Scottish Court of Session Decisions

[1] The pursuer lives in Buckie and before his accident on 21 January 1993 was a fisherman. At that time he was the cook on board the MFV Faithful which was based at Lochinver. It was owned and operated by the second defenders. The skipper was Alan Phimister and the mate was George Smith. They also lived in Buckie. The fourth member of the crew was Jamie Gordon who lived in Lossiemouth. On the evening of 20 January the boat had returned to Lochinver after several days at sea. Shortly after midnight the men set off by road to return home in a VW Caravelle minibus which was owned by the second defenders. George Smith ("the first defender") was driving. In doing so he was acting in the course of his employment with the second defenders. It was a fine night and the main part of the journey was uneventful. The route followed was through Ullapool, past Inverness and eastwards along the A96. That was their usual route home. The first defender had driven it many times. At Elgin they turned off to go to Lossiemouth and dropped Jamie Gordon there. He had been sitting in the front passenger seat. They then returned to the A96 and headed towards Fochabers. At this time the pursuer was in the rear of the vehicle and Alan Phimister was on the seat in front of him, but in the row behind the driver. The pursuer had been sleeping. Not long before the accident he had woken up, got his bearings, realised that they were not far from home and gone back to sleep again.

[2] As he was driving along the A96 the first defender came up behind two British Bakeries lorries driving one behind the other in tandem. These lorries were travelling at about 40mph. A little east of Lhanbryde between Evergreen and Kennieshillock the first defender pulled out and overtook the rear lorry. He regained his own side of the road before pulling out again to overtake the leading lorry. The road bends to the left there in a long sweeping bend but it was possible to overtake safely if the road ahead was clear, which it was. However, immediately after the first defender had overtaken the leading lorry and regained his own side of the road, his vehicle hit black ice. As a result he lost control of it. It started to zig zag. It then turned over onto its side and skidded along the nearside edge of the road and the verge outside a cottage known as Castlehill Cottage. It hit a compressor which had been parked on the verge in connection with the construction of a lay-by there and pushed it some distance along the verge, in the process doing a good deal of damage to the front garden of Castlehill Cottage. The accident occurred shortly after 3.00am on Thursday 21 January 1993. The first defender and Mr Phimister were not injured but unfortunately the pursuer was.

[3] There was no material dispute about any of this. The pursuer now seeks reparation for the loss, injury and damage that he sustained. By interlocutor dated 21 October 1998 the court ordered that proof on liability be heard separately from proof on quantum and so the proof that I heard was on liability only.

[4] The pursuer claims damages jointly and severally from the first defender; from the second defenders as vicariously liable for the acts and omissions of the first defender in the course of his employment with them; from the Secretary of State for Scotland ("the third defender") as the person responsible in terms of the Roads (Scotland) Act 1984 for the management and maintenance of trunk roads in Scotland, of which the A96 is one; and from Moray Council ("the fourth defenders"), the local authority for the area in question, with whom the third defender had entered into an agreement in terms of which they undertook the gritting on, inter alia, the A96 at the locus of the accident.

[5] I shall consider the case against the first and second defenders first. The essence of this, as it came to be, was that the first defender should not have overtaken the leading bakery lorry as he did because he knew or ought to have known that the road was icy. The critical question, therefore, is whether he knew or ought to have known that the road was icy. There was no evidence that he knew it was icy and he himself said he did not remember any ice prior to the accident. It was only when he got out of the vehicle after the accident that he realised it was icy. What then is the evidence that he ought to have known it was icy prior to the accident? He himself said that the driving conditions on the A96 had been perfect. Kevin Neish, the driver of the second bakery lorry, recalled that when he had left Inverness at the start of his journey it was a typical January night. The skies were clear and conditions were favourable for driving. It was not unusually cold and it was not freezing. As the journey progressed, these conditions did not change but as he left Lhanbryde he said he saw a glistening on the road. He thought that was due to frost rather than salt crystals. For that reason he increased the distance between himself and the lorry in front but he maintained his speed at about 40mph. It was only after the accident that he realised the road was icy. William Symon, the driver of the leading lorry, said the road was dry all the way from Inverness. It did not change until about the time when the first defender overtook him, when the road looked damp. He did not at that time associate the dampness with the presence of black ice. It was only when he applied his brakes after seeing the minibus go out of control and turn over on its side that he realised the road was icy. He said the first defender would not have noticed the dampness on the road until he overtook the lorry. PC Neil Morrison was on mobile patrol that night. He had started his shift at about 10.00pm on 20 January in Elgin. He was driving to Fochabers with Sergeant Raymond Lowe to answer a call there. He had reached Lhanbryde when he was stopped by a motorist coming in the other direction, who informed him of the accident. He said he knew of no problems with the A96 that night until the accident occurred. The pavements at Elgin had been glistening with frost but not the roads. At Lhanbryde the road itself showed signs of frost near the kerb where the traffic was lighter. However, he encountered no problems with the A96 until the locus of the accident, where it was very icy. He saw no change in the road surface there but when he put his brakes on, he skidded. That was the first occasion he was aware of ice there. It took him by surprise. Sergeant Lowe said that all along its length from Elgin to the locus of the accident the A96 was glistening with frost but it was not icy and they were going quite quickly in answer to the call from Fochabers. He also could not recall any difference in the appearance of the road at the locus but when he got out of the vehicle it felt icy. That was the first time it had appeared icy on their journey.

[6] There was no other direct evidence which bore on this matter. There was no issue as to the credibility of any of these witnesses nor as to their general reliability. All in their own way were doing their best to recollect the situation and assist the court. The clear impression that I gained from them, both individually and cumulatively, was that there was nothing about the road conditions that night from which it could be said that the first defender ought to have known that the road was icy at the locus of the accident. The opinion evidence was consistent with that. Adrian Runacres, an expert led by the pursuer, whose evidence I deal with more fully later, said that from his examination of the available information the likelihood was that the only part of the road that was affected by ice was in the immediate vicinity of the locus. There was therefore nothing to warn a driver of the presence of ice beforehand. There was no other reason advanced why the first defender should not have overtaken the leading bakery lorry when he did, nor on the evidence could there have been. Although it was at a bend in the road, it was a long sweeping bend and he could see the way ahead to be clear. His speed, which he estimated at about 50-55mph, was not excessive in the known circumstances. Neither Mr Neish nor Mr Symon criticised the manner of his overtaking. PC Morrison said that one could overtake a lorry doing 40mph there without difficulty. In all these circumstances I have come to the conclusion that the pursuer has failed to prove that the first defender was in any way at fault in relation to the accident. His case against the first defender, and also against his employers, the second defenders, must therefore fail.

[7] The pursuer's case against the third and fourth defenders is more complex. However, I should mention first one aspect that relates to the third defender only. In his pleadings the pursuer avers that as part of his responsibility for the maintenance and management of the A96 in terms of the Roads (Scotland) Act 1984 the third defender knew or ought to have known that the stretch of road at the locus was often affected by ice and snow as a result of its sheltered location and that it was therefore his duty to take reasonable care to ensure that a sign was erected warning drivers of the danger of ice at the locus. In the course of the proof, however, Mrs Smith, senior counsel for the pursuer, intimated that she was no longer insisting on that part of the case. In my view she was right to do so. There was some anecdotal evidence from Mr Neish and Mr Symon, the bakery lorry drivers, that the locus was well-known for icing up, because it was sheltered by a stand of tall trees on the southside of the road and so tended not to dry out so well, but that was countered by the first defender. Moreover, there was no police evidence to that effect and no evidence that the fourth defenders as agents for the third defender had or should have had any such knowledge. The accident records for the years since 1980 revealed that this was the only one in that period on that part of the A96 which was due to icy conditions. The essence of the case that was maintained against the third defender, therefore, was that as part of his general duty to take reasonable steps to prevent ice forming on the road at the locus by gritting it with an appropriate preparation he had a duty to see to it that the fourth defenders as his agents carried out an inspection of the A96 at the locus of the accident after 8.00pm on 20 January 1993 and that they gritted the road there between 8.00pm on 20 January and 3.00am on 21 January. The essence of the case against the fourth defenders was that they should have done these things. These defenders admitted that they each had a duty to take reasonable care to prevent the ice forming which caused the accident by gritting the road there with an appropriate preparation but denied that they had failed in that duty. And, in particular, they maintained that in light of the information available to them on the day in question they were under no duty to inspect the A96 at the locus of the accident after 8.00pm or to grit the road there between 8.00pm on 20 January and 3.00am on 21 January. A failure to do those things accordingly did not amount to a failure of their more general duty of care.

[8] In this situation the evidence naturally centred on whether the system adopted generally by the fourth defenders to fulfil their general duties of maintenance and management of the A96 in their area was adequate and whether their actions on 20 and 21 January were adequate. The factual evidence in relation to this emerged in a somewhat unusual way. The pursuer first led the evidence of Mr Runacres, who had originally been on the third and fourth defenders' list of witnesses and who on the instructions of the Scottish Executive (as successors to the third defender for present purposes) had prepared a report which had been lodged in process. He had made a thorough investigation of the roads aspects of the accident and as part of that had met the fourth defenders' staff but his factual evidence of the system adopted by the fourth defenders was inevitably largely hearsay. The evidence of a second expert led by the pursuer, Michael Duffy, was entirely opinion evidence. It was not until the third and fourth defenders led evidence that firsthand factual evidence of the system adopted by the fourth defenders and how it was implemented on the night in question was led. That evidence was given by Hugh Mackay and William Dunbar.

[9] Mr Mackay at the material time was the Roads Engineer for the Direct Labour Organisation ("DLO") Department of the fourth defenders. As such, he was the Assistant Area Works Manager for the DLO. He had been in that post for some eight years. His duties included responsibility for road maintenance in Moray Division of Grampian Regional Council. The A96 at the locus of the accident was in Moray Division. The fourth defenders were responsible for Moray Division in terms of their agreement with the third defender. William Dunbar has been a supervisor with the DLO Department of the fourth defenders since about 1986. His duties included all aspects of road construction and maintenance in his area and in winter this included carrying out the instructions he was given by his superiors with regard to the gritting of roads in Moray Division.

[10] The system of road maintenance with regard to gritting which was adopted by the fourth defenders at the material time was as follows. The DLO was the organisation that actually carried out the gritting (and other road maintenance) for the fourth defenders. Mr Mackay and his superior, the Area Works Manager, who at that time was a Mr MacLean, reported to and were instructed by the Divisional Roads Surveyor, who at that time was a Mr David Dougall. Both he and the DLO were based in Elgin. Grampian Regional Council had issued a Winter Maintenance Operational Plan for 1992/93 for Moray Division and the fourth defenders had a copy of it. Grampian Regional Council also had a contract with the Meteorological Office for the provision of weather forecasts daily for all divisions in the region. It was not routine for the fourth defenders to obtain information from the weather station at the RAF base at Lossiemouth also. Something was made of this in the course of the proof by Mrs Smith but there was no evidence that the fourth defenders' system was inadequate without it or that, if it had been available, it should have led to different decisions being taken. The daily routine on weekdays (20 January 1993 was a Wednesday) was that the DLO would receive by fax an Advice Sheet from the Met. Office. On 20 January 1993 the Advice Sheet was timed at 1250 hours. This was a little earlier than usual; they were normally received between 1330 and 1430 hours. If for some reason it had not arrived by 1500 hours either Mr Mackay or Mr MacLean would telephone the Met. Office to enquire about the delay. The Advice Sheet contained a forecast of weather and road surface conditions for the following 24 hours together with advice as to what actions were recommended to meet the forecast conditions. Either Mr Mackay or Mr MacLean would also obtain the readings from the various icelert ice detection stations positioned throughout the Division - and sometimes, if thought necessary, from beyond - as to the actual road and air temperatures, the precipitation and the salt levels at the stations for the previous 24 hours. These readings were transmitted continuously to computers in the office. There was at least one sensor at these stations on the road surface. It was that one which measured the salt levels. It requires moisture to give a salt level reading; if the road was totally dry the sensor would record that but could not give a salt level reading. The icelert station at Brodie was also used as a forecast station. In addition, there were five supervisors out and about the Division supervising the workforce on the road network and Mr Mackay and/or Mr MacLean would speak to at least the two senior ones to obtain relevant information as to conditions on the ground. The supervisors would in turn be in touch with the workforce in their area and vice versa. Mr Mackay and Mr MacLean also knew, of course, what treatment, if any, the roads had previously had and when. And, very importantly, they used their local knowledge of likely conditions, which at least in Mr Mackay's case was considerable. There might also be other sources of information which would be relevant and therefore taken into account. On this occasion they had, for example, the 2-5 day and 24 hour weather forecasts for the whole of Grampian Region. At weekends, or if neither Mr Mackay nor Mr MacLean were present for some reason, the system was different but there is no need to go into that for present purposes since 20 January 1993 was a Wednesday and, although he could not remember the precise day, it was probable that Mr Mackay was present on that day. Certainly there was no suggestion to the contrary. The system for gritting in the mornings was also different, but again there is no need for present purposes to go into that.

[11] Having obtained the information from all these sources either Mr Mackay or Mr MacLean would then telephone Mr Dougall with their advice as to what action, if any, should be taken. Mr Dougall would have had access to the same information - for example, the Advice Sheet from the Met. Office was also faxed to him - and they might discuss it. Mr Dougall would then take the decision as to what action was to be taken. That decision would be taken by 3.30pm and would be communicated to the appropriate supervisor, who with the workforce on duty would carry out any action required. Normally on weekdays the workforce went off duty at 4.15pm and the supervisors between 4.15 and 4.30pm. If, however, there was pre-salting of the roads to be carried out after that, the workforce on duty for that evening and night would do it and it would be monitored by a supervisor. Only pure salt was used for pre-salting the A96, not a salt and sand mix. Nevertheless, spreading it was still referred to as gritting.

[12] Outside normal working hours the position for the whole of Grampian Region (which included, of course, Moray Division) would be monitored from premises at West Tullos, Aberdeen, which were run by Grampian Regional Council. Staff there had access to all the icelert stations in the Region and, if necessary, could contact the supervisor on duty in any area directly by telephone. That could happen, for example, if an amended Advice Sheet was received from the Met. Office which called for further action or, say, the temperature was forecast to fall and it was known from the icelert stations that there was not enough salt on the roads to prevent ice forming. If an amended Advice Sheet from the Met. Office was received out of hours by staff at West Tullos, it would in any event be faxed directly to Moray Division in Elgin as well but would not be picked up by anyone there until the office opened the following day. The police could also contact the supervisor on duty out of hours and, indeed, did so after the accident occurred.

[13] On the following morning the supervisor on duty would complete the boxes in the Advice Sheet allocated for the weather and road surface conditions which had actually been experienced since the Advice Sheet was received and also those allocated for the action which had been taken and the reasons for any variation from the advice which had been given in so far as they had not already been completed the previous afternoon when the instructions had been given as to what action should be taken. It was not the fourth defenders' policy to spot-treat a particular locus. If a decision was taken to treat a particular route, then the whole of the route was treated.

[14] That then was the system which the fourth defenders used at the material time. The primary evidence for that, as I have already said, was given by Mr Mackay and Mr Dunbar. Having seen and heard them give their evidence I had no hesitation in accepting it. I thought that they were both credible and reliable witnesses. They both seemed to me to give their evidence in an entirely straightforward way and to be at all times doing their best to assist the court. In so far as there were any discrepancies between their evidence and the hearsay evidence of Mr Runacres - and I do not think that there were any material ones - I preferred their evidence. I also preferred their evidence to that of Mr Alastair McKenzie with regard to the system in operation for the overnight period when the Elgin offices were closed. Mr McKenzie was led by the pursuer. He was a night attendant with Grampian Regional Council Roads Department at West Tullos in January 1993. He worked there during the winter period from October to April. Prior to that job he had worked for the Central Electricity Generating Board as a control room engineer working with turbines. His task at West Tullos was to cover Aberdeen City and a 10-mile radius from the city and to call out gritters if called upon to do so by the police or if the computers available to him showed that was necessary. He could also call out the Roads Engineer if the conditions were very bad. While he recognised an amended Advice Sheet for what it was, he did not handle them; they were passed directly to the Roads Engineer from the weather centre. He was on duty on the night of 20/21 January 1993. He said he was probably the only person in the room, so if he received an amended Advice Sheet which was directed to Moray Division he would pay no attention to it. He was not aware that he was being relied on by Moray Division. Mrs Smith asked me to conclude on the basis of his evidence that there was no cover for Moray Division out of hours as described by Mr Mackay and Mr Dunbar. I was not prepared to do that. As I have indicated, I preferred Mr Mackay's and Mr Dunbar's evidence to that of Mr McKenzie. I had no doubt as to Mr McKenzie's credibility but I did have some doubt as to his reliability. He had retired from his job at West Tullos in 1994 and by the time of the proof was aged 73 and attempting to recall events seven years earlier. He undoubtedly was doing is best to assist the court, but at times his memory was not as clear as it might have been. Moreover, with all respect to him, I was not prepared to accept just on his say-so and in the face of the contrary evidence of Mr Mackay and Mr Dunbar that there was actually no cover at all for Moray Division and, it would appear, the whole of the Grampian region road network outwith a 10-mile radius of Aberdeen City so far as winter gritting requirements were concerned out of normal hours. I would have required more authoritative evidence to accept that proposition. As I shall explain later, however, the point ceases to be of any significance in the context of this case in light of my conclusion that the amended Advice Sheet issued by the Met. Office on the evening of 20 January did not call for any further measures to be taken by Moray Division for the area which included the locus of the accident.

[15] Next I must consider how the system that was in place operated on 20 and 21 January 1993. Mr Dunbar was out and about in the Division on the 20^th - probably in the Laich of Moray area between Elgin and the western boundary of the Division beyond Forres - and would as usual have passed information concerning that area to Mr Mackay and/or Mr MacLean at Elgin. Mr Dunbar recalled that the road surfaces in that area had been dry virtually throughout the day. The Advice Sheet for the Moray Division below 600 feet, which included the A96 at the locus, came into the Elgin office by fax at about 1250 hours. For the period from 1.00pm on 20 January to 1.00pm on 21 January it forecast that there would be "some showers possible at first, more general rain tomorrow". The air temperature was to be above 0^oC and there would be both slight and heavy rain. Rain is prolonged rain, to be distinguished from showers. Slight rain is drizzle etc., which is unlikely to remove pre-salt. Heavy rain is rain which will wash away salt. The minimum road surface temperature was forecast to be 0^oC to -2^oC. There was an ice warning when the temperature was from +2^oC to 0^oC. The roads were forecast to be dry but also "wet/ice (viz. RST)". RST stands for Road Surface Temperature. This combination reflected the fact that showers were forecast. The minimum road surface temperatures were expected to be at 3.00am on 21 January. The recommended action for the evening was for gritters to be on stand-by and for pre-salting where roads were wet to bring the level to 10g/m². There was also to be a patrol/inspection early the following morning, that is, at about 6.00am. The historical records from the sensors at all the icelert stations for the material period were not lodged in process but those for the Fochabers station were. This was the station nearest to the locus, 1.7 miles away. These records do not of course give all the information that would be available to Mr Mackay and Mr MacLean, and Mr Dougall, when the material decisions were taken on the afternoon of 20 January - they would have information from all the icelert stations in the Division - but they do tell us that the air temperature at that station remained comfortably above 2^oC until about 5.00pm, although they had fallen from about 7^o at about midday. The road surface temperatures were lower, as would be expected. At about midday they were about 5^o dropping to a little above 1^o by about 5.00pm. Apart from some rain in the half hour between 1243 and 1313 hours there was no precipitation that afternoon and salt levels at the sensor were at 3 throughout the afternoon until about 4.00pm when they dropped to 2 and thereafter hovered between 2 and 3 for some hours. The salt levels at all the icelert stations in the Division were at 3. From this and from the other information available the readings could be taken as representative. Salt level 3 is the highest level. It is the approximate equivalent of 40g/m² and will give protection down to between -7^oC and -10^oC. Salt level 2 is the approximate equivalent of about 20g/m² and will give protection down to about -5^oC. Salt level 1 is the approximate equivalent of about 10g/m² and will give protection down to about -2^oC. Although there was no evidence as to when it was, the decision makers would also have information as to when the roads in the Division were last salted and to what level. They also had the 2-5 day forecast for the whole of Grampian Region for the period starting at midday on 19 January and the 24-hour forecast for the Region starting at 1120 hours on 20 January. The former forecast for 20 and 21 January (Wed/Thur) was as follows:

The latter forecast was in the following terms:

Last but not least the decision makers would have had the benefit of their local knowledge.

[16] In light of all the information that was available the decision taken by Mr Dougall was that no pre-salting was necessary on roads in the Division below 600 feet, including the A96. The "Actual" boxes on the Advice Sheet were completed by Mr Dunbar on the morning of 21 January, except for those relating to the gritters being on stand-by and pre-salting where roads were wet to bring the level to 10g/m² and also the entry that the salt value at all outstations was 3. These were completed by him on the afternoon of 20 January after the instructions from Mr Dougall had been issued. So far as the forecast given was concerned, everything that had been forecast in fact materialised except that there was no heavy rain. So far as the advice given was concerned, all that had been recommended was achieved, it being made clear that no further pre-salting was done to bring the level up to 10g/m² because the salt values at all the icelert stations were at level 3.

[17] At about 2115 hours on 20 January the Met. Office had issued an amended Advice Sheet for the Moray Division. As already explained, that was faxed through to the Elgin office at the time and Mr Dunbar collected it when he went in the next morning at 5.15, but he was not contacted about it the previous evening. There was in fact no need to do that because the forecast was not significantly different and the action recommended was the same and had already been taken. The "Actual" boxes on that sheet were not completed by Mr Dunbar because in the circumstances it was unnecessary to do so.

[18] Following upon the accident, when it was discovered to be icy at the locus, PC Morrison telephoned his police control room in Elgin to alert them of the danger and ask for the gritters to be sent out. A few minutes later the control room telephoned back to say that the gritters were not attending until their normal starting time in the morning. PC Morrison was not satisfied with this response and repeated his request, but with no success. It was not revealed in the evidence who it was that PC Morrison spoke to or what that person said to Mr Dunbar to whom in accordance with practice the request would be passed on. Mr Dunbar confirmed that he did receive a telephone call from the police at about 0340 hours informing him of the accident and it is recorded in his diary. There is no mention there of ice and Mr Dunbar could not recall any mention of ice by the police, although he did recall that he himself had said that he doubted if the accident could have been caused by ice as the roads were dry, to which there had been no response. Mr Dunbar also confirmed that he received a further telephone call from the police at 0530 hours. This was from Inspector Clark, who was the officer in overall charge of the Elgin area that night and who was complaining of ice at the locus at the time of the accident, adding that the situation was "not fatal yet". Mr Dunbar was in his office by this time. As he had already called the gritter out to grit that part of the A96 at 0500, no further action was called for. It only took 15-20 minutes after the time he was called out for the gritter to be leaving the depot at Elgin. In the absence of contrary evidence by Inspector Clark or whichever police officer it was who telephoned at 0340 hours, I am not prepared to hold that Mr Dunbar's evidence on that matter was wrong. In any event, it is of no relevance. When the point was first raised in evidence, its relevance was questioned but Mrs Smith said that, although it happened after the accident, the incident was relevant to indicate a casual attitude on the part of the fourth defenders to their duty to keep the roads in their area free of ice. Having now heard all the evidence, I am quite satisfied that the fourth defenders, and Mr Dunbar in particular, took their duties in this regard with all the seriousness that was appropriate for such an important duty. The point therefore now becomes of no relevance in the case.

[19] Apart from this last point there was no material dispute as to any of this. The matter was one for interpretation as to what action was required. So the next question I have to consider is whether the fourth defenders' system and their decision-making and the actions taken on 20 January measured up to the duties incumbent upon them. The two experts I mentioned above gave evidence on this issue. The first was Mr Runacres. As stated previously, he was originally on the third and fourth defenders' list of witnesses. His report, instructed by the Scottish Executive, was lodged in process. As his report indicates, Mr Runacres made a thorough investigation of the roads aspects of the accident. He was well qualified to do so. He is the manager of the Investigations and Risk Management Team at the Transport Research Laboratory, which is a recognised centre of excellence. His specialism is weather related investigations, particularly those concerning weather related road traffic accidents and highway maintenance activities. Details of his qualifications and experience are more fully set out in his report. His evidence was lengthy, taking the best part of two days. He was taken through his report in some detail by Mrs Smith. In it Mr Runacres set out the documentary information available to him. He also said that when he was in Elgin for the purposes of preparing his report, he spoke to, among others, Mr Mackay, Mr MacLean and Mr Dunbar. Mr Runacres agreed that the forecast conditions were what is known as marginal, which meant that there might well have been icy patches on untreated road surfaces, rather than widespread icy stretches. In such situations it was a difficult decision to decide whether the roads should be pre-salted. The forecast conditions, with late evening rain and overnight ground temperatures below freezing level predicted, were classic for the formation of black ice. Black ice is formed by the freezing of water on the road surface. It occurs when the temperature is at around 0^oC. The most slippery conditions occur when a film of water forms on top of the ice, which can be caused by traffic passing over the ice and the temperature on the surface of the ice slightly increasing as a result. The road surface temperature at Fochabers icelert station was about 0^oC at midnight on the night of 20/21 January but by about 3.00am had risen to about +1^oC. However, Mr Runacres was of the view that at the locus at that time the temperature was probably rather lower and, indeed, significantly below 0^oC. This was principally because there was a stand of tall coniferous trees on the south of the roadway at the locus whereas the Fochabers station is at a relatively exposed site. In the weather conditions which prevailed that night this would result in the road surface at the locus cooling more than at the icelert station. Moreover, also because of the stand of trees the drying effect of the wind on moisture on the road from any showers that night - some showers occurred in the late afternoon and early evening at the Fochabers station - would have been significantly reduced there. Consequently at the material time there was a greater likelihood of ice forming at the locus in the absence of sufficient salt to prevent it. The salt requires to be in solution to be effective as a preventative for ice. But it does not follow that the road surface has to be wet when the salt is spread. Since salt is deliquescent if the relative humidity is greater than about 80% - at the material time at the Fochabers icelert station it was 95^o - it will form a solution by absorbing moisture from the atmosphere. Mr Runacres was also of the view that any ice which did form there would have done so only shortly before the accident. No other accidents or difficulties had been reported and this was a well-trafficked road. Moreover, from the

[20] Turning to the actual decision taken by the fourth defenders on 20 January 1993 Mr Runacres agreed that since the forecast conditions for that night were marginal, a decision as to whether to pre-salt should normally be put off until later in the evening if at all possible. But at all the icelert stations in the Division the sensors were giving a salt level reading of 3 at the time the relevant decisions were taken. These indicated approximately 40g/m² of salt there against a recommended pre-salting in the Advice Sheet from the Met. Office of 10g/m². Later, when the amended Advice Sheet was issued, the recommended level of salting was also 10g/m². By this time the salt level at Fochabers had dropped to 1 and then to "Dry", but since there was no precipitation at all during this period Mr Runacres' conclusion was that that change was due to the road drying out. (Mr Mackay was of the same view). Mr Runacres considered that provided those responsible were satisfied that the salt level 3 recorded for all icelert stations was representative - which on Mr Mackay's evidence they were - it was reasonable to decide not to pre-salt further on that evening, as they did. There was no information to suggest that with that level of salt ice would form overnight on the A96. The amended Advice Sheet issued by the Met. Office on the evening of 20 January did not call for any change of decision with regard to pre-salting, nor did the reduction in the salt level at Fochabers to level 2 as a result of precipitation in the period between 1813 and 1913 hours. Level 2 was still significantly more than 10g/m². Level 2 would give protection down to around -5^oC. In all the circumstances Mr Runacres was of the view that the fourth defenders' maintenance staff had no information available to them at the material time to suggest that the road surfaces at the locus were anything other than in a satisfactory condition and with relatively high residual salt levels. It was therefore entirely reasonable for them not to have taken any further action there in the hours leading up to the accident. Mr Runacres confirmed the Conclusions set out in Part 10 of his report.

[21] The pursuer then led the evidence of Mr Duffy. Since 1997 he has been a private consultant in civil engineering matters, mainly in connection with roads. For 22 years before that he had been employed by Strathclyde Regional Council. He worked in their Roads Department dealing with roads maintenance and latterly was their senior principal engineer. As such he was responsible for roads in South Glasgow and was involved in decisions regarding de-icing of roads there in winter. His evidence was much shorter than Mr Runacres'. It was based on his reading of the documents made available to him, which appeared to be most of those lodged in process, and a site inspection. He did not speak to anyone from Moray Division and he did not have local knowledge of the area. On the basis of the 2-5 day forecast for the whole of Grampian Region issued on 19 January, and the 24 hour forecast for the Region issued on 20 January, Mr Duffy said that the conditions forecast were very marginal. These were the most difficult conditions to deal with, because one was never sure when or where ice would form on the road surface. And the most dangerous time was when ice was developing. Mr Duffy said that with this forecast the road engineer who was making the decisions would have gritters and drivers available and someone should be monitoring the situation as it developed. With the threat of local ice patches after dark, as predicted in the 24 hour forecast, these ice patches would develop in a local and unpredictable way. So there should be gritting patrols using, say, one-third of the resources patrolling the roads and physically seeing the conditions. They would grit where ice was encountered and would probably put down salt in places where they found there was no salt and they would report back to base by radio. Mr Duffy said that the amended Advice Sheet issued by the Met. Office at 2115 hours on 20 January really just repeated all the advice given earlier in the Advice Sheet issued at 1250 hours, although he thought that the situation should have been assessed again after the amended Advice Sheet had been received as part of the monitoring process he mentioned. In cross examination Mr Duffy agreed that in coming to a decision as to whether to pre-salt roads the decision maker would use his local knowledge and experience and apply it to the other information available. While he felt it was not enough to rely on the icelert station readings alone to be satisfied as to residual salt levels and thought that if in doubt it was best to patrol the roads and actually find out their condition, he accepted that he was in a poorer position to judge this than someone on the spot who had local knowledge. He agreed, however, that on the basis of the residual salt readings at the Fochabers icelert station at the material time it was correct not to order any pre-salting of the A96 in that area. Whether the decline in the residual salt reading at Fochabers station from 2 to 1 at about 2100 hours on 20 January was due to the salt drying out or to it being washed away by the rain at about 1900 hours was, he thought, debatable. He explained, though, that he was not an expert on icelerts. In re-examination Mr Duffy said that he strongly disagreed with the decision made by the fourth defenders for the night of 20/21 January. Contrary to what he had said earlier, he said he was in as good a position to judge as the actual decision maker, apart from what he described as his slight lack of local knowledge, which he did not think was significant.

[22] From this summary of the evidence given by these two experts, it can be seen that only Mr Runacres had knowledge of what the fourth defenders' system actually was with regard to winter road maintenance decisions of the kind that this case is concerned with. His evidence, which I accepted, was that the system was adequate. In so far as Mr Duffy contended for anything different, I did not accept his evidence. He began his evidence on the basis of what is said in the 2-5 day and 24 hour forecasts for the whole of Grampian Region. I thought this was unfortunate because of all the information available to the decision makers in Moray Division on 20 January 1993 these must have been among the least helpful, due to their lack of precision in terms of geography. Grampian Region is a large area in which the road network is large and very varied, perhaps most particularly for present purposes in terms of altitude. It seemed a strange context in which to consider what system should be in place. So while it may be practicable to have one-third of available resources out patrolling the road network in South Glasgow in marginal conditions, I am not prepared on the evidence I heard to hold that that would be practicable for the whole of Grampian Region, or even Moray Division, never mind that it would be necessary so as to achieve an adequate system. So far as monitoring the situation out of hours was concerned, I have held that there was a system of monitoring, albeit not the system Mr Duffy had in mind. Mr Duffy did not know about the one that existed, no doubt because he had not spoken to anyone in Moray Division, and he was not asked about it in his evidence. He did confirm, however, that the amended Advice Sheet issued by the Met. Office at 2115 hours on 20 January called for no action that had not previously been called for.

[23] I turn now to the actual decision made by the fourth defenders for the night of 20/21 January. With regard to what Mr Duffy said concerning his lack of local knowledge and his consequent ability to judge matters when compared to someone with local knowledge, I was somewhat puzzled by his change of view in the short time between his cross-examination and re-examination. I thought, however, that the former was the more accurate. What he said about it in re-examination came just after he had said he strongly disagreed with the decision which was made and may have been said to give more force to that, but I did not think it did. The difficulty was that Mr Duffy did not explain - and was not asked - what it was about the decision made by the fourth defenders that he strongly disagreed with, or why. There was no question as to the credibility of these two expert witnesses, but having seen and heard them both and considered the evidence of each of them with regard to the decision taken by the fourth defenders on the afternoon of 20 January not to pre-salt the A96 in the vicinity of the locus any further that day and to leave any patrol until the next morning, I had no hesitation in preferring and accepting Mr Runacres' evidence that that decision was, as he put it, entirely reasonable. That was because the decision makers were entitled to conclude from all the information available to them that there was already more than adequate salt on the road to meet the forecast conditions for the night.

[24] The consequence of this is that the pursuer has failed to prove his case against the third and fourth defenders also. This is, of course, unfortunate for him. There was no dispute that the accident was caused by the VW minibus going out of control and overturning when it hit black ice. There was equally no dispute that for that to happen there cannot have been any salt, or at least not enough salt, there to prevent the ice forming. Why that was so can only be a matter of speculation. There seems sometimes to be a perception that if something goes wrong then someone must be to blame and at fault and the injured party must be entitled to compensation. But that is not the law; there may be accidents in which no one is shown to have been at fault. In a case of this kind the pursuer can only succeed on the merits if one or more of the defenders is proved to have been negligent. And it is for the pursuer to prove that. For the reasons I have given I have come to the conclusion that the pursuer has failed to prove that any of the defenders was negligent. In that situation it was agreed that I should grant decree of absolvitor in favour of each of the defenders. I shall therefore repel the first plea-in-law for the pursuer and sustain the first plea-in-law for the first defender, the first plea-in-law for the second defenders, the second and third pleas-in-law for the third defender and the third and fifth pleas-in-law for the fourth defenders and assoilzie each of them from the conclusions of the Summons. I was also asked by Mr Lindsay, counsel for the fourth defenders, to repel the first plea-in-law for those defenders if that had not already been done. A search of the interlocutors revealed that it had not, so I shall repel that plea also.