Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE

AT DUNDEE

 

Judgment of

Sheriff AG McCulloch

 

In the cause

 

PETER FOSTER, residing at 14a Commercial Street, Alyth

PURSUER

Against

 

DUNDEE CITY COUNCIL, 21 City Square, Dundee

DEFENDERS

And

 

SCOTTISH WATER, Castle House, 6 Castle Drive, Carnegie Campus, Dunfermline

THIRD PARTY

 

Act: Wray, Advocate, instructed by Thorntons

Alt: McPherson, Simpson & Marwick, for Defenders

Alt: RW Dunlop, Advocate, instructed by HBM Sayers, for Third Party

 

Dundee,

 

The Sheriff having resumed consideration of the cause FINDS IN FACT:

 

[1].            That the Pursuer resides at the address in the instance, and was 38 years old when this matter came to proof; and that this court has jurisdiction by virtue of a harmful event occurring in Brown Constable Street, Dundee.

[2].            That on or about 6 June 2003, at about 12.30 pm, the Pursuer, whilst walking in Brown Constable Street, Dundee, on the footpath adjacent to the doorway to the common close at number 8, lost his footing and fell, thereby sustaining loss injury and damage.

[3].            That the Defenders were at the material time responsible for maintaining Brown Constable Street, which is a public road contained in a list of public roads maintained by the defenders.

[4].            That within and on the footway there, the Third party had placed a metal covering, known as a "Toby", which served to cover a hole leading to plant (a drain) belonging to the Third party.

[5].            That at the material time, the Pursuer lost his footing by tripping in a gap in the footway, caused by a missing Toby cover.

[6].            That in the discharge of their responsibilities for maintaining the street, as roads authority, the defenders instituted a system of inspections, designed to spot defects and dangers in the footpath, and that their employee Dailly, had carried out such an inspection prior to the Pursuer's trip.

[7].            That the Toby cover had been missing at the time of the inspections by Dailly.

[8].            That Dailly was negligent in failing to notice the missing Toby cover during the inspections.

[9].            That the defenders are responsible for the negligent actings of their employee, Dailly.

[10].        That the Third party, in common with other statutory undertakers, has ironwork (such as a Toby) installed in roads across Scotland.

[11].        That no statutory undertaker in Scotland, such as the Third Party, undertakes inspection of such ironwork; rather undertakers rely on roads authorities such as the Defenders to arrange and carry out such inspection, and thereafter to notify undertakers of any defects or dangers found.

[12].        That the Defenders did not notify the Third Party of any problem with the Toby adjacent to 8 Brown Constable Street, Dundee in advance of the Pursuer's trip.

[13].        That £2500 was agreed between parties as a reasonable estimate of the loss injury or damage sustained by the pursuer as a result of his accident.

 

FINDS IN FACT AND IN LAW

 

1.      That the defenders are liable to the pursuer for his loss injury and damage, in the sum of £2500.

2.      That the defenders are not entitled to relief from the third party in respect of their liability to the pursuer.

 

THEREFORE allows the record to be amended in the defenders fourth plea in law by deleting the final five words, and substituting therefore "decree for relief should be pronounced against the third party"; Sustains the pursuers pleas in law, and in terms thereof grants decree against the defenders in the sum of TWO THOUSAND FIVE HUNDRED POUNDS (£2500) with interest thereon from the date of decree at eight per cent a year; Sustains the third party's fourth and sixth pleas in law, and grants decree of absolvitor in favour of the third party; Repels the defenders pleas in law; finds the defenders liable in the expenses of the action, and allows accounts thereof to be submitted to the Auditor of Court to tax and to report; certifies the cause as suitable for the employment of Junior Counsel.

 

 

 

NOTE :

[1].            This is the case of the missing Toby cover, and the question is who pays for injuries sustained by a pedestrian? In the past, such an issue was not material, when local authorities, such as the present defenders, were both roads and water authority. However, given recent developments in public ownership, situations can now arise where the issue of who has the ultimate liability becomes important. In the present case, I was advised on the morning of the proof that following discussions with the Pursuer, quantum had been agreed, and the only issue was whether it was the defenders or the third party who paid. Thereafter, following further discussions, it was agreed that, as between pursuer and defenders, the defenders would pay the pursuer, and what was left for the court was whether the defenders could recover any, all or just a proportion from the third party. In order for this issue to be properly focused, the defenders moved to amend their fourth plea in law, to seek decree of relief.

[2].            In the course of submissions, I was referred to the following statutes, and cases:

Roads (Scotland) Act 1984

New Roads and Street Works Act 1991

Law Reform (Miscellaneous Provisions) (Scotland) Act 1940

Laing v Magistrates of Aberdeen 1911 2SLT 437, (also as Laing v Paull & Williamson 1912 SC 196)

Mitchell v Watt & Magistrates of Paisley 1935 SC 104

McLeod v Hastie & Wood 1936 SC 501

Haseldine v Daw 1941 [2KB] 343

Nolan v Merseyside County Council & NW Water (unreported, Court of Appeal) 15 July 1982

Reid v British Telecommunications plc (unreported, Court of Appeal) 26 June 1987

Marshall v William Sharp & Sons Ltd 1991 SLT 114

Clark v Brunton & North of Scotland Water (unreported, Dundee Sh Ct) 26 July 2002

Syme v Scottish Borders Council 2003 SLT 601

Nicol v Advocate General & Others (unreported, Court of Session) 11 March 2003

 

Defenders' submissions

[3].            The starting point, according to the defenders, was to consider their Answers. In Answer 2, it was explained that the defenders operated a system of inspections whereby the accident locus was inspected at least every three weeks. This was in accordance with, or better than, the practice of other local authorities. In the event that a defect was noted in plant belonging to the third party, then that defect was immediately reported by telephone to the third party. It was to be noted, from the Joint Minute of Admissions lodged, that the third party relied upon such inspections. In Answer 3, the defenders accepted that they were under a duty to notify the fact of missing plant in the pavement. This would include a toby cover belonging to the third party. They argued that they had no duty beyond notification, as thereafter it was the duty of the third party to rectify the defect. They also argued that the third party had duties to road users such as the pursuer, and were under a duty to maintain an awareness of the condition of its plant. Notwithstanding any obligation on the defenders in relation to inspection of the footway, responsibility for its own plant rested solely with the third party. It was argued that whilst the third party may have no duties to do their own inspections, they must do something to be informed as to the condition of their plant. They owed that duty to the pursuer, and other road users; they own the plant. It was conceded that it would be unreasonable to expect the third party to do their own inspections, they could do so if they wished. Esto they relied on the defenders, the third party must be liable to the pursuer for any damage sustained by him caused by the missing toby cover. Esto they relied on the defenders, they must also be liable if the inspections by the defenders did not disclose the defect.

[4].            Turning to the third parties answers, it was pointed out that in their answer 3 (b) the defenders had, by section 2 of the Roads (Scotland) Act 1984 as amended, the statutory duty to maintain and manage public roads and footpaths, including the locus. They also averred a common law duty to take reasonable care for the safety of pavement users such as the pursuer, and to avoid exposing them to unnecessary risk. They also had a duty to inform utilities such as the third party of defects to their apparatus, such as the toby at the locus. The defenders accepted that these duties applied to them, but aired the general proposition that the owner of defective property should pay for losses caused by the defect. Thus the third party should be ultimately responsible for compensating the pursuer in this case.

[5].            The first authority to which I was referred was Nolan v Merseyside Council & North West Water Authority, an unreported case from the Court of Appeal dated 15 July 1982. In that case, a plaintiff had sued both the roads and water authorities for damages resulting from a similar accident to the present pursuer. A stopcock cover had been removed, and the plaintiff tripped or fell over the resulting gap in the pavement. At first instance, the judge had found against the water authority only; they appealed on the basis that as both defenders were in default of their absolute statutory duties to the pursuer, both should be liable. It is noteworthy that neither defender availed themselves of the statutory defence of reasonableness. The Court of Appeal granted the appeal to the extent of finding both defenders liable to the plaintiff, disapproving the trial judge who reached his conclusion on the proposition that grids and other structures in the highway were the responsibility of the party who put them there (p4F). There was no authority to support such a proposition. The general principle of apportionment was also considered, with the court taking the view that each defender was as culpable as the other, and that was very much for the discretion of the court of first instance.

[6].            The next case provided the defenders with their strongest argument. Reid v British Telecommunications plc is another unreported decision from the Court of Appeal in England, dated 26 June 1987. Here the plaintiff only sued the equivalent to the third party in the present case. BT had placed a manhole cover over cabling in the road. The cover was some 12 millimeters proud. It had been inspected on a 6 monthly cycle, the last being some 2 months before the plaintiff tripped, when the alleged defect was neither observed nor reported. The defenders denied the allegations of negligence, which were said to be failure to maintain the cover and surrounding area, and failing to give a warning. The trial judge took the view that the defect was a "trap", that the defenders had no organized system of inspection, instead relying on the local authority or members of the public to report defects; thus the defenders were liable to the plaintiff. They appealed, on a variety of points, but the one that holds the attention of the defenders in this case related to the reliance of the defenders on the local authority for inspection. Lord Justice Gibson at page 6 B-G said "In my view there was nothing to suggest that BT were at fault in relying upon six-monthly inspections by the highway authority, in the sense that the rate of deterioration of their equipment was such, or the capacity of highway inspectors to observe was such, that they could not reasonably rely upon being told of any defects in the course of those inspections. For my part I can see no great sense in having the highway authority inspect the flagstones around such a manhole cover, and having BT inspect the metal frame which supports it.

As against the plaintiff, however, if BT choose to rely upon inspection by the highway authority - there being no suggestion that they could sensibly dispense with all inspection - BT must be treated, as I see it, as knowing what they should know if the inspections are properly carried out by the highway authority at the proper intervals, which in this case appears to be six month intervals. I would therefore hold that BT must be treated as knowing with reference to this manhole cover what they would have known if they had themselves carried out the inspections which they were content for the highway authority to carry out, and that therefore they knew what they would have discovered if they had inspected it in March 1981 as the highway authority did." This passage was relied on by the defenders for arguing that as there was nothing wrong with the pavement, and it was the third party's cover that was missing, then if the inspection by the defenders (as highway authority) was negligent, then as a consequence, the third party should be liable to the pursuer.

[7].            The final case relied on by the defenders was again unreported, this time closer to home. On 26 July 2002, a decision was issued in Dundee Sheriff Court in the case of Clark v Brunton & North of Scotland Water Authority. This case considers the passage quoted above in Reid v BT and concludes that it is authority for the proposition that there is a duty on a utility to inspect, but that duty may be discharged by the utility relying on a system of inspection by a local authority,(p9). In the Clark case, the equipment was installed not on the highway, but on property belonging to a private individual, and the Sheriff held that the water authority could not discharge its duty to inspect by relying on the unknown ability of that individual to identify and report defects in the toby.

[8].            These cases however do not directly assist in situations, such as the present one, where there was an inspection by the highway authority, but it was a defective one, improperly carried out by the defenders through their employee Dailly. It was argued for the defenders that general principles of liability do not assist, roads falling into their own, different, category. By section 1 of the Roads (Scotland) Act 1984, there is created on roads authorities such as the defenders, a very particular obligation to all road users, namely a statutory obligation to maintain the roads, including footpaths attached thereto. This is despite there not requiring to be ownership of the road, (see section 1(9)). In the present case, the property of another is missing, namely the toby cover, and the defenders assert that, generally, they would discharge their duties by reporting the missing cover to the third party. Thus, if a utility such as the third party relies on an inspection by the defenders, the third party remains liable for any loss caused by the missing cover, even if that inspection is negligently carried out. The practice of roads authorities, I was told, is to notify only, on the basis that the third party is liable whether or not an inspection has been done. The third party has chosen to rely on the defenders to do its inspections; thus it must be saddled with the consequence of a negligent inspection. The result of this argument would be that injured pedestrians or road users would sue the owner of the "hazard", rather than the roads authority.

[9].            Accordingly, the defenders amended 4^th plea in law should be sustained. Apportionment as between defender and third party could arise, but only if some fault on the part of both parties. Here the argument for the defenders was that the third party was liable to the pursuer, even if there was fault with the inspection. The court should not just follow the decision in Nolan as in that case there was a statutory basis for doing so, which would not apply here.

Third Party submissions

[10].        The third party sought absolvitor, recognizing three issues for the court. Firstly, whether or not there was any fault on the part of the defenders? Secondly, whether or not there was any liability on the third party? Thirdly, if the answer to the first and second issue was in the affirmative, whether and to what extent there should be apportionment between them.

[11].        Dealing with the first question, it was submitted that there was clearly fault on the part of the defenders. They admit a duty of care to such as the pursuer. They have consented to decree against them. The only question they advance is one of relief of liability. A plea of relief requires there to be a liability for which one party seeks to be relieved. The defenders can seek 100% relief, but they cannot say that there is no liability to the pursuer. There is no doubt that the defenders are liable to the pursuer.

[12].        Turning next to the liability of the third party, the starting point is to recall that the general responsibility for the maintenance of roads and footways lies with the defenders as roads authority, as set down by section 1 of the Roads (Scotland) Act 1984. There is a distinction drawn between ownership, and a liability to maintain. Nothing in that Act asserts any basis of liability on those such as the third party. Certain duties are imposed on utilities such as the third party by the New Roads & Street Works Act 1991. This Act allocates responsibilities as between roads authorities and statutory undertakers (e.g. utilities), but does not establish any private law liabilities to such as the pursuer. Reference was made to Syme v Scottish Borders Council 2003 SLT 601. This case related to a claim for damages following an accident where it was alleged that the defenders had failed properly to clear ice and snow, breaching their duty under s34 of the 1984 Act, which is in the following terms: "A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads." In considering the matter Lord Clarke said, at p610, para 18: "I cannot read s 34 as being an expression of Parliament's intention to confer on individuals such as the pursuer, in an ordinary action for damages, a right to sue the roads authority for breach of statutory duty in failing to grit or clear roads or pathways affected by snow or ice, separate, additional and distinct from existing common law rights. It appears to me that the purpose od s 34.........was to make clear who, among various authorities, was to be responsible for carrying out common law duties in that respect while leaving, as far as statute was concerned, the matter of carrying out those duties as something for the complete discretion of the authority." Clearly s 34 is of no direct relevance to the present case, but the Syme decision supports the contention that there is nothing in either the 1984 Act nor the 1991 Act which allocates any responsibility, so far as the pursuer is concerned, on the third party. Any duty that might have been imposed on the third party was only to take reasonable care. The third party admits to having ironwork in the footpath, in common with many others. All rely on the roads authority to inspect, and that is a reasonable position to adopt. Accordingly, there can be no failure to take reasonable care, if it is reasonable to rely on the defenders. Further, if it is reasonable to rely on the defenders inspections, why should the third party be liable if the defenders carry out the inspection negligently? The only support for the defenders proposition is found in the case of Reid but it is clear there by the use of the words "As against the plaintiff..." that the Court is considering solely the issue between the pursuer and the third party, and there is nothing to say that it is exclusive of any liability which might attach to the defenders, the roads authority not being a party in that case. Further, Reid is unsupported by any authority. It has not been reported, or followed in England, and in Scotland it has only been referred to in the case of Clark. It is nothing more than a judicial assertion, which cannot prevail over long standing principles with which it conflicts.

[13].        As a general rule, one is not responsible for the acts and omissions of an independent contractor. See for example, Marshall v Wm Sharp & Sons Ltd 1991 SLT 114. It might be thought that the defenders inspector, at the time he inspected the toby, was in the position of an employed or agent of the Third party. But that proposition does not bear scrutiny, following the comments of the Lord Justice Clerk (Ross) in Marshall, at p120. " In determining whether an employee is liable vicariously for the negligence of a third party, such as an independent contractor, there is no doubt that one of the principal tests is whether the employer exercised control over what the third party did. In Stephen v Thurso Police Commissioners the issue of control was stressed by all the judges. Lord Gifford at p542 stated: "On carefully considering the very numerous cases which have occurred, chiefly in England, on this branch of the law, and of which we had in argument a very full citation, I think that the principle which governs the decision in such cases is that the person or superior, be he called either master or employer, who has reserved or who has assumed the direct and personal control over the subordinate, be he called servant or workman, who committed the fault or negligence, is liable for the damage thereby caused. In such cases 'resondeat superior'; the superior is answerable for the negligence of the subordinate; and the test I think, always is, had the superior personal control or power over the acting or made of acting of the subordinate? I use the expression 'personal control', because I think that this is always the turning point in such cases. ..." That a critical point is control was recognized in Malley v LMS Railway Co. and Mersey Docks & Harbour Board v Coggins & Griffith.....control is not, in my opinion conclusive; it is the principal test, but all the circumstances require to be considered." Thus, it was argued for the third party, the defenders' employee was someone over whom the third party had no control at all; they could not direct him, nor regulate his performance or time. He was, at all times, under the direction of the defenders. His failings, such as not discovering that the cover was missing from the toby, remained with the defenders, and could not be passed down the line to the third party.

[14].        The next proposition to consider is whether the third party could be infected with the deemed knowledge of another. In McLeod v Hastie 1936 SC 501 the Court considered an action for damages for personal injury brought by the mate of a vessel against the master, and the registered owners. In bringing a trawl aboard, a winch broke down, so the master ordered the engineers to clear rust from the hand windlass. They omitted to notice rust on an iron pawl which acted as a brake, should the windlass reverse, which rust rendered the pawl inoperative. The ship rolled, the trawl strained, the windlass reversed and the pursuer was injured. It was held, inter alia, that the master was entitled to delegate the work of de-rusting to the engineers as competent workmen, he had no ordinary duty to inspect the result of their work, and in the absence of an averment of any special duty of that nature, he was not liable for personal negligence. As Lord Murray said at p520: "The master, as such, in my opinion, was entitled to delegate the actual carrying out of the work to competent subordinate officials. He would...have been quite entitled, having given his instructions, to attend to other duties and rely on the work being duly performed." It is impossible to explain this passage, and the comments of Lord Justice-Clerk Aitchison (at 516/7) , if there was a doctrine of "being imbued with knowledge" of independent parties.

[15].        In the English case of Haseldine v CA Daw & Son Ltd 1941 2KB 343, the Court of Appeal held that, whether the plaintiff was an invitee or a licensee of the landlord, the only obligation on the landlord was to take care that a lift was reasonably safe, and that he had fulfilled that obligation by employing a competent firm of engineers to make periodic inspections of the lift, to adjust it and to report on it, and that therefore the landlord was not liable. This case acknowledges a duty on an owner of property, but this duty can be satisfied by reliance on an independent contractor. "To hold him responsible for the misdeeds of his independent contractor would be to make him insure the safety of his lift. That duty can only arise out of contract, as in the case of an employer's duty towards his employed which in certain cases make him responsible for the structural fitness of the premises where they are to work." (per Scott LJ at 356). "But it is argued that, if the engineers were negligent, it cannot be said that the occupier has discharged his duty. With this I cannot agree. An occupier or any other person may have, either by contract or by law, such a degree of duty imposed on him that he cannot discharge it by employing a contractor to do work for him, but where the duty is to take care that the premises are safe I cannot see how it can be discharged better than the employment of competent contractors. Indeed, one may well ask how otherwise could the duty be discharged?" (per Goddard LJ at 374).

[16].        It was argued that there is no distinction between an occupier who relies on an independent contractor (as in Haseldine) and the present case where a statutory undertaker relies on the statutory roads authority. Had Scottish Water paid for an independent contractor to inspect their tobys, they would not be liable to such as the pursuer for negligence. Why, therefore, should they be liable if they justifiably rely on the actings of those who must act reasonably in inspecting, namely the defenders? The argument advanced in Reid is circular. It is reasonable for an undertaker to rely on the roads authority; but the undertaker is fixed with the knowledge of the roads authority; thus the undertaker would know that the inspection has not been done properly; therefore it is not reasonable to rely on it. The only decision that considers Reid is the Sheriff Court case of Clark. On inspection, that does not support the defenders in this case either. The Sheriff there recognized the distinction between whether there was a duty, and how such a duty was discharged. The problem in that case for the statutory undertakers was that they relied on the inspection of the owner of the land in which their toby was situated, but the owner was a private individual, not a statutory roads authority. The Sheriff took the view that the standards of inspection operated by private individuals cannot be expected to be the same as those operated by experienced and trained operators of a local authority. It followed that the undertakers cannot be held to have discharged their duty to inspect by merely relying upon the ability of (the landowner) to identify and report defects in the toby. The question in the present case remained "Is it reasonable to allow the third party to rely on the inspections of the defenders?"

[17].        I was then referred to the case of Laing v Magistrates of Aberdeen 1911 2SLT 437, (also reported as Laing v Paull & Williamson 1912 SC 196). The facts of this case were that Paull & Williamson owned a coal chute and cover, situated in the footpath which was the responsibility of the city. To that extent it is similar to the present case. The Inner House held that the city was liable, and the owners were not. At p439, the Lord Justice-Clerk said: "...I cannot hold otherwise than that the city, which owned the pavement, was bound to exercise reasonable care that such arrangements as they sanctioned for openings in the pavement when required should not be a source of danger to the public when closed, whether by faulty construction or decay from age. They alone could interfere with the granite flags to keep the street safe, and I think they were bound to know whether their pavement as fitted with chutes was in such a condition as to constitute a danger, and bound to have the cause of danger removed. It remains to be considered whether Paull & Williamson have a responsibility for the accident, they being the owners of the plate used to fill up the hole. The question is, did they have control of it, when it was set so as to complete the continuity of the surface of the footway? I am of the opinion that they had not.. The whole control of the street as such was in the city, and the owners of the plate would not be liable merely as owners, unless it could be proved that they had taken some action creating danger, by removing the plate for the purpose of using the chute, and leaving it unguarded, or by failing to replace the plate in its seat after use. For such fault in using their chute they would be liable.... It was, of course, the duty of the house proprietor to provide and keep up the plate, and by section 344 of the Aberdeen Police Act the proprietor is taken bound to provide a covering to the coalchute and "as the Commissioners direct" and "to keep it in good repair" and he is liable for a penalty if he does not do so. But that is his obligation to them. They must see that the street is safe for the public, and if it is not safe, to protect the public by fence or watching till it is made safe. They do not do their duty if they neglect to see to the condition of this part of the street as much as any other part." This case shows how the owner of ironwork in the pavement has an obligation to the Council, but not to the pursuer, unless the owner is negligent in his use of the ironwork. The duty to the public, such as the pursuer, rests with the defenders, and does not extend to the third party. That is because, for pragmatic reasons, the public are entitled to assume the roads authority will maintain the whole of the footway, and not stop when they come across ironwork.

[18].        In Mitchell v Watt & Burgh of Paisley 1935 SC 104 the issue of ownership, as against responsibility for maintenance was considered. The Court, at the stage of approval of issues, dismissed the action against the proprietor, on the ground that the ventilator in the pavement was part of the pavement, for the maintenance of which the corporation alone were responsible by statute, and it did not fall within the statutory provision which rendered proprietors liable to a penalty if the item was not kept in good repair. The act in question there was the Burgh Police (Scotland) Act 1892, but the responsibilities therein are the predecessor sections to the current provisions of the Roads (Scotland) Act 1984.

[19].        These various cases supported the third party's argument that maintenance of the footway as a whole is thrust on to the roads authority by section 1 of the 1984 Act, and by reference to Laing, & Mitchell, they have the responsibility to those such as the pursuer. Further it is plainly reasonable and sufficient for the Third Party to rely on the defenders inspections. Thus there is no warrant in this case for any finding of liability on the part of the third party. The only way that the defenders can seek to pass liability is under reference to Gibson LJ in Reid, but his approach is unvouched by prior authority, and inconsistent with doctrine on liability for independent contractors. In any event, the English approach to "roads" cases is different from the Scottish approach- see e.g. Goodes v East Sussex as per Lord Clyde (quoted in Syme).

[20].        The final issue for consideration is apportionment. This would only arise if there was any liability on the third party. The only argument advanced by the defenders, to support liability on the part of the third party was based on "deemed knowledge", supported by the case of Reid v BT. This would fix the third party with the knowledge of the defenders. If that allowed there to be apportionment, then one would have to consider to what extent the third party, and the defenders, were each negligent. In the present case, argued the third party, the only negligence identified was that of the defenders, through their employee. That being so, it would be the third party who would be entitled to 100% relief. The matter is covered by section 3 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1940 thus: "(1) Where in any action for damages in respect of loss or damage arising from any wrongful acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a jury or the judgment of a court found jointly and severally liable in damages or expenses, they shall be liable inter se to contribute to such damages or expenses in such proportions as the jury or the court, as the case may be, may deem just: Provided that nothing in this section shall affect the right of the person to whom such damages or expenses have been awarded to obtain a joint and several decree therefore against the persons so found liable.

(2) Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the court may deem just." From this it is clear that negligence is necessary on the part of two or more persons before the section can operate.

[21].         If there was to be an apportionment, then following the dicta of Lord Menzies in Nicol v Advocate General for Scotland, unreported, 11 March 2003, several factors would have to be taken into account when apportioning liability. These included (at para 64), the nature of the breaches committed by the respective parties, the number of breaches, causation, that is the part each breach played in the accident, the degree of negligence or recklessness involved in the individual breaches, and blameworthiness. On considering these factors, then it is clear that it is in fact the defenders who are negligent, and there is no negligence on the part of the third party. There was nothing wrong with the third party relying on the defenders inspections, given what was universal application across Scotland. Negligence on the third party could only be found by transferring the defenders' negligence to them. Thus the 'lion's share' of blameworthiness lay with the defenders. What caused the accident? According to the third party, that was the negligent inspection which failed to spot the missing toby cover. Again, the 'lion's share' of causation goes to the defender. Thus, argued the third party, if any liability attached to the third party it is either a situation where the third party would be entitled to 100% relief, or any contribution would be minimal. In the present circumstances, there could be no more than 50%, but that proportion bearing in mind the decision in Nolan would itself be unjust. One would only get to 50% if there was fault on the part of the third party; if there was any such fault, it is a breach of an absolute "duty, without otherwise any breach of moral or legal 'fault' or turpitude"(Nolan, p7).

[22].         For these various reasons, the third party argued that there should be no apportionment, as the defenders had shown no cause why liability should pass from them to the third party.

Discussion

[23].         There can be no doubt that the responsibility for inspecting and maintaining roads and pavements, at least those adopted by the authority, rests with the roads authority, and in the present case, that is with the defenders. They have the statutory duty in terms of the Roads (Scotland) Act 1984, and this duty extends to users such as the pursuer. Should a defect be discovered, then any danger associated with, or caused by, the presence of that defect must be rectified. It was also accepted, at least for the purposes of this case, that those who have ironwork, and similar, inset into the streets and pavements, are entitled to rely on authorities such as the defenders, for the inspection of those streets and pavements, to detect defects in the ironwork, and thereafter to report any defect to the owner, such as the third party in this action. That party would then be required to repair the defect. Indeed the authority is given the power to execute emergency works should there be failure on the part of any undertaker, such as the third party, by virtue of section 140 (4) of the New Roads and Street Works Act 1991 : " If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section-

(a)               the roads works authority may in such cases as may be prescribed, and

(b)               any other relevant authority may in any case,

execute any emergency works needed in consequence of the failure."

The roads authority is then indemnified by the undertaker for any costs reasonably incurred in executing the works, as per section 140(5).

[24].         The issue of liability for injury caused by the presence of a defect in apparatus is always going to turn on the particular facts of each case. Generalisation is unhelpful, but it was accepted that if a roads authority, in the exercise of its duty to inspect, discovered a defect, and reported that defect to the undertaker, then any loss or injury sustained thereafter, was a matter for the undertaker, regard having to be had to whether or not it would be reasonable to repair prior to the injury. The issue in the present case is whether liability should pass to an undertaker who had not been advised of the presence of a defect, following a negligent inspection by the roads authority. It was accepted that a properly conducted inspection would have revealed the defect, namely the missing toby cover, and that this information ought to have been conveyed to the owners, namely the third party, but it was not. Accordingly, as a matter of fact, the third party was unaware of the defect when the pursuer was injured by it. The defenders position was that it was immaterial that the third party did not know; they were deemed to know as they had relied upon the defenders to do the inspection for them, and thus were imbued with their knowledge. They relied on the observations of Gibson LJ, in Reid v BT which they claimed were authoritative on the question.

[25].         It seems to me that I am not bound by Reid v BT, albeit an English Court of Appeal decision, and that for two reasons. Firstly, I can distinguish that case from the present one, as in Reid, the plaintiff chose only to sue the undertakers, and the roads authority were involved in the case only to the extent of having its employees before the court as witnesses. The court did not therefore consider the issue as to whether the roads authority might itself have been liable to the plaintiff. Secondly, I find that Reid is unsound having regard to consideration of Scottish authority with which it conflicts. In particular the approach taken in Reid is inconsistent with McLeod v Hastie regarding the proposition that one is not responsible for the acts or omissions of an independent contractor. It is also inconsistent with the approach of the Courts in Laing v Paull & Williamson (Aberdeen Magistrates). I do not therefore follow the decision in Reid.

[26].         The third party is clearly under a duty to road users such as the pursuer, to take reasonable care that their apparatus is in a safe condition within the pavement. I agree with their contention that they fulfill that duty by relying upon the inspection of the pavement by the defenders. The alternative, of having all undertakers carrying out their own inspections is untenable. It is perfectly reasonable and proper to rely on those who already have the statutory duty to inspect and maintain. There is no sense in having the roads authority inspect the pavement right up to, and around, apparatus in the street, but then avoiding and failing to inspect the apparatus itself. Accordingly, the third party is in no breach of duty by relying on the defenders to inspect. But can they be held liable for the negligent inspection by the defenders? I do not believe so. To get to such a position would require a considerable change in approach from "non roads" liability. There can be no liability on the part of the third party had they instructed an independent, and suitably qualified person to carry out the necessary inspection, and that person was negligent in the carrying out of the inspection, provided that the independent contractor was free to conduct his inspections as he saw fit, and was not regulated or guided by the third party; see Marshall v Wm Sharp. The essence was independence, and a roads authority, such as the present defenders, is certainly independent of the third party. Further, I do not see how the third party can be imbued with the knowledge of the defenders, that they (the defenders) had been negligent in the carrying out of the inspection. The cases of McLeod v Hastie, and Haseldine v Daw support this. In McLeod, the master of the vessel was held entitled to rely on the engineers, and was not deemed to be imbued with their knowledge, namely that they had not properly derusted in windlass. In Haseldine, the lift owner was entitled to rely on the lift engineers. I am satisfied that the third party are entitled to rely on the defenders for inspection, and that they are not imbued with the defenders knowledge gleaned by that inspection, nor that the inspection was negligently carried out. To me it seems ridiculous for the defenders to say that the third party is liable, whether or not the inspection reveals the defect. A proper inspection reveals it, it is reported, the liability "transfers" to the third party. A negligent inspection fails to reveal it, it is not reported, but the third party is deemed to know of the defect, and therefore liability also "transfers"? That would absolve the defenders from any responsibility for their own actings, and effectively require the third party to "insure" their apparatus against all eventualities. As Scott LJ said in Haseldine, at p 356 " to hold him responsible for the misdeeds of his independent contractor would be to make him insure the safety of his lift. That duty can only arise out of contract......." As against the pursuer in this case, there is no contract with the third party. There is only the defenders statutory obligation, and the third party's duty to take reasonable care, which duty I have held discharged by reliance on the defenders as roads authority. Further, there is no contract as between the defenders and third party. There are certain statutory duties and requirements, but these were not relied on by the defenders in this case, so as to pass liability to the third party.

[27].         Accordingly, the defenders are liable to the pursuer. They admit as much, and concede a decree against themselves. I can find no liability on the part of the third party, and therefore the defenders attempt to pass same fails. It was however argued that if some liability rests with the third party, then it would be open to the court to apportion the amount of liability as between the defenders and the third party. It is therefore necessary to consider the issue of apportionment. The defenders position was that there should be an apportionment as there was fault on both sides. The defenders were at fault with the negligent inspection, and the third party was at fault because they were imbued with the defenders' knowledge, having relied on the defenders to do the inspection. The court should not just follow what the court did in Nolan, 50/50, as there was a statutory basis for that in that case. On the other hand, the third party argued that as it was only the "deemed knowledge" approach in Reid which allowed the defenders to advance any argument at all, and the third party was only fixed with negligence because of the negligence of the defenders. Thus, if apportionment was appropriate at all, which they argued it was not, then as the only negligence identified was that of the defenders, it was the third party who would be entitled to 100% relief, or zero liability. Only if it could be said that there was negligence on the part of both defenders and third party could there be any operation of section 3, Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

[28].         I prefer the approach of the third party. I cannot accept that the reliance by them on the defenders inspection system was at all unreasonable, and I do not see any basis for suggesting any negligence on their part. In my mind, 100% of the fault lies with the defenders. There is nothing to be apportioned, as all liability rests with one party. Having regard to the various factors which were referred to in Nicol v Advocate General, these were all answered in the third party's favour. The causative potency was the failure to spot the missing toby cover. The lion's share of blameworthiness lay with the defenders. The third party was in no moral breach, or legal fault or turpitude. In all the circumstances, I find no cause to apportion the defenders liability to the pursuer.

[29].         Parties were agreed that if I found that the defenders failed to pass liability to the third party, by obtaining relief, then they would be liable in expenses, not only to the pursuer, but also to the third party. This is clearly an important matter, as I was advised by the solicitor for the defenders that if he was correct in his approach, pursuers would in the future raise proceedings against statutory undertakers for their apparatus, rather than against roads authorities. I therefore certify the cause as suitable for junior counsel.