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Cite as: [2005] ScotSC 21

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Murdoch v. The Moray Council [2005] ScotSC 21 (27 April 2005) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ELGIN

A353/02

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		THOMAS GOVAN MURDOCH
		Pursuer and Appellant
		against
		THE MORAY COUNCIL
		Defenders and Respondents

Act: Mr Michael Stuart, advocate, instructed by Grigor & Young, Elgin

Alt: Mr Kirk Tudhope, solicitor, Ledingham Chalmers, Inverness

Elgin: 27 April 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 6 July 2004 subject to the deletion of his findings in fact 20 and 24 and subject also to the amendment of his findings in fact 21 and 22 as follows:

in finding in fact 21 delete the words "as late as" and substitute the word "on", insert the words "in places" after the words "would have formed" and delete the words "and overnight rainfall",

in finding in fact 22 delete the words "or prior to" and insert the words "in places" after the word "dangerous";

finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; certifies Mr J Gerard Kilian and Mr John R Edgar as skilled persons for the purposes of paragraph 1 of schedule 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 as amended; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuer and appellant craved the court to grant decree for payment to him by the defenders and respondents of the sum of £10,000 to compensate him for the loss, injury and damage said to have been sustained by him as a result of an accident on 5 January 2001. In the event the parties entered into a joint minute of admissions (no. 26 of process) in terms of which, inter alia, they agreed that, if the defenders were found liable to make reparation to the pursuer in respect of the accident, then they should pay him a total sum of £3,850 with interest as specified in the joint minute.

[2] The sole issue between the parties therefore came to be whether the defenders should be found liable to the pursuer for payment of this sum. At about 9.30 am on the day in question he was walking along the pavement on the south side of Duff Place, Elgin. At that time the pavement was covered by ice on top of which snow had fallen. As he walked along the pavement the pursuer held onto some railings in order to steady himself. Nevertheless he slipped on the icy surface, fell and as a result sustained injury. The defenders are a local authority and are responsible for the management and maintenance of roads, including pavements, in Moray under the Roads (Scotland) Act 1984 and the Local Government etc (Scotland) Act 1994. The pursuer initially maintained that the accident had been caused by negligence and breach of statutory duty on the part of the defenders. But he subsequently departed from his assertion that the defenders had been in breach of statutory duty and rested his claim upon his assertion that the defenders had been negligent at common law.

[3] After proof the sheriff by interlocutor dated 6July 2004 granted decree of absolvitor in favour of the defenders. It is this interlocutor which is the subject of the present appeal.

[4] In his interlocutor the sheriff made a total of twenty six findings in fact. The first six of these introduce the parties and the locus of the pursuer's accident and describe how this occurred. Findings in fact 7 to 24 inclusive read as follows:

7. In an implement of its statutory and common law duties concerning the maintenance of roads and footpavements the Defenders prepared a Winter Maintenance Specification and Operation Plan ("the Plan" - No 6/1 of Process).

8. In drawing up the Plan the Defenders defined a hierarchical categorisation and route plans for roads and footpavements for precautionary salting and snow clearing to ensure the safe passage of vehicular and pedestrian traffic.

9. In the prioritisation of footpavements in Elgin the Defenders placed Duff Place in the lowest category (category 3) - "internal roads in housing schemes, as required". The carriageway of Duff Place was also placed in the lowest category (for carriageways - category 4 ).

10. The Plan was in general accordance with the 1989 Code of Good Practice - Highway Maintenance, adopted by inter alia the Council of Scottish Local Authorities.

11. At the time of the Pursuer's accident on 5 January 2001, the footpavement on which he was walking was covered by ice lying on top of which a covering of snow had fallen.

12. Since 24 December 2000, the accident locus had been continuously covered with snow and ice but up to the time of the accident the Defenders had not treated or attempted to treat either the footpavement or the carriageway.

13. At para 2.2.3 of Part 1 thereof, the Plan provides: "All other footways [such as that at the accident locus] in the Moray Council area will be considered to have a lower priority although again precedence will be given to more heavily trafficked (sic) routes. These footways will be treated only when the Roads Service or other Council Departments have surplus plant or labour who (sic) are prevented by weather conditions from carrying out their normal duties or when conditions are severe enough to prevent the passage of pedestrians for a considerable period of time and where it is considered in the light of prevailing weather forecasts that the conditions might be expected to persist".

14. The twenty four hour weather forecasts available to the Defenders predicted snowfalls from 24 December, 2000, to 1 January 2001 and no snowfalls but sub-zero temperatures from 1 - 5 January 2001.

15. On untreated surfaces such as that at the accident locus snow which had fallen prior to 1 January 2001 had not disappeared by 5 January 2001 and there was a complete covering of snow and ice there on the morning of 5 January 2001.

16. Accordingly on the basis of the weather forecasts available to them from 24 December 2000 onwards and from their employees' observations of prevailing conditions the Defenders were or ought to have been aware that the underfoot conditions would persist until at least 5 January 2001.

17. Further from 24 December 2000 onwards, there occurred a number of accidents involving pedestrians on untreated or inadequately treated roads and footpavements in Elgin. Numerous complaints were made by members of the public to the Defenders about their dangerous condition and attention was drawn thereto in articles in the local weekly newspaper, the Northern Scot (nos. 5/7, 5/8 and 5/9 of Process).

18. Accordingly by 1 January 2001 at latest the Defenders were or ought reasonably to have been aware that in the absence of appropriate treatment the risk of slipping accidents involving pedestrians such as the Pursuer would be materially increased.

19. Over the Christmas - New Year period the members of the Defenders' staff available to treat roads and footpavements were diminished in number on account of seasonal holidays.

20. Having regard to the intensity of the adverse weather conditions and their predicted continuation, it was open to the Defenders to utilise staff who were on holiday but on call and to augment their immediate resources by hiring labour, vehicles or plant from local contractors, as contemplated in the Plan in para 1.1 of Part 2 of the Operational Plan, but they elected not to resort to any of these measures.

21. If the accident locus had been treated by the Defenders as late as 4 January 2001 new ice would have formed overnight as a result of the sub-zero temperature which occurred overnight on 4-5 January 2001, leading to the freezing of residual moisture and overnight rainfall on the surface of the footpavement.

22. Accordingly if such treatment had occurred on or prior to 4 January 2001, nevertheless the footpavement would have been slippery and dangerous during the morning of 5 January 2001.

23. It would not have been practicable for the Defenders to have treated a priority (3) footpavement such as that at the accident locus by 9.30 am on 5 January 2001, in response merely to an overnight deterioration of conditions.

24. Accordingly it is probable that if the footpavement had been treated on 4 January 2001, the Pursuer would have slipped and fallen nevertheless

[5] Findings in fact 25 and 26 describe the pursuer's injury and find in accordance with the joint minute of admissions that, on a full liability basis, the pursuer's loss, injury and damage were reasonably assessed in the sum of £3,850. The sheriff then found in fact and in law:

1. The pursuer has failed to prove that the accident was caused to any extent by the fault or negligence of the defenders.

Finally the sheriff found in law:

1. The court has jurisdiction.

2. The defenders are not due and resting owing the pursuer the sum sued for or any lesser sum.

[6] In light of these findings it may come as a surprise to learn that the sheriff was of the opinion that the defenders had been at fault in not having treated the pavement in Duff Place where the pursuer had his accident on or before 4 January 2001. But the sheriff evidently was of this opinion as can be seen from paragraph 6.2.3 of the note appended to his interlocutor which is in the following terms:

6.2.3. I now address the factual issue of whether in the circumstances the Defenders were in breach of duty. Did they satisfy the standard of care appropriate in the circumstances? It was accepted that the preparation of the Defenders' Plan was not deficient. In Grant v Lothian Regional Council (1988 SLT 533) Lord Prosser stated: "The evidence was to the effect that footways would receive less priority than carriageways ....... It appears to me that an authority such as [Lothian Regional Council] must plainly have a discretion to decide upon priorities, and that it is inevitable that those areas which are treated as low priority may remain untreated for at least a matter of days ...... I am not prepared to hold it unreasonable in a local authority to delay low priority work until a high priority work has been done". I consider this to be the most relevant of the authorities to which I was referred. In the present case the period over which the carriageway and footpavements of Duff Place were untreated was twelve days, not merely two as in the case of Grant v Lothian Regional Council. I fully accept that the present Defenders were restricted to a certain extent by the exceptional duration of the adverse weather, availability of resources including manpower and equipment and the coincidence of the holiday period and that they (the Defenders) were entitled to determine prioritisation. Nevertheless it appears to me that a line must be drawn somewhere and the period of twelve days over which Duff Place remained wholly untreated was much too long. I do not consider that it is appropriate for me to set forth a particular period beyond which failure to be treat would amount to negligence. Indeed it would be folly to attempt to do so because where the line is to be drawn must be flexible to take account of variables such as those to which I have referred. I am satisfied that, while failure to treat a suburban footpavement of low priority for two days may not be negligent, such failure for twelve days was clearly negligent. While the elderly might be expected to cope with containment indoors and rely upon stored foodstuffs, etc, such containment for twelve days could conceivably cause grave hardship. It was open to the Defenders to apply a degree of common sense and flexibility in the operation of the Plan, but they did not do so. I am satisfied that the Pursuer has established that the defenders were negligent in this regard.

[7] The basis upon which the sheriff nonetheless concluded that the pursuer had failed to prove that the accident was caused to any extent by the fault or negligence of the defenders is made clear in paragraph 6.2.4 of his note which reads:

6.2.4 The Pursuer, having thus established that the Defenders were negligent in the respect mentioned must further establish that such negligence was in fact the real, predominant or effective cause of the accident or at least a materially contributory factor. It is not sufficient for a pursuer to show breach of duty and harm if the latter was not brought about by the former (McWilliams v Arrol, 1962 SC (HL) 70, 83; O'Donnell v McKenzie, 1966 S.C.58). In the present case, if the negligence which I have found had not occurred, i.e. if the accident locus had been treated by 4 January 2001, the thrust of the evidence which I accepted was to the following effect. No snowfall was predicted nor occurred from 1 - 5 January 2001 but sub-zero temperatures occurred overnight (Nos. 5/4 and 5/16 of Process, as agreed in Joint Minute no. 26 of process; John Russell Edgar (27/2/24 and 27/2/36)). It is clear that, even if there had been treatment of the footpavement at Duff Place not later than or on 4 January 2001, any residual moisture and overnight rainfall would have frozen on account of the sub-zero temperature experienced during the night of 4-5 January. This was accepted by Richard Tabony, and approved by Mr Edgar - "..... on surfaces treated on 4 January 2001, some new ice had formed overnight". In short, even if treatment had taken place, the footpavement at the accident locus would nevertheless have been slippery and therefore dangerous. I do not consider that on the evidence led it has been open to me to make a finding on a balance of probabilities the accident would not have occurred if there had been timeous treatment. The evidence was to the contrary effect - notwithstanding timeous treatment the footpavement would have become dangerous de novo by the morning of 5 January as a result of development of conditions overnight. In other words and put simply, the Pursuer, although he has shown that the Defenders were negligent, has failed to show on a balance of probabilities that their negligence caused the accident, and on that simple ground his claim must fail.

[8] In response to the sheriff's interlocutor the pursuer lodged a note of appeal in terms of which he maintained, in short, that the sheriff had erred in fact and in law in finding that the weather on the night of 4 to 5 January 2001 had constituted a novus actus interveniens sufficient to sever any causal link between the defenders' negligence and the pursuer's accident. It was said that in light of the evidence the sheriff should have recognised that the defenders' negligence and the overnight weather had been co-operating causes of the accident with the result that the sheriff had been in error in granting decree of absolvitor in favour of the defenders.

[9] The defenders lodged a cross-appeal which contained ten separate grounds of appeal. But in essence these were all variations on the same theme, namely that the sheriff had erred in finding that the defenders had been negligent in the first place.

[10] At paragraph 5.1 of his note the sheriff wrote:

I do not consider it appropriate or necessary to comment upon the witnesses individually. That is because I did not consider that any of the witnesses was lying or seeking to mislead the court. Where differences did exist, they were differences of opinion or interpretation rather than of fact.

It follows in my opinion that this is one of those cases in which I am entitled to examine the whole of the evidence for myself and am not subject to the restrictions which might have applied if the sheriff's decision had turned in whole or in part on issues of credibility and reliability - see paragraph [5] of the judgement of the Second Division of the Court of Session in Taylor v George Smith and Others 2003 SCLR 926.

[11] I shall deal firstly with the defender's cross-appeal. The question here is whether the pursuer has proved on a balance of probabilities that the defenders in the exercise of their duty of reasonable care ought in all the circumstances to have treated the pavement at Duff Place on or before 4 January 2001. The law here is very helpfully set out in the judgement of Lord Clarke in Syme v Scottish Borders Council 2003 SLT 601 to which the defenders' solicitor referred me. In that case the pursuer sought damages from a roads authority for injuries sustained when he slipped and fell on a pavement on 3 December 1997. He averred that the pavement was extensively affected by snow and ice and pleaded, inter alia, that the defenders had been negligent. Following a discussion on the procedure roll, Lord Clarke dismissed the action. At paragraph 21 of his judgement he stated:

Having considered the averments, in article 3 of condescendence, and the respective submissions made in relation thereto, I have, furthermore, come to the conclusion that those averments do not instruct a relevant common law case of negligence. In my opinion the pursuer has failed to aver such a case for exactly the same reasons as the Second Division held the pursuer had failed to aver a relevant case in (Gibson v Strathclyde Regional Council 1993 SLT 1243). It is simply insufficient for the pursuer to aver, as he does, that it would 'have been reasonable to treat the locus in the foresaid manner in the course of 2 December and again about 9 am on the morning of 3 December 1997'. As Lord Murray said so succinctly in Gibson at p 1247: 'To make purely formal averments that a possibility is reasonable and practicable adds nothing, in my opinion, to the emptiness of the assertion.' Notwithstanding the fact that the Gibson case was, on its facts, concerned with alleged breaches of duties of inspection, I consider that dictum equally applicable to cases like the present where, as was conceded on behalf of the pursuer, the duties imposed upon the defenders are not absolute and where the resources available to the defenders for carrying out their functions are finite. As I observed above, the hazard in question was not created by the defenders, but by nature itself. The question is to what extent and when the defenders are obliged, in the exercise of their duties of reasonable care, to remove or alleviate the hazard so created. The observations of Lord Prosser in the case of (Grant v Lothian Regional Council) are also, in my judgment, apposite in the present case. At p 534 his Lordship said: 'It appears to me that an authority such as the defenders must plainly have a discretion to decide upon priorities, and that it is inevitable that those areas which are treated as of low priority may remain untreated for at least a matter of days. I see nothing negligent in the fact that the pavement at Canaan Lane fell into such a low category, and was thus liable to remain untreated for such a period. Moreover, the incidence of public holidays and weekends make it inevitable that there will be some variation in the speed with which a particular area is dealt with. It does not appear to me that it would be the duty of the local authority to "top up" their available force at weekends and the like, in order to maintain precisely the same availability of labour as could be maintained on weekdays. In any event it does not appear to me that the relevant section of pavement would have been dealt with before the accident even with full weekday forces. In the absence of any fault in the general system or the application of discretion within it, it appears to me that counsel for the pursuer was indeed driven, in his search for fault, to the argument that even the lowest priorities should be dealt with very promptly by the engagement of sufficient forces to deal with them all at once. I do not regard that argument as persuasive. I am not prepared to hold it unreasonable in a local authority to delay low priority work until high priority work has been done. I am not prepared to hold that there is any duty on a local authority to eliminate such priorities and delays by attempting (if indeed it were practicable) to have a vast force on call to deal with even the least important areas of roadway or footway. In my opinion the pursuer's case on fault fails.' The search, as his Lordship observed, is for averments showing fault which go beyond simply averring that the road or pavement could have been cleared or treated prior to the accident. What one requires to do, in my judgment, is to aver not simply what could have been done, or what it might have been reasonably practicable to do, but what should have been done in the exercise of the duty of reasonable care and to set out specific averments in support thereof. Such a case might, possibly, be made, as counsel for the defenders suggested, by reference to the practice of other roads authorities, as contrasted with that of the defenders, or to the fact that there were special circumstances, known to the defenders, or which ought to have been known to them, relating to the particular locus in question which required that it should have been dealt with prior to the time of the accident. That latter type of case might arise where, as in (McGeouch v Strathclyde Regional Council 1985 SLT 321), there have been a number of particular complaints about the risk that the locus posed, which had been communicated to the defenders and they have been ignored. There is nothing of this sort averred by the pursuer to support his common law case. In particular he makes no averment that the locus was in any different position from the large number of shopping streets which there must be throughout the Borders region. The deficiencies in the pursuer's common law case can be illustrated also by reference to what Lord Migdale said in (Gordon v Inverness Town Council 1957 SLT(N) 48) at p 48, namely: 'Merely to state that sand had not been spread on Kingsmill Street after 12 hours of frost is not enough to point to a breach of duty. It may be that there was some slackness or unreasonable delay in tackling the effects of this frost but if that was so it must be expressly averred. It is not enough for the pursuer to say that the delay could have been due to slackness. She must say so and so focus the real issue in the case. The statement that the defenders could and ought to have spread sand on Kingsmill Road before the accident does not assist her. Clearly the cart could have been sent there first. The fact that it was not done does not point to a breach of duty.' The need to set out clear and specific averments from which a breach of duty can be inferred is made clear, in my judgment, also from what was said in the case of (Cameron v County Council of Inverness 1935 SLT 281).

[12] The defenders' solicitor pointed out that in a case of this kind, just as there must be averments to instruct a relevant common law case of negligence, so too must there be evidence in support of such a case. He submitted in short that there had been insufficient relevant evidence led at the proof to allow the sheriff to make a finding of fault against the defenders. He submitted further that, even if it were to be said that there had been sufficient relevant evidence, the sheriff had failed to explain why he had not accepted the detailed evidence led on behalf of the defenders, and in particular that of the witness Mr Paul Barron, in support of their actions. Moreover, the sheriff had erred in finding the defenders to have been at fault when he had nowhere specified (1) what had been the duties incumbent upon them in relation to the treatment of the locus at Duff Place, (2) in what precise way they had failed to comply with these duties, and (3) when it was that they ought to have fulfilled these duties. In other words, so it was said, the sheriff had failed to identify what it was that the defenders ought to have done and when.

[13] I did not understand counsel for the pursuer to maintain that there had been any fault on the part of the defenders in the preparation of their winter maintenance plan. But he submitted that they had been negligent in their implementation of it. As he developed his submissions, it became clear that the pursuer's overriding complaint was that the defenders had failed to augment the resources available to them with the result that their delay in treatment of the pavement at Duff Place until after the pursuer's accident had been unreasonable. Specifically, counsel submitted that the defenders had been at fault (1) in not having made as much use as they could have done of their roads maintenance staff, (2) in not having called upon the assistance of their grounds maintenance staff, and (3) in not having hired labour, vehicles or plant from local contractors.

[14] When I first read the sheriff's judgement, it was far from clear to me precisely what treatment he supposed should have been applied by the defenders to the pavement at Duff Place. There were essentially two possibilities here. On the one hand they could have cleared the pavement of snow and ice altogether and then, depending upon the weather conditions, have applied some salt. Alternatively they might have applied salt and sand directly on to the snow and ice without first attempting to clear these away. The precise amount of salt and/or sand to be distributed would depend upon the weather conditions - see page 6 of the defenders' winter maintenance plan. Counsel for the pursuer did not go so far as to suggest that the defenders ought to have cleared the pavement at Duff Place of snow and ice altogether. He contented himself with submitting that they should have treated it by the application of salt and sand, but he did not suggest in what quantities these should have been distributed. Beyond saying that the period of twelve days before the pursuer's accident during which the pavement at Duff Place remained wholly untreated by the defenders was much too long, the sheriff did not say precisely when during that period the treatment ought to have been applied. But it became clear from what counsel for the pursuer said in support of the pursuer's appeal that his position was that the defenders ought to have treated the pavement on 4 January 2001. Having failed to do so they had, so it was said, been negligent and so had caused the pursuer's accident.

[15] In my opinion the submissions for the defenders on this branch of the case are to be preferred. It was a recurring theme in the evidence of the defenders' Area Engineer (West) in their roads maintenance section, Mr Paul Barron, that in the twelve days or so which culminated in the date of the pursuer's accident the defenders had been faced by a combination of severe weather conditions and a shortfall in available staff due to the Christmas/New Year holiday period which had resulted, in short, in there having been nothing that the defenders could reasonably have done to treat the pavement at Duff Place before the accident - see especially pages 3/10, 18, 19, 20, 24, 25, 26, 29, 30, 33, 44, 45, 46, 47, 49, 50, 51 and 53 of the notes of evidence. Given the sheriff's conclusion that none of the witnesses was lying or seeking to mislead the court, it seems to me that one would have to find compelling reasons elsewhere in the evidence to reject everything that Mr Barron had to say on this matter, and in my opinion there are no such compelling reasons to be found.

[16] In submitting that the defenders had failed to augment their resources as they should have done, counsel for the pursuer drew attention to the drivers' logs which form no. 6/2/4 of process. As I understood him, he sought to take from these that the drivers named in these logs had only worked the numbers of hours shown in them. But it is perfectly clear from an examination of the employees' timesheets which form no. 6/2/5 of process that the details in the drivers' logs only gave part of the picture, so to speak, and that in fact these drivers worked far longer hours than the logs alone would indicate. In the event the logs and the timesheets were only put very briefly to Mr Barron in examination-in-chief (see pages 3/19-22) and nothing was said by him at that stage to suggest that there had been a failure by the defenders to make adequate use of their employees in the roads maintenance section. Moreover, in cross-examination Mr Barron was not asked at all about these logs and timesheets.

[17] In submitting that the defenders had failed to make adequate use of their employees in their grounds maintenance section, counsel for the pursuer founded in particular on no. 6/2/8 of process, the first page of which is a record of the number of hours worked by employees from the grounds maintenance section on winter maintenance between 27 December 2000 and 11 January 2001. Counsel drew attention to the fact that no hours were recorded as having been worked between 31 December 2000 and 9 January 2001 inclusive. That may be correct, but I am at a loss to understand how the details on this single sheet of paper alone can be said to support the inference that over the Christmas/New Year holiday period the defenders did not make as much use of their grounds maintenance staff as they might reasonably have done in the circumstances. Mr Barron was only asked very briefly about no. 6/2/8 of process in examination-in-chief (see pages 3/5 and 9), and not at all in cross-examination, and nothing was suggested to him, let alone said by him, to vouch the assertion that there had been fault on the part of the defenders in this respect. The pursuer's expert witness, Mr John Edgar, was also asked at one point in cross-examination (see page 2/40) about no. 6/2/8 of process, and it was put to him: "As you can see from (no. 6/2/8 of process) there are a considerable number of additional men who were made available and also a considerable number of man-hours worked to augment the normal road staff who were on duty at that time". To this Mr Edgar responded: "There would appear to be but there is nothing to indicate what they were doing". The cross-examination then proceeded without further ado to other topics, so again it does not seem to me that this isolated piece of evidence can be said to support the submission made by counsel on this aspect of the matter.

[18] As for counsel's suggestion that the defenders ought to have engaged private contractors, it is true that paragraph 2.3.1 of the defenders' winter maintenance plan provided: "The Supervisors are authorised in the event of prolonged spells of severe weather to call for the assistance of other Council Departments who might have suitable labour, vehicles and plant available, or by hiring labour, vehicles and plant from local contractors". But in my opinion the evidence did not begin to justify the submission that there had been fault on the part of the defenders in not having augmented their resources by engaging private contractors in the circumstances. Mr Barron was not asked about this at all, and for this reason alone it seems to me that it will not do for counsel to suggest that there had been fault on the defenders' part in this respect. Even Mr Edgar was only asked once about this (at page 2/31) when he spoke of "an arrangement, particularly in the Midlothian area, where contractors were invited at the start of the winter period to provide details of what resources they could make available over the winter". He then explained that the first task of such contractors "was normally to clear away the entrance to side roads where snow had built up through the action of ploughing on main roads, creating a barrier along the edge of the main road. That would be the first task, then they would move into the minor road and spread, either clear snow and ice if that was possible, but certainly to grit the services". But again I cannot see how this isolated section of the evidence can be said to justify the drawing of an inference on the balance of probabilities that the defenders in the circumstances of this case were at fault in not having engaged private contractors.

[19] The only evidence to contradict that of Mr Barron came from Mr Edgar. He referred at pages 2/26-28 to his report, no. 5/6 of process, and specifically the final paragraph of section 5 and paragraph (ii) in section 6. In the former he stated: "Treatment of lower priority roads and footways may at times be unavoidably delayed when ongoing severe weather conditions necessitate repeated or continuous treatment on high priority roads. Councils do not have unlimited resources and personnel cannot work indefinitely without rest. However it is considered that such conditions did not apply, certainly after the New Year, and therefore the (defenders) should have been able to direct resources towards catching up on the ice and snow accumulations which had built up prior to New Year and which had remained afterwards due to the continuing sub-zero conditions, particularly when there was nothing in the weather forecasting to indicate an early thaw". And in paragraph 6(ii) Mr Edgar went on to state that "ice and snow conditions in Elgin streets, and in Duff Place in particular, were left untreated between 24 December 2000 and 5 January 2001, a period of 12 days, and that, even allowing for possible difficulties in balancing conditions and resources prior to 31 December 2000, the back log should have been cleared in the subsequent 5 days to 5 January 2001".

[20] No doubt, as the sheriff says, Mr Edgar was not lying or seeking to mislead the court, but it does seem to me that one ought to be cautious about preferring the evidence of an expert witness such as Mr Edgar to the no less credible evidence of Mr Barron who had had a ready familiarity, which Mr Edgar plainly did not have, with the conditions (both of weather and staffing resources) under which the defenders had had to operate at the material time. It was easy for Mr Edgar to assert after the event that the defenders "should have been able to direct resources towards catching up on the ice and snow accumulations which had built up prior to New Year" and that "the back log should have been cleared in the subsequent 5 days to 5 January 2001". But it seems to me that, if the pursuer wished these assertions to be preferred to the evidence of Mr Barron, then he would have had to been able to point to some cogent reasons in the evidence of Mr Edgar to support his assertions. It is true of course that he was giving evidence on the basis of his own experience of having worked for various local authorities. But otherwise he had nothing at all to say about the practice of other local authorities apart from the defenders except when, as already noted, he referred very briefly to Midlothian. In particular, he made no attempt to analyse in detail how another local authority might have coped with the exceptional conditions faced by the defenders during the period in question. Towards the end of his supplementary report (no. 5/10 of process) he asserted that the defenders "were not acting reasonably in leaving footways untreated for a period of 12 days, regardless of the circumstances". He referred to this particular passage only briefly in his evidence at page 2/29, but he did not then expand upon the reasons which were supposed to support this assertion.

[21] I am conscious that I have reached a different conclusion on this branch of the case from that of the sheriff. Plainly his conclusion is entitled to be given weight but, for the reasons indicated in paragraph [10] above, I am not bound by it in the circumstances of this particular case. In paragraph 6.2.3 of his note the sheriff quite rightly acknowledged that the defenders "were restricted to a certain extent by the exceptional duration of the adverse weather, availability of resources including manpower and equipment and the coincidence of the holiday period". He accepted too that the defenders "were entitled to determine prioritisation". But he then went on to say that a line had to be drawn somewhere and that "the period of twelve days over which Duff Place remained wholly untreated was much too long" and that "while failure to treat a suburban footpavement of low priority for two days may not be negligent, such failure for twelve days was clearly negligent". It might then have been expected that the sheriff would have explained clearly the reasons for these assertions given in particular the credible evidence of Mr Barron. Here it respectfully seems to me that the sheriff's conclusion falls down since in truth he does not state any reasons at all apart from the possible impact on elderly people of containment indoors (which was not canvassed in the course of the evidence) and the fact that it was open to the defenders " to apply a degree of common sense and flexibility in the operation of the plan, but they did not do so". I have to confess that I am not sure what this last comment means.

[22] Referring to the observations of Lord Clarke in Syme, I have already drawn attention to the paucity in the present case of evidence of the practice of other local authorities in coping with conditions such as those that faced the defenders at the material time. It is true that they appear to have received numerous complaints from members of the public about the state of the roads and footpaths in general. But I doubt if there was anything remarkable about this, and there was no evidence to suggest (to borrow Lord Clarke's language) "that there were special circumstances, known to the defenders, or which ought to have been known to them, relating to the particular locus in question which required that it should have been dealt with prior to the time of the accident". As Lord Clarke's judgement made clear, it is essential in a case of this kind to set out clear and specific averments from which a breach by the defenders of their duty to take reasonable care may be inferred, and to lead evidence accordingly in support of these averments. In my opinion the evidence in this case does not establish on a balance of probabilities that the defenders were in breach of their duty of care and it follows that I must respectfully differ from the sheriff's conclusion that they had been negligent.

[23] In so doing, I have thought it right to accede to the defenders' solicitor's submission that the sheriff's finding in fact 20 should be deleted. This finding was the nearest the sheriff made to a finding of fault on the part of the defenders. But, to the extent that it did so, I do not think that it was supported by the evidence. The defenders' solicitor also challenged findings in fact 17 and 18 as being unsupported by the evidence. I do not think that I need to deal with this particular point since in any event it does not seem to me that these two findings advance the pursuer's case to any material extent in the context of this case.

[24] What I have said so far is sufficient to dispose of this appeal but, in deference to the careful submissions of counsel for the pursuer and the defenders' solicitor, I should deal with the pursuer's appeal. It was not in dispute that, on the assumption that it had been proved that the defenders had been at fault and that this would otherwise have made a material contribution to the pursuer's accident, the onus of proof lay on the defenders to demonstrate that the chain of causation had been broken by the weather conditions that had intervened between the occurrence of the defenders' fault and the pursuer's accident. But the difficulty for the defenders here, as their solicitor pointed out, was that it was not apparent from the sheriff's judgement what it was that they ought to have done in the exercise of their duty to take reasonable care, or more importantly when this should have been done. In this context it should be observed that the effect upon the condition of the pavement in Duff Place on 5 January 2001 of the intervening weather conditions would have differed significantly according to whether the defenders had treated the pavement on, for example, 27 December 2000 or on 4 January 2001. I use the word "treated" with some hesitation since here too the effect of the intervening weather conditions would have differed according to whether treatment had meant the removal altogether from the pavement of snow and ice followed by the application of salt, or simply the application of salt, and, if need be, also sand.

[25] As already indicated, in the event, and notwithstanding that there did not appear to be any basis for this in the sheriff's judgement, counsel for the pursuer presented his submissions on this branch of the case upon the hypothesis that what the defenders ought to have done was to have applied salt and sand to the pavement at some time during 4 January 2001. Counsel submitted that the sheriff had erred in law in that it did not appear from his judgement that he had considered the possibility that the novus actus interveniens which he had identified had merely been a co-operating cause of the pursuer's accident to which the fault of the defenders had also made a material contribution. He submitted that the proper question that the sheriff should have asked himself, having made a finding of negligence against the defenders, was whether it had been proved on a balance of probabilities that the consequences of the weather conditions overnight on 4/5 January 2001 had been such as to sever beyond a finding of de minimis the causal link between the defenders' negligence and the harm suffered by the pursuer. Counsel went on to examine the evidence and submitted in short that, if the defenders had salted and gritted the pavement in Duff Place on 4 January 2001, the beneficial effect of this would have lasted overnight into 5 January 2001 and the sand applied by the defenders would have provided slip resistance. Accordingly counsel proposed that I should add findings in fact to the effect that, had the pavement at Duff Place been treated with salt and sand no later than 4 January 2001, it was probable that this treatment would have rendered the pavement sufficiently safe to walk on, that in any event treatment applied to the pavement no later than this date would have materially reduced the risk of injury sustained by slipping on ice or snow lying on the pavement and that accordingly the defenders' failure to treat the pavement no later than 4 January 2001 caused or was a co-operating cause of the pursuer's accident on 5 January 2001.

[26] In response the defenders' solicitor submitted that, on the hypothesis (which he did not accept) that the defenders had been at fault in not having applied salt and sand to the pavement on 4 January 2001, there was sufficient evidence to entitle the sheriff to hold that the supervening weather conditions that night had operated as a novus actus interveniens and that the sheriff's decision on the facts that these weather conditions were the cause of the accident was one which he had been perfectly entitled to reach.

[27] In the course of his submissions counsel for the pursuer drew attention to the weather forecasts which were available to the defenders and which form no. 6/2/1 of process. He pointed out that in the forecast for the twenty-four hours from noon on 4 January 2001 the Readiness Colour had been AMBER indicating a low confidence of ice and/or snow hazards. This was to be contrasted to the Readiness Colour of RED (indicating a high confidence of ice and/or snow hazards) on the days immediately before and after 4 January 2001. He also founded on the fact that some of the questions asked by the defenders' solicitor at the proof had appeared to proceed upon the basis that the Readiness Colour on 4 January 2001 had been RED. It is true of course that these weather forecasts were, according to Mr Barron, "reasonably accurate" (see page 3/36). But what matters in this context is not what weather conditions were forecast but what weather conditions actually materialised. To ascertain this it is necessary to consider the reports of Mr Richard Tabony (nos. 5/4, 5/5 and 5/16 of process), the information in which was agreed in terms of the joint minute of admissions to be true and accurate. In addition account should be taken of the graphs from Brodie on the A96 road which form no. 6/2/2 of process and which appear from the evidence of Mr Barron at page 3/23 (see also page 3/35) to provide a record of various aspects of the weather conditions during the period in question. In this context it is also interesting to note the contents of the defenders' supervisors' reports which form no. 6/2/6 of process (referred to by Mr Barron at page 3/28). Taken together these various documents all seem to me to contradict the indication implicit in the AMBER warning in the forecast that the night of 4/5 January 2001 would be less cold than the other nights around that time. So, for example, according to the supervisors' reports it appears to have been colder both on 4 and 5 January 2001 than it was on either the previous or subsequent days. Moreover, it is interesting to notice that both in article 5 of the pursuer's condescendence and in the defenders' answer 5 it is said that on each night between 1 and 5 January 2001 the temperature at the locus dropped to about minus 2.5degrees centigrade to minus 3.5degrees centigrade.

[28] Mr Tabony's first report (no. 5/4 of process) was dated 10September 2002. On the front of it he recorded that it had been prepared on the instructions of the pursuer's solicitors and that it provided "an expert opinion as to the most likely weather conditions prevailing in the vicinity of Elgin at 0930 GMT on 5 January 2001, with particular reference to ice". The report has various pages of climatological data drawn from Lossiemouth and Forres. Having considered the data, Mr Tabony concluded his report:

On winter nights, the minimum temperature of a paved surface lies between the values recorded over grass and in the air. It is typically about 2 (degrees centigrade) below the air temperature. Thus we can be confident that ground temperatures were below freezing at the time of the accident.

There had been some light rain the day before the accident, sufficient to wet the ground. Winds were light, and there was little evaporation during the day. By the evening of 4th January exposed surfaces would have been damp. Untreated surfaces would have frozen over during the night. There would probably also have been some hoar frost deposited during the course of the night. The relatively small amount of water substance present meant that icy patches, rather than widespread ice, had formed.

SUMMARY

Ice was present on untreated surfaces in the vicinity of Elgin at 0930 GMT on 5th January 2001. Untreated roads and pavements were covered in patches of black ice or hoar frost, while stretches of roads and pavements remained damp. There had been a period of severe weather during the last week of December that gave a little snow. However, the ice that affected pavements on 5th January had formed overnight.

[29] Mr Tabony's second report (no. 5/5 of process) was dated 19 March 2003. For the purposes of this report Mr Tabony drew on data from three rainfall stations in the neighbourhood of Elgin in addition to the stations at Forres and Lossiemouth. At page 2 of his report he noted that the data from these last two stations "indicated that snow from a severe spell of weather in the last week of December 2000 had melted by 5th January 2001, and that ice on that morning had formed overnight". He explained that his new report took into account witness statements that snow and ice on the ground at Elgin on the morning of 5th January had persisted from the end of December and he examined the rainfall measurements from the three new stations "with a view to seeing if there was more precipitation in the vicinity of Elgin than at Forres". He concluded his report on page 3 where he stated:

In a fresh snowfall, 1cm of snow depth is equivalent to about 1mm of rain. Over a period of a week compaction of snow would reduce the ratio. In the period of interest, some thawing took place so that at Forres, the 11mm of precipitation produced only 2cm of snow on the ground.

The snow depth at Elgin on 31st December is uncertain, but we can be confident that it was more than at Forres. The actual amount is not crucial to the case, as the 2cm of snow at Forres took until 5th January to disappear. Even a small amount of extra snow would have enabled it to survive until 5th January.

SUMMARY

The sequence of weather is as described in the original statement. The new information on the amount of snow that fell at Elgin from 24th to 31st December 2000 leads to the conclusion that, on untreated surfaces, this snow had not disappeared by 5th January 2001. On surfaces that had been treated on 4th January, some new ice had formed by 5th January.

[30] Mr Tabony's second report was accompanied by a letter, also dated 19 March 2003 (no. 5/16 of process) to the pursuer's solicitors. In this letter Mr Tabony reported that he could "state with a high level of confidence that there was a complete covering of snow and ice on untreated surfaces at Elgin on the morning of 5th January 2001". He also stated: " I can confidently say that the precipitation between 24th and 31st December fell as snow, and that from 1st to 5th January it fell as rain". And in the penultimate paragraph of his letter he commented: "From the above, it appears that, at the nearest gauge to Elgin (i.e. Kirkhill), there was no rain after 09 GMT on 4th January. However, we can state with a high level of confidence that there was rain before 09 GMT on 4th January at Elgin".

[31] Turning to the oral evidence on this aspect of the case, I note that one of the difficulties in following this is that questions were often asked about the effect of treatment of the pavement at Duff Place on certain dates without specifying which form of treatment was envisaged. Thus at page 3/26 Mr Barron was asked:

Can I just put a couple of suggestions to you. Let's say that Duff pavement and Duff Place have been treated on 28 December. Would that treatment still have been effective come 5 January? - Probably unlikely on that timescale.

Let's say again, the 2ndof January? - There is a possibility. If you look at our Priority 1 Routes, you do have some sort of assessment of residual salt levels but you have got no accurate measure of what salt you have got there. So, on our Priority 1 Routes we are virtually going out every night topping that salt up. Irrespective of whether we were out the night before. There is no guarantee that the salt you put out on the day before is still in locus.

At pages 3/27-28 Mr Barron was asked:

Then we have got this overnight frost on the 4th? - On the 4th, yes.

Which presumably would have caused any previously melted .......? - Yes, if there was any previously melted snow that would have re-frozen had there been frost overnight on the 4th.

And to what extent might that have reduced the effectiveness of any treatment that might have been applied? - Again, any time you have got snow melt you have therefore got your salt being run off the carriageway or footway. It's just washing the salt away into the channels or gutters.

Am I going too far to say that such snow and ice melt would in effect render any previous treatment useless? - Probably going too far to say useless. It really depends on the level of snow melt. If you have got a large amount of snow melt, yes, it can render it useless.

(Here it will be recalled that, despite the AMBER forecast, it is clear from the evidence of Mr Tabony's reports that there was frost on the night before the pursuer's accident).

[32] At page 3/40 Mr Barron was asked by the sheriff:

Does that mean Mr Barron that treatment, if any, on earlier days would have been superseded by fresh snow and ice. So that, to address the problem on the 5th, on the morning on the 5th by say 10.00 am, it would have had to be treated again? - Most likely that morning, yes.

And in addition to that, having regard to the categorisation of the footway on Duff Place, that would or would not have been feasible? - That would not have been feasible. At that time in the morning we would still have been on the Priority 1 footways.

In point of fact it is clear that there was no fresh snow on the night before the pursuer's accident although, as indicated, there was fresh ice.

[33] At page 1/22 the pursuer himself referred to the fact that the pavement at Duff Place had been treated (it appears by the application of salt and sand) on the afternoon of the day of his accident. He explained that he had gone out for a walk the next day and was asked:

Did you notice any difference on the pavements the next day? - The gritters had been up after my accident. You could walk on the sandy stuff and it was a lot easier. It was slushy like but it was a lot easier to walk on. I didn't walk as far.

[34] In this context it might have been helpful in the evidence to consider how the temperature on the night after the pursuer's accident compared with that on the night before. But this issue was not addressed when Mr Barron was asked about the evidence of the pursuer at page 3/43 as follows:

Mr Murdoch gave evidence that he went out for a walk on the day after the accident as well and that he was in Duff Place again and by that time with there having been some treatment, he described conditions underfoot as sandy and slushy. Would you accept that that would be good evidence of what the conditions would probably have been on the day following treatment at any time after New Year? - If he says they were sandy then clearly they have been treated with salt. Slushy is an indication that salt has started to break down any ice or snow formation on that carriageway. If it is still described as slushy it has obviously not cleared that carriageway or footway of ice and snow.

Would you accept a slushy surface is perhaps a less dangerous surface to pedestrians than one which is solid ice? - A close call. We have had people claim to having slipped on slushy surfaces as well. I would have thought that on balance, yes.

[35] At pages 3/46-47 Mr Barron expressed the hope that, if the defenders had not been at a reduced staffing level due to the Christmas and New Year period, Duff Place would probably have been treated by the 4 January. He was then asked by the sheriff:

But presumably that is subject to the qualification that given the conditions which obtained overnight on the 4th and 5th January, it would have required to have been re-treated? - Looking at the evidence that has been given already, it would have had to be re-treated on the 5th.

Am I correct? I don't want to jump to any conclusions. - I think that is accurate.

So that even if it hadn't been that this fell about Christmas time and you had all your thirty four men instead of ten on duty on the days which were Christmas and New Year holidays, it might have, by the 4th of January, have been treated. But it would have required to be re-treated? - It could well require to have been re-treated on the morning of the 5th.

[36] Finally, in re-examination Mr Barron was asked at page 3/52:

It was mentioned that on 6th January, the snow which had been on the footpath of Duff Place, had turned to slush. Therefore, in theory then, if Duff Place had been treated on the 4th and the slush had developed, then given there was an overnight frost on the 4th of January, then that slush would have turned to ice? - It could have frozen again.

So that would require to have been treated? - It would require to have been treated again on the 5th.

[37] The defenders' supervisor Mr Donald Bremner was asked only briefly about this issue at pages 3/56-57 as follows:

What effect does thaw have on the salt and sand mixture which you put onto the snow? - Well, in the event of the temperatures beginning to rise and as thaw sets in, the salt would assist in the quick thaw of the footpath. The sand would remain there. But once freezing temperatures came back then the residue would freeze again overnight and in a case like that, that's when we would have to go back again and treat again the next day.

In the event of a thaw followed by frost, it would remove any effect which the salt or sand may previously have had? - Yes, generally. You are back to having moisture again rise to the surface and once that freezes overnight you are back to square one.

[38] At pages 2/30-31 Mr Edgar suggested that, apart from clearing the pavement at Duff Place of snow altogether, the other thing the defenders could and should have done was to have treated the pavement with salt or grit. He explained that this in itself would not have removed the snow and ice but would have given an abrasive texture to the surface which might have inhibited slipping. He was then asked:

Is it possible, dealing with the second of the two alternatives that you gave there, is it possible to make any distinction for example, as between whether a single treatment in the time period we have referred to, perhaps on 27th December, would have made any particular difference as compared with say, a single treatment on 4th January? - It would have made a slight difference. There would have been an opportunity for the salt to penetrate the icy surface and perhaps reduce the level of ice on the pavement. I don't think it would have been completely effective though prior to 1st January. I think what would have made a big difference would have been to have treated the pavements and the carriageway after the New Year or after the holiday period, well after New Year, with grit or salt.

[39] At pages 2/34-37 Mr Edgar was asked various questions about the effect of applying salt to the pavement. He explained in effect that, if salt had been applied to snow lying on the pavement, and then further snow had fallen on top, the salt which had been applied would have made it easier to remove the snow subsequently but "it would have been the top layers in any case which that salt hadn't penetrated, that would have become icy and hard-packed". He was asked (at page 2/35):

Would it have been any better from a safety point of view? - Very little in my opinion. It would have made it simply easier to deal with at a later stage.

Mr Edgar was then referred to one of Mr Tabony's reports (which one is not clear) and he was asked (at page 2/35):

What I would say to you and what we can draw from Mr Tabony's report and your analysis of it, there was snow until 31st December and thereafter it was simply cold temperatures? - Yes.

So, if there had been salt and grit put down on the pavement prior to 31st December then it would likely have been covered in snow? - Yes.

And thereafter any moisture formed as a result of the grit or the salt causing the snow to melt, is going to be formed into ice? - Not completely. It would have had a content of salt which would have inhibited ice forming at that level.

[40] At pages 2/36-37 the defenders' solicitor referred to Mr Tabony's report where he stated "ice affecting pavements on 5th January had formed overnight" and also that "on surfaces that had been treated on 4th January some new ice had formed overnight". The evidence continued:

That would suggest to me that even if Duff Place had been treated on 4th January, there would have been ice on its surface on the morning of the 5th January? - That would seem likely, yes.

BY THE COURT - Do I take that to mean Mr Edgar that whatever treatment may have taken place before and however commendable that might have been, up to the 4th, then what ice would have formed or apparently formed overnight on the 4th to the 5th would have required further treatment? - Not necessarily. The effect of salt say on the 4th, there would have been some lasting effect over into succeeding days even if nothing else had been done.

You may not be able to answer this. Would it or would it not have been necessary or served any purpose to have re-treated it on the morning of the 5th before Mr Murdoch had his accident, leaving aside completely the question of whether for other reasons that should or shouldn't or needn't have been done? - Well, any further treatment would have been beneficial.

Where does that leave us in the absence of such further treatment? - I think there would still have been a benefit from the previous gritting.

[41] There was then some evidence to the effect that, the more traffic there is along a pavement such as the one at Duff Place, the more effective would be treatment in conditions of snow and ice by means of the application of salt or grit. Then at page 2/39 Mr Edgar was asked:

The point I was trying to make though is if a residential low priority road such as Duff Place is treated, then that treatment is not going to be as effective due to the lower amount of traffic on that road or pavement? - That's correct.

So, based on that, I would put it to you that even if Duff Place had been treated prior to 4th January then there wouldn't have been sufficient traffic over the pavement to allow that treatment to have any real effect? - Again, it depends what you mean by treatment. Another form of treatment might be to remove the snow and ice.

But if it was just salting or gritting it? - If it was simply salting or gritting then the lasting effect of that would have been limited.

[42] At page 2/43 it was put to Mr Edgar:

What we are saying is that even if there had been treatment applied to Duff Place in the period advocated, the pavement would still have been slippery on the morning of the 5th and the accident would still have happened? - That's a bit too much to speculate, I think, on. The fact that there was salt and possibly grit there, these substances are quite abrasive and in themselves they give a measure of resistance to slipping. Apart from the melting process.

[43] The pursuer's solicitor (Mr Brash) returned to the point in re-examination at pages 2/46-47. He asked Mr Edgar:

Mr Edgar, regarding the treatment that could have been made at Duff Place in the form of gritting or salting, in your opinion, if gritting had been applied at some point before the 31st December 2000, what effect would that have had on the slipperiness of the pavement or the roadway at Duff Place on the 5th January? - From before New Year? I think probably the effect would have largely disappeared by then. That's going to be .......

BY THE COURT - Do you mean the slippery effect or the beneficial effect of the gritting? - The beneficial effect.

Would have disappeared? - Would have largely disappeared I would have expected.

MR BRASH - But in the present circumstances, with your knowledge of the weather conditions and what not, had such treatment been applied after 31st December, in your opinion what effect would that have had on the slipperiness? - Well, the longer time goes by, the less effect it has. But I think in a day or two it would still have retained some skid resistance, if you like, because of the abrasive nature of the material, regardless of whether it was melting snow or anything else.

You are saying in a day or so? In what period of time are you saying then, on or after 31st January (sic), it would still have had some positive effect in reducing slipperiness? - I would say that if the cold weather had continued continuously, that is over the day time as well as the night time, that the effect would have lasted longer than if it had melted during the day and then frozen up again.

Okay. With your knowledge of how the actual weather conditions were, between 1st January and 5th January, is it possible for you to say what effect it would have continued to have? - It's not an exact science. It would be difficult to say precisely what the effect would have been. But I would have said there would have been a tendency for the effect to be lasting to some extent. It wouldn't disappear overnight. I would have said the ideal treatment was not to grit but to remove the snow and down to black pavement as I think is stated in one of the answers in the record.

[44] In conclusion, Mr Edgar was asked some questions by the sheriff. At page 2/52 he was asked:

Moving on from that, do you say that, if I understood you correctly earlier, please correct me if I have got this wrongly, that if there had been the formation of further ice as a result of conditions on the night of 4th to 5th January, then earlier treatment, if it had taken place, would have had its effect significantly negated? - Well, lessened, certainly.

And you can't be absolutely precise about the extent? - No, as I said, it's not an exact science.

Do I take it from that, in your view, the fault here lay primarily in failure to have the gritter out on the footpavement before 9.30 on 5th January? - Yes, that or some means of clearing away the snow entirely, not just simply gritting it.

At pages 2/56-57 the sheriff asked Mr Edgar:

........ To try to get some sort of apportionment between earlier dangers, if any, and danger which came about overnight into the morning of 5th January? Do you understand my question? - Yes, I see what you are getting at. It's rather difficult to answer. I think I would have expected the conditions to be much the same from 24th December, given a day or so to freeze up right through. It wouldn't have melted. And any treatment on that, during that time by gritting or salting would have had a temporary effect rather than a lasting effect right through. I think that what was really wanted was for the snow and ice to be shifted entirely.

[45] The question here is whether, on the assumption that they were at fault in not having treated the pavement at Duff Place on 4 January 2001 by the application of salt and sand, the defenders have proved on a balance of probabilities that the effect of the weather conditions during the night of 4/5 January 2001 was such as to break the chain of causation between their fault and the occurrence of the pursuer's accident so that their fault was no longer an efficient cause of the accident. In other words, has it been proved that the overnight weather conditions were, to borrow the language of Lord Wright in The Oropesa 1943 P 32 at page 39, "a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic". I have deliberately set out the evidence at length since I think that it demonstrates that what Messrs Barron, Bremner and Edgar had to say on this question ebbed and flowed to such an extent that at the end of the day it is very difficult to be confident of the answer. When Mr Tabony stated in his second report that "On surfaces that had been treated on 4th January, some new ice had formed by 5th January", I suspect that what he had in mind by treatment in this context was the removal altogether of snow and ice from the pavement. But of course the pursuer's case here is based upon the hypothesis that the treatment should have consisted of the application of salt and sand. It seems to me that Mr Tabony's reports assist only to a limited degree towards a resolution of the question what would have been the effect of the overnight weather conditions upon treatment of this kind.

[46] The sheriff in paragraph 6.2.4 of his note drew attention to the weather conditions overnight and Mr Tabony's conclusion and then said: "In short, even if treatment had taken place, the footpavement at the accident locus would nevertheless have been slippery and therefore dangerous". I think that this is correct up to a point, but I am not persuaded on a balance of probabilities that it would have been as dangerous as it would have been if treatment in the form and at the time desiderated by the pursuer had not taken place at all. It seems to me that the evidence demonstrated that with such treatment there would have been some residual benefit from it to the extent that there would have been isolated patches of ice on the pavement but that the surface would not have been altogether covered in ice as it was in the absence of such treatment (with the result that the pursuer should have been able to negotiate his way along the pavement avoiding the slippery patches). Accordingly, while there would always have been a risk that he might have slipped and fallen, I think that it is going too far to say, as the sheriff did in his finding in fact 24, that "it is probable that if the footpavement had been treated on 4th January 2001, the pursuer would have slipped and fallen nevertheless". I have deleted this finding in fact accordingly.

[47] I have considered whether I should also delete findings in fact 21 and 22. On balance I have decided not to do so since they seem to me to be justified by the evidence subject to the amendments which I have incorporated in the foregoing interlocutor. But, for the reasons indicated, I am not persuaded that these findings by themselves would have been sufficient to break the chain of causation between the defenders' fault, as the pursuer would have it, and his accident.

[48] It was agreed that the expenses of the appeal should follow success. I was also moved on behalf of the pursuer to certify Mr Kilian and Mr Edgar as skilled witnesses. In point of fact, having had an opportunity to consider the relevant rules, I am not convinced that such certification is any longer necessary since paragraph 9 of schedule 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (S.I. 1992 No. 1878) was replaced by a new paragraph 1 to the schedule in terms of the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) (Amendment) 2002 (SSI 2002/280). But the motion was not opposed and I have therefore granted it, for what it is worth.

[49] In addition to the cases already cited, the defenders' solicitor referred me to Jackson v City of Edinburgh Council (Court of Session, 4 November 2004, unreported). Counsel for the pursuer also referred me to Bourhill v Young 1942 SC (HL) 78, Walker on Delict (2nd edn) pages 212/6 and 230, Leyland Shipping Co Limited v Norwich Union Fire Insurance Society Limited 1918 AC 350, Wardlaw v Bonnington Castings Limited 1956 SC (HL) 26, A/B Karlshamns Oljefabriker v Monarch Steamship Co Limited 1949 SC (HL) 1 (also 1947 SC 179) and S.S. "Barron Vernon" v S.S. "Metagama" 1928 SC (HL) 21.

[50] Counsel also submitted that I should sanction his employment for the purposes of the appeal. The issue is now academic in light of the defenders' success. Had I had to decide it, I think that I should probably have rejected counsel's submission. As the defenders' solicitor observed, the agreed value of the pursuer's claim was only £3,850, the case itself, involving as it did issues of winter maintenance, was of a kind that is not unusual in this court and despite his ample citation of authority nothing that was said by counsel on the question of novus actus interveniens was especially contentious.