Rainford v. Aberdeenshire Council [2007] ScotCS CSOH

"The Winter Maintenance Operations Room (WMOR) Attendant will assume the role of communication, coordination, monitoring and reporting outwith normal working hours previously carried out by the Duty Officer. The WMOR Attendant will be the nominated emergency contact, outwith normal working hours, for all requests for assistance in relation to winter maintenance operations for the road network. He will take the appropriate action in relation to any calls he receives. The Duty Officer will be available for consultation by the WMOR Attendant on technical and other matters".

There was also a role played by the duty supervisors, who were in effect the foremen of the crews of the gritting vehicles. They were expected to take immediate action, on their own initiative, on receipt of adverse weather advice or in the event of sudden frost or snowfall.

[11 ] The information on which decisions were based came from two main sources. First, a network of automatic roadside weather recording stations, linked by computer to the defenders' operations offices and to the Met Office, provided up-to-date information relating to local weather and road conditions. The information available included the road surface temperature and the road state (ie wet, damp, dry or icy). Access to this information was provided through software provided by the Vaisala Ltd Icecast System. Secondly, weather forecast information was provided by the Met Office every day before 2:30pm. The Met Office would also contact the WMOR attendant by telephone to advise of changes to forecast information outwith normal working hours.

[12 ] Finally, the plan draws attention at the outset to the need "to try to control the level of expenditure within the sum provided in the annual budget". Evidence was given (by Mr Farquhar) that salt-spreading is a very expensive operation; and the defenders have a budget for that, as for the many other calls on their resources.

How the system was operated at the material time
[13 ] On 22 and 23 November 2004 the duty officer was Mr McFarlane. He had thirteen years experience of winter road maintenance. His formal qualifications were an HNC in civil engineering and a degree in management. He was not a meteorologist: he explained in evidence that he relied on the information provided by the Met Office. The same would be true of the other employees of the defenders who gave evidence. It was accepted by Mr Farquhar that it was appropriate for the defenders to be guided by the Met Office and not to attempt to forecast weather conditions themselves.

[14 ] During the early afternoon of 22 November, Mr McFarlane received the Met Office's 24 hour weather forecast for Aberdeenshire and Morayshire below 150m for the period from noon on 22 November until noon on 23 November. Under the heading "Readiness Colour", the forecast was "Amber". Mr McFarlane explained in evidence that that meant that there had to be a degree of readiness: temperatures were not expected to fall below freezing, but they would be close to freezing. According to his colleague Mr McIver, the forecast was amber for about 50 per cent of the time during the winter months. Under the heading "Hazards Summary", the forecast in respect of ice was "No". The degree of confidence was stated to be "Low". Mr McFarlane explained that, unless the degree of confidence was "High", it was inevitably "Low". In practice it was commonly "Low". The minimum road surface temperature was forecast to be +1^oC. Under the heading "Ice/Hoar Frost - Extent and Timing", the forecast was "Nil". The 24 hour weather summary was as follows:

"Rather cloudy with showery outbreaks of rain, these clearing from the north during the evening, 2100-2400 hours, then dry for the rest of the night with clear spells. Cloud increasing again tomorrow morning with further showery rain developing from around 0900 onwards".

The forecast continued with the following "comments":

"Clear spells overnight will see temperatures falling, but they are not currently expected to fall below freezing."

Mr McFarlane said in evidence that this was typical of the sort of forecast provided throughout the winter period. It was relatively rare to be told that there was a high degree of confidence that there would not be ice.

[15 ] Mr McFarlane also considered the forecast graphs of road surface temperature which were produced by a small number of forecast stations in Aberdeenshire, including one at Toll of Birness, in eastern Aberdeenshire, between Ellon and Peterhead. He also looked at the thermal map of road surface temperatures produced by the Vaisala software, although (as explained below) Mr McFarlane found the thermal maps difficult to interpret and of limited assistance. After consulting the other principal network engineers, Mr McFarlane decided not to send out the gritting vehicles that evening or the following morning, but to place them on standby. That decision was recorded in writing, and a copy was subsequently provided to the WMOR attendant, Mr Morrison. The decision was in accordance with the advice contained in the plan, that where the temperature was forecast to be between 0^oC and +2^oC, the vehicles should be placed on standby in the evening and the following morning. In practice, according to Mr McFarlane's evidence, it was very rare for crews which had been placed on standby to be called out.

[16 ] The WMOR attendant that night was Mr Morrison. He had worked in the WMOR on a one in three rota since the winter of 2003. He had twelve years experience of winter road maintenance as a foreman and previously as a labourer. Although he was not an especially articulate witness (something which has to be borne in mind when considering some of his answers to questions), he appeared to me to be a practical man with a responsible attitude. Mr Morrison was alone in the WMOR, which is located in Inverurie, in central Aberdeenshire. He spent most of the night in front of a computer screen, which was divided into four quadrants. The two upper quadrants showed thermal maps: one showed actual temperatures (as the Vaisala software estimated them to be), and the other showed previously forecast temperatures (again, as estimated by the software).

[17 ] Both Mr McFarlane and Mr Morrison commented on how difficult it was to interpret these maps. They showed lines representing roads, but without any place names or road numbers being marked, making it difficult in certain areas to identify particular roads. The lines were in different colours, with the colours representing bands of temperature. Freezing point fell in the middle of a band ranging from +1^oC to -1^oC. As Mr McFarlane remarked, such a wide band was insufficiently detailed: it was necessary to look at the more detailed information provided by the individual weather stations. Mr Morrison said that he nevertheless kept an eye on the changes in colour on the map showing actual temperatures, but was only concerned if he saw colours representing bands which were below freezing. In the event, there is no evidence as to what any of the maps showed at any particular time when Mr Morrison was on duty that night. The one map which was produced at the proof does not indicate the time to which it relates or whether it shows actual or forecast temperatures. It is also on such a small scale as to be very difficult to interpret (the key to the colours in particular being indecipherable), although reproduced at actual size.

[18 ] One of the lower quadrants on the screen showed a series of lines of weather information, each line containing the most recent data provided by one of the automatic weather recording stations. It was also possible to select a particular weather recording station and to call up on the screen the previous data provided by that station. At the proof, evidence was available concerning the data provided on the night in question by three weather recording stations: Fyvie, Mintlaw and Toll of Birness. Mintlaw has already been mentioned several times. It is about six miles from the locus of the pursuer's accident. It was from the police station there that PC Fraser and PC Anderson set off. It was located on gritting route 10. Toll of Birness has also been mentioned. It is located in eastern Aberdeenshire, not far from the coast, and is much further from the locus of the accident than Mintlaw (although no evidence was given as to the distance). Fyvie is between Oldmeldrum and Turriff, to the west of the locus of the accident. It too is much further than Mintlaw from the locus (although no evidence was given as to the distance). It was clear from the evidence of Mr McFarlane, Mr McIver and Mr Morrison that Fyvie tends to be the coldest place in the area, due to its sheltered location, and that the road in that vicinity is a notorious blackspot for ice.

[19 ] The final quadrant on the screen showed the forecast graphs of road surface temperature for the small number of forecast stations which produced such graphs, together with graphs showing the actual road surface temperatures recorded by the same stations. At the proof the graphs in respect of Toll of Birness were the only ones produced. The stations at Mintlaw and Fyvie did not produce such graphs.

[20 ] When Mr Morrison came on duty, at about midnight, the road surface temperature at Mintlaw was +4.8^oC. It dropped during the early hours of the morning, but remained above freezing. At 4am it stood at +2.1^oC. At Toll of Birness, the road surface temperature at midnight was +4.5^oC. It also dropped during the early hours of the morning, but remained above freezing. At 4am it stood at +0.5^oC, which was below the forecast temperature there of between +2^oC and +3^oC. At Fyvie, the road surface temperature at midnight was +4.6^oC. It also dropped during the early hours, but remained above freezing. At 4.06am it stood at +1.1^oC. The road itself at Fyvie was recorded as being wet. At Mintlaw and at Toll of Birness it was recorded as being moist.

[21 ] At about 4:15am, Mr Morrison received a telephone call from Mr Brooks at the Met Office. Neither Mr Morrison nor Mr Brooks could recall in evidence what had been said. The purpose of the call was to notify Mr Morrison of an amended weather forecast in the following terms:

"Amended forecast issued at 04:04 on Tuesday 23 November 2004. RSTs [road surface temperatures] are now falling over some parts of Aberdeenshire and Moray, especially towards eastern coasts, and may dip below freezing between 05:00 and 09:00 bringing the risk of icy patches".

[22 ] In relation to the wording of this forecast, Mr Brooks explained in evidence that the words "bringing the risk of icy patches" were used advisedly. If widespread ice had been forecast, the wording would have been "leading to widespread ice". When it was suggested to Mr Brooks that the forecast was not localised, he responded that the specification was provided by the words "especially towards eastern coasts". He said that the amended forecast might have been issued in response to information from the sensor at Toll of Birness, as it was on the eastern side of the county. He also explained that the words "icy patches" were used because more than two hours had passed since rain had fallen, and road surfaces were therefore only partially damp. If less than two hours had passed, and roads were therefore expected to be wet, the Met Office would have issued a "flash warning" if freezing temperatures had been anticipated.

[23 ] It appears likely that Mr Brooks accurately informed Mr Morrison of that forecast, particularly as Mr Morrison wrote in his report, before going off duty at 8am:

"Met Office called to inform that the temps in the east are dropping. Toll of Birness down to zero at 0500."

[24 ] Following that telephone call, the temperature at Toll of Birness was recorded as being +0.4^oC at 4:20am, 0^oC at 4:40am, -0.1^oC at 5am and -0.2^oC at 5:20am. The temperature at Fyvie was recorded as being +0.6^oC at 4:36am and +0.2^oC at 5.06am. The temperature at Mintlaw was recorded as being +1.6^oC at 4:30am.

[25 ] In the light of the available information, Mr Morrison decided that gritting vehicles should be sent out on patrol at 5:30am on route 11, which was the route between Ellon and Peterhead, in eastern Aberdeenshire, passing through Toll of Birness, and on route 6, which was the route between Turriff and Oldmeldrum, passing through Fyvie. He accordingly contacted the local duty supervisors at about 5am. The vehicles were duly sent out with instructions to patrol and inspect, and treat where appropriate. In the event, the temperature recorded at Toll of Birness continued to drop slightly for a time, but had risen above freezing by 6am. The temperature recorded at Fyvie also dropped, going below freezing at 7:06am, by which time the road had been treated with salt. The temperature recorded at Mintlaw never went below freezing.

[26 ] In his evidence, Mr Morrison could not recollect the thoughts which he had had at the time he made the decision (he had first been questioned about these events around two years after the accident, shortly after the summons was served). He inferred, from his having instructed a patrol on route 11, that he must have been alerted by the Met Office's telephone call to a drop in temperature in the area of Toll of Birness. Whether or not Toll of Birness was specifically mentioned by Mr Brooks (as it may have been: as already mentioned, Mr Brooks confirmed in evidence that he received data from the weather station there), it is clear that the amended forecast was of a drop in temperatures "especially towards eastern coasts"; and Toll of Birness, and route 11 generally, are located near the eastern coast. The temperatures recorded at Toll of Birness were also the only ones, so far as appears from the evidence, which had dropped below freezing by the time the gritters started their patrol. Mr Morrison explained his decision to send gritting vehicles out on route 6 as being something which he would have done even if that area was not mentioned by the Met Office, because of his knowledge that there was a very bad spot on that route. That decision would appear to have been vindicated by the fact that the temperature at Fyvie did drop below freezing, but only after the danger of ice forming on the wet road there had been eliminated by the treatment of the road surface.

[27 ] Mr Morrison took the decision without consulting the duty officer, Mr McFarlane. Mr Morrison saw nothing unusual about this course of action. He explained that he used his judgment whether to contact the duty officer or to take a decision himself and inform the duty officer in the morning. He inferred that on this occasion, since the temperature graphs were all above freezing except the one for Toll of Birness, and the Met Office forecast was localised, he had not thought it necessary to disturb Mr McFarlane at that time of the morning. Mr McFarlane, on the other hand, said in evidence that he considered that he should always be consulted before there was a departure from his previous decision (which, on this occasion, had been not to send the gritters out on patrol in the morning, but to have them on standby). At the same time, he acknowledged that the plan appeared to envisage that the WMOR attendant might contact the duty supervisor directly, in the event that he was informed by the Met Office of a change in the forecast overnight. He said that, on this occasion, he had informed Mr Morrison's line manager of his concern that his decision had been altered without his being contacted. Mr Morrison had no recollection of the matter being raised with him by his line manager. Since both Mr McFarlane and Mr Morrison appeared to me to be credible and reliable witnesses, I find it difficult to reach any conclusion in relation to this matter.

[28 ] Finally, in relation to the material events, Mr Morrison was telephoned by the duty supervisor at Strichen, Mr Gary Mowat, at about 7:45am. It was mentioned earlier that the duty supervisors could take immediate action in the event that they became aware of a particular problem. Mr Mowat said that he was sending out gritting vehicles on the routes served by the Strichen depot (which included route 10). According to Mr McFarlane, Mr Mowat took that decision because he had come across an accident. The vehicle sent out to patrol route 10 arrived at the locus of the pursuer's accident between 8:30 and 8:45am.

Assessment of Mr Morrison's decision
(a)Mr McFarlane
[29 ] Mr McFarlane was supportive of Mr Morrison's decision. Asked whether, on the basis of the information available to Mr Morrison, it was reasonable to think that ice was going to form on road surfaces between 7:30 and 9am, Mr McFarlane replied "Yes, localised at Toll of Birness". He disagreed with the suggestion that the information did not enable the risk of ice to be localised to particular areas, observing that information was available from other weather stations besides the three (Mintlaw, Fyvie and Toll of Birness) on whose records the pursuer's case relied. His recollection was that the stations to the west, at Ballater and Tillyfourie, were recording temperatures of +2^oC at the material time. He emphasised that Mr Morrison would have had more information available to him than was before the court. Mr McFarlane also noted that the road conditions (other than at Fyvie) were recorded as being moist rather than wet. In that regard, he said that if he had had that information before him, he would not be thinking of a risk of black ice: he would be thinking of frost. For black ice to form, there was usually water on the road surface. He considered that it was reasonable for Mr Morrison to send a gritting vehicle out on route 11 if the available information indicated that the temperature might dip below freezing at Toll of Birness. It was reasonable in addition to send out a gritting vehicle on route 6, since experience showed that the minimum temperature was likely to be in the Fyvie area, which was a well-known cold spot. Mr McFarlane also observed that decisions of the kind which Mr Morrison had taken, on that type of night, were rarely straightforward. The decision had to be based on judgement and experience. He respected Mr Morrison's judgement. Mr Morrison had experience of winter operations. On the basis of Mr McFarlane's dealings with him, he had Mr McFarlane's confidence.

[30 ] Asked whether, if Mr Morrison had telephoned him and had told him about the information he had received, Mr McFarlane would have agreed with the proposed decision to sent gritting vehicles out on routes 6 and 11, Mr McFarlane responded that it was hard to say: he would have been pulled out of his bed, with no information in front of him. Mr Morrison would have had to explain everything to him. He certainly would not have been disagreeing with Mr Morrison's decision. Pressed on this point in re-examination, Mr McFarlane accepted that it was impossible to say, without having all the information in front of him

(b)Mr Angus McIver
[31 ] Mr McIver was one of the defenders' other principal network engineers, and as such one of the six individuals who took it in turn to act as duty officer. He was qualified as a civil engineer. He had five years' experience as a principal network engineer, and previous experience of winter road maintenance. He considered that the attendant had a measure of discretion whether to contact the duty officer overnight.

[32 ] Mr McIver had been on duty on 22 and 23 November 2004. He had been surprised, on the morning of the 23^rd, to discover that gritting vehicles had been sent out. He had subsequently been asked to consider the information provided at the proof. Asked in evidence what he would have done if he had been the duty officer that night, and had been telephoned by Mr Morrison and told that he proposed to send out vehicles on routes 6 and 11, Mr McIver said that he would have agreed with that proposal. Pressed on that point in cross-examination, Mr McIver agreed that he would have had to look at all the data which had been available at that time before deciding whether vehicles should also be sent out on any other routes. Asked how he would describe Mr Morrison's decision, Mr McIver responded that it was marginal, but reasonable.

(c)Mr Iain Farquhar
[33 ] As already mentioned, Mr Farquhar was a forensic meteorologist who was led as a witness on behalf of the pursuer. He had considered different information from that available to Mr Morrison. The information in question was derived from weather stations at Cairnorrie, Aberdeen Airport and Mintlaw (the last of these being a different weather station from the one at Mintlaw which provided information to the defenders). It appeared that, at Cairnorrie, the minimum air temperature during the 24 hours to 9am on 23 November 2004 was -2.9^oC: the time at which that temperature was reached was not stated. At Aberdeen Airport, the minimum was -0.6^oC: again, the time was not stated. At Mintlaw, the minimum was -1^oC: that figure is different from the information available to Mr Morrison, according to which the recorded road surface temperature (which could be expected to be below the air temperature) was never lower than +0.7^oC: Mr Farquhar commented that the station from which his information was derived must be in a more exposed situation. Mr Farquhar also had information about minimum grass temperatures at these three locations, which again was not available to Mr Morrison. On the basis of that information, he considered that a ground frost would have occurred widely in the areas in question. He also had information from Aberdeen Airport showing that there had been rain there during the period up to 1am on 23 November. That information again was not available to Mr Morrison: the last occasion on which the road surface was recorded as being wet (presumably, some time after it had stopped raining) was 11pm on 22 November at Mintlaw, and midnight on 22 November at Toll of Birness, although (as previously mentioned) it remained wet at Fyvie for most of the night. Mr Farquhar concluded that with overnight rain followed by road temperatures "in places" dipping below freezing point, "a classic 'black ice' scenario will have been in place on the morning of 23 November 2004 in Aberdeenshire". The material on which this conclusion was based was not put to Mr Morrison or Mr McFarlane, presumably in recognition of the fact that it was not being suggested that it had been available to them or should have influenced their thinking; nor was it referred to in the closing submissions on behalf of the pursuer. In the circumstances, it appears to me to be of no direct relevance. I also note that Mr Farquhar's evidence that there was a classic black ice scenario is difficult to reconcile with the evidence of Mr McFarlane that, on the information available to the defenders, since the road surface was generally moist rather than wet, he would have been thinking of frost rather than of black ice. The evidence of the various motorists who spoke of their experience of the roads on the morning in question gives some support to Mr McFarlane's view, since it is clear that the roads were not generally icy, but that there was a problem in specific localities.

[34 ] Mr Farquhar was asked about the decision to send out vehicles on routes 6 and 11, but not on route 10. He said that he could not see any reason from a meteorological point of view for treating routes to the east and west of route 10, but not route 10 itself. In cross-examination, however, Mr Farquhar accepted that, on the information available to Mr Morrison, the road surface temperatures at Mintlaw, relatively close to the locus of the pursuer's accident, had never dropped below freezing, whereas at Toll of Birness, to the east, and at Fyvie, to the west, they had done. He also accepted that meteorological factors were not the only factors affecting road conditions: others, including topographical factors, also played a part.

[35 ] Mr Farquhar commented on the amended weather forecast issued by the Met Office at 4:04am. He remarked that there was "a serious risk of ice forming on untreated roads", and "a serious road hazard"; whereas, as previously discussed, the amended forecast stated that road temperatures "may drop below freezing . . . bringing the risk of icy patches". Mr Farquhar said that, in his opinion, the situation was one where temperatures "will" go below freezing and ice "will" form, rather than "may". He accepted however that the defenders had to be guided by what they were told by the Met Office.

(d)Mr John Edgar
[36 ] Mr Edgar was a consulting civil engineer who was led was an expert witness on behalf of the pursuer. He had experience of winter maintenance operations in Lothian Region prior to his retirement from that authority in 1995.

[37 ] In his report, Mr Edgar noted that the data produced by the stations at Mintlaw, Fyvie and Toll of Birness showed road surface temperatures over the night of 22-23 November as being above freezing at Mintlaw, but dropping below freezing at Fyvie from about 7am and at Toll of Birness from about 5am. He also noted that all these stations reported wet or moist road conditions. He identified the graph showing forecast and actual temperatures at Toll of Birness as being in his view the most importance piece of information which had been available to Mr Morrison. Mr Edgar noted that the actual temperatures at Toll of Birness were below those forecast for most of the night of 22-23 November 2004, and were below freezing from about 5am. He concluded:

"Since this information was available both to the operational staff and to the Met Office, it is difficult to see why this worse-than-forecast situation was not identified.

A combination of freezing temperatures and wet or moist road surfaces is the usual cause of 'black ice' and I consider that there was ample warning that treatment had become necessary, either on the evening of the 22^nd or early morning of the 23^rd, or both".

[38 ] In relation to the first paragraph quoted, it is clear from the evidence that the deterioration at Toll of Birness was identified, and that Mr Morrison acted upon it by sending a gritting crew out on route 11. In relation to the second paragraph, Mr Edgar departed in his evidence from the contention that treatment was necessary (let alone, that it ought to have been known at the time that treatment was necessary) on the evening of the 22^nd. So far as the morning of the 23^rd was concerned, Mr Morrison had realised that it was necessary to send out vehicles on routes 6 and 11: the only question is whether he ought to have known that treatment of route 10, where the locus of the pursuer's accident was located, was also required.

[39 ] Mr Edgar's report was prepared in ignorance of the amended weather forecast and Mr Morrison's response: he was under the impression that the defenders' decisions had been based solely on the 24 hour weather forecast and the advice contained in the plan, and that there was "no evidence that the Council had regard to the signs of worsening conditions in the weather station information". By the time he gave evidence, however, he had been informed that an amended weather forecast had been issued, although he remained unaware of its terms. He was also aware of the decision to grit routes 6 and 11. He commented that there seemed to be no good reason to decide not to treat route 10, which lay between routes 6 and 11. He described that decision as a serious error of judgement. The error of judgment, as it seems to me, was rather that of Mr Edgar, in choosing to express that opinion without knowing the terms of the amended weather forecast (which highlighted the risk of ice near eastern coasts, consistently with the data produced on the night in question by the Toll of Birness weather station), and without having considered the possible relevance of local knowledge (namely, that the Fyvie area was particularly prone to ice, consistently with the data produced on the night in question by the Fyvie weather station).

[40 ] In cross-examination, Mr Edgar accepted that the only evidence he relied on, as supporting his assertion that gritters should have been sent out on the morning of the 23^rd, was the data from the Toll of Birness station. He also accepted that the information available to the defenders' staff at the material time was difficult to assess. He was critical of the ability of the WMOR attendant to decide on treatment, on the basis that "he seems to have sat in isolation in a control room with no feel for the weather", whereas someone who was out in the weather would have had a feel for it. Mr Morrison however gave evidence that it was his habit to go outside once or twice during the night, to wake himself up and to give his eyes a rest from watching the computer screen, and to check whether ice had formed on the cars parked outside. Mr Edgar accepted that local knowledge was a relevant factor, and that the presence of a known blackspot could appropriately lead to a decision to sent gritters out on certain routes but not others. He also accepted that experience of winter maintenance had to be taken into account in decision-making. Although he was unable to say which routes should in his opinion have been gritted by the defenders, beyond observing that they were "certainly the ones relating to the weather information update", and said at one point in his evidence that he did not know whether the decision not to grit other areas had been negligent, he nevertheless maintained that the decision not to grit route 10 had been "remiss", since that route was "in the same area as route 11 in that route 10 abuts it at one point." In that answer, Mr Edgar was referring to the fact that route 10 and route 11 have one point in common, namely Mintlaw. The reason for sending out a gritter on route 11 however had nothing to do with conditions at Mintlaw: it was because the route passed through Toll of Birness, and was the route lying closest to the east coast. The fact that it happened to join route 10 at Mintlaw did not in itself provide any logical reason for gritting route 10.

The submissions on behalf of the pursuer
[41 ] On behalf of the pursuer, it was submitted that a decision to send a gritting vehicle out on route 10 at 5:30am on 23 November should have been taken at about 4:30am. An appropriately experienced decision-maker would have known that there was a classic black ice scenario. Reliance was placed, in that regard, on the evidence of Mr Farquhar. There was no reason to think that those conditions were restricted to any particular place. In the first place, the thermal map demonstrated that temperatures were between +1^oC and -1^oC throughout the area. I note that, as mentioned previously, the thermal map which was produced does not indicate the time of day to which it refers, or even whether it is concerned with actual temperatures or forecast temperatures; it shows the locus of the accident as having a road surface temperature between +3^oC and +1^oC; and, while it shows some other roads as being in a band between +1^oC and -1^oC, that would be as consistent with temperatures being above freezing as below freezing.

[42 ] Secondly, counsel submitted, the data from the weather stations at Mintlaw, Fyvie and Toll of Birness showed a drop in temperature at each of them after midnight, two of the three going below freezing. That is correct; and gritters were sent out on the routes which passed through the two locations where the temperatures dropped below freezing. On the evidence, that does not imply that gritters ought also to have been sent out on other routes: "one out, all out" would not be a sensible policy to apply to the treatment of roads in a county with a varied topography and a relatively wide range of climatic conditions, and it was not in fact the policy followed by the defenders at the material time.

[43 ] Thirdly, counsel relied on the fact that the amended weather forecast was for the whole of Aberdeenshire and Moray. As explained earlier, however, the warning of falling temperatures related to "some parts of Aberdeenshire and Moray, especially towards eastern coasts". While it would be fair to say that the forecast did not exclude the possibility of ice away from eastern coasts, the temperature data (so far as produced at the proof) supported the view that there was a serious risk of ice near eastern coasts and in the well-known cold spot at Fyvie, but not in the Mintlaw area.

[44 ] Counsel was also critical of Mr Morrison's having taken the decision himself, instead of contacting Mr McFarlane; of his description of the decision, at one point in his evidence, as "tongue in cheek", which, counsel submitted, indicated a lack of discrimination, rather than (as it appeared to me) an imperfect command of the English language and a degree of nervousness while giving evidence; and of his failure to complete certain forms in the manner stipulated in the plan. These criticisms appear to me to be of little significance. The issue is whether the decision which was taken was incompatible with the performance of a duty of care, not whether it was taken by the person whom the defenders' internal procedures required to take it, or whether the person who took the decision completed all the paperwork correctly.

[45 ] Counsel submitted that the relevant question was whether the defenders (or their employees) knew or ought to have known that there was such a substantial risk of ice being present on the A981 at the locus of the accident, at the time of the accident, that their duty of care towards motorists such as the pursuer required them to send out gritters to patrol that road at or about 5:30am on the morning in question. In support of that submission, reference was made to Goodes v East Sussex County Council [2000] 1 WLR 1356, Syme v Scottish Borders Council 2003 SLT 601, Taylor v Smith 2003 SCLR 926, Sandhar v Department of Transport [2005] 1 WLR 1632 and Morton v West Lothian Council [2005] CSOH 142.

The submissions on behalf of the defenders
[46] On behalf of the defenders, it was submitted that it had not been proved that the defenders' decision to sent out gritters on the morning of 23 November to patrol and inspect routes 6 and 11, but not route 10, constituted negligence. That being the only respect in which the defenders were said to have acted in breach of their duty of care, it followed that they should be assoilzied. The pursuer's case was further narrowed in that (a) there was no challenge to the content of the defenders' plan, and (b) the defenders were not criticised in respect of the decision taken by Mr McFarlane to place the gritting vehicles on standby for the morning in question.

[47 ] In relation to the nature of the defenders' duty of care, reference was made to O'Keefe v Edinburgh Corporation 1911 SC 18, Cameron v County Council of Inverness 1935 SLT 281, Gordon v Inverness Town Council 1957 SLT (Notes) 48, Grant v Lothian Regional Council 1988 SLT 533, Taylor v Smith and Morton v West Lothian Council. Counsel founded in particular upon the opinion of Lord Glennie in the latter case at paragraph 67:

"In order to move from the general duty of care to a specific duty to take care to treat a particular road, and to do so by a particular time in the morning, it would need to be shown that such treatment was not just a requirement of the particular strategy adopted by the roads authority acting reasonably, but that it would necessarily have been a requirement of all strategies within the range of strategies that a roads authority, acting reasonably in response to the predicted and actual weather conditions, could properly have adopted. If one strategy, amongst the entire range of strategies that the roads authority could reasonably have adopted, did not involve gritting that stretch of road, it cannot be said that the general duty of care translates into a specific duty to grit that stretch of road; nor is the failure to grit that stretch of road a breach of that general duty."

I note that Lord Glennie also observed:

"The duty of care placed upon the roads authority at common law, the policies or strategies put in place by the roads authority to fulfil that duty, and the instructions given daily or hourly in accordance with those policies, all require to be considered separately. It is, to my mind, not correct to say, in a case such as this where the duty to take reasonable care can be obtempered in a number of different ways, that a failure to follow the particular policy adopted by the roads authority, or a failure to carry out the specific instructions given by Council officers in charge of winter maintenance, demonstrates a breach of the duty of care pursuant to which the policy was introduced and instructions given."

I respectfully agree with those observations.

[48 ] In relation to the facts of the case, the Met Office forecast supplied to the defenders on 22 November was valid for the 24 hour period until noon on 23 November. It did not mention ice in the weather summary. In the hazards summary, it was stated that ice was not expected. The evidence was that it was common in winter for the confidence level to be marked as "low" and the readiness colour "amber". After considering the forecast, Mr McFarlane gave the instruction that the gritters be put on standby for both the evening and early morning periods. That was in accordance with the defenders' plan.

[49 ] The defenders had a duty to respond reasonably to the changing weather picture as it developed overnight. They did so. This was not a case where no action was instituted. The weather pattern was reviewed and a change to the overnight plan was initiated. That change was soundly based. Neither Mr McFarlane nor Mr McIver indicated any disagreement with the decision. The only criticism of the decision came from Mr Edgar, whose evidence was unsatisfactory and unconvincing.

Discussion
Preliminary observations
[50 ] The argument in this case proceeded on a concession that the defenders owed the pursuer a duty of care at common law, simply, it would appear, in consequence of their statutory responsibilities. I proceed on the basis of that concession, but I reserve my opinion as to whether it was correctly made. Whether such a duty of care existed is a question which I would not regard as foreclosed by the authorities cited to me.

[51 ] In the case of O'Keefe, the local authority were alleged to be liable to a person who had slipped on ice on the pavement by reason of their ownership of a fountain which was said to have overflowed, causing the ice to form: the case was not concerned with the question whether a roads authority was under a duty of care to remove ice from the roads, or to take steps in advance to prevent ice from forming. In the case of Cameron, the local authority's statutory duty to maintain the highway was argued to give rise to a liability in damages to a farmer whose sheep had starved to death as a result of the road's being blocked by snow for several days. The principal question argued was whether the statutory duty to "maintain" imposed a duty to remove snow. As the Lord President noted (at page 286), the pursuer did not allege any negligence on the part of the roads authority. The case of Gordon, in the Outer House, supports the proposition that a roads authority has a duty of care to treat icy roads so as to keep them safe for use; but the brief report of the case does not disclose the reasoning on which that proposition was based, and the only authorities mentioned are the cases of O'Keefe and Cameron. In the more recent cases which were cited to me, the question was not argued. In Syme, however, Lord Clarke held that the statutory duty of the roads authority to treat snow and ice did not impose a liability in damages; and his Lordship also drew attention to what might be described as the public law context of any common law duty of care: in other words, the fact that such matters as the appropriate amount and nature of the resources which ought to be made available for dealing with snow and ice, the circumstances in which those resources ought to be used, and the order of priority among different roads and pavements which ought to be adopted, are ordinarily a matter for the discretion of the roads authority, with which the court is not entitled to interfere unless that discretion has been exercised unreasonably.

[52 ] Finally, in relation to the authorities, I note that in the case of Morton, Lord Glennie remarked, at paragraph 64:

"It is agreed between the parties that roads authorities, such as the defenders and their predecessors, owe a common law duty of care to road users. In this respect the law of Scotland appears to differ from that of England and Wales: see the observations of Lord Clarke in Syme v Scottish Borders Council 2003 SLT 601 and in MacDonald v The Scottish Ministers and Highland Council (13 October 2003, unreported), reflecting upon the apparent difference revealed by the decision of the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 (rejecting a claim based on breach of statutory duty); and see also, since then, Sandhar v Department of Transport, Environment and the Regions [2005] 1 WLR 1632, in particular at paragraphs 43 and 44. Why the law should be different in this respect is unclear to me. There would not appear to be obvious differences in social circumstances or policy such as to explain the common law developing differently in the two neighbouring jurisdictions: cf. Invercargill City Council v Hamlin [1996] AC 624."

I respectfully agree. In this area, as in some other areas of the law concerned with the liability in negligence of public authorities for the exercise (or non-exercise) of statutory powers, the arguments which have figured prominently in the modern English case law (in such cases as Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057) do not appear to have been considered.

The present case
[53] Turning to the present case on the basis of the defenders' concession, the question is whether the defenders acted reasonably in the light of the information available to them.

[54 ] No criticism is made of the decision taken by Mr McFarlane in the light of the 24 hour weather forecast. I can turn therefore to the decision taken by Mr Morrison. I accept that Mr Morrison monitored the information coming into the WMOR overnight, including the information conveyed to him by Mr Brooks concerning the amended weather forecast. I accept that, in the light of that information, he called the duty supervisor, with the consequence that gritting vehicles were sent out at 5:30am to patrol and inspect route 11 (Toll of Birness) and route 6 (Fyvie). In taking that decision without informing the duty officer, Mr Morrison may have acted contrary to the plan (although the plan is less clear than it might be in that respect). Any departure from the plan is not however in itself evidence of negligence.

[55 ] The defenders did not operate a policy of "one out, all out" in relation to gritters. That was reasonable, given the size of the county, its topography and the length of the gritting network. It would not be reasonable, for example, to salt the streets of Aberdeen merely because there had been snow in the Cairngorms. It is clear from the evidence of Mr Brooks and Mr Farquhar that there can be a considerable degree of diversity in temperatures and weather conditions across the county. On the morning of the accident, in particular, conditions varied significantly across the county. The pursuer, coming from New Pitsligo, about five miles to the north-west of the locus of the accident, said that there was no frost there, and that his progress was "normal" until the accident. Mr Philip, coming from the opposite direction, similarly noticed that there was no frost in Kingswell, about 30 miles south of the locus of the accident, and that it was only after about 25 miles that he became aware of a change in the road conditions. Mr McNicol had been driving for about 45 minutes without difficulty, mostly to the north and north-east of the locus of the accident, before he came to the locus. Mr Hadden had driven for about 30 miles, on roads to the north-west of the locus, before he became aware of adverse road conditions close to the locus. PCs Fraser and Anderson skidded when taking a bend at high speed, just outside Mintlaw, but had no problems afterwards when driving at a more moderate speed to the west of the locus. It is reasonable to infer that there was a localised problem in the vicinity of the junction of the A950 and the A981, where Mr Hadden, Mr McNicol and the pursuer all skidded on ice.

[56 ] Mr Morrison was experienced in winter maintenance. There was in my opinion a reasonable basis for the decision which he took. The amended weather forecast had warned of falling temperatures "especially towards eastern coasts", and of a "risk of icy patches", rather than of "widespread ice". It is possible that Toll of Birness was specifically mentioned by Mr Brooks. In any event, the data from the weather station there indicated that the temperature there was falling below freezing. In those circumstances, it was reasonable to send out a gritter on the route (route 11) which went through that area. Another gritter was sent out on the route (route 6) where there was a well-known cold spot, and where the data from the nearest weather station (at Fyvie) indicated that the temperature was only just above freezing and that the road surface was wet. There is nothing in the evidence before the court which indicates to me that any reasonable decision maker would in addition have been bound to have sent out gritters on other routes and in particular on route 10, where the locus of the accident was located. At the nearest weather station from which the defenders received information (at Mintlaw) the temperature never dropped below freezing; and, as is demonstrated by the experience of the various motorists who gave evidence, the hazard which caused the accident was in a specific area of the county which had not been highlighted by any of the information available to Mr Morrison. Although Mr Morrison's decision was criticised by Mr Edgar, I do not find Mr Edgar's criticisms persuasive, for the reasons which I have explained.

Conclusion
In the circumstances, I shall grant decree of absolvitor.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rainford v. Aberdeenshire Council [2007] ScotCS CSOH_127 (13 July 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_127.html Cite as: [2007] ScotCS CSOH_127, [2007] CSOH 127

Scottish Court of Session Decisions