspections following periods of heavy rain. However, the Code was not a basis for establishing a breach of duty. The paragraph of the Code in question was contained in a section dealing with service inspection of highway drainage systems. This was of no relevance to the issues here where so far as the defenders were concerned this was a road without drainage. They had no knowledge of the old land drainage system at the locus until after the pursuer's accident.

[69] Similarly with the flood storm day inspections, these did not relate to service inspections and went beyond what was considered to be practice in the 2005 code.

[70] In relation to the legal issues, Mr Wilson noted that the pursuer had sought to rely on three English cases in support of the contention that the defenders failed to take all reasonable care and ought to have known of the hazard on the road prior to the pursuer's accident. These cases, Burnside & Another v Emerson & Another, Tarrant v Rowlands & Another and Mitchell v Department of Transport could be distinguished from the present case on the basis that they were all dealing with statutory duties under the English Highway Act and depended on the facts established in each. Furthermore, in the present case the defenders had no knowledge of any drainage system at the locus which on all the evidence was a field drainage system not a road drainage system. The present case could be contrasted with McGeoch v Strathclyde Regional Council 1985 SLT 321 where there was a reported risk of danger giving rise to liability. In summary, Mr Wilson submitted that the pursuer could not assert that just because another individual or individuals happen to see the locus flooded at a particular unspecified time or times prior to the accident, without any evidence of weather conditions on or prior to those unspecified dates, and in the absence of any history of complaints or of any other matters such as accidents being brought to the attention of the defenders, liability could be established at common law. That would be getting dangerously close to asserting an absolute duty which could not be said to exist - Morton v West Lothian Council 2006 Rep LR 7.

[71] So far as the relevance of the post-accident evidence was concerned, reference was made to Macphail on Evidence at para. 16.01A, Walker & Walker, The Law of Evidence in Scotland (3^rd Ed.) at para. 7.12.1 and W Alexander & Sons v Dundee Corporation 1950 SC 123 and Bennett v J Lamont & Sons 2000 SLT 17. Post accident evidence being irrelevant for the purpose of proving foreseeability, the pursuer had not shown that the defenders knew or ought to have known that the locus was liable to the flooding at the date of her accident and that the case should fail. In Bergant v The Scottish Ministers [2006] CSOH 61 it was seen that it was not enough to make a vague averment of an unspecified complaint of a state of a road to establish foreseeability.

[72] Mr Wilson made a fall back submission in relation to the contributory negligence case. In the event that liability was to any extent established, the pursuer should be found contributorily negligent. She had acknowledged that she was travelling at a speed of about 40-50mph and that her vehicle had been "reversing at speed" on the wrong side of the road after she hit the ice. The consequence of hitting the ice was that the pursuer's car went out of control, spun, went backwards onto a grass verge and hit the dry stone dyke. The pursuer agreed that her car had crashed through the dry stone dyke which had been demolished. Mr Meikle's description of the accident was very similar to that of the pursuer, including the precise speed at which she had been driving. He accepted that the pursuer had lost control of the vehicle and he had to acknowledge that he had instructed his solicitor to raise proceedings for damages against both the present defenders and the pursuer, the latter on the basis that she should have been driving in a manner suitable for the road conditions at the time, that she lost control of her vehicle and that in doing so she was in breach of her common law duties to him as a passenger. The terms used by both those witnesses to describe the accident were indicative of the pursuer travelling at considerable speed and at the very least, it was suggested, a lack of due care and attention. The circumstances of the argument made it clear that the pursuer had not driven in the manner she agreed it was important to drive. In conclusion, if there was any finding of fault on the part of the defenders, part of that would have to be on the basis that the pursuer had driven the road on many occasions and knew of a history of flooding at the locus. Such findings would inform a decision about whether the pursuer had been taking adequate care for her own safety on the occasion in question.

Discussion

[73] It is agreed by both parties in this case that there is no direct right of action for breach of the Roads (Scotland) Act 1984. The duty on the defenders is to take reasonable care to maintain the highway in a condition safe for users. That is a common law duty, it is not an absolute one and the pursuer must prove (i) that there was a breach of the duty of care owed by the Defenders, (ii) , that the accident was foreseeable as a result and (iii) that the defenders could and ought to have taken steps to avoid it. What the pursuer claims to have proved is that the part of the A70 at which her accident took place was flooded on the night of 24 December 2007, that the locus regularly flooded in wet weather, that the defenders knew or ought to have known of the problem and ought to have taken steps, such as installing a new drainage system. Her position is that had they done so the accident would not have happened.

[74] The particular circumstances of the pursuer's accident were not in dispute, other than in relation to the issue of contributory negligence to which I will refer later. I accept the pursuer's evidence that she was driving westwards on the "Lang Whang" on the evening of 24 December 2007 when she encountered standing water on the carriageway on which she was driving. She drove to the other carriageway to avoid it and skidded on ice. While there was a considerable amount of evidence about the specific locus of her accident, I accept that the photograph 6/10/1 of process illustrates the part of the road where the pursuer encountered the water and that stretch of road was identified by Mr Adamson with reference to the map No 7/16 of process as being the stretch of road near the West Calder junction where the drainage work was later carried out. It is noteworthy that the pursuer and her partner Mr Meikle had driven the same road into Edinburgh earlier that day. There was no evidence to suggest that the road had been flooded at that point in the day such as would give the pursuer concern for the return journey. The absence of any flooded area on the road earlier in the day is consistent with the evidence of William Douglas, the defender's employee who had gritted the road during the day on 24 December 2007. Mr Douglas had no recollection of flooding on the road that day. While he could not specifically recall the day in question, he was clear that he would have reported any flooding had he encountered it and he had not done so. I accept his evidence that he had reported flooding in the roads in West Lothian in the past which supports a conclusion that he would have been unlikely to ignore standing water of the extent described by the pursuer had he come across it that day. In the absence of any direct evidence of when exactly the stretch of the road in question came to be flooded on the evening of the 24 December 2007, I cannot conclude that the Defender's knew or ought to have known of its condition. However, the pursuer's contention is that the relevant section of the A70 was flooded regularly during periods of heavy rain. Some evidence was led in relation to that and of previous unspecified accidents having taken place. While it was accepted by Mr Conway that such evidence as there was of previous accidents was not sufficient per se to put the defenders on notice of the problems at the accident locus it was said that evidence of pre-accident conditions rendered it reasonably foreseeable that standing water would present a hazard to road users, particularly in winter when ice might form.

[75] Taking first the issue of accidents prior to or on the day of 24 December 2007, I do not accept that any evidence was led to suggest that such accidents had occurred in circumstances similar to those of the pursuer's accident. Mr Hamilton, the local farmer, was very critical of the manner in which the road was driven. He made clear that people drove far too fast on the road, often exceeding the speed limit of 60 miles per hour. He made no real comment on the cause of any accidents on the road and certainly spoke to no specific accident other than that of the pursuer that involved flooding or water at the locus. There was no evidence of any reports or complaints to the defenders about the condition of the road prior to January 2008. There was some evidence of there having been wreckage of motor vehicles in the fields adjacent to the road. Part of the pursuer's own registration plate was still in the field when photographs were taken in early April 2008. Mr Pitkethley the pursuer's brother also gave evidence of having seen that on 11 March 2008. Again, such evidence does not assist in relation to the question of the cause of any accidents prior to 24 December 2007.

[76] Having accepted that such evidence as there was of accidents on the road prior to December 2007 was insufficient to put the defenders on notice about any condition of the road, some reliance was placed on evidence that the relevant section of the A70 flooded regularly in wet weather. The pursuer, who gave the clearest evidence on the matter and who had travelled the road every working day for over six years prior to the accident, had seen the area flooded on about four to six occasions per year. In contrast to the pursuer, Derek Young who had travelled the road frequently went so far as to say that the A70 could be in a flooded condition for weeks and that it could be in that condition more or less continuously over the winter. Mr Hamilton was also familiar with the A70 flooding after heavy rainfall. I have reservations about the reliability of Mr Young's evidence in relation to flooding on the road. It is inconsistent not just with the pursuer's evidence as indicated above, but also with the record of monthly inspections of the route by the defenders, an issue to which I will return. While James Savage, who had been involved in an accident after the pursuer also spoke to flooding on the road, he did not relate that to the particular locus in question and was also very unclear as to how frequently the problem might arise. Standing the complete absence of any report or complaint to the defenders over the years leading up to the accident, I am inclined to accept the pursuer's account as being the most accurate. A commuter on a major route such as the A70 who encounters water on the road after heavy rainfall on four to six occasions per year may well not report the matter as being something more than a transient danger due to the elements. No witness other than the pursuer was really asked to address specifically the frequency with which there might be water on the road.

[77] In the absence of any reports or complaints to the defenders, what the pursuer requires to prove is that the defenders ought to have known that there was a problem with absence of or inadequate drainage to the road and that they failed to remedy that problem, which caused or substantially contributed to the accident. The implementation of the council's system of inspecting the roads must therefore be examined. They operated a system of monthly inspections in accordance with their own guidance (No 7/11 of process) and the National Code "Well Maintained Highways, Code of Practice for Highway Maintenance Management" (the 2005 Code), No 7/13 of process. In this connection it is important that the pursuer's own expert Mr Cheesman accepted that such a monthly system of inspection was reasonable for a strategic route. Mr Baird, the defender's roads inspector for the A70 spoke to the inspections he had carried out. It was specifically put to him that he was not looking for water on the road but only for pot holes. He disputed that and confirmed that he looked for all hazards on the road. Mr Baird struck me as an honest witness who was aware of his responsibilities. I thought it was important that he did recall a few occasions during the winter period when he had telephoned his depot to report standing water on other parts of the road. There was no evidence to support the contention that the way in which he had carried out his inspections was deficient. All that Mr Baird could do is assess the road the day of each inspection. If there were periods in between inspections when there was standing water on the road, then in the absence of a report by the public the defenders would be unaware of it. However, while not part of the inspection system as such, the defenders also employed workers to check the roads after floods or storms where the weather was sufficiently poor to prevent general maintenance and repair work to be carried out. That, taken with evidence of inspectors such as Mr Hewitt driving the various routes from time to time suggests that the defenders took steps beyond that strictly recommended by the 2005 Code to ensure safety on their roads. The only possible criticism that could be made of the inspections carried out by Mr Baird, was that in his inspection reports sheets in early 2008 there is no record of standing water to be reported or action to be taken. However, by that time it was clear on the evidence that the flood signs had already been placed at the locus. It was not suggested to Mr Baird that he should report matters that had already come to the attention of his employers. As there was no evidence of the weather conditions around the time of the pursuer's accident, I do not think anything turns on Mr Cheesman's suggestion that additional out of sequence inspection reports should perhaps take place after very bad weather. While there was evidence that the road had been gritted on the day in question that would not support any conclusion that there had been heavy rainfall.

[78] So far as the relevance of that part of the Code that deals with service inspection of highway drainage systems is concerned (paragraph 9.11.4 of 7/13 of process), there was ample evidence that there was no road drainage system in place at the locus prior to the pursuer's accident. There was an old land or field drainage system of which the defenders were unaware until a problem had been brought to their attention in early 2008 and they inspected. There can be no question of a duty to inspect something of which the local authority is unaware. Accordingly I derive no assistance from that part of the 2000 Code that deals with inspection of highway drainage systems. Much of Mr Cheesman's evidence was concerned with explaining how roads came to be flooded and how a roads authority would set about remedying a drainage problem once identified. None of that was particularly controversial. In the absence of any evidence that there was a road drainage system at the locus for which the defenders had responsibility prior to the Pursuer's accident, that evidence did nothing to assist the pursuer in seeking to establish liability.

[79] Further, while the English decisions in Burnside and another v Emmerson and another, Tarrant v Rollands and another and Mitchell v Department of Transport are of interest, they are of little assistance in determining whether this particular pursuer has established fault on the part of West Lothian Council. In Burnside, it was made clear that, if a dangerous condition of a road was established, the plaintiff must prove that such a condition was due to a failure to maintain, including a failure to repair, the highway. A distinction was drawn between a permanent danger due to such a failure and a transient danger due to the elements. The mere presence of a pool of water on the road did not, it was said, show a failure to maintain. In that case, there was a considerable body of evidence about complaints over a number of years in relation to flooding on the road. In Tarrant, there was clear evidence of far more than occasional flooding on the road in question and a finding that the highway authority's system of inspection had not been operated effectively. In Mitchell, the issue centred on the question of whether the highway authority had a duty to maintain not just the roads but the drains beneath. In the present case, there was no suggestion that, had the defenders known of or implemented a system of drainage they would not have been responsible for maintaining it.

[80] I accept the contention made by Mr Wilson on behalf of the defenders that to find them liable in a case such as this would be close to imposing an absolute duty upon them. The implemented perfectly adequate system of roads inspection, they had no reports or complaints of standing water on the road at the locus prior to the pursuer's accident and there was no evidence of the weather conditions being such that they ought to have done something more than they did on the day in question. In all the circumstances, I consider that the pursuer has failed to establish fault on the part of the defenders that caused or materially contributed to her accident.

[81] There was a significant argument about the relevance of post-accident evidence in this case. So far as the evidence of drainage works having been carried out at the locus post accident, there is no question of that supporting the pursuer's case. It is consistent with the body of evidence from the defender's witnesses that, had they known of any drainage problem at the locus prior to December 2007, they would have attended to it. When problems at the locus were brought to their attention some time in early 2008, the defenders took action within a reasonable time. So far as evidence of further accidents on the road after that suffered by the pursuer is concerned, I do not rule out that there are circumstances in which such evidence may be relevant. The most helpful summary of the law in this jurisdiction on the matter of "collateral" evidence is to be found in the decision of Strathmore Group Limited v Credit Lyonnais 1994 SLT 1023. In that case, Lord Osborne reviewed the authorities, including Inglis v The National Bank of Scotland Limited 1909 SC 1038 and then set out a number of principles. He expressed the view that the ultimate test of the relevancy of an averment or evidence is whether the material in question has a reasonably direct bearing on the subject under investigation. He opined also that expediency has a part to play in reaching a decision as to what averment or evidence may be held to be relevant and what not. The question is clearly one of degree in each case, the determining factor being whether the matters averred are, in a reasonable sense pertinent and relevant and whether they have a reasonably direct bearing on the subject under investigation or whether they fall to be rejected as being too indirect or too remote. It was made clear by Lord Osborne that unless the facts of individual decisions were virtually identical, it would be unlikely that a decision taken in one case would be a guide for the decision in another. I would respectfully agree with all of that. While evidence of the condition of a road later in the day of a party's accident might be of relevance, it is more difficult to see how its condition some two weeks or even three months after assists the pursuer's case. This is particularly so when the complaint being made is of water on the road rather than a damaged surface such as potholes. The cases of O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534 and Mood Music Publishing Company Limited v De Wolfe Limited 1975 1 Ch 119 go no further than confirming that the court would be likely to admit evidence if it was logically relevant in determining the facts in issue. Foreseeability was one of the central issues in dispute in this case. Evidence of an accident sustained by Mr Savage on 5 January 2008 and the condition of the road in the early months of 2008 are of no assistance with that. There is no doubt that by the end of 2007, early 2008 that part of the A70 on which the pursuer had her accident had a problem with standing water on the road. But the necessary link between failure on the part of the defenders prior to December 2007 and the occurrence of the problem has not been established. Accordingly, I do not consider that the evidence about the condition of the road in the months following the pursuer's accident is of any assistance to her in seeking to establish liability on the part of the defenders. To that extent the evidence admitted under reservation was irrelevant.

[82] On the issue of contributory negligence, had I found that the pursuer had established fault on the part of the defenders, I would not found her to be contributorily negligent. In this respect I do accept the submission of Mr Conway that specific failures in duty would require to be put to the pursuer for her comment before it could be said that she had been driving carelessly, too fast or without due care and attention. She was not directly challenged on the manner of her driving. Evidence that Mr Meikle may have sought to attribute some blame to her in the course of his own case against the defenders is insufficient in my view to infer contributory negligence. The impact with which the pursuer's vehicle hit the dry stone wall and went through it is also insufficient to infer contributory negligence. It seems to me that the accident to the pursuer occurred because her vehicle skidded on ice. The road on which she skidded had been gritted that day and there is no suggestion that the defenders system of gritting roads for icy conditions was in any way deficient. While I have found that on the date of the accident there was nothing that the defenders ought to have been aware of at the locus to put them on notice that it might be flooded, it was in fact flooded and the pursuer cannot be unduly criticised for moving into the opposite carriageway to avoid the flooded area.

[83] Accordingly, I find that the pursuer has failed to establish negligence on the part of the defenders which caused or materially contributed to her accident. However, on the evidence led I do not consider that the accident occurred as a result of her sole fault or contributory negligence.

Decision

[84] In the circumstances I shall assoilzie the defenders from the first conclusion of the summons, reserving meantime all questions of expenses.