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Cite as: [2005] ScotSC 90

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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT CUPAR

A327/04

INTERLOCUTOR

SHERIFF PETER J BRAID

In the cause

ANN FRASER McCABE or COLTART and MR ANDREW WALKER, residing at 48C Main Street, Ceres, Fife joint Guardians of STUART ANDREW COLTART also residing at 48c Main Street, Ceres, Fife (Assisted Person)

PURSUERS

against

FIFE COUNCIL, having its offices at Fife House, North Street, Glenrothes, Fife KY7 5LT

DEFENDER

Cupar, December 2005

Act: Smith

Alt: Beattie

The Sheriff, having resumed consideration of the cause, finds the pursuers' averments irrelevant et separatim lacking in specification; sustains the defenders' first plea-in-law; accordingly, dismisses the action as irrelevant; reserves all questions of expenses. ~~OUTLINE OF SUBMISSIONS FOR DEFENDERS~~

Note

[1] This is an action of damages at common law. The pursuers sue as guardians of Andrew Coltart ("Mr Coltart"). The defenders are sued as the local authority with responsibility for the management and maintenance of roads under the Roads (Scotland) Act 1984, which roads include Main Street, Ceres.

[2 ] The pursuers aver in Article 2 of Condescendence that on or about 31^st January 2003 Mr Coltart lost his footing and fell whilst walking along the pavement of Main Street, Ceres; that the pavement had been subjected to a downfall of snow prior to the accident and on the day in question; that Mr Coltart's loss of footing was caused by the icy surface of the pavement; and that the surface of the pavement had been covered by snow and ice for several days prior to Mr Coltart's fall. They further aver that the surface presented an obvious danger to pedestrians such as Mr Coltart, and make reference to a weather forecast for the day in question which, they say, necessitated urgent action being carried out by the defenders. In Article 3 of Condescendence, the pursuers aver that the defenders failed to take such steps as they themselves considered reasonable to prevent ice endangering the safe passage of pedestrians over public roads. They aver that the footways at the locus were not gritted on 29^th January 2003 nor were they salted or gritted on the day of 30^th January 2003 prior to Mr Coltart's accident. They then aver that at the time of the accident the defenders had in place a "Winter Maintenance Plan" (the "Plan") for the treatment of roads and footways in their area; that action to be taken by the defenders in terms of the Plan was to be based on weather forecast information gathered from monitoring systems (ICELERT) throughout Fife; that the Main Street in Ceres falls under the defenders highest priority for footway treatment; that the defenders failed to carry out salting and gritting operations in accordance with the scheme of priorities contained in the Plan. Finally, they aver that "a sufficient period of time had elapsed for the defenders to take remedial action".

[3 ] The circumstances of the accident, as set forth in Article 2, are not known and not admitted by the defenders. In their Answer to Article 3, they admit that the footways had not been gritted, that they had the Plan in place and that, under the Plan, Main Street in Ceres falls under their highest priority for footway treatment. The defenders then make detailed averments about the operation of the Plan, and their decision-making process. Somewhat unsatisfactorily, the pursuers have not responded to the defenders' averments at all, and as such they have failed to comply with OCR r 9.7. Since the Plan is seemingly within the knowledge of the pursuers, the defenders' averments, at least as to the content of the Plan, can in my view be treated as impliedly admitted. The pursuers' agent told me that the pursuers accepted the defenders' averments about the content of the Plan. In the event, nothing turns on this, but the pursuers ought to have made their position in relation to the defenders' averments clear on Record.

[4 ] The pursuers then aver various breaches of common law duty as follows:

"Cond 4

Averred it had snowed at the accident locus on 29, 30^th and 31^st January 2003. Further averred that the snow from the previous day prior to the accident remained on the ground twenty four hours later if it was not removed under explanation that temperatures on 31^st January 2003 did not rise beyond freezing point. Averred that snow and ice lay on the footway of the locus for several days prior to Mr Coltart's fall. Averred that where persistent frost exists after twenty four hours, the defenders are under a duty to salt the particular footway in (first) priority order, said footway normally accommodating a high usage of pedestrians. The defender failed in this duty under explanation that during the persistent frost the previous fall of snow still lay at the locus on 31^st January. The defenders were under a duty to remove snow deposits from the footway at the locus and they failed to remove the snow for several days prior to and including the date of the Mr Coltart's accident. Averred that the defenders were also under a duty to remove said snow deposits from the footway within the working week and the snow lay on the footway on Wednesday (29^th), Thursday (30^th) and Friday (31^st) of that particular working week. The defenders therefore failed in their duty to remove snow from the footway in a working week. The defenders knew or ought to have known that it was due to snow on 31^st January 2003 with reference to a reliable weather forecast system and ought to have known that a fresh snowfall coupled with previous snow having fallen and having become frozen and/or hard packed due to frost, would all present a clear danger to pedestrians such as Mr Coltart. Averred the defender's (sic) were under duty to ensure the footway would gain collateral benefit from any salting treatment to the footways adjacent to the carriageway. The defenders failed to discharge this duty either on the day of the accident or the previous two days when snow had fallen."

The defenders' submissions

[5 ] Miss Beattie moved me to sustain the defenders' first plea in law and to dismiss the action. She accepted that, in the light of such cases as Jamieson v Jamieson 1952 SC (HL) 44 and Miller v South of Scotland Electricity Board 1958 SLT 229, the action could not be dismissed unless it could be said that the pursuers were bound to fail after any enquiry. She submitted that the defenders could satisfy that test by virtue of the failure of the pursuers to make relevant averments of fault.

[6 ] Miss Beattie then pointed out that the extent and nature of the duties incumbent upon a roads authority in relation to winter maintenance have featured in many cases. She submitted that a useful summary of the duties could be found in the recent case of Morton v West Lothian Council 2005 GWD 35-667, which related to the gritting of roads. She founded on the following passage from paragraph 65 of Lord Glennie's opinion:

"It is well established that the obligation which the common law places upon a roads authority is not an absolute one. The duty owed by the roads authority to road users in respect of hazards on the roads arising from snow and ice is a duty of care. It is axiomatic that snow and ice present problems which require from the roads authority an exercise of judgment. Resources will not always be adequate for all conditions. It is not generally practicable for all roads to be treated in the time available between weather warnings and the onset of winter weather. Still less is it possible, during such weather, to treat all roads at the times and with the frequency that good practice may suggest. Treatment will have to be prioritised according to the informed judgment of those in positions of responsibility. Decisions have to be made about priorities. A judgement, equivalent to a discretion, has to be exercised. There will, therefore, be times when some or all of the roads are icy despite the exercise of reasonable care. If any authority is needed for this proposition, it is to be found in cases such as Cameron v. Inverness County Council 1935 SC 493, Gordon v. Inverness Town Council 1957 SLT (Notes) 48, Grant v. Lothian Regional Council 1988 SLT 533 and Syme v. Scottish Borders Council 2003 SLT 601. It follows that it can never be sufficient for a pursuer to aver simply that there was ice on the road which caused the accident. Such an averment might instruct a claim for breach of an absolute duty to keep the roads free from ice, if there was an absolute duty (and it is not contended that there was); but it cannot, without more, raise even an inference that there has been a breach by the roads authority of a duty of care."

[7 ] Next, Miss Beattie referred to various dicta from some of the cases cited in the foregoing passage. She did so primarily be reference to Syme v Scottish Borders Council, supra, in which Lord Clarke dealt with the prior case law in some depth. In Syme, the pursuer sued the defenders as roads authority for damages in respect of injuries allegedly sustained as a result of slipping and falling on a pavement in Newtown St Boswells. The action was based on breach of common law duties and statutory duties which he claimed were owed to him by the defenders. The pursuer averred that the pavement was extensively affected by ice and frost, and that it was the defenders' duty to treat it by the application of grit or sand and to do so within a reasonable period of such ice and frost forming. Lord Clarke held that the averments had not instructed a relevant common law case of negligence. Miss Beattie founded upon the following passage (at p 611K) in particular:

"The search ... 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 judgement, is to aver not simply what could have been done, or what 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, 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."

[8 ] In reaching his decision, Lord Clarke founded upon the reasoning of the Second Division in Gibson v Strathclyde Regional Council 1999 SLT 1243. In that case, Lord Murray had said 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". Although Gibson concerned alleged breaches of duties of inspection, Lord Clarke considered the foregoing dictum to be equally applicable to cases where the duties imposed on the defender were not absolute and where only finite resources were available to the defenders for carrying out their functions. Syme was such a case, as indeed was the present case.

[9 ] Lord Clarke also made reference to the following observations of Lord Prosser in Grant v. Lothian Regional Council, supra, at page 534:

"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 that unreasonable on 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 area of roadway or footway. In my opinion the pursuer's case on fault fails."

[10 ] Finally, Lord Clarke made reference to the following comments of Lord Migdale in Gordon v. Inverness Town Council, supra, at page 48, namely:

"Merely to state that sand had not been spread...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...before the accident does not assist her. Clearly the cart could have been sent [to the locus] first. The fact that it was not done does not point to a breach of duty".

[11 ] The final case referred to by Miss Beattie was Jackson v City of Edinburgh Council, Unreported, 4 November 2004. In that case, as in the present, the pursuer had argued that it was the implementation of the defenders' policy which gave rise to a breach of duty of care causing the pursuer to sustain a fall on ice. As in the present case, it was the delay in treating the footway that was attacked as being negligent. However, Temporary Judge J Gordon Reid QC upheld the defenders' submissions that no relevant averments had been made of any breach of duty of care. In doing so, he analysed the authorities, including Gordon, Grant, Gibson and Syme. He concluded that the pursuer had failed to meet the test of averring what should have been done in the exercise of reasonable care and of setting out specific averments in support thereof.

[12 ] Miss Beattie also referred to Conway: Personal Injury Practice in the Sheriff Court - 2^nd Edition, paras. 18.14 and 18.16. I do not find it necessary to consider those paragraphs in detail as they add nothing to the case law referred to above.

[13 ] Under reference to the cases, Miss Beattie then submitted that where a roads authority is empowered by Parliament with a discretion as to the use of winter resources it is not enough for a pursuer to aver the occurrence of an accident without averring clearly in what way the authority failed to take reasonable care. No inference of fault can be drawn from the mere occurrence of an accident. Rather, it is incumbent upon a pursuer to set out with some precision facts and circumstances from which breach of duty on the part of the defender can be inferred. It is not sufficient to aver what might have been done or what it might have been reasonably practicable to do. Further, any averment of duty must have a factual basis.

[14 ] Miss Beattie next subjected the pursuer's averments to scrutiny and criticism in light of these principles. She argued that it was clear that it was not the defenders' policy which was under challenge, rather it was the implementation of that policy. While an attempt to challenge the implementation of a policy could be appropriate in certain cases, such an attempt required very specific averments. As had been observed in Syme, this might be done by referring to the practice of other roads authorities or to other special circumstances known to the defender or which ought to have been known to them relating to the locus in question or to previous complaints. An example might be an averment in a particular case that the defenders were aware that there was, for example, a care home for older people affected by ice on the pavements outside. However, in the present case, there were no clear or specific averments as to how the implementation had been negligent. There were no averments of any factual knowledge on the part of the defender that the locus was affected by ice. Although there was an averment that a sufficient period of time had elapsed for the defender to take remedial action, that averment was irrelevant as it was not supported by any factual material but appeared to be pure speculation.

[15 ] Miss Beattie then criticised the averments of breach of duty in Article 4 of Condescendence. The averment that the defenders were under a duty to remove snow deposits prior to and including the date of the accident was so unspecific as to be irrelevant, and could not be justified by reference to the factual averments. The same could be said of the reference to specific dates of that week. The averment that snow should be removed within a "working week" was irrelevant in the absence of any explanation of the significance of a working week and of any indication as to whether this supposed duty was derived from the defenders' policy which in any event was not incorporated into the pleadings, nor even produced. The averment that the defenders were under a duty to ensure the footway would gain collateral benefit from any salting treatment to the footways adjacent to the carriageway was irrelevant since the defenders' only duty was one of reasonable care. There was insufficient explanation as to why it was the defenders' duty to have gritted this particular footway prior to the accident. There was no explanation as to why the defenders' failure to salt or grit the footway prior to the accident was so unreasonable as to fall outwith the scope of the defenders' discretion. This was a matter which related to the allocation of the defenders' finite resources and the distribution of risks, and thus related to decisions involving policy matters. Finally, there was an absence of averment of common practice or special, exceptional and obvious circumstances giving rise to an inference of negligence.

[16 ] In conclusion, Miss Beattie submitted that the pursuers had failed to meet the test laid down in the authorities. On the contrary, their averments appeared to entail a duty to ensure that footways be kept free of snow and ice at all times, whereas it was clear from the cases that no such duty existed. In the absence of relevant averments that the defenders had failed to adhere to their own policy in some particular way the pursuers' case was bound to fail.

The pursuers' submissions

[17 ] In response, Miss Smith submitted under reference to Miller, that the pursuer's case could not be said to be bound to fail and that a proof before answer should be allowed. (She began her submission by moving that a proof be allowed and the defenders' preliminary plea repelled, but during the course of the debate she modified that position).

[18 ] Turning to the criticisms of her pleadings, Miss Smith did not take issue with the principles to be applied. The pursuers did not dispute that the Council had a discretion as to how they prioritised treatment of roads and pavements. However, it was the implementation of the Plan which was attacked as being negligent. Under reference to the last sentence in Article 3, it was the pursuers' case that sufficient time had elapsed since the first occurrence of snow and ice that the Plan ought to have been implemented in relation to the locus. They had had sufficient time to utilise their resources. The pursuers accepted that they had to plead special factors, and had done so. These factors were the weather forecast and the fact that the first snow had become packed during frost. She submitted that the defenders could and should have removed the snow by the time of the accident.

[19] Miss Smith said that the defender's averments as to the content of the Plan were accepted by the pursuer (although not dealt with in the pursuer's pleadings, for which no explanation was given). However, the defenders ought to have known that there would be a danger to persons such as the pursuer were the footway not to be treated. She referred to the following dictum of Lord Migdale in Gordon, repeated at Syme p 602L:

"In considering a duty such as sanding frozen streets, which is owed to every member of the community, the right in each member is not to require that it be done to his or her street immediately, but to have it done without unreasonable delay".

[20] Miss Smith submitted that the pursuers' case was that there had been unreasonable delay here. The pursuers had pled a speciality of the locus, namely, that the pavement was accorded high priority in the Plan but had been allowed to remain in the state it was in for a considerable length of time prior to the accident. The pursuers' position was that the defenders had delayed unreasonably in implementing the Plan and utilising their resources in relation to this locus, rather than that they had failed to treat roads and footways in the priority set out in the Plan.

[21 ] Miss Smith also submitted that Gibson ought to be distinguished since it involved a duty of inspection. In that case the court had held as irrelevant averments of a duty to inspect daily, but the pursuer was making no such case here. The pursuers had pled special and obvious circumstances which led to an inference that it had been necessary for the defenders to have treated the locus prior to the accident.

[22 ] Miss Smith placed reliance upon McGeough v SRC 1985 SLT 321 (also referred to by Lord Clarke in Syme), where there had been a failure to treat an icy road, in respect of which previous complaints had been made to the Council. The pursuer's case in McGeough was one of failure to implement a policy. It was held that the pursuer's averments were sufficient to warrant enquiry. Similarly, enquiry should be allowed here.

[23 ] During the course of her submission, Miss Smith sought to amend her pleadings by introducing a reference to a leaflet issued by the defenders, which she offered to lodge in process and which, she asserted, made reference to the defender's obligation to clear snow deposits within a working week. She submitted that this would make clear the basis of the averment to that effect. I briefly perused the leaflet in question, whereupon it appeared that it simply stated that normally the defenders would clear footways during the week as opposed to the weekend, which did not seem to me to support the averment in question. In addition, the defender's agent had no prior notice of the leaflet. I therefore refused the pursuer's motion to amend.

Defenders' response to pursuers' submission

[24 ] In response Miss Beattie submitted that McGeough should be distinguished on the basis of the prior complaints. There were no such averments in the present case. It was simply an example of the sort of special circumstances envisaged by Lord Clarke in Syme. As for Gibson, Lord Clarke had seen no reason to distinguish it on the grounds that it was an inspection case but had considered that the same principles applied.

Decision

[25 ] There is no dispute in this case as to the principles derived from cases such as Syme which fall to be applied in considering the relevancy of the pursuers' pleadings. Stated briefly, these are that a local authority exercises discretion as to the priority in which roads and footways subject to ice and snow are treated. To found a relevant case, a pursuer must aver more than simply that a road (or, as in this case, a footway: it was not in dispute that the same principles apply to both) had not been treated prior to his accident. It is not sufficient for a pursuer to aver merely that a footway could have been treated. No inference of negligence can be drawn from such an averment. Generally, a pursuer must either make averments about the practice of other local authorities or aver special or exceptional circumstances, which typically may be knowledge of prior complaints about the particular locus (of which McGeough is an example) justifying an averment that the footway in question should have been treated.

[26 ] An interesting point is thrown up by the recent case of Morton v West Lothian Council, namely, whether any deviation from a planned strategy such as the Plan is per se negligent. On that point, Lord Glennie expressed the view that it would not be sufficient for a pursuer to show that a roads authority deviated from its own plan unless he could also show that treatment of the particular locus in question was not simply a requirement of the authority's own strategy but was necessarily a requirement of the whole range of strategies that authorities could reasonably adopt. However, in that case the defenders had conceded that if it could be shown that their driver had deviated from the route he had been instructed to take and if as a consequence ice had formed on an untreated section of road, they would be liable. Lord Glennie considered that he was bound by that concession. In the present case there is no such concession and, since the pursuers' pleadings contain an averment that the defenders failed to carry out salting and gritting operations in accordance with the scheme of priorities contained in their own Plan, at first blush the issue discussed by Lord Glennie arises for decision. However, the pursuers do not in fact aver that the defenders deviated from the Plan in the sense of affording priority to roads or footways which should not have been afforded priority, at the expense of the locus; nor do they aver that the terms of the Plan itself were such that footways required to be treated within any particular time frame after the onset of snow or ice. They have no averments of any specific failure to comply with any particular provision of the Plan. Rather, their position in essence is simply that the Plan was being implemented too slowly. Accordingly, we do not even reach the issue canvassed by Lord Glennie, and the issue in the present case is in reality no different from that in cases such as Syme. Further, as I understand it, the pursuers do not argue that it would be sufficient in this case simply to aver that the Plan was not followed without averring anything more, but accept that they do require to make averments of some special circumstance from which negligence can be inferred.

[27 ] Turning next to Jackson, it seems to me that the facts averred in it are very similar to those in the present case. There, as here, ice and snow had lain on the footway for a number of days prior to the accident. There, as here, the footway was accorded some degree of priority. There, as here, the pursuer averred that the footway ought to have been treated. Indeed, the pursuer in Jackson, whose averments were considerably more detailed than those of the pursuers in this case, averred that there were circumstances special to the locus which should have led the defenders to the conclusion that it ought to be treated, namely, the fact that it was on a hill. There are no such averments in the present case, where the pursuers make no attempt to distinguish the locus from other high priority footways. On the face of it, the pursuers in the present case make a weaker case than did the pursuer in Jackson.

[28 ] The pursuers do rely upon the forecast of fresh snow for the day of the accident, coupled with the fall of snow on preceding days, and aver that since the footway fell under the defenders' highest priority for footway treatment in terms of the Plan the defenders were under the necessity of taking action to treat the footway. They aver that it ought to have been treated both on the day of the accident and during the course of the previous two days. While that is, on the face of it, an averment as to what should have been done, it seems to me that, read as a whole, the pursuers' averments amount to no more than an assertion merely that it was possible for the defenders to have treated the footway in question. They fail to address the issue as to why this particular footway ought to have been treated in preference to other high priority footways or indeed roads, or why it ought to have been treated sooner than it was. Although it is averred that snow had lain at the locus for several days, there are no averments from which an inference of negligence can be drawn from that fact. It is not averred, for example, that all the roads falling under the Plan had been treated and that the defenders ought therefore to have been moving on to treat footways. No special circumstances are averred, such as prior complaints about this particular footway, nor is it averred that this particular footway posed a danger in a way that other high priority footways did not. It is not averred whether any other footways had been treated. No comparison is made with the practice of other local authorities. The averment that "sufficient time" had elapsed since the fall of snow for the defenders to have treated the footway is simply another way of saying that the defenders could have treated it had they utilised their resources in a particular way.

[29 ] It also seems to me that the pleadings in this case give rise to a further problem for the pursuers, or at least a hurdle for them to overcome in order to plead a relevant case. The pursuers aver that not only had snow fallen on the days prior to the accident but that fresh snow fell on the day in question and that, at least in part, it was the forecast of the fresh snow which ought to have triggered the treatment of the footway by the defenders. However, to the extent that it was the impending snow on the 31^st which is pled as a special factor, clearly the defenders would have also had to consider the impact of that snow on other roads and footways, and it is unclear why, on the 31^st, they ought then to have treated the locus, not having treated it before then. It is not suggested that Main Street, Ceres was the only footway or even the only high priority footway which had not been treated since snow first fell and that it was therefore the only footway which would be rendered dangerous by the onset of fresh snow. The pursuers accept that the defenders had limited resources. It seems to me that if the pursuers are to rely on the forecast of fresh snow, they would have to make clear averments as to why Main Street, Ceres ought to have been treated between the time of that forecast and the time of the accident bearing in mind that even if the defenders ought to have undertaken gritting operations on 31 January, on the face of it they would also have had to consider the impact of the fresh snow on other roads and footways, which might well have had to be treated before the locus. The pursuers' averments do not address this issue. In the event, I consider that the averments of the forecast as they stand do not advance the pursuers' position.

[30] Stated shortly, in my view the pursuers' averments of fact fall a long way short of providing the specification required in a case of this nature. However, bearing in mind the high test which must be met before an action such as this can be dismissed at this stage, for completeness I will consider the averments of duty in detail, lest any duty averred is sufficient to merit enquiry. The first such averment is that "where persistent frost persists after twenty four hours, the defenders are under a duty to salt the particular footway in (first) priority order, said footway normally accommodating a high usage of pedestrians". The pursuers are perhaps hampered by their failure to incorporate the Plan into their pleadings, or to make any detailed reference whatsoever to it, but the fact is that they plead no factual basis for this supposed duty, nor do they make any attempt to differentiate this footway from other footways accommodating a high usage of pedestrians. The next averment is that the defenders "were under a duty to remove snow deposits from the footway at the locus and they failed to remove the snow for several days prior to and including the date of Mr Coltart's accident." If that is intended to be expressed as an absolute duty, then it is plainly irrelevant, the defenders' duty being one of reasonable care. If not intended to be expressed as an absolute duty, then the pursuers require to aver why a failure to remove snow for several days was negligent. This they have failed to do. The next duty averred is that the defenders were under a duty to "remove snow deposits from the footway within the working week and the snow lay on the footway on Wednesday (29^th), Thursday (30^th) and Friday (31^st) of that particular working week." Again, there is no apparent factual basis for that averment. As indicated above, it appeared to be founded upon what amounted to a misunderstanding of an information leaflet produced by the defenders. Be that as it may, the averment is in my view so baldly stated as to be irrelevant. The next duty averred is one to "ensure the footway would gain collateral benefit from any salting treatment to the footways adjacent to the carriageway". As expressed, this duty is irrelevant since it is expressed as an absolute duty.

[31 ] It follows from the foregoing analysis that each and every one of the duties averred by the pursuer is either irrelevant per se, or is lacking in specification to the point of being irrelevant.

[32 ] In the result, I have come to the view that the pursuers have failed to plead a relevant case. In my view, it can be said that the action as pled is bound to fail and accordingly the test in Jamieson has been satisfied. I have therefore sustained the defender's first plea in law and dismissed the action. I have reserved all questions of expenses as I was not addressed on that issue by the pursuers' agent.