SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF

 

UNDER THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976

 

 

 

DETERMINATION

by

PATRICK PROTHEROE DAVIES, Sheriff of Grampian, Highland and Islands at Banff

In

FATAL ACCIDENT INQUIRY

into the deaths of

SUSAN McKENZIE ROBERTSON or MacLENNAN

and

CATRIONA ROBERTSON

 

 

 

 

 

BANFF, 4 July 2007

 

Having heard the evidence led, considered the affidavit lodged and both heard and considered the submission of the parties represented, I determine, in terms of Section 6(1)(a) and (b) of the Fatal Accidents and Sudden Death Inquiry (Scotland) Act 1976:

 

  1. That at about 1730 hours on 8th May 2006, Susan McKenzie Robertson or MacLennan, born on 19th June 1941 last residing at 125 Aird Avenue, Inverness, and Catriona Robertson, born on 31st December 1933, residing at 17 MacKay Road, Inverness were involved in a road accident on the A97 Banff to Aberchirder Road near to it's junction with the Pole of Itlaw to Mill of Brydock Road when the Volkswagen Golf motor car in which they were travelling was in a collision with a Ford Transit van;

 

  1. That Susan McKenzie Robertson or MacLennan was, at the time, a passenger in the front nearside seat of the motor car and Catriona Robertson was a passenger in the rear nearside seat of the motor car;

 

  1. That the vehicles collided when the Volkswagen Golf, being driven westwards on the Pole of Itlaw to Mill of Brydock Road, proceeded directly into the path of the Ford Transit that was then travelling northwards on the A97. The driver of the Ford Transit had no opportunity whatsoever to avoid the collision;

 

  1. That Catriona Robertson died at the scene of the accident and instantaneously with the accident occurring. She died at about 1730 hours and was pronounced dead at about 1800 hours on 8th May 2006;

 

  1. That Susan McKenzie Robertson or MacLennan died at the scene of the accident between about 1730 and 1800 hours. She was pronounced dead at about 1800 hours on 8th May 2006;

 

  1. That the death of Catriona Robertson resulted from a fatal neck injury sustained as a result of the accident;

 

  1. That Susan McKenzie Robertson or MacLennan sustained chest injuries and significant abdominal and pelvic injuries as a result of the accident. The principal cause of her death were the chest injuries;

 

  1. That the driver of the Volkswagen Golf had lost her way. She was unfamiliar with the road upon which she was driving. The accident occurred because the driver of the Volkswagen Golf failed to realise, as she approached the A97, that she was approaching a road junction. She failed to give precedence, as she should have done, to vehicles on the A97;

 

  1. That the accident and resulting deaths might have been avoided had the driver of the Volkswagen Golf noted and taken due account of such road signs and markings as existed in the vicinity of the junction and/or of such other physical features as were suggestive of a junction;

 

  1. That the accident and resulting deaths might have been avoided had Aberdeenshire Council, as Roads Authority, taken the reasonable precaution of causing advanced signage to be erected on the Pole of Itlaw to Mill of Brydock Road to better alert drivers heading westwards to the presence of a junction with the A97;

 

  1. That the accident and resulting deaths might have been avoided had Aberdeenshire Council, as Roads Authority, taken the reasonable precaution of ensuring that the road markings at the junction of the Pole of Itlaw to Mill of Brydock Road were properly maintained and readily visible to the drivers of vehicles using that road;

 

  1. That at the time of the accident Aberdeenshire Council, as Roads Authority, failed to have in place within the Banff and Buchan Area an up to date, reliable, robust and effective system for the inspection and repair of road markings;

 

 

 

 

 

Note

 

I was assisted in relation to this Inquiry by the clear manner in which the Procurator Fiscal Depute advanced the evidence led for the Crown and, in turn, by the manner in which Mr Edwards, for Aberdeenshire Council, advanced the Council's case. My task was also eased by the fortitude shown by those most closely involved in this matter in the giving of their evidence. All those whose lives have been touched by the tragic events about which I heard, have my sympathy.

 

The evidence

 

Eight witnesses were called to this Inquiry on behalf of the Crown. I heard from the driver of the car in which Mrs MacLennan and Mrs Robertson died, from the driver of the Ford Transit involved in the collision and from two other eye witnesses to the accident. Evidence was led from a paramedic and a police officer both of whom attended at the scene fairly soon after the accident and from a police officer who prepared and spoke to the Police Collision Investigation Report. I had no concerns with regard to the credibility of any of these witnesses nor in relation to the reliability of the evidence that they gave. They impressed as open and frank when giving their evidence.

 

One of the Crown witnesses requires particular note. I was particularly impressed and assisted by the evidence of Police Constable Michael Munro who was involved in carrying out the Collision Investigation Report. I had confidence in the views that he expressed.

 

Three witnesses were led for Aberdeenshire Council. First of the three was Mr Cameron, a Network Manager in the Council's Transportation and Infrastructure Department who was responsible for maintaining the road network in the Banff and Buchan Area. Next came Mr Duff, a Principal Engineer employed within the same Department and working in the Road Accident Investigation Unit. Lastly, the Council called Mr Burns, a Principal Network Engineer employed in the Banff and Buchan Area and answerable to Mr Cameron.

 

As with the Crown witnesses, Mr Duff impressed as credible and reliable as also open and honest in the evidence that he gave. He spoke to the fact that the junction at which this accident had taken place was not a known "black spot". He had visited the junction along with a police sergeant on 10th May 2006. He spoke to what he had then seen and to sundry photographs that he had taken at that time. He spoke the regulations that governed the placing of road signs and to his discussions with the police that had led to the erection of an "advance sign" some distance before this junction. He explained his view as to why an additional sign could not be placed close to the junction. He explained that, following his discussions with the police, he had spoken to Mr Burns and arranged for the road markings at the junction to be re-laid. I derived some assistance from this evidence.

 

Contrasted with my impression of the Crown witnesses and Mr Duff, I did not find either Mr Cameron or Mr Brown to be "open" witnesses.

 

While I have no doubts as to the honesty of the views ultimately expressed, I found the manner in which Mr Cameron gave his evidence to be less than satisfactory. He was, I thought, defensive in his approach and slow to concede anything that he thought might reflect less than perfectly upon either himself of his employers. In particular, he seemed to attach less significance than appeared appropriate to the presence of proper road markings at the junction at which this accident occurred and did not appear to be overtly concerned by the fact that, viewed from one direction at least, it appeared that more than 50% of the road markings at this junction had been scrubbed away. He had not himself attended the scene of this accident albeit he was familiar with the junction. He "fielded" questions with regard to the signage existing at the time of the accident, as to where additional signage might be placed and so on. He pointed to the sundry "clues" that should, over and above the existing road sign and notwithstanding the state of the road markings, have alerted a driver on the Pole of Itlaw to Mill of Brydock Road to the approach of the junction. He attached particular importance to the road sign, saying that at this junction it was more important as a warning than road markings would be. He attributed this to the fact that markings can get covered by snow. Notwithstanding his evidence that the regulations allowed markings without a sign but not a sign without road markings, he maintained that a lack of road markings would not be confusing. He said that the markings on this side road would be inspected six monthly - the more major road (but not the junction markings) getting monthly inspections. With a certain reluctance, in response to questions which I put to him, he conceded that road markings did "help" and that, the clearer the markings, the more they helped! At the end of the day, I got his full evidence - but he could have been more open in the manner in of its giving!

 

Likewise, I did not find the manner in which Mr Burns gave his evidence to be satisfactory. Like his "senior", he was defensive and guarded in what he said. He demonstrated the same qualities as I had detected in the evidence of Mr Cameron. Mr Burns impressed, however, as an even more reluctant witness.

 

Mr Burns was able to give much more detailed evidence than Mr Cameron was able to do. He was able to tell me something of the "history" of the junction in terms of road improvements and so on. In particular, he was able to tell me - making reference to certain productions lodged by the Council - something of the inspection regime that prevailed. Notwithstanding the terms of the "Safety Inspection - Carriageways" document that both he and Mr Cameron spoke to, he told me that this minor road was inspected on a monthly basis and had been so inspected for at least the last two years. The document had been prepared in 1996 and, while still "current", did not reflect current practice. He saw no problem in this. While he could speak to such inspections, he was unable to say when the markings had last been re-lined. Given the wear at this particular junction the lines would, he suggested, have been re-lined every 18 to 24 months. The last inspection of this junction had he said, been on 20th April 2006 - at which time it had been recorded as being in satisfactory condition. I initially noted him to say that it would not have been in a satisfactory condition at that time but, when I later brought him back to this point, he said that he was unable to express a view in relation to the matter. Notwithstanding his long experience as a roads engineer, the state of the markings at the time of the accident, the timescale upon which they were normally replaced and so on, he simply could not hazard a view! This was perhaps the "low point" in the giving of his evidence. At the tail end of his evidence, he did go so far as to say that at the time of the last inspection it was "unlikely that the markings were wholly satisfactory".

 

I then heard what I found to be an incredible account of the operation of the "inspections regime". It was explained to me that the fact that the junction - the whole stretch of road of which it formed part - was recorded as being in satisfactory order, did not mean that it was in such order! The system was such that, once a time-limited "Works Order" for necessary work was signed, then - in knowledge of that fact - defects which should be repaired by virtue of that order would not be noted. They would only start to be noted again if, in the event, they were not repaired within the time limit placed on the order. So, as Mr Burns conceded quite readily, the inspection reports could be falsely completed and that was clearly not a problem. On this occasion, an "Open Works Order" had been signed some time in early April instructing inter alia the re-lining of such markings within the Area as required to be re-marked. An appendix would have been added to this order specifying those junctions where work was known to be required. But no copy of this order was produced and Mr Burns was unable to tell me whether or not the junction at which this accident occurred appeared on the appendix. So, all that I could be certain of was that there was a junction in clear need of repair which was recorded as being in a satisfactory condition, which was not in such a condition but which - had this accident not led to its earlier repair - may well have been "fixed" within a matter of weeks! Had it not been repaired within the scope of the Open Works Order then, I was told, the Inspector would have again started to record it as needing repair.

 

I asked Mr Burns who inspected the Inspectors. While there was passing reference to "performance indicators", Mr Burns said that no one followed up the work of the Inspectors. Were an Inspector not doing his work properly then, I was told, that would lead to complaints from the public and the problem would be" picked up."

 

Mr Burns also gave evidence with regard to the regulations governing road markings, to the positioning of the pre-existing road sign and so on. All the witnesses who spoke to the matter were agreed as to the fact that, by reason of the bell mouth at this junction, the existing road sign was further to the left was the norm. Mr Burns, however, was alone in not accepting that the sign was "offset". I took it from his evidence that the case for an "advance" sign on the approach to this junction was perhaps heightened by the fact that heavy good vehicles emerging from the Mill close to the junction could obstruct a driver's vision of the junction sign. He spoke to the installation of an advance sign in June 2006. Asked if the junction was any more confusing than other junctions, Mr Burns said that it was not.

 

Throughout their evidence, more so in the case of Mr Burns than Mr Cameron, I detected an attitude to their responsibilities that impressed me as falling not far short of complacency.

 

I turn now to my findings.

 

Findings 1 - 7

 

My first seven findings do not, in my view, require explanation. They constitute a formal determination and proceed upon matters of undisputed fact. But I will offer some explanation with regard to my remaining findings - my findings with regard to the reasonable precautions by which this fatal accident might have been avoided.

 

Finding 8

 

I had no difficulty in making my eighth finding. As touched upon above, the driver of the Volkswagen Golf involved in this tragic accident, Mrs MacDonald, gave evidence. She had no recollection of the accident. It was, however, established to my satisfaction that the vehicle which she was driving proceeded out of the Pole of Itlaw to Mill of Brydock Road on to the A97 at, possibly, about thirty miles an hour - as if no junction was present. It was the view of PC Munro that the "Give Way" sign positioned in advance of the junction was so placed, perhaps for good reason, as to be markedly less conspicuous than would generally be the case. I heard evidence from inter alia both police officers to the effect that the road markings at the junction had been "scrubbed", almost certainly by the movement of heavy vehicles from adjacent commercial premises. These witnesses suggested, and I accepted, that these markings were in very poor condition. They lacked the quality of effective road markings, markings sufficient to alert approaching motorists to the presence of a junction. The quality of the signage and markings was a matter of clear concern to the police who investigated the cause of this accident. Given these circumstances, I have felt able to infer that the driver of the Volkswagen Golf simply failed to realise that she was approaching this junction and thus failed to slow down or to stop as necessary.

 

Finding 9

 

I heard evidence to the effect that, setting aside the adequacy of the "Give Way" sign and the road markings so far as present, there were, nonetheless, "clues" to alert motorists approaching this junction on the Pole of Itlaw to Mill of Brydock road to the presence of a junction. There were, for example, other road signs facing westwards, which were indicative of a road junction. I accepted this evidence. But, notwithstanding the presence of such clues, there is a clear and reasonable expectation that adequate signs and markings will be in place. This expectation was quite apparent from the evidence of the police witnesses who were openly critical of what they found at this road junction. Notwithstanding the criticism of the signage and road markings at this difficult junction, however, one has to accept that there was some signage and there were some clues that should have alerted a driver on the Pole of Itlaw to Mill of Brydock road to the presence of a junction - or, at least, to some form of road hazard - ahead. It is on that basis that I have made my Ninth finding.

 

Finding 10

 

In relation to my Tenth Finding, I have been satisfied on the whole evidence that the "Give Way" sign as erected at this road junction could not have been better positioned. Mr Duff, in particular, explained this well. Further, I am satisfied that no obvious case has been made out for the erection (as was suggested) of a second "Give Way" sign close to - and to the right of - the junction.

 

With regard to the erection of an "advance sign", I acknowledge that views may differ as to whether or not the Local Authority should have erected an advance sign some distance from this junction. I cannot conclude on the information before me that they were under any obligation to do so. Common sense suggests, however, that the erection of such a sign was well advised given the nature of the junction which requires "protection". So, to have erected such a sign would have been a reasonable precaution to take. And common sense dictates that, had such a sign been erected before this accident, then - on the balance of probabilities - the accident may never have taken place. It is broadly on that basis that I have made my Tenth Finding.

 

It was good to hear evidence to the effect that, after discussions with the police and on the suggestion of the police, Aberdeenshire Council have now erected an appropriate advance warning sign.

 

Finding 11

 

With regard to my Eleventh Finding, it is quite clear on the evidence that the road markings at the entrance to the Pole of Itlaw to Mill of Brydock road were, from the standpoint of any driver on that road approaching the A97, virtually useless. In so far as there were markings still extant, they were to the left of the road - across the bell mouth - and gave no advance notice of the junction. If the markings that were present served a purpose, it was to enable a driver who was conscious of the junction to ascertain the exact verge line of the A97. So, from the standpoint of avoiding an accident such as that which occurred, the markings contributed nothing on this occasion. Given the evidence that I heard to the effect that junctions will qualify for road markings even when not necessarily qualifying for the erection of a "Give Way" sign - that such markings are the first "line of defence" in forewarning motorists of the presence of a junction - the lack of effective road markings took on, I thought, a particular significance. To maintain effective markings could be regarded as a necessary, not just a reasonable, precaution. I have had no difficulty in concluding that this accident and these deaths might have been avoided had effective road markings been in place.

 

Again, I was pleased to hear evidence to the effective that, within days of this accident, the road markings at this junction were re-laid. But this work came too late.

 

As touched upon above, I was told by Mr Cameron about the Local Authority's practice with regard to the routine inspection of inter alia road markings. One fact that emerged was that, where a more major road might be inspected monthly, the minor roads opening on to it might be inspected at lesser intervals. Common sense possibly dictates such an approach. But, what also emerged was that the road markings at such junctions were inspected as part of the more minor road, i.e. potentially less frequently than were they treated as pertaining to the more major road. Given the fact that these marking impact equally upon the safety of motorists on both the more major and the minor road, as the present case so tragically illustrates, this evidence surprised me. It caused me to question the Road Authority's policy with regard to the conducting of such inspections. It is a point to which they may have regard when conducting their current review of their inspection policy.

 

Finding 12

 

I make this finding under Section 6(e) of the Fatal Accidents and Sudden Deaths Inquiry Act 1976. It is based primarily on the evidence that I heard from witness Mr Burns and, to a lesser extent, that of Mr Cameron.

 

I have recorded much of the evidence of both Mr Cameron and Mr Burns when addressing the quality of their evidence above. I do not rehearse that evidence. Suffice it to say that Mr Burns described a system for the inspection and maintenance of roadways that lacked, on any reasonable view the qualities of a reliable, robust and effective system. That is a matter which, to my mind, is a matter that is relevant to the circumstances of the deaths which have led to this inquiry. Clearly, the public are entitled to the protection which would be afforded by a reliable, robust and effective system.