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Cite as: [2005] ScotSC 56, 2006 SCLR 143

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Marshall v. North Ayrshire Council [2005] ScotSC 56 (30 August 2005)

A1600/97 Thomas Marshall v North Ayrshire Council

KILMARNOCK: 30^th August, 2005 Sheriff C G McKay

The Sheriff, having resumed consideration of the cause, before answer, allows to parties a proof of their respective averments; assigns the cause to the Diet Roll of the Ordinary Court of 28^th September, 2005 at 10.00 for the purpose of assigning a diet thereof and as a hearing on the expenses of the debate.

Sheriff.

Note

In this action the Pursuer seeks damages by way of reparation from North Ayrshire Council for injuries sustained by him in an accident on or about 28 November 1994. The Defenders have a number of preliminary pleas-in-law, numbers 1, 2 and 8 but, in practical effect, numbers 2 and 8 can be subsumed within their general plea-in-law to the relevancy, number 1. The Defenders insisted on their plea to the relevancy and I heard parties on debate on 6 April and 12 May, 2005. In the debate the Defenders were represented by Professor Hennessy, solicitor, Glasgow and the Pursuers by Mr Honeyman, solicitor, Ayr.

In the course of the debate I was referred to the following authorities and statutes,

Jamieson v Jamieson 1952 SLT 257

Miller v SSEB 1958 SLT 299

Blaikie v The British Transport Commission 1961 SLT 189

Stevenson v The Corporation of Glasgow (1908) 16 SLT 302

Graham v East of Scotland Water Authority 2002 SCLR 340

Strachan v Highlands Council 1999 GWD 38-163

Duff v East Dunbartonshire Council and Another 2002 Rep LR 98

Staples v West Dorset District Council (1995) PIQR 439(CA)

Davie v Edinburgh Corporation 1977 SLT (Notes) 5

McArthur v Raynesway Plant and Another 1980 SLT 74

Murray v Edinburgh District Council 1981 SLT 253

McGouch v SRC 1985 SLT 321

Gibson v SRC 1993 SLT 1243

Bennett v J Lamont and Sons 2000 SLT 17

Tomlinson v Congleton BC (2003) UKHL 47

Morrison v London Midland Scottish Railway Company 1928 SLT 647.

Stevenson v Edinburgh Corporation 1934 SLT 170

I was also referred to the Coast Protection Act 1949, the Roads (Scotland) Act 1984, the publication, Highway Maintenance: a Code of Good Practice and the Stair Memorial Encyclopaedia, Volume 20 Para. 611.

Defenders' Submissions

For the Defenders, Professor Hennessy sought dismissal of the Pursuer's action as irrelevant and invited me to sustain the three preliminary pleas-in-law stated by the Defenders, numbers 1, 2 and 8. He recognised that the Defenders had to overcome certain hurdles in having a damages action for personal injury dismissed at the debate stage as was indicated in the case of Miller v SSEB. The court was required to take the averments of the Defenders as true for the purpose of the debate (Jamieson v Jamieson) but he reminded me of the terms of Blaikie v BTC which made it clear that the "rare and exceptional" approach adopted in Miller did not mean that a personal injuries case could never be dismissed at debate stage. In particular he referred me to the observations of the Lord Justice Clerk in the opening paragraphs of his opinion at page 191 and of Lord Patrick at page 192.

He first of all considered the Pursuer's averments of fault and negligence as set out in Article 3 of Condescendence. To an extent he suggested they were somewhat confusing in that they did not appear, in his submission, to make clear the basis for some of the common law duties averred, or indeed, the statutory duty in particular, as it appeared to be said that that arose in terms of the Coast Protection Act of 1949. The Defenders accepted that they were the local highway authority, albeit at the present day, in their capacity as statutory successors to Strathclyde Regional Council who were the authority at the time of the accident. At this point in Article 3 the Pursuers go on to refer to the Coast Protection Act 1949 and make averments which seem to rely upon a breach of duties arising under this Act. I should record at this stage that the Pursuer's solicitor subsequently conceded that there was no case to be made under the 1949 Act. I have recorded the Defenders' submission about this for the record in case the concession is at some later stage withdrawn.

The Pursuer refers to the sea wall at the location of the accident, avers that the Defenders are the body responsible for its maintenance and that they had a duty to maintain the wall in a safe condition and at a sufficient height to prevent pedestrians from falling over it. In answer the Defenders say there is no such duty arising on them under the 1949 Act. Professor Hennessy drew my attention to the preamble to the Act and, whilst accepting that the Defenders were the local Coast Protection Authority as referred to in Section 1(1) of the Act, its purpose had been to "amend the law relating to the protection of the coast of Great Britain against erosion and encroachment by the sea". Part 1 dealt with the constitution of appropriate boards or committees. Section 4(1) was as follows,

"Subject to the following provisions of this Act, a Coast Protection Authority shall have power to carry out such coast protection work, whether within or outside their area, as may appear to them to be necessary or expedient for the protection of any land in their area."

The emphasis was on coast protection and upon the authority doing what was necessary or expedient but for the protection of land. Section 12 dealt with the general powers of maintenance and repair of works but once again in terms of sub- Section (1) referred to "the protection of land". The Coast Protection Authority were empowered to serve notice on any owner or to carry out works themselves. This was a statutory provision which dealt with the maintenance of coast protection works but it did not impose an obligation on the Coast Protection Authority to carry out the work. Section 49 of the Act was the interpretation section and once again the reference to "coast protection work" was defined as meaning "any work of construction, alteration, improvement, repair, maintenance, demolition or removal for the purpose of the protection of any land", and "protection" was defined as meaning "protection against erosion or encroachment by the sea".

Thus, he submitted, the whole thrust of the Act related to powers which a local authority as Coast Protection Authority might have in relation to the protection of lands against erosion or encroachment by the sea. That, however, had no bearing on maintenance of a wall to prevent someone falling over it from the landward side. It did not impose any obligations such as those averred by the Pursuer and in particular it did not impose any obligation upon the Defenders to maintain the wall to a sufficient height to prevent pedestrians from falling over it. Accordingly, the Act did not impose any relevant duty having a bearing on the circumstances of the accident as averred by the Pursuer. This posed the question of whether or not there was any other statutory or common law duty averred by the Pursuer as incumbent upon the Defenders relevant to the circumstances of the accident as averred by the Pursuer. In short, was there a duty on the Defenders to provide a wall for the purpose of protecting a member of the public from falling over the wall from the landward side into the sea. As a corollary, if there was such a duty, was there a duty to maintain such a wall. However, unless the principal duty could be said to arise there could be no fault on the part of the Defenders.

Where a danger such as this is obvious there was no duty incumbent on the Defenders. Thus, for example, if there's a cliff with a cliff walk it's obvious there's a cliff with the sea below it, then there is no obligation to put up a wall to protect members of the public from this because it's an obvious risk. Earlier cases talked of "obvious and natural hazards" but more recently cases did not use the word "natural". In support of this principle he referred to the cases of Stevenson v The Corporation of Glasgow, Graham v East of Scotland Water Authority, Strachan v Highland Council, Duff v East Dunbartonshire Council and Staples v West Dorset District Council.

In Stevenson a summary of the facts of the case was to be found at the top of page 3 in Lord Kinnear's Opinion. The Defenders relied upon the principle enunciated in an earlier case of Indermaur v Dames (1886) LR1CP274 to which Lord Kinnear referred and quoted,

"We consider it sound law that such visitor, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows, or ought to know, and which the other party does not know"

and Lord Kinnear continued,

"and that where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, fencing or otherwise, and whether there was contributory negligence on the part of the sufferer, must be determined by a jury as a matter of fact."

He continued,

"... ... a person going upon property ... ... is expected to use reasonable care for his own safety. He is to look out for all the ordinary risks that are necessarily incident to the kind of property that he is going upon; but, on the other hand, it is held that he is not to be exposed to any unusual danger known to the proprietor, and is not known to people who may come upon the premises with which they are not familiar."

This was the principle upon which the Defenders founded their answer to the Pursuer's claim. These cases contained references to invitees and licensees but that distinction no longer applied but the principle was stated with application to those on land effectively by the invitation of the owner, whether implied or expressed. In this case there was a sea wall and it was apparent that the sea was on the other side of the wall. Thus the Pursuer could not say that there was a duty on the Defenders to provide an impregnable barrier to a danger of which he must have been well aware.

In Graham a man had died in a reservoir surrounded by a wall and the description of the wall was narrated by Lord Emslie at page 341E of the report. It had been a wall which varied in height at various points. There was an averment in that case that,

"A danger was presented as a result of the low level of the wall in close proximity to the road, combined with the direct drop into the reservoir. Said danger was even greater for those requiring to use the road at night."

The Lord Ordinary had reviewed the various cases referred to in paragraph 7 of his opinion at page 342E. The case of Duff referred to in that passage was subsequently appealed and a different decision made but for reasons arising from an amendment to the case after the original decision. However, in paragraphs 18 and 19 at page 344E, the Lord Ordinary had determined that the action should be dismissed as irrelevant. She said,

"In my opinion, the danger alleged here by the Pursuer falls within the intended scope of the authorities concerning obvious dangers on land, against which no duty to fence is in law incumbent on an occupier. It may be said, of course, that the reservoir and the wall along its edge were man made and in that sense artificial, but in my view what really matters is that by the date of the accident these were well establish, permanent and familiar features of the landscape. It is to be expected that the banks of any stretch of open water will vary in their height and configuration and that the height and line of any wall along such banks will not be uniform."

The Lord Ordinary had also referred to the concept of "obviousness" and noted that the term was generally used to denote features of the environment which were permanent ordinary and familiar. Natural landscape features plainly fell into that category but he took the view that the same would apply to long standing artificial features which were neither concealed nor unusual nor involved exposure to any special or unfamiliar hazard. The reference to "obviousness" was in relation to the test of foreseeability and whether or not it was foreseeable that a person would be likely to be unaware of the danger. The Defenders maintained that the sea was an obvious danger and there were averments made by the Pursuer about walking alongside the wall and it must have been plain to him that the sea was on the other side.

The case of Strachan, a decision of the Sheriff Principal of Grampian Highlands and Islands related to a car park in the vicinity of a cliff. The Sheriff Principal had taken the view that even in a dilapidated condition, a fence had remained a visible barrier but that it (the cliff) was a natural and obvious hazard. In the Sheriff Principal's opinion, even if there had been a duty to maintain the fence and a failure in that duty, where a normal adult deliberately chose to cross an obvious barrier and proceed to a place of obvious danger, then any misfortune which befell him was solely attributable to his own fault.

Under reference to Duff that decision had been appealed and reversed but on the basis that the danger had not been obvious. That particular aspect of it had emerged only by reason of amendment after the original decision and had allowed the Inner House to order a proof before answer to determine whether or not the danger was concealed. It had to be said that Lord Marnoch, at paragraph 18-18, took the view that even on the unamended Record there had been a relevant case.

The case of Staples was another example of the principle being applied. There the danger was obvious - and indeed the plaintiff had so admitted - and there was no need of a warning.

Turning now to the averments of the duty of inspection to be found in Article 3 along with references to the Code of Practise, Professor Hennessy submitted that no obligation of inspection arose in terms of the 1949 Act. However, if the duty was said to arise on the Defenders as local highway authority, then, there was no authority for that proposition either. The Pursuer referred to six monthly inspections of roads, footways and walls forming part of roads as defined in Section 28 of the Roads (Scotland) Act 1984. Section 28 said that a roads authority "may, for the purpose of safeguarding persons using a public road, provide and maintain such raised paving, pillars, walls, rails, fences or barriers as they think necessary" at various specified places. The obligation was discretionary - though Professor Hennessy accepted that any such discretion would require to be exercised reasonably. The provision could not be relied upon by the Pursuer for a duty either under the statute or indeed at common law derived from the statute. There could be no duty in those terms on the local authority to erect such a wall. Indeed such a duty to erect a wall in terms of the Roads (Scotland) Act was inconsistent with averments by the Pursuer that this was a sea wall. There was no suggestion, in the Pursuer's pleadings, that the wall was erected for the purposes of the 1984 Act. In any event all that the 1984 Act did was to give the Defenders, as roads authority, a power to erect a wall and a discretion to do so.

The Pursuer also relied upon Section 93 of this Act but once again the duty imposed upon the roads authority was discretionary. It was imposed only if matters arose in the opinion of the roads authority, if they considered it appropriate, to afford protection from a danger. The reference to Section 151 of the 1984 Act was not helpful and since it simply contained definitions.

In the same Article of Condescendence - at page 9 of the Record - the Pursuer averred that it would have been reasonable and practicable for the Defenders to have instituted a regular system of inspection. Practicability had nothing to do with it since the duty either arose or it did not arise. Insofar as this article referred to a "wall", there was nothing in the averments to show that the Defenders were responsible for the maintenance of the wall, the 1949 Act not assisting the Pursuer in any way. He submitted that, thereafter, in this Article of Condescendence the Pursuer's averments were confused, with references once again to practicability, to a sea wall and then under reference to the Roads Act. There was an averment that the Defenders were in breach of the statutory duties incumbent upon them as condescended upon in the article. This had to be a reference to duties under the 1949 Act, or under Section 24 or Section 93 of the 1984 Act. The Defenders said no such duties arose.

Article 4 of Condescendence appeared to be a supplementary or additional argument that the Defenders were at fault by failing to provide sufficient lighting. According to the Pursuer, in his averments, there was no street lighting at this point and so none that required to be "maintained". It may be that the case might have been that the Defenders should have provided lighting but that was not what was averred. In any event the Pursuer did not say where any duty about lighting arose. If it was under Section 35(1) of the 1984 Act then the Defenders' averments show that this was not a place that the Defenders or their predecessors considered required lighting.

Article 2 of Condescendence contained the averments by the Pursuer of the circumstances of the accident. The Defenders relied upon the case of Blaikie on the basis that the Pursuer's knowledge of the circumstances was such that there was no need for a proof to establish any of them. Taking them as true, they showed that the Pursuer knew the sea was on the other side of the wall. The Pursuer was apparently able to see this wall since he chose to lean against it. The question was whether or not it was foreseeable by the Defenders that the Pursuer would lean against the part of the wall that did not exist. Accordingly, following Blaikie, there was a picture of the whole circumstances within the knowledge of the Pursuer and a proof would establish nothing else.

In all these circumstance the Pursuer's case was irrelevant and I should sustain the preliminary pleas-in-law.

Pursuer's Submissions

Under reference to paragraphs 9-33 and 9-34 of McPhail's Sheriff Court Practice (2^nd Edition) Mr Honeyman, for the Pursuer, reminded me that I should consider only those averments by the Defenders which the Pursuer admitted but not those which the Pursuer denied. In particular he referred me to the passage in McPhail at paragraph 9.34,

"In an action of damages for negligence as it is necessary, first, that the essential facts relied on should be set out with reasonable clarity; secondly, that the duties alleged to have been breached should be plainly stated and should be duties which the court can be satisfied at least might have been incumbent upon the Defender in law in the circumstances averred; thirdly, that it should be reasonably apparent how any alleged loss is claimed to be attributable to any one or more alleged breaches of duty; and, fourthly, that in so far as the nature of any head of patrimonial loss permits, at least some notice should be given of the amount claimed under that head and, in any event, of the basis of quantification proposed to be relied upon."

He submitted that the Defenders' criticism of his pleadings largely related to the first and second factors referred to by McPhail. The Pursuer did set out facts and duties and he submitted that they were set forth with sufficient clarity for the court to say that the duties applied on the facts averred. Under reference to Jamieson v Jamieson (at page 257 per Lord Normand) he reminded me that,

"The onus is on the Defender who moves to have the action dismissed, and there is no onus on the Pursuer to show that if he proves his averments he is bound to succeed."

He reminded me that the learned authors in McPhail observed that actions of damages merited different consideration from other actions and that only in the clearest of cases should a Pursuer's case be dismissed on grounds of relevancy. In support of this he also referred me to Miller v SSEB at page 236 and the observations of Lord Keith of Avonholm. In particular,

"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy. ... ... it is hardly necessary to say in a Scottish case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that care which the circumstances demand from a reasonable man."

The learned Judge also observed,

"The question is:- Was what happened so remote that it could not be reasonably foreseeable?"

He submitted that the case of Miller supported the Pursuer's view that an enquiry was necessary on the issue of foreseeability to establish the facts. Whilst the Defenders, under reference to the case of Blaikie and Others, relied upon the observations of the Lord Justice Clerk (Thomson) at page 191, he reminded me of the observation in that part that,

"It equally falls to be emphasised that, if there is doubt as to where the axe is to fall, the decision should be postponed until the facts have been ascertained."

He accepted that there were cases such as Davie where the axe did fall earlier. However, he submitted that the difficulties there were, that the averments of the Pursuer failed to deal with the issue of what would have constituted a reasonably safe system. It was that absence of notice which led to the dismissal of the case rather than the absence of a relevant duty. Had the pleadings dealt with the issue of a reasonably safe system, then the Lord Ordinary (Kinnear) would have allowed a proof before answer. Whilst accepting that the Pursuer's case was not "thoroughly watertight" he referred me to the observation in McArthur v Raynesway at page 77,

"A Pursuer does not need to produce a thoroughly watertight proposition in order to be allowed some form of inquiry. Indeed a degree of doubtful relevancy is implicit in most cases which go to proof before answer."

He submitted that this emphasised the observation in McPhail that cases of personal injury require special consideration in relation to relevancy. Whilst the Pursuer's averments might have some defects these were not fatal and did not fall within the kind of situation found in Murray v Edinburgh District Council. Thus the test set out in Jamieson and referred to in McPhai, placed a heavy onus on the Defenders. McGeouch was an example of the kind of case which did not fall within the "rare and exceptional" class of cases which should be dismissed at the stage of debate on issues of relevancy.

At this stage Mr Honeyman conceded for the Pursuer that the Defenders' attack on the relevancy of the Coast Protection Act 1949 was well founded. He accepted that no duties arose under that Act but the Pursuer did not seek to say that the averments in Article 3 of Condescendence gave rise to a duty under the 1949 Act. He explained that the reference to the "sea wall" was to show under whose responsibility it fell. The Pursuer did not seek to show that he was entitled to draw any inferences of civil duty by the Defenders to the Pursuer in terms of the 1949 Act. Thus the averments in Article 3 of Condescendence (page 6 of the Record),

"The Defenders are the local authority responsible for the maintenance and upkeep of the coastal defences, including the sea wall at the locus. At the time of the accident, the statutory predecessors of the Defenders, Strathclyde Regional Council, were the body responsible for the maintenance and the upkeep of the coastal defences including the sea wall at the locus. It was the Defenders' duty to take reasonable care to maintain the sea wall in a safe condition. They had a duty to take reasonable care to see to it that the sea wall was properly maintained at a sufficient height to prevent pedestrians such as the Pursuer from falling over the sea wall. Had the sea wall been maintained at a height of forty four inches the said accident would not have occurred. They had a duty take reasonable care to avoid exposing persons such as the Pursuer to unnecessary risk or injury when using the footway and sea wall. It was their duty to take reasonable care to institute and maintain a system of regular inspection of the sea wall."

were averments of common law duties with which the Pursuer seeks to show the Defenders is required to comply. On page 9 of the Record, where there was reference to the Roads (Scotland) Act 1984 and in particular Section 28, the Pursuer's case was that the Defenders were under a duty to comply with the provisions of Section 28 of the 1984 Act. The Pursuer did not make reference to a breach of duty under the 1949 Act and he regretted if the style of averment in Article 3 of Condescendence had misled the Defenders in this respect.

Thus, in terms of Article 3 of Condescendence, (at page 7 of the Record) the Pursuer's averments of duties incumbent on the Defenders to maintain the sea wall arose from the Defenders' duty to take reasonable care. As distinct from cases of obvious dangers, the Pursuer's case was that the sea wall was there for some time and the Defenders had a duty to maintain that sea wall at common law. What the Pursuer said was, the Defenders should have maintained the wall in a safe condition, that was, to maintain it at the same level along its length. The reference by the Pursuer to the Highway Maintenance Code of Practice was in accordance with the burden on the Pursuer (in terms of Gibson v Strathclyde Regional Council) to set out intervals for inspection and maintenance. The Pursuer was under obligation to refer to a secondary source to support his averments about this either by reference to the practice of other local authorities or to a code such as the Highway Maintenance Code of Practice. The Pursuer averred that the Defenders were under a duty to carry out inspections at six monthly intervals and relied for support of that on the Highway Maintenance Code of Practice. Within that code - at page 55 - the recommended inspection or survey interval was six months in respect of footways falling under the third category, "other urban and busy rural". By extension the Pursuer sought to imply a like interval in respect of the inspection of a wall such as the sea wall in this case. The Defenders accepted that Seaview Road was within the classification "other urban and busy rural".

The Pursuer also referred to Sections 28, 93 and 151 of the 1984 Act. The Pursuer accepted that in terms of Sections 28 and 93 by virtue of the word "may" and the words "in the opinion" the Local Authority had a discretion but such discretion had to be reasonably exercised as exemplified in the case of McGeouch. Section 151 was referred to for the interpretation of the word "road" and it included the "footway".

In relation to the Defenders' criticism of the Pursuer's averments in the fifth line on page 9 of the Record where the Pursuer averred that it "would have been reasonable and practicable for the Defenders" the Pursuer accepted that there was no basis for the word "practicable" and the Pursuer relied solely on the word "reasonable". That observation applied equally to line 1 in the same part.

The Defenders had argued that there was no duty at all on them to provide a sea wall and accordingly there could be no fault in a failure to maintain it. The Pursuer's case relied upon the Defenders' duty to maintain, rather than to provide, a sea wall in the first place and that the duty arose quite simply because the wall was there. The Defenders had made reference to a line of authority in relation to obvious dangers which gave rise to no duty upon the Defenders in such circumstances as exemplified in Stevenson v Glasgow Corporation. So far as Stevenson was concerned the Defenders relied upon the observations of the Lord Ordinary (Kinnear) at page 304. However Mr Honeyman reminded me that this proposition had been advanced in 1908 and he did not see that it necessarily would apply with the same force today.

The Defenders had also relied upon the case of Graham v East of Scotland Water Authority but he asked me to distinguish that case on its circumstances because the Pursuer's case was in relation to a public footway to which all public had access. The footway or footpath was not a natural feature unlike the cliff in Strachan v The Highland Council or the embankment in Duff v East Dunbartonshire Council. Seaview Road and its footway were man made. In addition he invited me to distinguish Graham on the basis that the actual danger there constituted a drop of one point seven metres whereas the drop in this case was some twenty feet. The Pursuer in the present case had not crossed any natural boundary as had occurred in Strachan. In Graham the Pursuer was averring that the wall in question was inadequate whereas the Pursuer in the instant case did not say that the sea wall was inadequate at forty four inches but that should it have been maintained at that level along its length. In addition in Strachan, on the basis of the observations of the Sheriff Principal in the appeal, the evidence admitted in proof had strayed considerably from the Record. He invited me to distinguish Strachan on the basis that the Pursuer had proceeded through a fence on some adventure of his own and had then fallen. There was no question of the Pursuer in the instant case crossing any obvious barrier.

In support of the Pursuer's approach to the relevancy of the case he invited me to consider the case of Bennett v J Lamont Sons at page 22. In particular the Temporary Judge (Coutts, QC) had observed,

"No doubt, as suggested in Morrison, if a public road runs close to some natural feature, such as a ravine, a local authority might be bound to provide whatever fencing is required but there is no comparable natural feature in this case."

The case of Duff had gone to proof before answer following amendment prior to the appeal hearing which had introduced the possibility that the danger in question might not have been obvious from the top of the embankment. In addition he invited me to distinguish Duff on the basis that, in the instant case, the Pursuer had not proceeded through even a gap in the wall to be close to the obvious danger. He referred me in particular to the case of Stevenson v The Corporation of Edinburgh. He drew my attention to the terms of Article 2 of Condescendence (page 170) and, in particular, to the observations of the Lord Justice Clerk (Aitchison) at page 174.

He also invited me to consider the observations of the learned authors of the Stair Memorial Encyclopaedia, Volume 20 at page 230.

The Defenders had also criticised the Pursuer's averments in relation to the lighting in the area - or rather the lack of it - as set out in Article 4 of Condescendence. The Pursuer maintained that the issue of lighting was relevant in that it was dark at the locus at the time of the accident and this explained why the Pursuer was unable to see the danger to which he was exposed, that is, the combination of circumstances which made the defect dangerous and, accordingly, relevant to the Pursuer's averments as to repair or the highlighting of the danger.

In all these circumstances the Pursuer invited me to allow a proof before answer.

Defenders' Reply

In a brief reply Professor Hennessy reminded me that the observations in McPhail and Stair were glosses on the authorities and he did not accept that the authorities quoted by the learned authors, in either case, supported the propositions advanced. In any event he suggested that I should prefer to rely upon the authorities quoted rather than the text book. In the case of Davie the court had not dismissed the claim at preliminary stages because it required to hear evidence of the precise characteristic of the stair in question. That lead to a proof before answer but in this case there was no need for further averments beyond those made by the Pursuer on record already. In Davie it had been necessary to have further evidence to enable the court to decide whether or not the stairs were dangerous but in the instant case there was no such lack of averment. Both the cases of McArthur and Graham suffered from the difficulty that the individual in question had died in the accident and was the only witness. The courts would adopt a more lenient approach to such matters. In McArthur it was a question of what inferences might be drawn from the circumstances. As to the case of Murray he reminded me that that was an outer house decision and so not binding upon me. The case of McGeouch concerned an icy pavement and an alleged lack of gritting. Proof before answer had been allowed in that case because there were averments of reports of the icy pavements to the local authority and thus the defect in pleadings, namely, the lack of averments about duties of inspection, had not arisen as an issue.

The Pursuer's case, now clarified in submission - at least to the effect of removing the 1949 Act from consideration - was that the duties averred arose at common law. In that case the Pursuer had to show authority for the propositions. So far as the sea wall is concerned, putting aside its function of keeping the sea at bay, the Pursuer averred that the Defenders had a duty to provide a barrier between the road and the sea and that it should be maintained at a height of forty four inches. Thus, the Pursuer averred, if it fell below that height the Defenders were failing in a duty of maintenance. If the wall had been twenty eight inches in height along its length would the Pursuer then have averred that it was not high enough. However this was looked at, the Pursuer must have been aware that the sea was on the other side of the wall and that was an obvious danger. Did the Pursuer seek to maintain that the wall should be constructed to a "reasonable height" to prevent pedestrians from falling over it. In that event, the case would be that the Defenders would fail to have a high enough wall. It was not sufficient for the Pursuer to say that there was a bit of the wall missing and that accordingly the Defenders had failed to maintain it. The crux was what made the wall unsafe, if anything. The Pursuer had referred to Section 26 of the 1984 Act to establish a duty. According to the Pursuer there was a duty under that Act and at common law. Section 28 gives the Roads Authority a "power" but unless the Pursuer averred that any reasonable authority, faced with the situation which he averred existed, would have provided a wall then the Pursuer's case did not get off the ground. It may be that the Pursuer's case was that the Defenders had failed to maintain the wall at a uniform level. Section 93 imposed a discretionary obligation on the Defenders and in any event what was the danger posed that fell within the terms of Section 93. It might be that somebody had not realised that there was something dangerous between the footpath and the sea but it was obvious that the sea was on the other side of this wall. The Pursuer's case seemed to be that the wall needed to be high enough for him to lean on it. As to the distinction that the footway was not a natural feature but rather a man made feature, it was not the footway that was the danger, it was the "drop" on the other side of the wall.

As to the purported distinction of Graham from the present circumstances the public did have access to the ground in question as could be seen in paragraph 3 in page 341 of the Report. On the Pursuer's averments in the instant case the gap in question had been there for eighteen months yet there were no averments of any other accident.

Unfortunately the Pursuer had an expectation that there was something there behind him. That did not give rise to a legal basis for the Defenders to have to fulfil that expectation. In relation to the case of Bennett, the remark about "ravines" was obiter and it clearly was a reflection of a duty arising from the statutory provisions under section 93 of the 1984 Act. The Pursuer could not found on that as a basis for a common law duty on the Defenders.

As to the issue of lighting the "failure to provide sufficient lighting" was a matter of law. The Pursuer avers that the Defenders were under a duty to provide "sufficient lighting". What evidence would the Pursuer lead to support that? Presumably the Pursuer would call a lighting engineer to say what was necessary but there were no averments about this. There was no reference to any statute which imposed that duty upon the Defenders not was there a reference to any common law duty. Accordingly there was no relevant case based upon a breach of a duty to provide sufficient lighting.

The test of negligence at common law was a tripartite test. In the circumstances of the present case the Defenders had no difficulty in accepting that the Pursuer fell within the proximity element of such a test. The Defenders could reasonably be expected to realise that a person, such as the Pursuer, would walk upon the pavement. However, he suggested that the foreseeability test was simply not met. The issue of fairness, justness and reasonableness was a matter for the court to consider. He submitted that the Defenders had no reason to think that somebody would do what the Pursuer did in the face of an obvious danger. The mere artificial construction of the sea wall did not take the danger out of the category of a natural and obvious danger. He submitted that this was an accident for which no one could be said to be at fault.

Decision

The Pursuer's account of his accident is relatively straightforward, if very unfortunate for him. He says he was walking, with a friend, on Sea View Road, Saltcoats about midnight on 28 November, 1994 and, so, in the hours of darkness. The sea is on one side of this road. Sea View Road is a public road with a public footpath. The footpath is bounded on the seaward side by a wall. The wall separates the footpath from the sea - or presumably the seashore - and there is a drop of approximately 20 feet on the other side - again presumably to the seashore since the Pursuer later in his averments says he fell on to rocks (Article 5 of Condescendence). He had had some alcohol in the course of the evening. He was eating a take-away meal. On a couple of occasions, whilst speaking to his friend, he leaned against the wall. Then he went to lean against the wall again but, at this point, it was in a state of disrepair and he fell through the gap to the rocks below. In his averments he gives specific measurements for the wall and the gap. As a result he sustained serious injuries for which he seeks reparation in the amount of £150,000.

He also says the area was not "sufficiently" lit by street lighting and that he was unable to see the break in the wall. The implication of that averment is that he looked before leaning. He later avers there was one street light within the immediate vicinity of the accident spot but that it did not illuminate the locus of the accident. He says the area was dark and that the break in the wall was not immediately visible to pedestrians.

In the submissions for the Defenders much emphasis was placed upon the patent and obvious danger the sea presented and the various cases cited by the Defenders were to support the proposition that in the face of a patent or obvious danger there was no duty to protect members of the public from it. Thus, as earlier noted, in the case of Stevenson v Glasgow Corporation,

"a person going upon property ... ... is expected to use reasonable care for his own safety. He is to look out for all the ordinary risks that are necessarily incident to the kind of property that he is going upon.";

and in Graham,

I have to say that, in my view, the danger presented here was not so much the sea but rather the 20 feet drop to a rocky shore below. To that extent it may be more akin to a cliff face as in Strachan. No doubt falling into the sea might have equally serious, if not worse consequences, for someone but the fact of the matter here is that it was a fall onto a rocky foreshore which caused the injuries. Indeed, the danger may well simply be the drop unless the sea itself actually reaches the area immediately below the wall. I realise that the wall is described in pleadings as a sea wall and was erected for the purposes envisaged in the Coast Protection Act 1949. Even so, I think there may be a distinction to be drawn between the sea as a danger and the drop as the danger.

I have some sympathy for the Pursuer's position. It is perhaps not unreasonable to expect that a wall separating a pavement on one side from a 20 feet drop to rocks on the other might be maintained in good condition and, in particular, not have gaps through which people might fall. However, that did not avail the Pursuers in Strachan or Graham. It may be there is a distinction to be drawn in this case which may enable it to be distinguished from the likes of Strachan and Graham. Neither of these cases involved a public footpath adjacent to a public road but rather were areas to which the public had unrestricted access in the face of obvious dangers, a cliff fall to the sea and a fall into a reservoir. In addition, whatever sympathy I may feel for the Pursuer as a result of the injuries he sustained and their consequences, he must still aver a relevant case to succeed even in being allowed a proof before answer.

In Bennett the circumstance were very different. It concerned cows straying onto a public road which caused an accident. They had gained access to the road because a wall had fallen into disrepair. There was reference to the Roads (Scotland) Act 1984 and the duty of the Second Defenders, the Roads Authority, to maintain the wall in good repair. There, the learned Temporary Judge (Coutts, QC) observed - albeit clearly obiter -

"No doubt, as suggested in Morrison v London Midland etc., if a public road runs close to some natural feature, such as a ravine, the local authority might be bound to provide whatever fencing is required, but there is no comparable feature in this case".

In Stevenson v Edinburgh Corporation, an Inner House decision, the Lord Justice Clerk (Aitchison) observed at page 174,

"Now it seems clear - indeed it was hardly disputed - that the Corporation, as the highway authority within the city, have a duty to see that the public streets of the city are kept free from pitfalls, or at any rate, where pitfalls emerge so as to expose users of the streets to danger, have a duty to take timeous and adequate steps, by fencing or otherwise, to afford proper safety to the users of the streets. Such a duty is laid upon the Corporation in the interests of public safety. In the present case I cannot doubt that such a duty existed. The danger lay at the edge of the pavement of a public street, it was unfenced, it was not obvious (so it is averred ) at any rate after dark, and it was of such a kind as to subject the unwary, and it may even be the wary, user of the street to a grave risk of injury."

And in the next paragraph, albeit in relation to the proprietrix of the property,

"The duty (to fence) arises from the immediate proximity of the sunk area to the public street. It is not ownership merely, for there is no liability ex domino, but the contiguity of the danger to the public street that creates the duty."

I am aware this case concerns a danger which arose by reason of damage to a protective railing when it was struck by a vehicle which had careered off the road. That exposed the "large and dangerous gap" which allowed a child to fall through it to the ground below, a fall of some 15 feet, whereby he was injured.

In Morrison, another Inner House decision, at page 648, per the Lord President (Clyde),

"It is notorious that the owners of land adjoining a public road are under no general duty to put up fences on its margin for the protection and convenience of members of the public who use it.." (echoed in Bennett and Stevenson v Glasgow Corporation) ".....If the public road runs close to some natural feature - such as a steep declivity or a stream - which constitutes a danger to the public using the road, it is the business of the Public Road Authority to provide whatever fencing may be required ( the General Turnpike Act etc. section 94, incorporated in the Roads and Bridges (Scotland) Act, 1878, section 123)."

In the final paragraph of his opinion the Lord President makes clear that if landowners (my emphasis) choose to erect fences in such situations they still do not come under any obligation to maintain them in good repair on grounds of public safety.

The cases relied upon by the Defenders to support the proposition that there is no duty to protect the public from an obvious danger deal with, in the case of Stevenson v Glasgow Corporation, a public park with a river running through it; in Strachan, a path, not formed in any way and not by the Defenders in any event, along the edge of a cliff; in Duff, an embankment to which access was gained through a gap in a fence; and in Staples, an English case, a slippy harbour wall. In my view these are quite different situations from a public street and footpath. Professor Hennesey, for the Defenders, had no difficulty in conceding that the proximity test for the imposition of a duty of care was met in relation to any user of such a public street and/or footpath.

Does it make any difference that this wall was erected for the purposes of the Coast Protection Act, the Pursuer's solicitor conceding that that Act did not give rise to any duty of repair and maintenance upon which the Pursuer might rely in the circumstances of this case ? In my view, it does not. If this road and footpath had just been constructed would the Defenders have come under a duty in terms of the Roads (Scotland) Act 1984 to erect a wall to the seaward side ? It happens the Pursuer avers on Record (Article 3 of Condescendence) the terms of section 28 of the 1984 Act. It requires the Roads Authority, amongst other matters, to provide

"walls, rails, fences or barriers as they may think necessary at any of the following places:-..........(d)along the sides of bridges, embankments or other dangerous parts of the road."

Furthermore, again as averred by the Pursuer at the same point in the Record, the Roads Authority may, in terms of Section 93 of the Act, if in its opinion,

"anything which is on land beside or near to a road .....

.....(a) but is not itself a building constitutes a danger to road users and there is no other provision of this Act under or by which they may take steps to obviate the danger, they shall, under this section, take such steps;

.....(b).....

as they consider appropriate to afford protection from the danger or to ensure that the danger is not so constituted;........"

I have been unable to trace a print of the terms of the original statutory provision to which the Lord President makes reference in Morrison but from his description of it, it may well be the statutory forbear of sections 28 and/or 93 of the 1984 Act. To whatever extent these obligations are expressed as a matter of discretion or opinion on the part of the Roads Authority, it would be bound to exercise that discretion or opinion reasonably. I understood the Defenders' solicitor to accept that last point. In my view, if this road and footpath had just been constructed and the footpath, on the seaward side, was adjacent to a 20 feet drop on to rocks or into the sea, as the case may be dependent on the state of the tide , then, acting reasonably, the Roads Authority would be obliged to construct some kind of barrier to protect the general public using the footpath from that danger, obvious as it may be. That appears to me to be the clear implication of what was said in Morrison, Stevenson v Edinburgh Corporation and Bennett. The danger, of course, might be obvious in daylight and not so, or even less so, at night. It would not, in my view, be sufficient just to so light the area as to make the danger obvious. I believe the local authority would be obliged to fence it off and that, almost certainly, by a solid barrier, such as a wall, as distinct from a fence through which children might readily fall. In such an event the Roads Authority would be under a duty to inspect - the frequency is not immediately at issue here - and to keep and maintain such a barrier in a state of good repair so as to ensure it remained an effective barrier.

That being so, does the fact that the wall in question was constructed for the purposes of the Coast Protection Act elide the Roads Authority's obligation or allow them to escape liability in a case such as this where they have failed - a fact averred but which has to be proved - to maintain the wall in a state of good repair ? I have to say I would consider that wholly unjust. If it is the case that the Roads Authority would be under an obligation to erect a barrier - as I believe they would be bound so to do in this case were it a new road and footpath - then the mere fact that a barrier already exists is simply fortunate for them but the obligation to maintain it in good repair, as Roads Authority in terms of their statutory obligations and/or in the exercise of their duty, at common law, to maintain the safety of the public using their streets, roads and footpaths, would still remain. Even if this duties does not exist in law at present, I would be prepared to regard it as fair, just and reasonable to impose it.

In Strachan the Sheriff Principal (Risk QC) observed,

"It must be deemed to be within the knowledge of every adult of normal mental capacity that, with the exception of its border with England, Scotland is surrounded by sea and that cliffs are a feature of long stretches of its coastline. The cliff is a natural and obvious danger. I know of no legal basis for asserting that a local authority has a general duty to fence all cliffs within its jurisdiction.",

and later,

"Even if the council was at fault in failing to maintain the fence, I should not be inclined to dissent from the Sheriff's view that, where a normal adult deliberately chooses to cross an obvious barrier and proceed to a place of obvious danger, his misfortune thereafter is solely attributable to his own fault.".

I refer to these observations simply to highlight what are, in my view, important differences between the Pursuer's case here and the circumstances in cases, such as Strachan, which deal with places of obvious danger. They are not concerned with public roads and footpaths.

Thus, in my view, the line of authority relied upon by the Defenders in relation to obvious risks and dangers, does not, in the circumstances if this case, afford them an answer, in itself, to the Pursuer's claim.

In my view, it is foreseeable too that, in the hours of darkness, if the area is not properly - properly will require specification - lit, a person may not see that a gap exists, and fall through it, even if exercising due care and attention for his or her own safety. The issue of the effect, if any, of alcohol consumption in this case, is a matter of degree to be tested at a proof although it is my view that it is foreseeable that persons under the influence of alcohol are likely also to use this footpath. So I would not regard consumption of alcohol, in itself, an answer to the Pursuer's claim though it may affect the issue of contributory negligence.

Whilst the Defenders' principal attack upon relevancy related to the issue of obvious danger, they also mentioned certain other defects in the Pursuer's case. Thus practicability had nothing to do with whether or not a duty of inspection arose. The Pursuer's solicitor accepted that point but it is not something for which the action should be dismissed. It is simply a word that can be ignored.

I accept that the averments of the Pursuer throughout are to some extent confused by the issue of liability under the Coast Protection Act but, once again, not to the extent - now that the Pursuer concedes this point - that the action should be dismissed. In paragraph 13 of this Note I have recorded the Defenders' submissions in relation to inspections and the obligations, if any, on a Roads Authority in terms of section 28 of the 1984 Act. Professor Hennessey also returned to this aspect of relevancy in his reply. I accept, as I have just said, that the Pursuer's averments tend to suggest a reliance upon an obligation to maintain this wall in terms of the Coast Protection Act. In the end of the day, after hearing the submission for the Defenders in relation to this Act the Pursuer did concede he could not rely upon it to that effect. The Pursuer's position was that the duty to maintain arose by reason of the provisons of the Roads Act and /or at common law. The Defenders seek to suggest that because this is a sea wall for the purposes of the Coast Protection Act no duty arises upon the Defenders to maintain it in good repair for the purposes of the Roads (Scotland) Act 1984. I disagree with that proposition. I believe the duty is still there and the fact that the wall was erected for another purpose does not remove that obligation. Furthermore, I believe the obligation arises at common law in any event having regard to the duties incumbent upon the Roads Authority arising out of public safety. The Pursuer does not aver that the wall was erected for the purposes of the 1984 Act but, in my view, the fact that it's there means the Roads Authority can take advantage of it. I say, take advantage of it, because I also disagree with the proposition that the Roads Authority would not be required to erect such a barrier simply because the 1984 Act is framed in such a way as to place the matter within the discretion of the Roads Authority. They are bound to exercise that discretion reasonably. A like point was made in relation to section 93 of the 1984 Act but, in my view, that section falls to be treated in the same way as Section 28 and the obligations there arising. Indeed, in my view, the existence of a hole or gap in this wall - assuming that to be the case - is, in itself, a danger within the meaning of Section 93 against which the public should be protected. So, if the wall is peculiarly a "sea wall" in terms of the Coast Protection Act as distinct from a wall for the purposes of the Roads Act, then any defect in it presenting a danger to the public would give rise to an obligation on the Roads Authority to protect the public from it in terms of section 93 of the 1984 Act.

The Defenders also attacked the averments about lighting or the lack of it in Article 4 of Condescendence. I accept there is no reference by the Pursuer to Section 35 of the 1984 Act which deals with the provision of lighting by a Roads Authority. Once again it involves the exercise of discretion - in its opinion is the phrase - by the Roads Authority. Once again, in my view, such a discretion must be exercised reasonably and it is certainly foreseeable that a public footpath adjacent to a 20 feet drop to a rocky shore might, at the very least, require to be lit in times of darkness in the interest of public safety. The Pursuer's solicitor appeared to accept that some criticism of this part of his case was valid - his case was not "thoroughly watertight" -but it seems to me this is not a basis for dismissing the case outright - at least at this stage - but rather for allowing a proof before answer, which is what I have done. It may be the Pursuer will need to consider whether amendment may be necessary but no application for that was made in the course of the debate.

The question posed in Miller, "Was what happened so remote that it could not be reasonably foreseeable?", in my view, falls to be answered in the negative. This was a public road and footpath upon which it was reasonably foreseeable that members of the public might walk - indeed, even members of the public under the influence of alcohol. It is known - and I accept this may be true of both parties - that the sea and/or a significant drop lies to one side of the footpath. That is an obvious danger, just as a "ravine" (Bennett)or "declivity or stream"(Morrison) are obvious dangers alongside a public footpath (my emphasis). It seems clear to me that these two cases, along with Stevenson v Edinburgh Corporation are clear authority for the view that this is a situation where a duty is placed upon a Roads Authority - whether by statute or at common law - to take steps to protect the public from that danger.

The Pursuers concede the proximity test is satisfied. I believe the foreseeability test is satisfied. The third test, - in terms of Caparo v Dickman (1990) 2 AC 605, a case whose applicability to Scots Law is discussed in Bennett - the test of whether it is fair, just and reasonable to impose this duty on the Defenders seems to me, in so far as it is necessary to meet it in this particular case, to be readily met because this public footpath runs immediately adjacent to, what the Defenders themselves call, an obvious danger.

I have allowed a proof before answer as requested by the Pursuer. I have done this on the basis that the primary submission by the Defenders was that I should dismiss the action as irrelevant on the basis that no duty arose upon the Defenders, in the circumstances averred, because the danger against which the Pursuer sought protection was obvious and one which he should have guarded against himself. I have not accepted that proposition and so am not prepared to dismiss the case at this stage. That is not to say the Defenders' other criticisms are without merit but I was not invited to carry out an exercise of not admitting certain averments to proof. Rather it was an all or nothing approach by the Defenders. The references to the Coast Protection Act clearly cause confusion and would be better not there other than to state a reason for the erection of the wall. The Pursuer may also need to aver more clearly and specifically the duty in relation to the provision of lighting. However, these are matters for the Pursuer to consider. In these circumstances the Defenders' pleas to the relevancy are still live and the Pursuer will need to consider to what extent, if any, he requires to amend.

I have appointed the cause to my next Ordinary court both to assign a diet of proof before answer and as a hearing on the expenses of the debate.