[2015] CSOH 132




In the cause






Pursuer:  Hajducki QC;  Thompsons

Defender:  Murray;  Ledingham Chalmers LLP

8 October 2015


[1]        This is an action of damages for personal injury arising out of an accident in the early morning of 27 November 2011.  The pursuer was making his way home when he lost his footing and fell, resulting in a broken ankle which required medical treatment and a lengthy period off work.  Damages were agreed.

[2]        The claim against the defenders is based on fault and negligence at common law, although, as will be seen, the situation was rendered more complex by references to certain provisions of the Roads (Scotland) Act 1984. 

[3]        The pursuer’s case on record can, I think, be summarised as follows.

[4]        It is averred that the defenders are and were at November 2011 the local roads authority in terms of the Roads (Scotland) Act 1984 and that they were responsible for providing and maintaining lighting for roads in the village of Lochboisdale, South Uist.  Street lights were positioned along the A865 road and in particular at the locus of the pursuer’s accident which was at a point between the junction of that road with the roads known as Slighe Choinich (Kenneth Street) and Braehead. It is said that at some point before about November 2011 the defenders introduced a practice of causing street lighting at the locus, amongst other places, to be switched off between about midnight and about 7am.  On the day in question the pursuer “required to walk to his home subsequent to and then leaving his employment at the Lochboisdale Hotel”.  He claims that he lost his footing because he was unable to see where he was placing his feet.  That caused the injury from which he undoubtedly suffered.  It is said that the defenders knew or ought to have known that Lochboisdale had an approximate population of 300 residents, that patrons and employees of the hotel would have to walk along the streets and footways between midnight and 7am and that in an area with no other forms of artificial lighting the defenders’ failure to provide appropriate street lighting would cause the pursuer and others to be at risk of injury.  Reference is made to the British Standard code of practice for the design of road lighting then in force, which stated at paragraph 9.1 that “the main purpose of lighting for subsidiary roads and areas associated with those roads is to enable pedestrians and cyclists to orientate themselves and detect vehicular and other hazards”.  At 10.1 it states that it “is important to remember that during the late evening and during the night when shops are closed and the commercial light is reduced or extinguished, the public lighting should aid the security of property and the safety of pedestrians”.

[5]        The defenders in answer say that the circumstances of the accident are not known and not admitted.  They refer to the code of practice for its terms.  They accept that they are a roads authority but as far as lighting is concerned they refer to section 35 of the Roads (Scotland) Act 1984.  Section 35(1) is in the following terms:

“A local roads authority shall provide and maintain lighting for roads, or proposed roads, which are, or will be, maintainable by them and which in their opinion ought to be lit.”


They aver that at the material time there was no defect in the lighting at the locus and that it was their opinion that it did not require to be lit throughout the hours of darkness at the material time.  They aver also that the pursuer knew or ought to have known that it would be dark when he was walking at the locus and ought to have been using a torch.

[6]        As I have indicated, the pursuer avers quite starkly that the claim was based upon the defenders’ fault and negligence at common law.  The ingredients of the alleged duties which they are said to have breached were amplified in submissions before me and I will turn to them in due course. 

[7]        The defenders for their part aver that no review of their decision to operate lighting at the locus at certain times had ever been sought.  Since they were acting under permissive powers they were not liable for accidents arising from a failure to light.  The pursuer was called upon to specify the legal basis upon which he contended they were under a duty to provide lighting at the locus and it was said that the pursuer’s averments were irrelevant and lacking in specification.  Esto they were to any extent liable in damages the pursuer contributed to the accident by his own negligence. 

[8]        It was against that background that the case called before me for proof. 

[9]        At the outset Mr Hajducki moved me to allow late an additional list of witnesses and two further inventories of productions.  This motion was opposed.  I was told that the first witness on the list was an expert whose report was disclosed at the pre-trial meeting.  There had been difficulty obtaining an expert in this field.  The third inventory of productions was his report and the fourth inventory was a selection of documents received from the defenders under a Freedom of Information request. 

[10]      Having heard counsel I allowed witnesses 9 to 12 to be led but I refused to allow the alleged expert to be led and refused to allow the inventories of productions.

[11]      In the first place it seemed to me that the report of the expert effectively covered material which was contained in a late minute of amendment which had not been allowed.  Secondly, it came very late.  Thirdly, there was no real expertise involved in the sense in which that is properly understood.  See Kennedy v Cordia Services LLP 2014 SLT 984.  Mr Murray indicated that he had never seen the documents recovered through the Freedom of Information request.  It appeared that they concerned questions of policy, which was not a matter on record and if they concerned previous complaints or incidents then there was no record for those either.  Mr Murray had referred to the case of Smith v GGHB 2014 SLT 137 but I need not go into that for present purposes.  His opposition to the remaining witnesses was fairly muted and I saw no prejudice in allowing their evidence to be led. 


The evidence

[12]      This is a brief summary of the evidence which will be supplemented during my discussion of the submissions.

[13]       The pursuer said that around 0200 hours he was going home.  His house was a two minute walk from the Lochboisdale Hotel where he then worked as a chef.  It was pitch black and he could not see his hand in front of his face.  He realised that he had left his keys in the house of an Angus McIntyre and he turned round.  As he did so he caught the edge of the kerb.  He could not see where his feet were placed and this would not have happened if the lights were on, as he had expected them to be.  He did not have a torch or a mobile phone.  He would have taken a torch if he knew the lights would be off. He had lived in Lochboisdale for about two years and he did not remember the lights ever going out at night.  When he arrived home after work he would stay up quite late and he never saw the lights going out before he went to bed.  He was not aware of any change.  No one had told him, he was not looking and he did not notice any change.  There were no signs to indicate that that would be the case. After the accident Angus McIntyre and his wife were driving past.  They saw the pursuer hanging onto a lamppost and he was taken to their house.  He was asked if there would be many people around after midnight and he said that there were usually people leaving the pub at 0100 when it closed.  The staff would have to clear up after that.  Sometimes the ferry from Barra got in after midnight because it ran late. 

[14]      In cross examination he said he had worked at the hotel for four years but had not lived in Lochboisdale before that.  He finished his shift that day at midnight, left the hotel around 0015 and then went to Mr McIntyre’s house where he stayed until around 2 o’clock.  The kerb was about an inch and a half deep.  Before November 2011 the lights were never turned off between 0100 and 0700 that he knew of.  As far as he knew there was a change on 1 November 2011 when the lights were turned off between midnight and 0630.  He was not sure if from February 2013 the lights were off between 2300 and 0630.  He was aware that around the time of his accident the lights were turned off between midnight and 0630.  There was some consultation after the accident but he was not aware of any meetings before it. Neither was he aware of any internet survey conducted by the defenders in 2010/2011.  He heard of no change in lighting policy in or around May 2011 and saw no press release about it on 10 August 2011.  He heard nothing on the BBC about it nor did he see any announcements on the defenders’ website.

[15]      In re-examination he said he was unaware of lights going out anywhere in South Uist during November 2011. He had been out and about sometimes at midnight or at 0100 hours after work.  As far as he was aware the lights were on then. 

[16]      The next witness was Eileen Beaton, now a trainee solicitor.  She lived in Lochboisdale and her house was about 300 metres from the pursuer’s.  She moved to Lochboisdale with her family in 1996 as a teenager.  She was frequently out at night and she said the lights never went off.  That covered a period from 1996 until 2002/3.  She frequently came home to visit for long periods and the position was the same.  There was an alteration in 2011 and she noticed the difference.  It was very dark and some nights in winter were dangerous.  There were some areas where one could see before but could not now and one had to bring torches.  She thought that some lights were on now in these areas.  She visited her father at Christmas 2011 and noticed that the lights were off then.  She would have been there in the summer of that year when the lighting was extremely different.  She was not sure if she was there the previous Christmas but from 2003 onwards every time she was there the lights were on.  Christmas 2011 was the first time she noticed them being off. 

[17]      In cross examination she said that she was living and studying in Glasgow in November 2011 and had lived there for around eight years.  She visited every second Christmas and also at different times of the year, possibly two or three times.  If there was a policy of turning off lights in rural Uist from 1973 until 2003 it did not happen in Lochboisdale.  When she visited in December 2011 she noticed that the lights were off at night but she was a bit vague about the times.  It was a little better now in the area where her father lived, which was in a cul-de-sac, and when the lights were turned off in 2011 it made a huge difference but things were better now.  She did not remember if she had been there between September and October 2010.  She had never been to any public meetings or taken part in any consultations or surveys.  She saw nothing in the press until after the lights were turned off.  She wrote a letter to the papers complaining after Christmas 2011 and possibly after the incident she looked up the council website to obtain information.  She did that because she wanted to write to them.  She ascertained that there was some kind of money saving scheme which involved turning the lights off but she did not remember where she saw that.  She was told afterwards, in a letter from the council in 2012, that there had been a consultation in Iochdar town hall but it was far away from Lochboisdale and most people could not drive. 

[18]      In re-examination she said that in the whole period she lived there and right up until 2011 the lights were on and there was never any discussion about them being off. 

[19]      The witness’ father Lawrence Beaton operated a butchers shop in Lochboisdale and knew the pursuer.  He said that before the change in 2011 the lights were always on all night.  There was less need for them in summer but it was very dark in winter, especially when there was no moon.  The night of the accident was a very dark one and it was not too long after the lights were switched off, perhaps a matter of weeks or less.  He believed a lot of people were not aware that it was going to happen.  It was hard to remember if he was aware or not.  No one carried a torch.

[20]      On the night of the accident you could not see your hand in front of your face and there was no moon.  He had lived there since 1996 and that night he could not even find his garden gate.  He went to the wrong door before eventually doing so.  He was unaware of any consultation by the council with people in Lochboisdale.  He was not aware of any adverts or warning signs and afterwards he complained to the council that the lights were turned off too early and that there could be an accident.  He was worried about a possible fatality.  Later on the lights came on for the festive period until 0300 or 0400. 

[21]      In cross examination he said he was not aware of the council policy about turning lights off in rural Uist before 1996.  He was asked if he accepted that from around the beginning of November the policy was changed so that the lights would be off between midnight and 0630 but he did not remember the dates.  He was aware that in 2013 it changed from 2300 to 0630.  He might have attended a meeting in a school before the second change in policy when he expressed the view that the lights should stay on.  People were finishing work and he was concerned about young girls.  The convenor more or less said that the lights were going off and that was it.  At the meeting there were no views supportive of the change.  The meeting was about the budget rather than about the lights and there was talk of cutting other services such as the library, education and care.  He did not remember if he heard a supportive view expressed at the meeting.  He read the papers now and again but he did not hear about the changes in May or June 2011 nor did he see any press release in August 2011.  He would never be on the council website.  The chairman of the meeting came from Stornoway and in re-examination he said that that was a long way from Lochboisdale. 

[22]      Angus McIntyre lived a couple of hundred metres away from the pursuer.  He had lived in Lochboisdale for 34 years.  He was asked whether before the change in policy the lights were on all night and he said he could not say.  They were on late, perhaps till about 0100 or 0200 hours.  He was aware that they would go off at some point but he was not a night owl.  He was not aware beforehand that lights were going to go out earlier.  No one told him and there were no signs. 

[23]      On the night in question he said his wife was driving home when they saw the pursuer holding onto a lamp post.  They asked him what had happened and then took him to their house. His wife phoned an ambulance.  It was very dark at the time and no lights were on.  He was not aware of any prior consultation by the council, he did not remember anything in the local paper and he did not read the council website.  He was not aware of any complaints after the accident about the lights having gone off.  The first time he was aware that the lights would be off was probably around the time of the accident.

[24]      In cross examination he said that they were returning from dropping off his cousin.  It was sometime around 0200 or after.  The pursuer had been in his house earlier that evening and had left with them in their car between 0200 and 0230.  They had dropped him off at the bottom of his street, about 30 – 40 metres away from his house.  The streetlights were not on.  The lamppost was probably about half of that distance from his house.  They found out later that he had left his keys in their house.  The accident was perhaps around 0215 or 0230 but he could not give an exact time.  They had been away five or six minutes between dropping the pursuer off and coming back. 

[25]      In re-examination he said that at the time they saw the pursuer he would have expected the lights to have been on but he did not remember being out and about and seeing the lights on at that time before.

[26]      Karen MacAulay was the owner of the Lochboisdale Hotel and had been involved in the hotel for 11½ years.  Before the policy changed the lights stayed on all night.  She was only aware of the policy change from hearsay after the accident.  She would have been expected to have been told about it.  The hotel was the social centre of Lochboisdale.  When the bar closes at 0100 the staff clear up and leave between 0130 and 0200.  Members of the public also leave around that time and go out to wait for taxis or walk home.  She was not aware of any intimation from the council about the lights.  She heard rumours but had no concrete information.  No one knew when the lights would go off or at what time.  Her information consisted of just chat in the bar but it was known that the council wanted to save money.  No one took her views and she saw no advertisements or leaflets.  She was not aware of any press release and she only rarely went on the council website.  The night of the accident was pitch black.  She was aware a couple of days before the accident that the lights would not be on all night.

[27]      She said that once she knew the lights were going off she complained and that that was before the accident.  She knew they were off because she looked out of the window.  She complained to local councillors and Mr Beaton and his daughter came up with a petition after the event.  A couple of days before the accident she was aware of the situation because of people going home and coming into the bar the next day saying how ridiculous it was.  There had been complaints since and her impression now was that the lights were on all night.  She had seen them on at 0700 but she did not know if they were off at say 0400 or 0500.  She was still up at 0200 and it was still light. 

[28]      In cross examination she said that the hotel was by the shore next to the pier and that there were new lights on at the pier which came on when the ferry was on.  She did not attend any public meetings and took no part in any internet consultation.  She did not remember if she heard about any change in policy in May or June 2011 and saw no press releases in August 2011.  She took no steps to investigate the matter on the website after she heard the rumours.  There were rumours all the time, not all necessarily true.  The petition by the Beatons was in late 2011 but she did not remember if it was after the accident.  She had mentioned the matter to a councillor who drank in the bar and he said that he would try his best but said that they were ruled by Stornoway. 

[29]      In re-examination she confirmed that she was not aware of any public consultation or posters or notices about any meetings.  She would have expected any such notices to be displayed in her hotel.  She had not met anyone who approved of turning off the lights. 

[30]      With that evidence the pursuer’s case was closed.

[31]      The first witness for the defenders was Ian MacKinnon.  He was their director of technical services and had been since May 2005.  He was a civil engineer.  The council’s powers and duties in connection with lighting were set out in section 35 of the Roads (Scotland) Act 1984 and they had a wide discretion.  They took account of such factors as population density and traffic volume.  Where lights were put in the design was in accordance with the British Standard and the question of repair and maintenance was dealt with in guidelines and a code of practice.  There had been pressures on the council budget since 2010 and reductions in various areas.  A council wide series of propositions for cuts was made and there was extensive public consultation across eight to ten meetings over the Western Isles.  There was also a questionnaire on the council website and the public could vote for propositions which they saw as positive or negative.  He was aware that at public meetings there was quite a bit of support for cutting back the number of hours of lighting.  There was also some opposition.  There was quite a lot of support from people outside Stornoway for the lights there to be cut but the proposition was for across the islands.  There was a growing awareness of environmental issues.  People understood budgetary considerations and questions of dark skies and carbon footprints. 

[32]      His recollection was that before 2011 the lights in rural Uist and Lewis and Harris would have been switched off at 0100 hours.  That had been the position since the inception of the council in the 70s.  The equipment was mechanical, which was prone to failure, and if it was set to go off at 0100 it might in fact do so at 0045 or 0115.  In Lochboisdale the system was changed to a digital one from 1 November 2011. A decision was taken to cut back the hours lit from 0100 to midnight from February 2011.  The policy was to take effect immediately the decision of the council was made but because of the need to change equipment across the Western Isles it would have taken several months for the equipment to be changed and for the change to happen.  It did not in fact happen until 1 November 2011.  The public meetings had been in October and November 2010 and there was a second series in January 2011 as well.  The changes were also advertised in the local press, the council website and local radio stations. 

[33]      The public meetings were across the Western Isles and there was one in South Uist.  There may have been community bodies consulted as well.  There might have been parallel communications with community councils across the Western Isles.  The defenders consulted Northern Constabulary in 2010 and continued to consult with them in special cases.  He thought that youth councils in the Western Isles were consulted but there were certainly meetings at schools.  The leader of the council was keen to get the views of younger members.

[34]      The final decisions were taken in February 2011, following the second round of consultations in January.  There was not the same number of meetings but the geography of the Western Isles was covered.   His recollection is that there was general support for the cutting of the lighting hours.  He was not himself involved in telling the public of the change but staff in technical services would have liaised with the council’s communications manager. 

[35]      The lights were grouped into clusters and each cluster was controlled centrally although he did not know how many lights were in each cluster.  The central control for a particular area was at the side of the road.

[36]      After the policy change and the change to digital in Lochboisdale after 1 November the lights would go off at midnight and on at 0630.  He was not made aware of any adverse comment between 1 and 27 November 2011. 

[37]      Mr MacKinnon gave evidence of certain discretionary powers.  They had quarterly meetings with the police.  As I understood it he said that at a later stage, for the sake of safety they agreed to extend the hours around certain licensed premises on Fridays, Saturdays and Sundays until 0200. The ferry terminal lights were on all night but they were operated by Caledonian Maritime Assets Ltd and had nothing to do with the council.  It was unlikely that there would have been any lights on after 0200  in any places where this discretion was exercised.  There might have been mechanical issues where the lights were not working but the lights would not have been on in terms of the policy. 

[38]      In short the decision was taken in February to switch the lights off at midnight but it did not happen until 1 November and in the area around the Lochboisdale Hotel the lights stayed on until 0200 on Fridays, Saturdays and Sundays, after the discretion was exercised. There was no policy of operating lights in Lochboisdale after 0200 hours. 

[39]      There was a further reduction with effect from February 2013, in terms of which the lights were to go off at 2300.  There was a consultation process before that but it was not as comprehensive as the previous ones had been. 

[40]      In cross examination he said that the purpose of lights was to enable people to see where they were going.  It was not his understanding that the lights were switched off at midnight three days before the accident.  The change was on 1 November.  He could not comment on whether people were surprised or not.  He agreed that there were no posters or notices put up.  In Lochboisdale there was a population of 300 and the likelihood of anyone being on the road was minimal.  He would expect people to carry a torch.  He agreed that sometimes people would arrive late on the ferry.  He also agreed that perhaps people would be going home from the hotel later than 0100.  There had been a consultation at Iochdar but it was some miles away from Lochboisdale and one would need a car to get there.  That was the nearest one to Lochboisdale.  It was suggested to him that the question of lights was not discussed at that meeting.  He was not there but seemed to agree that that was the case.  There was nothing specific about Lochboisdale on the website.  It was put to him that people in Lochboisdale felt they had not been consulted and he said that that was not fair.  The council had made reasonable efforts to consult with the Western Isles.  They could not guarantee to communicate with everybody.  It would not have been unusual for a meeting of the South Uist community to be at one end of the island or the other.  It was the most wide ranging and conclusive consultation exercise undertaken by the council.

[41]      He explained that the policy before the decision was that the lights went off at 0100.  After it the policy was that the lights went off at midnight.  If the lights were on all night that would have been because of a mechanical failure of which they were probably not aware.  Complaints were made if the lights were off not if they were on.  In consultation with the police and others he started exercising some discretion in the summer of 2011.  That meant extending the lighted hours until 0200 hours in certain areas.  That was before the new policy had been implemented in Lochboisdale. 

[42]      The switching off at midnight was not implemented in Lochboisdale until 1 November.  Until then the policy was that the lights would be switched off at 0100 but there might have been extensions until 0200. 

[43]      In re-examination he said that both rounds of consultation were advertised.  Although lights were not, as far as his knowledge went, discussed at the meeting at Iochdar it was all part of the consultation and the public were free to raise the matter. 

[44]      The next witness for the defenders was James McArthur, a street lighting engineer with the defenders since 1981.  He said that the street lighting in Lochboisdale was on the main street from one end near the pier and the hotel to a garage about four to five hundred yards away.  It ran basically the full length of the town.  There were two different circuits, one near the hotel and the pier head with 15 units and the other from there to the garage with around 30 units.  All were standard streetlamps.  Each circuit had its own central control but they were both set at the same parameters.  There were two types of mechanism involved.  There was a photocell which activated according to whether it was daylight or night-time, much like a Volvo motorcar, and the other was a clock.  Both systems worked in tandem.  There was a mechanical clock for 20 years until it was changed to a digital clock on 1 November 2011.  The photocell would bring the lights on when the daylight faded and the mechanical clock would switch them off.  As I understood it, the photocell was still in operation but the digital clock worked on sunset and sunlight times which would be programmed in.  If it was desired to switch the lights off at midnight that would simply be programmed in.  It was more or less the same process as with the older mechanical clock.  The digital clocks were more accurate than the mechanical ones.  The latter could only be accurate to within 15 minutes.  Before 2011 the policy was that the lights were off at 0100 and were switched on again at 0700.  There was then a change so that they went off between 0100 and 0630, then another change so that it ran from midnight to 0630 and then yet another so that the hours were now 2300 to 0630. 

[45]      He was responsible for programming the clocks and the policy change in terms of which the lights were switched off at midnight was implemented in November 2011.  The digital clocks were installed on 1 November and he was there.   

[46]      He was asked if there was any explanation for the lights being on after 0100.  He said if there was an operational fault in the clock then that could happen, for example if there was a lightning strike and the clocks malfunctioned.  They would not get a call out if the lights were on rather than off.  There might be one or two reasons mechanically why the lights would not work.

[47]      He never received a call that the lights were on.  Neither had any mechanical defects ever come to his attention which might explain that.  He had never been in Lochboisdale between 0100 and 0700 hours but he checked the clocks twice a year because of the time changes.  He would have checked the clock in October and the spring before that and it would have been apparent from the checks if the lights were on when they were not supposed to be.  He was asked if there was any likelihood of the lights being on when they were not supposed to be and he said that without having been there he could not say that but he had no memory of it every happening.

[48]      He went on to explain that after the policy was implemented there were requests for discretion to be exercised in a few areas and in some areas the lights stayed on until 0200 on weekends.  One of those areas was Lochboisdale, where it took place in the spring of 2012.  At the time of the accident the turning off time was midnight.  In summary before 1 November 2011 the lights went off at 0100.  After that they went off at midnight, until February 2013, except that, on weekends from spring 2012, they went off at 0200 near the hotel. 

[49]      From February 2013 the lights went off at 2300, except for weekends in the hotel area where they still went off at 0200 hours.

[50]      Between 1 and 27 November 2011 there were no calls from the public about the lights in Lochboisdale. 

[51]      This witness was not cross examined. 

[52]      The last witness for the defenders was Donald MacRae.  He was a roads manager with the defenders and his duties included the maintenance of roads, bridges, signage and streetlights.  He was involved in policy and had limited operational knowledge.  He understood that when the council brought a new policy into effect publicity was normally given through the press office.  He understood that that was done in connection with the lights.  The news of the change of policy of February 2011 was communicated around August through the press office.  There was a letter to community councillors from Mr MacKinnon.  There was a list of 50 or 60 names which would be circulated including newspapers such as the Stornoway Gazette and a number of smaller papers and the BBC.  He remembered discussing the press release and had a vague recollection of there being something in the media but he did not remember what. 

[53]      With that evidence the defenders’ case was closed. 


Submissions for the pursuer

[54]      Mr Hajducki produced written submissions, as indeed did Mr Murray for the defenders.  I am grateful to both counsel for their diligence.

[55]      Mr Hajducki moved me to grant decree in the agreed sum of £20,000 with interest from the date of decree at the judicial rate.  Much of the evidence was uncontroversial.  The accident occurred when the pursuer was returning home at about 0200 having visited a friend after finishing his shift as a chef at the hotel some 400 yards away.  It was a very dark night.  A number of witnesses had made that clear.  There was no illumination available.  Had a streetlight been on it would have provided adequate lighting but the light had been extinguished owing to a comparatively new policy being pursued by the defenders in terms of which no lighting was provided after midnight as a result of budget savings.  Had the area been lit the pursuer would not have lost his footing. Lawrence Beaton, Karen MacAulay and Angus McIntyre had all confirmed the state of the light.  Such darkness was unexceptional in the Western Isles in winter.  The witnesses were fairly adamant that previously lights had been on all night.  Mr McIntyre could not confirm that they had remained on for the whole of the night because he was rarely out in the small hours but the others maintained that that was the position.  Eileen Beaton had grown up in the village and as a teenager had frequently been out socially and returned home in the small hours.  She had never seen the lights extinguished during the night.  It was not put to these witnesses that they were wrong or that lights were on only some of the night.  There was no connection between the pursuer and his witnesses except for Karen MacAulay.  He was a friend of the McIntyres but Mr McIntyre was the witness who said he was not usually up.  There was no reason for the witnesses not to tell the truth or to be mistaken.  Any complaints made were after the event, although Karen MacAulay said she had complained before the event to a councillor who said that Stornoway did not really care.  The population was small but the distances were large and those who knew the area best were the ones who lived there. 

[56]      The defenders’ witnesses did not agree that the lights had been lit all night, stating that the policy was that the lights remained lit only until 0100. It was said that lights, when they were controlled by a combination of mechanical and photocell devices, were checked twice a year and no faults were found other than the small variation spoken to.  However the defenders’ witnesses did not live in Lochboisdale and were not there at night-time.  They would not have expected anyone to complain if the lights were on.  If money saving was crucial why did no one check to see if the lights were on or off when the policy was in operation? 

[57]      As far as the law was concerned the defenders, as the statutory roads authority, were under a duty to take reasonable care for the safety and wellbeing of all those who used the public roads in Lochboisdale and this extended to the maintenance and upkeep of the roads both in respect of the carriageway and pavements thereof.  The duty was owed both to motorists and pedestrians.  Section 35 of the Roads (Scotland) Act 1984 did not impose an absolute duty to provide lighting and involved the exercise of discretion but that discretion had to be exercised properly and having regard to all appropriate circumstances.  The purpose of street lighting was primarily one of safety.  That was self-evident although it was spoken to by a number of witnesses. 

[58]      The British Standard code of practice for the design of road lighting was referred to not because the road lighting did not comply with it but simply to highlight the necessity of lighting in as far as the safety of pedestrians was concerned. 

[59]      The fact that streetlights were provided in the area where the accident occurred suggested that the defenders had at some point decided that the area was one which ought to be lit. Until November 2011 it was one which had been lit either all night, as the pursuer’s witnesses said, or until 0100 and then again at dawn.  It was clear that public safety had rightly been a concern for the council even to the extent where they said in evidence that they would expect the public to be carrying their own torches when the streets were unlit. 

[60]      In 2010/11 a decision was made that economies would have to be put into effect and these involved amongst other things a reduction in the lighting in rural areas.  The pursuer did not and could not challenge that decision in principle, that being a matter for judicial review.  It was accepted that the defenders were entitled to save money by whatever means they deemed efficacious.  It was also accepted that the pursuer had a duty to take reasonable care for his safety.  If he had been carrying a torch he might well have avoided the accident altogether or it might not have had such dire consequences.  Counsel did not accept, though, that the council had properly exercised its duty to take reasonable care for the safety of pedestrians in Lochboisdale if the streetlights were extinguished effectively without proper notice being given and where no proper consultation had been undertaken. 

[61]      The pursuer was unaware that the cutback in hours would occur on the night and at the time when he had his accident.  The lights would have been on but for the implementation of the decision and the accident would not have occurred.  There was no reason why the pursuer should have expected to be making his journey back home in the dark without street lighting.  There was no evidence that he had been out before when the lights were cut back or that he could reasonably have been aware of it.  The witnesses thought that the accident had happened a short time after the lighting regime had been put into effect, although it was said by the defenders’ witnesses that it came into effect on 1 November.  It was not clear how that date was notified to the residents of Lochboisdale.  Mrs MacAulay thought the cutback had taken place a few days before the accident and other witnesses also thought that the events were roughly contemporaneous.  Mr Beaton and Mrs MacAulay, who spoke to a councillor one or two days before the accident, were also taken aback by the change.  There was some evidence that there may have been a general knowledge in Lochboisdale that the council would be practicing cuts in services, including cutting back on the hours when the lights were in operation, but there was no general knowledge in the village as to what the changes would be or when the cuts would be implemented.  The extent of any such knowledge was based on rumours in the bar.  No effective steps were taken to bring information relating to the street lighting cuts to the inhabitants of Lochboisdale or to engage them in any real consultation.  Only the council would know when the change would take effect.  One might have expected Lochboisdale, the focal centre of the island, to have been the centre of any consultation.  A poster advertising any meetings might have been displayed or information might have been displayed giving the hours of the cut back and the date from which it would take effect.  Posters could have been tied to lampposts.  There were not many and the costs would have been minimal.  The owner of the hotel, Mrs MacAulay, indicated that she might have expected to have been approached with regard to posters or notices.  She might even have been consulted as the owner of the only hotel and bar in the area and the main employer, who might have had employees including the pursuer out working at night. 

[62]      The defenders stated that the fact that the decision in general terms had been made could be found on their website but that no particulars in respect of street lighting could be found there or any details as to when the cut back might be expected to take effect.  In any event why would people look at the council website?  There was no reason for them to do so and it was not even put to them what they might have found had they looked.  A press release was later issued to the papers and the BBC but again it was not clear what details it contained and whether it ever materialised in any newspaper or broadcast.  The council could have placed a paid advertisement in one of the papers that circulated in the area if they thought the matter was of any importance. 

[63]      The commencement date was decided upon for reasons connected with the changeover of technical equipment.  That would be unknown to those who were not involved in it.  No details were suggested to any witness of any newspaper article or notice which might have alerted them to any relevant matter. 

[64]      Mr MacKinnon said there had been a number of consultations held throughout the Western Isles covering the gamut of proposed expenditure cuts in the winter of 2010/2011.  He also said that other bodies had been consulted such as youth councils.  The meeting held in South Uist had been in Iochdar, some 26 miles to the north of Lochboisdale and not connected to it by public transport.  18 members of the public attended that and although street lighting was on the agenda there was no discussion of it.  The meetings were apparently only advertised on the website.  There was no suggestion of advertisements for meetings by poster or notice.  In any event how important would the inhabitants have regarded it since it covered the whole gamut of cuts?  A cut in street lighting hours was something which would have a considerable effect on public safety in all rural areas even if it was for one hour only.  The hour after midnight was of importance in areas where people could be expected to congregate, such as outside public houses and other areas of entertainment.  This was the case in Lochboisdale, where the bar opened until 0100 and customers left thereafter but the staff did not leave until after clearing up.  There would likely be people returning home or waiting for taxis etc well after the midnight hour and there might be traffic coming from the late arrival of the ferry.  After the decision had been implemented in November 2011 the hours were extended in Lochboisdale at weekends so that the lights did not go off until 2am.  The defenders had failed in their common law duties of care and had not established that the pursuer was guilty of any contributory negligence. 


Submissions for the defenders

[65]      Mr Murray submitted that the British Standard did not advance the case in any way.  It appeared that the case came down to notice and consultation but these were not cases which were presently pled on record.  A number of cases involved hazards created by the local authority but that was not averred here.  Mr Murray submitted that there was no statutory duty on the defenders to provide street lighting at any particular locus.  They had a power to do so.  There was no common law duty on them to provide street lighting either.  Their policy in connection with street lighting was not justiciable in this forum and in any event it fell within the range of reasonable decisions of a roads authority in a rural area.  As a matter of fact there had been no street lighting at the locus at 0200 since at least the mid-1970s and any recent change of policy could not have been causative of the pursuer’s accident.

[66]      There were no averments in the pursuer’s pleadings as to the nature of the duty on the defenders as regards street lighting.  There need not be averments of duty under chapter 43 procedure but it was for the pursuer to establish the basis of any common law duty for which he contended.

[67]      The pursuer’s averments went to the question of foreseeability but that of itself was insufficient to create a common law duty of care.  Reference was made to Caparo Industries v Dickman [1990] 2 AC 605, Michael & others v CC of South Wales Police [2015] 2 WLR 343 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619.  The other components of a duty, such as proximity, were absent. 

[68]      There was no authority for the contention that there was a general duty on local authorities to provide street lighting.  Not only must the pursuer establish there was a general duty but that there was a particular duty to provide street lighting at the locus at the time of the accident.  The time of the accident was important should any duty exist, both from the stand point of liability and causation.  The averments created the impression that the pursuer was injured on his walk home but that was not the evidence.

[69]      His position was that he fell at or around 0200 but the precise timing of the accident was not accepted in view of Mr McIntyre’s evidence.  The pursuer’s position was that he had turned round to go back to Mr McIntyre’s house when he realised he had left his keys there and lost his footing on the edge of the pavement.  No criticism of the state of the footway was made.  According to Mr McIntyre, he and his wife dropped them off between 0200 and 0230.  This was significant because following the change in lighting in November 2011 it would have been dark when the pursuer left the hotel at 0015 and certainly would have been dark between 0200 and 0230 when he was dropped off.  He was not driven to his door, nor were the car headlights used to see him home.  If he could not see his hand in front of his face because of the darkness it was curious that he took no precautions.  The pursuer must have realised it was dark when he stepped out of the hotel. It was significant that the pursuer did not mention that he had been dropped off by Mr McIntyre.  His position that he would have taken a torch if he had known the street lights were out was odd.  It was not as if he had no option but to walk home in the dark.

[70]      Mr Murray turned to the question of street lighting.  The pursuer’s position was that the lighting was on all night before the accident.  No one had told him it was to be turned off and he was unaware of the policy change.   That did not sit easily with his statement that he was a night owl who stayed up late and that the streetlight near to his home was always on.  Moreover the change in lighting was effected on 1 November and well over three weeks had elapsed between that date and the date of his accident.  His suggestion that it was a surprise that the lights were out was at least unreliable in the context of Mr MacArthur’s evidence.  In cross examination he had said that he had finished work at around midnight and left the hotel at around 0015.  The defenders’ evidence was that the street lighting in Lochboisdale was turned off at midnight.  The pursuer accepted that following the change in policy street lighting was turned off between midnight and 0630.  On any view of the evidence it would have been pitch dark when he left the hotel. 

[71]      Eileen Beaton claimed that the streetlights never went off during the night.  The first time she noticed it was during a visit to her father in Christmas 2011.  There might have been a policy of turning off lights in rural Uist before November 2011 but it did not occur in Lochboisdale.  She was vague about what further changes had been made to the policy since 2011.  She was not living on South Uist during the public consultations and only occasionally read the local press.  She wrote a letter of complaint to the press which had appeared to be dated after the accident.  She found some information on the defenders’ website about turning streetlights off after midnight and became aware that a public consultation had taken place at Iochdar. She criticised that consultation on the basis that it was not well advertised and it was not easy to get to for those who did not drive.  She clearly wanted to blame the defenders and made no mention of organising a petition after the time of the accident. That was a significant omission.  She initiated a public campaign to change the defenders’ policy but when she was asked about involvement in public consultations she did not refer to it.  I have to say that calling what she did a public campaign seems to me to go far too far.  Her position was that she had written a letter of complaint to the papers.  Karen MacAulay indicated that Mr Beaton came up with a petition as did his daughter after the event but  the extent of that was never fully explored.

[72]               Mr Murray said that she was quick to blame the policy and slow to recognise changes to it.  In her, perhaps sophisticated, way she was a partial witness and had an axe to grind.  None of this was ever suggested to her. 

[73]      Lawrence Beaton also said the streetlights were on all night before November 2011 but he could only say that the accident occurred not long after they were switched off, perhaps weeks or less. He believed a lot of people were not aware of it but said that it was hard to remember if he was aware or not.  He said he was unaware there had been a public consultation but his evidence was rather vague.  He complained after the change and said that after that the lights were kept on until 0300 or 0400.  My note of his evidence was that they came on for the festive period until around 0300 or 0400 and that they seemed to forget to turn them back off but that was years afterwards.  In any event Mr Murray said his evidence was not consistent with the hours of operation spoken to by Mr MacArthur.  Mr Beaton was unreliable. 

[74]      Mr McIntyre could not say whether the lights were on all night or not.  He thought they went off late at around 0100 or 0200.  He was calm and objective. 

[75]      Karen MacAulay said that before November 2011 the lights were on all night and she was not aware of any intimation of a change.  She had heard rumours about it but did not check the defenders’ website.  The rumours came from people at the bar, one of whom was a councillor. Mr Murray said that the witness accepted that she had been told about the lighting change by the councillor but nonetheless she characterised this as rumour. While this was after the lights had gone out it was perhaps a couple of days before the accident.  Her position as to when the lights went out was inconsistent with the evidence of Mr McArthur.  She was not sure if the lights now went out at 0400 or 0500 but that was again inconsistent with Mr McArthur.  It was suggested that she was a partial witness but again there was no suggestion of that made to her in cross.  Several of the pursuer’s witnesses wished to convey the impression that the change was a decision made in Stornoway and foisted on them without consultation or notice and against the wishes of the population of South Uist but the situation was reverse, as became clear from the defenders’ evidence.

[76]      Mr Murray submitted that the defenders’ witnesses were clear and confident.  They were not dogmatic and made appropriate concessions. 

[77]      Mr MacKinnon explained the budgetary background and the desire to reduce the carbon footprint and light pollution.  There was extensive public consultation involving eight to ten public meetings across the Western Isles which were widely advertised.  There was a questionnaire on the defenders’ website and the police and youth councils were consulted.  There may have been parallel consultations with community councils.  The consultations were the widest ever undertaken.  If people said they felt they had not been consulted that was not fair, according to Mr MacKinnon.  Reasonable efforts had been made to consult the population of the Western Isles.  There was a second round of consultations in early 2011 covering the geographical area of the Western Isles.  There were views expressed both for and against the reduction in the lighting but there was general support for it.  The decision was one for the elected members.  Press releases were put out in February 2011. 

[78]      As to the lights themselves, the evidence that the lights operated all night prior to November 2011 was at complete odds with Mr McArthur’s evidence. The defenders’ evidence was more likely to be credible and reliable on this point.  According to Mr MacKinnon the policy since the mid-1970s was that street lighting in rural areas including Lochboisdale was turned off between 0100 and 0700.  Mr McArthur and Mr MacKinnon were not there during these hours but Mr McArthur gave clear and uncontradicted evidence that the mechanical clock was checked twice a year and no fault was found.  If the defenders had been notified of streetlights operating during these times Mr MacKinnon said he would have made efforts to have them operating in terms of the policy.  Mr McArthur’s evidence was that the streetlights were changed to digital operation on 1 November 2011 and from that date the defenders’ policy of turning off the lights between midnight and 0630 was put into effect.  Mr MacKinnon exercised delegated authority to extend the hours to 0200 at weekends.  It was exercised in spring 2012 in Lochboisdale in the vicinity of the hotel and pier, on the basis of consultations with the police rather than in response to complaints.  That was a different lighting circuit from the rest of the village and was several hundred yards from the locus.  Even if this discretion had been exercised before the accident the streetlights in the area of the hotel would still have been off by the time the accident occurred.  Since November 2011 there has been a further reduction so that lights are now extinguished in rural Uist between 2300 and 0630.  Where delegated authority is exercised the lights remain on at weekends until 0200. (I found the evidence of Mr MacKinnon rather vague as to when this first happened in Lochboisdale but Mr McArthur’s was clear and I accepted it).

[79]      There was no record of any public complaint for the period prior to the accident. 

[80]      Mr Beaton agreed in cross that the public meeting he attended on the council budget after the accident covered a number of areas and that the council were proposing cuts across the board.  The decision making process was objectively reasonable.  The budget had to be cut across all areas and the process had all the hallmarks of a transparent, democratic process.  The range of community interests consulted and the geographical spread of the consultations reinforced that conclusion.  It was difficult to see how the process could have been improved.  The results of the consultation were collated and considered by the elected members in committee and in a full meeting.  The reduction in the hours of street lighting was a political decision made because of limited resources and in a fully democratic way.  It was a decision with which the courts should be slow to interfere with or criticise.  It was one which was not justiciable in the context of a personal injuries action. 

[81]      As far as publicity was concerned, there were three distinct stages.  There was a consultation in late 2010, a second consultation in early 2011 and the publicity given to the decision after February 2011.  Ms Beaton said she was not aware of the consultation, in particular at Iochdar.  She said it was not well advertised and it was far away but Mr MacKinnon said that the meetings were advertised.  Ms Beaton could not recall any article about the change in street lighting hours, although she occasionally took the local newspaper.  She looked at the defenders’ website after November 2011 and saw a mention of the change in lighting policy.  Her father had never been on the website. 

[82]      Mr MacKinnon spoke to a press release in February 2011 and Mr MacRae said publicity was given to the decision in August 2011 by the press office.  There were 50 to 60 recipients of press releases.  Mr MacRae also spoke to Mr MacKinnon sending a letter to the community councils informing them of the new policy. 

[83]      There was no challenge to the defenders’ evidence of the steps taken to publish the change of policy.  The publicity was objectively reasonable and sufficient.  The defenders could not guarantee that everyone was informed and the purpose of budget cuts would have been defeated by sending letters to every resident in the area.  The reduction in street lighting was proposed because of the sparsity of the population and the very low numbers of people out at that time of night.  The measures to publicise the decision should not be disproportionate to the numbers of people affected. 

[84]      Mr Murray then turned to his legal propositions. 

[85]      The first of these was that there was no common law duty on the defenders to provide street lighting.  He accepted that the defenders were the roads authority for the area.  Section 35 of the Roads (Scotland) Act 1984 gave them power to light roads but in the exercise of a wide discretion.  Under reference to MacDonald v Aberdeenshire Council 2014 SC 114 and Hamilton v Dumfries and Galloway Council (No. 2) 2009 SC 277 he submitted that there was no statutory duty on a local authority to provide street lighting under the 1984 Act.  That followed the previous law contained in section 99 of the Burgh Police (Scotland) Act 1892, which was enacted because county road trustees under the Roads and Bridges Act of 1878 did not have powers to light roads (Lanarkshire Lower Ward County Roads Trustees v Kelvinside Estate Trustees (1886) 14 R (HL) 18).  Reference was also made to Ferguson, Roads Streets and Rights of Way, Bridges and Ferries in Scotland (1904) and Fleming v Liddesdale District Committee (1897) 24 R 281.  Section 35 did not impose a duty resulting in a civil right of action by individuals.  I did not understand Mr Hajducki to dispute this and I have little difficulty in accepting the submission so far.

[86]      Mr Murray then turned to the purported common law duty.  He had found no case analogous to the present under section 35 of the 1984 Act or its predecessor. Similar statutory provisions had not resulted in a common law duty of care.  He referred to Keogh v City of Edinburgh 1926 SC 814.  In that case a motor car being driven along Princes Street in Edinburgh collided with a tramway island and was damaged.  A red lamp on the island was not lit at the time of the accident and the owner of the car sued the council.  He maintained that the relevant Act imposed an absolute duty on the defenders to keep the lamp burning.  That was the Edinburgh Municipal and Police Act 1879, section 32 of which provided that:

“It shall be the duty of the Magistrates and Council … to make provision for lighting the streets … in such manner as to them shall appear suitable, and to provide, erect and maintain such a number of lamps, lamp-posts and lamp-irons and other appurtenances as may be necessary for that purpose …”.


It was held that they were under no absolute duty to keep the lamps lit. 

 [87]      Mr Murray submitted that the duties imposed concerning streetlights were discretionary as regards the time and place of their performance and he relied on the comments of Lord President Clyde at page 819 where he said:

“The duty to light is certainly discretionary as regards time and mode.  If so, how can it be said that the duty goes beyond an obligation to use such means, and exercise such care and precaution, as are reasonably calculated to secure that the object aimed at shall be achieved?”


            He went on:

“I do not think therefore – so far as section 32 is concerned – that any absolute duty is imposed on the Corporation so as to involve them in liability for a failure in performance neither caused nor contributed to by any negligence of their own or of their servants.”


[88]      The statute in that case, as has been seen, did impose a duty to light the streets but left the manner of doing so to the discretion of the corporation.  Section 35 of the Roads (Scotland) Act does not impose any duty at all. 

[89]      Mr Murray submitted that in England no right of action accrues to a person injured following a decision by a highway authority to cease night-time lighting.  He referred to the case of Sheppard v Glossop Corporation [1921] 3 KB 132. 

[90]      In that case a street was vested in an urban authority under the Public Health Act 1875.  It declined sharply and was bounded on one side by a retaining wall about five feet high separating it from land at a higher level.  The land and the wall were the property of a private owner.  In pursuance of section 161 of the Public Health Act the authority placed a lamp on the retaining wall but extinguished it every night soon after 9 o’clock in accordance with a resolution passed on 12 December 1918.  On Christmas day of that year at 11.30pm the plaintiff intended to go home by the street, missed his way without negligence, strayed onto the private land and fell over the retaining wall into the street, whereby he was injured.  In an action against the urban authority for negligence in the performance of an alleged duty to light the street sufficiently it was held that section 161 of the Public Health Act conferred upon urban authorities a discretion but no obligation to light the streets in their districts.  The defendants, who had begun to light the street, were not bound to continue to do so.  Having done nothing to make the street dangerous they were under no obligation, whether by lighting or otherwise, to give warning of danger.  Bankes LJ considered a number of authorities and at page 140 said the following:

“In each of those cases it was held that the plaintiff had failed to establish any liability on the part of the defendants for a mere failure to light a particular part of their district.  And I think it will be found that wherever a plaintiff has succeeded in establishing a liability it has been not for merely omitting to light a part of the district but for making it dangerous unless it is sufficiently lighted, and then leaving it unlighted.”


At page 143 he went on to say this:

“I note that page 142 Bankes LJ said the following:


‘Mr Easthan contended that the particular facts of this case made it independent of those authorities.  He relied partly upon the dictum of Lord Esher MR to which I have referred, and partly on Lord Blackburn’s dictum in Geddis v Bann Reservoir Proprietors.  Lord Blackburn there laid down the rule and applied it to the case before him.  He said:


“For I take it, without citing cases, that it is now thoroughly established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised, if it be done negligently.”


That is the rule.  Then follows the application of the rule:


“and I think that if by a reasonably exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, ‘negligence’ not to make such reasonable exercise of their powers.”


That which the Legislature has authorised in this case is the lighting of this particular district.  If in lighting the district they act negligently, if for instance they should erect a lamp post and leave it unprotected in the middle of a highway or so close by the highway as to be a danger to persons passing along unless it was properly protected, or allow their gas to escape into someone’s house, those would be negligent acts in the course of doing that which the Legislature has authorised.  But in my opinion Lord Blackburn’s rule is not applicable when it is left to the discretion of a local authority however long they shall keep the lamps alight in their district, whether they shall remove an existing lamp post, and whether they shall cease to supply gas to some lamps and continue to supply to others.  This is not a case of a statutory power, like a power to make a reservoir and maintain a sufficient supply of water therein, negligently exercised; the appellants have merely exercised the discretion invested in them by the Legislature.  They were under no obligation to place a lamp post at this particular spot; having placed it there they were not bound to keep it there; and if they kept it there they were not bound to supply it with gas, and are not to be made liable for merely extinguishing the light at any particular hour.’”


[91]      Scrutton LJ at page 145 made comments to similar effect.

[92]      Mr Murray referred to Cross on Local Government Law (Looseleaf edition) May 2013 at 17 – 98 to the following effect, under reference to Sheppard:

“A highway or street lighting authority acting under permissive powers is not liable for accidents arising from a failure to light.”


[93]      Having regard also to the cases of Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 and MacDonald v Aberdeenshire Council, he  submitted that it would be strange for Scots law to come to a different conclusion on the existence of a common law duty to light. 

[94]      In Gorringe a claimant driving her car on a country road was in a collision with a bus and was severely injured.  The collision occurred at a point in the road where there was a sharp crest followed by a curve.  For some years prior to the accident there had been a slow sign painted on the road surface before the crest but it had subsequently disappeared, probably due to road repairs.  The highway authority were sued for negligence and/or breach of a statutory duty, the contention being that the accident had been caused by their failure to give her proper warning of the danger posed by the crest in the road and in particular by failing to provide a slow sign.  The case reached the House of Lords who held, inter alia, that the public law duties in section 39(2)(3) of the Road Traffic Act 1988, which were not in themselves enforceable by a private individual in an action for breach of statutory duty, did not give rise to a parallel duty of care at common law to take appropriate measures including the painting of warning signs on roads.

[95]      Mr Murray contended that throughout the legislative history of the provision there was no indication that it was intended to confer a civil right of action on a person who contended that they were injured as a result of absence of lighting for whatever reason.  It might be helpful to look at the case of Gorringe, and in particular at the speech of Lord Hoffman. 

[96]      At paragraph 32 he said that he found it difficult to imagine a case in which a common law duty could be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide.

[97]      He went on as follows at paragraphs 38 to 43:

“[38]    My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty.  We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care.  In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty.  A hospital trust provides medical treatment pursuant to the public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice.  The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it.  The law in this respect has been well established since Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430.


[39]      Thus in Dorset Yacht Co Ltd v The Home Office [1970] AC 1004 the House held that the statutory powers and discretions of the Home Office in connection with the rehabilitation of young offenders were not sufficient to exclude liability for a breach of their common law duty of care which arose from their bringing some young offenders to an island and leaving them unsupervised when it was reasonably foreseeable that they would cause damage if they tried to escape.  In Barrett v Enfield London Borough Council [2001] 2 AC 550 the plaintiff claimed that when he was taken into care, the council assumed parental responsibilities over him and so came under a duty of care in respect of the way he was treated.  It was alleged that various acts and omissions had been in breach of this duty.  The council tried to get the claim struck out as disclosing no cause of action because it had been exercising wide statutory discretions.  The House refused to strike out the action.  The plaintiff did not rely upon a common law duty of care generated by the existence of statutory powers.  It is true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so.  It was that which the plaintiff alleged gave rise to the duty.  The statutory powers and duties might have provided the council with defences in respect of its specific acts or omissions but that could not be decided without an investigation of the facts. 


[40]      Similarly in Phelps v Hillingdon Borough Council [2001] 2 AC 619 the local education authority employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties.  The psychologist negligently failed to diagnose dyslexia and, as a result, the plaintiff left school with fewer skills than she would have learned if she had been diagnosed earlier.  The council relied upon the fact that it had provided the psychologist pursuant to its public law duties which were not actionable in private law.  But the House held that the duty of care did not depend upon the statute.  It arose because a psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Health Service.  The fact that the doctor – patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence.  The House decided that no such defence had been established.


[41]      The well-known decent of Lord Atkin in East Suffolk Rivers Catchment Board v Kent [1941] AC 74, 88 was based upon a similar distinction.  Lord Atkin in no way challenged the proposition of Lord Romer, speaking for the majority, that a statutory power could not in itself generate a common law duty of care.  His view was that by going on to the land and commencing the work, the catchment board had done an act which created a common law duty to complete the work with reasonable despatch.  The majority thought that this was insufficient.  But I do not think that there is anything in Lord Atkin’s decent which calls into doubt the principle for which the East Suffolk case is regularly cited and which was applied by the majority in Stovin v Wise [1996] AC 923. 


[42]      An attempt to apply similar reasoning appears in the difficult case of Bird v Pearce [1979] RTR 369.  The plaintiff was a passenger in a car on a major road who was injured in a collision with a car which emerged from a minor road.  The diver of the second car, who was agreed (as between the two cars) to be 90% responsible joined the county council (as highway authority) as a third party, alleging it had negligently removed and failed to repaint the warning lines which customarily indicated to drivers that they were entering upon a major road.  The Court of Appeal held that by removing the lines, the council had created a hazard. 


[43]      The reasoning of the Court of Appeal appears to have been that by painting the lines in the first place, the council had created an expectation on the part of users of the main road that there would be lines to warn people on side-roads that they were entering a major road.  This may be a rather artificial assumption and I express no view about whether the case was correctly decided.  But I would certainly accept the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation.”


[98]      The circumstances in the case of MacDonald appear sufficiently from the rubric. Section 1(1) of the Roads (Scotland) Act 1984 provides that a local roads authority shall manage and maintain all such roads in their area and have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it may be exercised.  The pursuer raised an action of damages arising out of a collision which occurred at a crossroads.  The action was raised against the local council and the roads authority, at common law.  The averments set out that there was no sign giving sufficient advance warning of the presence of the junction and that although the defenders inspected road markings monthly they had taken no steps to renew the road markings and did not do so within 24 hours.  Certain steps were averred to have taken place after the accident to reline the road markings and the pursuer averred that these ought to have taken place before the accident.  It was averred that the defenders had created a danger to road users and had failed to take reasonable care to devise, institute and maintain a reasonable system of installation, inspection and repair of the road markings and signage at the junction.  The action was dismissed by the Lord Ordinary as fundamentally irrelevant.  The Inner House held that there was a duty of care on the defenders but the pursuer’s averments did not make out a reasonable foreseeability of an accident being likely to occur. They also held that for a roads authority to be liable an injury must be caused by a hazard that would create a significant risk of an accident to a careful road user and the authority must be at fault in dealing with the hazard.  There were no averments directed to that issue. 

[99]      I will return in due course to some of the dicta in that case.

[100]    Mr Murray also referred to the case of East Suffolk Rivers Catchment Board v Kent, to which I have already referred.  In that case a breach was made in a sea wall owing to a very high tide as a result of which the respondent’s land was flooded.  The appellants in the exercise of statutory powers undertook the repair of the wall but carried the work out inefficiently so that the flooding continued over 178 days, thereby causing serious damage to the respondent’s pasture land.  By the exercise of reasonable care the breach in the wall might have been repaired in 14 days.  It was held that the appellants being under no obligation to repair the wall or to complete the work after having begun it were under no liability to the respondents, the damage suffered by them being due to natural causes.  The only duty owed to any member of the public was not to add to the damages which that person would have suffered had the authority done nothing.  At page 87 Viscount Simon LC said the following:

“Moreover, as Scrutton LJ has pointed out in Sheppard v Glossop Corporation Lord Blackburn’s passage must be read in the context in which it was pronounced.  I agree with DuParcq LJ that it would be misapplied if it were supposed to support the proposition that a public body, which owes no duty to render any service, may become liable at the suit of an individual, if once it takes it upon itself to render some service, for failing to render reasonably adequate and efficient service.  On the other hand, if the public body by its unskilful intervention created new dangers or traps, it would be liable for its negligence to those who suffered thereby…”


[101]    Mr Murray referred to the cases concerning failures by roads authorities to clear snow and ice and submitted that in those cases certain concessions had been made regarding the existence of a common law duty. The court had at various times doubted those concessions.  He referred to Syme v Scottish Borders Council 2003 SLT 601, Morton v West Lothian Council 2006 Rep LR 7 and Rainford v Aberdeenshire Council 2007 Rep LR 126.  In Ryder v Highland Council 2013 SLT 847, Lord Tyre accepted that there was a common law duty but the basis for that was an acknowledgement of previous cases in which that assumption had been made.

[102]    The existence of a common law duty of care to clear ice and snow was distinguishable from a purported duty to light, precisely because the former appears to have been assumed in many previous cases.  There is no such body of case law on lighting.

[103]    For present purposes I do not think it necessary to discuss the details of the snow and ice cases.

[104]    Under reference to Mitchell v Glasgow City Council 2009 SC (HL) 21 Mr Murray submitted that no common law duty of care arose from assumption of responsibility by the defenders for providing street lighting.  He referred in particular to paragraphs 22 and 23 of the report where Lord Hope of Craighead gave examples of categories in which a common law duty of care was recognised. 

[105]    In Mitchell the widow and daughter of a deceased local authority tenant raised an action of damages against the local authority.  The tenant died from wounds received in an assault on him by another tenant who had previously threatened to kill him.  The local authority was aware of a long history of previous incidents of threatening and aggressive behaviour by the other tenant towards the deceased.  Written warnings had been issued to the tenant by the local authority in respect of his tenancy and a meeting was held with him following which he attacked the deceased.  It was averred that the local authority had a duty of care to have evicted the tenant before the assault and to warn the deceased about the meeting.  It was held that a duty to warn another person that he was at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk.  The defenders having assumed no such responsibility the case was irrelevant at common law. 

[106]    I should point out at this stage that at paragraph 29, Lord Hope of Craighead said the following:

“As I have already noted, in Caparo Industries Plc v Dickman ((1989), p703), Taylor LJ summed the matter up by saying that fairness and public policy were the tests.  Public policy was at the root of the decision in Hill v Chief Constable, West Yorkshire about the scope of the duty owed by the police which the House followed in Brooks v Commissioner of Police of the Metropolis and again in Smith v Chief Constable, Sussex Police (see Van Colle v Chief Constable, Hertfordshire Police).  I would take the same approach to this case.  The situation would have been different if there had been a basis for saying that the defenders has assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so.  It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship.  But it is not suggested in this case that this ever happened, and senior counsel for the pursuers very properly accepted that he could not present his argument on this basis.  I would conclude therefore that it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps that they were taking, and that the common law case that is made against them is irrelevant.  I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as a result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk.”


[107]    Mr Murray submitted that none of the examples of assumption of responsibility given by Lord Hope or by Lord Scott of Foscote in the same case was similar on its facts to the instant case.  There were no circumstances in this case which pointed to any assumption of responsibility.  I would not be fair, just and reasonable to impose a hitherto otherwise unrecognised common law duty of care on the defenders and referred to Caparo Industries.  The development of new forms of duty of care should be incremental and by analogy with established categories.  Reference was made in particular to the speech of Lord Bridge, quoting the Australian case of Sutherland Shire Council v Heyman (1985) 60 ALR 1 per Brennan J at 43 – 44.

[108]    Counsel also referred to the case of Michael & others v Chief Constable of South Wales Police & anor [2015] 2 WLR 343, a case involving a question as to the duty of the police to individual members of the public. 

[109]    If there was a common law duty on the defenders to provide lighting they had discharged that duty.  On the evidence of the consideration given to the proposal to reduce the street lighting and the decision making process there was nothing which was so obviously unreasonable, capricious or eloquent of an abuse of power by the defenders such as to lie outside the range of reasonable decisions and practices of a roads authority. 

[110]    Reference was made to Morton v West Lothian Council and Gibson v Strathclyde Regional Council 1993 SLT 1243.

[111]    Under reference to X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Phelps v Hillingdon London Borough Council [2001] 2 AC 619 and Ryder v Highland Council, Mr Murray submitted that the decision to cease street lighting during certain hours was non-justiciable in this action.  I did not understand Mr Hajducki to argue the contrary and I need say no more about this.

[112]    Mr Murray’s next submission was that the change in lighting policy could not have caused the accident.  On the pursuer’s own account it occurred sometime around 0200, while Mr McIntyre said it was between 0200 and 0230.  Neither witness was precise as to the timing.  If the lighting had operated according to the previous policy it would have ceased at 0100.  The change to digital clocks on 1 November 2011 would also have resulted in the lights going off at 0100 (I think this must mean midnight). The change in policy could not have caused the accident.  If the lighting on 27 November 2011 was subject to the discretionary power the lights would have gone off at 0200 and once again the change in policy could not have been causative of the accident. As I have indicated, I find that that power was not exercised in the area will Spring 2012.

[113]    If the evidence of the pursuer’s witnesses that the lights were previously on all night was accepted then it would have been the change to a digital clock, not the change in policy which would have caused the accident.

[114]    Mr Murray discussed the question of whether there was a common law duty to notify the pursuer of a change in lighting.  Section 35 of the 1984 Act did not require notification.  Section 1(4) provided for notice if the authority was going to delete a road from the list of public roads.  If there was a duty to notify then Parliament could have said so. 

[115]    Section 35 was not intended to confer a civil right of action.  It was not intended to protect any particular section of the public and that went against the existence of a duty of care.  The proposition that there might be a common law duty to notify the public of the exercise of statutory powers was not supported by authority.  The pursuer would have to establish a general duty on roads authorities to notify the public of a change in lighting policy.  The issue of notice did not arise at all in the Sheppard case.  In Morton v West Lothian Council, at paragraph 67, Lord Glennie said the following:

“To my mind, this formulation of the pursuer’s case itself causes difficulties.  It assumes that the general duty of care translates, in the circumstances which prevailed, into a duty on the part of the defenders to grit that stretch of road; for if there were no such duty, the failure of the driver to follow the L3 route for whatever reason, could not give rise to a claim by the pursuer against the defenders.  But the general duty of care owed by the roads authority to road users is not so specific.  In order to move from the general duty of care to a specific duty to take care to treat a particular road, and to do so by a particular time in the morning, it would need to be shown that such treatment was not just a requirement of the particular strategy adopted by the roads authority acting reasonably, but that it would necessarily have been a requirement of all strategies within the range of strategies that the local authority, acting reasonably in response to the predicted and actual weather conditions, could properly have adopted.  If one strategy, amongst the entire range of strategies that the roads authority could reasonably have adopted, did not involve gritting that stretch of road, it cannot be said that the general duty of care translates into a specific duty to grit that stretch of road; nor is the failure to grit that stretch of road a breach of that general duty.  Not surprisingly, no such case was put forward.  This is, of course, not the only circumstance in which a specific duty of care of this type might be established.  The existence of a specific duty might, in a particular case, be established by, for example, evidence demonstrating an assumption of responsibility by the road authority in respect of the particular stretch of road made known to and relied upon by the particular road user or users.”


Mr Murray submitted that that could be read mutatis mutandis in relation to the policy as to lighting.  Furthermore the pursuer had not pled a case relating to notice and there was no evidence about the range of strategies which the local authority could reasonably have adopted.  The practice would have had to fall outwith the range of strategies they could have adopted.  The pursuer would have to prove that no reasonably local authority would have failed to put up notices or inform residents of the policy.  Reference was made again to the Gorringe case.  There was no duty in that case to warn of the hazard. 

[116]    There were no pleadings in the instant case establishing proximity.  The pursuer’s case in MacDonald was dismissed as irrelevant and it was a chapter 43 case. 

[117]    Mr Murray went on to submit that in the event I were against him I should nonetheless make a finding of contributory negligence.  The pursuer knew or ought to have known from around 1 November 2011 that there would be no street lighting in Lochboisdale after midnight.  In the second place he ventured out after midnight knowing it was dark.  He failed to take a torch with him and he did not get a lift home or have Mr McIntyre illuminate his path home.  In each of these failings he was taking a calculated risk. 


Reply for the pursuer

[118]    Mr Hajducki did not have much to add.  The evidence was what I made of it.  The reference to the petition by the Beatons was neither here nor there.  Ms MacAulay was an unemotional witness.  It was her employee who was injured but she was not biased or in any way partial.

[119]    Counsel agreed that expenses should follow success.



The facts

[120]    I am quite satisfied that the pursuer sustained an accident as he averred.  I am satisfied that he had left his employment before going to visit Mr McIntyre and then that the latter and his wife dropped him off near his home sometime after 0200 hours.  I do not think that it matters that he did not mention that he had been at Mr McIntyre’s home.  The pursuer realised that he had left his keys and in turning round he tripped, causing his injury.  The streetlights were off at the time and I find that they were probably turned off at midnight.  During the evidence of Mr MacArthur and Mr MacKinnon, which was unchallenged in this regard, it is likely that the lights had been going off at midnight since 1 November, almost four weeks before the accident.  They would be lit again at 0630.  This was in implement of a policy which was agreed by the defenders in February 2011.  That policy followed a period of consultation and then advertisement, all as spoken to by Mr MacKinnon, whose evidence in this regard I accepted.  The consultations were over a widespread area but were not restricted to the question of lighting.  They included a number of areas in respect of which budgetary cuts had to be made.  No posters or notices advertising the meetings were placed on lamp posts in Lochboisdale Hotel nor in the hotel itself, which is the social hub of the town.  Not everyone in Lochboisdale was aware either of the consultation process, the making of the decision or the date of its implementation.  In particular the witnesses who gave evidence for the pursuer were not so aware, with the exception of Karen MacAulay.  She heard rumours in the bar and complained before the accident.  In addition a few days before the accident people came into the bar complaining about the lights being switched off.  Given what I am going to say about the period during which the lights were switched off at night, I do not think that is of any assistance to the pursuer.  On any view of the evidence, prior to the implementation of the new policy the lights would not have gone off before 0100 , or perhaps 0045 or 0115, given the vagaries of the mechanical clock.  I find it likely that any complaints made in the bar would be because of the lights going off between midnight and 0115, when stragglers would be leaving the hotel.  I am not satisfied that it has been established that the lights remained on any later than 0115. 

[121]    The pursuer said that he did not remember them ever going out at night.  On the night of his accident he left the hotel at around 0015.  If that was when he normally left then he would have gone home when the lights were still on, before the change in policy.  It is not at all clear why he did not know that the lights had gone off from midnight between 1 November and the date of his accident but there is no doubt on the evidence that the lights went out at midnight, as I have indicated, almost four weeks before it.  When it was suggested to him that from February 2013 the lights were turned off between 2300 and 0630 he said that he was not sure.  His evidence on this matter is unreliable, although I do not consider that he was being deliberately dishonest.

[122]    The same goes for Eileen Beaton.  She frequently went out at night as a teenager, but there was no evidence as to when she came home.  She had not lived on the island since 2003 or thereby and only came home to visit.  While she did notice a change, it seems to me likely that it was the change between midnight and 0100 hours which she saw.  That would be the sort of time when people would be leaving the hotel.  Once again I find her evidence on this matter unreliable, albeit credible. 

[123]    Her father Lawrence Beaton lived on the island and opponed that the lights were always on all night.  Once again, though, there was no specific evidence as to what time of night he would find himself out and about and the change from 0100 hours to midnight may well have affected his perception of what was going on.

[124]    Angus McIntyre lived a couple of hundred metres from the pursuer and in Lochboisdale for around 34 years.  He could not see if the lights were on all night but thought that they went off at perhaps 0100 or 0200.  He was aware that they would go off at some point, although he was not a night owl.  He was of no assistance to the pursuer.  On the other hand his account was supportive of the defenders’ case.

[125]    Karen MacAulay was fairly adamant in her evidence but it was not at all clear to me whether she ever left the hotel after it closed.  She was told by irate customers about the change after it took effect, but as I have said, it seems to me likely that people would be complaining if the lights went off at midnight rather than 0100 hours and it does not assist me in determining whether or not the lights were on all night before the new policy was implemented.

[126]    Had matters been left as they were, despite my misgivings about the reliability of these witnesses I would have had no particular reason to discount their evidence, so far as it went, as to the lights remaining on all night, subject to the discrepancy between the evidence of Mr McIntyre and the evidence of the others.  However, matters did not end there. 

[127]    It seems to me that the evidence of Mr MacKinnon and more particularly Mr McArthur is fatal to the contention of the pursuer and others that the lights were on all night. 

[128]    Mr McArthur’s position was that before 1 November 2011 the lights went off between 0100 and 0700.  After that the hours were midnight until 0630.  From Spring 2012 the lights were off between 0200 and 0630 near the hotel at weekends, in pursuance of a discretionary policy.  That policy was still in effect from February 2013 but the lights were otherwise out from then between 2300 and 0630. 

[129]    He did not live in the area and neither he nor Mr MacKinnon was able to give direct evidence about what the state of the lighting was at night-time in the area because they were never there.  However Mr McArthur’s evidence as to the operation of the mechanical and then the digital clock was of significance.  If the mechanical clock worked correctly then the lights would go out, in terms of the original policy, at 0100.  There was no challenge to the evidence that this was the policy prior to 2011 and I accept that evidence.  Mr McArthur confirmed that from time to time the mechanics were such that the lights might go off or on 10 or 15 minutes either side of 0100 hours and he also confirmed that there might be other explanations why, from time to time, the lights would remain on, such as a lightning strike.  However, no complaints were made that the lights had remained on although they would not expect there to be such complaints.  Of significance, however, is Mr McArthur’s evidence, which I accept, that the systems were checked when the clocks went forward in March and back in October.  No defects were found.  It would have been apparent from these checks if the lights were on when they were not supposed to be.  Given that evidence, I cannot hold that the lights were on before the accident any later than 0115.  Once that finding is made it seems to me that the whole basis of the pursuer’s case disappears. 

[130]    The pursuer averred that the defenders knew or ought to have known that Lochboisdale has a population of approximately 300 residents.  They knew or ought to have known, particularly with the hotel being there, that patrons and employees of the hotel would have reason to leave the hotel and require to walk along the streets and footways between midnight and 0700.  With no other natural forms of lighting during those hours they knew or ought to have known that the pursuer and others would be at risk of injury.  As I understood Mr Hajducki’s submissions lighting was put in place for public safety and before the lights, which had previously been on all night, were extinguished there should have been proper notice and proper consultation.

[131]    Since I have taken the view that the lights were not on all night prior to the accident and that in particular they were off at 0115 at the latest, it follows that neither the policy itself nor its implementation could have caused any accident after 0200, whether there was a lack of consultation and notice or not.

[132]    No case is made against the defenders in relation to maintenance of the lights.  Even if they were on all night, contrary to my findings, there is no suggestion that the defenders knew or ought to have known that that was the position and acted accordingly.  It is not suggested that the system of inspection was defective.

[133]    The whole case, as I understand it, is dependent upon the lights having been on all night prior to the accident.  Since that is not made out there can be only one result. 


The Law
[134]    In view of the decision I have reached on the facts it is not strictly necessary for me to say anything further.  However, in deference to counsels’ careful submissions as to the law, I should perhaps make a few comments.

[135]    Mr Murray argued that the policy per se was not justiciable in the present action.  Any attack would have had to have been by way of judicial review.  Mr Hajducki for his part did not seek to argue the contrary and I have little difficulty in holding that Mr Murray’s submission was correct.  Section 35 of the Roads (Scotland) Act 1984 plainly invests the defenders with a discretion rather than a duty to provide lighting.  There appears to be no common law duty to provide lighting, at least as far as the authorities cited to me are concerned.

[136]    I need not pass any comment on the snow and ice cases as the situation I am dealing with here is far removed from those. 

[137]    Care must be taken in looking at English authorities in the area of the responsibility of local authorities.  Scots law appears to be rather more generous to pursuers in this regard than the law of England.  Sheppard v Glossop Corporation, cited by Mr Murray, is authority for the view that a local authority, who had previously undertaken to light a road, would not be liable in damages for an accident caused merely by a decision to turn the lights off.  Something more would be required.

[138]    As I read the cases, an action would lie if local authorities in England were negligent in doing what they were authorised but not obliged to do, i.e.if they did it negligently and thereby caused damage.  See the cases and dicta I have already referred to.  The issue in each case will be, I think, whether what was done was done negligently or not.  That will be a matter to be judged according to the circumstances. 

[139]    In MacDonald, the facts of which I have already set out, the pursuer averred that drivers had a reasonable expectation that junctions on the road would be marked and the defenders had a duty to devise, institute and maintain an effective system of management of the roads for which they were responsible.  It was reasonably foreseeable that if motorists did not give way at the junction an accident would occur.  At paragraph 12 of her opinion, at page 119, Lady Paton, in dealing with submissions for the pursuer, noted that the pursuer’s case was not based upon her having previously travelled through the junction relying upon the lines and signs, in contrast with the case of Bird v Pearce.  She founded upon reliance by the driver on the main road on the system or road marking.  So far as he was concerned his right of way was secured and he did not have to slow down or take particular care at the junction.  Amongst other things, it was argued for the defenders that in the absence of previous reliance by the road user or special risk at a junction there was no duty of care to repaint faded road markings or to place warning signs.  Foreseeability of injury was not enough.  There also had to be a sufficient degree of proximity between the parties.  The defenders had not actively involved themselves in the situation at the road junction.  They had not undertaken road works, created a trap or performed an action such as to assume responsibility for the road junction.

[140]    At paragraph 35 Lady Paton referred to the fact that a roadway may present a variety of situations ranging from the irritating and inconvenient to the extremely dangerous.  She gave examples.  She then said the following:

“Whether or not a common law duty of care is, in the circumstances, owed to road users by the roads authority will depend upon statutory provisions (eg 1984 Act, sec 34, relating to ice and snow) and/or the particular factual circumstances of the case (cf X (Minors) v Bedfordshire County Council, Lord Browne-Wilkinson, p739C):


‘[T]he question whether there is such a common law duty, and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.’”


[141]    She  accepted that in Scots law (if not in English law), a consideration of these matters might result in the imposition of a common law duty of care owed to a road user by the roads authority and referred to McFee & ors v Police Commissioners of Broughty Ferry; Smith v Middleton (No 1); McKnight v Clydesdale Buses Ltd; Mitchell v Glasgow City Council, para 25; and Gibson v Orr, per Lord Hamilton at  p435C, as follows:

“The functions … of roads authorities in respect of the management and maintenance of public roads are laid down, commonly by statute, in similar ‘public’ terms.  However it has never, so far as I am aware, been doubted in Scotland that as regards operational matters, a duty of care is owed by such authorities and their servants to road-users – a duty not directly under the statute but a duty arising out of the relationship between those authorities and road-users created by the control vested by statute in the former over the public roads in their charge”.


[142]    At paragraph 41 on page 126 Lady Paton went on:

“As for the nature of the relationship between the parties, it is my view that drivers using the crossroads were sufficiently proximate to the defenders to give rise to the imposition of a duty of care owed to them.”


[143]    In paragraphs 42 and 43 she dealt with the averments as to foreseeability and continued:

“Bearing in mind the averments and lack of averments listed in para 42, and taking into account the guidance in Jamieson v Jamieson, I am satisfied that the pursuer’s averments, even if proved, would not entitle her to the remedy she seeks, because it was not reasonably foreseeable that an accident was likely to occur at the junction.  Nor, in my opinion, would it be fair, just and reasonable to impose a common law duty of care on the defenders as was submitted by the pursuer, as the situation at the crossroads did not (prior to the accident) present as a high priority situation with obvious danger demanding prompt attention from the roads authority, burgeoned as it is with many tasks and duties to perform.  In my opinion, in the circumstances of this particular case as averred on record, the only duty owed by the defenders was of a public, general nature, namely to repaint the lines in the course of their routine rolling programme of repair and maintenance in the exercise of their statutory powers, and on the basis of a timetable fixed by them (using their judgement and discretion, the guidance given in local authority manuals and codes, and affording certain matters priority over others) …”


[144]    She went on at page 46:

“Thus in the circumstances of this case as averred on record, I respectfully agree with Lord Rodger’s approach as set out in Gorringe v Calderdale Metropolitan Borough Council, namely that, in the particular circumstance, no duty of care owed to the pursuer was imposed on the defenders. As he put it:


‘[87]     By deciding to paint the lines at the junction – presumably because of the perceived risk of collisions – [the roads authority] would have come under a duty to do so carefully and not in a way that would aggravate any dangers at the junction.  But they had not somehow imposed on themselves, retrospectively, a common law duty to paint the lines or, prospectively, to paint them back if they were obliterated. 


[88]      In exactly the same way, in the present case, the mere fact that the defendants had once painted the “Slow” sign on the road does not mean that they had been under a common law duty to do so, or that they were under such a duty to repaint the sign when it came to be obliterated.  When that happened, the situation returned to what it had been before the defendants decided to exercise their statutory powers by painting it in the first place.  They were not under any common law duty to exercise their power to repaint it and are not liable because, for whatever reason, they did not do so.  Of course, if they had done so, it might have helped motorists.  And after [Mrs Gorringe’s] accident, they did indeed repaint the marking and make a number of other changes.  But this was something that they decided to do in the exercise of their statutory powers, not something that they were under a common law duty to do.’”


[145]    Lord Drummond Young, at paragraph 54, concluded that English law was different from Scots law and, at paragraph 55, found that any liability of a roads authority to users of the road must be found in the general law of negligence. 

[146]    Having reviewed the authorities, he said the following, at paragraph 63:

“In the light of the foregoing history, the current state of the law is in my opinion as follows.  A roads authority is liable in negligence at common law for any failure to deal with the hazard that exists on the roads under its control.  A ‘hazard’ for this purpose is something that would present a significant risk of an accident to a person proceeding along the road in question with due skill and care.”


He went on at paragraph 64 as follows:

“This means that for a roads authority to be liable to a person who suffers injury because of the state of a road under their charge, two features must exist.  First, the injury must be caused by a hazard, the sort of danger that would create a significant risk of an accident to a careful road user.  Secondly, the authority must be at fault in failing to deal with the hazard.  This means that the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it, whether by altering the road, or by placing suitable signs, or in an extreme case by closing the road (as in McFee and Gibson v Orr if the latter case had involved the actings of the roads authority).  Those two requirements are in my opinion of great importance.  The first means that roads authorities are entitled to act on the assumption that drivers and others who use the roads proceed with reasonable skill and care.  That means that it can be assumed that drivers will have regard to any obvious dangers on the road and drive accordingly.  There is no obligation on a roads authority to protect drivers from anything that is obvious.”


At paragraph 78 he said the following:

“So far as Scotland is concerned, it is not suggested that the civil liability of a roads authority arises by implication from its statutory powers; it is rather a common law liability that was imposed, possibly on the basis of Roman law, well before the modern statutory system of roads legislation came into being.  The Scottish liability has always been recognised as a private law delictual liability.”


[147]    Both Lady Paton and Lord Drummond Young pointed out that the averments in that case, although it was a chapter 43 case, were irrelevant.  They did not sufficiently aver the existence of a hazard or foreseeability of any accident.  In addition they were lacking in specification to the extent that the action should have been dismissed on that account also. 

[148]    I have noted that Lord Drummond Young pointed out that there was no obligation on local authorities to protect drivers from anything that was obvious.  It is difficult to categorise darkness as anything other than obvious.  It comes every day at more or less the same time, depending on the season.  However I am of opinion that a case could be made for common law liability on the part of local authorities who had switched off lights where it was averred and proved that a pursuer had come to rely on the lighting and that it was switched off negligently.  By negligently I mean without taking reasonable care to see to it  that those whom the authority knew or ought to have known relied on the light were made aware that it was about to be switched off.       I should say by way of parenthesis that while there was evidence that the local authority did not cause posters or notices to be erected, the issue for me was whether the steps which they did take would have been reasonable in the circumstance, not whether they might also have taken other steps. Although it is not necessary for me to make any finding in this regard, I should indicate that in my opinion the steps which the defender did take were in fact reasonable and I would not have found against them in that regard. 

 [149]    The averments in the instant case do not appear to support a case based on the hypothesis I have outlined, although I do not have to decide that in view of my opinion as to the facts.  In such a case I do not think that Caparo would assist the defenders.  I am satisfied that the relationship between such a pursuer and the defenders would be sufficiently proximate and that it would be fair, just and reasonable to impose the duty. 

[150]    A case could, I think, be made based on assumption of responsibility by the local authority but I do not think that the pleadings in this case allow that to be advanced.

[151]    I offer these remarks purely out of respect for the arguments which were advanced and in the knowledge that they are obiter given the opinion which I have expressed as to the facts.


Contributory negligence

[152]    If I had been with the pursuer there would have been no basis, it seems to me, for any finding that he was to any extent at fault.  I accept that he did not know that the lights were going to be switched off and accordingly I do not see how he can be criticised for not taking any precautions. 


[153]    I shall assoilzie the defenders from the conclusions of the summons and I shall find the pursuer liable to the defenders in the expenses as taxed.