SHERIFFDOM OF TAYSIDE
CENTRAL AND FIFE AT CUPAR
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A327/04
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INTERLOCUTOR
OF
SHERIFF PETER J
BRAID
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In
the cause
ANN FRASER McCABE or COLTART and MR
ANDREW WALKER, residing at 48C Main Street, Ceres, Fife joint Guardians of
STUART ANDREW COLTART also residing at 48c Main Street, Ceres, Fife (Assisted
Person)
PURSUERS
against
FIFE COUNCIL, having
its offices at Fife House, North
Street, Glenrothes, Fife KY7 5LT
DEFENDER
Cupar,
December 2005
Act: Smith
Alt: Beattie
The Sheriff, having
resumed consideration of the cause, finds the pursuers' averments irrelevant et separatim lacking in specification;
sustains the defenders' first plea-in-law; accordingly, dismisses the action as
irrelevant; reserves all questions of expenses. OUTLINE OF SUBMISSIONS
FOR DEFENDERS
Note
[1] This is an action of damages at common
law. The pursuers sue as guardians of
Andrew Coltart ("Mr Coltart"). The
defenders are sued as the local authority with responsibility for the management
and maintenance of roads under the Roads (Scotland)
Act 1984, which roads include Main Street,
Ceres.
[2] The pursuers aver in Article 2 of
Condescendence that on or about 31st January 2003 Mr Coltart lost
his footing and fell whilst walking along the pavement of Main Street, Ceres;
that the pavement had been subjected to a downfall of snow prior to the
accident and on the day in question; that Mr Coltart's loss of footing was
caused by the icy surface of the pavement; and that the surface of the pavement
had been covered by snow and ice for several days prior to Mr Coltart's
fall. They further aver that the surface
presented an obvious danger to pedestrians such as Mr Coltart, and make
reference to a weather forecast for the day in question which, they say,
necessitated urgent action being carried out by the defenders. In Article 3 of Condescendence, the pursuers
aver that the defenders failed to take such steps as they themselves considered
reasonable to prevent ice endangering the safe passage of pedestrians over
public roads. They aver that the
footways at the locus were not gritted on 29th January 2003 nor were they salted or
gritted on the day of 30th
January 2003 prior to Mr Coltart's accident. They then aver that at the time of the
accident the defenders had in place a "Winter Maintenance Plan" (the "Plan")
for the treatment of roads and footways in their area; that action to be taken
by the defenders in terms of the Plan was to be based on weather forecast
information gathered from monitoring systems (ICELERT) throughout Fife; that
the Main Street in Ceres falls under the defenders highest priority for footway
treatment; that the defenders failed to carry out salting and gritting
operations in accordance with the scheme of priorities contained in the
Plan. Finally, they aver that "a
sufficient period of time had elapsed for the defenders to take remedial
action".
[3] The circumstances of the accident, as set
forth in Article 2, are not known and not admitted by the defenders. In their Answer to Article 3, they admit that
the footways had not been gritted, that they had the Plan in place and that,
under the Plan, Main Street in Ceres
falls under their highest priority for footway treatment. The defenders then make detailed averments
about the operation of the Plan, and their decision-making process. Somewhat unsatisfactorily, the pursuers have
not responded to the defenders' averments at all, and as such they have failed
to comply with OCR r 9.7. Since the Plan
is seemingly within the knowledge of the pursuers, the defenders' averments, at
least as to the content of the Plan, can in my view be treated as impliedly
admitted. The pursuers' agent told me
that the pursuers accepted the defenders' averments about the content of the
Plan. In the event, nothing turns on
this, but the pursuers ought to have made their position in relation to the
defenders' averments clear on Record.
[4] The pursuers
then aver various breaches of common law duty as follows:
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"Cond 4
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Averred
it had snowed at the accident locus on 29, 30th and 31st January 2003. Further averred that the snow from the
previous day prior to the accident remained on the ground twenty four hours
later if it was not removed under explanation that temperatures on 31st January 2003 did not
rise beyond freezing point. Averred
that snow and ice lay on the footway of the locus for several days prior to
Mr Coltart's fall. Averred that where
persistent frost exists after twenty four hours, the defenders are under a
duty to salt the particular footway in (first) priority order, said footway
normally accommodating a high usage of pedestrians. The defender failed in this duty under
explanation that during the persistent frost the previous fall of snow still
lay at the locus on 31st January.
The defenders were under a duty to remove snow deposits from the
footway at the locus and they failed to remove the snow for several days
prior to and including the date of the Mr Coltart's accident. Averred that the defenders were also under
a duty to remove said snow deposits from the footway within the working week
and the snow lay on the footway on Wednesday (29th), Thursday (30th)
and Friday (31st) of that particular working week. The defenders therefore failed in their
duty to remove snow from the footway in a working week. The defenders knew or ought to have known
that it was due to snow on 31st January 2003 with reference to a
reliable weather forecast system and ought to have known that a fresh
snowfall coupled with previous snow having fallen and having become frozen
and/or hard packed due to frost, would all present a clear danger to
pedestrians such as Mr Coltart.
Averred the defender's (sic)
were under duty to ensure the footway would gain collateral benefit from any
salting treatment to the footways adjacent to the carriageway. The defenders failed to discharge this duty
either on the day of the accident or the previous two days when snow had
fallen."
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The defenders' submissions
[5] Miss Beattie moved me to sustain the
defenders' first plea in law and to dismiss the action. She accepted that, in the light of such
cases as Jamieson v Jamieson 1952 SC (HL)
44 and Miller v South of Scotland
Electricity Board 1958 SLT 229, the
action could not be dismissed unless it could be said that the pursuers were
bound to fail after any enquiry. She
submitted that the defenders could satisfy that test by virtue of the failure
of the pursuers to make relevant averments of fault.
[6] Miss Beattie
then pointed out that the extent and nature of the duties incumbent upon a
roads authority in relation to winter maintenance have featured in many
cases. She submitted that a useful
summary of the duties could be found in the recent case of Morton v West
Lothian Council 2005 GWD
35-667, which
related to
the gritting of roads. She founded
on the following passage from paragraph 65 of Lord Glennie's opinion:
"It is well established that
the obligation which the common law places upon a roads authority is not an
absolute one. The duty owed by the roads authority to road users in respect of
hazards on the roads arising from snow and ice is a duty of care. It is
axiomatic that snow and ice present problems which require from the roads
authority an exercise of judgment. Resources will not always be adequate for
all conditions. It is not generally practicable for all roads to be treated in
the time available between weather warnings and the onset of winter weather.
Still less is it possible, during such weather, to treat all roads at the times
and with the frequency that good practice may suggest. Treatment will have to
be prioritised according to the informed judgment of those in positions of
responsibility. Decisions have to be
made about priorities. A judgement,
equivalent to a discretion, has to be exercised. There will, therefore, be
times when some or all of the roads are icy despite the exercise of reasonable
care. If any authority is needed for
this proposition, it is to be found in cases such as Cameron v. Inverness County
Council 1935 SC 493, Gordon v. Inverness Town Council 1957 SLT (Notes)
48, Grant v. Lothian Regional Council 1988 SLT 533 and Syme v. Scottish Borders
Council 2003 SLT 601. It follows that it can never be sufficient for a
pursuer to aver simply that there was ice on the road which caused the
accident. Such an averment might instruct a claim for breach of an absolute
duty to keep the roads free from ice, if there was an absolute duty (and it is
not contended that there was); but it cannot, without more, raise even an
inference that there has been a breach by the roads authority of a duty of
care."
[7] Next, Miss Beattie referred to various dicta from some of the cases cited in
the foregoing passage. She did so
primarily be reference to Syme v Scottish
Borders Council, supra, in which Lord Clarke dealt with the prior case law
in some depth. In Syme, the pursuer sued the defenders as roads authority for damages
in respect of injuries allegedly sustained as a result of slipping and falling
on a pavement in Newtown St Boswells.
The action was based on breach of common law duties and statutory duties
which he claimed were owed to him by the defenders. The pursuer averred that the pavement was
extensively affected by ice and frost, and that it was the defenders' duty to
treat it by the application of grit or
sand and to do so within a reasonable period of such ice and frost
forming. Lord Clarke held that the
averments had not instructed a relevant common law case of negligence. Miss Beattie founded upon the following
passage (at p 611K) in particular:
"The search ... is for
averments showing fault which go beyond simply averring that the road or
pavement could have been cleared or treated prior to the accident. What one requires to do, in my judgement, is
to aver not simply what could have been done, or what might have been
reasonably practicable to do, but what should have been done in the exercise of
the duty of reasonable care and to set out specific averments in support
thereof. Such a case might, possibly, be
made, as counsel for the defenders suggested, by reference to the practice of
other roads authorities, as contrasted with that of the defenders, or to the
fact that there were special circumstances, known to the defenders, or which
ought to have been known to them, relating to the particular locus in question which required that it
should have been dealt with prior to the time of the accident. That latter type of case might arise where,
as in McGeouch, there have been a
number of particular complaints about the risk that the locus posed, which had
been communicated to the defenders and they have been ignored. There is nothing
of this sort averred by the pursuer to support his common law case. In particular he makes no averment that the
locus was, in any different position from the large number of shopping streets
which there must be throughout the Borders region."
[8] In reaching his decision, Lord Clarke founded
upon the reasoning of the Second Division in Gibson v Strathclyde Regional Council 1999 SLT 1243. In that case, Lord Murray had said at p 1247:
"To make purely formal averments that a possibility is reasonable and
practicable adds nothing, in my opinion, to the emptiness of the
assertion". Although Gibson concerned alleged breaches of
duties of inspection, Lord Clarke considered the foregoing dictum to be equally applicable to cases where the duties imposed
on the defender were not absolute and where only finite resources were
available to the defenders for carrying out their functions. Syme
was such a case, as indeed was the present case.
[9] Lord Clarke also made reference to the
following observations of Lord Prosser in Grant v. Lothian
Regional Council, supra, at page
534:
"It appears to me that an
authority such as the defenders must plainly have a discretion to decide upon
priorities, and that it is inevitable that those areas which are treated as of
low priority may remain untreated for at least a matter of days. I see nothing
negligent in the fact that the pavement at Canaan Lane
fell into such a low category, and was thus liable to remain untreated for such
a period. Moreover, the incidence of public holidays and weekends make it
inevitable that there will be some variation in the speed with which a
particular area is dealt with. It does not appear to me that it would be the
duty of the local authority to 'top up' their available force at weekends and
the like in order to maintain precisely the same availability of labour as
could be maintained on weekdays. In any event it does not appear to me that the
relevant section of pavement would have been dealt with before the accident
even with full weekday forces. In the absence of any fault in the general
system or the application of discretion within it, it appears to me that
counsel for the pursuer was indeed driven, in his search for fault, to the
argument that even the lowest priorities should be dealt with very promptly by
the engagement of sufficient forces to deal with them all at once. I do not
regard that argument as persuasive. I am not prepared to hold that unreasonable
on a local authority to delay low priority work until high priority work has
been done. I am not prepared to hold that there is any duty on a local
authority to eliminate such priorities and delays by attempting (if indeed it
were practicable) to have a vast force on call to deal with even the least
important area of roadway or footway. In my opinion the pursuer's case on fault
fails."
[10] Finally, Lord Clarke made reference to the
following comments of Lord Migdale in Gordon v. Inverness
Town Council, supra, at page
48, namely:
"Merely
to state that sand had not been spread...after 12 hours of frost is not enough to
point to a breach of duty. It may be
that there was some slackness or unreasonable delay in tackling the effects of
this frost but if that was so it must be expressly averred. It is not enough for the pursuer to say that
the delay could have been due to slackness.
She must say so and so focus the real issue in the case. The statement that the defenders could and
ought to have spread sand...before the accident does not assist her. Clearly the cart could have been sent [to the
locus]
first. The fact that it was not done
does not point to a breach of duty".
[11] The final case referred to by Miss Beattie
was Jackson v City of Edinburgh Council, Unreported, 4 November 2004. In that case, as in the present, the pursuer
had argued that it was the implementation of the defenders' policy which gave
rise to a breach of duty of care causing the pursuer to sustain a fall on ice. As in the present case, it was the delay in
treating the footway that was attacked as being negligent. However, Temporary Judge J Gordon Reid QC
upheld the defenders' submissions that no relevant averments had been made of
any breach of duty of care. In doing so,
he analysed the authorities, including Gordon,
Grant, Gibson and Syme. He concluded that the pursuer had failed to
meet the test of averring what should have been done in the exercise of
reasonable care and of setting out specific averments in support thereof.
[12] Miss Beattie also referred to Conway: Personal Injury Practice in the
Sheriff Court - 2nd Edition, paras. 18.14 and 18.16. I do not find it necessary to consider those
paragraphs in detail as they add nothing to the case law referred to above.
[13] Under
reference to the cases, Miss Beattie then submitted that where a roads
authority is empowered by Parliament with a discretion as to the use of winter
resources it is not enough for a pursuer to aver the occurrence of an accident
without averring clearly in what way the authority failed to take reasonable
care. No inference of fault can be drawn
from the mere occurrence of an accident.
Rather, it is incumbent upon a pursuer to set out with some precision
facts and circumstances from which breach of duty on the part of the defender
can be inferred. It is not sufficient to
aver what might have been done or what it might have been reasonably
practicable to do. Further, any
averment of duty must have a factual basis.
[14] Miss Beattie
next subjected the pursuer's averments to scrutiny and criticism in light of
these principles. She argued that it was
clear that it was not the defenders' policy which was under challenge, rather
it was the implementation of that policy.
While an attempt to challenge the implementation of a policy could be
appropriate in certain cases, such an attempt required very specific averments.
As had been observed in Syme, this
might be done by referring to the practice of other roads authorities or to
other special circumstances known to the defender or which ought to have been
known to them relating to the locus in question or to previous complaints. An example might be an averment in a
particular case that the defenders were aware that there was, for example, a
care home for older people affected by ice on the pavements outside. However, in the present case, there were no
clear or specific averments as to how the implementation had been
negligent. There were no averments of
any factual knowledge on the part of the
defender that the locus was affected
by ice. Although there was an averment
that a sufficient period of time had elapsed for the defender to take remedial
action, that averment was irrelevant as it was not supported by any factual
material but appeared to be pure speculation.
[15] Miss Beattie
then criticised the averments of breach of duty in Article 4 of
Condescendence. The averment that the
defenders were under a duty to remove snow deposits prior to and including the
date of the accident was so unspecific as to be irrelevant, and could not be
justified by reference to the factual averments. The same could be said of the reference to
specific dates of that week. The averment
that snow should be removed within a "working week" was irrelevant in the absence
of any explanation of the significance of a working week and of any indication
as to whether this supposed duty was derived from the defenders' policy which
in any event was not incorporated into the pleadings, nor even produced. The averment that the defenders were under a
duty to ensure the footway would gain collateral benefit from any salting
treatment to the footways adjacent to the carriageway was irrelevant since the
defenders' only duty was one of reasonable care. There was insufficient explanation as to why
it was the defenders' duty to have gritted this particular footway prior to the
accident. There was no explanation as to
why the defenders' failure to salt or grit the footway prior to the accident
was so unreasonable as to fall outwith the scope of the defenders'
discretion. This was a matter which
related to the allocation of the defenders' finite resources and the
distribution of risks, and thus related to decisions involving policy matters. Finally, there was an absence of averment of
common practice or special, exceptional and obvious circumstances giving rise
to an inference of negligence.
[16] In conclusion, Miss Beattie submitted that
the pursuers had failed to meet the test laid down in the authorities. On the contrary, their averments appeared to
entail a duty to ensure that footways be kept free of snow and ice at all
times, whereas it was clear from the cases that no such duty existed. In the absence of relevant averments that the
defenders had failed to adhere to their own policy in some particular way the
pursuers' case was bound to fail.
The pursuers' submissions
[17] In response, Miss Smith submitted under
reference to Miller, that the
pursuer's case could not be said to be bound to fail and that a proof before answer
should be allowed. (She began her
submission by moving that a proof be allowed and the defenders' preliminary
plea repelled, but during the course of the debate she modified that position).
[18] Turning to the criticisms of her pleadings,
Miss Smith did not take issue with the principles to be applied. The pursuers did not dispute that the
Council had a discretion as to how they prioritised treatment of roads and
pavements. However, it was the
implementation of the Plan which was attacked as being negligent. Under reference to the last sentence in
Article 3, it was the pursuers' case that sufficient time had elapsed since the
first occurrence of snow and ice that the Plan ought to have been implemented in
relation to the locus. They had had
sufficient time to utilise their resources.
The pursuers accepted that they had to plead special factors, and had
done so. These factors were the weather
forecast and the fact that the first snow had become packed during frost. She submitted that the defenders could and
should have removed the snow by the time of the accident.
[19] Miss
Smith said that the defender's averments as to the content of the Plan were
accepted by the pursuer (although not dealt with in the pursuer's pleadings,
for which no explanation was given).
However, the defenders ought to have known that there would be a danger
to persons such as the pursuer were the footway not to be treated. She referred to the following dictum of Lord Migdale in Gordon, repeated at Syme p 602L:
"In considering a duty such as sanding frozen
streets, which is owed to every member of the community, the right in each
member is not to require that it be done to his or her street immediately, but
to have it done without unreasonable delay".
[20] Miss Smith submitted that the pursuers' case
was that there had been unreasonable delay here. The pursuers had pled a speciality of the
locus, namely, that the pavement was accorded high priority in the Plan but had
been allowed to remain in the state it was in for a considerable length of time
prior to the accident. The pursuers'
position was that the defenders had delayed unreasonably in implementing the
Plan and utilising their resources in relation to this locus, rather than that they had failed to treat roads and footways
in the priority set out in the Plan.
[21] Miss Smith also submitted that Gibson ought to be distinguished since
it involved a duty of inspection. In
that case the court had held as irrelevant averments of a duty to inspect daily,
but the pursuer was making no such case here.
The pursuers had pled special and obvious circumstances which led to an
inference that it had been necessary for the defenders to have treated the
locus prior to the accident.
[22] Miss Smith placed reliance upon McGeough v SRC 1985 SLT 321 (also
referred to by Lord Clarke in Syme),
where there had been a failure to treat an icy road, in respect of which
previous complaints had been made to the Council. The pursuer's case in McGeough was one of failure to implement a policy. It was held that the pursuer's averments were
sufficient to warrant enquiry.
Similarly, enquiry should be allowed here.
[23] During the course of her submission, Miss
Smith sought to amend her pleadings by introducing a reference to a leaflet
issued by the defenders, which she offered to lodge in process and which, she
asserted, made reference to the defender's obligation to clear snow deposits
within a working week. She submitted
that this would make clear the basis of the averment to that effect. I briefly perused the leaflet in question,
whereupon it appeared that it simply stated that normally the defenders would
clear footways during the week as opposed to the weekend, which did not seem to
me to support the averment in question.
In addition, the defender's agent had no prior notice of the
leaflet. I therefore refused the
pursuer's motion to amend.
Defenders' response to pursuers'
submission
[24] In response Miss Beattie submitted that McGeough should be distinguished on the
basis of the prior complaints. There
were no such averments in the present case.
It was simply an example of the sort of special circumstances envisaged
by Lord Clarke in Syme. As for Gibson,
Lord Clarke had seen no reason to distinguish it on the grounds that it was an
inspection case but had considered that the same principles applied.
Decision
[25] There is no dispute in this case as to the
principles derived from cases such as Syme
which fall to be applied in considering the relevancy of the pursuers'
pleadings. Stated briefly, these are
that a local authority exercises discretion as to the priority in which roads
and footways subject to ice and snow are treated. To found a relevant case, a pursuer must aver
more than simply that a road (or, as in this case, a footway: it was not in
dispute that the same principles apply to both) had not been treated prior to
his accident. It is not sufficient for a pursuer to aver merely that a footway could have been treated. No inference of negligence can be drawn from
such an averment. Generally, a pursuer
must either make averments about the practice of other local authorities or
aver special or exceptional circumstances, which typically may be knowledge of
prior complaints about the particular locus (of which McGeough is an example) justifying an averment that the footway in
question should have been
treated.
[26] An interesting point is thrown up by the
recent case of Morton v West Lothian
Council, namely, whether any deviation from a planned strategy such as the
Plan is per se negligent. On that point, Lord Glennie expressed the
view that it would not be sufficient for a pursuer to show that a roads
authority deviated from its own plan unless he could also show that treatment
of the particular locus in question
was not simply a requirement of the authority's own strategy but was
necessarily a requirement of the whole range of strategies that authorities
could reasonably adopt. However, in that
case the defenders had conceded that if it could be shown that their driver had
deviated from the route he had been instructed to take and if as a consequence
ice had formed on an untreated section of road, they would be liable. Lord Glennie considered that he was bound by
that concession. In the present case
there is no such concession and, since the pursuers' pleadings contain an
averment that the defenders failed to carry out salting and gritting operations
in accordance with the scheme of priorities contained in their own Plan, at
first blush the issue discussed by Lord Glennie arises for decision. However, the pursuers do not in fact aver
that the defenders deviated from the Plan in the sense of affording priority to
roads or footways which should not have been afforded priority, at the expense
of the locus; nor do they aver that
the terms of the Plan itself were such that footways required to be treated
within any particular time frame after the onset of snow or ice. They have no averments of any specific
failure to comply with any particular provision of the Plan. Rather, their position in essence is simply
that the Plan was being implemented too slowly. Accordingly, we do not even reach the issue
canvassed by Lord Glennie, and the issue in the present case is in reality no
different from that in cases such as Syme. Further, as I understand it, the pursuers do not argue that it would be
sufficient in this case simply to aver that the Plan was not followed without
averring anything more, but accept that they do require to make averments of
some special circumstance from which negligence can be inferred.
[27] Turning next to Jackson, it seems to me that the facts averred in it are very
similar to those in the present case.
There, as here, ice and snow had lain on the footway for a number of
days prior to the accident. There, as
here, the footway was accorded some degree of priority. There, as here, the pursuer averred that the
footway ought to have been treated.
Indeed, the pursuer in Jackson,
whose averments were considerably more detailed than those of the pursuers in
this case, averred that there were circumstances special to the locus which should have led the
defenders to the conclusion that it ought to be treated, namely, the fact that
it was on a hill. There are no such
averments in the present case, where the pursuers make no attempt to
distinguish the locus from other high
priority footways. On the face of it,
the pursuers in the present case make a weaker case than did the pursuer in Jackson.
[28] The pursuers do rely upon the forecast of
fresh snow for the day of the accident, coupled with the fall of snow on
preceding days, and aver that since the footway fell under the defenders'
highest priority for footway treatment in terms of the Plan the defenders were
under the necessity of taking action to treat the footway. They aver that it ought to have been treated
both on the day of the accident and during the course of the previous two
days. While that is, on the face of it,
an averment as to what should have been done, it seems to me that, read as a
whole, the pursuers' averments amount to no more than an assertion merely that
it was possible for the defenders to have treated the footway in question. They fail to address the issue as to why
this particular footway ought to have been treated in preference to other high
priority footways or indeed roads, or why it ought to have been treated sooner
than it was. Although it is averred that
snow had lain at the locus for several days, there are no averments from which
an inference of negligence can be drawn from that fact. It is not averred, for example, that all the
roads falling under the Plan had been treated and that the defenders ought
therefore to have been moving on to treat footways. No special circumstances are averred, such as
prior complaints about this particular footway, nor is it averred that this
particular footway posed a danger in a way that other high priority footways
did not. It is not averred whether any
other footways had been treated. No
comparison is made with the practice of other local authorities. The averment that "sufficient time" had
elapsed since the fall of snow for the defenders to have treated the footway is
simply another way of saying that the defenders could have treated it had they
utilised their resources in a particular way.
[29] It also seems to me that the pleadings in
this case give rise to a further problem for the pursuers, or at least a hurdle
for them to overcome in order to plead a relevant case. The pursuers aver that not only had snow
fallen on the days prior to the accident but that fresh snow fell on the day in
question and that, at least in part, it was the forecast of the fresh snow
which ought to have triggered the treatment of the footway by the defenders. However, to the extent that it was the
impending snow on the 31st which is pled as a special factor, clearly the
defenders would have also had to consider the impact of that snow on other
roads and footways, and it is unclear why, on the 31st, they ought
then to have treated the locus, not
having treated it before then. It is not suggested that Main Street, Ceres was
the only footway or even the only high priority footway which had not been
treated since snow first fell and that it was therefore the only footway which
would be rendered dangerous by the onset of fresh snow. The pursuers accept that the defenders had
limited resources. It seems to me that
if the pursuers are to rely on the forecast of fresh snow, they would have to
make clear averments as to why Main Street, Ceres ought to have been treated
between the time of that forecast and the time of the accident bearing in mind
that even if the defenders ought to have undertaken gritting operations on 31
January, on the face of it they would also have had to consider the impact of
the fresh snow on other roads and footways, which might well have had to be
treated before the locus. The pursuers' averments do not address this
issue. In the event, I consider that the
averments of the forecast as they stand do not advance the pursuers' position.
[30] Stated
shortly, in my view the pursuers' averments of fact fall a long way short of
providing the specification required in a case of this nature. However, bearing in mind the high test which
must be met before an action such as this can be dismissed at this stage, for
completeness I will consider the averments of duty in detail, lest any duty
averred is sufficient to merit enquiry.
The first such averment is that "where persistent frost persists after
twenty four hours, the defenders are under a duty to salt the particular
footway in (first) priority order, said footway normally accommodating a high
usage of pedestrians". The pursuers are
perhaps hampered by their failure to incorporate the Plan into their pleadings,
or to make any detailed reference whatsoever to it, but the fact is that they
plead no factual basis for this supposed duty, nor do they make any attempt to
differentiate this footway from other footways accommodating a high usage of
pedestrians. The next averment is that
the defenders "were under a duty to remove snow deposits from the footway at
the locus and they failed to remove the snow for several days prior to and
including the date of Mr Coltart's accident."
If that is intended to be expressed as an absolute duty, then it is
plainly irrelevant, the defenders' duty being one of reasonable care. If not intended to be expressed as an
absolute duty, then the pursuers require to aver why a failure to remove snow
for several days was negligent. This
they have failed to do. The next duty
averred is that the defenders were under a duty to "remove snow deposits from
the footway within the working week and the snow lay on the footway on
Wednesday (29th), Thursday (30th) and Friday (31st)
of that particular working week." Again,
there is no apparent factual basis for that averment. As indicated above, it appeared to be founded
upon what amounted to a misunderstanding of an information leaflet produced by
the defenders. Be that as it may, the
averment is in my view so baldly stated as to be irrelevant. The next duty averred is one to "ensure the
footway would gain collateral benefit from any salting treatment to the
footways adjacent to the carriageway".
As expressed, this duty is irrelevant since it is expressed as an
absolute duty.
[31] It follows from the foregoing analysis that
each and every one of the duties averred by the pursuer is either irrelevant per se, or is lacking in specification
to the point of being irrelevant.
[32] In the result, I have come to the view that
the pursuers have failed to plead a relevant case. In my view, it can be said that the action as
pled is bound to fail and accordingly the
test in Jamieson has been
satisfied. I have therefore sustained
the defender's first plea in law and dismissed the action. I have reserved all questions of expenses as
I was not addressed on that issue by the pursuers' agent.
