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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 61
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OPINION OF LORD
KINCLAVEN
in the cause
WILLIAM FRANCIS
BERGANT
AND OTHERS
Pursuers;
against
THE SCOTTISH
MINISTERS
AND OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Holroyd;
Morton Fraser, Solicitors
First Defenders:
Sheldon; DLA
Second Defenders:
Shand Q.C.; Simpson & Marwick,
W.S.
11 April 2006
Introduction
[1] This is a reparation action arising out
of a fatal road traffic accident which occurred on the A83 on 24 October 1998.
[2] After sundry procedures the case came
before me for debate at the instance of the first and second defenders who both
sought dismissal of the action.
[3] In my opinion, for the reasons outlined
below, the defenders' arguments are well founded.
[4] The pursuers' case is irrelevant and
falls to be dismissed.
The Background
[5] The late William Bergant ("the
deceased") died in a tragic accident which occurred while he was driving on 24 October 1998.
[6] The first and second pursuers are the
father and mother of the deceased. The
third pursuer lived with the deceased as his wife from about April 1997. Their daughter, Sapphira, was born on 28 October 1998. Her mother sues on Sapphira's behalf as
fourth pursuer.
[7] The fifth pursuer is the sister of the
deceased but she no longer has an active interest in this action. The defenders have obtained decree of
absolvitor in relation to the fifth pursuer's claims.
[8] The first defenders are the Scottish
Ministers. They are responsible in terms
of the Roads (Scotland)
Act 1984 for the maintenance and management of trunk roads in Scotland.
[9] The second defenders are Argyll and Bute
Council. They are the local roads
authority for the area concerned. They
have responsibility for maintenance of roads under the Roads (Scotland)
Act 1984 and the Local Government (Scotland)
Act 1984.
[10] The pursuers seek damages from the
defenders for losses caused by the death of the deceased.
[11] The action has a long procedural history extending
back to 2001. For present purposes the
relevant averments are those set out in the Closed Record (as amended) Number
24 of Process.
[12] In outline, the pursuers' case on the
merits in based on the allegation that the deceased was driving his car when he
encountered a flood of water across the surface of the carriageway. It is alleged by the pursuers that "The
Police had previously complained to the defenders about the lack of drainage on
the road." The case of fault against the
defenders includes the allegation that "It was their duty to take reasonable
care to provide effective drainage to the A83 trunk road."
[13] Liability is denied by both
defenders.
[14] The first and second defenders make
positive averments in answer. They deny
the pursuers' allegations of fault. They
contend that the weather was bad or very bad on the day in question. They make averments of sole fault and
contributory negligence on the part of the deceased.
[15] The first defenders also aver (in Answer
2) that "neither the Police nor the first defenders have any records of
complaints prior to the deceased's accident about the lack of drainage on the
road."
[16] The second defenders make various calls on
the pursuer (in Answer 2) calling on them to specify when the alleged previous
complaints were made by the Police "about the lack of drainage on the road" and
the nature of said complaints.
[17] The first defenders also aver (in
Answer 5) that esto any
liability attaches to the first defenders (which is denied) the first defenders
are entitled to be indemnified in respect of any liability and expenses by the
second defenders by virtue of a Management Agency Agreement.
The Defenders'
First Pleas-in-law
[18] The first plea-in-law for each of the
defenders is as follows:-
"The pursuers' averments being
irrelevant et separatim lacking in
specification the action should be dismissed."
The Submissions
for the First Defenders
[19] The first defenders argued that their
first plea in law should be sustained and that the action should be dismissed.
[20] The Note of Arguments for the first
defenders, so far as relevant to the present debate, advanced essentially three
propositions:-
1. that the pursuers aver no basis as to
why duties were incumbent upon the first defenders who are public authorities
exercising statutory functions. Stovin v Wise 1996 AC 923, Syme v Scottish Borders Council 2003 SLT 601 and Larner v Solihull MBC [2001] PIQR P17;
2. that the pursuers have failed to
specify adequately any basis on which the accident was foreseeable to the first
defenders. Bennett v J Lamont & Sons
2000 SLT 17; and
3. that the duties averred by the pursuers
are so lacking in specification as to be irrelevant. McGuffie v Forth Valley
Health Board 1991 SLT 231; Gibson v Strathclyde Regional Council 1993 SLT
1243 and Syme v Scottish Borders Council 2003 SLT 601.
[21] Before me the first defenders did not
insist on their argument based on Stovin v
Wise.
The Submissions
for the Second Defenders
[22] The second defenders also argued that
their first plea in law should be sustained and that the action should dismissed.
[23] The Note of Arguments for the second defenders,
so far as relevant to the present debate, advanced essentially four propositions:-
1. that the pursuers do not aver or offer
to prove that as a matter of fact there was any deficiency in the drainage at
the locus;
2. that in any event the pursuers'
averments are wholly lacking in specification as to inter alia (i) to which of the defenders complaints were allegedly
made; (ii) the date or dates when complaints were allegedly made; and (iii)
whether the complaints related to an absence of drainage or to some deficiency
in existing drainage and if the latter, what was the nature thereof;
3. that the pursuers have failed to aver
facts to instruct a case that the accident was foreseeable to the second defenders;
and
4. that the duty desiderated to "take
reasonable case to provide effective drainage on the road" is so lacking in
specification as to be irrelevant.
The Pursuers'
position
[24] Mr Holroyd very fairly indicated that the
pursuers had been trying for some time to make their averments more specific
and to obtain expert support. However,
the pursuers' efforts to improve their pleadings had not been successful.
[25] Mr Holroyd was unable to point to
averments by the pursuer which answered the defenders criticisms based on the
case of McGuffie v Forth Valley Health Board 1991 SLT 231. He accepted that there were no adequate
averments about what should have been done by the defenders and within what
period.
[26] The first to fourth pursuers, however, wished
to proceed with the action.
Discussion
[27] For present purposes I require to take the
pursuers' pleadings pro veritate.
[28] The pursuers' averments
relating to the merits of the action are relatively short and are best quoted
in full. They are set out in Articles 2
and 3 of Condescendence.
[29] Article 2 states:-
"On or about 24th October,
1998, at or about 8 a.m., the deceased was driving his blue Golf motor vehicle,
registration number J68 JNS, along the A83 trunk road by Drishaig Cottage,
approximately one mile south of Lochgilphead.
Suddenly and without warning the deceased encountered a flood of water
across the surface of the carriageway.
As a result, he lost control of his vehicle and collided with objects at
the roadside, causing himself fatal injuries.
The Police attended the locus of the accident and prepared an accident
report. The Police had previously
complained to the defenders about the lack of drainage on the road."
[30] Article 3 states:-
"The accident was caused by the fault
and negligence of the defenders. It was
their duty to take reasonable care for the safety of persons using the roads
for which they were responsible, including drivers of vehicles such as the
deceased, and to avoid exposing them to unnecessary risk of injury. It was their duty to take reasonable care to
manage, maintain and repair the roads for which they were responsible,
including the A83 trunk road. It was
their duty to take reasonable care to provide effective drainage to the A83
trunk road. They knew or ought to have
known that the road was often affected by flooding. They knew or ought to have known that if they
failed to comply with their duties an accident such as hereinbefore
condescended upon was likely to occur.
Had they fulfilled the duties incumbent upon them the accident would not
have happened."
[31] In my opinion, the pursuers' averments are
not sufficiently relevant and specific.
The pursuers do not give fair notice of the case or cases which the
defenders require to investigate and meet.
[32] The pursuers aver that "The police had
previously complained to the defenders about the lack of drainage on the
road". That averment falls short of a positive
factual averment. It is simply an
allegation about a previous complaint or complaints. It does not provide fair notice in relation
to the merits of the case. It does not
give fair notice to the defenders of the nature of the alleged complaint. It leaves unanswered questions such as (a)
who actually made the complaint (b) when (c) to whom (d) how and (e) in what
terms?
[33] Further, in my opinion, there are insufficient
averments to support an inference that the defenders, or either of them, knew
or ought to have known that the drainage at the locus was in some respect
deficient. The pursuers' case fails on
foreseeability.
[34] In any event, the pursuers do not make
sufficiently relevant and specific averments as to what the defenders could and
should have done to improve the drainage or remedy deficiencies at the locus and
within what period.
[35] In McGuffie
v Forth Valley Health Board 1991
SLT 231 the pursuer slipped on the icy surface of a path at her place of
work. She averred that her employer had
failed to take reasonable care "within a reasonable period" to have the path
made safe by salting or gritting. The
Second Division held that the expression "within a reasonable time" was
irrelevant without specification of the period. A similar conclusion falls to be reached in
the present case.
[36] The pursuers' allegations of fault also make
no meaningful distinction between the duties incumbent upon first defenders and
the second defenders respectively.
[37] In my opinion, the pursuers' case must
necessarily fail. The pursuers are unable to meet the defenders' criticisms.
[38] The action should be dismissed.
The Defenders'
Position inter se
[39] The defenders were agreed
that if the pursuers' action survived debate then the case should be put out
"By Order" to consider the arguments between the defenders inter se. Mr Sheldon, on
behalf of the first defenders, accepted that the second defenders were entitled
to see further documentation.
[40] In light of my decision there is no need
for such a "By Order" hearing.
[41] I shall simply dismiss the action.
Decision
[42] In the whole circumstances, and for the reasons outlined above,
I shall sustain the first plea-in-law for the first defenders et separatim the first plea-in-law for
the second defenders and dismiss the action.
