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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Kingarth Lord Wheatley	[2008] CSIH 18 A304/01 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION in the cause KELLY ELIZABETH MORTON (A.P.) Pursuer and Reclaimer; against WEST LOTHIAN COUNCIL Defenders and Respondents: _______

Act: D. Batchelor Q.C, Primrose, Balfour + Manson LLP. (Pursuer and Reclaimer)

Alt: L. Murphy Q.C, McBrearty, Simpson & Marwick W.S. (Defenders and Respondents)

20 February 2008

The background circumstances

[1] At about 9 a.m. on Saturday 23 December 1995, the reclaimer was driving a Vauxhall Astra motor car in an easterly direction along the B9080 road from Linlithgow to Kirkliston. The road is a two-way road, carrying a single lane of traffic in each direction. She was travelling behind a bus. As the bus reached a junction, which may be referred to as the "Bridgend junction", between that road and an unclassified road leading to Bridgend, which may be referred to as the "Bridgend Road", the driver of the bus indicated his intention to turn right and moved into the filter lane which allowed traffic intending to turn right to wait in the middle of the two carriageways until it was safe to do so. The bus was unable to turn right immediately, due to the presence of an oncoming vehicle. As the bus moved into the filter lane, the reclaimer passed it on its nearside. As she did so, her car skidded on a patch of black ice, as a result of which she lost control of it. Her car skidded broadside across the road and into the path of a Rover 800 vehicle coming in the other direction. The Rover struck the passenger door of the reclaimer's car. As a result of the collision, the passenger in the reclaimer's car was killed and she herself sustained serious head injuries. In the present action, the reclaimer seeks damages in respect of those injuries. It should be recorded that the circumstances of the accident, just narrated, are the subject of admission on record. Further, a Joint Minute has been lodged in process, in which, first, quantum of damages has been agreed, in the event of the respondents being found liable; and secondly, it is agreed that, in consequence of the head injuries sustained by her, the reclaimer has no memory of the circumstances of the accident. No issue is raised in the pleadings concerning any fault on the part of the reclaimer, or on the part of the driver of the Rover 800 vehicle.

[2] At the time of the accident, the former Lothian Regional Council, as roads authority for the relevant area in terms of the Roads (Scotland) Act 1984, were responsible for the management and maintenance of the B9080 road. In terms of the Local Government (Scotland) Act 1994, the respondents have now succeeded to the rights and liabilities of Lothian Regional Council, in respect of their management and maintenance of roads in West Lothian, including the B9080 road. In this action, the reclaimer contends that the accident was caused by the fault and negligence of Lothian Regional Council, for whose acts and omissions the respondents are now liable. Since there is no dispute that the respondents are indeed liable for the acts and omissions of Lothian Regional Council in the area of responsibility concerned, it is convenient to refer to the respondents and to their predecessors, Lothian Regional Council, as "the Council".

[3] The reclaimer contends, in Condescendence 3, that the Council were under several duties: to take reasonable care for the safety of those, such as the reclaimer, using the roads for which they were responsible in terms of the 1984 Act; to take reasonable care to have regard to the prevailing weather conditions within the area and to salt the road as necessary; to take reasonable care to ensure that the system of salting they operated provided for the salting of all areas of carriageway on the primary routes such as the B9080 road; to take reasonable care to ensure that the routes adopted by their gritting lorries were such that all areas of carriageway on primary routes, such as that road, were salted; to take reasonable care to ensure that no areas of carriageway were missed by the gritting lorries as a result of the route taken by them; and to take reasonable care to ensure that the area of the eastbound carriageway of the B9080 road opposite the Bridgend junction was salted. The reclaimer contends that the Council failed in such duties and thus caused the accident. Seperatim, in Condescendence 4 the reclaimer avers that the accident was caused by the fault and negligence of the gritting crews who had undertaken the gritting at the material time, for whose acts and omissions the Council were vicariously liable. She avers that they were under the following duties: to take reasonable care to ensure that all areas of the B9080 carriageway were salted: to take reasonable care not to miss out any areas of carriageway from their route when gritting the road; to take reasonable care to ensure that they adopted a route that allowed all areas of the carriageway to be salted; and to take reasonable care to salt areas of the carriageway such as the area of the eastbound carriageway opposite the Bridgend junction, to ensure that all such areas received a coating of salt.

[4] By way of explanation of the background to the form of certain of the averments of duty which we have quoted it should be noted that the reclaimer averred that, when the gritting lorries approached the locus of the accident from the direction of Linlithgow, lying to the west of the locus, they turned up the westernmost arm of the Y junction with the road to Bridgend, thereby leaving the traffic island at the junction to the nearside of the vehicles. The gritting crews proceeded to Bridgend, turned round and proceeded back down the unclassified road to the junction with the B9080 road. When they reached the junction they proceeded to exit back onto the B9080 road by means of the easternmost arm of the Y junction, again leaving the traffic island on the nearside of the gritting lorry. When the gritting lorries approached the locus from the east, the reclaimer believes and avers that they turned left up the unclassified road to Bridgend, or passed by the locus on the westbound carriageway. Due to the route adopted by the gritting lorries, the area of eastbound carriageway opposite the north side of the traffic island and beyond the filter lane was outwith the reach of the spreading device on the lorries and was not treated with salt. Ice was accordingly liable to build up on the surface of the carriageway in that area creating a hazard to motorists such as the reclaimer. The route adopted around the traffic island did not allow grit to reach the area of the eastbound carriageway opposite the north side of the traffic island.

[5] It should also be recorded that the Council aver that the B9080 road formed part of a prescribed gritting route, known as L3, for vehicles on salting duties. That route had been salted by gritting crews employed by the Council between 5.23 pm and 6.30 pm on 22 December 1995, between 11.15 pm on 22 December 1995 and 1.30 am on 23 December 1995, and between 5.40 am and 7.00 am on 23 December 1995. They also aver that on each occasion, the L3 route, including the locus of the accident had been adequately salted on both lanes of the carriageway. The L3 route was a circular route. The road between the B9080 road and Bridgend did not form part of the L3 route. Accordingly, the whole of the L3 route had been salted, including the carriageway opposite the traffic island at the junction to Bridgend. At points on the route where the carriageway consisted of two lanes, the gritter was set so as to spread a sufficient quantity of salt over both lanes. On each occasion that route was salted, the gritter was driven in the opposite direction to the direction in which it had last been driven, thereby ensuring an even spread of salt. On approaching the filter lane in the middle of the carriageway, to be used by traffic intending to turn right towards Bridgend, the drivers of the gritting lorries altered the gritters' settings so that a wider area with a greater amount of salt was covered. That change in setting allowed the entire carriageway at that junction to be salted.

[6] It is also of importance to note that the reclaimer avers at the end of Condescendence 2 that, had the L3 route been adequately salted on both lanes of the carriageway by the Council in the manner that they averred and, in particular, salted between 5.40 am and 7.00 am on 23 December 1995, black ice would not have formed at the locus by the time of the accident. In these circumstances, it is averred that the employees of the Council did not take reasonable care to see that all areas of the B9080 road and, in particular, the locus of the accident were adequately treated with salt so as to prevent the formation of black ice by the time of the said accident.

[7] The reclaimer also avers that the Council had obtained a 24 hour weather forecast for the relevant area at midday on 22 December 1995. That forecast covered the period from mid-day on that date to mid-day on 23 December 1995. The forecast was updated by later bulletins at 3.55 pm and 9.00 pm. The initial forecast was that rain would turn to sleet overnight with snow above five hundred feet. The minimum road temperature was forecast to be 0 degrees centigrade. The road temperature was identified as a hazard to traffic. The update obtained at 3.55 pm suggested a slight deterioration compared with the previous weather forecast, with snow expected at lower levels and earlier than previously forecast. The updated forecast at 9.00 pm suggested further deterioration predicting slight snow at all levels by morning and icy stretches on roads. The minimum expected temperature was reduced to -1 degree centigrade. The Code of Practice "Winter Maintenance for Trunk Roads", published by the Scottish Office in 1993 and in accordance with which the Council operated their gritting policy, stated that it was good practice to grit when the temperature fell to 1 degree above freezing. Accordingly, having regard to that code and the meteorological information in their possession, the council knew or ought to have known that it would be necessary to treat the roads within the relevant area with salt.

[8] It is a matter of admission by the Council that they were in possession of the 24 hour weather forecast for the relevant area issued at midday on the 22 December 1995. They aver that the system for the salting of roads in operation at the material time was in accordance with the Code of Practice referred to. In consequence of the information received as regards meteorological conditions, the Council aver that it had been decided that the roads in the West Lothian area, including the B9080 at the locus of the accident, were to be treated with salt through the night of 22 to 23 December 1995. The L3 route was a priority to be salted, second only to the M9 motorway. That route was indeed salted at the times referred to.

The decision of the Lord Ordinary
[9] Having heard the evidence in the case in a lengthy proof, the Lord Ordinary in paragraphs [5] to [13] of his Opinion gives an account of the Council's winter maintenance policy operated in 1995. In paragraph [13] he also deals with the meteorological situation on 22 December 1995 concluding that, in the light of the forecasts received by the Council, it was clear that, among others, the L3 route was likely to be affected by sleet or snow and to be subject to freezing temperatures. He then proceeded to consider the evidence which he had heard relating to the records kept by the Council of winter road maintenance for the night of 22 to 23 December 1995, which appears in paragraphs [14] to [16] of his Opinion. He narrates the decisions taken by the Council as regards gritting at that time and narrates the relevant entries in the gritting logs, which he was satisfied provided, in general, an accurate summary of the gritting runs carried out. These demonstrated three runs on the L3 route, the first between 1723 and 1830 hours on 22 December, the second between 2315 hours on 22 December and 0130 on 23 December, and the third between 0540 and 0700 hours on 23 December 1995. In paragraph [16] of his Opinion the Lord Ordinary refers to other records which were the subject of evidence, but he did not regard them as undermining the essential reliability of the gritting logs, as the primary source of contemporaneous evidence.

[10] In paragraphs [17] to [22] of his Opinion, the Lord Ordinary seeks to define the issues which emerged at the proof. There was no dispute that, having regard to the information in the possession of the Council at the material time the Council knew that it would be necessary to treat the L3 route with salt. Their position was that they had done so. The reclaimer made no criticism of the decisions made as to the routes to be gritted, the instructions given as a result of such decisions, or the times when the gritting was shown to have been carried out. Indeed, the Lord Ordinary observes that she relied upon those decisions as showing what ought to have been done. Her case was that something had gone wrong in the execution of those instructions; the road had not been treated properly in accordance with the policy and instructions. The Lord Ordinary observes that, underlying the reclaimer's case was the assumption that, had gritting been carried out properly and in accordance with the policy adopted by the Council and the gritting instructions given pursuant thereto, black ice would not have been present on the road at the time of the accident. The fact that there was black ice there meant that the roads had not adequately been gritted. It is to be observed that that contention is reflected in the averments at the end of Condescendence 2.

[11] The Lord Ordinary informs us that the reclaimer's primary case on record sought to specify what had gone wrong. That case - and it was for a considerable period seen as her only case on record - was that the drivers of the gritting lorries had deviated from the L3 route at the Bridgend junction and, by so doing, had left untreated that part of the B9080 road where the accident occurred. He narrates that, in the course of the proof, objection was taken by the respondents to certain lines of evidence sought to be adduced by the reclaimer and it became clear that the case which the reclaimer wished to advance was not so limited. The reclaimer relied on the averments to which we have just referred. The reclaimer's contention came to be that the existence of black ice at the location at the time of the accident showed that the system operated by the Council had not properly been followed by its employees. That failure amounted to a failure by the Council's employees, for which the Council was liable, to take reasonable skill and care. It was explained specifically in that connection that the alternative case was an "inferential" one; it did not involve any criticism of the Council's policy. Nor did it involve any criticism of decision making at a management level; of instructions given by management to the Council's employees, or of management's supervision of the Council's employees. On the contrary, it was explained to the Lord Ordinary that the inference of fault arose from the fact that the Council's policy was a reasonable policy for the Council to adopt to deal with foreseeable winter weather conditions; and, further, that it was a policy which, if implemented by the Council's employees, would have been effective to prevent the formation of ice on the relevant roads.

[12] The Lord Ordinary's conclusion in relation to this issue which had arisen in the course of the proof was that it seemed to him that, while the Record did not entitle the reclaimer to lead evidence of specific failings, for which there was no fair notice, it did allow this inferential case to be so advanced. He so ruled.

[13] In paragraphs [20] to [22] the Lord Ordinary explains how matters developed at the proof thereafter. He states that the inferential case proceeded upon the assumption that, contrary to her primary case, the reclaimer could not show what had gone wrong. The argument for the reclaimer was developed along the lines that, in the weather conditions then prevailing, ice should not have formed. It could not have formed had there been adequate salt spread on the road. The mere fact, therefore, that the road was icy meant that there had been a failure of some kind. This, it had been submitted, was sufficient to put the onus on the Council to show how this failure could have occurred without their negligence. Since no explanation was either offered or proved by the Council, the reclaimer was entitled to succeed.

[14] The Lord Ordinary also explains that he had to rule upon the respondents' case on record. They had averred that the Council's gritting policy had been followed. The site of the accident had been salted, but after it had been salted between 5.40 am and 7.00 am on 23 December 1995, ice formed in isolated patches on the road. The respondents had claimed that they had taken all reasonable precautions in the circumstances in treating the roads in this way. However, at one point in the cross-examination of one of the reclaimer's witnesses, senior counsel for the respondents had asked questions about the mechanism by which salt on the road could be washed off by water landing on the road surface in the form of rain, sleet or snow. Objection had been taken to this questioning on the ground that there was no record for it. The Lord Ordinary understood that the objection had been taken mainly out of concern that senior counsel had been going to develop a case, based on a satellite meteorological photographic image, of some abnormal weather event which was not reflected in the agreed rainfall data, which had not been put to the reclaimer's previous witnesses, and which might require expert meteorological evidence. The Lord Ordinary concluded and ruled that the respondents' case on record in answer to the reclaimer's inferential case was sufficient to instruct a case that ice might form even after salt had been applied, because inter alia the beneficial effect of the salt spread on the road could be dissipated by the ordinary action of traffic, or rainfall, or a combination of the two. However, he concluded that the respondents' record gave no fair notice of a case based on a freak weather event, or abnormal meteorological occurrence; accordingly he ruled that the respondents were not entitled to develop a case along those lines, although it had to be recognised that the line between the normal and abnormal in this context might be hard to draw with precision. It was then upon this basis that the proof proceeded.

[15] It will be evident from what we have said so far that the Lord Ordinary's conclusions as regards the evidence of gritting at the material time are important. The evidence regarding these matters came from two witnesses, Andrew Green and Thomas Allen Brown. The former was the driver of the gritting lorry which treated the L3 route on the run beginning at 1723 hours on 22 December 1995. He explained that sometimes, in addition to gritting the L3 route, he would also grit the road to Bridgend, but only by coming back to do it after he had finished the L3 route. He was adamant that no part of the L3 route would be missed for that reason. Thomas Allen Brown treated the L3 route on the two occasions after Mr Green's round and before the accident. On the first occasion he treated the L2 and L3 routes in one run. He had been on the nightshift on the night of 22 December and the morning of 23 December 1995. He explained that, when approaching the Bridgend junction, the road widened, as a result of which it was necessary for him to operate the controls of the gritting lorry so as to ensure a wider spread with more salt. He went on to explain that, during the night in question, he had seen one of his colleagues, a Tony Foss, at a bus stop at around midnight or shortly thereafter. He had picked him up and continued on the L3 route past the point at which he had started gritting that route. He then continued on the B8090 until the Bridgend junction, when he turned left to drop off Mr Foss in Bridgend. It was this driver who conducted the gritting of the L3 route beginning at 5.40 am and ending at 7.00 am on 23 December. On this occasion he had gritted the L3 route in an anti-clockwise direction. It is important to note that this witness testified that it had started to rain about half an hour before he had started gritting the L3 route for the last time, in other words shortly after 5.00 am. The witness said the rain started as a fine drizzle, changing into normal rain. He said that the rain continued during the gritting of the route. He said that it was not until the route started turning back east, when on the outskirts of Queensferry, that he had realised how heavily it was raining. By the time he reached a junction near Duntarvie, the rain was so heavy that he could hardly see a thing. He described it as "torrential", "really, really heavy", during the course of the gritting. He could see the rain being swept along the road. In cross-examination he insisted that the rain was "bouncing"; it could have formed puddles if it had not been so hard. Despite this, he had carried on to complete the route. He explained that there was no issue concerning carrying on; once the task had been started, it was finished. In paragraph [25] of his Opinion the Lord Ordinary sets out his assessment of the evidence from the drivers of the gritting lorries. He said:

"I am satisfied that both were truthful witnesses endeavouring to assist the Court. However, there were moments in their evidence when it was clear that they were having difficulty in recalling the details of their actions leading up to the accident and even in recalling what system was operating in 1995. I did not find this surprising since it all happened so long ago. But it did make me cautious in accepting their evidence where it differed from the information contained in the contemporaneous documents."

[16] It will be evident from what has already been said that the explanation for the existence of ice on the road at the location of the accident is a crucial matter. As was appreciated by the Lord Ordinary, the condition of the road surface at the Bridgend junction at or around the time of the accident, in the event, was capable of casting light on that crucial question. Accordingly the Lord Ordinary considered its condition in some detail between paragraphs [36] and [39] of his Opinion. It is appropriate to summarise his conclusions in that regard. He records that he heard evidence from a number of witnesses who were at the locus on the morning of 23 December, either at the time of the accident, or immediately before or after it. These included a Mr and Mrs Brown who farmed at Bridgend Farm on the north side of the road, opposite the junction; Mr Farren, the driver of the bus involved; Mr Blanch and Ms Dunleavie, who had arrived on the scene in a motor car just after the accident; Mr Gray, who attended the scene with the fire service; Mr Christie who lived nearby and was out for his morning walk; Mrs Connor, who lived in Bridgend and was driving to a nearby Post Office; and two police officers, Police Sergeant Colin Barnes and Police Constable Alistair Bain. The Lord Ordinary's assessment of these witnesses was that they all gave their evidence carefully and honestly and he was satisfied that each was doing his or her best to assist the Court. However, he took into account the fact that the accident had happened some ten years before the proof and inevitably recollections might have been clouded by the passage of time. As regards the observations of the witnesses as to the approximate positions of the vehicles involved in the accident, there was virtual agreement between them all. So also there was when they spoke of slipping, or seeing others slipping on the road, or of skidding, or seeing others skidding, when braking. The Lord Ordinary considered their evidence on those matters as likely to be reliable. He considered that the evidence of one witness tended to complement that of the others and to build up a fairly clear picture. The Lord Ordinary explains that he was not able to accept uncritically observations to the effect that "the whole road" was "a sheet of ice", as distinct from there being large patches of ice covering a large part of the road surface. In paragraph [37] of his Opinion, the Lord Ordinary deals with the evidence of Police Constable Bain, which he found particularly valuable. That witness had testified that there was physical evidence that he observed that the road had been treated. He had noticed it particularly on the eastbound carriageway. He could see the grit and feel it and hear it crunching underfoot. He agreed that the road surface was very slippery due to ice, but according to his observation, the whole road was not a "sheet of ice"; there were extensive patches of ice on the road but other parts were not affected. He was sure that his observations of grit on the road surface were made within half an hour of his arrival and before any gritter arrived following the accident. It followed that the grit that he observed on the road, according to his evidence, must have been grit spread on the road before the accident. The Lord Ordinary accepted his evidence, both as to the extent of the ice cover on the road and his observations of grit. Having done that, the Lord Ordinary, of course, recognised that it did not follow from this particular evidence that this was grit spread on the gritting run commencing at 0540 hours on the morning of 23 December. However, the evidence did signify that there was grit on the road effective, to some extent at least, to prevent or restrict the formation of ice. In paragraph [38] of his Opinion the Lord Ordinary summarises his conclusion as regards the state of the road surface at the material time. He concludes that:

".....it is clear that the road surface of the B9080 was very slippery over an area extending at least 50 yards to the east of the Bridgend junction and possibly 150 yards or more to the west. The precise extent of the slippery road surface may not matter. What does matter is that the slippery area extended far beyond the junction and was not confined to the narrow diamond shape that might have been left untreated had the gritter diverted from the B9080 in the course of doing the L3 route to treat the Bridgend road as alleged by the pursuer as part of her primary case"

[17] Quite extensive meteorological evidence was led at the proof. The issue of its significance was the subject of extensive submission, both before the Lord Ordinary and in the course of this reclaiming motion. It is therefore appropriate to consider it in some detail.

[18] Iain Farquhar was called as an expert witness by the reclaimer. His evidence was directed towards the weather conditions prevailing at locations in the general area of the locus of the accident on 22 and 23 December 1995; and the inferences that could be drawn from that information as to the conditions at the locus itself. Mr Farquhar had worked at the Meteorological Office from 1964 until 2001. Towards the end of that time he had been the Enquiries Officer in the Scottish Climate Office, originally at Edinburgh and latterly at Glasgow Weather Centre, dealing with a large number of enquiries concerning past weather. He was familiar with the B9080 road, having lived in the area since 1978. He had kept his own rainfall record at his home in Linlithgow since that time. He had prepared a report in connection with the present action in October 1997, which was spoken to by him in evidence.

[19] The Lord Ordinary expresses the opinion that Mr Farquhar was an impressive witness; it was clear that both his report and his oral evidence were based on thorough research. The Lord Ordinary observes, however, that, in a number of respects, Mr Farquhar's evidence appeared to be at odds with the evidence given by Council employees, particularly that of Thomas Allen Brown. For that reason he thought it necessary to consider those aspects of Mr Farquhar's evidence with particular care.

[20] In his report, Mr Farquhar described the general weather situation in the relevant area as follows:

"During the 20^th and the first half of the 21^st December 1995 a cold airstream from the Arctic and a ridge of high pressure over Scotland combined to give dry weather in West Lothian. There were frosts night and morning but the ground was snow free in the Linlithgow area.

Later on the 21^st, a frontal zone (a band of thick cloud and precipitation), associated with an Atlantic depression, pushed northwards from England into the cold air over Scotland, consequently by 1800 GMT (6.00 pm) that evening, eastern parts of Linlithgow had a two inch deep snow cover.

Overnight 21/22, the front from the south crossed the Lothians introducing a thaw and periods of rain. The snow on the ground had turned to slush at Linlithgow by 0730 GMT on the morning of the 22^nd. The rain continued throughout the 22^nd and, almost certainly, cleared all the snow. In the evening (22^nd), rising atmospheric pressure to the north of the front pushed the cold air back southwards into the Central Belt of Scotland, turning the rain back to sleet by the early hours of the 23^rd. The front and its thick cloud and precipitation continued to move away southwards and by 0800 GMT, the weather had become dry at Turnhouse.

The wintry precipitation falling on the ground early on the 23^rd, combined with breaks in the cloud sheet and an easing wind, almost certainly, allowed ground temperatures to dip to just below freezing-point over the hour or so before the time of the accident."

[21] Mr Farquhar's report was elaborated in oral evidence. There had been a very disturbed spell of weather from 20 to 23 December 1995. On the morning of

23 December a severe Arctic spell set in which lasted until 1 January 1996. Although that spell had not arrived until after the accident, the conditions at around 0800 to 0900 hours on 23^rd December 1995 would have led to a "hazardous situation" with icy conditions on the ground. Mr Farquhar's conclusion as to the conditions at about 0900 hours in the general area of Linlithgow and Bridgend was that the countryside was under a sprinkling of snow and hail and air temperature was around +2 or 3 degrees centigrade. The Lord Ordinary records that Mr Farquhar expressed the following opinion:

"Adequately salted roads will have been soaking wet. Many stretches of insufficiently salted road will have been affected by a thin coating of a combination of slush, snow and hail with clear (or 'black') ice in places"

Mr Farquhar said that the conditions which he thought likely to have obtained at the Bridgend junction were consistent with black ice on an insufficiently salted road and the existence of extensive black ice on an unsalted road. He explained the use of the words "adequately" and "insufficiently" as meaning adequately or sufficiently "in time and quantity". A road that had insufficient salt on it at 0900 hours might have had adequate quantities some hours earlier.

[22] The Lord Ordinary opined that the principal question arising from Mr Farquhar's evidence was whether, in the conditions which prevailed on the morning of 23 December 1995, both in terms of temperature and of rainfall, the effect of which might, depending upon its intensity, be to wash away salt spread by the gritters, the existence of black ice at the road junction in question was inconsistent with salt having been spread by the gritters in the manner indicated in the Council records.

[23] The Lord Ordinary records that the data spoken to by Mr Farquhar came from three sources: first, the manned Meteorological Office at Edinburgh Airport at Turnhouse, which was situated about 12 kilometres to the east of the Bridgend junction; second, the manned Climatological Station at Falkirk, about 15 kilometres to the west; and, third, the manned Rainfall Station at Linlithgow, about 4 kilometres to the west. This latter station was maintained personally by Mr Farquhar at his home. He took rainfall readings once a day at 0900 hours. The Falkirk Climatological Station was situated at the Council sewage works there; employees at the sewage works took readings of rainfall and temperature and also recorded observations as to the state of the ground. Again, they did this once a day at 09.00 hours. By contrast, the manned Meteorological Office at Edinburgh Airport, in addition to providing daily data recorded at 0900 hours, carried out a much wider range of observations on a routine basis every half hour. All of these three stations were situated lower than the Bridgend junction, Turnhouse being about 35 metres above sea level, Falkirk about 3 metres and Linlithgow just under 60 metres, compared with a height of 80 metres above sea level at the junction.

[24] The rainfall recorded for the twenty four hours up to 0900 hours on 23 December 1995 was 12.3 millimetres at Falkirk, 17.7 millimetres at Linlithgow and 15.4 millimetres at Turnhouse. As regards these records the Lord Ordinary comments that, in so far as any such readings might be used to say what the rainfall was likely to have been at the Bridgend junction a few kilometres away from each of the weather stations, it was cautionary to note the significant differences between the three places. He goes on to explain that the hourly readings taken at Turnhouse bore to show continuous or, very occasionally, intermittent rain throughout that 24 hour period, mainly recorded as moderate or slight. There were, however, recordings of "moderate/heavy sleet" and "recent sleet" between 0100 and 0300 hours on 23 December, and of "recent sleet" becoming "moderate/heavy sleet" between 0400 and 0600 hours. The hour to 0700 hours is recorded as "slight rain and drizzle." The hourly recorded rainfall at Turnhouse for each hour on the morning of 23 December 1995 until the time of the accident at about 0900 hours, starting with the hour between midnight and 0100 hours, was : 0.6 millimetres, 0.6 millimetres, 0.8 millimetres, 0.2 millimetres, 0.8 millimetres, 0.4 millimetres, 0.4 millimetres, 0.2 millimetres and nil. As regards these measurements of rainfall, it is relevant to note that Mr Farquhar in evidence explained that there were two main methods of taking readings of rainfall. Daily readings were taken by the use of a standard daily rain gauge consisting in a copper bucket with a five inch diameter turned brass rim. The amount of water was recorded and the bucket was then emptied manually. Hourly readings, on the other hand, were taken by a dipping bucket rain gauge. This type of rain gauge worked in relation to units of 0.2 millimetres. When the gauge was full with 0.2 millimetres of water in it, it tipped automatically, emptying itself, and then returning to the upright position. The hourly readings were recorded by reference to the number of times that the gauge had tipped within an hour. Thus, for example, if the gauge were empty at the beginning of hour one, filled up with nearly 0.2 millimetres of rainfall during the hour, but did not finally tip until one minute into hour two, the reading for hour one would be nil. If the rain continued at about the same intensity in hour two but the gauge tipped again momentarily before the end of hour two, the reading for hour two would be 0.4 millimetres. Accordingly the margin of error of each reading was just short of plus or minus 0.2 millimetres. For meteorological and record purposes, that was not considered to matter. However it might be a matter of significance if the search was for a precise reading by reference to which to test other observations. The readings given in the recorded data at Turnhouse for the hours up to 0600 and 0700 hours on 23 December were both 0.4 millimetres. Accordingly one or both of these readings could represent a true hourly rainfall of up to 0.6 millimetres.

[25] The Lord Ordinary records that the Turnhouse meteorological records contain observations as to the state of the weather for those two hours, the observations were respectively "moderate/heavy sleet" and "slight rain and drizzle", and yet those were both descriptions associated with a recorded rainfall of 0.4 millimetres. He concludes that it was possible that the records for the two hours between 0500 and 0700 hours reflected a period when the rain or sleet intensified for a short period around 0600 hours. He considered the description "moderate/heavy sleet" for the hour to 0600 hours was consistent with this possibility.

[26] Minimum and maximum daily air temperatures were recorded at the Falkirk and Turnhouse weather stations, but not at the Linlithgow station. Hourly temperatures were also recorded at Turnhouse. In Mr Farquhar's opinion, these readings were only indicative of the likely temperatures at the Bridgend junction. He would have expected both air temperatures and ground temperatures to be lower at the Bridgend junction than at Turnhouse. There were a number of reasons for that. Turnhouse was nearer the sea. It was nearer sea level. There was a culvert under the road at the junction. The junction was in a dip and shaded. Mr Farquhar considered that ground temperature at the junction might be 0.4 degrees centigrade lower than at Turnhouse. Using the ground temperature readings at Turnhouse as a reference point, the minimum ground temperature at the junction in the twenty four hours leading up to 0900 hours on 23 December was likely to be in the region of -0.9 degrees centigrade. This compared with a minimum air temperature at Turnhouse of about +1.4 degrees centigrade for that same period. The ground temperature at the junction at any time was, therefore, likely to be about 2.3 degrees centigrade below air temperature at Turnhouse. Applying that differential to the recorded hourly air temperatures at Turnhouse, it was considered quite probable that freezing ground conditions existed at the junction by 0500 hours on 23 December lasting through until 1000 hours. The ground temperature at the junction might have reached as low as -0.4 degrees centigrade or even -0.9 degrees centigrade over the course of the night and early morning. The coldest time tended to be around dawn. Rain and sleet could lower the temperature. Dawn was at 0844 hours on 23 December. Mr Farquhar considered that it was likely that there were freezing conditions in being then. The Lord Ordinary says that he was inclined to accept the figures given by Mr Farquhar as broadly indicative of the temperatures likely to be experienced at Bridgend junction in the hours leading up to the accident.

[27] Evidence was led on behalf of the respondents from Mr Neil Maloney, the station manager at Dundee Satellite Receiving Station (DSRS) at Dundee University. This witness spoke to a satellite image lodged in process by the respondents, which focused on the area around Linlithgow and Bridgend over one or two minutes at around 08.15 hours on 23 December 1995. He explained that this was a section from one complete recording covering an area from Europe to the North Pole. On one view, this image showed the possibility of there having been heavy precipitation over the locus at the relevant time. However, the Lord Ordinary did not consider that a single image from such a range offered a useful insight into the weather conditions with which he was concerned in this case.

[28] Evidence was led on behalf of the reclaimer from a Mr Patrick Wingfield, a chartered engineer, who had been involved in highways meteorological issues, including thermal mapping, since the 1980s. In the first instance, his investigations had centred on whether and, if so, to what extent, water from field drains draining down to the road in question might have washed away salt spread by the gritting lorries. He had concluded that the field drains had had no effect on the salt on the road in question. His investigations had therefore turned to discovering how black ice could have formed on the road surface consistently with it having been gritted in the manner alleged by the Council. In his evidence, if salt were applied at a spread rate of ten grams per square metre before the road temperature dropped to freezing, it would be totally effective, down to temperatures of -6 degrees centigrade, to prevent the formation of black ice. It would remain effective, without any time limit, so long as it were not washed away. If the salt were spread after the ice had formed, it would not be so effective, but it would still disperse the ice relatively quickly. This witness said that if the lowest temperature at the locus was -0.9 degrees centigrade, there should have been no black ice at all. Had the road been gritted as alleged by the council, it should have been free from ice down to a temperature of -5 degrees centigrade. Mr Wingfield rejected the notion that the salt could have been washed away in sufficient quantities to account for the existence of ice, if gritting had been carried out as alleged. That opinion was based upon the recorded rainfall at Turnhouse of 2.4 millimetres over the four hour period between 2200 hours on 22 December and 0200 on 23 December 1995. This witness said that according to the same records only about one millimetre of rain fell in the four hours between 0500 hours and 0900 hours on 23 December. It was not likely that that amount of rain would have washed the salt away. The only explanation for the existence of black ice at 0900 hours on 23 December was that, for whatever reason, salt had not been present at all, or in a sufficient quantity. At this point in the evidence, Mr Wingfield was invited to speculate as to how that might have come about. However, objection was taken to that line of questioning upon the ground that it went beyond the inferential case open to the reclaimer on record. That objection was upheld. Mr Wingfield, in cross-examination, was asked about the evidence of vehicles skidding when still a considerable distance from the Bridgend junction. He agreed that, if that evidence were accepted, it would indicate a general problem rather than one restricted to ice at the junction itself. He agreed that, if rain had been "torrential" for a significant period, that would have been relevant in regard to washing salt off the road, but the rainfall figures did not indicate torrential rain. His view was that conditions at the Bridgend junction would not have been exactly the same as those at Turnhouse, but he would not have expected them to be wholly different.

[29] Mr Adrian Runacres was called as an expert witness by the Council. He had had considerable experience in highway maintenance and provided investigation and risk management services to the highway industry, including advice on highway maintenance and was head of the Advisory Services Department at the Transport Research Laboratory and remained principal consultant to that body. He had undertaken a site visit in July 2002 and was familiar with the L3 route. He had prepared a report in January 2004. He testified that the junction was in an open valley. The altitude, the water course under the road, and the possibility that the junction was in shadow, all tended in his opinion to point to this area of the road being colder than other areas at the time of the accident. The clearing skies at dawn could also have been a significant factor in reducing road surface temperature. He was unable to say what the likely difference in temperature between the locus and Turnhouse would have been on the morning in question. While Turnhouse was not very far away and the data from the station there would assist greatly in any investigation, it was necessary to be careful in using data from a single point. As evidence of that he drew attention to the differences in rainfall recorded at the three stations. The variations were significant. This witness had known of a temperature difference of 3 or 4 degrees centigrade between stretches of road quite close together.

[30] In his report, Mr Runacres expressed the opinion that:

".....the precipitation falling overnight and during the early morning hours of Saturday 23 December 1995 appears to have been heavy enough to have diluted and washed away even very significant amounts from the road surface. This precipitation would have rendered de-icing salt significantly less effective in preventing ice formation than it otherwise would have been.

Due to the fact that the surface temperature of even the coldest sections of road in that region is not likely to have been very much below 0 degrees centigrade around the time of the accident, I consider that, had the precipitation not been so heavy or prolonged, then even moderate amounts of de-icing salt could have remained effective during the period of concern."

At a later stage in his report he observed:

"It should be noted that there is reported to have been heavy rain and sleet in the material area following the previous precautionary salting operation undertaken [on the early evening of 22 December)]. As such, I consider it highly likely that, by the time of the second operation, the intensity of the precipitation may well have rendered the previously applied salt ineffective in preventing the formation of ice on road surfaces."

[31] The Lord Ordinary considered that the same reasoning would apply, although Mr Runacres had not said so, to the third operation, if it were found that the precipitation occurred with its greatest intensity just after that operation. Mr Runacres explained that, when salt was spread as grit, the particles could be washed away mechanically from the road by water and also by the action of vehicles. As regards the likely intensity of the rain at the locus, Mr Runacres considered it unsafe to rely on data from one site to infer conditions a few kilometres away. Precipitation clouds were typically 2 to 3 kilometres across. It could not necessarily be said that conditions were the same even 3 kilometres away.

[32] Mr Runacres, in cross-examination, accepted that the temperature at the locus would not have gone so low as to render ineffective salt spread at a rate of 20 grams per square metre. In other words, he did not think that temperature - other than the fact that it was about 0 degrees centigrade - was a significant factor in the salt not working to prevent the formation of black ice at the junction. For ice to form at that temperature, there could not have been adequate quantities of salt on the road at the time it formed. If salt had been spread at the rate spoken to by the Council, ice could not have formed unless the salt had been substantially removed. To remove the salt required a flow of water. He did not consider that traffic flow alone could account for the dispersal of salt in sufficient quantities to allow the formation of ice at the locus at the time. There would have required to have been enough precipitation to create a flow of water in the road. Mr Runacres accepted that, if the rainfall had been as little as 0.2 millimetres per/hour for an hour or less, that would have been insufficient to eliminate the de-icing effect of any salt spread on the road. But, on the other hand, if there had been 1.2 millimetres of rainfall over the previous three hours, that rainfall combined with the action of traffic would have been sufficient to wash the salt off the road, or at least wash of sufficient quantities of salt to allow the formation of ice.

[33] Against this background of evidence, it was submitted to the Lord Ordinary on behalf of the reclaimer that he should not place any reliance on the evidence given by Mr Thomas Allen Brown of torrential rain near Duntarvie. It was contended that not only was that evidence inconsistent with the hourly recorded rainfall at Turnhouse, but it was also of doubtful weight because Mr Brown had been first asked about this level of detail in 2002, over six years after the accident. It was said that he had then given a statement, revised it and subsequently contradicted what he had said. He was unlikely to have had such a precise recollection of the weather. His evidence had been that the night was dry until about 0500 hours on 23 December, but that was inconsistent with the records relating to Turnhouse. Further, he had been shown to have been wrong in other aspects of his evidence given in his earlier statement, for example about where he started the L3 route on the night and morning in question.

[34] The Lord Ordinary has concluded, after carefully considering this submission, that he was not prepared to reject Mr Brown's evidence. He was satisfied that he was an honest witness doing his best to give an accurate recollection of events. His view was that there was a sound explanation for his failure, in his earlier statement, to recall where he had started his run, and he did not consider that that change reflected adversely upon the reliability of other parts of his evidence. The Lord Ordinary states that the difference in the data recorded by the weather stations, all situated within a few kilometres of each other, suggested to him that such data, on its own, was insufficiently certain to form the basis for rejecting Mr Brown's evidence about the intensity of the rainfall which he had experienced on a particular part of his route. Furthermore, he considered that the method of arriving at the figures for the hourly rainfall at Turnhouse, whilst perfectly acceptable for the purpose for which it was designed, did not itself give rise to data which was sufficiently sure to put in the scales against the credibility or reliability of this witness. That method was, of course, described in the evidence of Mr Farquhar. Of the Turnhouse data the Lord Ordinary states that the recorded levels of rainfall were not consistent with some twenty minutes of torrential rain at Turnhouse. But they did not appear to him to be inconsistent with a short period of moderate to heavy rain or sleet there. The Lord Ordinary's view was that those figures certainly did not require him to reject evidence of a more prolonged and more intense downpour on a stretch of road between eight and fourteen kilometres away from Turnhouse, that is to say the area around Duntarvie, to which Mr Brown's evidence related.

[35] As regards other cogent matters, the Lord Ordinary found that, at the time of the accident, the road at the Bridgend junction was adversely affected by black ice, which extended for at least 50 yards to the east of the junction and for 150 yards to the west, but the whole carriageway within such bounds was not found to be covered in black ice. On the contrary, he concluded that the black ice was patchy, covering the greater part of the road within such bounds, but broken by areas where the road was simply wet. He considered that, given the weather conditions over the night of 22 December and into the morning 23 December 1995, the black ice was likely to have formed sometime between 0600 and 0900 hours on the latter date. He also considered it established that, had there been sufficient salt in solution at the locus between 0600 hours and the time of the accident, black ice would not have formed, or remained on the carriageway. As regards the route followed by the gritter drivers, the Lord Ordinary was not prepared to hold that there was a deviation from the prescribed gritting route. In this regard, he accepted the evidence of both gritter drivers that they did not drive to Bridgend until after they had completed route L3. He also accepted the evidence of Police Constable Bain that he observed grit on the road at the junction when he inspected the site within half an hour or so of his arrival just after the accident. The Lord Ordinary decided that his conclusion in relation to the extent of the black ice at the locus of the accident for a considerable distance on both sides of the junction made it impossible for him to link the presence of black ice with any alleged deviation by the gritters. Had they deviated from the route, his view was that the area left untreated would have been significantly smaller than that which he found to have been affected by black ice. The consequence of that finding was that he rejected the pursuer's primary case on the facts.

[36] As regards the reclaimer's inferential case, it was submitted to the Lord Ordinary that that case could be established on the basis of circumstantial evidence if the existence of the black ice could be attributable only to a failure to grit, or grit adequately, the road, or at least the relevant part of it. It was submitted that the reclaimer had established a prima facie case of negligence, which it was for the Council to rebut. The submission on behalf of the reclaimer had been that no explanation inconsistent with the Council's fault had been pled or proved.

[37] The position taken up on behalf of the Council before the Lord Ordinary was that, looking at the evidence concerning weather conditions, information concerning conditions at the locus was limited. This was not truly a case res ipsa loquitur since the accident had not happened in circumstances which were entirely within the control of the Council. Accordingly, it was necessary for the reclaimer to demonstrate on a balance of probabilities that fault lay with the Council. The only case of that sort advanced by the reclaimer was the deviation from route case. On the facts it was submitted to the Lord Ordinary that that case must fail.

[38] The Lord Ordinary's reasons for his decision to grant decree of absolvitor are set out in paragraphs [64] to [80] of his Opinion. In paragraphs [64] to [67], the Lord Ordinary discusses the nature and scope of the duties of care owed by the Council to road users. In paragraph [68] he records that the respondents conceded that, if it were established on the evidence that the driver of the gritting lorry at the material time had deviated from the route that he was instructed to follow, and had, in so doing, left a stretch of the road unsalted so that ice formed, they would be liable. He records that they made no similar concession if failure to grit the relevant stretch of road was due to some other problem within the operation. Turning to what has been called the reclaimer's inferential case the Lord Ordinary opined that, if the reclaimer were able to establish that the temperatures and the amount of precipitation could not in the ordinary course of things have resulted in the presence of black ice at the junction, had the Council exercised proper care, then the onus would shift to the respondents. As regards temperature, the Lord Ordinary considered that the evidence seemed to be substantially in agreement. It was not possible to say precisely what the temperature was at the locus between 0600 and 0900 hours on 23 December 1995. That was likely to have been the coldest part of the night. It was likely that the ground temperature at the junction was zero or just below, perhaps as low as -1 degree centigrade, during part or all of this period. That was cold enough for ice to form, but it was not cold enough to account for the formation of ice, if there was a significant amount of salting solution on the road; and certainly not cold enough to account for the formation of ice if the road was, at the time of formation, covered in salt in the concentration of 20 or even 10 grams per square metre. Hence the Lord Ordinary concluded that the temperatures over the night in question were not sufficiently low to render ineffective the presence of any significant quantity of salt in solution on the roadway. However, he observed that there was no evidence as to precisely what amount of salt in solution was necessary to prevent freezing at -1 degree centigrade. It would therefore be a mistake to have a picture of a consistent covering of water or salt in solution across the entire width and length of the relevant part of the road. There could be some patches of the road with more salt on them than others. The Lord Ordinary then went on to consider, if there was insufficient salt at the locus at the material time to stop the formation of ice, or to remove any ice that might have formed, how that was to be explained. The Lord Ordinary observes that, according to the evidence of Mr Thomas Allen Brown, which he accepted, that driver would have passed the Bridgend junction going in an anti-clockwise direction just before 0600 hours on 23 December. His gritter had been set so as to spread at 20 grams per square metre. If all had gone as it should, the road in the area of the junction would have had that amount of salt spread on it then. The reclaimer's contention was that for whatever reason, salt was not spread on that run at all, or at least not in any significant quantities. That was sought to be proved by showing that the precipitation falling in the vicinity between 0600 and 0900 hours was insufficient to have washed away or diluted the salt at the locus by the time of the accident. The Lord Ordinary had been invited by the reclaimer to hold that the quantity and intensity of the precipitation in the vicinity of the Bridgend junction between the hours mentioned were not such as would have washed away or diluted the effect of salt in solution at the locus by the time of the accident. His conclusion however was that he was not prepared to make such a finding.

[39] The Lord Ordinary in paragraph [77] observes that the assessment of the evidence about precipitation differed in a material way from that of the evidence about temperature. In the case of temperature, records had been kept and it was possible with some certainty to make a judgement on the likely differential between the temperature at Turnhouse and that at the Bridgend junction. On that the experts were in close agreement. The Lord Ordinary considered that it was therefore possible to make a finding about the likely temperature at the junction at the material time in isolation from any consideration of other evidence and then to use that finding as a fixed point in the consideration of what had occurred. However he was not persuaded that the same exercise could be relied upon in relation to precipitation. There were significant divergencies between the readings for precipitation at the three weather stations. That persuaded the Lord Ordinary that to make an estimate of how much rain had fallen at the relevant time at the junction was by no means an exact science. In those circumstances, the Court had to assess the evidence about precipitation, not only by reference to the data at certain points and the extrapolation by experts from such data, but it also had to look at all the other evidence of circumstances which might have a bearing on its conclusion. Finally, the Lord Ordinary observes in paragraph [78] of his Opinion that he did not regard the rainfall readings at Turnhouse as a sufficient basis for refusing to accept the evidence of Mr Thomas Allen Brown as to the heavy rain which he claimed to have encountered on the route not long after 0600 hours. For the same reason, he states that he was unable to find, even on a balance of probabilities, that the rainfall at the junction was insufficient to wash away or dilute salt at the junction. To arrive at that conclusion would have required him to reject the evidence of Police Constable Bain that there was grit on some parts of the road, because, if his evidence was to be believed, it must mean that salt had been spread but in substantial part dispersed. On the whole matter, the Lord Ordinary held that the reclaimer had failed to establish a case which threw the onus on the respondents to explain how the accident had happened without their negligence.

Submissions

[40] The submissions in this reclaiming motion ran over a period of ten days and involved extensive and detailed references to the evidence that had been led before the Lord Ordinary. The primary contention of the reclaimer was that the Lord Ordinary's conclusions in relation to crucial issues of fact had been plainly wrong. Accordingly, those issues were now to be decided by us in the light of the whole available evidence. Submissions were then made to us on that evidence, in which the reclaimer contended that, on those crucial issues, we should make findings different from those of the Lord Ordinary. It is quite impracticable for us to attempt to narrate those submissions in detail within any reasonable limits in this Opinion. In any event, we find it unnecessary to do so. Accordingly, what we intend to do now is to provide a brief summary of what we understand to have been the core elements in the submission to the effect that the Lord Ordinary's conclusions were plainly wrong.

The Reclaimer's Contentions

[41] As it appeared to us, the reclaimer advanced two principal submissions. The first of these related to the approach of the Lord Ordinary to the evidence led concerning the condition of the road surface at or about the locus of the accident. The Lord Ordinary had preferred the evidence of Police Constable Bain to that of other witnesses. It was contended that, in doing so, he had erred. The second principal contention advanced on behalf of the reclaimer was that the Lord Ordinary had erred in holding that he was not satisfied that the precipitation at the locus of the accident had been insufficient to wash off grit spread there during the course of the third gritting operation, had that operation been effectively carried out.

[42] We were referred on behalf of the reclaimer to a number of authorities. In general, these related, first, to the approach which this Court ought to take to findings or conclusions in fact reached by the Lord Ordinary. Secondly, authorities were put before us relating to the principle of res ipsa loquitur. In the first category, our attention was drawn to Thomas v Thomas 1947 S.C. (H.L) 45, and particularly to the speech of Lord Thankerton at page 54, where the well-known passage dealing with the proper approach to be taken by an appeal court to findings of fact made by a judge of first instance is to be found. Our attention was also drawn to Dingley v Chief Constable, Strathclyde Police 2000 S.C. (H.L.) 77, a case in which the absence of any detailed reasoning in relation to findings in fact on part of the Lord Ordinary had resulted in the First Division requiring to reach a decision based entirely on the printed evidence. At page 81, the point was made that the Lord Ordinary had failed to give reasons to justify his decision to accept some parts of the evidence and to reject other parts. Reliance was also placed upon Jordan v Court Line Limited 1947 S.C. 29 where once again, in that case, the importance of a judge of first instance giving reasons for his acceptance or rejection of evidence was emphasised. In Morrison v J.Kelly & Sons Limited 1970 S.C. 65, the importance of a Lord Ordinary giving reasons for his decisions on the evidence of witnesses was reiterated. We were also referred to Curry v Clamp's Executor 2002 S.L.T. 196, a case concerned with, among other things, the need for the cross-examination of witnesses, in the interests of fairness.

[43] Among the authorities relating to the principle res ipsa loquitur and issues of onus of proof put before us were Rhesa Shipping Company S.A. v Edmunds [1985] W.L.R. 948; Caledonia North Sea Limited v London Bridge Engineering Limited 2000 S.L.T. 1123, a case which emphasised the need for a Lord Ordinary, confronted with the need to make a decision of fact, to review all sources of relevant evidence and draw from them such inferences and conclusions as he considered appropriate; the well-known case of O'Hara v The Central S.M.T. Company Limited 1941 S.C. 363, particularly at pages 376 to 379; and Moore v R.Fox and Sons [1956] 1Q.B. 596, a case concerned with the application of the principle res ipsa loquitur.

[44] Coming to the principal criticisms of the approach of the Lord Ordinary made on behalf of the reclaimer, it was said that the Lord Ordinary had preferred the evidence of Police Constable Bain regarding the condition of the road surface at the locus of the accident, as opposed to the evidence of other witnesses who had given evidence of the condition of the locus, without having given sufficient reasons for his preference in the form of explanations concerning the evidence of the relevant witnesses.

[45] The second main area in which it was contended that the Lord Ordinary had erred was in holding that the records of precipitation at the Turnhouse Weather Station did not prevent him from accepting as reliable the evidence of Thomas Allen Brown, one of the two gritter lorry drivers who gave evidence, concerning the weather conditions he claimed to have experienced in the vicinity of Duntarvie. The importance of this issue had been that the Lord Ordinary had relied upon the evidence of Thomas Allen Brown to conclude that the reclaimer had failed to prove that there had been insufficient precipitation at Bridgend at the material time to bring about the diminution of effectiveness of the grit revealed by the presence of black ice there at the time of the accident. The contention was that, in the light of the evidence of precipitation at the weather station at Turnhouse, the Lord Ordinary should have regarded the evidence of Thomas Allen Brown as unreliable and rejected it. Our narrative of these contentions has perforce been much attenuated, but we trust that we have in fact identified the core contentions of the reclaimer.

Contentions of the Respondents

[46] In paragraph [58] of his Opinion, the Lord Ordinary had rejected the only case specifically pled on behalf of the reclaimer, the so-called "deviation case". That part of the Lord ordinary's decision had not been challenged. Accordingly, what was under consideration in the reclaiming motion was the Lord Ordinary's handling of what had been called the reclaimer's inferential case, based upon the averments in condescendence 2 between page 7E and 8A of the reclaiming print. That case was simply to the effect that, had the L3 route been adequately salted on both lanes of the carriageway by the Council in the manner that they had averred and, in particular, salted between 5.40 am and 7.00 am on 23 December 1995, black ice would not have formed at the locus by the time of the accident. The reclaimer had contended that, since black ice existed at the locus at the material time, it could be inferred that insufficient salt had been spread there. If the cause of that insufficiency was dilution through precipitation, the reclaimer's case failed; if not, then the onus passed to the respondents to show that the insufficiency of salt was not due to the Council's negligence. The Lord Ordinary had held that he could not find that there had been insufficient precipitation at the locus and accordingly the reclaimer's case had failed. That conclusion was a result of the global assessment of the evidence. The respondents' overall submission was that the Lord Ordinary was entitled to reach the conclusions that he did. It could not be said that he had been plainly wrong to do so. In connection with this matter the evidence of Police Constable Bain had been important. It was submitted that the Lord Ordinary had been quite entitled to prefer his evidence as to the state of the locus at the material time, as opposed to evidence from other sources about that matter. He had provided adequate reasons for the view of the evidence that he had taken in that connection.

[47] In support of these submissions, senior counsel for the respondents drew our attention to certain authorities. These were Thomas v Thomas; and Clarke v Edinburgh and District Tramways Co. Limited 1919 S.C. (H.L.) 35. In this latter case it had been indicated that an appeal court, which did not have the advantage of seeing and hearing the witnesses, should not interfere with the conclusion reached by the judge of first instance, unless it could conclude that that judge was plainly wrong. Reliance was also placed on Thomson v Kvaerner Govan Limited 2004 S.C. (H.L.) 1.

[48] Some reliance had been placed by the recliamer on Jordan v Court Line Limited, Morrison v J.Kelly & Sons Limited and Rhesa Shipping Company S.A. v Edmunds. Essentially these cases were concerned with what might be described as extreme situations. The decisions reached were not helpful in the present context for that reason.

[49] The fact was that the Lord Ordinary had explained why he had preferred the evidence of Police Constable Bain to that of the other witnesses who had given evidence of the state of the road at the locus at the material time. In essence, Constable Bain had given a careful and detailed description of the circumstances, while other witnesses had given what might have been described as impressionistic and anecdotal evidence.

[50] As regards the cross-examination of witnesses on this particular topic, it had to be borne in mind that these witnesses had been heard prior to the Lord Ordinary's decision in relation to the inferential case. When the witnesses were being examined, the respondents had regarded themselves as facing only the so-called deviation case. The circumstances of Currie v Clamp's Executor were so far removed from the present circumstances that what was said there was not helpful.

[51] Turning to the issue of sufficiency of precipitation, the contention was that the Lord Ordinary had not been prepared to make the finding in fact sought by the reclaimer that the quantity and intensity of the precipitation in the vicinity if the Bridgend junction between the hours of 6.00 am and 9.00 am on 23 December 1995 were not such as would have washed away or diluted the effect of salt in solution at the locus by the time of the accident. That was evident from what was said in paragraphs [76] to [78] of his Opinion. In that situation, while the case was not truly one of res ipsa loquitur, the onus of proof determined the outcome of the case, as had occurred in Rhesa Shipping Company S.A. v Edmunds. The position was that the Lord Ordinary was not making a finding that there had been torrential rainfall at the relevant time and place, but he was accepting the evidence of Thomas Allen Brown and concluding that the records of precipitation at Turnhouse were insufficiently certain to be a reliable indication of the conditions at Bridgend. In any event, leaving aside Mr Brown's evidence, the evidence showed material divergencies in results between the records of the three meteorological stations. It could not properly be said that the Lord Ordinary had not considered all the relevant evidence. He had also considered the significance of the measuring mechanism in use at the Turnhouse station and its impact upon the records. In any event, the records indicated only the conditions at the location of the measuring instruments. The Turnhouse records could certainly not be seen as constituting a certain indication of conditions twelve kilometres away.

[52] Something had been made in the course of the debate concerning the evidence of the East-West front. However, the evidence showed that there were variations within that front; in this connection reference was made to the evidence of Mr Iain Farquhar and Mr Adrian Runacres. This material showed that the Lord Ordinary had been quite entitled to reach the conclusion that he did.

[53] Senior counsel went on to submit that the onus of proof rested with the reclaimer. With the failure of her primary case, she was forced into reliance upon the so-called inferential case. The Lord Ordinary had not been prepared to hold that the precipitation at Bridgend had been insufficient to account for the existence of the black ice there. In effect, that meant that the onus reverted to the reclaimer to demonstrate negligence on the part of the respondents'. However, having regard to the terms of the inferential case, that could not be done. With a view to showing that the present case was not one involving the principle of res ipsa loquitur, senior counsel relied upon The Law of Evidence in Scotland Walker and Walker 2^nd edition, paragraph 2.10; Ballard v North British Railway Company 1923 S.C. (H.L.) 43; O'Hara v The Central S.M.T. Company Limited; Woods v Duncan and others [1946] A.C. 401 and Devine v Colvilles Limited 1969 S.C. (H.L.) 67. In short, the reclaiming motion should fail, since the reclaimer had failed to discharge the onus resting on her in relation to the only case available to her on the evidence, the inferential case.

The decision

[54] It will be evident from the narrative which we have given of the background to this case and of the submissions made to us that the reclaiming motion involves an attack upon the Lord Ordinary's decision on the facts of the case as found by him; there is no contention that he has erred in law in any respect. Accordingly, this Court requires to adopt the well-known approach to findings of fact made by a judge of first instance. That approach has been explained on many previous occasions, but it is worth once again summarising it here.

[55] In Clarke v Edinburgh and District Tramways Co, at page 36 Lord Atkinson said this:

"It is quite true that a Judge who hears the witnesses has a great advantage in determining the question of their credibility, but when you have to deal with the inference which he draws from the evidence given before him, I think, before his finding is disturbed, it is absolutely necessary that the Court of appeal should be clear that he has drawn a wrong conclusion from the evidence"

In the same case, at pages 36 and 37, Lord Shaw of Dunfermline expressed his view thus:

"When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of appeal that says it will not interfere in a case which the Judge has announced as part of his judgement that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is of each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment."

That dictum of Lord Shaw of Dunfermline was approved by Lord Thankerton in Thomas v Thomas, at page 55. At pages 59 and 60, the same view was expressed by Lord Macmillan in these terms:

"The appellate Court has before it only the printed record of the evidence. Were that the whole evidence, it might be said that the appellate Judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is the evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusion, but it is not available to the appellate Court. So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial Judge, who has enjoyed the advantages not available to the appellate Court, becomes of paramount importance and ought not to be disturbed........The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong............If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial Judge."

[56] Then more recently these well-known views have been affirmed in Thomson v Kvaerner Govan Limited 2004 S.C. (H.L.) 1 by Lord Hope of Craighead in paragraphs [16] and [17].

[57] As already pointed out, in paragraph [58] of his Opinion, the Lord Ordinary has rejected the recliamer's primary case, indeed the only case specifically pled by her, the so-called deviation case. In argument before us, no attempt was made to challenge that part of the Lord Ordinary's decision. Accordingly the focus of attention is necessarily directed to what was referred throughout the submissions as the inferential case. The only basis in averment for that case is to be found in the passage, to which we have already referred, between pages 7E to 8A of the reclaiming print. It will be evident from those averments that this case was stated in the briefest terms; it is not elaborated in averment by the reclaimer or the respondents. However, as matters developed in the course of the proof, the requirements of that case came to be more fully appreciated. In particular, the level of precipitation at the time of or following the third gritting on the L3 route in the vicinity of Bridgend came to be seen as crucial. If that level of precipitation were sufficient to wash away or substantially dilute the effect of the salt laid during the course of that gritting, so that black ice could form, the inference of fault based upon the existence of black ice at the locus at the time of the accident, arising from some unspecified failure for which the Council was responsible in connection with the third gritting, would disappear and with it the inferential case. Realising, no doubt, the importance of these considerations, in the course of submissions to the Lord Ordinary, senior counsel for the reclaimer invited him to make a finding in fact in the terms set out on page 75 of the reclaiming print as finding 6. It was in these terms:

"That the quantity and intensity of the precipitation in the vicinity of the Bridgend junction between the hours of 06.00 and 09.00 on 23 December were not such as would have washed away or diluted the effect of salt in solution at the locus by the time of the accident."

As appears from paragraphs [78] and [79] of the Lord Ordinary's Opinion, he declined to make that finding. If that finding was essential to the recliamer's case, so far as that case survived, which it was, it appears to us that the onus lay upon the reclaimer to prove it. Thus what is contended for in this reclaiming motion is that the Lord Ordinary was not entitled to refuse to make such a finding. Putting the matter otherwise, the contention must be that the Lord Ordinary was bound to have made the finding desiderated, having regard to the evidence. Plainly the difficulties involved in that contention for the reclaimer are formidable.

[58] It will be evident from what has already been said that there were two areas of fact which bore directly upon the crucial matter. These were the condition of the locus, as it was observed immediately or within a short time of the occurrence of the accident and, secondly, the likely level of precipitation in the vicinity of Bridgend during the material period of time. It is appropriate for us to examine these matters and the Lord Ordinary's approach to them in greater detail.

[59] The matter of the condition of the locus of the accident was explored in evidence at some length. At the time when evidence relating to it was led, the primary case averred by the reclaimer was very much in contention. No doubt, therefore, attention was focused upon the question of whether anything observable at the locus did or did not support the deviation case. These matters are of course dealt with by the Lord Ordinary in paragraphs [36] to [38] of his Opinion. It is in paragraph [37] that the Lord Ordinary expresses his preference for the evidence of Police Constable Bain in relation to the matter in question. The formation of that preference on the part of the Lord Ordinary was, of course, attacked. The question for us is whether, having regard to the approach which we must take to the Lord Ordinary's findings, that preference can survive. Looking at what is said by the Lord Ordinary in that part of his Opinion, we have reached the conclusion that we cannot interfere. The Lord Ordinary describes the evidence given by the several other witnesses, who were at the locus on the morning in question, and concludes that he could safely rely only on the observations of witnesses as to that part of the road surface on which they walked or drove, or which they inspected carefully. However, in relation to Police Constable Bain, the Lord Ordinary observes that his interest on his arrival was primarily to investigate the crash. He was qualified in the investigation of such matters. He examined the locus carefully. He walked on both carriageways of the road over a considerable length on either side of the junction. He indicated that there was physical evidence that the road had been treated. He had noticed that particularly on the eastbound carriageway. He could see the grit and feel it and hear it crunching underfoot. The surface of the road was very slippery due to ice, but according to his observation, the whole road was not a "sheet of ice"; there were extensive patches of ice on the road, but other parts were not affected. Against this background the Lord Ordinary accepted his evidence, both as to the extent of the ice cover on the road and his observations of grit. In view of the reasons given by the Lord Ordinary for his reliance on Police Constable Bain and his qualifications in relation to the evidence of other witnesses, all of whom the Lord Ordinary had had the chance to hear and observe, we can see no basis upon which we could interfere with his decision. It would be quite impossible for us to say that, in this regard, the Lord Ordinary was plainly wrong.

[60] It is plain that the Lord Ordinary's findings based upon the evidence of Police Constable Bain have a dual significance. First, the extent of the ice cover on either side of the junction plainly undermines the idea that the appearance of ice at the locus of the accident was the result of the alleged diversionary manoeuvres which formed the basis of the reclaimer's primary case. Secondly, the patchy nature of the ice cover is capable of being seen as supporting a conclusion that gritting had taken place but that precipitation had rendered it ineffective in certain parts of the road surface.

[61] Turning now to the second main area of factual controversy, the level of likely precipitation in the vicinity of Bridgend during the material period of time, the Lord Ordinary deals with these matters in paragraphs [74] to [78] of his Opinion. It is evident that from paragraph [78] that, in reaching the conclusions which he did, the Lord Ordinary relied heavily upon the evidence of Mr Thomas Allen Brown, the driver of the gritting lorry used to undertake the third gritting on route L3. The Lord Ordinary gives his reasons for accepting Mr Brown's evidence in paragraph [44] of his Opinion. It was a fundamental part of the reclaimer's criticism of the Lord Ordinary's decision in this respect that Mr Brown's evidence conflicted with the records of rainfall derived particularly from the meteorological station at Turnhouse. The Lord Ordinary deals with that contention in some detail. In the first place, he lays emphasis upon the distance between the meteorological station at Turnhouse and the stretch of road in the vicinity of Duntarvie in the direction of Linlithgow over which Mr Brown indicated that there had been a prolonged and intense downpour. As appears from paragraph [45] that distance was between 8 and 14 kilometres. In the second place, in the same paragraph the Lord Ordinary goes into considerable detail in making findings as to the method of measurement of rainfall at the Turnhouse meteorological station, which led him to the conclusion which he states in that paragraph. The readings recorded in the Turnhouse data for the hours up to 0600 and 0700 on 23 December 1995 were both 0.4 millimetres. However, because of the method of measurement involved, he considered that one or both of those records could represent a true hourly rainfall of up to 0.6 millimetres. In the third place, in relation to the significance of meteorological data derived from one location, as a basis of reaching a conclusion as to the conditions at another, the Lord Ordinary relied upon the evidence of Mr Adrian Runacres, whose qualifications he describes in paragraph [53] of his Opinion. In paragraph [55] the Lord Ordinary relies upon the opinion expressed by Mr Runacres to the effect that, in terms of the likely intensity of the rain at the locus, it was unsafe to rely upon data from one site to infer conditions a few kilometres away. Precipitation clouds were typically two to three kilometres across. It could not necessarily be said that conditions were the same even three kilometres away. Mr Runacres would not have been surprised to find that witnesses spoke of conditions at one place which differed from conditions recorded at another only a few miles away. In the fourth place, as already explained in connection with this aspect of the case, the Lord Ordinary relied upon the implications of what had been said by Police Constable Bain as regards the patchy ice cover at the locus of the accident.

[62] Looking at the reasons which the Lord Ordinary gives for his refusal to make the finding desiderated on behalf of the reclaimer, we conclude that it is not open to us to interfere with his decision. The reasons which the Lord Ordinary gives for his conclusion appear to us to have a proper basis in the evidence set before him. On any view of the matter, we are quite unable to say that in this regard the Lord Ordinary was plainly wrong. We think that it is right to comment that, throughout the course of the debate before us, on behalf of the reclaimer, undue emphasis seemed to us to be placed upon the data available from the meteorological station at Turnhouse. The assumption appeared to be made that what had been recorded there furnished an unassailable indication of what conditions were at Bridgend. Although it is not a matter for us to form our own view on the printed evidence, it appears to us that there are insuperable difficulties involved in such an approach. We need only refer to the Lord Ordinary's reasoning in this regard. For all of these reasons, we conclude that we are unable to interfere with the Lord Ordinary's conclusions on fact in relation to this crucial aspect of the reclaimer's inferential case. It follows that we cannot interfere with the Lord Ordinary's conclusion as to the disposal of that case. In all these circumstances it is unnecessary for us to consider the submissions made as to what findings we ourselves should make on the evidence, in the event of the Lord Ordinary's findings having been discarded.

[63] It is appropriate for us to say a word or two concerning certain criticisms which were made of the Lord Ordinary's reasoning in paragraph [78] of his Opinion. The passage concerned is to be found between page 92D and page 93C. Having earlier found that he accepted the evidence of Mr Brown that the third gritting run had in fact been carried out on route L3, the Lord Ordinary observes that

"To make a finding that the precipitation could not have washed away or diluted the effect of the salt, therefore, I would require to infer that something had gone seriously wrong with the spreading operation, to the extent that practically no salt was spread on a 200 metre (and only a 200 metre)

stretch of road; whether it be that an insufficient quantity of salt was loaded in the hopper; or that the gate at the back was blocked; or that the salt was wet and became clogged; or that there was a problem with the engine which drives the belt that pushes salt out of the hopper; or that some other problem occurred. No case was pled along these lines and no evidence was led to this effect. But I cannot, simply because there has been no investigation of those matters, put them out of mind entirely. It was always open to the pursuer to plead a case raising the issue, as a matter of inference, that there must have been some such problem and have sought to recover documents relating thereto. The lack of any information about this aspect is part of the overall picture that I have to take into account in deciding whether the pursuer

has shown, albeit on a balance of probabilities, that there was insufficient

rain to dissipate the salt; and that therefore the only explanation is

that no salt, or only minimal quantities, was spread. Of course, if the expert evidence led by the pursuer was sufficiently compelling and capable of being resolved in isolation with any degree of certainty, it could overcome these concerns. But I do not consider that it did lend itself to such an approach."

[64] We have to say that we have had some difficulty in following the Lord Ordinary's reasoning in this part of his Opinion. However, leaving that point aside for a moment, the various circumstances referred to by the Lord Ordinary, which might have interfered with the spreading of salt on the road were not the subject of any specific averments. In that situation, in our view there was no reason why the Lord Ordinary should have given consideration to these particular issues. He was quite correct in observing that it had been open to the pursuer to plead a case relating to possible problems in the distribution of salt from the vehicles involved at the material time, but, of course, that was not done. In that situation, we see no reason why the Lord Ordinary should have given further consideration to those matters. However, having said that, we do not think that anything contained in the passage concerned affects the overall view which we have formed as to the Lord Ordinary's treatment of the facts of this case.

[65] In the whole circumstances the reclaiming motion is refused. We shall adhere to the Lord Ordinary's interlocutor of 3 November 2005.