EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Emslie Lord Wheatley	[2012] CSIH 62 PD1228/09 OPINION OF THE COURT delivered by LORD EMSLIE in the cause JILL KING GIBSON Pursuer and Reclaimer; against WEST LOTHIAN COUNCIL Defenders and Respondents: _______

Act: A C Forsyth, Crooks, Solicitor Advocate; Bonnar & Company

Alt: C S Wilson; Simpson & Marwick

15 August 2012

Introduction
[1] After hearing proof in this action the Temporary Lord Ordinary held that, on the evidence, the pursuer had failed to prove that her road accident on the A70 on Christmas Eve 2007 was caused by fault on the part of the defenders as the relevant roads authority. As narrated in a lengthy and detailed judgment issued on 24 June 2011, the accident occurred at about 9.00pm as the pursuer and her partner were returning home from an outing to Edinburgh. On encountering an area of standing water on the westbound side of the carriageway, extending towards the centre line of the road, the pursuer on her own account slowed down and elected to drive past the water on the opposite side. As she was about to return to her own side of the road, the car skidded on black ice despite the fact that the surface had been gritted by the defenders earlier that day. The vehicle went out of control, crashing through a wall and into a field, and the pursuer and her partner were injured.

[2] According to the pursuer's limited pleadings under chapter 43 of the rules of court, the ice on which she skidded "... had also formed from water that had not drained properly off the road". Surface drainage problems at the locus were to blame, and these should have been known to and remedied by the defenders. This could, it was said, have been achieved through monthly inspections of the road by trained personnel, as recommended by the defenders' own policy "Roads Inspection and Safety Procedures and Guidance". Problems at the locus should also have been evident to employees of the defenders when the road was gritted on the same day. In response, the defenders' position was that monthly inspections of the road had revealed no drainage problem at the locus until the early part of 2008. In addition to monthly inspections, the defenders had also operated a system of "flood storm day" inspections whereby, in the event of heavy rain, squads of men were sent out "... looking inter alia for problems relating to build up of water on roads". The allegation of obvious flooding when the relevant stretch of road was gritted on the day of the accident was denied, as were the pursuer's assertions to the effect that the defenders were in breach of duty and that that breach of duty had caused the accident.

[3] At the proof, despite her limited pleadings, the pursuer sought to open up a much wider case based on the defenders' alleged failure to implement an auxiliary system of inspections during or immediately after heavy rain. Through her expert witness Mr Peter Cheesman, particular reliance was placed on the terms of the 2005 National Code of Practice for Highway Maintenance Management, and especially on paragraph 9.11.4 concerning recommended standards for the service inspection of drainage systems. According to Mr Cheesman, such inspections should have occurred either following episodes of abnormal inclement weather or in response to relevant reports or complaints. From the pursuer's perspective, establishing such a case was of some importance because Mr Cheesman accepted that the defenders did in fact have an adequate monthly inspection regime in place at the relevant time.

[4] Looking broadly at her decision, the Temporary Lord Ordinary was particularly impressed by the defenders' evidence that over many years of responsibility for a heavily-used major road like the A70 they had never received any report or complaint regarding drainage problems at the locus; that their system of monthly inspections, as supplemented by "flood storm day" measures, had revealed no such problems either; that they were unaware of any analogous accident having occurred there; and that the gritting team which passed the locus on the day of the accident had noticed nothing amiss. Against that background, she was sceptical of certain lay evidence led on the pursuer's behalf (especially that of Derek Young) which suggested that problems with standing water on the road were serious and frequent, lasting sometimes for weeks on end and, in the winter, more or less permanently. Much more reliable, in her opinion, was the evidence of the pursuer herself who, when asked for her impression of frequency as a daily traveller on the A70 since 2001, said (more than once) that water might be evident at the locus on perhaps four to six occasions a year. These answers were entirely consistent with the defenders' evidence previously mentioned, and in the view of the Temporary Lord Ordinary the pursuer "... gave the clearest evidence on the matter" and should be accepted as having given the most accurate account. No witness other than the pursuer, it was observed, was really asked to address specifically the frequency with which there might be water on the road.

[5] At the same time, the Temporary Lord Ordinary declined to attach significance to acknowledged flooding of which the defenders and their employees admittedly became aware in the early months of 2008. Road signs warning of flooding were in place from January 2008, and in due course remedial engineering works were carried out. As the Temporary Lord Ordinary put it, "... 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".

[6] As regards the additional case which the pursuer sought to construct around paragraph 9.11.4 of the 2005 Code, the Temporary Lord Ordinary concluded that since there was no specific road drainage provision at the locus, and the defenders did not know what land or field drainage might exist in the vicinity, no assistance could be derived from that part of the Code which dealt with the inspection of highway drainage systems. The defenders could not, in other words, have a duty to inspect drainage systems which did not exist or of which they were unaware.

[7] Taking all of these considerations into account, the Temporary Lord Ordinary concluded that the pursuer had "... failed to establish fault on the part of the defenders that caused or materially contributed to her accident". In the process, she distinguished certain English decisions, cited for the pursuer, as having been concerned with quite different facts and issues. She also rejected the defenders' cases of sole fault and contributory negligence against the pursuer, not least because no relevant allegations had been put to her in cross-examination.

The present appeal

[8] Although the hearing before this court lasted for two full days, the pursuer's challenge to the Temporary Lord Ordinary's reasoning and conclusions was within fairly short compass. According to counsel, the Temporary Lord Ordinary had fallen into error in three major respects. By reference to well-known authorities such as Thomas v Thomas 1947 SC (HL) 45, she had failed to take proper advantage of the evidence which she had seen and heard, and in particular (1) had failed to appreciate and affirm the lay and other evidence, both pre- and post-accident, which allegedly demonstrated a much greater extent of pre-accident flooding problems at the locus; (2) had misconstrued the 2005 Code and, in the process, failed to see that the defenders were in breach of duty through having had no formal wet-weather drainage inspection system incorporating trained staff with reporting functions; and (3) had incidentally erred in treating the defenders' roads inspector Stuart Baird as a credible and reliable witness to the effect that if, on any inspection run, he had encountered standing water at the locus he would have reported it to his superiors.

[9] In the course of counsel's submissions, the court was treated to a far-reaching examination of what was said to be salient testimony, as also to a detailed excursion into provisions of the 2005 Code, only some of which had been put in evidence at the proof. On the first and third of the major points summarised above, the thrust of the argument was that pre-accident evidence from three lay witnesses including Derek Young, expert evidence from Mr Cheesman, and undisputed evidence as to the post-accident condition of the road, had essentially all been ignored by the Temporary Lord Ordinary. Notwithstanding the absence of reports, complaints or relevant accidents, she had not been entitled to treat the pursuer herself as having given a reliable account of pre-accident conditions, nor had she been entitled to accept as reliable the evidence of a range of witnesses speaking to the defenders' roads inspection systems which were in operation at the relevant time.

[10] On the second major point, moreover, the Temporary Lord Ordinary had erred in treating paragraph 9.11.4 of the 2005 Code as referable to specific drainage plant, systems or equipment, as opposed to "drainage" in general and the presence or absence of standing water on road surfaces. The Code, it was said, necessitated risk-based assessments of an entirely unrestricted nature. The Temporary Lord Ordinary had also erred in attaching importance to the defenders' "flood storm day" inspections where these did not involve trained personnel or any reporting function. Non-compliance with the Code's requirements should be equated to negligence on the defenders' part, and in consequence the pursuer's case of fault should have been sustained.

[11] In a succinct reply, counsel for the defenders invited us to affirm the decision complained of. Nothing had been said on the pursuer's behalf to disturb the soundness of the Temporary Lord Ordinary's approach, and the pursuer's three main points were misconceived. As regards the frequency of surface water problems at the locus prior to the accident, the Temporary Lord Ordinary was well entitled to accept the evidence of the pursuer and of the defenders' witnesses in preference to the more extreme, but inspecific, evidence of Derek Young and other lay witnesses on whom the pursuer relied. The complete absence of relevant reports, complaints or accidents was of considerable significance here, as the Temporary Lord Ordinary recognised, and there was no evidence to suggest that the presence of surface water at the locus should, or must have been, known to the defenders from any source, including their own inspections, prior to the date of the accident. If that was correct, it was but a short step to hold, as the Temporary Lord Ordinary had done, that the evidence of apparently different post-accident conditions did not advance the pursuer's case in any way. Applying the tests set out in authorities such as Thomas v Thomas, it could not be said that this court had any legitimate basis on which to interfere with, or depart from, the Temporary Lord Ordinary's approach.

[12] Over and above that, the pursuer's attempt to construct a case around paragraph 9.11.4 of the 2005 Code was not soundly based. For one thing, that part of the Code was concerned, not with safety inspections, but with service inspections of various aspects of the physical roads environment. In particular, the focus of chapter 9.11 was on drainage systems for which a local authority had responsibility. For another, a fair reading of chapter 9.11, focusing specially on paragraphs 9.11.3 and 9.11.4, showed that the Code's recommendations here were largely discretionary, and that such service inspections might legitimately be made to coincide with the primary monthly safety inspection regime. On no view, it was argued, could these provisions sensibly be understood as obliging the defenders to inspect the surface condition of all roads in their area every time it rained. Nor should it be forgotten that the defenders' additional inspections beyond the monthly standard did, on the evidence, involve (i) reporting functions by supervisors as well as by individual roads inspectors, and (ii) the taking of safety measures such as the erection of road signs to warn motorists of problems encountered at a given location.

Discussion
[13] At the outset, it is perhaps worth noticing the extent to which the pursuer's case, both at proof and on appeal, may be thought to have exceeded the direct focus of her pleadings. For a start, the whole case seems to have been conducted on the unstated assumption that it was a drainage problem at the locus which caused the accident. On the pursuer's own account, however, she skidded on black ice on the eastbound side of the carriageway after a controlled manoeuvre to bypass standing water in the westbound lane. The standing water thus played no direct part in the accident, and we would regard it as within judicial knowledge that black ice regularly appears on freezing road surfaces which are affected by nothing more dramatic than dew, mist or other source of dampness. Blaming the standing water in such circumstances might therefore be thought equivalent to blaming a stationary vehicle which was being overtaken. Nevertheless, having been informed that the defenders tacitly conceded the issue of causation in this respect, we have necessarily approached the present appeal on the same footing. Over and above that, as previously mentioned, the pursuer's case came to depend heavily on certain provisions of the 2005 Code even though that document was not mentioned anywhere on Record.

[14] Of greater practical significance, perhaps, is the extent to which the pursuer was unable to adduce evidence favourable to her claim. As recorded by the Temporary Lord Ordinary, there was no evidence of any prior report or complaint regarding surface water at the locus, nor indeed of any relevant accident there. In our view the absence of such evidence was of the highest significance, not least because the A70 was and is a heavily-used major road which must inter alia have been covered by the traffic police on a very regular basis. If long-term conditions at the locus were as bad as was suggested by Derek Young and others, it is to our mind little short of astonishing that this was never brought to the defenders' attention by any police officer or member of the public. No police officer was, moreover, led in evidence to speak to the circumstances of the pursuer's accident; there was no evidence as to whether, or in what terms, the accident was ever reported to the defenders; no meteorological evidence was led to establish the ambient conditions at the locus on Christmas Eve 2007 or any other date which might have been relevant to the inspection case(s) on which the pursuer relied; and there was no attempt to lead evidence as to the roads inspection practices of other local authorities with which the defenders' performance might have been compared.

[15] Against that background, and without going into unnecessary detail, we are in the end unimpressed with counsel's criticisms of the Temporary Lord Ordinary's reasoning and conclusions. In our opinion, and in substantial agreement with the position advanced by counsel for the defenders, the Temporary Lord Ordinary was well entitled, on the evidence before her, to hold that the pursuer had failed to establish fault on the part of the defenders as having caused or materially contributed to her accident. For the reasons set out in great detail by the Temporary Lord Ordinary in her opinion, which we see no need to rehearse here, it was in our view legitimately open to her to conclude that, prior to the beginning of 2008, the presence of standing water at the locus was no more than an occasional transient event which would not necessarily have been picked up by the reasonable inspection measures which the defenders had in place. Looking at the other side of the coin, she was in no way bound to accept the contrary evidence on which the pursuer sought to rely, not least because this would have been either difficult or impossible to reconcile with the absence of relevant prior reports, complaints or accidents, or, alternatively, difficult or impossible to relate to the pre-accident situation. The assessment of factual evidence in a case of this kind was of course very much a matter for the Temporary Lord Ordinary, after having had the advantage of seeing and hearing the various witnesses, and we are not persuaded that there is any valid justification for this court to interfere with the decision reclaimed against.

[16] As regards the pursuer's determined attempt to set up a breach of paragraph 9.11.4 of the 2005 Code, we are again content to agree with counsel for the defenders that this was not only misconceived vis-à-vis the intended scope of the relevant chapter of that document, but also incompatible with the wide discretion which the actual provisions bear to permit. The Temporary Lord Ordinary was in our view well entitled to reject the pursuer's case on this aspect also, bearing in mind that at common law the defenders were under no duty of insurance but only one of reasonable care.

Decision

[17] For all of these reasons, we shall refuse the reclaiming motion and affirm the decision of the Temporary Lord Ordinary dated 24 June 2011. The matter of expenses will, in the meantime, be reserved.