"I am satisfied that both were truthful witnesses endeavouring to assist the Court. However, there were moments in their evidence when it was clear that they were having difficulty in recalling the details of their actions leading up to the accident and even in recalling what system was operating in 1995. I did not find this surprising since it all happened so long ago. But it did make me cautious in accepting their evidence where it differed from the information contained in the contemporaneous documents."

".....it is clear that the road surface of the B9080 was very slippery over an area extending at least 50 yards to the east of the Bridgend junction and possibly 150 yards or more to the west. The precise extent of the slippery road surface may not matter. What does matter is that the slippery area extended far beyond the junction and was not confined to the narrow diamond shape that might have been left untreated had the gritter diverted from the B9080 in the course of doing the L3 route to treat the Bridgend road as alleged by the pursuer as part of her primary case"

"During the 20^th and the first half of the 21^st December 1995 a cold airstream from the Arctic and a ridge of high pressure over Scotland combined to give dry weather in West Lothian. There were frosts night and morning but the ground was snow free in the Linlithgow area.

Later on the 21^st, a frontal zone (a band of thick cloud and precipitation), associated with an Atlantic depression, pushed northwards from England into the cold air over Scotland, consequently by 1800 GMT (6.00 pm) that evening, eastern parts of Linlithgow had a two inch deep snow cover.

Overnight 21/22, the front from the south crossed the Lothians introducing a thaw and periods of rain. The snow on the ground had turned to slush at Linlithgow by 0730 GMT on the morning of the 22^nd. The rain continued throughout the 22^nd and, almost certainly, cleared all the snow. In the evening (22^nd), rising atmospheric pressure to the north of the front pushed the cold air back southwards into the Central Belt of Scotland, turning the rain back to sleet by the early hours of the 23^rd. The front and its thick cloud and precipitation continued to move away southwards and by 0800 GMT, the weather had become dry at Turnhouse.

The wintry precipitation falling on the ground early on the 23^rd, combined with breaks in the cloud sheet and an easing wind, almost certainly, allowed ground temperatures to dip to just below freezing-point over the hour or so before the time of the accident."

23 December a severe Arctic spell set in which lasted until 1 January 1996. Although that spell had not arrived until after the accident, the conditions at around 0800 to 0900 hours on 23^rd December 1995 would have led to a "hazardous situation" with icy conditions on the ground. Mr Farquhar's conclusion as to the conditions at about 0900 hours in the general area of Linlithgow and Bridgend was that the countryside was under a sprinkling of snow and hail and air temperature was around +2 or 3 degrees centigrade. The Lord Ordinary records that Mr Farquhar expressed the following opinion:

"Adequately salted roads will have been soaking wet. Many stretches of insufficiently salted road will have been affected by a thin coating of a combination of slush, snow and hail with clear (or 'black') ice in places"

Mr Farquhar said that the conditions which he thought likely to have obtained at the Bridgend junction were consistent with black ice on an insufficiently salted road and the existence of extensive black ice on an unsalted road. He explained the use of the words "adequately" and "insufficiently" as meaning adequately or sufficiently "in time and quantity". A road that had insufficient salt on it at 0900 hours might have had adequate quantities some hours earlier.

".....the precipitation falling overnight and during the early morning hours of Saturday 23 December 1995 appears to have been heavy enough to have diluted and washed away even very significant amounts from the road surface. This precipitation would have rendered de-icing salt significantly less effective in preventing ice formation than it otherwise would have been.

Due to the fact that the surface temperature of even the coldest sections of road in that region is not likely to have been very much below 0 degrees centigrade around the time of the accident, I consider that, had the precipitation not been so heavy or prolonged, then even moderate amounts of de-icing salt could have remained effective during the period of concern."

At a later stage in his report he observed:

"It should be noted that there is reported to have been heavy rain and sleet in the material area following the previous precautionary salting operation undertaken [on the early evening of 22 December)]. As such, I consider it highly likely that, by the time of the second operation, the intensity of the precipitation may well have rendered the previously applied salt ineffective in preventing the formation of ice on road surfaces."

Submissions

The Reclaimer's Contentions

Contentions of the Respondents

[46] In paragraph [58] of his Opinion, the Lord Ordinary had rejected the only case specifically pled on behalf of the reclaimer, the so-called "deviation case". That part of the Lord ordinary's decision had not been challenged. Accordingly, what was under consideration in the reclaiming motion was the Lord Ordinary's handling of what had been called the reclaimer's inferential case, based upon the averments in condescendence 2 between page 7E and 8A of the reclaiming print. That case was simply to the effect that, had the L3 route been adequately salted on both lanes of the carriageway by the Council in the manner that they had averred and, in particular, salted between 5.40 am and 7.00 am on 23 December 1995, black ice would not have formed at the locus by the time of the accident. The reclaimer had contended that, since black ice existed at the locus at the material time, it could be inferred that insufficient salt had been spread there. If the cause of that insufficiency was dilution through precipitation, the reclaimer's case failed; if not, then the onus passed to the respondents to show that the insufficiency of salt was not due to the Council's negligence. The Lord Ordinary had held that he could not find that there had been insufficient precipitation at the locus and accordingly the reclaimer's case had failed. That conclusion was a result of the global assessment of the evidence. The respondents' overall submission was that the Lord Ordinary was entitled to reach the conclusions that he did. It could not be said that he had been plainly wrong to do so. In connection with this matter the evidence of Police Constable Bain had been important. It was submitted that the Lord Ordinary had been quite entitled to prefer his evidence as to the state of the locus at the material time, as opposed to evidence from other sources about that matter. He had provided adequate reasons for the view of the evidence that he had taken in that connection.

"It is quite true that a Judge who hears the witnesses has a great advantage in determining the question of their credibility, but when you have to deal with the inference which he draws from the evidence given before him, I think, before his finding is disturbed, it is absolutely necessary that the Court of appeal should be clear that he has drawn a wrong conclusion from the evidence"

In the same case, at pages 36 and 37, Lord Shaw of Dunfermline expressed his view thus:

"When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of appeal that says it will not interfere in a case which the Judge has announced as part of his judgement that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is of each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment."

That dictum of Lord Shaw of Dunfermline was approved by Lord Thankerton in Thomas v Thomas, at page 55. At pages 59 and 60, the same view was expressed by Lord Macmillan in these terms:

"The appellate Court has before it only the printed record of the evidence. Were that the whole evidence, it might be said that the appellate Judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is the evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusion, but it is not available to the appellate Court. So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial Judge, who has enjoyed the advantages not available to the appellate Court, becomes of paramount importance and ought not to be disturbed........The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong............If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial Judge."

"That the quantity and intensity of the precipitation in the vicinity of the Bridgend junction between the hours of 06.00 and 09.00 on 23 December were not such as would have washed away or diluted the effect of salt in solution at the locus by the time of the accident."

As appears from paragraphs [78] and [79] of the Lord Ordinary's Opinion, he declined to make that finding. If that finding was essential to the recliamer's case, so far as that case survived, which it was, it appears to us that the onus lay upon the reclaimer to prove it. Thus what is contended for in this reclaiming motion is that the Lord Ordinary was not entitled to refuse to make such a finding. Putting the matter otherwise, the contention must be that the Lord Ordinary was bound to have made the finding desiderated, having regard to the evidence. Plainly the difficulties involved in that contention for the reclaimer are formidable.

"To make a finding that the precipitation could not have washed away or diluted the effect of the salt, therefore, I would require to infer that something had gone seriously wrong with the spreading operation, to the extent that practically no salt was spread on a 200 metre (and only a 200 metre)

stretch of road; whether it be that an insufficient quantity of salt was loaded in the hopper; or that the gate at the back was blocked; or that the salt was wet and became clogged; or that there was a problem with the engine which drives the belt that pushes salt out of the hopper; or that some other problem occurred. No case was pled along these lines and no evidence was led to this effect. But I cannot, simply because there has been no investigation of those matters, put them out of mind entirely. It was always open to the pursuer to plead a case raising the issue, as a matter of inference, that there must have been some such problem and have sought to recover documents relating thereto. The lack of any information about this aspect is part of the overall picture that I have to take into account in deciding whether the pursuer

has shown, albeit on a balance of probabilities, that there was insufficient

rain to dissipate the salt; and that therefore the only explanation is

that no salt, or only minimal quantities, was spread. Of course, if the expert evidence led by the pursuer was sufficiently compelling and capable of being resolved in isolation with any degree of certainty, it could overcome these concerns. But I do not consider that it did lend itself to such an approach."