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Cite as: [2012] ScotCS CSOH_101

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OUTER HOUSE, COURT OF SESSION

[2012] CSOH 101

PD982/09

OPINION OF LORD UIST

in the cause

RUTH MARGARET MacDONALD

Pursuer

against

ABERDEENSHIRE COUNCIL

Defenders

ннннннннннннннннн________________

Pursuer: Jan McCall; Thompsons

Defender: Sheldon; Ledingham Chalmers

14 June 2012

Introduction
[1] A tragic road traffic accident occurred at about 5.30 pm on 8 May 2006 on the A97 Banff to Aberchirder Road at Mill of Brydock. The pursuer (who was born on 14 June 1978) was driving her Volkswagen Golf car westwards on the unclassified C2L Pole of Mintlaw to Brydock road in the course of her journey from Turriff to Inverness, with her mother and aunt as passengers in the car. She approached at about 30 mph a point on the road where it formed a crossroads with the A97. Buildings and yards on the east side of the A97 straddled the junction with the road on which the pursuer was travelling. The A97 was a two way single carriageway running north to south. Both it and the road on which the pursuer was travelling were rural single carriageway roads with a speed limit of 60 mph. White lines along the middle of the A97 at the junction indicated that traffic on the A97 had right of way at the junction. As a Transit van was proceeding along the A97 at the junction the pursuer drove her car straight through the crossroads into the path of the Transit van and collided with its offside. As a result of the accident the pursuer was injured and her mother and aunt were killed.

[2] The pursuer has brought this action against Aberdeenshire Council as the relevant roads authority blaming them for the accident by reason of their failure to erect sufficient signage on the road on which she was driving to alert drivers to the presence of its junction with the A97 and also to maintain road markings so that they were visible to drivers such as herself. She seeks damages for her own loss, injury and damage and also damages under section 1(4) of the Damages (Scotland) Act 1976 in respect of the death of her mother. The action, which proceeds under Chapter 43 of the Rules of Court, called before me for debate on the defenders' motion to have the action dismissed on the ground that the pursuer's averments are irrelevant and, separately, lacking in specification.

The pleadings
[3] The factual averments about the occurrence of the accident upon which the pursuer founds her case against the defenders are set out in statement 3 of the Record as follows:

"(ii) The pursuer was not aware that she was approaching a junction where she was to give way to traffic on the other road. The road along which she was travelling dropped into a dip and there was a rising left hand bend just before said junction. There was no advance view of the junction. She saw the road continuing westwards. She had driven along said road for some miles without coming to a junction. She saw no sign that she was driving on the road which was to give way at the crossroads. She expected that there would be a give way sign if she came to a junction where she was to give way to drivers on another road, such as the A97. Both roads at the locus of said accident were minor rural roads and visibility of the junction was poor. There were insufficient signs and markings on the road to alert drivers to the presence of said junction and that they were to give way to traffic travelling on the other road.

(iii) ...There were no signs giving sufficient advance warning of the presence of the junction with the A97 road. There had been road markings, double white lines and a triangle marked on the road by the defenders but they had been 'scrubbed' by traffic passing over them over a period of time. All that remained were lines at the extreme ends of the mouth of the junction. There were no lines in the centre of the road in the path of the pursuer. As a result, the road markings did not give a clear and effective warning of the approaching junction, and the need to give way. There was a Give Way sign erected but it was offset to the left and at an angle and not obvious to road users approaching said junction. It was not visible at all until the pursuer was less than 40 metres from the junction. The form of the junction was only apparent for a road user until (sic) about 10 to 15 metres before the junction with the A97 and in any event no feature identified the priority of the junction to the pursuer in contrast with (sic) the obvious priority to those driving towards said junction on the said A97. Give Way signs and Stop signs are subject to section 36 of the Road Traffic Act 1988. A motorist commits an offence if they (sic) do not comply with the sign. They are not advisory signs. The Statutory Instrument setting out the requirements for the provision of and standards for road traffic signs is the Traffic Signs Regulations and General Directions 2002. The Traffic Signs Manual published by the Department of Transport gives guidance thereon. Section 3 of Chapter 3 of said Manual states: '3.13 The Give Way sign, together with associated road markings (see para 3.15), should be used as follows: (i) in rural areas at all junctions of public roads with trunk and principal roads; (ii) in urban areas generally at junctions of public roads with trunk and principal roads unless the minor road is a residential or local street; (iii) at all other junctions where the traffic authority considers it desirable on account of traffic speeds or volumes; (iv) at rural crossroads where both roads are minor in nature and visibility of the junction is poor (eg hidden dip, blind summit, obscured by hedges narrow verges etc' and '3.15 The STOP and GIVE WAY sign must always be accompanied by their associated road markings ...'. The associated road markings at para 3.15 are detailed in diagrams and are white lines across the junction and a white Give Way triangle marked on the road. The Regulations require that the said sign and associated marking must be of particular dimensions. The said Manual provides that the Give Way sign ought to be visible from at least 60 metres prior to the junction. Further, the Highways Agency has published the Design Manual for Roads and Bridges which provides guidance to roads authorities. It includes advice on design and layout of junctions. It provides that the said junctions should be able to be seen from a distance of 215 m. In the absence of such a design a warning of the junction ought to have been given at said distance. The publications 'Well Maintained Highways - Code of Practice for Highway Maintenance' published in 2005 and 'delivering Best Value in Highway Maintenance' published in 2001 supported, endorsed and recommended by the Convention of Scottish Local Authorities, are the principal guidance for local authorities. In terms thereof said roads ought to have been inspected monthly. The said Code identifies that road markings that are missing, misleading or badly worn create a serious risk to road users that should (sic) be rectified within 24 hours. This was a category 1 defect. The defenders' own policy provided that such defects require 'immediate attention'. Perth and Kinross Council consider Stop or Give way markings are defects which warrant rectification within 24 hours. The defenders inspected road markings monthly but took no steps to renew the road markings. They did not do so within 24 hours.

(iv) At the date of the accident the defenders' system was for inspections of the said road to be carried out monthly. An inspection had taken place in April 2006. There was an open works order for the road, indicating that certain works of repair were necessary and instructing that certain road markings be re-lined, and an appendix to the order specified the road junctions to be covered thereby. The defenders' system for inspection of roads was such that inspections recorded the condition of a road as satisfactory if there was a prior inspection report which identified a defect and a works order had been issued and was still 'open', the work required having not been carried out. The inspection of (sic) the defenders of said junction on about 20 April 2006 recorded its condition as satisfactory on the basis that it had previously been identified as requiring repainting. The open works order pre-dated the inspection on 20 April 2006. Esto it was dated about 1 April 2006 the defenders knew that the markings at said junction required repainting prior thereto. The inspection prior to that undertaken on about 20 April 2006 would have taken place in about March 2006. ...The said markings at said junction and the signage were in said condition at said date and probably for several months prior thereto. The defenders knew or ought to have known that there was inadequate warning of said junction to drivers approaching said junction driving on the CL2 from, at the latest, March 2006. Given the condition of the markings at said junction as hereinbefore condescended upon the pursuer believes and avers that the open works order included re-lining of road markings at the said junction. Further, no other road markings were renewed after the accident except a 'SLOW' road marking south of a bridge near Brydock Mill. Esto it did not, it should have done as said road markings were ineffective to alert drivers to the presence of said junction and thereby maintain the safety of the junction.

(v) Within days of the accident the defenders arranged for road markings at the junction to be re-lined and in about June 2006 erected a Give Way warning sign in advance of the junction. The renewal of said Give Way markings was carried out on 10 May 2006 and was carried out in accordance with Chapter 8 of the Traffic Signs Manual 1991. The work cost г150. A Give Way sign and plate which read 'GIVE WAY 70 Yards AHEAD' was erected by 15 June 2006 and was carried out in accordance with Chapter 8 of the Traffic Signs Manual 1991. This work cost г300. These steps ought to have been taken prior to said accident."

[4] The averments of breach of duty (as amended in the course of debate) made by the pursuer in statement 6 are as follows:

"The said accident was caused by the fault and negligence of the defenders at common law. The defenders created a danger to road users of said roads. They managed the said roads and had designed and marked them so that drivers on the A97 were given priority at the said junction and they accordingly placed appropriate markings on the road. Drivers on said roads had a reasonable expectation that junctions on said roads would be marked. The defenders had a duty to devise, institute and maintain an effective system for the management of the roads for which they were responsible. They had a duty to devise, institute and maintain a reasonable system of installation, inspection and repair of the road signs and markings at said junction. The defenders failed to maintain said road markings for drivers driving on the C2L towards the junction. They failed to repaint said Give Way markings on the road within 24 hours of knowing of their said condition. They had a duty to take reasonable care to act in terms of their policy and take immediate action. They had a duty to take reasonable care to carry out said steps prior to 8 May 2008. It would have been reasonably practicable for them to do so (sic). They failed to adequately warn motorists of the existence of said junction. They failed to erect a Give Way sign 60 metres prior to said junction. It was reasonably foreseeable that if motorists on the C2L did not give way at said junction an accident could occur as in fact happened."

[5] In response the defenders aver, among other things, that the pursuer was, or ought to have been, aware that she was approaching a junction from the configuration of the road and, in any event, she should have been keeping a good look-out for traffic, such as the Transit van, travelling northwards on the A97; that the Give Way sign at the junction prior to the accident could not have been better positioned, being 6 metres east of the junction and visible from 45 metres away, its situation being compliant with the Code of Practice for Highway Maintenance and the Traffic Signs Manual; that it gave ample warning to a driver proceeding at a low speed, in a manner appropriate to the road configuration and conditions; and that such a driver would have noted the likely presence of a junction well before being able to see the Give Way sign, other signs indicating the presence of a crossroads being visible from approximately 100 metres before the junction. They aver that, notwithstanding that they undertake to repaint road markings in terms of their policy for the purpose of managing and maintaining certain public roads within Aberdeenshire, they owe no duty of care to install road markings, maintain road markings or provide or maintain information by means of street furniture or painted signs warning road users, such as the pursuer, of the junction of the A97 and the C2L, they being required to take the highway network as they find it.

The legal duties of roads authorities
[6] The extent of the duties owed by roads authorities to road users lies at the heart of this case and was the subject of discussion in the course of the debate. It is necessary first of all to refer to the terms of the statutory duty of a roads authority to manage and maintain the roads in their area.

[7] Section 1(1) of the Roads (Scotland) Act 1984, so far as relevant, provides:

"...a local roads authority shall manage and maintain all such roads in their area as are for the time being entered in a list...prepared and kept by them under this section; and for the purpose of such management and maintenance (and without prejudice to this subsection's generality) they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or over any part of it, may be exercised."

The Caparo test
[8] In what is now a very well known passage Lord Bridge of Harwich set out the requirements for the imposition of a common law duty of care in Caparo plc v Dickman [1990] 2 AC 605 at p617H-618A as follows:

"What emerges is that, in addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or neighbourhood and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

[9] While that is the oft-quoted passage it is important to note what his lordship went on to say at p681A-C:

"but it is implicit...that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whist recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."

The cases on the duties of roads authorities in relation to road signage and markings
[10] I turn now to consider in chronological order the reported cases directly dealing with the duties of roads authorities in relation to road signage and markings, to which reference was made in the course of submissions.

Bird v Pearce [1979] RTR 369

[11] A highway authority established and decided to maintain a traffic system which gave priority to a major road, between 17 and 21 feet wide, and provided warnings throughout its length to users of all minor roads at junctions with the major road. At one junction the warnings in the minor road consisted of longitudinal white lines followed by double transverse broken white lines; the minor road was some 12 feet wide and the view on approach to the major road was obscured on the nearside by banking surmounted by foliage, so that the corner was blind until the last few feet before the junction and a driver approaching along the minor road had hidden from him, until the moment of emerging onto the major road, another minor road on the other side, the junction being at crossroads. The highway authority, in the course of road resurfacing under a five year policy obliterated the road markings on the minor road and, pending their replacement, did not substitute any warning signs. In daylight on a dry evening in May, some four weeks after the road markings had been obliterated, a car driven by the first defendant emerged from the minor road and was in a collision with a car approaching from his nearside along the major road and being driven by the second defendant. The plaintiff, who was a passenger in the second defendant's car, was injured and claimed damages in an action for negligence against both defendants, and the first defendant joined the highway authority as third party. By agreement between all parties the plaintiff's claim against the defendants was compromised by payment to her of a sum for damages and costs, in the proportion of 10 per cent against the second defendant and 90 per cent against the first defendant. In the third party proceedings the first defendant claimed indemnity or contribution on the ground that the highway authority was negligent in failing to provide temporary warning signs. Wood J gave judgment for the first defendant, holding that the responsibility for the accident should be attributed as to two thirds to the first defendant and as to one third to the highway authority. On appeal by the highway authority the Court of Appeal (Megaw, Eveleigh and Brandon LJJ) held that a highway authority carrying out resurfacing owed a duty to all road users to take reasonable care to ensure that a system of traffic flow that it had imposed by marking white lines on a road did not deteriorate so as to create a hazard; that where traffic signs were removed during such operations the authority was under a duty to prevent injury from the potentially dangerous situation resulting from such removal; that, by failing to provide temporary warning signs in a minor road at the approach to a major road while road markings were obliterated, the authority was in breach of that duty owed to a road user; that there was a causal connection between the absence of a warning sign and the accident and that, accordingly, the authority was responsible in part for the accident.

[12] Eveleigh LJ said at pp374E-375D:

"The authority would nonetheless say that the mere fact of foreseeability of a danger would not give rise to a duty. Before these crossroads or any of the other roads were given double white lines it was possible to foresee injury which could be avoided by a more efficient traffic system, such as, for example, the provision of double white lines. Nonetheless, there was no duty upon the authority to provide them. While foreseeability is necessary to found a duty, it does not follow that a duty will necessarily arise. However, a duty is more readily imposed where the defendant has actively involved himself in the situation. By doing so, it may be that the actor 'has advanced to such a point as to have launched a force or instrument of harm' beyond the point 'where inaction is at most a refusal to become an instrument for good': H R Moch Co Inc v Rennselaer Water Co (1928) 159 NE 896, 898 (Cardozo CJ).

The authority has referred to Sheppard v Glossop Corporation [1921] 3 KB 132. The local authority, having a power to provide lamps for lighting the streets under section 161 of the Public Health Act 1875, placed a lamp on a retaining wall at a point where there was a sudden drop from private land on to the highway. One night when the light was out the plaintiff fell on to the highway from the private land on to which he had inadvertently wandered. The Court of Appeal held that the local authority had no obligation to light: that the mere fact that they had provided a lamp post did not import a continuing duty to light. It was not proved that there had been any reliance by the plaintiff upon the existence of the local authority's lamp post and the danger from the sudden drop had not been enhanced. The authority had not created any new source of danger.

In the present case the authority had, in my opinion, created a potential source of danger that did not exist before it placed white lines upon the road. Up to that moment drivers had no justification for relying upon anything other than their own appreciation of the road situation. Once the authority in the exercise of its power created a pattern of traffic flow drivers could be expected to rely in some degree upon it. Thereafter the authority was under a duty of care to all road users to take reasonable care to see that the system it had imposed would not be allowed to deteriorate so as to create a hazard. Therefore the authority was under a duty of care to the plaintiff to prevent injury from the potentially dangerous situation which resulted from the removal of the double white lines. It is not necessary for the court to say precisely what the authority should have done. It in fact did nothing. It could have erected a 'Road Works' sign. It could have erected a 'Give Way' sign. It could have erected a 'Crossroads' sign.... In my opinion the authority failed to exercise that degree of care which it was under a duty to show."

[13] Brandon LJ stated at p377D-J:

"It is well established that where a body exercises a statutory power, it must use reasonable care to exercise it in such a manner as not to cause avoidable damage or injury to those who it can reasonably foresee may be affected by such exercise: Geddis v Bann Reservoir Proprietors (1878) 3 App Cas 430, by Lord Blackburn at pp455-456; Dorset Yacht Co v Home Office [1970] AC 1004, by Lord Reid at p1030 and Lord Morris of Borth-y-Gest at p1036. ...

Applying those principles to the present case, it is necessary to consider whether the authority should reasonably have foreseen that, if it removed the white lines for an appreciable period without taking any precaution in connection with such removal, it might cause damage or injury to persons travelling in motor cars along the two roads here concerned, including the plaintiff, Mrs Bird.

In my opinion, for the reasons given by Eveleigh J in his judgement, the authority should have foreseen that it might cause such damage or injury. It follows that it owed a duty of care to the plaintiff to take such precautions in connection with the temporary removal of the white lines as were reasonable in the circumstances."

[14] Megaw LJ said at p378E-379A:

"Suppose that Somerset County Council as highway authority had never in the past painted warning lines, or put up other warning signs, at this road junction and other road junctions where side roads met the Bruton road. For the purpose of the decision of this appeal I am prepared to assume, without expressing any concluded view, that the authority would have broken no legal duty involving liability to pay damages to the plaintiff, the first or second defendant or any other road user, even though the accident would or might have been avoided by the presence of such a warning signal.

So, on the same assumption, in the absence of something more, the authority would not be liable in respect of such an accident merely because it had, whether temporarily or permanently, obliterated the warning signs.

But there is something more here. There is the fact that for some years before this accident occurred the authority had provided warnings - white lines across the mouths of all the roads or lanes which joined the Bruton road. It was reasonable to foresee that traffic using the Bruton road as well as the side roads abutting on to it would be likely to become accustomed to the priority of the Bruton road at all such junctions, and the fact that drivers, at any rate those who were familiar with the road, would, reasonably, be likely to drive on the assumption, not only of the priority, but of the fact that it was made known to drivers on the side roads by the presence of the appropriate warning signs.

If, therefore, it became necessary to obliterate the existing warning signs in respect of any such side road, for example, for the purpose of re-surfacing, and if, at any rate, the resulting obliteration was likely to last for more than a day or two, a type of danger had been created which would not have existed if the authority had never used its powers at all. This danger might be described as a 'trap'. It is as though, in Sheppard v Glossop Corporation [1921] 3 KB 132, the facts had been that Mr Sheppard had been making his way along the road in the reasonable confidence, from months or years of experience, that the corporation would keep the street lights alight until midnight. Having committed himself to the journey, he was suddenly at 11 pm, without warning, plunged into darkness and subjected to a danger to which he would not have committed himself if it had not been for the reasonable assurance based on the corporation's long-standing practice as to the lighting. The present case is, of course, far less dramatic than the hypothetical example; but I think the principle is the same.

In the circumstances it became the duty of the authority to consider whether it was reasonable and practicable to bring into existence a substituted warning sign to eliminate or reduce that danger thus likely to be created. On the evidence and on the findings of the judge it was both reasonable and practicable in this case. It was therefore the authority's duty to do it. It was a duty owed to all drivers, or at least to drivers on the Bruton road. The authority failed to carry out that duty. In consequence of its failure to carry out that duty this accident happened."

Murray v Nicholls 1983 SLT 194

[15] The passengers in a car driven out of a minor road were injured when it was driven without stopping into the path of a car approaching the junction on the major road. They raised actions for damages against the representatives of the deceased driver and also against the roads authority in which they averred that there had been white lines across the junction which had been all but obliterated following road works some months before the accident and that there had been prior accidents at that junction reported to the roads authority, and thus that there had been a breach of duty on the part of the roads authority to take reasonable care that roads in their area were maintained in such a condition that persons using them could do so in safety by (a) failing to repaint the lines as soon as was reasonably practicable after the roadworks and (b) failing to erect and maintain road warning signs. It was submitted on behalf of the roads authority at procedure roll that the risk was not reasonably foreseeable and that there was no duty on them to paint lines or erect signs in the absence of any special factors within their knowledge affecting the junction. In dismissing the action so far as directed against the roads authority Lord Stott held that, although the risk of a vehicle coming out of the minor road without stopping was foreseeable, there was no duty upon the roads authority in the absence of any special risk at that junction and that the averments of previous accidents at the junction were irrelevant and lacking in specification.

[16] His lordship stated at pp194-5:

"But while foreseeabilty is no doubt necessary to found a duty it does not follow from the mere fact of foreseeability that a duty will necessarily arise. No case was cited to me in which a road authority has been held to be at fault merely by reason of failure to mark white lines on the roadway or erect a warning sign at a road junction in a built-up area. The only authority referred to was Bird v Pearce, where the point was expressly reserved. The ratio of the decision whereby the road authority was found to be at fault was that by markings on the road they had created a pattern of traffic flow on which drivers could expect to rely and that the obliteration of the markings caused something of the nature of a trap of which the defendants ought to have given warning. In the present case there is no averment to suggest that either driver was influenced by the existence of the markings at an earlier date. What is said is that because of houses and walls adjacent to the road those driving northwards towards the junction would have no visibility to the east until they actually reached it, but that is no more than the normal state of affairs in a built-up area. The fact that white lines had been put there before, while relevant to the question of foreseeability, has no bearing otherwise on the existence of a duty. If the pursuers' contention were accepted it would open up a wide field for actions against road authorities. It would seem, for instance, to follow that the pedestrian run down when crossing a busy thoroughfare would be entitled to say that his injuries were caused by the failure of the authority to set the machinery in motion for the provision of a pedestrian crossing. If such duties are to be imposed on road authorities, that should in my opinion be done by Parliament and not by courts of law, and in the absence of authority I am not prepared to hold that the power given to a local authority to mark white lines on the roadway and erect warning signs implies a duty to do so at every crossing in a built-up area where there is a considerable volume of traffic."

Stovin v Wise [1996] AC 923

[17] The plaintiff was a motor cyclist who was seriously injured on 11 December 1988 when he collided with a car driven by the defendant Mrs Wise out of a junction into his path. The judge at first instance found Mrs Wise 70% to blame for the accident as she had not been keeping a proper lookout and Norfolk County Council, as the local highway authority, joined as a third party by Mrs Wise, as 30% to blame because it had known that the junction was dangerous and had not taken steps to make it safer. Cemetery Road, along which Mrs Wise had been driving, joined Station Road at an acute angle. In order to turn right she had to make a turn of about 150 degrees across the traffic coming from her right and her view to the right was obstructed by a bank of earth topped by a fence. She could not see what was coming, apart from light thrown forward by approaching headlights, until she had nosed out into Station Road. There had been accidents at the junction in 1976, 1982 and in March 1988, when someone coming out of Cemetery Road had collided with a police car. In January 1988, after a site meeting, a divisional surveyor of the council accepted that a visibility problem existed and recommended removal of part of the bank. The council accepted the recommendation provided the landowners, British Rail, agreed. British Rail did not respond to the council's proposal before the plaintiff's accident occurred and nothing was done to follow it up. The Court of Appeal dismissed the council's appeal against the judge's finding that they had been negligent but the House of Lords, by a majority of three to two, allowed the appeal on the ground that the council were not under a duty of care to Mrs Wise as the minimum preconditions for basing a duty of care on a statutory power were absent. These preconditions were, first, that it would have been irrational not to have exercised the statutory power, so that there was in effect a public law duty to act; and, secondly, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.

[18] Lord Hoffmann, who gave the speech for the majority, concluded it as follows (at p958A-E):

"In my view the creation of a duty of care upon a highway authority, even on grounds of irrationality in failing to exercise a power, would inevitably expose the authority's budgetary decisions to judicial inquiry. This would distort the priorities of local authorities, which would be bound to try to play safe by increasing their spending on road improvements rather than risk enormous liabilities for personal injury accidents. They will spend less on education or social services. I think it is important, before extending the duty of care owed by public authorities, to consider the cost to the community of the defensive measures which they are likely to take in order to avoid liability ... In a case like this, I do not think that the duty of care can be used against low standards in improving the road layout. Given the fact that the British road network largely antedates the highway authorities themselves, the court is not in a position to say what an appropriate standard of improvement would be. This must be a matter for the discretion of the authority. On the other hand, denial of liability does not leave the road user unprotected. Drivers of vehicles must take the highway network as they find it. Everyone knows that there are hazardous bends, intersections and junctions. It is primarily the duty of drivers of vehicles to take due care. And if, as in the case of Mrs Wise, they do not, there is compulsory insurance to provide compensation to the victims. There is no reason of policy or justice which requires the highway authority to be an additional defendant."

Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057

[19] On 15 July 1996 the claimant, Mrs Gorringe, drove her car on a country road in Yorkshire head-on into a bus which was hidden behind a sharp crest until just before she reached the top. When she first caught sight of it a curve on the far side might have given her the impression that it was on her side of the road. As a result of her slamming on her brakes at 50 mph her wheels locked and her car skidded into the path of the bus, causing her to sustain serious brain injuries. She claimed that the accident was the fault of the highway authority by failing to give her proper warning of the danger involved in driving fast when she could not see what was coming. In particular, they should have painted the word "SLOW" on the road surface at some point before the crest. There had been such a marking in the past, but it had disappeared, probably when the road had been repaired seven or eight years previously. The judge at first instance held that the highway authority's omission to provide such a warning meant that the accident was entirely its fault because, in the absence of such a warning, Mrs Gorringe could not be blamed for driving too fast. In the Court of Appeal May LJ and Sir Murray Stuart-Smith held that the highway authority was not in breach of any duty to Mrs Gorringe and that she was entirely responsible for the accident. Potter LJ, dissenting, said that a painted warning would have been no more than a warning of the need to do that which should have been obvious to Mrs Gorringe in any event as she drove up from the dip but was nevertheless willing to hold that the highway authority's omission to provide such a warning meant that the accident was partly its fault. Mrs Gorringe appealed the decision of the Court of Appeal to the House of Lords, which held (unanimously) that the highway authority was not under any statutory or common law duty to paint a warning sign on the road.

[20] Lord Hoffmann, referring to what he described as "the difficult case of Bird v Pearce", stated as follows at p1070B-D, para 43:

"The reasoning of the Court of Appeal appears to have been that by painting the lines in the first place the council had created an expectation on the part of users of the main road that there would be lines to warn people on side-roads that they were entering a major road. This may be a rather artificial assumption and I express no view about whether the case was correctly decided. But I would certainly accept the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation."

[21] He went on to state at p1070D-E, para 44:

"My Lords, in this case the council is not alleged to have done anything to give rise to a duty of care. The complaint is that it did nothing. Section 39 (of the Road Traffic Act 1988) is the sole ground upon which it is alleged to have had a common law duty to act. In my opinion the statute could not have created such a duty. The action must therefore fail."

[22] Lord Rodger of Earlsferry referred at p1081D, para 83 to the decision of Lord Stott in Murray v Nicholls, which he described as "in many respects similar to the present case". He then continued at p081H-1083E, paras 84-88:

"84 The common law of Scotland is somewhat more generous to those injured due to the failure to maintain the roads than was the English common law. Nonetheless, Lord Stott held that the pursuers' averments in so far as directed against Strathclyde were irrelevant and so dismissed the action against them. He accepted that the previous existence of the white lines at the junction was sufficient to show that it was reasonably foreseeable that, in the absence of such an indication, a vehicle might be driven into Victoria Place without stopping. (His lordship then quoted the passage from Lord Stott's judgment at pp94-5 of the report.)

85 Lord Stott rightly distinguished Bird v Pearce [1979] RTR 369. There the Court of Appeal held that by painting white lines at a series of junctions along the road and then omitting to repaint the lines that had been obliterated at one junction the council had themselves created a potential source of danger that had not existed before the lines were painted. In effect they had trapped motorists into relying on the white line markings as indicating that they were driving along a major road and that they had priority over traffic in the side roads. In other words the council had exercised their power under section 55(1) of the 1967 Act to paint signs on the road to assist drivers but, by failing to repaint one and so breaking the pattern, had negligently created a danger to motorists which would not otherwise have existed. Assuming that this was correct, on ordinary common law principles the council were liable to the plaintiff who suffered injury due to the danger they had created. The fact that the authority had been exercising a common law power when they created the danger was irrelevant, since there was nothing in the statute to provide them with a defence against their common law liability.

86 By contrast, in Murray v Nicholls 1983 SLT 194 the pursuers averred no more than that Strathclyde had failed to exercise their power to repaint the lines in circumstances where it was foreseeable that vehicles would collide. In effect they had failed to warn drivers to take care when driving out of Devon View Street into Victoria Place. The mere fact that Strathclyde had the public law power to paint white lines on the road did not mean that they came under a common law duty to take care to exercise that power wherever it was foreseeable that, otherwise, accidents were liable to happen. As Lord Stott pointed out, at p195, it is not for the courts but for Parliament to create such a far-reaching duty, after considering all the implications. Parliament has so far chosen not to do so, leaving it to drivers to take proper care for the safety of themselves, their passengers and other road users.

87 By deciding to paint the lines at the junction - presumably because of the perceived risk of collisions - Strathclyde would have come under a duty to do so carefully and not in a way that would aggravate any dangers at the junction. But they had not somehow imposed on themselves, retrospectively, a common law duty to paint the lines or, prospectively, to paint them back if they were obliterated.

88 In exactly the same way, in the present case, the mere fact that the defendants had once painted the "Slow" sign on the road does not mean that they had been under a common law duty to do so, or that they were under such a duty to repaint the sign when it came to be obliterated. When that happened, the situation returned to what it had been before the defendants decided to exercise their statutory powers by painting it in the first place. They were not under any common law duty to repaint it and are not liable because, for whatever reason, they did not do so. Of course, if they had done so, it might have helped motorists. And after Mrs Gorringe's accident they did indeed repaint the marking and make a number of other changes. But this was something that they decided to do in the exercise of their statutory powers, not something that they were under a common law duty to do."

[23] He concluded his speech by stating as follows at p1085C-E, paras 93 and 94:

"93 If traffic authorities carry out their duties under section 39, this should help to make the roads safer by informing their decisions as to the repairs and modifications, including the placing of warning signs, that should be carried out. In the exercise of their public law powers and duties highway authorities do often, or even usually, warn of prospective dangers at junctions or crests in the road, but drivers cannot rely on them always having done so. Drivers must take care for themselves and drive at an appropriate speed, irrespective of whether or not there is a warning sign. By insisting that drivers always look out for dangers themselves and not rely on others the common law supports the overall policy of promoting road safety. If drivers fail to drive carefully and others are injured the others can recover compensation from the drivers' insurers or from the Motor Insurers' Bureau. Neither the drivers nor their passengers, nor indeed their insurers, can recover damages from the highway authorities for not having placed a warning sign. If that settled pattern is to be changed it is for Parliament to make the change and to approve the additional funding needed by the authorities to handle and meet the claims.

94 In the circumstances I am satisfied that the council did not owe Mrs Gorringe a duty of care to paint a marking on the road or to set up a sign warning her to slow down as she approached the crest in the road where the accident occurred."

Submissions for the parties
(i) Submission for the defenders
[24] The primary submission for the defenders was that in the circumstances the defenders did not owe a duty of care to the pursuer or her mother. There was no sufficient proximity between the parties to give rise to such a duty and it would not be fair, just and reasonable to impose such a duty. In Cameron v Inverness-shire County Council 1935 SC 493 a sheep farmer brought an action of damages against the county council as road authority because the public roads (of which the defenders were vested in the management and maintenance by section 11 of the Roads and Bridges (Scotland) Act 1878) leading to two of his farms were rendered impassable as a result of a snow storm. One road was not cleared for four days and the other was not cleared for seven days. The pursuer averred that it was the defenders' duty under section 11 of the 1878 Act to take proper precautions to see that the roads were maintained free from obstruction, that they had failed in this duty and that consequently the pursuer was unable to get food to his sheep, many of which had died and caused him to sustain serious losses. The First Division held that the defenders were under no such specific statutory duty to clear the roads of snow as was averred by the pursuer, and that, in the absence of any averment of direct fault or negligence on the part of themselves or their employees, they were not liable for the loss occasioned to the pursuer through the roads being blocked by snow. The action was dismissed.

[25] Lord President Clyde stated at pp 497-8:

"No averment of slackness or unnecessary delay is made against the staff; but the pursuer alleges that it was the duty of the county council to provide him with uninterrupted access by road to his farms, and for that purpose to have available whatever organisation and staff might be necessary for the immediate removal of obstructions caused by snow when the necessities of any road-user (like himself) demanded it. I do not think there is any justification for putting the responsibility of the county council so high as this.

The county council are the statutory road authority, and they have the administrative powers and duties necessary to enable a system of roads to be maintained. The word 'jurisdiction' - I have used it myself already - has often been used in reference to the function of road trustees. It is not an inappropriate word in this connexion, because it accurately connotes the authoritative discretion which is necessarily committed to a governing body. It is for the county council to fix the number of roadmen required to maintain their roads and keep them fit and safe for public traffic; and it is for the county council to fix priority as between the claims of one line of traffic and another to immediate attention. I by no means wish to suggest that the removal of obstructions caused by snow is something altogether outside the sphere of road maintenance to which the jurisdiction of the road authority extends. But I think the matter is one peculiarly within the road authority's discretion, to be exercised according to circumstances and the ever variable actualities and probabilities of weather conditions. The position is much the same when the floods are out, and sections of the road system are temporarily submerged and impassable. In neither class of emergency is there any absolute or specific duty cast upon the road authority to maintain what is otherwise a sufficient road, free at all times of obstruction, from snow in the one case, from inundation in the other. The present action fails because it assumes such a specific duty on the part of the county council."

[26] That decision demonstrated that, in the absence of relevant and specific averments of negligence against a road authority in the execution of their statutory duty, the action fell to be dismissed as irrelevant.

[27] In Murray v Nicholls the facts were similar to the present case, but that case dealt with a built-up area, and the reasoning of Lord Stott applied a fortiori in the case of the country roads in the present case. There were no averments in the present case that the junction was known to be a particularly dangerous one. The case of Gorringe was a difficult one from a Scottish point of view and had to be treated with caution as the duty on English road authorities to clear snow was narrower than the equivalent duty on Scottish road authorities. The obligation in the Highways Act to put and keep the highway in repair did not include the provision of information by means of street furniture or painted signs. The duties in section 39(2) and (3) of the Road Traffic Act 1988 did not give rise to a common law duty of care. The decision was highly persuasive authority that in the particular circumstances there was no free-standing common law duty of care in respect of the placing of signs and the painting and re-painting of road markings. No duty arose unless the roads authority by its own negligence actually created a new danger. As stated by Lord Rodger of Earlsferry at para 93, there were good policy reasons for not creating a duty of care in cases of this sort. Public resources were scarce and drivers had to look after themselves by guarding against any danger on the roads.

[28] In Gibson v Orr 1999 SC 420 police officers attended a collapsed bridge carrying a public road and coned off one side of the bridge and positioned a police vehicle on that side with its blue lights flashing and its headlights illuminated so as to be visible and give warning to any drivers approaching the bridge from the other side. They later left the scene without having received confirmation that any barrier or warning was in place on the other side. Shortly thereafter a car in which the pursuer was a passenger was driven onto the bridge and fell into the river below it, killing all the occupants apart from the pursuer. In an action of damages by the pursuer against the police it was conceded by the police that the accident was foreseeable but maintained that there was no duty of care on the police so as to attach liability to them for the accident which occurred. Lord Hamilton held, applying the tripartite test in Caparo Industries v Dickman [1999] 2 AC 605, that in the circumstances the police had taken control of the situation and come under a duty of care to a limited class of users of the bridge. The emphasis was on control setting up a relationship of proximity in relation to an immediate and direct hazard. So far as the fairness test was concerned, it was held that there was no immunity for the police in the performance of civil operational tasks concerned with human safety on the public roads in circumstances where there was no inherent problem of conflict with instructions issued or with duties owed to other persons.

[29] In Burnett v Grampian Fire and Rescue Service 2007 SLT 61 the owner of a third floor flat raised an action of damages against the fire service based on their alleged negligence by failing to take reasonable care for the safety of his property. It was averred that a fire had broken out in the flat below which the fire service attended and appeared to extinguish. Firefighters had forced entry into his flat to check that the fire had not spread upwards but failed to make a thorough search for traces of fire or possible causes of re-ignition. The fire continued to smoulder in the void between the two flats and the following day it re-ignited in his flat, causing substantial damage. He averred that the firefighters owed a duty to take reasonable care for the safety of premises and their contents which might reasonably foreseeably be destroyed or damaged by their acts and omissions, and that in attending and purporting to extinguish the fire prior to their departure from the tenement building and in forcing entry to his flat they owed a duty to take reasonable care for his flat and its contents, and, in particular, a duty to him to extinguish the fire at the flat below. The defenders contended that they owed the pursuer no duty of care in the circumstances. Lord Macphail, applying the Caparo test, held that the fire service had taken control of a particular situation in relation to a particular person or group of persons and therefore came under a duty of care: see in particular p70J- 71H, paras [42] - [46] and p73G-I, para [52}. The decision was largely on all fours with that of Lord Hamilton in Gibson.

[30] In the present case it would be very difficult to identify a limited class of persons to whom the alleged duty was owed as it would apply to every junction on every road, major or minor. The duty alleged was to put the junction into a proper state within 24 hours of the defect being identified. There was no situation of proximity and it would not be fair, just and reasonable to impose a duty of care. There were no averments that the defenders had actively done anything to create a danger at the locus, or that they had taken control of the locus and negligently exercised that control in some way. So far as the fairness part of the test was concerned, the duty of care averred would impose a very wide liability on cash-strapped local authorities and not give effect to the principle that road users themselves should exercise due care.

[31] Secondly, it was submitted for the defenders that the relevant statutory provisions did not give rise to any common law duty of care. It was understood that it would be submitted for the pursuer that these provisions were relevant to the fairness test. That was not, or at least should not, be the case. The guidance documents referred to by the pursuer might go to the issue of foreseeability. If drivers went through junctions without stopping there was clearly a risk of injury. The duty averred in this case was to take immediate action and rectify defects within 24 hours in every situation.

[32] Thirdly, it was submitted that in any event the particular averments of negligence were irrelevant. In a case such as this clear and specific averments of negligence were required. It was not averred that the locus was particularly dangerous, for example, because there had previously been a series of similar accidents there; that the defenders created any specific danger at the junction; that they knew or ought to have known that the Give Way sign at the junction was not obvious to road users; when signs ought to have been placed in particular positions; or that the practice of Perth and Kinross Council was the normal and ordinary practice: Perth and Kinross was one authority out of a large number and the averment did not take the pursuer nearly far enough. The averments of negligence were insufficient in the absence of averments of the common and usual practice of roads authorities; of any particular danger at the locus; or that it would have been reasonable and practicable to take the required steps in time. In Syme v Scottish Borders Council 2003 SLT 601 the pursuer raised an action of damages against the defenders in respect of injuries which he averred he had sustained when he slipped and fell on a pavement. He founded his action on statutory duty under section 34 of the Roads (Scotland) Act and on negligence at common law. In his common law case he averred that the defenders had a duty to take reasonable care to protect road users from injury due to ice or frost. Counsel for the defenders submitted that where a pursuer was seeking to recover damages from a public authority for its failure to carry out certain of its functions, which were subject to the constraints of limited financial resources, it was necessary for him to aver and prove that the failure in question was negligent by reference to the practice of other authorities in relation to such matters or, alternatively, that it involved a failure to take steps in relation to a particular and obvious danger. In dismissing the action as irrelevant, Lord Clarke held that what a pursuer required to do in pleading a case such as this was to aver not simply what could have been done, or what it might have been reasonably practicable to do, but what should have been done in the exercise of the duty of reasonable care and to set out specific averments in support thereof; such a case might possibly be made by reference to the practice of other roads authorities, as contrasted with that of the defenders, or to the fact that there were special circumstances, known to the defenders, or which ought to have been known to them, relating to the locus in question, which required that the hazard should have been dealt with prior to the time of the accident. At para [21] Lord Clarke remarked that the need to set out clear and specific averments from which a breach of duty could be inferred was made clear in what was said in Cameron v Inverness-shire County Council.

(ii) Submission for the pursuer
[33] The submission for the pursuer commenced by accepting that it was well recognised in
Scotland that the tripartite Caparo test applied in relation to the imposition of a common law duty of care: see Mitchell v Glasgow City Council 2009 SC (HL) 21, per Lord Hope at p31, para [25]. The three requirements of the test, especially the second and third ones, could shade into each other: they were not wholly separate and distinct requirements. Whether a duty was imposed depended on the circumstances of the individual case. The general proposition put forward by the pursuer was that the defenders had the power under section 1(1) of the Roads (Scotland) Act 1984 to manage and maintain the roads in their area. In the exercise of that power they had decided how this junction would be laid out and marked. There were junctions which were not marked. The road markings on the A97 indicated that traffic on that road had the right of way. The defenders had therefore set up a system of traffic flow at the locus (as in Bird v Pearce). They had decided in the exercise of their discretion under the powers given to them that traffic on the A97 had priority and had marked both roads accordingly. They therefore had a duty to take reasonable care to maintain the signs and markings which they had put in place. There was support in the authorities that reasonable care was required in the exercise of a statutory power. The case was pleaded purely at common law: in simple terms it was that, having marked the junction in the way they had, they had a duty to take reasonable care to maintain the markings.

[34] The decision of Lord Stott in Murray v Nicholls was not binding on the court. There were no averments in that case that the pursuer placed reliance on the road markings (whereas in the present case the pursuer averred that she and the van driver relied on the markings), there were no averments that the defenders knew of the state of the road markings (whereas in the present case it was averred that they knew of the state of the road markings and had issued a work order instructing that they be repainted), and it was not averred (as it was in this case) that there was no indication at all that there was a junction because of the layout of the road. Lord Stott at p195 treated the case as a pure case of omission by the road authority. Before the pursuer's action could be dismissed at this stage I had to be satisfied that it would necessarily fail at proof and bear in mind that it was only in rare and exceptional cases that an action could be disposed of on relevancy: Jamieson v Jamieson 1952 SC (HL) 44 and Miller v SSEB 1958 SC (HL) 20 per Lord Keith of Avonholm at p33. The court had to decide in this case whether there was any duty on the defenders, and, if so, what the scope of that duty was. Murray v Nicholls was decided in 1982, before important developments in the law of negligence, and should not be followed.

[35] It was well settled that a public authority could be held to be under a duty to take reasonable care if it were responsible for the creation of a danger or if there were an assumption of responsibility by it. The first point to be considered was whether they were responsible for the creation of the danger, having regard to its nature. The defenders here were responsible for the creation of the danger, or in any event assumed responsibility for it. The court had to have regard to the particular circumstances of the case before it. A previous decision which did not refer to the same circumstances could not bind the court: previous decisions could only give guidance as to the general law that had to be applied. Lord Steyn supported such an approach in Gorringe at p1059, para 2. The circumstances of the present case were that the Give Way markings were obliterated and the Give Way sign was set off to the left at the junction. The danger was that a driver proceeding on the minor road would not appreciate that he was to give way to the major road. The road markings were such that the driver on the major road rightly considered that he had right of way. The defenders were responsible for the creation of that danger by so marking the roads and then failing to maintain the markings and sign. An omission could create a danger just as readily as a positive act: Bird v Pearce per Brandon LJ at p376K onwards. At p377G-H he stated that the roads authority should have foreseen that the removal of the white lines for an appreciable period without taking any precautions in connection with their removal might cause damage or injury to persons or motor cars along the two roads concerned and "it follows that it owed a duty of care to the plaintiff to take such precautions in connection with the temporary removal of the white lines as were reasonable in the circumstances". The decision in Bird v Pearce was not overruled by the House of Lords in Gorringe because the facts in the two cases were different. Gorringe did not involve the creation of a danger by the roads authorities: the danger was due to the geography of the road, namely, a dip and a bend, which had nothing to do with the defendant roads authority. It was conceded, nevertheless, that what Lord Rodger of Earlsferry said at paras 87 and 88 in Gorringe was against the pursuer's submission that a duty of care existed in the present case. It was not the pursuer's contention in the present case that the regulations gave rise to a common law duty of care. The traffic signs in this case were regulatory, not advisory, and imposed a duty on a driver to comply with them: section 36 of the Road Traffic Act 1988. That distinguished this case from Gorringe.

[36] On the question of assumption of responsibility by the defenders, after they had carried out their inspection and decided that repainting of the road markings was required, they were under a duty to carry out the necessary work in a non-negligent manner. It was averred that on 1 April 2006 they raised a works order for the lines to be repainted. They did not thereafter take reasonable steps to repaint the lines within the appropriate length of time. There was no reason to distinguish the present case from Gibson v Orr. The duty of road users to take reasonable care applied in that case also, but on its facts it was sufficiently similar to the present case in that the authority (the police) was aware of a danger. Reliance was also placed on the decision of Lord Macphail in Burnett v Grampian Fire and Rescue Services 2007 SLT 61.

[37] On the question of proximity, there was sufficient proximity between the roads authority and road users. In Gibson v Orr Lord Hamilton said at p435B-D:

"The functions ... of roads authorities in respect of the management and maintenance of public roads are laid down, commonly by statute, in ... 'public' terms. However, it has never, so far as I am aware, been doubted in Scotland that as regards operational matters a duty of care is owed by such authorities and their servants to road users - a duty not directly under the statute but a duty arising out of the relationship between those authorities and road users created by the control vested by statute in the former over the public roads in their charge."

The defenders assumed responsibility when they painted the road and put up signs. They exercised their statutory powers to set up the junction and to inspect it monthly. A failure by them to exercise reasonable care could give rise to a private right to damages on the part of a person injured through their failure to exercise reasonable care. The failure to act which was averred could constitute a failure to take reasonable care. Carelessness arose from the practical manner of the acts performed or not performed by them (see Lord Macphail in Burnett at p70G, para [41]). The negligence founded on in the present case arose in the course of the carrying out of an operation. The defenders had control of the junction and the roads and owed a duty of reasonable care to road users once they decided to take positive action. According to the Code of Practice the defect ought to have been remedied within 24 hours. The pursuer's case was that the defenders ought to have acted before her accident.

[38] In Yetkin v London Borough of Newham [2010] EWCA Civ 776 the central reservation at a pedestrian crossing consisted of a raised flowerbed which the highway authority had planted with shrubs, bushes and plants of different shapes and sizes. Shrubs immediately adjacent to the railings bordering the access to the southbound carriageway had become thick and quite tall, with the result that a pedestrian on the central reservation wishing to cross to the southbound carriageway had a restricted view of the road to his left, particularly of the outside lane to his left (the first to be crossed), which was substantially obscured. The claimant, Mrs Yetkin, set off across the southbound carriageway without waiting for the lights to change in her favour and was struck by a car travelling in the outside lane. She sued the highway authority on the basis that the planting and/or maintenance of the shrubs had created a hazard on the highway by reason of the fact that it restricted the view of pedestrians using the crossing and that the creation of that hazard amounted to a breach of the highway authority's common law duty of care to her as a road user. The judge at first instance held that Mrs Yetkin would probably not have stepped out into the road when she did if the bushes had not impeded her view and that they played a significant part in the events leading to the accident. He nevertheless went on to hold that the claim against the highway authority must be dismissed because it did not owe a duty of care to pedestrians such as Mrs Yetkin. The Court of Appeal held (per Smith LJ at para 33) that in the circumstances of that case the highway authority had a common law duty of care towards Mrs Yetkin, notwithstanding her own negligence, that that duty was breached and that the breach was a cause of the accident, and, further, that there was no need for the judge to have considered whether the danger created by the bushes amounted to a trap or enticement.

[39] Referring to what Lord Hoffmann had said in Gorringe at para 38, Smith LJ said at para 25:

"I do not think Lord Hoffmann could have made it more plain that Gorringe was not concerned with cases where the public authority has done something positive which has or may have given rise to a common law duty of care. The House was saying nothing to gainsay the well-established law that a person who does an act which affects the safety of the highway will generally owe a duty of care to road users and if there is a breach of that duty liability will follow. It is impossible to contend that Lord Hoffmann intended to lay down any new rules or conditions about the extent or scope of the duty of care of a highway authority which creates a hazard on the highway."

[40] The circumstances of Yetkin were not unlike those of the present case in that the roads authority had acted by erecting the Give Way sign and painting the road markings but failed to maintain them so that they proved ineffective and they were therefore negligent. In this case the hazard had been created by establishing a flow of traffic and reliance on markings by a driver which gave rise to a risk which would not have been present if there had been no road signs and markings. If there had been no road markings at all both drivers would have approached the junction with caution: the evidence of the driver of the Transit van would be available at a proof. Although the case of Yetkin involved a different scenario the same principle was applicable to the circumstances of the present case.

[41] As a matter of general principle the authorities to which reference had been made supported the following propositions:

(1)   Decisions taken in the exercise of a statutory discretion which do not involve issues of policy can give rise to a claim for damages founded on negligence. The present case involved operational matters, not policy.

(2)   There is no liability where there is a pure omission, such as a failure to warn of an obvious danger or of a danger arising out of the natural layout of the road. Gorringe was concerned with a completely different situation from the present case: it could be categorised as a pure omission case as the danger arose not from what the highway authority did to the road but from the layout of the road itself. The highway authority was not under a duty to warn of the layout of the road. There was no duty to warn of obvious dangers: there would be T -junctions where it was clear that traffic on the main road had a right of way. The junction in the present case was not obvious and obscured: there was nothing to alert a driver that he was about to come to a junction. Murray was a pure omission case which turned on its own facts. It was not submitted that Lords Stott and Rodger were wrong, since they were dealing with a different situation. Lord Stott treated it as a pure omission case and distinguished it from Bird v Pearce: he restricted his decision to the particular circumstances of the case before him. What Lord Rodger had said in Gorringe at paras 85, 87 and 88 was not against the present pursuer because of the difference in the nature of the danger created. The danger here arose because drivers on the A97 thought they had right of way. It was not obvious to the pursuer that this junction was about to come up. This was not just a case of a warning: it was almost on all fours with Bird v Pearce, which had not been overruled.

(3)   A remedy was not excluded by any statutory provision.

(4)   There had to be a close scrutiny of the particular facts and circumstances of each case: Gorringe, per Lord Steyn at p1069, para 2. There required to be intense focus on the facts of this case. The decision in Bird v Pearce, rather than the decision in any other case, applied. Statement 4 of the Record provided a framework for a proof. Whether a duty existed was dependent on the particular facts of the case and there had to be an inquiry into the facts before a judgment could be made on the existence of a duty.

[42] In response to the defenders' submission on lack of specification in the pleadings, the averments made were sufficient to pass the test. The COSLA document to the effect that defects should be remedied within 24 hours had been contributed to or agreed by all local authorities as setting out the standards. The defenders' own policy was that category 1 defects required immediate attention. The practice of Perth and Kinross Council was relevant against the background of the COSLA policy, the defenders' own policy and the regulations and was indicative of a failure to take reasonable care. The defenders had inspected the locus and created a works order, but the work had not been done within 24 hours or in any event prior to the accident. The pursuer was saying that the failure by the defenders to take action within a month amounted to a failure to take reasonable care.

[43] The requirement of whether it was fair, just and reasonable that a duty should be imposed was more properly dealt with after a proof. It was only fair that a party to whom any blame attached was found liable. The only question was whether the defenders carried out their functions of inspection and maintenance with any care. The decision in this case would not set a precedent affecting other junctions. It was right and proper that the defenders should be under a duty to maintain this junction in the circumstances here. Where there were costs (г450) involved it was not for the defenders to decide that they could ignore putting the junction into a safe condition: they could not ignore obscure junctions leading onto main roads as that would have enormous repercussions on road safety. In this case two ladies had lost their lives. Reference was made to Aitken v Scottish Ambulance Service [2011] CSOH 49 at paras [48] and [68], where a proof before answer was allowed on the fair, just and reasonable test.

Discussion and conclusion

[44] The principal question which requires to be determined is whether in the circumstances the defenders owed the duty of care desiderated to road users. If they did not, the pursuer has no cause of action. The circumstances averred in the present case are not novel: similar circumstances have been considered by the courts in the cases mentioned above. It is therefore not necessary for me to approach consideration of the pleadings solely on the basis of the Caparo test, which falls to be applied when a novel situation arises in which it has to be decided whether a duty of care existed.

[45] In my opinion the circumstances in Murray v Nicholls are on all fours with the circumstances in this case. The decision is that of a Lord Ordinary and therefore not binding on me, but I find the reasoning of Lord Stott to be persuasive, convincing and sound and I propose to follow it and apply it to the circumstances of this case. Although Lord Stott reached his decision almost eight years before the House of Lords reached its decision in Caparo, it is notable that he effectively applied the Caparo test in reaching his decision. He dealt first of all with the question of reasonable foreseeability and held that the accident which happened was reasonably foreseeable in the absence of white lines on the road. He then proceeded to state that "while foreseeability is no doubt necessary to found a duty it does not follow from the mere fact of foreseeability that a duty will necessarily arise". That statement is plainly correct. He then went on to state that no case had been cited to him in which a road authority had been held to be at fault merely by reason of failure to mark white lines on the road way or erect a warning sign at a junction in a built-up area and the fact that white lines had been put there before, while relevant to the question of foreseeability, had no bearing otherwise on the existence of a duty. He considered what became the "fair, just and reasonable" requirement in the Caparo test when stating that if the pursuers' contention were accepted it would open up a wide field for actions against road authorities, such as an action by a pedestrian run down when crossing a busy thoroughfare based on the failure of the road authority to set the machinery in motion for the provision of a pedestrian crossing. He held that if the duties desiderated were to be imposed on road authorities it should be done by Parliament and not by the courts.

[46] The reasoning of Lord Stott has received the strong approval of Lord Rodger of Earlsferry in Gorringe at paras 86-88. I would apply to the circumstances of this case what Lord Rodger of Earlsferry said at paras 87-88 to the effect that by painting lines at the junction because of the perceived risk of collisions the roads authority had not somehow imposed on themselves, retrospectively, a common law duty to paint the lines or, prospectively, to paint them back if they were obliterated. What his lordship said at para 88 applies perfectly to the circumstances of this case, with the consequence that the defenders were under no duty of care to the pursuer or her mother and the pursuer's action is fundamentally irrelevant.

[47] Something must, nevertheless, be said about the decision of the Court of Appeal in Bird v Pearce. In his opinion in Murray v Nicholls Lord Stott distinguished it on the basis that the ratio for finding the road authority to be at fault was that by markings on the road they had created a pattern of traffic flow on which drivers could be expected to rely and that the obliteration of the markings caused something in the nature of a trap of which the road authority ought to have given warning. In Gorringe at p1070A, para 42, Lord Hoffmann referred to what he described as "the difficult case of Bird v Pearce" and went on at para 43 to refer to the reasoning of the Court of Appeal that by painting lines in the first place the road authority had created an expectation on the part of users of the main road that there would be lines to warn people on side-roads that they were entering a major road. He then said "This may be a rather artificial assumption and I express no view about whether the case was correctly decided." There are therefore hints from Lord Hoffmann in Gorringe that Bird v Pearce might not have been correctly decided. If pushed to express a view, I would say that Bird v Pearce was wrongly decided. It pre-dates Caparo by over 10 years and seems to have proceeded on the basis that there was a duty of care solely on the basis of reasonable foreseeability of danger. Although Eveleigh LJ recognised at p374G that "while foreseeability is necessary to found a duty, it does not follow that a duty will inevitably arise" but that "a duty is more readily to be imposed where the defendant has actively involved himself in the situation", he went on to say at p374L-375C that the roads authority in that case had, in his opinion, created a potential source of danger that did not exist before it placed white lines upon the roads as up to that moment drivers had no justification for relying upon anything other than their own appreciation of the road situation; thereafter it was under a duty of care to all road users to take reasonable care to see that the system it had imposed would not be allowed to deteriorate so as to create a hazard and it was therefore under a duty of care to the plaintiff to prevent injury from the potentially dangerous situation which resulted from the removal of the double white lines. Brandon LJ said in terms at p377G that it followed from the fact that the authority should reasonably have foreseen that removal of the white lines for an appreciable period without taking any precautions in connection with such removal might cause damage or injury to persons travelling in cars along the two roads that it owed a duty of care to the plaintiff to take such precautions in connection with the temporary removal of the white lines as were reasonable in the circumstances. Megaw LJ said at p379 that on the evidence and on the findings of the judge it was both reasonable and practicable to bring into existence a substituted warning sign to eliminate or reduce the danger created by obliterating the existing white lines and "it was therefore the authority's duty to do it". Nowhere in any of the three judgements is there any consideration of the policy question of whether such a duty should be placed on a roads authority (in contrast to Lord Stott's consideration of the point in Murray v Nicholls) or of what became the "fair, just and reasonable" requirement in the Caparo test. In my opinion, therefore, the reasoning of all three judges in Bird v Pearce is flawed and the decision reached by them is wrong. Even if that is not so, the case can be distinguished from the present one for the same reason as it was distinguished in Murray v Nicholls and Gorringe. It is not averred in this case that the pursuer had previously travelled through the junction or that she in any way relied upon the previous state of the road markings and signage. Moreover, I do not accept that by placing an order for the work to be done the defenders came under any duty to which they were not subject before placing the order: by placing the order they took no positive physical step to alter the state of the junction.

[48] In my opinion the decision of Lord Macphail in Burnett and the decision of Lord Hamilton in Gibson do not assist the pursuer as they deal with wholly different circumstances. It is not necessary to consider them when there are decisions dealing with the circumstances of the present case. Those two decisions are decisions of other Lords Ordinary and, assuming that they are correct, are not binding upon me. I must not be taken as accepting that they are correct decisions. They have not been subjected to review and it may be that they will one day have to be reconsidered at appellate level.

[49] Accordingly, in my opinion the defenders were not under the duty of care averred to the pursuer or her mother and the action is fundamentally irrelevant.

[50] Had I taken the opposite view on the question of fundamental relevancy I would have required to decide whether the pursuer's averments were lacking in specification. It seems to me that the submission for the defenders on this point overlooked one important point, namely, that the present action proceeds under Chapter 43 of the Rules of Court. Detailed pleadings are therefore not required of the pursuer. The cases referred to in the submission for the defenders proceeded as ordinary actions. Had the defenders wished more detailed averments of duty by the pursuer they should have applied by motion within 28 days of the lodging of defences under Rule of Court 43.5(1),(2) and 3(a) to have the action withdrawn from the procedure under Chapter 43 and appointed to proceed as an ordinary action having regard to the likely need for detailed pleadings. They did not do so, and they therefore cannot now complain of a lack of specification in the pursuer's averments of duty. In any event, so far as the substance of the argument on this issue is concerned, I am satisfied that, for the reasons given in the submission for the pursuer, the averments of duty made by the pursuer are adequate and pass the test of sufficient specification. Accordingly, had I not taken the view that the action was fundamentally irrelevant I would have allowed a proof.

Decision
[51] As I am of the opinion that the averments of the pursuer are fundamentally irrelevant I shall dismiss the action.


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