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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Murdoch v. The Moray Council [2005] ScotSC 21 (27 April 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/21.html Cite as: [2005] ScotSC 21

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Act: Mr Michael Stuart, advocate, instructed by Grigor & Young, Elgin

Alt: Mr Kirk Tudhope, solicitor, Ledingham Chalmers, Inverness

Elgin: 27 April 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 6 July 2004 subject to the deletion of his findings in fact 20 and 24 and subject also to the amendment of his findings in fact 21 and 22 as follows:

1. in finding in fact 21 delete the words "as late as" and substitute the word "on", insert the words "in places" after the words "would have formed" and delete the words "and overnight rainfall",
2. in finding in fact 22 delete the words "or prior to" and insert the words "in places" after the word "dangerous";

finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; certifies Mr J Gerard Kilian and Mr John R Edgar as skilled persons for the purposes of paragraph 1 of schedule 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 as amended; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuer and appellant craved the court to grant decree for payment to him by the defenders and respondents of the sum of £10,000 to compensate him for the loss, injury and damage said to have been sustained by him as a result of an accident on 5 January 2001. In the event the parties entered into a joint minute of admissions (no. 26 of process) in terms of which, inter alia, they agreed that, if the defenders were found liable to make reparation to the pursuer in respect of the accident, then they should pay him a total sum of £3,850 with interest as specified in the joint minute.

[2] The sole issue between the parties therefore came to be whether the defenders should be found liable to the pursuer for payment of this sum. At about 9.30 am on the day in question he was walking along the pavement on the south side of Duff Place, Elgin. At that time the pavement was covered by ice on top of which snow had fallen. As he walked along the pavement the pursuer held onto some railings in order to steady himself. Nevertheless he slipped on the icy surface, fell and as a result sustained injury. The defenders are a local authority and are responsible for the management and maintenance of roads, including pavements, in Moray under the Roads (Scotland) Act 1984 and the Local Government etc (Scotland) Act 1994. The pursuer initially maintained that the accident had been caused by negligence and breach of statutory duty on the part of the defenders. But he subsequently departed from his assertion that the defenders had been in breach of statutory duty and rested his claim upon his assertion that the defenders had been negligent at common law.

[3] After proof the sheriff by interlocutor dated 6 July 2004 granted decree of absolvitor in favour of the defenders. It is this interlocutor which is the subject of the present appeal.

[8] In response to the sheriff's interlocutor the pursuer lodged a note of appeal in terms of which he maintained, in short, that the sheriff had erred in fact and in law in finding that the weather on the night of 4 to 5 January 2001 had constituted a novus actus interveniens sufficient to sever any causal link between the defenders' negligence and the pursuer's accident. It was said that in light of the evidence the sheriff should have recognised that the defenders' negligence and the overnight weather had been co-operating causes of the accident with the result that the sheriff had been in error in granting decree of absolvitor in favour of the defenders.

[9] The defenders lodged a cross-appeal which contained ten separate grounds of appeal. But in essence these were all variations on the same theme, namely that the sheriff had erred in finding that the defenders had been negligent in the first place.

[10] At paragraph 5.1 of his note the sheriff wrote:

It follows in my opinion that this is one of those cases in which I am entitled to examine the whole of the evidence for myself and am not subject to the restrictions which might have applied if the sheriff's decision had turned in whole or in part on issues of credibility and reliability - see paragraph [5] of the judgement of the Second Division of the Court of Session in Taylor v George Smith and Others 2003 SCLR 926.

[11] I shall deal firstly with the defender's cross-appeal. The question here is whether the pursuer has proved on a balance of probabilities that the defenders in the exercise of their duty of reasonable care ought in all the circumstances to have treated the pavement at Duff Place on or before 4 January 2001. The law here is very helpfully set out in the judgement of Lord Clarke in Syme v Scottish Borders Council 2003 SLT 601 to which the defenders' solicitor referred me. In that case the pursuer sought damages from a roads authority for injuries sustained when he slipped and fell on a pavement on 3 December 1997. He averred that the pavement was extensively affected by snow and ice and pleaded, inter alia, that the defenders had been negligent. Following a discussion on the procedure roll, Lord Clarke dismissed the action. At paragraph 21 of his judgement he stated:

[12] The defenders' solicitor pointed out that in a case of this kind, just as there must be averments to instruct a relevant common law case of negligence, so too must there be evidence in support of such a case. He submitted in short that there had been insufficient relevant evidence led at the proof to allow the sheriff to make a finding of fault against the defenders. He submitted further that, even if it were to be said that there had been sufficient relevant evidence, the sheriff had failed to explain why he had not accepted the detailed evidence led on behalf of the defenders, and in particular that of the witness Mr Paul Barron, in support of their actions. Moreover, the sheriff had erred in finding the defenders to have been at fault when he had nowhere specified (1) what had been the duties incumbent upon them in relation to the treatment of the locus at Duff Place, (2) in what precise way they had failed to comply with these duties, and (3) when it was that they ought to have fulfilled these duties. In other words, so it was said, the sheriff had failed to identify what it was that the defenders ought to have done and when.

[13] I did not understand counsel for the pursuer to maintain that there had been any fault on the part of the defenders in the preparation of their winter maintenance plan. But he submitted that they had been negligent in their implementation of it. As he developed his submissions, it became clear that the pursuer's overriding complaint was that the defenders had failed to augment the resources available to them with the result that their delay in treatment of the pavement at Duff Place until after the pursuer's accident had been unreasonable. Specifically, counsel submitted that the defenders had been at fault (1) in not having made as much use as they could have done of their roads maintenance staff, (2) in not having called upon the assistance of their grounds maintenance staff, and (3) in not having hired labour, vehicles or plant from local contractors.

[14] When I first read the sheriff's judgement, it was far from clear to me precisely what treatment he supposed should have been applied by the defenders to the pavement at Duff Place. There were essentially two possibilities here. On the one hand they could have cleared the pavement of snow and ice altogether and then, depending upon the weather conditions, have applied some salt. Alternatively they might have applied salt and sand directly on to the snow and ice without first attempting to clear these away. The precise amount of salt and/or sand to be distributed would depend upon the weather conditions - see page 6 of the defenders' winter maintenance plan. Counsel for the pursuer did not go so far as to suggest that the defenders ought to have cleared the pavement at Duff Place of snow and ice altogether. He contented himself with submitting that they should have treated it by the application of salt and sand, but he did not suggest in what quantities these should have been distributed. Beyond saying that the period of twelve days before the pursuer's accident during which the pavement at Duff Place remained wholly untreated by the defenders was much too long, the sheriff did not say precisely when during that period the treatment ought to have been applied. But it became clear from what counsel for the pursuer said in support of the pursuer's appeal that his position was that the defenders ought to have treated the pavement on 4 January 2001. Having failed to do so they had, so it was said, been negligent and so had caused the pursuer's accident.

[15] In my opinion the submissions for the defenders on this branch of the case are to be preferred. It was a recurring theme in the evidence of the defenders' Area Engineer (West) in their roads maintenance section, Mr Paul Barron, that in the twelve days or so which culminated in the date of the pursuer's accident the defenders had been faced by a combination of severe weather conditions and a shortfall in available staff due to the Christmas/New Year holiday period which had resulted, in short, in there having been nothing that the defenders could reasonably have done to treat the pavement at Duff Place before the accident - see especially pages 3/10, 18, 19, 20, 24, 25, 26, 29, 30, 33, 44, 45, 46, 47, 49, 50, 51 and 53 of the notes of evidence. Given the sheriff's conclusion that none of the witnesses was lying or seeking to mislead the court, it seems to me that one would have to find compelling reasons elsewhere in the evidence to reject everything that Mr Barron had to say on this matter, and in my opinion there are no such compelling reasons to be found.

[16] In submitting that the defenders had failed to augment their resources as they should have done, counsel for the pursuer drew attention to the drivers' logs which form no. 6/2/4 of process. As I understood him, he sought to take from these that the drivers named in these logs had only worked the numbers of hours shown in them. But it is perfectly clear from an examination of the employees' timesheets which form no. 6/2/5 of process that the details in the drivers' logs only gave part of the picture, so to speak, and that in fact these drivers worked far longer hours than the logs alone would indicate. In the event the logs and the timesheets were only put very briefly to Mr Barron in examination-in-chief (see pages 3/19-22) and nothing was said by him at that stage to suggest that there had been a failure by the defenders to make adequate use of their employees in the roads maintenance section. Moreover, in cross-examination Mr Barron was not asked at all about these logs and timesheets.

[17] In submitting that the defenders had failed to make adequate use of their employees in their grounds maintenance section, counsel for the pursuer founded in particular on no. 6/2/8 of process, the first page of which is a record of the number of hours worked by employees from the grounds maintenance section on winter maintenance between 27 December 2000 and 11 January 2001. Counsel drew attention to the fact that no hours were recorded as having been worked between 31 December 2000 and 9 January 2001 inclusive. That may be correct, but I am at a loss to understand how the details on this single sheet of paper alone can be said to support the inference that over the Christmas/New Year holiday period the defenders did not make as much use of their grounds maintenance staff as they might reasonably have done in the circumstances. Mr Barron was only asked very briefly about no. 6/2/8 of process in examination-in-chief (see pages 3/5 and 9), and not at all in cross-examination, and nothing was suggested to him, let alone said by him, to vouch the assertion that there had been fault on the part of the defenders in this respect. The pursuer's expert witness, Mr John Edgar, was also asked at one point in cross-examination (see page 2/40) about no. 6/2/8 of process, and it was put to him: "As you can see from (no. 6/2/8 of process) there are a considerable number of additional men who were made available and also a considerable number of man-hours worked to augment the normal road staff who were on duty at that time". To this Mr Edgar responded: "There would appear to be but there is nothing to indicate what they were doing". The cross-examination then proceeded without further ado to other topics, so again it does not seem to me that this isolated piece of evidence can be said to support the submission made by counsel on this aspect of the matter.

[18] As for counsel's suggestion that the defenders ought to have engaged private contractors, it is true that paragraph 2.3.1 of the defenders' winter maintenance plan provided: "The Supervisors are authorised in the event of prolonged spells of severe weather to call for the assistance of other Council Departments who might have suitable labour, vehicles and plant available, or by hiring labour, vehicles and plant from local contractors". But in my opinion the evidence did not begin to justify the submission that there had been fault on the part of the defenders in not having augmented their resources by engaging private contractors in the circumstances. Mr Barron was not asked about this at all, and for this reason alone it seems to me that it will not do for counsel to suggest that there had been fault on the defenders' part in this respect. Even Mr Edgar was only asked once about this (at page 2/31) when he spoke of "an arrangement, particularly in the Midlothian area, where contractors were invited at the start of the winter period to provide details of what resources they could make available over the winter". He then explained that the first task of such contractors "was normally to clear away the entrance to side roads where snow had built up through the action of ploughing on main roads, creating a barrier along the edge of the main road. That would be the first task, then they would move into the minor road and spread, either clear snow and ice if that was possible, but certainly to grit the services". But again I cannot see how this isolated section of the evidence can be said to justify the drawing of an inference on the balance of probabilities that the defenders in the circumstances of this case were at fault in not having engaged private contractors.

[19] The only evidence to contradict that of Mr Barron came from Mr Edgar. He referred at pages 2/26-28 to his report, no. 5/6 of process, and specifically the final paragraph of section 5 and paragraph (ii) in section 6. In the former he stated: "Treatment of lower priority roads and footways may at times be unavoidably delayed when ongoing severe weather conditions necessitate repeated or continuous treatment on high priority roads. Councils do not have unlimited resources and personnel cannot work indefinitely without rest. However it is considered that such conditions did not apply, certainly after the New Year, and therefore the (defenders) should have been able to direct resources towards catching up on the ice and snow accumulations which had built up prior to New Year and which had remained afterwards due to the continuing sub-zero conditions, particularly when there was nothing in the weather forecasting to indicate an early thaw". And in paragraph 6(ii) Mr Edgar went on to state that "ice and snow conditions in Elgin streets, and in Duff Place in particular, were left untreated between 24 December 2000 and 5 January 2001, a period of 12 days, and that, even allowing for possible difficulties in balancing conditions and resources prior to 31 December 2000, the back log should have been cleared in the subsequent 5 days to 5 January 2001".

[20] No doubt, as the sheriff says, Mr Edgar was not lying or seeking to mislead the court, but it does seem to me that one ought to be cautious about preferring the evidence of an expert witness such as Mr Edgar to the no less credible evidence of Mr Barron who had had a ready familiarity, which Mr Edgar plainly did not have, with the conditions (both of weather and staffing resources) under which the defenders had had to operate at the material time. It was easy for Mr Edgar to assert after the event that the defenders "should have been able to direct resources towards catching up on the ice and snow accumulations which had built up prior to New Year" and that "the back log should have been cleared in the subsequent 5 days to 5 January 2001". But it seems to me that, if the pursuer wished these assertions to be preferred to the evidence of Mr Barron, then he would have had to been able to point to some cogent reasons in the evidence of Mr Edgar to support his assertions. It is true of course that he was giving evidence on the basis of his own experience of having worked for various local authorities. But otherwise he had nothing at all to say about the practice of other local authorities apart from the defenders except when, as already noted, he referred very briefly to Midlothian. In particular, he made no attempt to analyse in detail how another local authority might have coped with the exceptional conditions faced by the defenders during the period in question. Towards the end of his supplementary report (no. 5/10 of process) he asserted that the defenders "were not acting reasonably in leaving footways untreated for a period of 12 days, regardless of the circumstances". He referred to this particular passage only briefly in his evidence at page 2/29, but he did not then expand upon the reasons which were supposed to support this assertion.

[21] I am conscious that I have reached a different conclusion on this branch of the case from that of the sheriff. Plainly his conclusion is entitled to be given weight but, for the reasons indicated in paragraph [10] above, I am not bound by it in the circumstances of this particular case. In paragraph 6.2.3 of his note the sheriff quite rightly acknowledged that the defenders "were restricted to a certain extent by the exceptional duration of the adverse weather, availability of resources including manpower and equipment and the coincidence of the holiday period". He accepted too that the defenders "were entitled to determine prioritisation". But he then went on to say that a line had to be drawn somewhere and that "the period of twelve days over which Duff Place remained wholly untreated was much too long" and that "while failure to treat a suburban footpavement of low priority for two days may not be negligent, such failure for twelve days was clearly negligent". It might then have been expected that the sheriff would have explained clearly the reasons for these assertions given in particular the credible evidence of Mr Barron. Here it respectfully seems to me that the sheriff's conclusion falls down since in truth he does not state any reasons at all apart from the possible impact on elderly people of containment indoors (which was not canvassed in the course of the evidence) and the fact that it was open to the defenders " to apply a degree of common sense and flexibility in the operation of the plan, but they did not do so". I have to confess that I am not sure what this last comment means.

[22] Referring to the observations of Lord Clarke in Syme, I have already drawn attention to the paucity in the present case of evidence of the practice of other local authorities in coping with conditions such as those that faced the defenders at the material time. It is true that they appear to have received numerous complaints from members of the public about the state of the roads and footpaths in general. But I doubt if there was anything remarkable about this, and there was no evidence to suggest (to borrow Lord Clarke's language) "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". As Lord Clarke's judgement made clear, it is essential in a case of this kind to set out clear and specific averments from which a breach by the defenders of their duty to take reasonable care may be inferred, and to lead evidence accordingly in support of these averments. In my opinion the evidence in this case does not establish on a balance of probabilities that the defenders were in breach of their duty of care and it follows that I must respectfully differ from the sheriff's conclusion that they had been negligent.

[23] In so doing, I have thought it right to accede to the defenders' solicitor's submission that the sheriff's finding in fact 20 should be deleted. This finding was the nearest the sheriff made to a finding of fault on the part of the defenders. But, to the extent that it did so, I do not think that it was supported by the evidence. The defenders' solicitor also challenged findings in fact 17 and 18 as being unsupported by the evidence. I do not think that I need to deal with this particular point since in any event it does not seem to me that these two findings advance the pursuer's case to any material extent in the context of this case.

[24] What I have said so far is sufficient to dispose of this appeal but, in deference to the careful submissions of counsel for the pursuer and the defenders' solicitor, I should deal with the pursuer's appeal. It was not in dispute that, on the assumption that it had been proved that the defenders had been at fault and that this would otherwise have made a material contribution to the pursuer's accident, the onus of proof lay on the defenders to demonstrate that the chain of causation had been broken by the weather conditions that had intervened between the occurrence of the defenders' fault and the pursuer's accident. But the difficulty for the defenders here, as their solicitor pointed out, was that it was not apparent from the sheriff's judgement what it was that they ought to have done in the exercise of their duty to take reasonable care, or more importantly when this should have been done. In this context it should be observed that the effect upon the condition of the pavement in Duff Place on 5 January 2001 of the intervening weather conditions would have differed significantly according to whether the defenders had treated the pavement on, for example, 27 December 2000 or on 4 January 2001. I use the word "treated" with some hesitation since here too the effect of the intervening weather conditions would have differed according to whether treatment had meant the removal altogether from the pavement of snow and ice followed by the application of salt, or simply the application of salt, and, if need be, also sand.

[25] As already indicated, in the event, and notwithstanding that there did not appear to be any basis for this in the sheriff's judgement, counsel for the pursuer presented his submissions on this branch of the case upon the hypothesis that what the defenders ought to have done was to have applied salt and sand to the pavement at some time during 4 January 2001. Counsel submitted that the sheriff had erred in law in that it did not appear from his judgement that he had considered the possibility that the novus actus interveniens which he had identified had merely been a co-operating cause of the pursuer's accident to which the fault of the defenders had also made a material contribution. He submitted that the proper question that the sheriff should have asked himself, having made a finding of negligence against the defenders, was whether it had been proved on a balance of probabilities that the consequences of the weather conditions overnight on 4/5 January 2001 had been such as to sever beyond a finding of de minimis the causal link between the defenders' negligence and the harm suffered by the pursuer. Counsel went on to examine the evidence and submitted in short that, if the defenders had salted and gritted the pavement in Duff Place on 4 January 2001, the beneficial effect of this would have lasted overnight into 5 January 2001 and the sand applied by the defenders would have provided slip resistance. Accordingly counsel proposed that I should add findings in fact to the effect that, had the pavement at Duff Place been treated with salt and sand no later than 4 January 2001, it was probable that this treatment would have rendered the pavement sufficiently safe to walk on, that in any event treatment applied to the pavement no later than this date would have materially reduced the risk of injury sustained by slipping on ice or snow lying on the pavement and that accordingly the defenders' failure to treat the pavement no later than 4 January 2001 caused or was a co-operating cause of the pursuer's accident on 5 January 2001.

[26] In response the defenders' solicitor submitted that, on the hypothesis (which he did not accept) that the defenders had been at fault in not having applied salt and sand to the pavement on 4 January 2001, there was sufficient evidence to entitle the sheriff to hold that the supervening weather conditions that night had operated as a novus actus interveniens and that the sheriff's decision on the facts that these weather conditions were the cause of the accident was one which he had been perfectly entitled to reach.

[27] In the course of his submissions counsel for the pursuer drew attention to the weather forecasts which were available to the defenders and which form no. 6/2/1 of process. He pointed out that in the forecast for the twenty-four hours from noon on 4 January 2001 the Readiness Colour had been AMBER indicating a low confidence of ice and/or snow hazards. This was to be contrasted to the Readiness Colour of RED (indicating a high confidence of ice and/or snow hazards) on the days immediately before and after 4 January 2001. He also founded on the fact that some of the questions asked by the defenders' solicitor at the proof had appeared to proceed upon the basis that the Readiness Colour on 4 January 2001 had been RED. It is true of course that these weather forecasts were, according to Mr Barron, "reasonably accurate" (see page 3/36). But what matters in this context is not what weather conditions were forecast but what weather conditions actually materialised. To ascertain this it is necessary to consider the reports of Mr Richard Tabony (nos. 5/4, 5/5 and 5/16 of process), the information in which was agreed in terms of the joint minute of admissions to be true and accurate. In addition account should be taken of the graphs from Brodie on the A96 road which form no. 6/2/2 of process and which appear from the evidence of Mr Barron at page 3/23 (see also page 3/35) to provide a record of various aspects of the weather conditions during the period in question. In this context it is also interesting to note the contents of the defenders' supervisors' reports which form no. 6/2/6 of process (referred to by Mr Barron at page 3/28). Taken together these various documents all seem to me to contradict the indication implicit in the AMBER warning in the forecast that the night of 4/5 January 2001 would be less cold than the other nights around that time. So, for example, according to the supervisors' reports it appears to have been colder both on 4 and 5 January 2001 than it was on either the previous or subsequent days. Moreover, it is interesting to notice that both in article 5 of the pursuer's condescendence and in the defenders' answer 5 it is said that on each night between 1 and 5 January 2001 the temperature at the locus dropped to about minus 2.5 degrees centigrade to minus 3.5 degrees centigrade.

[28] Mr Tabony's first report (no. 5/4 of process) was dated 10 September 2002. On the front of it he recorded that it had been prepared on the instructions of the pursuer's solicitors and that it provided "an expert opinion as to the most likely weather conditions prevailing in the vicinity of Elgin at 0930 GMT on 5 January 2001, with particular reference to ice". The report has various pages of climatological data drawn from Lossiemouth and Forres. Having considered the data, Mr Tabony concluded his report:

[29] Mr Tabony's second report (no. 5/5 of process) was dated 19 March 2003. For the purposes of this report Mr Tabony drew on data from three rainfall stations in the neighbourhood of Elgin in addition to the stations at Forres and Lossiemouth. At page 2 of his report he noted that the data from these last two stations "indicated that snow from a severe spell of weather in the last week of December 2000 had melted by 5th January 2001, and that ice on that morning had formed overnight". He explained that his new report took into account witness statements that snow and ice on the ground at Elgin on the morning of 5th January had persisted from the end of December and he examined the rainfall measurements from the three new stations "with a view to seeing if there was more precipitation in the vicinity of Elgin than at Forres". He concluded his report on page 3 where he stated:

[30] Mr Tabony's second report was accompanied by a letter, also dated 19 March 2003 (no. 5/16 of process) to the pursuer's solicitors. In this letter Mr Tabony reported that he could "state with a high level of confidence that there was a complete covering of snow and ice on untreated surfaces at Elgin on the morning of 5th January 2001". He also stated: " I can confidently say that the precipitation between 24th and 31st December fell as snow, and that from 1st to 5th January it fell as rain". And in the penultimate paragraph of his letter he commented: "From the above, it appears that, at the nearest gauge to Elgin (i.e. Kirkhill), there was no rain after 09 GMT on 4th January. However, we can state with a high level of confidence that there was rain before 09 GMT on 4th January at Elgin".

[31] Turning to the oral evidence on this aspect of the case, I note that one of the difficulties in following this is that questions were often asked about the effect of treatment of the pavement at Duff Place on certain dates without specifying which form of treatment was envisaged. Thus at page 3/26 Mr Barron was asked:

At pages 3/27-28 Mr Barron was asked:

(Here it will be recalled that, despite the AMBER forecast, it is clear from the evidence of Mr Tabony's reports that there was frost on the night before the pursuer's accident).

[32] At page 3/40 Mr Barron was asked by the sheriff:

In point of fact it is clear that there was no fresh snow on the night before the pursuer's accident although, as indicated, there was fresh ice.

[33] At page 1/22 the pursuer himself referred to the fact that the pavement at Duff Place had been treated (it appears by the application of salt and sand) on the afternoon of the day of his accident. He explained that he had gone out for a walk the next day and was asked:

[34] In this context it might have been helpful in the evidence to consider how the temperature on the night after the pursuer's accident compared with that on the night before. But this issue was not addressed when Mr Barron was asked about the evidence of the pursuer at page 3/43 as follows:

[35] At pages 3/46-47 Mr Barron expressed the hope that, if the defenders had not been at a reduced staffing level due to the Christmas and New Year period, Duff Place would probably have been treated by the 4 January. He was then asked by the sheriff:

[36] Finally, in re-examination Mr Barron was asked at page 3/52:

[37] The defenders' supervisor Mr Donald Bremner was asked only briefly about this issue at pages 3/56-57 as follows:

[38] At pages 2/30-31 Mr Edgar suggested that, apart from clearing the pavement at Duff Place of snow altogether, the other thing the defenders could and should have done was to have treated the pavement with salt or grit. He explained that this in itself would not have removed the snow and ice but would have given an abrasive texture to the surface which might have inhibited slipping. He was then asked:

[39] At pages 2/34-37 Mr Edgar was asked various questions about the effect of applying salt to the pavement. He explained in effect that, if salt had been applied to snow lying on the pavement, and then further snow had fallen on top, the salt which had been applied would have made it easier to remove the snow subsequently but "it would have been the top layers in any case which that salt hadn't penetrated, that would have become icy and hard-packed". He was asked (at page 2/35):

Mr Edgar was then referred to one of Mr Tabony's reports (which one is not clear) and he was asked (at page 2/35):

[40] At pages 2/36-37 the defenders' solicitor referred to Mr Tabony's report where he stated "ice affecting pavements on 5th January had formed overnight" and also that "on surfaces that had been treated on 4th January some new ice had formed overnight". The evidence continued:

[41] There was then some evidence to the effect that, the more traffic there is along a pavement such as the one at Duff Place, the more effective would be treatment in conditions of snow and ice by means of the application of salt or grit. Then at page 2/39 Mr Edgar was asked:

[42] At page 2/43 it was put to Mr Edgar:

[43] The pursuer's solicitor (Mr Brash) returned to the point in re-examination at pages 2/46-47. He asked Mr Edgar:

[44] In conclusion, Mr Edgar was asked some questions by the sheriff. At page 2/52 he was asked:

At pages 2/56-57 the sheriff asked Mr Edgar:

[45] The question here is whether, on the assumption that they were at fault in not having treated the pavement at Duff Place on 4 January 2001 by the application of salt and sand, the defenders have proved on a balance of probabilities that the effect of the weather conditions during the night of 4/5 January 2001 was such as to break the chain of causation between their fault and the occurrence of the pursuer's accident so that their fault was no longer an efficient cause of the accident. In other words, has it been proved that the overnight weather conditions were, to borrow the language of Lord Wright in The Oropesa 1943 P 32 at page 39, "a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic". I have deliberately set out the evidence at length since I think that it demonstrates that what Messrs Barron, Bremner and Edgar had to say on this question ebbed and flowed to such an extent that at the end of the day it is very difficult to be confident of the answer. When Mr Tabony stated in his second report that "On surfaces that had been treated on 4th January, some new ice had formed by 5th January", I suspect that what he had in mind by treatment in this context was the removal altogether of snow and ice from the pavement. But of course the pursuer's case here is based upon the hypothesis that the treatment should have consisted of the application of salt and sand. It seems to me that Mr Tabony's reports assist only to a limited degree towards a resolution of the question what would have been the effect of the overnight weather conditions upon treatment of this kind.

[46] The sheriff in paragraph 6.2.4 of his note drew attention to the weather conditions overnight and Mr Tabony's conclusion and then said: "In short, even if treatment had taken place, the footpavement at the accident locus would nevertheless have been slippery and therefore dangerous". I think that this is correct up to a point, but I am not persuaded on a balance of probabilities that it would have been as dangerous as it would have been if treatment in the form and at the time desiderated by the pursuer had not taken place at all. It seems to me that the evidence demonstrated that with such treatment there would have been some residual benefit from it to the extent that there would have been isolated patches of ice on the pavement but that the surface would not have been altogether covered in ice as it was in the absence of such treatment (with the result that the pursuer should have been able to negotiate his way along the pavement avoiding the slippery patches). Accordingly, while there would always have been a risk that he might have slipped and fallen, I think that it is going too far to say, as the sheriff did in his finding in fact 24, that "it is probable that if the footpavement had been treated on 4th January 2001, the pursuer would have slipped and fallen nevertheless". I have deleted this finding in fact accordingly.

[47] I have considered whether I should also delete findings in fact 21 and 22. On balance I have decided not to do so since they seem to me to be justified by the evidence subject to the amendments which I have incorporated in the foregoing interlocutor. But, for the reasons indicated, I am not persuaded that these findings by themselves would have been sufficient to break the chain of causation between the defenders' fault, as the pursuer would have it, and his accident.

[48] It was agreed that the expenses of the appeal should follow success. I was also moved on behalf of the pursuer to certify Mr Kilian and Mr Edgar as skilled witnesses. In point of fact, having had an opportunity to consider the relevant rules, I am not convinced that such certification is any longer necessary since paragraph 9 of schedule 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (S.I. 1992 No. 1878) was replaced by a new paragraph 1 to the schedule in terms of the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) (Amendment) 2002 (SSI 2002/280). But the motion was not opposed and I have therefore granted it, for what it is worth.

[49] In addition to the cases already cited, the defenders' solicitor referred me to Jackson v City of Edinburgh Council (Court of Session, 4 November 2004, unreported). Counsel for the pursuer also referred me to Bourhill v Young 1942 SC (HL) 78, Walker on Delict (2nd edn) pages 212/6 and 230, Leyland Shipping Co Limited v Norwich Union Fire Insurance Society Limited 1918 AC 350, Wardlaw v Bonnington Castings Limited 1956 SC (HL) 26, A/B Karlshamns Oljefabriker v Monarch Steamship Co Limited 1949 SC (HL) 1 (also 1947 SC 179) and S.S. "Barron Vernon" v S.S. "Metagama" 1928 SC (HL) 21.

[50] Counsel also submitted that I should sanction his employment for the purposes of the appeal. The issue is now academic in light of the defenders' success. Had I had to decide it, I think that I should probably have rejected counsel's submission. As the defenders' solicitor observed, the agreed value of the pursuer's claim was only £3,850, the case itself, involving as it did issues of winter maintenance, was of a kind that is not unusual in this court and despite his ample citation of authority nothing that was said by counsel on the question of novus actus interveniens was especially contentious.