Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 53

 

A570/12

OPINION OF LORD MULHOLLAND

In the cause

(1) ANNA MARIE BOWES;  (2) DAVID EWAN BOWES;

(3) JEMMA LOUISE ILLINGWORTH;  (4) ANNE SCOTT;  (5) JUNE BOWES;

(6) BRIAN BOWES;  (7) DEBORAH BOWES and (8) CHRISTINE GRANT

Pursuers

against

THE HIGHLAND COUNCIL

Defender

First, Second, Third, Fifth, Sixth, Seventh and Eighth Pursuers:

Hanretty QC, and Lloyd; Aitken Nairn, W.S.

Fourth Pursuer:  McSporran;  Balfour and Manson LLP

Defender:  Milligan QC and Reekie, Ledingham Chalmers LLP

24 March 2017

Introduction
[1]        On 2 February 2010 at around 10am David Michael Bowes was driving his Toyota Hilux 4 x 4 pickup on the A838 road in a westerly direction.  Whilst travelling across the Kyle of Tongue bridge the vehicle crossed from the westbound to the eastbound lane, mounted the kerb on the north side of the bridge, collided with the parapet and fell into the water.  Unfortunately, Mr Bowes was unable to escape from the vehicle and drowned.  In this action, his partner Anne Scott (fourth pursuer), parents June Bowes and Brian Bowes (fifth and sixth pursuers), children Anna Marie Bowes, David Ewan Bowes and Jemma Louise Illingworth, accepted by the deceased as a child of his family, (first, second and third pursuers) and sisters Deborah Bowes and Christine Grant (seventh and eighth pursuers) seek damages from the defender on the basis that the accident was caused by the defender’s failure at common law to take reasonable care for his safety whilst crossing the bridge.

[2]        The case came before me for proof on liability.  Quantum of damages was agreed in the event that liability was established.  This is set out at paragraphs 7.1 to 7.5 of joint minute of agreement one (JM 1).  At the proof the pursuers led evidence in support of their case. The fourth pursuer, Anne Scott, the deceased’s partner for 10 years, gave evidence and led evidence from Kristun Scott, the fourth pursuer’s son and the deceased’s apprentice.  The first, second, third, fifth, sixth, seventh and eight pursuers led evidence from Ross Mackintosh, another of the deceased’s apprentices;  John Findlay, a member of the public who was first on the scene;  Ian Burns, a paramedic who attended the scene, PC Stokes, a police officer who attended the scene;  Alexander Morrison, the area supervisor with the defender’s roads department and a coastguard who attended the scene and helped with the rescue;  Ian Macleod, a paramedic who attended the scene;  Douglas Potter, a friend of the deceased’s partner who took photographs of the bridge six days after the accident;  PC Mathers,  who carried out an accident reconstruction;  Les Christie, the defender’s engineer who produced a report on the bridge in 2005;  John Webb, a civil engineer who co‑authored a report on the bridge in 2008;  Dr John Searle, a chartered engineer who produced an expert report;  and Ian Hunt, a bridge engineer who produced an expert report.

[3]        The defender led evidence at the proof.  Evidence was led from Ian Moncrieff, the Chief Engineer of Highland Council;  David MacKenzie, the Chief Structural Engineer for Highland Council;  Donald Louttit, a Principal Engineer for Highland Council;  Mark Littler, a Forensic Collision Investigator who produced an expert report;  and William Day, a Chartered Civil Engineer who produced an expert report.

 

The Deceased, David Michael Bowes
[4]        David Michael Bowes was born on 25 October 1963.  He was aged 46 at the time of his death.  He was self‑employed, running a heating and plumbing business, “David Bowes Heating and Plumbing”.  He employed three people.  He had three vehicles at the time of the accident, two vans and a pickup truck.  He was a careful and slow driver.  This was spoken to by his partner, Anne Scott, and Kristun Scott and Ross Mackintosh, two of his apprentice employees, who had all travelled in vehicles driven by him.  Anne Scott referred to him having to be urged sometimes to go faster and that he pointed out to his employees that his name and reputation was on the sides of the vehicles that they were driving when reminding them of the need to drive carefully and observe the speed limits.  Ross Mackintosh referred to a standing joke amongst the employees that on a Friday afternoon when travelling home having completed that day’s work, whilst the younger employees were eager to get home to prepare for a Friday night out, he would not be pressurised into driving faster to get home quicker. I accepted this unchallenged evidence.

 

The Bridge and Road
[5]        The accident took place on the Kyle of Tongue bridge which is owned by the defender.  The bridge, which was completed in 1971, forms part of the A838 which runs generally in an east to west direction.  The bridge traverses the Kyle of Tongue waterway.  The bridge carriageway is single lane with white centre lane markings.  The carriageways are narrow in comparison to the width of more modern carriageways on bridges.  The road surface is bitumen macadam with granite chip inlay.  The road is 5.45 metres wide, consisting of two lanes of equal width.  The road is bordered by a raised footway on either side.  The footway is 1.3 metres wide on the south side and 0.75 metres wide on the north side.  The length of the bridge is 183 metres and the overall width is 8.5 metres.  The drop from the bridge to the water is around 3 metres.  The road is straight.  The speed limit for the bridge was 70 mph when built and in February 2010 was 60 mph.  The bridge is not heavily trafficked and is the second longest bridge owned by the defender.  The bridge is an essential link for the local community.  It is used inter alia by a school bus provided by the defender, delivery lorries, tourist buses, a summer bus service between Inverness and Durness, and emergency service vehicles.  If the bridge was closed, depending on the size of the vehicle, a detour of around one hundred miles would be required.  Consequent to a special investigation in 1988, major repairs were carried out to the bridge in 1989.  The defender is the authority for managing and maintaining the bridge and its parapets, which is one of 1,400 bridges under the management of the council.  In addition to the management of bridges in the council area the defender is responsible for managing 700 culverts and over 1,000 retaining walls.

 

Events Prior to the Accident
[6]        On 2 February 2010 the deceased, David Michael Bowes left home at just after 8 am.  He met his employees to discuss that day’s work at the other end of the village where he lived with the fourth pursuer, Anne Scott.  He returned to his home for a cup of coffee before setting off in his vehicle at around 9.20 am to see a potential customer in Durness.  This required him to cross the Kyle of Tongue bridge in a westerly direction.  He was in no hurry and was in a good mood.  He drove his silver coloured Toyota Hilux 4 x 4 pickup truck, registration number SC09 VJL, to the bridge.  He was alone in the vehicle.  The weather between 9.20 – 10.00 am was poor with squalls of snow showers and the road surface was covered with snow and slush (JM1 at paragraphs 4.3 and 4.4).  The deceased crossed the bridge at around 10 am.  High tide on 2 February 2010 occurred at 9.50 am.

 

The Accident
[7]        There are no witnesses to the accident and what happened has had to be pieced together inferentially from real, expert, oral and agreed evidence.  As the deceased crossed the bridge his vehicle crossed from the west bound to the east bound lane, mounted the kerb on the north side of the bridge, collided with the parapet between stanchions 8 and 9 and fell into the water.  The 12 west most stanchions (numbers 1 – 12 left hand side) and railings on the north side broke off at the welds over a distance of about 38 metres and swung out from the bridge.  Stanchions 13 and 14 fractured but remained attached.  Dr John Searle, a Chartered Engineer, Fellow of the Institute of Mechanical Engineers and Fellow of the Institute of Highways and Transportation, who had extensive experience in conducting tests of vehicles colliding with parapets and fences at the UK research facility, described this phenomenon as being akin to the “unzipping” of this section of the parapet.  I accepted this evidence which was consistent with the photographs of the parapet post‑accident where the section of the parapet has separated from the bridge deck and swung away (appendix 2 photographs 7, 8 and 9 of the Northern Constabulary Collision Investigation Report which is 6/3 of the inventory of productions and photograph 14 of 6/79(c) which is one of a set of photographs taken by Northern Constabulary).  It is clear to me, as confirmed by Dr Searle, that the parapet at this section has not behaved as designed.  My finding in respect of this will be further set out in the section headed parapet.

[8]        The witness John Findlay, who knew the deceased, having done some jobs for him in the past, was the first person to arrive on the scene.  At or around 10 am he was driving to Tongue from Melness approaching the bridge at the west end of the causeway when he noticed that the railings on the north side of the bridge had disappeared off the bridge.  He stopped to see what had caused the damage and saw the rear end of a vehicle visible above the water line.  The vehicle was on its roof and the front of the vehicle was submerged.  The vehicle was slightly back from the edge of causeway, around 20 – 25 feet from the edge of bridge, at a slight angle.  The front of the vehicle was facing more to the east, skewed around clockwise.  He described the current as flowing out to the sea and forming eddies due to the volume of water.  He went to summon help and returned to the scene where paramedics and roads department personnel were in attendance.  He managed, with the help of others, to get a hitch onto the vehicle.  However, attempts to right it were unsuccessful and so a cargo strap was attached to the vehicle from a Roads Department gritter and the vehicle was pulled over, part way out of the water.  Alexander Morrison who assisted in attaching strapping to the vehicle had bravely, and without thought for his own safety, gone into the water.  He looked into the cabin and saw a body floating face down.  Once the vehicle was fully righted he was able to see that the head was near the steering wheel and the legs and feet were near the front passenger window.  There was no seat belt in operation but there was red strapping around the body which was normally used to secure cargo within the vehicle.  This was cut and the body was removed from the vehicle.  Mr Morrison checked that there was no one else in the vehicle.  There wasn’t.  Attempts were made by the paramedics to resuscitate the deceased but there were no signs of life and tragically the deceased was pronounced dead.  He could not be rescued in time and drowned whilst the vehicle was submerged in the water.  This evidence was uncontroversial and unchallenged and accepted by me.

 

Post Mortem Examination

[9]        The post-mortem report (6/2 of the inventory of productions) was agreed (JM 1, para 1.4).  The post-mortem examination took place on 4 February 2010 which confirmed death from drowning.  The deceased weighed 59 kilograms.  There was evidence of a blow to the head which may have incapacitated him but by itself this was not life threatening.  There were no other significant injuries.  There were some superficial injuries to the torso which are consistent with having been caused by the wearing of a seat belt.  This would suggest that he was conscious for a short period of time after the initial impact and released the belt.  There was no evidence of any significant natural disease which may have contributed to the causation of the accident.

 

The Deceased’s Vehicle -Toyota 4 x 4 Hilux Pickup Truck

[10]      The approximate weight of the vehicle at the accident was 2,050 kilograms (Northern Constabulary Collision Investigation Report which is 6/3 of the inventory of productions, which is agreed in JM 1, para 5.1).  This included a driver whose weight was 80 kilograms.  The deceased weighed only 59 kilograms but the vehicle was carrying some equipment which would make up the difference and I therefore hold that the weight of the vehicle, including the driver and equipment, at the time of the accident was around 2,050 kilograms.  A mechanical examination was carried out on the vehicle, which was six months old, by PC Mathers (corroborated by PC MacAskill).  No defects were found which could have contributed to the accident.  His report is 6/3 of the inventory of productions.  He and his colleague found that the driver’s seat belt was partially extended and able to retract.  This together with the injuries consistent with wearing a seatbelt and his fastidiousness for complying with the laws of the road, led me to conclude that the deceased was wearing a seatbelt at the time of the accident.  The vehicle was in 4 x 4 driving mode.  The airbags (driver and front passenger) had not been deployed (JM 1, para 4.8).  The airbags operate by means of sensors in the gearbox which monitor collision force deceleration and, according to PC Mathers and Dr Searle, whose evidence on this point I accepted, the airbags will not operate at speeds of less than 15 mph or where the vehicle strikes another object on the side.  In other words, the greater the frontal impact the more likely the airbags will activate.  The airbags were working, as when the ignition in this vehicle was activated the airbags go through a diagnostic check and a warning would be activated if the airbags were faulty.  No warning was logged.  The vehicle collided with the bridge parapet and the water and rocks below.  According to Dr Searle, whose careful and considered evidence on this point I accepted, he would have expected the airbags to have activated if the parapet was operating as it should.  With regard to damage to the vehicle, PC Mathers confirmed that the vehicle was examined in line with collision investigation procedures.  It was found to have suffered extensive damage to the nearside front and the roof of the cab.  The offside front wing had been forced back at its leading edge.  This damage was at the point where the plastic bumper met the wing.  The bumper was missing, possibly swept away by strong water current.  The nearside front wing had extensive damage whereby it had been forced in towards the inner wing and suspension components.  This had caused the nearside chassis leg to be forced inward towards the centre of the vehicle.  The bonnet had impact damage on the nearside and offside front. Both front lamp units were missing.  The nearside and rear of the pickup body had impact damage along its top edge.  No impact damage was found on the offside rear of the vehicle. The roof panel had impact damage along its entire length.  The front windscreen had been shattered but was still with the vehicle.  The rear nearside passenger door window, the rear nearside window and the rear window had been shattered.  The nearside tyre was fully deflated but still on the wheel.  It had damage to the outer side wall adjacent to impact damage to the steel wheel rim.  Of particular significance was the damage found on the front bumper iron which had caused it to fold backwards near its centre.  This damage can be seen in photograph 33 of 6/79(c) of the inventory of productions.  It is clear that the damage to the cross plate below the bumper doesn’t appear to be impacted in the same way as the damage above.  In other words, the damage is not linear and uniform to ground level consistent with impact with a parapet stanchion.  This was inconsistent with the findings and opinion of the witness Mark Littler who was led by the defender and produced a report dated 23 December 2013 (7/3 of the inventory of productions) where at paragraphs 83 and 143 he concluded that the damage to the cross member and radiator is consistent with having been caused by an impact with a vertical post or stanchion. In evidence, he accepted that he was wrong on the basis that the damage, as pointed out to him and previously spoken to by PC Mathers, was not linear and uniform to ground level. This was not the only error by this witness and I found him superficial, prone to a rush to judgment and generally unimpressive.

 

The Cause of the Accident
[11]      There was no evidence that the deceased’s loss of control was caused by mechanical failure or medical condition.  Nor was there any evidence that the bridge carriageway surface was responsible or partly responsible.  There are no witnesses to the accident and the deceased’s account is not available.  A number of witnesses who were quickly on the scene spoke to seeing tyre tracks in the slush.  These tracks were understandably not photographed as the focus of the attendees was on a possible rescue and by the time witnesses were in a position to record the scene the slush had melted and the tyre tracks had all but disappeared.  The evidence was of a set of tyre tracks beginning in the westbound carriageway and gradually veering into the eastbound carriageway, where the tracks ended where the deceased’s vehicle collided with the parapet.  The paramedic, Ian Burns described the tracks as veering at a shallow angle across the opposite carriageway to where the barrier would have been. He used the phrase “gentle curve” to describe the angle of the tracks from their beginning to their end.  PC Rodney Stokes described the tracks as one continuous process, not at an acute angle.  The tyre tracks were also spoken to by the paramedic, Ian Macleod and John Alexander Findlay, the first person on the scene.  What is also of significance is the absence of tyre track movements indicating that the vehicle had violently swerved.  The said witness, Ian Burns said specifically that there were no such “balletic” movements.  Although it is difficult for understandable reasons to be entirely accurate about the length of the tyre tracks, in particular where they began, the witness PC Rodney Stokes estimated the length at between 40 – 50 metres.  This is broadly consistent with the use of photographs by the witnesses Ian Burns (6/79 (c) photograph 12 of the inventory of productions (bottom left hand side vehicle in photograph)) and Ian Macleod (emergency vehicle nearest the camera) to estimate where the tyre tracks began.  Putting all this evidence together, which I accepted, the deceased lost control of his vehicle and it gradually, at a shallow angle, veered across the carriageway crossing from his own lane to the lane reserved for vehicles travelling in the opposite direction, without any discernible attempts to rectify the loss of control, mounted the pavement and collided with the parapet. This took place on a long straight stretch of road.  On the evidence presented to me the loss of control was not due to a medical condition or mechanical defect.  There is no non‑negligent explanation for the loss of control and manner of driving (Weatherstone v T Graham & Son (Builders) Ltd [2007] CSOH 94 per Lady Dorrian at para 16).  It is an inescapable inference that the loss of control was due to the negligence of the driver. Drivers must drive for the conditions and even careful drivers, such as the deceased, make mistakes. I therefore hold that the loss of control was due to the fault of the deceased and not due to any failure on the part of the defender, which in any event was not a case pled by the pursuers.

[12]      With regard to the angle and speed at which the vehicle struck the parapet, various attempts were made at providing answers to these questions.  Methodologies included interpreting the damage to the vehicle, using mathematical formulae or relying on the assessment of witnesses who have not seen the collision.  It was apparent to me hearing and assessing this evidence that there were fundamental flaws to the various methodologies.  With regard to the interpretation of the damage to the vehicle, the vehicle had not only impacted with the parapet, which from the very limited strength of the section of parapet collided with would not have caused all the damage to the vehicle, it had impacted with the water and the rocks below.  The water was deep at the time as a result of a high tide and the rocks are large and jagged, as can be seen from photographs 17 and 18 of 6/79 (c) of the inventory of productions.  The dangers of going down this route were illustrated by the witness Littler who wrongly interpreted damage to the cross member and radiator as consistent with having been caused by a collision with a parapet stanchion.  He ultimately accepted that he was wrong on this and the damage to this part of the vehicle was induced damage.  With regard to the application of formulae, the accuracy of the results is dependent on the numbers input.  Assumptions require to be made, for example different expert witnesses had different views on what the number representing the co efficient of friction for the conditions should be. More difficulties arose from the application of formula based on the landing position of the vehicle (the greater the distance from the bridge the greater the speed on impact).  Given the absence of witnesses to the accident, the currents and eddies, the fact that the accident took place at high tide rendering the water deep, the effect of collisions with the water and rocks, the rescue efforts and the various attempts to retrieve the vehicle, initially unsuccessfully, the vehicles landing position cannot be discerned with any certainty.  A good example to illustrate the dangers of this approach came from the evidence of the witness Littler who wrongly assumed that the vehicle’s final position was its landing position.  Added to this was his lack of knowledge of the behaviour of parapets and lateral and longitudinal velocities, as calculated by him, producing accelerations and speeds at impact which were incredible (120mph – longitudinal velocity) and angles which were wholly unrealistic, if not impossible (as accepted by the witness).  I rejected this witness’s evidence as given these errors, on important points, his lack of knowledge of the behaviour of parapets and his superficial approach, I was not prepared to place any reliance thereon.

[13]      With regard to the vehicle’s original resting place, the witness Findlay estimated that the rear end was about 20-25 feet from the bridge at high tide when so much water was flowing that it formed eddies.  The witness Burns described the vehicle at about 20 feet from the water’s edge and about another 10 feet from the bridge.  The witness Macleod thought the vehicle was 10 – 15 feet from where the rocks met the water.  He described seeing the vehicle bobbing up and down with the rear wheels moving when a large wave reached the vehicle.  The witness Moncrieff, the defender’s principal engineer who arrived at the scene between 12 noon and 12.30 on the day of the accident, produced a photo-diagram in late 2012 (7/15 of the inventory of productions) and a plan on 5 September 2013 (7/14 of the inventory of productions) to try and identify where the vehicle came to rest.  His methodology was to identify the recovered position of the vehicle and then work backwards to determine the position of the vehicle before it was righted.  The yellow rectangle to the right of 7/15 is said to be the initial position of the vehicle before it was righted.  This position was plotted on the basis of the debris field from the vehicle and the recollection of the witness Morrison.  The witness Morrison was not the first on the scene, in fact he was alerted to the accident by telephone call from a gritter driver shortly after 10am and he travelled half a mile from the depot to the scene.  During his evidence, he accepted that the right rectangle was “roughly” where he had seen the vehicle was at first.  He had done no measurements and had no input in drawing the yellow rectangles in the photo-diagram (7/15 of the inventory of productions).  Whilst all these witnesses were doing their best to assist there is no consistency of account and no precision such that the position of the vehicle, before it was righted, could be accurately determined.  This is understandable given the situation faced by these witnesses.  Their first and only priority would be to save life, if possible.  The position of the vehicle for use in litigation many years hence would be nowhere near the forefront of their minds.  With regard to 7/14 and 7/15 of the inventory of productions, I do not regard this as accurate such that it could be used with confidence in the application of formula to determine the speed of the vehicle at the point of collision.  The vehicle’s position as shown in the right hand rectangle of 7/15 was used by the witness Littler as the foundation for his calculations (7/3 of the inventory of productions, report by the witness Littler at para 116).  As I have already commented, the results of Mr Littler’s calculations, as accepted by him, were proved to be impossible.

[14]      As I have alluded to, the initial resting place of the vehicle, if it could be accurately determined, would be important as a component in the formula to calculate the speed of the vehicle on impact – the greater the distance from the bridge the greater the speed on impact. I have held that the initial resting place of the vehicle before it was righted cannot be accurately determined.  There are no eye witnesses to the speed of the vehicle on impact and the tyre tracks will not assist with the calculation of speed.  I agree with the police officers who produced the collision investigation report that it has not been proved possible to calculate a speed for the vehicle at impact (paragraph 8.1 of the Northern Constabulary Collision Investigation Report which is of 6/3 of the inventory of productions).  Whilst it is impossible on the evidence to state the precise speed of the vehicle on impact, there is an evidential base, namely the careful nature of the deceased’s driving spoken to by his partner and employees, to hold that the deceased would not be exceeding the speed limit which is 60 mph for the bridge.  The speed would be significantly lower than 60mph given the weather conditions, the fact that the airbags did not deploy, and the very limited impact damage to the parapet railings.  The witness Dr Searle said in evidence that the speed of the vehicle was considerably less than 50 mph.  He gave a range of between 20 – 40 mph based on the findings, including the limited damage to the parapet and to the vehicle. Dr Searle’s evidence was criticised by the defender for being partial. He had strayed from his field of expertise in previous cases which resulted in judicial criticism.  Dr Searle was aware of this criticism and had taken steps to address it (a barrister friend would critique his report before issue to ensure that it does not stray outwith his area of expertise) although there was doubt as to whether this had been applied to his report in this case (6/47 of the inventory of productions).  Despite this legitimate criticism, I was impressed by Dr Searle.  He is a recognised expert in the behaviour of parapets having worked for 25 years or so at the MIRA (Motor Industry Research Association) which conducts research inter alia into the behaviour of parapets upon being struck by vehicles.  He worked at the UK centre for this work.  It was clear to me from hearing his evidence that he had a detailed understanding and knowledge of this topic. I did not regard him as partial in his evidence.  On the contrary I had the impression that he was a careful witness who was not prone to exaggeration.  He was well aware in this case of his duty to the court as an expert witness, no doubt reinforced by judicial criticism in previous cases. I accepted his evidence as credible and reliable.

[15]      Returning to the angle of impact, it is difficult to be precise.  Given the fact that there were no eye witnesses to the accident the only real aid to discerning the angle is the tyre tracks. For the reasons set out above I do not think that much reliance can be placed on the position of the vehicle whilst in the water as a reference point for working out the angle of impact.  As explained by Dr Searle it is difficult to be precise about an angle at ground level and I repeat that the witnesses on the scene shortly after the accident would understandably focus on the rescue rather than taking precise measurements of the angle of tyre tracks at the point of impact or the vehicle in the water in relation to the parapet.  These witnesses are being asked to estimate the angle of impact years after the accident.  The witness Burns estimated the angle of impact at about 20 – 25 degrees and PC Stokes estimated the angle at between 20 – 30 degrees. PC Mathers did not feel able to comment on the angle. Dr Searle was of the view that 20 degrees was about the greatest achievable (dry conditions at full lock) but was probably much less than 20 degrees.  An angle is calculated by applying a mathematical formula to the measurements of two sides of a triangle.  To demonstrate the unreliability of estimates of angles I noted that PC Stokes estimated an angle of 20 to 30 degrees.  However, this is inconsistent with the application of the formula to the known width of the road and his estimate that the tracks travelled between 40 to 50 metres.  Given the narrowness of the road, the weather conditions and the shallow angled tyre tracks I agree with the submission that the angle was 15 degrees or less.  As Dr Searle stated (paragraph 9.4 of his report which is 6/47 of the inventory of productions):

“If the Hilux had been travelling at 50 mph, an angle of 20 degrees would not be achievable. On this slushy road, with a coefficient of friction of say 0.30, the Hilux might achieve an angle of 12 or 13 degrees if the driver drew close to his nearside kerb and then deliberately swerved at the maximum towards the offside….If the driver has been merely following the carriageway rather than positioning himself for a swerve, and if he lost control on the slippery surface rather than actively trying to drive off the bridge, then the angle would of course be less.”

 

Dr Searle gave his evidence before Mark Littler gave evidence. When asked to comment on Mr Littler’s report he was critical about his conclusions, particularly his narrative where he had the vehicle changing angles with no events to explain the changes of angle and multiple centres of gravity which seemed to him to be impossible.  He was ultimately proved right when Mr Littler accepted the criticisms and departed from his theory during his evidence. I did not accept Mr Littler’s estimation of the angle of impact as being in the range of 18 – 22 degrees (handwritten calculation which is 7/43 of the inventory of productions).  I preferred Dr Searle’s evidence on this which is consistent with the descriptions of the tyre tracks (shallow and not acute), the narrow road, the weather conditions and the description of the deceased as a cautious driver.  Dr Searle had the necessary experience and expertise to provide an informed opinion on this.  This is relevant when considering the containment capacity of the parapet, when operating as designed, which I will now address. 

 

The Parapet
[16]      At the time it was built the bridge was fitted with an aluminium parapet on both sides.  From 1967 onwards the requirement for and design of parapets was subject to Ministry of Transport Technical Memoranda (6/59, 6/60 and 6/61 of the inventory of productions).  This included parapets on bridges. Parapets are designed to protect pedestrians and/or drivers (6/59 of the inventory of productions).  The parapet on the Kyle of Tongue bridge is a BACO type P2(80) parapet consisting of aluminium posts (or stanchions) welded to aluminium base plates.  The base plates are anchored to the bridge by four bolts and three horizontal aluminium rails are bolted to the posts.  Two excellent photographs of a section of the parapet showing the stanchions and horizontal rails are 30 and 31 of 6/79(c) of the inventory of productions.  An excellent photograph of the base plate and bolts is photograph 20 of 6/79(c).  There are 116 stanchions on the bridge with 58 on each parapet.  The posts are designed to be frangible, to shear at the welds to enable the rails to deform and contain errant vehicles.  As Dr Searle explained, a parapet is designed to re-direct the vehicle back into the carriageway.  The aluminium rails when struck will operate like elastic whereby the vehicle’s energy is absorbed and the vehicle is re-directed using the energy and elasticity in the rails.  The rails behave in this way by the shearing off of the stanchions at the point of impact.  The video clip of test K0019 dated 4th December 1992 taken by MIRA on behalf of the Transport Research Laboratory (TRL), acting for the Bridge Engineering Division of the Department of Transport, was played during the proof (7/17 of the inventory of productions).  This showed the operation of a parapet working as it should.  The unzipping effect of the parapet described by Dr Searle, referred to above, is not the way in which the parapet is designed to operate.  As agreed at paragraph 2.9 of JM 1, the parapet on the Kyle of Tongue bridge on 2 February 2010 was a vehicle pedestrian BACO parapet designed to contain vehicles weighing up to 1.5 tonnes, travelling at 50 mph and striking the parapet at an angle of 20 degrees.  A helpful table of containment figures is produced in the report by Mark Littler which is 7/3 of the inventory of productions (page 23).  The figures in this table were not challenged by any of the expert witnesses and I accept that it gives an accurate assessment of the containment capacity of the parapet, when acting to its design capacity, based on weight, speed and angle of impact.  As explained, on the day of the accident the weight of the vehicle was 2,050 kg, the speed was in the range of 20 – 40 mph and the angle of impact was less than 15 degrees.  Applying these figures to the figures in the table, it is clear that even when taken at the top of the range (40mph and 15 degrees; weight constant), the figures are well within the design capacity of the parapet (entry three is the nearest on these figures).  I therefore hold that had the parapet been acting to its design capacity, the Toyota Hilux driven by the deceased would have been contained by the parapet and the vehicle would not have left the bridge and the deceased would not have drowned.  At worse given the absence of any other traffic at the time he would only have sustained minor injury.

 

Inspection and Maintenance
[17]      The defender’s system for inspection of the bridge (including the parapets) consisted of a general inspection every three years and a principal inspection every nine years.  The general inspections were visual inspections and the principal inspections were carried out using specialist access (divers and traffic controlled access to bridge).  On 19 and 20 July 2005, a principal inspection was carried out on behalf of the defender by Les Christie.  Mr Christie was the engineer responsible for the bridge until 2008.  He prepared a report on his findings which is 6/5 of the inventory of productions.  Defects were found on the bridge which are detailed in the report.  In summary, major structural elements were continuing to deteriorate, principally (1) concrete deterioration due to reinforcement corrosion, (2) concrete spalling and cracking of the beam soffits and pile caps, (3) continuing reinforcement corrosion, (4) a number of main deck pre-cast beams displayed signs of significant concrete deterioration, and (5) the coating condition of the steel piles was deteriorating within the tidal zone with localised complete breakdown of the paint system.  With regard to the parapets, a numbering system for the 58 posts on either side was used.  The posts were numbered, starting from west to east (numbers 1 – 58).  The eastern side of the bridge is the Tongue side.  The left-hand side is the seaward side (the side where the deceased left the bridge) and the right hand side is the landward side.  With regard to the left-hand side, defects were found on post to base welds numbers 14, 43, 53, and 56.  A cracked base casting was detected at 13 and there was a deflection in the rail between posts 24 - 36.  With regard to the right-hand side, cracked base castings were found at posts 28 and 29.  An eroded bedding (bolt exposed) was found at post 2.  A deflection in the rail between posts 34 – 36 was found and a mesh infill mid panel was missing between post 19 and 20.  For orientation the deceased’s vehicle collided with the parapet between stanchions 8 and 9, left hand side, and stanchions 1 – 12, and railings, broke off at the welds and swung out over the bridge. In essence the aluminium parapet had failed due to cracked post based castings and post/base casting welds.  In the summary of Mr Christie’s report, he recommends that major repairs to the structure are carried out without delay and in respect of the parapet within the next financial year.  I should add that Mr Christie was well aware of the constraints on the defender’s budget (e mail from Mr Christie to Robin Risbridger dated 6 February 2008 expressly refers to this - No 6/41 of the inventory of productions) and would not have made this recommendation in ignorance of the financial position of the defender.  In the section headed, “Summary of Defects and Maintenance Prioritisation” a maintenance priority ranking is set out ranging from 1.  Insignificant 2.  Minor 3.  Unacceptable and 4. Severe:  Action Needed.  With regard to “severe” it covers defects currently affecting the integrity of the structure whereby it is essential to repair at an early date, it could become hazardous if left and the cost of repair/damage to the structure is escalating rapidly.  3.  “Unacceptable” should not be left for 6 years until the next principal inspection.  Rapid deterioration and escalation of repair cost is inevitable if left unrepaired, could become severe affecting the integrity of the structure.  The defects to the bridge were categorised as 3 or 2 but the defects to the parapet were categorised as 4 – severe (the only severe in the report).  Mr Christie said that he gave this rating as he was concerned about safety.  Mr Christie also made recommendations in his report.  In section 7.0 he recommended that (1) the design and implementation of repair works should proceed in the next financial year, (2) general inspections should monitor the structure condition if repairs are delayed, (3) the bridge parapet condition should be checked twice yearly to monitor deterioration, until parapet replacement is carried out, and (4) a special inspection of the steel work piling protective system should be carried out.  Costings for the works were provided.  The overall cost of the work is estimated at £1,544,000 which includes the work to replace the parapets, which was estimated at around £150,000.

[18]      Mr Christie said in his evidence that parapets were needed on bridges because things happen.  He explained that if one or two posts failed he was concerned that if a vehicle hit the parapet it would not act as it should, it wouldn’t act as an elastic band propelling the vehicle back into the carriageway, and the vehicle could go over the bridge.  He wasn’t confident that the parapets had the capacity to restrain vehicles within its own theoretical design capacity.  He recommended repairs should be carried out as a matter of urgency, both in relation to safety and costs, which were going to accelerate.  In his words, something needed to be done about the parapets as soon as possible.  He said that he discussed interim measures with his boss, Mr Louttit in August 2005.  He verbally recommended that interim measures needed to be put in place pending replacement of the parapet.  Mr Louttit agreed that this conversation took place.  The interim measures proposed were a temporary barrier, the introduction of traffic lights, reduction to single lane passage, and a reduction in the speed limit to 30 mph in any event (the speed limit of 60 mph was too high for the parapet type).  Mr Louttit rejected these proposals.  With regard to the reduction in the speed limit this was rejected on the basis that it was pointless as a reduced speed limit would not be observed.  I did not consider this to be a valid reason as applying this reasoning to the country at large there would be little or no speed limits.  Mr Louttit, who had not inspected the bridge, did not think that temporary measures were necessary or appropriate due to the light traffic on the bridge, good visibility, straight road, the absence of an accident history, and the fact that the bridge structure would not be compromised by a collision with a parapet.  Mr Christie did not include his proposal for interim measures in his report.  There is no written record of this important conversation which is a matter for concern as it related to safety.  Twice yearly monitoring of the bridge and parapets was recommended in the report.  Mr Louttit agreed with this recommendation and the monitoring was introduced.  I had the impression from his evidence that Mr Christie reluctantly agreed not to include his recommendation for interim measures in the report.  He seemed to me to be a diligent and principled man who, despite the fact that he is now retired, was still loyal to his former employer and colleagues.  Despite his loyalty, he was motivated by safety concerns and concerned at the condition of the bridge, including its parapets and the risk to the public.  The contents of the report on the condition of the parapets must have been of real concern to him given the responsibility he had for the bridge.

[19]      Further inspections were carried out on 22 February 2006, 27 June 2006, 6 December 2006, 4 September 2007 and 10 January 2008.  The results of the inspections are detailed in the Parapet Defect Monitoring Records which are 6/12 and 6/25 of the inventory of productions.  The results are as follows (numbers which are shaded indicate that the defect is new):

22 February 2006

LHS – Post to base welds cracked – 14, 32, 35, 43, 44, 46, 53, 56;

Cracked base castings – 13, 19 (starting to deform),

RHS - Cracked base castings -28, 29

Eroded bedding (bolt exposed) – 2

Mesh infill missing – between posts 19 and 20

27 June 2006

LHS - Post to base welds cracked – 14, 32, 35, 43, 44, 46, 53, 56 (4 faces)

            Cracked base castings – 13, 19 (minor deformation)

RHS - Post to base welds cracked – 27

Cracked base castings – 8 (crack starting), 28, 29 (also corrosion), 33 (crushed washer), 34, 35

Mesh infill missing – between posts 19 and 20

6 December 2006

LHS - Post to base welds cracked – 14, 32, 35, 43, 44, 46, 53, 56 (4 faces)

Cracked base castings –13, 19 (minor deformation), 41, 49,

RHS - Post to base welds cracked – 27,

Cracked base castings – 8 (crack starting), 28, 29 (also corrosion), 33 (deformed and cracked washer), 34, 35, 38,

Corrosion of base casting – 29 (also cracked), 30,

Mesh infill missing – between posts 19 and 20

4 September 2007

LHS - Post to base welds cracked – 14, 32, 35, 43, 44, 46, 53, 56 (4 faces)

Cracked base castings –13, 19 (minor deformation), 41, 49,

RHS - Post to base welds cracked – 27,

Cracked base castings – 8 (crack starting), 28, 29 (also corrosion), 33 (deformed and cracked washer), 34, 35, 38,

Corrosion of base casting – 29 (also cracked), 30,

Mesh infill missing – between posts 19 and 20

10 January 2008

LHS - Post to base welds cracked – 14, 18, 32, 35, 43, 44, 46, 53, 56 (4 faces)

Cracked base castings –13, 19 (minor deformation), 41, 49,

RHS - Post to base welds cracked – 27,

Cracked base castings – 8 (crack starting), 28, 29 (also corrosion), 30, 33 (deformed and cracked washer), 34, 35, 38,

Corrosion of base casting – 29 (also cracked), 30,

Mesh infill replaced – between posts 19 and 20

[20]      A number of points can be made.  Firstly, no defects had been detected in the section of parapet which failed (LHS numbers 1 – 12), and new defects were being detected in other sections on all but one inspection. Secondly, the defects detected (cracks and corrosion) were serious enough to adversely affect the containment strength of the parapet.  Thirdly, the inspection only picked up defects which could be detected visually.  Defective welds, whereby the weld was not of sufficient depth to provide the strength necessary, would be unlikely to be detected on a visual examination.  Further, if the welds of the box section to the base plate were not continuous, water ingress and corrosion could occur.  I note that Mr T Norman, Principal Metals Consultant, Environmental Scientifics Group Ltd conducted a metallurgical examination of three posts or stanchions (numbers 9, 10 and 11) and base plates after the accident.  Numbers 9, 10 and 11 had not featured as defects in the inspection reports. In his report, which is 6/58 of the inventory of productions and the subject of agreement (JM 1 at paragraph 5.5), he states that the weld profiles were considered to be irregular and evidence of lack of root penetration and fusion was noted in the welds at the front.  Porosity was also noted in areas in the welds and corrosion was observed in the base plates.  He considered that the general quality of the welding was poor and would not meet approval to the relevant standards of welding.  Fourthly, albeit the number of defects detected was not accelerating, the number of defects was continuing to increase and there was no rational basis on the evidence for stopping the twice yearly inspections, which is what happened.  The defenders ceased monitoring the parapet after the 10 January 2008 inspection.  This decision was taken by the witness Ian Moncrieff, who was principal Engineer responsible for bridges in the Caithness area in 2008, having taken over responsibility for the bridge from Les Christie.  His explanation for discontinuing the twice yearly inspections, agreed upon in 2005 on safety grounds, was that the number of new defects had dropped to zero in percentage terms, the prospectus for repair was due to be issued and at some time in the future, possibly one or more years, major works would be carried out to the bridge.  He described his decision as a deferment, which was misleading as it was clear to me that the decision was a discontinuance.  I considered him to be defensive which was shown in his attempt to undermine the inspection carried out by Les Christie in 2005. Despite Mr Christie’s inspection having been carried out over two days, involving the use of specialised equipment to access the bridge, and no concerns having been raised at the time about his methodology and findings, the witness Moncrieff sought to criticise Mr Christie’s inspection as being flawed in respect that he had identified cracks in the parapet when they were, according to him, dirty marks.  Mr Moncrieff’s view was that his video inspection carried out after the accident was more reliable and provided a better analysis of the defects in the parapet. I reject his evidence on this matter.  It was noteworthy to me that the Chief Structural Engineer for Highland Council, the witness David Mackenzie, when interviewed by the police after the accident was unaware that the twice yearly inspections had ceased.  He was equivocal in his evidence on whether he agreed with the decision but sought ex post facto to justify his colleague’s decision, broadly for the same reasons.  The witness Donald Louttit, Principal Engineer for structures with the defender and Les Christie’s boss at the time that the decision to institute twice yearly inspections was taken, was also unaware of the decision to discontinue the inspections.  He was surprised when he learned of the decision and would have continued with the monitoring.  As was made clear in the Highland Council Bridge Maintenance programme Sutherland for 2005 – 2015 dated 3 October 2005, number 6/20 of the inventory of productions (JM 1, paragraphs 3.4 and 3.12) the bridge parapet was failing and should be replaced on public safety grounds as soon as possible.  The programme estimated the cost of replacement of the parapet in 2005 at £140,000.  This was not done prior to the accident and twice yearly monitoring was instituted instead.  Notwithstanding that the defects were not being repaired (the council’s intention was to replace rather than renew), new defects were being discovered in all but one inspection, no date was yet scheduled for the bridge and parapet repairs, the inspections were visual and did not detect latent defects, the cause of the defects was freeze/thaw and water ingress which was likely to continue, and that the reports on the parapet obtained by the defender stated that the defects were severe affecting the integrity of the structure, should be repaired at an early date and could become hazardous if left (2005 Principal Inspection Report from Les Christie which is 6/5 of the inventory of productions), a decision was taken to discontinue the monitoring.  This decision is all the more inexplicable given the e mail from Les Christie copied to the witness Moncrieff dated 6 February 2008, No 6/41 of the inventory of productions, at or about the time the decision was taken, drawing his attention to the report and expressing his concerns about the bridge.

[21]      In 2008 the defender commissioned a report on the bridge and parapet from Faber Maunsell, Consultant Engineers (now part of the AECOM group).  The report is dated 19 September 2008 and is 6/4 of the inventory of productions.  In the report, it was noted that the bridge parapet did not comply with current standards for restraint and was classified as low containment against the standards currently prevailing.  The defects in the parapet were noted and were described as a reduction in the containment strength, additional to the defined status of non-compliance.  The report notes that the containment level is currently unclear, which is consistent with paragraphs 3.9 and 3.10 of JM 1 to the effect that, as at July 2008, the containment strength of the parapet had been adversely affected by the cracks in the castings and welds and was unclear.  Mr Moncrieff in his evidence had a limited recollection of the Christie report and couldn’t remember looking at the Faber Maunsell report when the decision was taken to stop the twice yearly inspections.

[22]      In my opinion the decision to discontinue monitoring was wrong, did not make sense, was against previous advice and, in relation to a matter clearly related to safety, meant that the defender had no idea of the containment strength of the parapet, if any, whether it was continuing to deteriorate, to what extent and rate it was deteriorating, and what measures, if any, should be taken to deal with the problem.  The decision was taken in the face of the warnings given by Les Christie, the engineer in charge of the bridge who carried out the Principal Inspection in 2005.  The effect of the decision was that the defender was blind to the state and containment capacity of the parapet from 2008 and was not in an informed position to consider what safety and interim measures should be taken in relation to the parapet.  It was essential that the decisions on the parapet should be kept under review and revisited in light of the state of the parapet going forward. 

[23]      With regard to the assessment of risk it was agreed (JM 1, paragraph 3.22) that the defender did not carry out any road restraint risk assessment (RRRAP) or any risk assessment in relation to the parapet prior to the accident resulting in the death of the accused.  Given that the restraint capacity of the parapet related to safety, as the defender well knew, and the consequences of a defective parapet with little or no restraint capacity could lead to the death of a member of the public, it is surprising and alarming that basic health and safety principles of risk assessment were not applied to the critical issue of the safety of the parapet.  A written risk assessment was carried out by the defender post‑accident in February 2010, which is 7/20 of the inventory of productions.  This produced a figure which did not justify upgrading the parapet.  The fact that this was produced within weeks of the accident is proof that it could have and should have been done prior to the accident and seemed to me to be ex post facto justification of the decisions taken pre accident.  I did not place any weight on the risk assessment as in my opinion there were a number of flaws in the methodology, in addition to the timing of it.  The methodology made no reference to the fatal accident which had just happened.  I would have expected that the accident would have been factored into the risk assessment, particularly as extensive damage had been caused to the parapet, with around 40 metres of parapet missing.  Further, the figure for the remnant capacity of the parapet is given as 75%.  No logical explanation was given for this figure.  This figure seems to me to be very optimistic when set against the facts that (1) the defender did not know the containment capacity of the parapet prior to the accident, (2) the missing 40 metres of parapet, following the accident, (3) the defects known and not known prior to the accident affecting the containment capacity, (4) the complete failure of the section of the parapet, described as unzipping, to behave as intended when a vehicle travelling at a low angle and at a speed of 40 mph or lower collided with it and, (5) as with any risk assessment, it must be applied and combined with engineering judgement.  No engineering judgment was applied to the results of the risk assessment.  The witness William Day, who was led by the defender, is a Chartered Engineer, a specialist in vehicle restraint systems and a technical advisor to Highways England.  He stated that the appropriate risk assessment tool is contained in IAN 97/07 which introduced the system for existing parapets to be assessed so that replacement standards could be considered (6/51 of the inventory of productions).  Applying this risk assessment tool, which is known by the acronym ALARP (as low as reasonably practicable), produces a result which did not justify the upgrading of the parapet, only the monitoring (7/4 and 7/7 of the inventory of productions). However, as he himself recognised, engineering judgment should be applied and this is consistent with IAN 97/07 at paragraph 6.7 which provides that:

“Parapets with known faults built since 1967 should generally be assessed on the basis of engineering judgment, considering the likely loss of the as – built capacity caused by known faults and defects.”

 

The engineering judgment of Les Christie, the person responsible for the bridge in 2005, who conducted the principal inspection, was that the design and implementation of repair works should proceed in the next financial year, the bridge parapet condition should be checked twice yearly to monitor deterioration until the parapet replacement was carried out, and interim measures should be put in place.  The parapet was replaced after the accident which is the application of engineering judgment over pure risk assessment, which as counsel for the first to third and fifth to eighth pursuers submitted, could justify there being no parapet on the bridge.  The bridge is essential for remote communities over which school buses and emergency services travel.  The safety of these communities is as important as the safety of communities in the busy conurbations of the central belt and, as the defender recognised after the accident, engineering judgment required there to be a functioning parapet.  It is therefore clear to me on the evidence that the pursuers have established that immediately prior to the accident the defender knew that (1) the parapet was not compliant with current standards, (2) it was defective, (3) its containment capacity was compromised to an extent which was unknown, (4) it would not operate as intended, and as a result a motorist who lost control of a vehicle and collided with the parapet could go off the bridge into the water below with a risk to life, and (5) had the parapet had been operating as designed it would have contained the vehicle on the bridge carriageway and the deceased would not have lost his life.

 

The Pursuers’ and Defender’s Cases Summarised
[24]      It is not the pursuers’ case that the defender was obliged to replace the parapet before the accident.  The pursuers’ case as set out in the pleadings is that in accordance with the common law duty of care, interim measures should have been introduced by the defender prior to the accident or alternatively the bridge should have been closed.  At page 47 of the pleadings the pursuers set out their case as follows:

“It was their duty to have installed a temporary secondary barrier, in conjunction with temporary measures to reduce speed of traffic and warning signs. Such a barrier would have prevented the deceased’s vehicle impacting upon the parapet, and his vehicle leaving the bridge. The introduction of a reduced speed limit and warning signs would have enhanced the effectiveness of such a barrier. It was their duty to take these measures, expeditiously, and a fortiori following receipt of the Faber and Maunsell report. Alternatively, esto (which is denied) the taking of such interim or temporary measures was not required in the exercise of reasonable care, for budgetary reasons, it was the defenders’ duty to have closed the bridge, as an interim or temporary measure to minimise risk from the state of the parapet. In these duties the defenders failed and by their failures so caused the deceased’s death, but for their failures in duty the deceased’s death would not have occurred.”

 

The interim measures are a temporary barrier, a reduction in the speed limit to 30 mph, temporary traffic lights and consequential single lane carriage and warning signs.  The defender’s case as at conclusion of the proof was that the defender did not owe a duty of care to the deceased and as a result there was no obligation on the defender to provide a parapet of any strength, and therefore no requirement to put in place temporary measures pending replacement of the defective parapet.  Given the low risk of an accident arising out of the condition of the parapet temporary measures were unnecessary given their cost, limited utility and the other risks created by such measures.

 

Duty of Care
[25]      With regard to whether the defender owed a common law duty to the deceased and, if so, the nature and scope of that duty, JM 1 provides at paragraph 2.20 that the defender was at all material times the roads authority responsible for managing and maintaining the bridge and its parapets.  The Roads (Scotland) Act 1984 section 1(1) provides that …a local authority shall manage and maintain all roads in their area. Section 28 of the Act provides that the roads authority may, for the purpose of safeguarding persons using a public road, provide and maintain barriers along the sides of bridges, embankments or other dangerous parts of the road.  It is clear to me from the use of the word “safeguarding” that Parliament considered that the provision and maintenance of parapets was for the safety of the road users and the inclusion of the word “maintain” is an indication of the importance that Parliament attached to a functional parapet.  Sections 1 and 28 do not, however, impose any obligation or duty on a roads authority in relation to persons using the road, they provide the power to do the things specified therein.  Road is defined in section 151(1) as:  

“…any way…over which there is a public right of passage and includes …any bridge…over which…the road passes.“

 

In my opinion the bridge parapet is an integral part of the road which crosses over the bridge.  The bridge was completed in 1971 and the parapet was part of the bridge as built.  The erection of parapets as an integral part of a bridge is consistent with Ministry of Transport Technical Memorandum from 1967 which laid out minimum standards (6/59 of the inventory of productions, JM 1 paragraph 6.3).  Parapets are to be found not only on bridges but on many of our roads, motorways and non‑motorways, city and country roads and on bridges.  If a bridge over water, carrying vehicular traffic, was built today without a parapet then I would venture to suggest that there would be a public outcry to add to a reluctance to use the bridge.  A parapet gives comfort to bridge users that there is a safety measure which helps prevent vehicles from leaving the bridge.  It provides a sense of reassurance for road users based on an expectation that parapets work as intended and are not decorative in the sense that they provide a false expectation of safety.  A parapet gives drivers the reassurance to drive across the bridge in broadly the same manner as they would drive on a road with no drop into water at either side.  I have no doubt that if the majority of drivers knew that the parapets on the Kyle of Tongue bridge were defective, to the extent that they may have little or no containment capacity at all, steps would be taken to avoid the hazard or moderate their driving significantly to take account of the hazard.  The issue of whether a parapet could be a hazard was considered in the case of Great North Eastern Railway Ltd v Hart and others [2003] EWHC 2450.  This case arose from the Selby Rail disaster in February 2001.  The facts were that the defendant's car veered off the M62 motorway as a result of him falling asleep at the wheel and landed on the main east coast line in the path of an oncoming train travelling at 125mph.  The train was derailed and was then struck by a freight train.  Ten people died and over seventy were injured.  The defendant's insurers sought a contribution from the Secretary of State for Transport for negligence in failing to erect a sufficiently long safety fence.  It was argued for the Secretary of State that the department owed no duty of care to prevent the egress of a vehicle from the carriageway to avoid either physical injury or property damage to those off the highway.  In rejecting this submission Mr Justice Moreland stated at paragraph 44 of the judgment:

“….. I see no reason why in an appropriate factual situation a highway authority should not owe a duty of care and be liable in damages to those neighbouring the highway if the effective cause of the egress of the vehicle inflicting the damage was a danger on or adjacent to the highway created by the highway authority. Hypothetically there could be cases where a vehicle left the highway and caused damage without any fault on the part of the driver the effective cause being for example a dangerous mal-alignment of the carriageway or dangerously insubstantial bridge parapets or approach safety fencing. If such dangers were created by the Highway Authority, in such a situation there is no reason of policy why the law should not impose a duty of care on the Highway Authority not only to users of the highway but also to those who are or whose property is on neighbouring land. If the highway authority were not liable to those off the highway, such people could not recover the loss that they had suffered. In such a situation the imposition of the duty of care would accord with the speeches in the House of Lords in Caparo Industries Plc v. Dickman [1990] 2AC 605.”

 

This approach is consistent with the Scottish authority of Sargent v Secretary of State for Scotland 2000 Rep LR 118.  In this case a 45 year old man was killed following a road accident.  He had swerved to avoid a bus which had crossed in front of his vehicle at a narrow point in a trunk road with the result that his vehicle had left the road and fallen 20 feet into a loch.  There was a wall between the road and the loch but this was not designed to prevent vehicles leaving the road and a space existed where the wall had degraded.  His widow and three children sought damages from the Secretary of State arguing that the accident was reasonably foreseeable and that there should have been a sign warning of the hazard of buses, a solid barrier, and traffic lights.  The locus was described in detail by Lord Clarke at paragraph 17 of the judgment in which he held the lack of a restraining structure such as an Armco barrier to be a serious hazard:

“…evidence of the police witnesses to which I have referred, in my opinion, demonstrated that the locus of the accident presented a patently serious hazard.  As I have already noted, at this section of the roadway, the drop from the edge of the road to the loch was virtually sheer.  There was at this point a very sharp bend with overhanging rock on the northbound carriageway. The width of the road was such that vehicles, such as lorries and coaches, which frequently travelled on the road, were driven to cross from their carriageway into the pathway of vehicles coming in the other direction. The lack of any restraining structure, such as properly maintained and installed Armco barrier, or a properly maintained wall at the point where the accident occurred, meant that a vehicle leaving the road would inevitably plunge into the loch, with potentially fatal consequences.”

 

[26]      In the common law there is a long tract of authority requiring Roads Authorities to exercise reasonable care in their management of the roads.  In Innes v Magistrates of Edinburgh, and the Trustees for rebuilding the University of that City (1798) Mor 13189, which involved a member of the public falling into a 15 foot pit in the road and breaking his thighbone, Lord Eskgrove is recorded as finding at page 13190 that:

“One of their most important duties (it was observed) is to take care that the streets of the city are kept in such a state as to prevent the slightest danger to passengers. They are liable for the smallest neglect of this duty, and in this case, without some degree of culpa on their part, the pursuer could not have met with the misfortune.”

 

In McFee and others v Police Commissioners of Broughty-Ferry (1890) 17 R 764, an Inner House case which involved the death of a cab driver whose head had struck a low iron bridge, the Lord Justice Clerk (Kingsburgh) stated at page 767 that:

“Their duty is, in my opinion, to see that there shall be no dangerous obstruction on the roads of which they have the control.  If anything occurs to create a danger on these roads, it is their duty to guard against it.  It is their business not to allow traffic to pass along the road until they have either put the road into a proper state, or (if they desire to maintain that another person or body is liable to do so) until they have caused that person or body to perform the duty.  It is new to me that a public body, custodiers of a public road, are entitled to say that they know it is dangerous but cannot suggest a mode of making it safe, and therefore to maintain that they are entitled to leave it as it is.  That is a proposition which cannot be accepted. They are bound as guardians of the public safety to take means to prevent the manifest danger which exists. These Commissioners did not do so. It is not for us to suggest the precise means by which the danger might be removed (though I confess I think the engineers of this burgh would have no great difficulty in devising a sufficient remedy), but we must negative the proposition that the Commissioners are entitled to leave a road in a dangerous state, and do nothing for the safety of the public using it.”

 

In the same case at page 768 Lord Young stated:

 

“The pursuers' case against the Commissioners of Police is that it is their duty to the public to see that the road of which they have the custody and guardianship is in a safe condition for public use. If it is not, it is for them, if they cannot put it into such a state, or compel those whom they allege to be the right persons to make it safe to do so, to stop that traffic upon it which cannot be conducted without danger. Their failure in that duty is the ground of liability.”

 

In Fraser v Glasgow Corporation 1972 SC 162, another Inner House case, involving an abandoned car whereby an eight year old child dropped a lighted paper into the petrol tank and was injured by the explosion, Lord Milligan at page 174 stated:

“In this case we were favoured with a very full citation of authorities relative to the powers and duties of a local authority in regard to the safety of the streets under its control.  This arose largely out of a proposition which the Lord Ordinary laid down to the effect that there was "no duty upon a local authority to take reasonable care to ensure that a public street is kept clear of objects which might prove to be a danger to persons using the street."  I cannot accept this proposition when so broadly stated. In my opinion a local authority which has control of a public street may in certain circumstances have an obligation to take steps to see that there does not exist in a public street something which may cause injury to persons frequenting that street and further that this duty may extend towards children who may reasonably be expected to suffer injury while playing on or about such an object.  Much will depend on the nature of the alleged danger, and I think that the defenders were right in conceding that the danger need not necessarily be one arising out of the physical condition of the street or pavement, and I understood them to concede that, if there was in a street a hazard which might reasonably be expected to cause danger to persons using the street in the exercise of their undoubted right of passage, there might be a duty on the local authority to take steps to see that that hazard was removed.  The hazards referred to in most of the reported cases were holes in the ground or defects in the pavement, but in my opinion an object in the street may equally be a hazard.  Should such a hazard exist, a local authority, if it is aware of the hazard, is not entitled to do nothing.  It is bound to take all reasonable steps in its power to have that hazard removed.”

In McKnight v Clydeside Buses Ltd 1999 SLT 1167 the parents of a child who had been killed in a road traffic accident sought damages in respect of her death.  The child had been seated upstairs in a double decker bus which was bringing Girl Guides home from an outing.  The bus driver had been unsure of the route to take and had been following a car driven by an adult helper when the bus collided with a railway bridge.  The bus driver was convicted of careless driving, and the parents sought damages from the company which owned and operated the bus.  The bus company sought relief from inter alia the roads authority responsible for the maintenance of the road over which the bridge ran.  The bus company argued that the roads authority had a well-established common law duty to take reasonable care for the safety of people using the roads, and in the exercise of this duty they ought to have provided road signs which gave adequate warning of the hazard presented by the low bridge.  The roads authority argued that their only duty was to maintain the highway, and neither the common law nor the relevant statutory provisions imposed any duty to erect signs.  Lady Cosgrove at page 1172 C – H in holding that a relevant common law duty had been averred stated:

“ The duty of a roads authority towards road users is to take reasonable care in all the circumstances (Smith v Middleton, per Lord President Emslie at 1971 SLT (Notes), p 66). In my view, the Scottish authorities to which reference has been made amply vouch the proposition that that duty encompasses an obligation on the roads authority arising out of their ownership of and responsibility for the road to remedy a dangerous situation of the type which the first defenders offer to prove was known to exist at the time of the accident.  The Lord Justice Clerk in McFee specifically negatived the proposition that a roads authority was entitled to leave a road in a dangerous state and do nothing for the safety of the public using it (at p767).  Further, I reject the contention which was advanced on behalf of the first third party that any duty on the roads authority is restricted to taking care with regard only to the actual road surface. In my view, a highways authority is under a similar duty of care in respect of road signs placed above the road surface over which it has control in terms of the Road Traffic Regulation Act 1984.  In Levine v Morris the Court of Appeal held that the Ministry of Transport in the exercise of similar powers was under a duty of care to motorists when siting large road signs to take reasonable care not to expose them to hazards.  While that case was concerned with the actual siting of road signs, I find support for the view I have reached from the court's acceptance that the duty to take reasonable care with regard to road signs is a facet of the duty of care which is incumbent upon a roads authority. Senior counsel for the first third party argued that if a duty of care was to be imposed in relation to the siting of road signs this would extend to the provision of school warning signs and signs in relation to old people's homes and the like. It is not of course necessary for present purposes to attempt to define the limits of the duty which I find exists.  What the instant case is concerned with are signs which it is averred have given rise to a situation of manifest danger to road users. In such a situation I consider that a roads authority is under a duty to take steps to remedy the obvious hazard which is known to exist: it cannot ignore its duty to act in the interests of public safety.  Further, it matters not in my view whether the defect arises from the original erection of the sign or as a result of it having become faded (as is alleged in respect of the chevrons on the bridge).  In Laing the Lord Justice Clerk (at p 201 (p439) made it clear that the danger which the owner of the pavement was bound to have removed included danger arising both from faulty construction and by decay from age.”

 

Gibson v Orr 1999 SC 420 raised the issue of the liability of Strathclyde Police for failing to warn motorists about the collapse, due to heavy rainfall, of a bridge over which a public road ran.  Police officers set cones on the north side of the river and positioned a police vehicle with a flashing blue light and lit headlights to give warning to any person approaching the bridge from the south side.  The police later left the locus without any barrier or warning having been put in place on the south side.  Shortly thereafter a car was driven on to the bridge and fell into the river, killing all of its occupants apart from the pursuer.  The pursuer sought reparation from Strathclyde Police.  For the defender it was contended that no duty of care existed.  In holding that a duty of care did exist in the circumstances the court drew an analogy with roads authorities.  At page 435 Lord Hamilton stated:

“The functions, for example, of roads authorities in respect of the management and maintenance of public roads are laid down, commonly by statute, in similar ‘public’ terms.  However, it has never, so far as I am aware, been doubted in Scotland that as regards operational matters a duty of care is owed by such authorities and their servants to road users — a duty not directly under the statute but a duty arising out of the relationship between those authorities and road users created by the control vested by statute in the former over the public roads in their charge”

The most recent authority bearing on this issue is the Inner House case of MacDonald v Aberdeenshire Council 2014 SC 114.  The facts in the case are that the pursuer raised an action of damages arising out of a collision which occurred at the crossroads of a public road.  The action was raised against the local council as the roads authority with responsibility for the junction in question based on common law.  In her pleadings, averments set out that there was no sign giving sufficient advance warning of the presence of the junction and that although the defenders inspected road markings monthly, they had taken no steps to renew the road markings and did not do so within 24 hours.  Certain steps were averred to have taken place after the accident to reline road markings, which the pursuer averred ought to have taken place before the accident.  The case as stated at common law averred that the defenders had created a danger to road users and had failed to take reasonable care to devise, institute and maintain a reasonable system of installation, inspection and repair of the road markings and signage at the junction.  Following debate before the Lord Ordinary on the relevance of the pursuer’s pleadings, the action was dismissed as fundamentally irrelevant, the defenders not being under the duty of care averred.  The pursuer reclaimed to the Inner House.  The judgments examined in detail authorities from both sides of the border and set out the current state of the law in Scotland. It is, of course, binding on me.

[27]      Lady Paton in considering whether the roads authority owed a duty of care in the circumstances pled, stated at paragraph 36:

“[36] Thus, for example, if a section of a country road were to collapse, leaving a large crater or sinkhole, and if that hazard was drawn to the attention of the roads authority, Scots law would, in my opinion, impose upon the roads authority a common law duty of care owed to users of that country road.  That consequence would be in keeping with Scots common law as it has developed (cf dicta of Lord Hamilton in Gibson v Orr, p 435C (quoted in para 35)) and would follow from the application of tests such as reasonable foreseeability of harm, proximity of relationship, and what would be fair, just and reasonable.”

At paragraphs 37 – 39 Lady Paton noted that in contrast to English Law of tort Scots Law does not draw a distinction between acts and omissions.  She considered that the question of the existence of a duty of care depends upon the particular facts of each case.  As to the nature of the relationship between the parties she considered that drivers using the crossroads were sufficiently proximate to the defenders to give rise to the imposition of a duty of care owed to them (para 41).  With regard to the averments, or lack of them, she was satisfied that the pursuer’s averments, even if proved, would not entitle her to the remedy sought, because it was not reasonably foreseeable that an accident was likely to occur at the junction. She noted that the averments were to the effect that the wearing away of the painted lines was a gradual process taking place over a period of time and there were no averments that the roads authority had been placed on notice that the lines were fading and constituted a hazard.  She considered that it would not be fair, just and reasonable to impose a common law duty of care on the defenders as the situation at the crossroads did not (prior to the accident) present as a high priority situation with obvious danger demanding prompt attention from the roads authority, burdened as it is with many tasks and duties to perform (para 43). In her opinion:

“...in the circumstances of this particular case as averred on record, the only duty owed by the defenders was of a public, general nature, namely to repaint the lines in the course of their routine rolling programme of repair and maintenance in the exercise of their statutory powers, and on the basis of a timetable fixed by them (using their judgment and discretion, the guidance given in local authority manuals and codes, and affording certain matters priority over others).”

 

However, she also considered that as soon as placed on notice, the accident having occurred, the defenders’ duties and prioritisation of tasks might have changed. “As often happens in reparation cases, once an accident has occurred, factors such as those referred to in para 42 may alter.” (para 45).

[28]      Lord Drummond Young having reviewed the authorities, many of whom I have cited, at paragraph 63 et seq summarised the current state of Scots Law as follows:

“[63] In the light of the foregoing history, the current state of the law is in my opinion as follows. A roads authority is liable in negligence at common law for any failure to deal with a hazard that exists on the roads under its control.  A ‘hazard’ for this purpose is something that would present a significant risk of an accident to a person proceeding along the road in question with due skill and care. Such a formulation is in my view supported by the considerable line of authority that exists in Scots law….

 

[64] This means that, for a roads authority to be liable to a person who suffers injury because of the state of a road under their charge, two features must exist.  First, the injury must be caused by a hazard, the sort of danger that would create a significant risk of an accident to a careful road user.  Secondly, the authority must be at fault in failing to deal with the hazard.  This means that the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it, whether by altering the road, or by placing suitable signs, or in an extreme case by closing the road (as in McFee and Gibson v Orr, if the latter case had involved the actings of the roads authority). Those two requirements are in my opinion of great importance.  The first means that roads authorities are entitled to act on the assumption that drivers and others who use the roads proceed with reasonable skill and care.  That means that it can be assumed that drivers will have regard to any obvious dangers on the road and drive accordingly. There is no obligation on a roads authority to protect drivers from anything that is obvious.  Obvious dangers would include bends, blind summits, visible road junctions, and the fact that the driver’s view is restricted, whether by buildings, vegetation or features of the land and the configuration of the road. In all such cases, a careful driver should slow down and look carefully ahead. If he does not do so, the accident is his own fault…. The second feature means that the hazard must be apparent to a competent roads engineer...

 

[65] In my opinion this state of the law strikes a fair and reasonable balance between the interests of drivers and their passengers on one hand and the interests of the roads authority on the other hand. Roads authorities are under a public law duty to maintain the roads under their care, and it seems fair that they should be held to minimum standards not just in public law but as a matter of delictual liability in civil law. Eliminating hazards, in the sense discussed above, is the minimum that can be expected of them.  The fundamental fairness of such a duty is supported by consideration of the insurance implications of an accident.  Third party motor insurance is of course compulsory, and if an accident is caused by a driver’s fault those who are injured, including his passengers, may expect to obtain recovery from his insurer.  If the driver is not at fault, however, there can be no recovery, from the insurer or the driver.  If an accident occurs because of a hazard, in the sense discussed above, the critical point is that there is no fault on the part of the driver; it is the road that is dangerous rather than the driver. In such a case, therefore, passengers will only recover anything if the roads authority is liable.  (Of course in some cases the principles of joint fault and contributory negligence may come into play, but those can be dealt with according to well-established rules of law.)  Furthermore, for a roads authority that deals conscientiously with its responsibilities, the cost of eliminating hazards will be part of its normal running expenses. In such a case, therefore, the duty of care imposed by Scots law should not add to the costs of the authority.  To the extent that claims do occur, the cost can obviously be absorbed by insurance by the roads authority. The critical point is that the costs of such liability should not impose a serious burden on a roads authority, and will be almost non-existent for an authority that takes proper steps to eliminate hazards.”

 

The respondent presented the argument that a roads authority should not be under any duty of care to road users. He submitted that the Scottish case law that holds that roads authorities are under such a duty should not be followed, and that instead the court should follow English case law which holds that no such duty exists at common law and road users should take the highway as found.  The court rejected this submission retaining the distinctive approach in Scots law.  At paragraph 73 Lord Drummond Young set out the rationale for the approach in Scots law distinct from South of the border as follows:

“[73] There is nothing intrinsically undesirable about such a difference; legal systems may quite rationally take distinct approaches to a problem and formulate different rules. Each system must be considered on its own merits. Regardless of its different origins, this area of Scots law can in my opinion be seen to operate rationally. Much of the discussion in the English case law is based on the assumption that roads authorities must either be liable in all cases where loss is caused by defects in a road or in none of those cases. Scots law, however, takes an intermediate position: roads authorities are liable for negligence, but only in respect of hazards, in the sense of defects that are unlikely to be noticed by road users who exercise reasonable care and skill. This provides redress in cases that are not covered by the compulsory system of motor insurance; thus there is an economic justification for the Scottish position. Furthermore, the cost of eliminating hazards should not be a significant burden for a roads authority that takes its responsibilities seriously. Most of the cases where doubts have been raised about the stance taken by Scots law have related to snow and ice, but these can readily be eliminated by considering the true rule of Scots law, which denies a remedy in nearly all such cases. Consequently I can see no reason for Scots law to follow English cases in this area. In the English cases, however, certain general points are made about the law of negligence, and it is appropriate to examine them in order to discover whether Scots law reflects the policy considerations that have underlain the English decisions. This must be understood against developments in the law of negligence since 1964.”

 

His Lordship then assessed whether the Scottish rule that a roads authority may be liable to road users in negligence was fair and reasonable, applying the approach taken in Caparo Industries Plc v Dickman [1990] 2 AC 605 which has been adopted into Scots law in Mitchell v Glasgow City Council 2009 SC (HL) 21 (per Lord Hope of Craighead at para’s 21–25).  He concluded that it was fair and reasonable.  I observe, however, that the approach in Caparo is relevant to whether or not a duty of care should be imposed in novel circumstances as distinct from the situation where a duty already exists (Kennedy v Cordia (Services) LLP 2016 SC UKSC 59 at paragraph 114).  On whether or not the Scottish approach was fair and reasonable Lord Drummond Young stated at paragraph 75:

“Clearly that must be considered in context, a context which includes the system of motor insurance. In my opinion the Scottish approach can be considered fair and reasonable, perhaps to a greater extent than the current English approach.  The roads authority is responsible in public law for the maintenance of the roads in its area, and it does not seem unfair or unreasonable that it should take proper steps to eliminate hazards that could not reasonably be foreseen by a careful driver, with civil liability if it fails to fulfil such a duty.  This should not be especially onerous; an authority that takes its public responsibilities seriously should deal with such hazards as a matter of course.  To the extent that a risk of civil liability remains, it can readily be covered by insurance. Moreover, in a case where a passenger is injured as a result of such a hazard, he or she will be denied redress if there is no liability on the part of the roads authority, but may well obtain redress under the existing rules of Scots law. Consequently the Caparo Industries approach does not appear to demand any change in Scots law.”

 

The argument presented by the defender in this case is in broadly similar terms to that rejected by the court in MacDonald, supra.  Whether the law of this country will, as contended, develop to the extent that Scots law will adopt the English approach remains to be seen.  Public policy and public resource arguments will no doubt be pled as they have been in this case.  My duty is, however, to apply the law as is.  The defender argues that there is a crucial distinction between a public authority providing a service at public expense and a public authority providing compensation for a failure in providing that service. I agree.  However, Scots law does not impose liability in such a situation.  Nor does Scots law impose liability for accidents arising from “obvious dangers in the road” such as sharp bends or blind summits or other dangers arising from the configuration of the road. Drivers are required to drive for the road (MacDonald, supra per Lord Drummond Young at paragraph 64).

[29]      The defender argues that the defective parapet is not a hazard.  It was submitted that the sea is the hazard.  I disagree.  Lord Drummond Young in MacDonald, supra, at paragraph 64 described a hazard as the sort of danger that would create a significant risk of an accident.  This would clearly cover the situation in this case, the parapet is clearly defective to the extent that the containment capacity, if any, is unknown.  The parapet is there to provide a safety barrier for vehicles to prevent them from falling off the bridge into the water below.  The defective parapet poses a danger to road users and there is a significant risk of an accident caused by the defective parapet.  The danger is tragically illustrated by what happened to Mr Bowes.  It was also argued by the defender that a parapet is not designed for careful road users, rather it is designed for drivers who are at fault.  I don’t agree with this submission.  A parapet may indeed come to the aid of drivers at fault but equally it could aid drivers who are not at fault who, for example, have had a heart attack at the wheel and lost consciousness, or who have been shunted from the rear into the parapet.  There are many more such examples.  A parapet is designed to safeguard road users who come into contact with it to prevent the obvious danger of falling off the bridge being realised.  In the present case Mr Bowes having lost control of his vehicle is entitled to rely on the parapet to prevent serious injury or loss of life.  Had the parapet been functioning as designed, Mr Bowes vehicle would not have left the bridge and he would not have drowned.  For the foregoing reasons the parapet is, in my opinion, a hazard (consistent with the cases of Great North Eastern Railway Ltd v Hart and others, supra, and Sargent v Secretary of State for Scotland, supra, which are discussed above).

[30]      The next issue is whether the authority is at fault in failing to deal with the hazard which they clearly had knowledge of from 2005, prior to the accident.  The defender submitted that the roads authority’s duty should be judged according to professional standards.  This submission was based on the clinical negligence case of Hunter v Hanley 1955 SC 200 (in support of this submission the defender also cited Honisz v Lothian Health Board 2008 SC 235, which deals with two opposing schools of thought as to the appropriateness of a particular practice).  However, the tripartite test set out in Hunter v Hanley, supra, by Lord President (Clyde) at page 206 is clearly directed at the issue of professional negligence and not whether a roads authority is negligent for failing to deal with a hazard. I will therefore apply the test set out in MacDonald, supra, per Lord Drummond Young at paragraph 64, namely whether a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it.

[31]      The defender was placed on notice that the parapet was defective to the extent that the containment capacity was unknown as at the date of the accident. Mr Christie, the engineer employed by the defender who was in charge of the bridge, categorised the defects as severe and recommended that they should be rectified within the next financial year and that inspection should be carried out twice yearly to monitor deterioration, until the parapet was replaced.  As at the time of the accident the parapet had not been replaced and monitoring had been discontinued.  The hazard had not been dealt with and the risks that it posed had not been mitigated.  Had the twice yearly inspections continued then the defender would have been in an informed position to consider, going forward, what steps should be taken to deal with the hazard.  The stopping of the inspections meant that the defective parapet and the risk that it posed did not receive the ongoing consideration that it deserved.  No risk assessment was carried out prior to the accident.  The parapet would eventually be replaced however long it took.  It was replaced in 2011, 6 years after Mr Christie had recommended that it should be replaced in the next financial year.  The defender’s approach was to hope for the best and leave it to chance. Mr Christie was of the view that interim measures should be put in place.  These were temporary barriers, the introduction of traffic lights and reduction to single lane passage (necessary to accommodate temporary barriers given the narrowness of the carriageways), and a reduction in the speed limit to 30 mph.  This was rejected by Mr Louttit, his boss.  The rationale for rejection was that temporary barriers were not appropriate, there was no need for traffic lights, and a reduced speed limit would not be observed.  The conversation was not recorded.  The implementation of interim measures also seemed to be under contemplation by the co‑author of the Faber Maunsell report, the witness Webb.  At paragraph 5.1.2 of the 2008 report (6/4 of the inventory of productions) when discussing the replacement of the parapet he opined that “obvious control measures” should be considered. In evidence, he explained that these were things like speed control, traffic calming and barriers.  There was no evidence before me that this had been followed up, even to the limited extent of discovering precisely what the authors had in mind.

 

Temporary Measures
[32]      The witness Ian Hunt, is a Chartered Civil Engineer with lengthy experience in bridges both home and abroad.  He is an expert on civil and engineering practice, procedures and conduct.  He has given expert testimony at public inquiries including the Mersey Gateway inquiry on engineering design development and navigation.  His work has led to awards.  He has worked on bridges which, due to monsoon flooding, do not have parapets.  His CV is set out at appendix 1 of his principal report which is 6/54 of the inventory of productions.  I was impressed with this witness, as I was impressed with Mr Christie.  Mr Hunt gave his evidence in a straightforward manner explaining the basis for any opinions proffered.  His opinions were rooted in the evidence and not ipsi dixit which I would not apply to some of the defender’s witnesses, principally Mr Louttit.  His CV and international portfolio of work was extensive and his evidence was in my opinion consistent with his impressive CV.  He produced two reports which are 6/54 and 6/55 of the inventory of productions.  His evidence was that in respect of the defects to the parapet recorded in the inspections there would almost certainly be more cracks than visible.  His experience told him this.  He would expect the defender to be alert to the possibility of other cracks.  It cannot be assumed that where cracks are not visible none were there.  It should be assumed that all welds were suspect.  He regarded roads authorities as having a fundamental duty to protect the public.  In this case the travelling public had not been made aware of the weak parapet and should have been made aware.  As he put it, we all have a duty of care for ourselves but we need to be informed to exercise this duty.  Having regard to the condition of the bridge parapets in 2005, reiterated in 2008, he was astonished that nothing had been done to address the situation (paragraph 4.3.1.4 of his report, 6/54 of the inventory of productions).  On receipt of the 2005 Principal Inspection report he would have expected the responsible bridge management team to have met and considered the implications of a “reportedly weak parapet on the safety of the travelling public.”  Following the 2008 Faber Maunsell report it should have been clear to the roads authority that “immediate measures were needed to protect the travelling public” (paragraph 4.3.1.9. of his report, 6/54 of the inventory of productions).  He was of the view that several risk reduction strategies should have been taken.  His preferred option would have been to impose a 30 mph speed restriction together with signage advising of the reason for the speed limit (this could require formal permission).  This would cost a few hundred pounds as he would expect any roads authority to have the necessary equipment available in their maintenance yard.  Temporary barriers in front of the existing parapets should be erected.  These could be pre cast concrete or water or sand filled or other form of temporary barriers.  I heard evidence of other forms of temporary barriers on the market such as MASS or Varioguard barriers. In fact, the defender already had a stock of temporary barriers which could have been deployed or the barriers could have been rented or purchased.  The witness had obtained an estimate of £50,000 for 400 metres from a supplier of plastic barriers which, of course, would be a capital asset going forward. Mr Day, the defender’s expert, and Mr Mackenzie, together with Mr Louttit and Mr Moncrieff, disagreed.  Their view was that it was reasonable to have taken no steps to deal with the defective parapet until it was replaced, having regard to the absence of an accident history, the low volume of traffic, the configuration of the road, namely long and straight, the non observance of a reduced speed limit, the possibility of traffic queues, the risk of overtaking, the ex post facto risk assessment which resulted in monitoring only, and the cost of interim measures and replacement having regard to the limited budget of the defender.  I disagree.  There was a pressing need to address this hazard.  The defender took six years from being placed on notice of the problem.  A reduction in speed and single lane carriage albeit an inconvenience for road users is not unduly onerous.  There are plenty of speed restrictions for safety reasons in place in Scotland and it is noteworthy that when the bridgework was done and the parapet replaced a temporary speed limit of 30 mph, a single lane carriageway and temporary barriers were in place for 8 months or so (27/10 of the inventory of productions, photographs 5 and 9).  In fact, no evidence was presented of any actual difficulties which arose from the implementation of such temporary measures during the remedial works.  These measures were of a remarkably similar nature to the measures which the court in Sargent, supra, held would have prevented the accident.  In Sargent in respect of a warning sign Lord Clarke stated at paragraph 22 as follows:

“[22] I accept the pursuers’ position that the existence of such a sign might well have reduced the possibility of the accident occurring and had this been the only way in which the serious hazard which I have accepted existed at the locus could have been addressed, I would have held that an application to the Secretary of State should have been made for the erection of such a sign and should have been granted…”

 

In respect of a temporary barrier he stated at paragraph 23 as follows:

“…had I considered that there was no other step that could have been taken to reduce the hazard at this locus, then because of the disastrous consequences of an accident at this spot occurring, which I have held should have been reasonably foreseeable, once the wall had become degraded, I would have concluded that it was incumbent upon the defender to take such steps…”

 

In respect of temporary traffic lights he stated at paragraph 24 as follows:

 

“[24] What was remarkable about this aspect of the case was that Mr McNeill accepted that, some weeks after the accident, such temporary traffic lights were erected at exactly this location and remained in situ until the road works had removed the hazard.  The particular reason, he explained, for the traffic lights being erected, was not the occurrence of the accident involving the deceased’s vehicle but that, shortly thereafter, a lorry had gone off the road causing a part of the loch side of the road to become unstable, the lorry having hit the retaining wall on the loch side. Whatever the reason for the erection of the temporary traffic lights, the importance of this evidence was that it indicated that it was reasonably practicable for such traffic lights to be erected without delay. It was also accepted that the cost was not excessive nor prohibitive, having regard to budgetary factors, and that the erection of such traffic lights after the degradation of the wall would have prevented the accident to which the present proceedings relate.  Although Mr McNeill valiantly attempted to suggest that a decision to erect such traffic lights, prior to the accident to the deceased, may not have been appropriate because of the effect such lights would have on delaying traffic and traffic flow, it seemed to me that such considerations should not have outweighed the very real risk of vehicles going over the edge of the loch, because of the width of the road, the sharpness of the bend and the existence of the overhanging rock. Moreover, Mr McNeill accepted that a set of traffic lights had been erected at the point on the same road known as Pulpit Rock because of a hazard of falling rock. That was done and maintained for a very considerable period of time, notwithstanding that it would have an effect on traffic flow. I am satisfied that it would have been practicable for the defender to have installed temporary traffic lights at the locus of the accident at reasonable cost in the circumstances once the gap in the wall had occurred. Such traffic lights could have been erected without any material delay. Once the hazard at the locus was obvious, which I consider was the position once the wall had become degraded to the extent it had been, for some considerable time prior to the date of the accident, it was, in my opinion, incumbent upon the defender’s predecessor in fulfilling his duty of reasonable care, to have erected such traffic lights at the locus prior to the occurrence of the accident.”

 

[33]      In this case these interim measures are reasonably practicable and the cost is modest.  The measures were proposed by the defender’s engineer who conducted the principal inspection which discovered the defects in the parapet in 2005.  His view was endorsed by the expert evidence of Mr Hunt and supported by the Faber Maunsell report in 2008.  The rationale for not adopting these interim measures prior to the accident is undermined by their adoption during the bridge works in 2011 when the parapet was replaced.  They would have warned road users of the risk that the hazard presented and would have resulted in road users taking care by reducing speed and driving to the temporary lights on a single carriageway.  The temporary barriers together with the other interim measures would have reduced speeds such that Mr Bowes would probably not have left the bridge to his death on 2 February 2010.  The possibility of this kind of accident was foreseeable.  I accept that there is no accident history on this bridge.  However, the parapets were erected for the purpose of preventing the type of accident which occurred in this case and accidents do happen on any stretch of any road, including a bridge, often in poor weather.  The fact that the parapet was erected and then scheduled for replacement when it deteriorated is a recognition of a need generated by the foreseeability that an accident on this bridge was more than a remote possibility.  The fact that it did happen is proof indeed that parapets working as intended are required.  I therefore find it proved that the defender breached its duty to deal with the hazard, namely the defective parapets, by implementing interim measures until the parapets were replaced. To do so would have prevented the death of the deceased.

 

Contributory Negligence
[34]      As the deceased did not contribute in any way to the defective parapet and would not have lost his life had the parapet been operating as designed, in fact he would only have sustained minor injuries or none at all, I do not regard the deceased’s negligent driving as having contributed in any significant way to causing the harm.  I am consequently of the opinion that there is no basis for any finding of contributory negligence on the part of the deceased and I therefore reject the defender’s case of contributory negligence.

 

Damages

[35]      As indicated above liability having been established, the agreed damages are as set out at paragraphs 7.1 to 7.5 of JM 1.

 

Pleas in Law and Expenses
[36]      For the reasons given I therefore repel the defender’s second, third and fourth pleas in law and sustain the first to third and fifth to eighth pursuers’ first and second pleas in law, and sustain the fourth pursuer’s first and second pleas in law.  I shall reserve the question of expenses meantime.