Scottish High Court of Justiciary Decisons

JAMES MEEK v. STRATHCLYDE REGIONAL COUNCIL AND OTHERS [2001] ScotHC 92 (23rd August, 2001)

[1] In this action, which was raised in 1994, the pursuer avers that in the course of the afternoon of 28 July 1991 he met with an accident while walking on Sandylands Promenade, East Beach, Saltcoats. As a result of that accident, which involved a fall from the Promenade onto the beach, he sustained, according to his averments, serious injuries. In the action as raised the pursuer convened three defenders, namely, Strathclyde Regional Council, Cunninghame District Council and "Scotrail". In May 1996 in furtherance of a joint minute entered into between the relevant parties, Strathclyde Regional Council was assoilzied from the conclusions of the summons. Following reorganisation of local government pursuant to the Local Government (Scotland) Act 1994 the present second defenders (North Ayrshire Council) were substituted for Cunninghame District Council. At various stages the pursuer has reformulated the legal bases on which he seeks to bring home liability against the convened defenders.

[2] The difficulties facing the pursuer in formulating relevant grounds of action stem, at least in part, from the historical background to the creation of the promenade on which his accident is said to have occurred. By the Glasgow and South Western Railway Order Confirmation Act 1918 (8 & 9 Geo. 5 cap. xxxii) a provisional order made under the Private Legislation Procedure (Scotland) Act 1899 in favour of the Glasgow and South Western Railway Company ("the Company") was duly confirmed. By section 18(1) of that Act it was provided that the Provost, Magistrates and Councillors of the then Burgh of Saltcoats ("Saltcoats Town Council") would convey certain land belonging to it to the Company, the latter being obliged to carry out certain works including "erecting a sea wall on the sea side of the existing railway and forming behind the said sea wall a road and footwalk...". The footwalk was to be on the sea side of the road so formed. Certain approach accesses to the beach were also to be provided. It is plain from the statutory provisions that public access was intended to be had to the road, the footwalk and the accesses. The purpose of the sea wall was, it seems, to protect the Company's railway. Section 18(3) of the 1918 Act further provided:

[3] In furtherance of the statute the Town Council, by conveyance dated 10 and recorded in the General Register of Sasines applicable to the County of Ayr on 24 November 1930, conveyed to the London, Midland and Scottish Railway Company (into which the Company had by then become merged) the relative land. Sandylands Promenade, it seems, was the name given to the road and footwalk erected in furtherance of those arrangements.

[4] The pursuer avers that, as he was walking on the footwalk about 2 to 3 feet from its edge nearest the beach, suddenly and without warning "the surface or formation of the footwalk gave way beneath the pursuer's right foot" and that he was thrown off balance and fell approximately 20 feet onto the beach, landing on a concrete block thinly covered by sand. His averments continue:

[5] The pursuer's pleadings, in relation to the grounds of action against each of the remaining defenders can hardly, even in their current form, be described as a model of clarity. His substantive plea-in-law is that "having sustained loss, injury and damage through the fault and negligence et separatim breach of statutory duty of the defenders" he is entitled to reparation from them. His substantive conclusion is for a joint and several decree against them. Notwithstanding the terms of the plea-in-law the alleged duties as formulated in the Condescendence and as maintained to have been breached are duties of reasonable care at common law - although section 18 of the 1918 Act is referred to in the context of the case directed against the second defenders and the Occupiers Liability (Scotland) Act 1960 in the context of that directed against the third defenders. In the course of the discussion at Procedure Roll Mr Henderson for the pursuer stated that the case against each of those defenders was founded on the common law of negligence, albeit the common law duties were said to arise in the context of the relative statutory provisions. A passing reference was made to Anns v Merton London Borough Council [1978] AC 728. Mr Henderson also confirmed that, notwithstanding a reference in the pursuer's pleadings to a belief that "the footwalk upon which he was walking at the material time is owned by the second defenders", no case based on proprietorship was now being advanced. A relative amendment at the bar to delete that averment of ownership was allowed. In connection with his case against the third defenders as occupiers, the pursuer refers to repairs to the footwalk and replacement of missing railings having been carried out "by the third defenders or contractors acting on their behalf" on a date unknown to the pursuer but subsequent to his accident. The second defenders also have an averment that "the third defenders have recently carried out repairs to said promenade". The second defenders further aver that "the third defenders are responsible in terms of said Act [of 1918] and as successors to the Railway Company referred to therein for the maintenance of the sea wall, road and footwalk thereof".

[6] Miss Shand, who appeared for the second defenders, criticised on a number of grounds the pursuer's pleadings as directed against them. Part of that criticism related to the absence of any relevant basis on averment or in argument for fixing upon Cunninghame District Council any relevant duty in respect of the footwalk such as might have been owed by Saltcoats Town Council. It was, after discussion of Downie v Fife Council (now reported at 2001 S.L.T. 669) conceded by her that, notwithstanding certain observations made in Higson v Aberdeen City Council 1999 S.C.C.R. 708, any relevant civil liability which had attached to Cunninghame District Council in consequence of the pursuer's accident had passed to North Ayrshire Council. It was, however, contended that there was no basis made for any relevant obligation owed by Cunninghame District Council to the pursuer.

[7] Although section 18 of the 1918 Act is, in common with like provision in that and in other private legislation, side-noted as "for protection of" Saltcoats Town Council, I would have been prepared to hold that the imposition on that authority of an obligation in respect of the footwalk carried with it in the circumstances a responsibility to members of the public for due performance of that obligation. Whether as originally imposed it would have been regarded as a statutory duty or as a duty of reasonable care arising out of the statutory provision, it is unnecessary to decide. However, Saltcoats Town Council having pursuant to section 1(5) of the Local Government (Scotland) Act 1973 ceased to exist on 16 May 1975, the pursuer's case as pled against the second defenders crucially depends on it being demonstrated that the relative responsibility was duly transferred to the second defenders' immediate predecessors (Cunninghame District Council). Mr Henderson was unable to satisfy me of such a transfer. He made reference to section 139 of the 1973 Act (which relates to functions under the Public Parks (Scotland) Act 1878), to section 18 of the Local Government and Planning (Scotland) Act 1982 (which empowered an islands or district council to make certain byelaws) and to Monies and Coutts - Local

Government in Scotland (2^nd ed.) at p.23. But plainly section 139 of the 1973 Act has no relevance to present circumstances; in any event the 1878 Act was repealed by section 66(2) of and Schedule 4 to the 1982 Act. Nor do the empowering provisions of section 18 of the 1982 Act, which relate to the new responsibilities for recreational and other activities imposed by earlier sections of that Act, assist in relation to the transfer of any responsibilities arising here. It was not suggested that the 1982 Act or the powers and duties under it were otherwise in point. The reference to Monies and Coutts does not assist. It may be that a relevant transfer was effected to Cunninghame District Council by some legislative provision to which I was not referred; it may be that a relevant transfer was made to Strathclyde Regional Council as successor local highway authority; it may be that there is a lacuna in relation to the matter. Alternatively, it may be that by 1991 a new statutory obligation for maintenance of the footwalk had arisen either on Cunninghame District Council under the 1982 Act or on Strathclyde Regional Council under the Roads (Scotland Act 1984 (see sections 1 and 151(1)-(3) of the latter Act). But, in the absence of any averred or cited basis for holding a predecessor authority liable to the pursuer, the second defenders are entitled to be released from this action. Mr Henderson having indicated an unwillingness to move for a further continuation of the diet of Procedure Roll (and no proposed Minute of Amendment having been tendered while the case was at avizandum), I have no alternative but on this ground to dismiss the action insofar as directed against the second defenders. I should add that there was some discussion about what was meant in section 18(3) of the 1918 Act by "formation" and whether the defect complained of fell within the responsibility originally placed on the Company rather than on the Town Council; but it is unnecessary in the circumstances to determine that issue.

[8] Although the pursuer avers that "the third defenders were occupiers for the purposes of the Occupiers Liability (Scotland) Act 1960", that averment is preceded by the more tentative averment -

That statement is accompanied by a reference to his averment (referred to above) about repairs to the footwalk and replacement of missing railings. The pursuer does not rely, as against the third defenders, on the 1918 Act or on any basis for occupation and control of land or structures based on any rights or powers deriving from it. A complication arises in that following privatisation of the railways in furtherance of the Railways Act 1993 there has been a separation of responsibility for infrastructure from responsibility for the operation of railway services. The timing of any relevant works is also potentially of importance in the context of the transfer of responsibilities from public to private entities. Mr Hanretty, who appeared at the Procedure Roll discussion on behalf of the private company now operating train services under the business style "Scotrail", explained that, while there was reason to believe that some work had been carried out in 1995 in this area, it had not been possible to discover the basis on which that had been done. Nor was it clear whether this had been done by Railtrack plc (the body responsible for infrastructure post-privatisation) or by British Rail Infrastructure Services (the operating arm of the former British Railways Board). Against that background Mr Hanretty submitted that the pursuer's averments in relation to work having been carried out at some unspecified date subsequent to his accident laid no proper basis for occupation and control by the third defenders (or by any predecessor of it) at and prior to the accident upon which any relevant liability could rest.

[9] While I have some sympathy for the pursuer and his advisers in identifying which railway entity to sue and on what basis, it would, in my view, be inappropriate and lead only to further confusion if inquiry were to be allowed on the pursuer's present case against the third defenders. As noted above, no case is advanced against those defenders (or any other railway enterprise) which proceeds on the basis of the 1918 Act and seeks to trace any pre-accident responsibility deriving therefrom through the privatisation process to an extant body. Liability is sought to be attached only through post-accident works, the relationship of which to responsibility for the state of affairs at the time of the accident remains wholly unspecific and uncertain. So far as appears, no attempt has been made, either in this or in any separate process, to recover by diligence documentation bearing on the works referred to. I was not moved to allow further time for any such steps now to be taken. In these circumstances I see no alternative but also to dismiss the action insofar as directed against the third defenders.

[10] In these circumstances it is unnecessary to determine various other issues which were raised and discussed. I simply note what these were and indicate briefly how I would have disposed of them had they remained live.

[11] Both remaining defenders submitted that the joint and several conclusion was incompetent, essentially identical bases of action being directed against both of them. Reference was made to Allison v Isleburn Ltd 1997 S.C.L.R. 791. Mr Henderson submitted in response that the bases of action against these defenders were distinct and that the conclusion for a joint and several decree was competent. He cited in that regard Higgins v The Corporation of Glasgow (1920) 2 S.L.T. 71 and Laurie v Magistrates of Aberdeen 1911 S.C. 1226. While it is not possible, in the absence of a clearly formulated case against the third defenders, to be confident as to the appropriate disposal of this issue, I would have been inclined to reject the defenders' contentions in this regard. Had relevant cases been pled against each directed to breaches of separately based obligations resulting in a defective and dangerous state of affairs, it would not, in my view, have been appropriate, at least at this stage, to exclude the possibility of joint and several liability. Both defenders also complained, under reference to Gibson v Strathclyde Regional Council 1993 S.L.T. 1243, of the lack of any averred basis for a three monthly inspection period desiderated by the pursuer in his pleadings. But, notwithstanding the absence of averment of practice elsewhere, I would not have regarded such a period as one which in the circumstances the court would have been unable itself to infer as reasonable.

[12] There was also an issue about the specification of the pursuer's claim for damages. He avers that before the accident he "worked as a scaffolder on a contract basis with Glasgow Scaffolding", no address for that enterprise being given. He states that when in employment with them he earned approximately £250 per week and that, as a result of the injuries sustained in the accident, he has been unable to work since then. He claims past and continuing loss of wages. He also describes himself "as at a considerable disadvantage in the employment market". Additionally, he claims under section 8 of the Administration of Justice Act 1982 for services said to have been rendered by his mother-in-law "during his convalescence". No financial quantification of this head of damages is given. Mr Henderson stated in the course of the discussion that an address (51 Ballandalloch Drive, Glasgow) had been identified for "Glasgow Scaffolding" but that that body had ceased to trade in 1996.

[13] While the pursuer ought, long before now, to have identified the address of his sometime employer (so that the defenders might have recovered any documentation bearing on quantification of damages), I would not have regarded this as in the circumstances a sufficient basis for excluding his claim for financial loss by reason of being rendered unfit for work. Nor in the circumstances is an alternatively formulated claim based on loss of earning capacity in the employment market, in my view, inappropriate. However, the claim under section 8 is and remains so indefinite (both as to period and quantification) that I would have excluded it from probation.

[14] In the whole circumstances I shall sustain the second defenders' third plea-in-law and the third defenders' first plea-in-law (both directed to the relevancy of the action) and dismiss the action. Miss Shand intimated that the second defenders were no longer insisting on their first and second pleas-in-law, which I shall accordingly repel of consent.