19 January 2016
Pursuer suffers ankle injury on dark road.
The Pursuer lived in the village of Lochboisdale, South Uist. On 27 November 2011, he was returning home from work at around 2am, when he fell on the pavement and suffered a broken ankle. The Pursuer raised an action against the Defenders as the ‘local roads authority’ under the Roads (Scotland) Act 1984. The Pursuer claimed that the Defenders had failed in their duty to provide and maintain street lighting.
MacDonald v Comhairle Nan Eilean Siar [2015] CSOH 132.
Ultimately, this case turned upon questions of fact. The Pursuer alleged that the Defenders had changed the street lighting policy in Lochboisdale resulting in the street lights being switched off between midnight and 6.30am. The Pursuer claimed that this change had not been properly publicised and that the local community was not given an opportunity to be consulted. A number of witnesses who also lived and worked in Lochboisdale generally agreed that there had always been some street lighting in the middle of the night. However, there was some uncertainty as to how long, if at all, the street lights would go off for and also, how and when the policy change was implemented.
The Defenders submitted that a policy of turning off street lights between 1am and 7am had been in place since the local authority was formed in the mid-1970s. The policy change in 2011 simply altered the period, which became midnight to 6.30am. The Defenders led evidence from two engineers on the previously outdated street light mechanisms which could have meant the street lights were not always switched off as intended and which may explain why the local residents had previously seen street lighting in the small hours of the morning.
The Defenders further argued that there was no obligation on them to publicise policy changes but in any event, they had made reasonable efforts to consult the public. Two consultations had been held in late 2010 and early 2011 respectively, and thereafter, press statements were published by the local press, the BBC and on the Defenders’ website. Furthermore, the changed street light policy would have been in force since the beginning of November, therfore the Pursuer ought to have realised there was no longer street lighting at the point he finished work.
Whilst accepting the Pursuer had suffered an accident as averred, Lord Matthews generally accepted the Defenders’ evidence regarding the street light policies. He took the view that the lights would have been off by 1.15am since the policy change came into force at the start of November 2011. Lord Matthews therefore held that the policy change altering the times of the street lights could not have caused the Pursuer’s accident and the Defenders were assoilzied.
The Defenders had also raised a number of points in relation to the duties incumbent on local authorities. In particular, they relied on the cases of Hamilton v Dumfries and Galloway Council (No 2), 2009 SC 277, and MacDonald v Aberdeenshire Council, 2014 SC 114 to argue that the 1984 Act enabled local authorities to provide street lighting but did not create a statutory duty requiring them to do so. They argued that the case of Keogh v City of Edinburgh Council, 1926 SC 814 made clear that no common law duty of care existed in respect of street lights either.
In his obiter comments, Lord Matthews accepted that there was no common law duty to provide lighting. Drawing on the MacDonald case, Lord Matthews stated that liability goes beyond the foreseeability of injury and requires a degree of proximity between the parties. For example, the situation may be different where a local authority becomes actively involved with a particular area by undertaking road works or by some other action.
Noting Lord Drummond Young’s comment in the MacDonald case that there was no obligation on local authorities to protect drivers from anything obvious, Lord Matthews stated that darkness could not be anything other than obvious. However, he did take the view that it could be possible to make a case for common law liability on the part of a local authority where it could be proven that a Pursuer came to rely upon street lights and the lights were negligently switched off by the local authority without taking reasonable care to ensure those relying upon the lights were aware of any changes.
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Rhona McKerracher |