Scottish Court of Session Decisions

Syme v. Scottish Borders Council [2002] ScotCS 264 (24 September 2002)

OUTER HOUSE, COURT OF SESSION
A3350/00	OPINION OF LORD CLARKE in the cause GEORGE SYME Pursuer; against SCOTTISH BORDERS COUNCIL Defenders:   ________________

 

 

Pursuer: Stevenson; Drummond Miller, W.S.

Defenders: Smart; Simpson & Marwick, W.S.

24 September 2002

Introduction

1. In this action the pursuer sues the defenders for damages, in respect of injuries which he alleges he sustained, as a result of slipping and falling on a pavement in Newtown St Boswells on 3 December 1997. He avers that the pavement was extensively affected by ice and frost. He sues the defenders as roads authority under the Roads (Scotland) Act 1984. His action is based on breach of common law duties and statutory duties which he claims were owed to him by the defenders in the circumstances. When the case came before me, for discussion on the procedure roll, counsel for the defenders sought dismissal of the action or alternatively deletion of certain parts of the pursuer's case. Counsel for the defenders ultimate position, however, came to be that she sought dismissal of the action.
2. The common law case, pled by the pursuer, in Article 3 of Condescendence, is predicated on the defenders, as roads authority, responsible for the pavement in question, having a common law duty to take reasonable care to protect road users, including pedestrians, such as the pursuer, from injury, due to ice or frost, and to avoid exposing them to unnecessary risk of injury due to these causes. It is averred by him that, as part of that duty, it was the defenders' duty to treat ice and frost by the application of grit or sand and to do so within a reasonable period of such ice and frost forming.
3. The pursuer's statutory case is set out in Article 4 of Condescendence. It turns on the provisions of section 34 of the Roads (Scotland) Act 1984. That section provides:

"A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads".

As the pursuer's written pleadings stand they do appear to be intended to present two separate and discrete cases of fault levelled at the defenders.

The legal framework
[4] In Grant v Lothian Regional Council 1988 S.L.T.533 the pursuer fell on an iced covered pavement, fracturing both elbows. She sued the relevant roads authority at common law and under section 34 of the Roads (Scotland) Act 1984. The Lord Ordinary (Lord Prosser) held, after proof, in what was apparently an optional procedure case, that the system which the roads authority had established and implemented for clearing roads and pavements of snow and ice was reasonable and that leaving the pavement of a minor road untreated for two days did not denote fault, either at common law, or under the Roads (Scotland) Act. The roads authority were, accordingly, assoilzied. In the course of his opinion Lord Prosser said, at page 533:

"Counsel for the pursuer referred first to the statutory case under section 34 of the Roads (Scotland) Act 1984, and contended that under that section the defenders were required to take steps. Here they had taken none in relation to the relevant section of pavement ... . He did not contend that there was any absolute duty or positive or necessary failure inherent in those facts. One must however look at the individual area which had been left untreated and ask if it was reasonable for the defenders to have done nothing there. On that formulation of the question, which counsel acknowledged might result in an affirmative answer, it does not appear to me that statute imposes any duty higher than or different from the duties which would arise at common law".

In Gordon v Inverness Town Council 1957 S.L.T.(Notes) 48 Lord Migdale set out the nature of the common law duty imposed on roads authorities, in Scotland, with regard to the treatment or removal of snow or ice on roads and pavements, for which they are responsible, in the following terms:

"The defenders, as the local authority responsible for the streets within the borough, are under a duty to take reasonable steps to make the streets reasonably safe for use. This duty is owed to every road user. The effects of a severe frost accompanied by snow cannot be overcome everywhere at the same time and the order in which measures such as applying sand are carried out is a matter within the discretion of the defenders and their servants. The right in the pursuer must match the duty which the law lays on the defenders. In considering a duty such as sanding frozen streets, which is owed to every member of the community, the right in each member is not to require that it be done to his or her street immediately but to have it done without unreasonable delay".

It might be observed that that statement of the common law position, means, of course, that the fact that a person slips on an iced over or frozen pavement, which has not been treated by the roads authority responsible for the pavement does not, by itself, mean that the person has a right of action against the authority. The annotator of the 1984 Act in the Current Law Statutes notes that this section gave effect to the recommendations of the Stodart Committee Report 1981 (Cmnd.8115) with respect to clearance of snow and ice from public roads. The annotator observes as follows:

"The Stodart Committee had noted the confusion arising from the overlapping responsibilities of local highway authorities and district councils as cleansing authorities. Highway authorities have a duty at common law to maintain roads in a safe condition and the Courts had extended this duty to the clearance of snow and ice from roads. District councils, however, had a statutory duty as cleansing authorities to keep pavements within the former borough areas clear of snow and ice ... The Stodart Committee recommended that this function be the sole responsibility of the authorities responsible for roads. Section 25 of the 1982 Act defines 'cleansing' in such a way as to exclude clearance of snow and ice from the functions of cleansing authorities and this section defines such operations as a function of the roads authorities. The section gives statutory form to the existing common law duty to take reasonable care to keep roads free from snow and ice. It does not extend the common law duty".

While the reasonable reader of the pursuer's written pleadings, in the present case, would, as I have previously observed, reach the conclusion that the pursuer was intending to set out two separate legal bases for his action, that is a common law case, in Article 3 of Condescendence, and a statutory case, in Article 4 of Condescendence, the latter being prefaced by the word "separatim", counsel for the pursuer, ultimately, in his submissions, appeared to accept that the statutory case added, in effect, nothing to the common law case.

4. It is of some interest to note that in the recent case of Goodes v East Sussex County Council (2000) 1 W.L.R.1356, the House of Lords held that, in England, there is neither a common law duty nor a statutory duty owed by roads authorities to individual pedestrians or drivers to keep pathways and roads under their control free of snow and ice, breach of which might sound in damages. It had been argued, in that case, that a statutory duty arose by virtue of the highway authority's duties under section 4(1) of the Highways Act 1980 to "maintain the highway". This argument failed. Lord Clyde, in the course of his speech, at page 1370, referred to the Scottish position, and in particular to the terms of section 34 of the 1984 Act. He went on to say:

"In Scottish practice the roads authority may be open to liability for personal injury caused by the presence of snow or ice making the passage of pedestrians or vehicles over pavements or roads unsafe. An example, where in the circumstances the claim failed, can be found in Grant v Lothian Regional Council 1988 S.L.T.533. The claim there was brought both under section 34 and at common law. It might be thought that there should be a liability upon a highway authority in England and Wales for damages in the event of injury occurring through a failure to take sufficient measures to preserve the safety of the highways under conditions of ice and snow. But there is no remedy there available at common law and if the statute is construed in the way I have preferred there is no remedy under the statute".

Accordingly, the pedestrian or driver crossing the border between England and Scotland will find that if he has an accident, due to an untreated road or pavement, while on the English side of the border, he will have no right to sue the relevant roads authority, for the consequences of that accident to him, however catastrophic, whereas if the accident were to occur on the other side of the border he may have such a right.

The Defenders' submissions

5. In opening her attack on the pursuer's pleadings, counsel for the defenders proceeded to make submissions in relation to the statutory case set out in Article 4 of Condescendence. She did so, on the basis that it did appear to seek to establish a separate and distinct case from any common law case. As I have already indicated, standing the way in which the pleadings are framed, I consider that she was well entitled to proceed on that basis. Counsel for the defenders' point with regard to this case, as it is pled, was that section 34 did not provide an individual, such as the pursuer, with a right of action. In support of that submission, counsel relied on the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC (1995) 2 A.C.633. That case raised the question as to whether a local authority, charged under statute with the duty to safeguard and promote the welfare of children, could be sued, in damages, by persons who allege that they had been injured by certain authorities' failures in carrying out that duty. As Lord Browne-Wilkinson himself recognised at the beginning of his speech at page 730C-D the question, to what extent, and in what circumstances, are authorities, charged with statutory duties, to be held liable in damages to individuals injured by the authority's failure properly to perform such duties, is a difficult one. It is one which has been the subject of considerable judicial and academic controversy over the years in various jurisdictions. Lord Browne-Wilkinson proceeded to set out, in some more detail, the nature of the question and the general approach, which he considered required to be adopted by the courts when faced with it. At page 730F he said:

"The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function, has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. The claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties ...".

While Scots law does not recognise the public law/private law dichotomy in the way which English law does for the purposes of determining, for example, what matters are amenable to judicial review, I, nevertheless, consider that the distinction drawn by Lord Browne-Wilkinson does have its counterpart in Scotland in that it is essential to recognise that the non-performance or misperformance of statutory duties, by public authorities, may be justiciable only by means of judicial review and by the application of the substantive law which has been developed in that field, as opposed to an ordinary action for damages based on statutory "fault" and it is essential not to confuse the two. Damages may, of course, be competently awarded in an appropriate case, where the acts or decisions of authorities have been the subject of a successful attack by way of judicial review, and the petitioner can show that he has suffered loss and damage thereby. There are few reported cases of such awards having been made, but, in any event, that possibility does not justify, in my judgement, any blurring of the distinction as to the juridical basis on which damages might be sought.

6. Lord Browne-Wilkinson went on to say that private law claims for damages can be classified into four different categories namely "(A) actions for breach of statutory duties simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of a statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful". It is of importance, in my judgement, to note that Lord Browne-Wilkinson went on immediately to say that in setting out these categories he was not attempting to provide any general statement of the applicable law but was simply "seeking to set out a logical approach to the wide ranging arguments advanced in these appeals". Counsel for the defenders submitted that, in the present case, the pursuer's averments, relying on section 34, amounted to what, using Lord Browne-Wilkinson's language, was a claim for damages for breach of statutory duty simpliciter, rather than any of the other categories described by Lord Browne-Wilkinson. There were no averments of a negligent breach of statutory duty (Lord Browne-Wilkinson's class B), nor were there averments in Article 4 of a common law duty of care arising from the imposition of the statutory duty or from the performance of it (Lord Browne-Wilkinson's class C). Lord Browne-Wilkinson's class D case clearly did not arise from the pursuer's pleadings.
7. In relation to his class A category, Lord Browne-Wilkinson said this, at page 731C:

"This category comprises those cases where the statement of claim alleges simply (a) the statutory duty, (b) a breach of that duty, causing (c) damage to the plaintiff. The cause of action depends neither on proof of any breach of the plaintiff's common law rights nor or any allegations of carelessness by the defendant. The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficulty. The basic proposition is that in the ordinary cause a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty, that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v Wandsworth Stadium Limited (1949) A.C.398; Lonrho Limited v Shell Petroleum Co Limited (No.2) (1982) A.C.173. However the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by statutes of criminal penalties for any breach: see Groves v Wimborne (Lord) (1898) 2 Q.B.402".

His Lordship then, at page 732B said as follows:

"The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions".

Counsel for the defenders submitted that on no reading of the provisions of section 34, could it be said that it showed that the statutory duty imposed was one for the protection of a limited class of the public and that Parliament had intended to confer on members of that class a private right of action for breach of the duty in question. The section was concerned with a general administrative function imposed on the roads authority and involved an exercise of administrative discretion. The pursuer, therefore, fell at the first hurdle in seeking to set up a case based on breach of statutory duty simpliciter, for that reason.

8. The pursuer could, moreover, not argue that he had pled a relevant category B case, which allowed him to seek damages in an ordinary action. There was nothing in the averments to the effect that the defenders had carelessly performed their statutory duty and, in any event, as Lord Browne-Wilkinson had pointed out at page 734H-735A in his speech in X (Minors) cited above:

"The correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient".

The pursuer, in the present case, did not make averments in Article 4, to the effect that the statutory framework itself created a common law duty, which the authority in the exercise of its statutory powers and duties had breached. Equally, no category C case had been relevantly pled by the pursuer. The section conferred a discretion on the defenders. As Lord Browne-Wilkinson said in discussing class C cases, at page 736A-B of his speech:

"Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon a local authority, there is no a priori reason for excluding all common law liability".

His Lordship reformulated that proposition later in his speech at page 737E where he said:

"It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by the statute, the first requirement is to show that the decision was outside the ambit of the discretion all together: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff".

In a later passage in his speech, Lord Browne-Wilkinson said this (at page 738G-H):

"Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise their discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of the decisions involving policy matters cannot exist".

Earlier on, at page 737F-G, Lord Browne-Wilkinson had included among "policy matters" "the allocation of finite financial resources" between the different calls made upon the authority charged with the discretionary powers. In the present case, I observe, that the statutory provision in question, section 34, in terms makes the steps taken by the roads authority to prevent snow and ice endangering the safe passage of pedestrians and drivers, a matter of their unqualified discretion and it is for them, and them alone, to judge as to what steps are reasonable in the circumstances, no doubt having regard to, among other things, their available financial and other resources. Counsel for the defenders submitted that, having regard to the dicta cited above from the speech of Lord Browne-Wilkinson in X (Minors) the pursuer had not pled a case which would fall within his Lordship's class C, since there was no suggestion that, in exercising their powers under section 34, in the way they did, and as described in the pursuer's averments, the defenders had acted outwith the wide discretion conferred by section 34. Accordingly the pursuer had, altogether, failed to plead a relevant case based on the statutory position, which gave him a separate and distinct basis of claim, apart from any common law case pled in Article 3 of Condescendence.

9. The submissions which I have just recorded, were directed by counsel for the defenders, at the pursuer's averments contained in Article 4 of Condescendence from its commencement at page 11C-D to the words "separatim esto" at page 15A-B. Those averments, in summary, after setting out the terms of section 34 and averring that the locus of the accident fell within the definition of a public road provided in the Act, go on to narrate that, at the time of the accident the defenders had in place a "Winter Maintenance Plan" for the treatment of roads and footpaths in their area. The plan is produced and incorporated into the pleadings and was placed before me. It is a lengthy and highly detailed document which gives every appearance, at least, of having been compiled with considerable thought and attention. The pursuer's averments refer to the fact that action to be taken in terms of that plan by the defenders was to be based on weather forecast information "received from the Meteorological Office supplied by the ICELERT system and weather radar". It is then averred that a Winter Operations Centre was to be established for the purpose of monitoring weather and road conditions, distributing information and receiving reports to assist in achieving the aims of the plan. It is further averred that the Winter Operations Centre was to be manned 24 hours a day during the winter months. The pursuer then makes the following averments:

"In terms of said plan the defenders had a scheme of priorities for the order in which the different classes of roads in their area would be treated. Reference is made to paragraph 2.4 of said plan which states 'salting and gritting operations throughout the Scottish Borders will be carried out broadly on the basis of the following hierarchical priority; - (a) trunk routes, (b) Class I and II routes, service bus routes and routes to the Hospitals, (c) known trouble spots with emphasis on school bus routes, (d) other classified roads and shopping street footways, (e) unclassified roads, and (f) housing scheme footways'."

The pursuer does not aver that, prior to the accident to him, the defenders failed to carry out salting and gritting operations in accordance with the scheme of priorities contained in that plan. Indeed what he does aver, at page 15E is 'the defenders' priority routes were treated by gritting or salting prior to 9.00am on 3 December 1997'.

10. The pursuer avers at page 13C-D morning gritting was to be arranged on priority routes starting at 6am and Area Works Managers were to report action taken to the defenders' Winter Operation Centre by 9am each morning. In terms of para. 2.6 of the plan during winter weather conditions information on action taken was to be transmitted by the Area Works Manager to the Winter Operations Centre. The head of operations was to report to the director by 9.15am each day after reports had been received from Area Works Managers. The defenders expected action, as was appropriate, on any particular morning to have been completed by 9am. The pursuer then goes on to aver that "it would in any event be reasonable that the salting or gritting of footways such as those of Tweedside Road, being a shopping street, would be completed by the time the shops and businesses thereon opened, that is to say by 9am. In the event, for whatever reason, salting or gritting of said footways was not completed by 9am it would be reasonable to treat said footpaths as soon as practicable thereafter". In Article 2 of Condescendence, it is averred by the pursuer, that gritting of footways in Newtown St Boswells was undertaken by the defenders at or about 11am on 3 December 1997, that is approximately 45 minutes after the pursuer avers he had his accident.
11. After making some further averments in Article 4 of Condescendence concerning the use to be made by the defenders of weather forecasts and information, the pursuer avers as follows:

"The defenders on this occasion failed to take such steps as they themselves considered reasonable to prevent ice endangering the safe passage of pedestrians over public roads. The footways at the locus were not gritted on 2 December 1997. They were not salted or gritted on the morning of 3 December 1997 prior to the pursuer's accident. Accordingly, the defenders were in breach of their duty under section 34 of said Act. By their said breach of duty the defenders caused said accident".

12. The pursuer's statutory case has a separate chapter, which commences with the words "separatim esto" at page 15A-B. Put shortly, this amounts to claiming that the defenders were in breach of their section 34 duty by placing the locus of the accident in the category which they did for the purposes of prioritising their work. He furthermore avers that, in any event, the footpath in question should have been gritted, in accordance with the plan, in the course of 2 December 1997. Counsel for the defenders submitted that, in the first part of this chapter of the pursuer's case, he was attempting to question a discretionary decision taken by the defenders and to criticise them for a failure in exercising reasonable care in this regard. But, as Lord Browne-Wilkinson had made clear in the X (Minors) case, the careless exercise of a discretionary statutory power is not sufficient to give rise to a claim for damages. The pursuer's averments, in this connection, in reality, had the look of an attempt to bring in Wednesbury unreasonableness to support his case, which was not appropriate in an ordinary action for damages, as opposed to an application for judicial review. There were no averments by the pursuer that what the defenders did was outwith the ambit of their discretion. In this respect counsel for the defenders reminded me of the dictum of Lord Browne-Wilkinson in X (Minors) at page 737E, namely,

"It follows that in seeking to establish as local authorities liable at common law for negligence in the exercise of the discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion all together: if it was, a local authority cannot itself be in breach of any duty of care owed to the plaintiff".

Counsel for the defenders went on to submit that the scheme which the defenders had devised for dealing with ice and snow on roads and footpaths, was made in the exercise of a discretion which, of necessity, inferred the exercise of judgment in relation to priorities. The fixing of a hierarchy of priorities is necessary by reason of the limited resources available to authorities. Such an exercise of discretion was not justiciable in an ordinary action for damages unless abuse of discretion or complete failure to act at all under the statutory provisions, was averred, which was not the present case. I was referred by counsel for the defenders to the case of Stovin v Wise 1996 A.C.923. On the matter of discretion, in this field, counsel also referred me to what Lord Prosser had said in Grant cited above at page 534 namely:

"It appears to me that an authority such as the defenders must plainly have a discretion to decide upon priorities, and that it is inevitable that those areas which are treated as of low priority may remain untreated for at least a matter of days".

Counsel for the defenders also drew my attention to the unreported decision of Temporary Judge Coutts, Q.C., in Taylor v Glasgow City Council 14 March 1997. While the discussion in that case seems to have been focused, to a large extent, on the provisions of section 34, it appears to me that when the Temporary Judge came to apply the test to be applied in such cases, at page 3 of his Opinion, he was simply applying the common law of negligence. I was also referred to the decision of the same judge in Bennett v J Lamont & Sons 2000 S.L.T.17. Counsel for the defenders submitted that even a departure by the defenders from their own plan because, for example, of extreme conditions they faced, would not give rise, per se to a claim for damages. For all these reasons, it was submitted, that the Article 4 case was irrelevant in its entirety.

13. Counsel for the defenders then turned to deal with the pursuer's common law case as set out in Article 3 of Condescendence. It was insufficient, she contended, for the pursuer to aver, as he did, in Article 3 of Condescendence that it was reasonably foreseeable that failure to treat ice and frost at the locus of the accident would lead to an accident such as that which occurred to the pursuer. He did go on to aver that it would have been reasonable to treat the locus "in the course of 2 December and again by 9am on the morning of 3 December 1997" but this was said to be "under reference to the averments contained in Article IV of Condescendence". It was not clear what was meant by this. It was totally lacking in notice as to whether the whole or some of the averments in Article 4 were being referred to, and, in any event, to what effect and for what purpose, in relation to the common law case. What the pursuer required to do, to plead a relevant case, was set out by the court in the case of Gibson v Strathclyde Regional Council 1993 S.L.T.1243. In that case a woman had sustained injury when she stepped into an uncovered drain inspection hole in a pavement in the centre of Glasgow. She raised an action of damages against the defenders, as the local authority, having responsibility for the upkeep and maintenance of public roads and pavements in Glasgow. Her case was based on the defenders' failure to take reasonable care to keep the inspection hole covered. The pursuer's pleadings included an averment to the effect "it was reasonable and practicable to inspect daily said drains" which followed an averment that it was the defenders' duty to inspect regularly drains such as the said drain to ensure they were covered. The Second Division dismissed the pursuer's action on the basis that even if the pursuer succeeded in establishing all the facts which she averred, she was bound to fail, since the court was not entitled to hold that daily inspection was reasonable or practicable in the absence of averments to support such a conclusion. In his judgment Lord Justice Clerk Ross at page 1246, after having referred to the test of relevancy as set out in Jamieson v Jamieson, 1952 S.C.(H.L.) 44 cited what Lord Reid said in that case at page 63, namely:

"If it can be shown that, even if the pursuer succeeds in proving all that he avers, still his case must fail, it appears to me highly advantageous that time and money should not be spent on fruitless enquiry into the facts".

Lord Justice Clerk Ross then continued:

"It appears to me, however, that the present case is a case where it can properly be said that even if the pursuer succeeds in establishing all the facts which she has averred, she will be bound to fail. I say that because it is not disputed that the pursuer could not succeed unless it was established that it was reasonable or practicable to inspect the drains daily. Having regard to the fact that the defenders maintain that their system was for monthly inspection and that they do not in fact appear to have inspected the drain for a period of almost 7 weeks, the pursuer might have chosen to make a case based upon failure to carry out the system of monthly inspections. Alternatively, having regard to the fact that the pursuer maintains that the cover was missing from the drain for at least 14 days, she might have made a case for inspections at weekly or 10 day intervals. The advantage of such a case from the pursuer's point of view would be that if such a duty were established, there would be every prospect of also establishing that if the defenders had performed that duty the accident would not have occurred. However that may be, the pursuer has chosen in this case to peril her case upon the assertion that it was reasonable and practicable to inspect the drains daily..... However, I do not accept that where such an averment has been made the court is entitled to hold that daily inspection was reasonable or practicable in the absence of averments to support such a conclusion. If averments had been made to the effect that it was the practice among other local authorities with the responsibility for the maintenance and upkeep of drains to carry out daily inspections, that, in my opinion, would have supported the pursuer's case that it was reasonable and practicable to inspect such drains daily. But no such averments have been made. Likewise if the pursuer had been in a position to aver some special circumstances existing at the locus, such averments might have been sufficient to support the assertion that it was reasonable and practicable to inspect the drains daily. For example, if the pursuer had been in a position to say that in the past, covers had frequently been removed from drains in this locality, or that the defenders had received numerous complaints regarding the absence of drain covers here, that too might have supported the case for daily inspections. But no such averments have been made, and since there are no such averments, the pursuer could not lead any evidence at the proof to that effect".

In the same case Lord Murray said at page 1247:

"It appears to me that, in the absence of averments of practice or of particular circumstances from which it may reasonably be inferred that daily inspection of city pavements is both reasonable and practicable, what is asserted .... is simply that daily inspection is possible. To make purely formal averments that a possibility is reasonable and practicable adds nothing, in my opinion, to the essential emptiness of the assertion in the absence of further specification or of an alternative case based upon some wider hypothesis, proof based upon these averments would be bound to fail".

In a later passage in his judgment Lord Murray said:

"In the absence of averments of fact from which a duty in law may reasonably be inferred, no duty in law at all is averred. For a relevant case in a situation like the present, there require to be averments of fact for which a duty in law can be inferred and further averments of fact from which it can be inferred that there was a failure on the part of the defender to fulfil that duty".

Lord Weir at pages 1247-1248 was to somewhat similar effect. Counsel for the defenders took from that case that where a pursuer is seeking to recover damages from a public authority, for its failure to carry out certain of its functions, which are subject to the constraints of limited financial resources, it is necessary for the pursuer 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. An example of a pursuer leading evidence of what was the practice adopted in other areas, with regard to gritting, as contrasted to what the defenders themselves had carried out, was to be seen in the case of Taylor v Smith 2000 R.E.P. LR 75. In the present case the pursuer was not offering to prove anything of that kind. He merely averred that it would have been reasonable or practicable to have had the locus gritted prior to the pursuer's accident. Proof that something was reasonable or practicable would not in itself establish that the defenders had failed in the exercise of their duty of reasonable care. The pursuer's common law, as set out in Article 3 of Condescendence was, accordingly irrelevant and the case, therefore, as a whole should be dismissed.

The Pursuer's submissions
[15] In reply to the full and detailed submissions made on behalf of the defenders, counsel for the pursuer's submissions were relatively brief. He sought a proof before answer. He emphasised the factual circumstances of the accident as averred by the pursuer. As I have previously noted, counsel for the pursuer's position came to be that the common law and statutory duty cases, in the end, amounted to very much the same thing. As the pursuer avers, at page 14D-E, the pavement where the pursuer fell, should have been treated, at the latest by midnight 2 December and this was something the defenders themselves recognised or should have recognised because of the weather prevailing on that date. That was the pursuer's primary case. The other breaches of statutory duty averred by the pursuer were there as alternative bases for his claim. The defenders owed the pursuer a duty of care, it was submitted, in the implementation of their plan. The pursuer did not seek to challenge the plan itself but sought to challenge its implementation and the operation of it by the defenders. The pursuer was offering to prove that no reasonable authority would have categorised this locus, for the purpose of implementing the plan, in the way the defenders had done in this case. In any event, the ultimate position of the pursuer was that, even if the categorisation of the locus was appropriate, the locus should have been gritted by midnight on 2 December at the latest. Here again counsel for the pursuer reiterated that the common law duties and statutory duties he relied upon amounted "largely to the same thing". The pursuer was not advancing a case of absolute duty and accepted that the defenders operated within the constraints of limited resources. Counsel for the pursuer sought to distinguish the present case from the circumstances of the case of Gibson by saying that the present case was not an "inspection" case. The hazard in question was a known and widespread throughout the defenders' region. I should observe that the hazard was, of course, not created by the defenders but by nature itself. Cases like the present are concerned with the extent to which a roads authority has a duty to remove the hazard, once it has arisen. I was reminded by counsel that, in Scotland, in a long line of personal injury cases stretching from Jamieson v Jamieson cited above and Miller v SSEB, 1958 S.C.(H.L.) 20, the courts have made it clear that such actions have not to be dismissed without inquiry, unless it could be said that the pursuer was bound to fail after any such inquiry. Counsel for the pursuer referred me again to the annotation to section 34 in the Current Law version of the 1984 Act and said that he accepted that what was said in the annotation was an accurate statement of the legal position, in particular that the section was simply a statutory recognition of the common law position. He referred me to the cases of O'Keefe v Council of the City of Edinburgh 1911 S.C.18 and Cameron v County Council of Inverness 1935 S.L.T.281 for the position prior to the 1984 Act.

14. In O'Keefe the Lord President at page 20 said this:

"It is impossible to maintain that a mere averment that a person in Edinburgh slipped in the month of January on a piece of ice on the pavement is tantamount to an averment of negligence on the part of the roads authority - that is to say, the Town Council. It would be putting upon them a duty to keep every street in Edinburgh free of ice".

In the case of Cameron the pursuer sued the roads authority for damages for loss suffered by him as a result of certain roads having been blocked by snow. He did not sue in common law negligence, but relied on statutory provisions charging the authority with duties of management and maintenance of the highways within their area. The sheriff held that, having regard to certain English authorities, a duty to maintain the highway embraced a duty to remove snow from it. He, accordingly, considered that the pursuer's case, averred on that basis, could not be said to be irrelevant and allowed a proof before answer. It should be noted that, as previously observed, the House of Lords in the case of Goodes have recently decided that the words "maintain the highway" contained in the Highways Act 1980 do not include a duty to prevent the formation of ice or to remove the accumulation of snow on the road. It must, accordingly, be doubtful now as to whether the sheriff's approach to the English authorities can be regarded as correct. In any event, the defenders in the case of Cameron appealed to the Inner House. Lord President Clyde at page 286 said this:

"It is impossible to read the record without seeing that the idea which inspired the draftsman was that, in as much as it is the duty of the County Council as a road authority to maintain and keep fit for traffic the roads on the county list, therefore the County Council are under an absolute obligation to keep the roads clear of obstruction by snow in winter time; and that, in the event of a breach of that obligation - because for four days in the case of one, and seven days in the case of the other, the roads were blocked - the pursuer is entitled to regard the County Council as the true authors of his loss. The pursuer no doubt felt himself compelled to state his case in this way because of the difficulty (in the circumstances of the case) of alleging any negligence on the part of the Council or their servants. The snowstorm was widespread, and all the roads over a large area were equally blocked with the two in which the pursuer was specially interested. Not unnaturally the Council's roadmen directed their attention, in the first instance, to opening the main lines of traffic in the district; and, notwithstanding the demands of the pursuer, completed that part of their work before turning their efforts to less important roads such as the two in which the pursuer was specially interested. 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 statutory responsibility of the County Council so high as this".

His Lordship then continued as follows:

"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 connection, 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 those roads and kept 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 all together 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".

Lastly Lord President Clyde said this:

"Although the action is not laid on negligence, I should (like the sheriff) have been disposed to treat it as if it had been so laid, if the circumstances alleged had presented any relevant issue or negligence occurring in the course of the Council's administration. .... There is not a single averment on record which points to negligence on the part of any of the Council's servants. It was, indeed, argued on the pursuer's behalf that the County Council ought to have at command a staff large and mobile enough to undertake simultaneous clearing operations over the whole of its area. But it would be a waste of time to send the case to proof on a point of that kind".

Lord Blackburn at page 287, in the same case, said this:

"In this case the sheriff has allowed a proof, and no doubt that would have been the proper form of procedure had the action contained relevant and specific averments that the defenders had been negligent in carrying out their statutory duties and that they were consequently in fault. But the only question raised on the record is that which was dealt with by the sheriff substitute, namely, that there was a specific statutory obligation upon the defenders as road trustees to remove an obstruction caused by snow on a particular road immediately they were asked to do so. That is perfectly obvious in a county like Inverness, which has 1,500 miles of roads and is subject to constant snowstorms, that it would be quite impossible for the authorities to discharge such a duty on all roads at one and the same time. There is, of course, no doubt that it is their duty to see that, as far as possible, the roads shall be kept clear and available for the public. But they are entitled to exercise their own discretion as how best to discharge this duty in the public interest, and it is for them to judge in what order they should proceed to deal with the roads that are obstructed. If they fail to exercise that discretion properly, anyone who thinks that, due to their negligence, he has suffered loss would be justified in raising an action against them, and it would be for the court to decide whether or not the powers and discretion which are possessed by the road authorities had been exercise wisely. But this is not a case which raises a question of that kind at all, for the pursuer maintains, that whatever the circumstances may have been, the defenders were bound to keep his road clear of snow".

The thrust of that passage from the Opinion of Lord Blackburn makes it clear, in my judgement that, like the Lord President, what his Lordship was looking for in the pursuer's averments, and which he found wanting, were averments amounting to common law negligence. I would, myself, have some doubt as to whether, however, his Lordship's remark that it would be for the court to decide whether or not the powers and discretion possessed by the authority had been exercised "wisely" is a sound proposition. Lord Fleming at page 287 was to the following effect:

"A road authority are no doubt liable to a member of the public for any damage which he may sustain in consequence of a dangerous obstruction which their servants or others for whom they are responsible have negligently allowed to be upon a road under their charge. But that is not the kind of case we have to consider here. The case which the pursuer seeks to make is that the road to his farm was blocked by snow, that the defenders failed to remove the obstruction, and that he was unable to get food to his stock, and in consequence sustained damage. The defenders are charged with the statutory duty of managing and maintaining the roads in the county, and in the exercise of that administrative duty they must necessarily have a wide discretion. The pursuer's case, when analysed, seems to be based upon the idea that there was an absolute duty on the part of a road authority to remove immediately all obstructions on the roads which were due to a fall of snow. No authority was cited for the view that such a duty rests on a road authority, and I am unable to find any warrant for it in the statutory provisions. Moreover, the pursuer has not relevantly averred any negligence on the part of the defenders or of their officials or servants".

15. Counsel for the pursuer submitted that these case provided authority for the proposition that a common law case of negligence could be pled against a road authority for their failure to remove ice or snow from the roads and pavements under their charge. I, of course, accept that but as I shall venture to explain later it seems to me that the significance of the Cameron case, for present purposes, is somewhat greater than that. Some considerable reliance was placed by counsel for the pursuer on the case of McGeouch v Strathclyde Regional Council 1985 S.L.T.321. In that case the pursuer sued the roads authority, in common law negligence, for injuries she sustained as a result of a fall on an icy and steeply sloping road which had not been gritted by the authority, although at least four complaints had been made about the condition of the road in the three days prior to the pursuer's accident. The sheriff had dismissed the action as irrelevant, on the footing that it was difficult to state a relevant case against a highway authority, in the absence of specific averments of a particular negligent act or omission, and also that by her averments the pursuer was arrogating to herself the discretionary function which belonged to the highway authority than whom no one was better placed to exercise it. The pursuer appealed. The Second Division allowed the appeal and remitted the case to the sheriff for proof before answer. In giving the judgment of the Court, Lord Justice Clerk Wheatley, at page 322 said as follows:

"Counsel for the defenders maintained that the order in which the defenders determined the priority in the task of gritting the roads was a matter of discretionary policy for the defenders, and that was something which the pursuer could not pre-empt - a submission which the sheriff seemed to find acceptable. It is clear from her pleadings that the pursuer sought to do no such thing. The defenders aver that they have such a discretionary policy. The pursuer, in her averments quoted supra, acknowledges that. What she goes on to aver, however, is that, subject to the priority to be given to main roads and known accident blackspots, attention should be given to road surfaces where there was a reported risk of danger. This clearly identifies the pursuer's case in the circumstances averred. She goes on to aver that the defenders failed in this duty and so caused the accident, which would not have occurred if the defenders had not so failed. This, in our view, is sufficient to meet the sheriff's desideration of a specific act of negligence. This was not a pre-emption of policy. This was a complaint in relation to the operation of the policy. In that situation we are of the opinion that the pursuer's averments are sufficient to warrant an inquiry ...."

Counsel for the pursuer submitted that I should adopt the approach taken by the court in that case in identifying what the pursuer's case was. The pursuer was not seeking to dictate what the defenders' policy regarding road clearing and gritting should be but making a complaint about the implementation of that policy. He recognised that in the McGeouch case the pursuer had averred that the danger had been specifically brought to the authority's attention, no fewer than three times, before the pursuer's accident occurred, and it is clear, in my judgement, that the court's decision turned on the fact that the pursuer had pled a case based on "a reported risk of danger". Nevertheless, counsel for the pursuer contended that he could still take from that case support for what he submitted was the pursuer's position in the present case. The defenders had a policy. It was a reasonable policy, but they had failed to implement it in the present case, therefore, they were at fault. The pursuer's case came down ultimately to a narrow issue which was whether or not in the implementation of their own system the defenders should have classified the footpath in such a way as to ensure its treatment prior to the time of the pursuer's accident or, alternatively, whether or not, in any event, the particular pavement should have been treated at an earlier time on the day in question. The pursuer should not be prevented from establishing the factual basis of his case, at a proof before answer, in a situation where the defenders said they had a system in place. It was not for them to say they had no duty to implement it.

Decision
[18] I am satisfied that the defenders are correct in submitting that none of what is averred by the pursuer in Article 4 up until the words "separatim esto" give rises to a right in the pursuer to claim damages from the defenders for breach of statutory duty, as opposed to his having a claim based on common law principles. I cannot read section 34 as being an expression of Parliament's intention to confer on individuals such as the pursuer, in an ordinary action of damages, a right to sue the roads authorities for breach of statutory duty in failing to grit or clear roads or pathways affected by snow or ice, separate, additional and distinct from existing common law rights. It appears to me that the purpose of section 34, as the annotator to the current law version of the statute remarks, was to make clear who, among various authorities, was to be responsible for carrying out common law duties in that respect while leaving, as far as statute was concerned, the matter of carrying out those duties as something for the complete discretion of the authority. In the present case the pursuer does not aver that the defenders failed to take any steps under section 34. On the contrary, he avers that they had a detailed plan and set out a scheme whereby the roads and pathways, in what is a large geographical area, would be attended to in order of priority set by them. He does not aver that they had failed to implement that scheme on the day in question. Indeed, as previously noted, he himself avers that "the defenders' priority routes were treated by gritting or salting prior to 9am on 3 December 1997". Even if his averments could be read to the effect, that they had failed to implement their own plan, which I do not accept, that would not, per se, in my judgement, have given rise to a claim for damages for breach of statutory duty, separate from any common law duty of care, since it may have been perfectly reasonable, in the exercise of the discretion conferred on the defenders, on the day in question, for the defenders to deviate from the plan. In sum, in my opinion, while it has been the practice to plead in such cases, a common law case, and a separate statutory case, based on section 34, I am far from being satisfied that section 34 does, in fact, provide an alternative substantive basis of claim to that which already exists at common law. To put the matter another way, if the pursuer is unable to aver a relevant common law case, resort to section 34 may not avail him, in an ordinary action for damages, whatever remedies that section might give him by way of judicial review. In this respect it is, in my judgement, of some interest that, as noted above, Lord Prosser in the case of Grant had some difficulty in seeing any distinction between the case based on the statute and a case based on common law negligence, at least, in the way that the matter was put to him in that case. In this area of the law, the chariot, in my judgement, neither has nor requires a fourth wheel.

16. I approach this question, in the context of the present case, primarily on the construction of section 34 and, having regard to the existence of common law duties, in the law of Scotland, but I am happy to recognise that, applying the analysis adopted by Lord Browne-Wilkinson in the X (Minors) case, as I was invited to do by counsel for the defenders would lead me to the same result.
17. I am equally satisfied that the averments of the defenders beginning at page 15A with the words "separatim esto" to the end of Article 4 of Condescendence, do not instruct a relevant case based on breach of statutory duty. Those pleadings, in my opinion, do no more than an attempt to have reviewed the wide and unconditional statutory discretion conferred on the defenders by section 34. It is not a case where the pursuer avers a complete failure by the defenders to exercise that discretion, nor was counsel for the pursuer able to place before me any reason at all why the statutory provisions should be read as providing for compensation to be paid to persons who suffer loss because of the way the discretion was exercised, absent common law negligence. In my judgement, to submit, as counsel for the pursuer did, that a failure by the defenders to implement their policy or plan, on a particular occasion without any more being averred, would amount to fault on their part, is misconceived. In sum, therefore, I consider that nothing averred in Article 4, by the pursuer, presents a relevant case for a claim for damages based on breach of statutory duty and that, accordingly, those averments, at least, cannot be admitted to probation.
18. Having considered the averments, in Article 3 of Condescendence, and the respective submissions made in relation thereto, I have, furthermore, come to the conclusion that those averments do not instruct a relevant common law case of negligence. In my opinion the pursuer has failed to aver such a case for exactly the same reasons as the Second Division held the pursuer had failed to aver a relevant case in Gibson. It is simply insufficient for the pursuer to aver, as he does, that it would "have been reasonable to treat the locus in the foresaid manner in the course of 2 December and again about 9am on the morning of 3 December 1997". As Lord Murray said so succinctly in Gibson at page 1247:

"To make purely formal averments that a possibility is reasonable and practicable adds nothing, in my opinion, to the emptiness of the assertion".

Notwithstanding the fact that the Gibson case was, on its facts, concerned with alleged breaches of duties of inspection, I consider that dictum equally applicable to cases like the present where, as was conceded on behalf of the pursuer, the duties imposed upon the defenders are not absolute and where the resources available to the defenders for carrying out their functions are finite. As I observed above, the hazard in question was not created by the defenders, but by nature itself. The question is to what extent and when are the defenders obliged, in the exercise of their duties of reasonable care, to remove or alleviate the hazard so created. The observations of Lord Prosser in the case of Grant, cited above, are also, in my judgement, apposite in the present case. At page 534 his Lordship said:

"It appears to me that an authority such as the defenders must plainly have a discretion to decide upon priorities, and that it is inevitable that those areas which are treated as of low priority may remain untreated for at least a matter of days. I see nothing negligent in the fact that the pavement at Canaan Lane fell into such a low category, and was thus liable to remain untreated for such a period. Moreover, the incidence of public holidays and weekends make it inevitable that there will be some variation in the speed with which a particular area is dealt with. It does not appear to me that it would be the duty of the local authority to 'top up' their available force at weekends and the like in order to maintain precisely the same availability of labour as could be maintained on weekdays. In any event it does not appear to me that the relevant section of pavement would have been dealt with before the accident even with full weekday forces. In the absence of any fault in the general system or the application of discretion within it, it appears to me that counsel for the pursuer was indeed driven, in his search for fault, to the argument that even the lowest priorities should be dealt with very promptly by the engagement of sufficient forces to deal with them all at once. I do not regard that argument as persuasive. I am not prepared to hold that unreasonable on a local authority to delay low priority work until high priority work has been done. I am not prepared to hold that there is any duty on a local authority to eliminate such priorities and delays by attempting (if indeed it were practicable) to have a vast force on call to deal with even the least important area of roadway or footway. In my opinion the pursuer's case on fault fails".

The search, as his Lordship observed, is for averments showing fault which go beyond simply averring that the road or pavement could have been cleared or treated prior to the accident. What one requires to do, in my judgement, is to aver not simply what could have been done, or what might have been reasonably practicable to do, but what should have been done in the exercise of the duty of reasonable care and to set out specific averments in support thereof. Such a case might, possibly, be made, as counsel for the defenders suggested, 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 particular locus in question which required that it should have been dealt with prior to the time of the accident. That latter type of case might arise where as, in McGeouch, there have been a number of particular complaints about the risk that the locus posed, which had been communicated to the defenders and they have been ignored. There is nothing of this sort averred by the pursuer to support his common law case. In particular he makes no averment that the locus was, in any different position from the large number of shopping streets which there must be throughout the Borders region. The deficiencies in the pursuer's common law case can be illustrated also by reference to what Lord Migdale said in Gordon, cited above at page 48, namely:

"Merely to state that sand had not been spread on Kingsmill Street after 12 hours of frost is not enough to point to a breach of duty. It may be that there was some slackness or unreasonable delay in tackling the effects of this frost but if that was so it must be expressly averred. It is not enough for the pursuer to say that the delay could have been due to slackness. She must say so and so focus the real issue in the case. The statement that the defenders could and ought to have spread sand on Kingsmill Road before the accident does not assist her. Clearly the cart could have been sent there first. The fact that it was not done does not point to a breach of duty".

The need to set out clear and specific averments from which a breach of duty can be inferred is made clear, in my judgement, also from what was said in the case of Cameron.

19. For the foregoing reasons I have reached the conclusion that the averments of the pursuer in Article 3 of Condescendence are so insufficient that he will be bound to fail in his claim at proof. I have already decided that his averments based on statutory duty, contained in Article 4 of Condescendence, are irrelevant for the reasons given. Accordingly the pursuer's case as a whole, is, in my judgement, irrelevant and I shall sustain the defenders' first plea in law and dismiss the action.