|
OUTER HOUSE, COURT OF SESSION
[2007] CSOH 23
|
|
PD2067/05
|
OPINION OF LORD BRODIE
in the cause
PHILOMENA MARIA
GORETTI HUTCHISON
Pursuer;
against
NORTH
LANARKSHIRE COUNCIL
Defender:
ннннннннннннннннн________________
|
Pursuer:
Hastie; Anderson Strathern
Defender: McIlvride;
Ledingham Chalmers, LLP
7 February 2007
Introduction
[1] The
pursuer in this action is Mrs Philomena Maria Goretti Hutchison. She sues North Lanarkshire Council for
damages for personal injury sustained when she fell and twisted her ankle in a
car park off Blenheim Avenue,
Stepps on 24 December 2002.
[2] At
proof on 23 January 2007
the pursuer was represented by Mr Hastie.
The defender was represented by Mr McIlvride. In addition to the pursuer the following
witnesses were led on her behalf: Mrs
Ann McQuarrie, a district nurse and colleague of the pursuer; Mr Kenneth Hutchison, the pursuer's
husband; Mrs Morag Waterston, a friend
of the pursuer and a self-employed insurance loss adjuster; Mr David O'Farrell, a chartered civil
engineer; and Miss Margaret McQueen,
consultant orthopaedic surgeon. Two
witnesses were led for the defender:
Mr Iain Mackay, consultant orthopaedic surgeon; and Mr Roderick Mackenzie, a roads
inspector. I was favourably impressed by
all the witnesses that I heard. Without
exception, the witnesses to fact were credible, careful and reliable. The expert witnesses were all well qualified
to express the opinions that they did.
The car park
[3] Cumbernauld Road,
Stepps, is an urban street with footpaths on either side. It is fronted by houses and shops. Blenheim Avenue
forms a T-junction with Cumbernauld Road. It is the minor road in relation to Cumbernauld
Road. The
defender in this action, North Lanarkshire Council, is the road authority for Cumbernauld
Road and Blenheim Avenue
in terms of the Roads (Scotland)
Act 1984. Cumbernauld
Road and Blenheim Avenue
are public roads, having been entered in the list of public roads maintained by
the defender and its statutory predecessor in terms of section 1 of the 1984
Act.
[4] At
the corner of Cumbernauld Road
and Blenheim Avenue there
is a branch of the Royal Bank of Scotland.
[5] On
the opposite side of Blenheim Avenue
from the bank and about 50 metres from the junction with Cumbernauld
Road there is a car park which can accommodate
about 20 cars. Its entrance is formed by
a break in the footpath on Blenheim Avenue
which is marked by kerbstones. The car
park is illustrated in photographs which are included in the report by Mr
O'Farrell, No 6/7 of process. The
photograph on page 2 of 8 shows the view across the car park looking
towards Cumbernauld Road. The bank is the building at the top right
hand corner of the photograph. The
photograph on page 3 of 8 is taken from a position within the car park
looking towards Blenheim Avenue
and showing the entrance formed by the break in the footpath. The car park is owned by the defender. However, it is not entered on its list of
public roads or otherwise adopted by it in terms of the 1984 Act. The car park is, and in 2002 was, available
for use by members of the public wishing, for example, to go to the shops on Cumbernauld
Road. The
defender has situated a number of recycling banks in the corner of the car park
in which members of the public are encouraged to deposit articles for
recycling.
The pursuer's account of her accident
[6] On
Christmas Eve 2002 the pursuer was working in the course of her employment as a
district staff nurse. At about lunchtime
she parked her car in the car park with a view to going to a pharmacy on Cumbernauld
Road in order to pick up a prescription. She parked in a position roughly opposite the
entrance to the car park and proceeded to walk from her car across the car park
in the direction of the footpath on Blenheim Avenue. It had been raining earlier in the day and
the surface of the car park was wet.
There were puddles. At a point
close to the entrance to the car park the pursuer's left foot went into a
pothole, the presence of which the pursuer had been unaware. As the pursuer moved forward her foot was
wrenched. She lost her balance. She fell to the ground. The pursuer was unable to say what were the
dimensions of the pothole. She explained
that she did not measure it but she thought it was quite deep. It was filled with water. The pursuer wore a size 6 shoe and her
foot had gone right in.
[7] On
Christmas Day the pursuer had told her friend, Mrs Morag Waterston, about
her fall. On 27 December 2002, Mrs Waterston went
to the car park and photographed the area at the entrance. Mrs Waterston's photograph was
No 6/6 of process. That photograph
shows three potholes, roughly in line one with the other. The pursuer identified the second of these
from the photographer ("pothole 2") as the pothole which had caused her to
fall. It was situated very close to the
furthest of the three potholes from the photographer ("pothole 3"). Mrs Waterston had attempted to measure
the depth below the surrounding car park surface of the deepest point of
pothole 2. She did so using a Biro
pen. When she came to give evidence
Mrs Waterston illustrated the depth of the pothole by reference to a Biro
pen. I took that depth to be no more
than one inch or 25mm.
[8] When
cross-examined, the pursuer accepted that she had not seen the pothole before
she had fallen but had she been looking down she might have seen it and thereby
avoided a fall. She readily conceded
that: "I would accept that I must take a degree of blame". She further conceded that she could not say
with "full certainty" that her foot had gone into pothole 2 rather than
pothole 3 but it was in the area of potholes 2 and 3 that she fell and she
thought it was pothole 2 in which her foot had been caught because
pothole 2 was the bigger hole.
[9] Immediately
after her fall the pursuer was assisted by passers-by and then by a doctor from
a nearby surgery. She was taken by
ambulance to Glasgow Royal Infirmary where her ankle was examined and
x-rayed. The x-ray disclosed no
fracture. A support bandage was applied
and the pursuer was discharged home. She
was reviewed on 31 December 2002. She was referred for physiotherapy. She was off work until the beginning of March
2003. She had a further course of
physiotherapy. The pursuer considers
that her injury, which the consultant orthopaedic surgeons who gave evidence
agreed was a minor tear or sprain of the left lateral ligament, has never fully
resolved. She continues to experience
swelling and periods of discomfort if she walks for a long time. If her foot is immobile it becomes
stiff. She has not been able to return
to playing badminton. She can go for a
walk but she wouldn't wish to undertake a hill walk. She experiences difficulty on rough
ground. She considers her ankle to be
unstable.
[10] For a period of about two months following the accident, the
pursuer's husband did perhaps an extra hour a day of housework by reason of the
pursuer's incapacity.
Evidence of defenders' road inspector
[11] I heard evidence from Mr Roderick Mackenzie, one of the
defender's road inspectors, having particular responsibility for Blenheim
Avenue and Cumbernauld
Road. It was
to the effect that the defender does operate a system of proactive inspection
but only in respect of public roads. Blenheim
Avenue and its footpaths are inspected annually. Cumbernauld Road
and its footpaths are inspected once a month.
Mr Mackenzie personally carries out these inspections. He usually parks his car in the car park if
he is inspecting Cumbernauld Road. It is probable that he parked his car in the
car park and walked from the car park through the entrance and then onto to the
footpath on Blenheim Avenue
in November and, in October 2002. It was
not, however, part of his duties to carry out a proactive inspection of the car
park. The position was different in the
event of a complaint being made about the condition of the car park by a member
of the public. In November 2001 and
again in May 2003, Mr Mackenzie had attended at the car park to inspect
the condition of potholes and, as a result, had instructed that potholes be
filled in as a matter of urgency. In
determining whether a pothole constituted a danger, Mr Mackenzie applied
the defender's policy which was to treat a tripping edge of 40mm as a danger if
it appeared in a carriageway and a tripping edge of 20mm as a danger if it
appeared on a footway. A carriageway was
an area to which vehicles had access albeit that it might be shared by
pedestrians. A footway an area
restricted to pedestrians. When he
attended at the car park in May 2003 Mr Mackenzie did not find any pothole
as deep as 40mm. He was unable to give
an opinion as to what was the likely condition of the car park in December 2002
based on his inspection in May 2003.
However, had Mr Mackenzie's attention been drawn to pothole 2
in December 2002 or in the preceding two months, he would not have regarded it
as constituting a danger because he would have classified the car park as a
carriageway and, accordingly, a 20mm tripping edge did not, to him, constitute
a danger.
Submissions and discussion
[12] I consider that I was
particularly well served by counsel in this case. Each provided me with a full and extremely
helpful written submission to which he referred when he came to address me on
the evidence. This not only relieved me
from the burden of taking a comprehensive note but greatly assisted in
identifying where the parties were at issue and how the issues should be determined. I am grateful to counsel and I intend them no
disrespect whatsoever in recording their respective submissions in brief and
selective summary.
[13] The first issue for consideration was whether the pursuer had
proved that she had fallen as a result of stepping into pothole 2. Mr McIlvride on behalf of the defender
submitted that she had not. He further
submitted that, in any event, the pursuer had failed to establish that pothole
2 was at least 20mm in depth on 24 December
2002. Mr Ilvride drew my
attention to the passages in the pursuer's evidence when she had talked of
having "twisted" or "wrenched" her ankle in a pothole. She had contrasted this to "going over" on
her ankle, whereas the nature of the injury she sustained, as spoken to her
medical witness, Miss McQueen was that he had "gone over" on her ankle, that is
there had been an over-extension of the lateral ligament by reason of inversion. The pursuer's evidence as to her clothes
having got wet pointed to her lying in the puddle formed in pothole 2. If anything, that indicated that she had fallen
when her feet were at a point distant from that pothole. Mr McIlvride reminded me of the
imprecision of the evidence given by Mrs Waterston. At best she was giving a recollection of an
estimate. She had never measured the
depth of the pot hole with, for example, a ruler.
[14] In my opinion the pursuer had proved that she fell as a result
of stepping into pothole 2 which, as at 24 December 2002, while no more than 25mm in depth,
was at least 20mm deep. I regarded the
pursuer as a fair and candid witness.
She agreed that it was very difficult to identify the specific place
where she had fallen, although she was clear that it had been near the entrance
to the car park. She couldn't say with full
certainty that it was pothole 2 rather than pothole 3 that had caused
her to fall but it was a deep pothole, big enough to catch her foot. I accept that Mr McIlvride accurately
summarised the pursuer's evidence. I
also accept that the medical witnesses described an injury caused by inversion
of the foot, with consequent overstretching or partial tearing of the lateral
ligament. I was not persuaded that much
can be taken from this. As Mr McIlvride
accepted, someone cannot be expected to give a precise and accurate account of
how they came to fall unexpectedly. The
pursuer's impression may have been of turning and twisting and, indeed, the
ankle may have turned and twisted, albeit that the feature of the event which
caused injury was an overextension of the lateral ligament. While I consider that Mr McIlvride put
the point entirely fairly in his cross-examination, of necessity, the words
used in his questions and in the pursuer's answer were not precise. In particular, I do not accept that by contrasting
what had happened to her with "going over" on her ankle, the pursuer was
excluding the possibility of an overextension of the lateral ligament. Something caused her to fall at a point at or
about the location of potholes 2 and 3. Her perception was of having caught her foot
in a deep pothole. Pothole 2 was,
according to Mrs Waterston, the deeper of these two potholes. The injury which the pursuer sustained is consistent
with what she described as happening to her.
Whilst I see the force of Mr McIlvride's submission that, at best
for the pursuer, the only evidence of the depth of the pothole, which is a
critical aspect of her case, is Mrs Waterston's recollection of what, at
the time, had been no more than an estimate, it is of the nature of evidence
that a court will often have to proceed on the basis of a witness's recollection
of an estimate. The photograph confirms
the presence of the pothole, although it does not permit a judgment to be made
as to its precise depth. Both the
pursuer and Mrs Waterston considered pothole 2 to be deep. Having regard to the dimension contended for
by the pursuer and the relevant standard of proof, I am satisfied that it is
appropriate to proceed upon the basis that pothole 2 was at least 20mm in
depth and that it was its presence that caused the pursuer to fall.
[15] Turning to the question of liability, the pursuer's case is
that as owner and operator of the car park, the defender had a duty, in the
exercise of reasonable care, to maintain the surface of the car park in such a
way as it did not constitute a danger to users, such as the pursuer, and that
the defender must be taken to have been in breach of that duty because of the
presence, on 24 December 2002 of a pothole, the depth of which was
measured at 20mm. That case depends on
the pursuer establishing the following propositions, all of which are averred
by her at page 7 of the record:
that a pothole of 20mm in a car park is a danger; that this danger was or ought to have been
known to the defender prior to 24 December 2002 because it would have been
revealed on a proper inspection; and
that, in accordance with common and accepted practice among road authorities,
that a proper inspection should have taken place every three months. The pursuer also averred at page 7 of
the record that there had been a number of deep potholes in the car park for at
least 12 months before the pursuer fell.
There was no evidence led to support that averment but that was not critical. What, however, was critical for the pursuer
was that she establish that had a proper inspection of the car park been
carried out up to three months prior to 24 December 2002, the pothole would have been found to be
at least 20mm in depth. If it were
otherwise, by the criterion adopted by the pursuer in her pleadings, the
pothole would not have constituted a danger and, accordingly the defender would
not have been under a duty to repair it.
[16 On
behalf of the defender, Mr McIlvride did not dispute that the defender had
a duty of care towards users, notwithstanding that the car park had not been
added to the list of public roads in terms of section 1 of the Roads (Scotland)
Act 1984. However, he advanced certain
propositions in law which had a bearing on the content of that duty. At common law the duty incumbent upon a roads
authority in relation to the maintenance of repair of footways or carriageways
for which it is responsible is a duty to take reasonable care and does not
extend to maintaining the surfaces of these footways, far less carriageways, in
a uniformly flat and even condition.
Irregularities in those surfaces are to be expected and it will always
be a question of degree whether a particular defect gives rise to a reasonably
foreseeable risk of injury: McClafferty v British Telecommunications plc 1987 SLT 327, McLaughlin v Strathclyde
Regional Council 1992 SLT 959. Even if a pursuer has suffered injury as a
result of a defect which presented a reasonably foreseeable risk of injury,
that is not sufficient in itself to establish fault on the part of a roads
authority. The pursuer requires to
establish that it was reasonable and practicable for the roads authority to
have become aware of the defect (and to have repaired it) before she suffered
injury. In order to do so a pursuer
requires to prove that inspection in accordance with a practice common to roads
authorities would have revealed the defect or that some special and exceptional
circumstances, such as numerous previous complaints about the defect, made it
reasonable and practicable to inspect the locus
before the accident occurred: Gibson v Strathclyde Regional Council 1993 SLT 1243. In the absence of any evidence establishing
failure to comply with common practice, or special circumstances, the failure
by roads authorities to implement its own repairs and maintenance policy may
give rise to liability: McGeouch v Strathclyde Regional Council 1985 SLT 321, but the allocation of
finite resources among competing demands is entrusted to the discretion of the
roads authority and the reasonableness of the policy decisions made by the
authority is not subject to review by the Court in an action for damages unless
the decision is so unreasonable as to fall outwith the ambit of discretion and
relates to operational matters: Syme v Scottish Borders Council 2003 SLT 601, Jackson v City of Edinburgh
Council, Temporary Judge Gordon Reid, QC, 4 November 2004, unreported. I would agree with Mr McIlvride's
propositions.
[17] While Mr McIlvride did not dispute that the defender, in the exercise
of reasonable care, had a duty to remedy dangers he did dispute that a pothole
20mm deep in the car park constituted a danger.
He further disputed that in the circumstances there was a duty to
inspect the car park with a frequency of three monthly intervals and that in
any event on the evidence, an inspection three months prior to the accident
would have revealed pothole 2 to be at least 20mm deep.
[18] For the proposition that a pothole 20mm deep in the car park
constituted a danger and that in the circumstances there was a duty of three
monthly inspection, Mr Hastie relied on the contents of the Code of
Practice for Maintenance Management in its edition of July 2001 and the
evidence of Mr O'Farrell. The Code
is not mandatory but it is endorsed by a number of bodies including the
Convention of Scottish Local Authorities ("COSLA"). It is clearly intended to provide guidance to
local authorities in discharging their responsibilities for the maintenance of
the roads network, having regard to the desirability of achieving consistency
and value for money. In his evidence
Mr O'Farrell said of the Code that "It gives some guidance on what
constitutes a defect and gives examples drawn from local authorities on what
people have used. It gives the local authority
flexibility to adopt its own definition depending on the circumstances." The Code indicates that some surfaces merit
more attentive inspection and maintenance that others. It uses the term "highway" to mean all
publicly maintained facilities laid out for all types of user, including roads
and streets. It discriminates between,
on one hand, a "carriageway" which is the part of the highway laid out for use
by motor vehicles, and a "footway" which refers to all segregated facilities
laid out for use by pedestrians.
Appendix B to the Code is entitled "Parameters for Defect
Definition". Paragraph B2.1 lists a
number of factors by reference to which a defect in the surface of the highway
may become a candidate for remedial action.
Among the factors is the depth of the defect. At paragraph B2.4 the Code explains that
the weight given to each of these factors in determining whether any individual
defect should be treated as Category 1 (and therefore requiring prompt
attention as an immediate or imminent hazard) will be a matter of on site
judgment, having regard to the outcome of any legal proceedings, but a pothole
depth of 100mm in carriageways or 20mm in footways and cycleways is considered
to require particularly careful consideration.
As Mr O'Farrell confirmed, the Code makes no specific reference to
car parks. Application of the definition
provisions in the Code would indicate that the car park here would fall to be
treated as a carriageway. However,
Mr O'Farrell pointed to the extensive use made of the car park by
pedestrians, many of whom visited the shops on Cumbernauld
Road. The
car park clearly had a mixed use, both vehicular and pedestrian. In Mr O'Farrell's view, the pedestrian use
should override the vehicular use and, accordingly he would apply the 20mm
standard to the car park. As he put it,
at another point in his evidence, it would "merit attention as a pedestrian
area and not just a carriageway area". Mr O'Farrell
also referred to the defender's own roads and footpaths inspection policy,
No 6/8 of process. That policy
provides for a quarterly inspection of what are designated as secondary walking
routes. These are defined as "medium
usage routes through local areas feeding into primary routes (main shopping
streets - out of town areas), local shopping centres (villages and local
shops), large secondary schools, etc".
Mr O'Farrell saw the defender's policy as consistent with the
Code. It was his opinion that the
surface area of the car park should be regarded as a secondary walking route in
terms of the Defender's policy because of its use by members of the public who
intended to shop on Cumbernauld Road. However,
the quarterly inspection desiderated by Mr O'Farrell did not accord with
the defender's policy, as it was applied.
The footpaths on Blenheim Avenue
were inspected only annually. The car
park was not subject to any proactive inspection.
[19] In my opinion, when regard is had to the evidence relied on by
Mr Hastie, the pursuer has failed to establish her case. She relies on the Code of Practice as
indicating common and accepted practice among road authorities, such as the
defender, at the relevant date. Assuming
in her favour that the Code can be taken as a statement of common and accepted
practice, it does not support the proposition that a defect 20mm in depth
should be regarded as a danger when found on a surface having both vehicular
and pedestrian use (otherwise a carriageway).
Nor does the Code, or the defender's own policy support the view that it
was a common and accepted practice among road authorities such as the defender
to inspect an area such as the car park every three months. The pursuer's case accordingly fails because
it cannot be said on the evidence led before me that the defender failed to
achieve the standard required by reasonable care. However, the pursuer's case must fail for a
further reason. Even if it is accepted,
as I have accepted, that the depth of pothole 2 on 24 December 2002 was at
least 20mm, it has not been established what was its depth three months before
that date. As I have already indicated,
it was a necessary element in the pursuer's case that she prove that had there
been an inspection up to three months prior to 24 December 2002, that
inspection would have revealed a pothole of at least 20mm in depth. I cannot hold that to be the case because I
heard no evidence to that effect.
Mr Hastie argued, rather faintly, that I might be able to infer this
necessary part of the pursuer's probandum
on the basis of Mr O'Farrell's evidence in cross-examination, to the
effect that three months of winter conditions might not be sufficient to make a
significant difference to the condition of the pothole. It is true that Mr O'Farrell did not
commit himself as to what increase in depth of a pothole might be expected over
a passage of about 3-41/2 months but he did say that three months could make a difference,
particularly in the winter. He drew
attention to the fact that pothole 2 was in a location where it would be
subject to wear by reason of vehicles turning and the flow of rainwater from Blenheim
Avenue.
When asked how much deeper a 20mm pothole would be at the end of three
months, Mr O'Farrell said that he could not comment. He thought it possible that a pothole could deepen by as
much as 20mm but that depended on the conditions including the number of
vehicles driving over the pothole.
Damages
[20] It follows that I must assoilzie the defender. Nevertheless, I must assess the damages that
I would have awarded to the pursuer had I found in her favour. Her claim is for solatium and personal services, assessed by reference to
section 8 of the Administration of Justice (Scotland)
Act 1982.
[21] Mr Hastie submitted that solatium might properly be assessed at г6,000. He referred to the Guidelines on Assessment of
General Damages in Personal Injury Cases (8th Edition)
published by the Judicial Studies Board in England but he relied particularly
on the decision of Lord Marnoch in Nimmo
v The Secretary of State for Scotland,
29 February 1999, unreported.
Mr McIlvride also referred to the Guidelines. In addition he drew my attention to the
awards made in Nimmo v British Railways Board 1990 SLT 680 and Ross v NCB 1988 SLT 385.
Mr McIlvride proposed г3,000 as an appropriate award, pointing out
that, making allowance for inflation, the awards in the broadly analogous cases
of Nimmo v British Railways Board and Ross
v NCB were less than that
figure. In my opinion,
Mr McIlvride's suggested figure is too low. On the other hand, Mr Hastie's figure,
based on Nimmo v The Secretary of Scotland is too high. In that case, the pursuer was about
29 years of age when he sustained a severe strain involving an element of
tearing in the ligaments of the left ankle joint. Having regard to the apportionment of the solatium award between past and future,
Lord Marnoch must have considered that he remained significantly disabled five
years after his accident. The pursuer
here may have sustained a similar injury but after two months she was able to
return to work and while I accept that she continues to suffer some pain and
stiffness from time to time, her residual disability appears to be limited to a
perception of instability in the ankle.
Miss McQueen explained that there may be physical explanations for
that perception which is a not unusual consequence of an injury of this sort
but she did not accept that the pursuer's ankle was in fact likely to give
way. Looking at all the material to
which I was referred, it appears to me that an award of г4,000 would be
appropriate under this head. Had I been
awarding damages, I would have allowed interest on three quarters of that sum
at 4%. I would have allowed г400 for the
services claim to reflect some 60 hours of additional housework undertaken
by Mr Hutchison and some additional driving. I would have allowed interest at 4% from the
date of the accident until 1 March
2003 and thereafter interest at 8%.
[22] Had I been awarding damages, I would have reduced the sum on
terms of section 1 of the Law Reform (Contributory Negligence) Act 1995,
to reflect the pursuer's contributory fault.
The pursuer was very frank about this.
She accepted that she must take a degree of blame. In all the circumstances I would have reduced
the damages recoverable by one-third.
Decision
[23] I shall assoilzie the
defender.
