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ELIZABETH NUGENT v. GLASGOW CITY COUNCIL


Submitted: 24 June 2009

OUTER HOUSE, COURT OF SESSION

[2009] CSOH 88

PD1224/08

OPINION OF LORD BRODIE

in the cause

ELIZABETH NUGENT

Pursuer;

against

GLASGOW CITY COUNCIL

Defender:

________________

Pursuer: Di Rollo QC, MacGregor; Allan McDougall,

Defenders: Geoff Clarke QC, Hastie; City of Edinburgh Council Solicitor

24 June 2009

Introduction

[1] This is an action for damages for personal injury to which chapter 43 of the Rules of Court applies. The pursuer is Elizabeth Nugent. Her date of birth is 24 August 1956. She sues Glasgow City Council, as roads authority, for the injuries she sustained as a result of tripping in a hole on the east footpath of West Nile Street, Glasgow, at a point south of its junction with Bath Street, on 11 January 2006. She concludes for payment of £200,000.

[2] By interlocutor of 20 May 2009 proof in the action was separated into a proof on liability and contributory negligence, to be heard on 26 May 2009, and a proof on quantum to be heard subsequently. I heard the proof on liability and contributory negligence on 26 May and the three subsequent days. Mr Di Rollo QC and Mr MacGregor appeared for the pursuer. Mr Geoff Clarke QC and Mr Hastie appeared for the defenders. In addition to the pursuer, three witnesses were led on her behalf: Ms Lynn Williamson, the pursuer's cousin; Mrs Marlene Smith, a work colleague; and Mr Stewart Paton, Consulting Engineer. The defenders led: Mr Colin Storrie, Safety Inspector; Mr Alistair Weir, Roads Inspector; and Mrs Christine Francis, Infrastructure Manager and former Roads and Lighting Manager. I considered that all witnesses to fact were to be regarded as credible and within the inevitable constraints imposed by the matters upon which they were asked to give evidence, reliable. Although not formally qualified, Mr Storrie and Mr Weir were experienced roads inspectors. Both had seen the hole in which the pursuer tripped. They were shown photographs of it. They were asked to give views as to what sort of risk it presented. In giving that evidence my impression was that both were trying to be fair and objective. Both Mr Paton and Mrs Francis are chartered engineers. They are both well qualified to express opinions in the matters of road maintenance that were raised before me. Mrs Francis is an employee of the defenders but I did not take her to be any less objective in her evidence than Mr Paton. I did not understand counsel to encourage me to assess the relative degree of independence of the respective professional witnesses and, following that lead, I have attempted to give what each of these witnesses had to say equal weight.

The pursuer's fall
[3] I had no difficulty in finding it to be established that the pursuer fell while walking on the east footpath of West Nile Street, Glasgow, at a point south of its junction with Bath Street, on the afternoon of 11 January 2006 and that she did so because she stepped into a depression in the pavement which she described as a "hole".

[4] On 11 January 2006 the pursuer was working as senior finance officer for a charity, "One Plus", in its office at 55 Renfrew Street, Glasgow. During the afternoon she walked to the Cooperative Bank in Gordon Street in order to pay in a cheque. Gordon Street is to the south of Renfrew Street. Conditions were dry. The pursuer was wearing a pair of flat-soled loafers. Having paid in the cheque the pursuer returned up West Nile Street. Because of the presence of road works she crossed onto the east footpath and walked north. She had just passed Bath Street Lane, which makes a junction with West Nile Street on its west side, and was walking along a portion of the east footpath the width of which was restricted by the presence of hoarding when her left foot "caught in a hole", she stumbled forward and fell heavily, dislocating her elbow. She was unable to lift herself from the pavement. She was assisted by a number of people, one of whom was a barber whose shop was directly across the road on the west side of West Nile Street. The pursuer was taken to hospital.

[5] When it came to submissions Mr Clarke contended that the pursuer had not proved that the proximate and effective cause of the pursuer's accident was the presence of the hole in the footpath. He did not dispute the presence of the hole on 11 January 2006 and he did not dispute the account of the pursuer as to how she came to fall. However, he contended that given that the presence of the hole was obvious and that the pursuer could not say that there had been anyone walking towards her at the critical time, she had failed to prove that the direct cause of her fall was the presence of the hole as opposed to her failure to look where she was going and to avoid stepping into it. I accept that this contention is open to the defenders. I do not uphold it. I can see that where someone ignores an obvious hazard and as a result sustains injury then the direct cause of the injury may be the ignoring of the hazard rather than the hazard itself. That is not the case here. I heard no evidence to suggest that the pursuer did other than negotiate the footpath in the way that any pedestrian might be expected to have negotiated the footpath in the prevailing conditions. In particular there was no evidence that she failed to exercise due care for her own safety. While it can always be said, fairly or otherwise, of someone who has lost their footing, that they failed to look out where they were going, this was not put to the pursuer in cross-examination. While that may not be conclusive, in the circumstances here I find it established that the proximate and effective cause of the pursuer's accident was the presence of the hole in the footpath.

[6] When the pursuer returned to West Nile Street on a later occasion she spoke with the barber in order to thank him for his assistance on the occasion of her accident he told her that a number of people had had accidents at the hole which had been there for a substantial time. He had reported it on a number of occasions. The barber, the pursuer explained, was now deceased.

[7] The pursuer instructed solicitors with a view to making a claim for reparation. A claim was intimated to the defenders by letter of 9 May 2006.

The hole
[8] Much of the evidence consisted of a description and consideration of the hole in which the pursuer caught her foot. It was variously described as a "hole", a "depression", a "defect", and a "crater". It is illustrated in a series of photographs taken by Ms Williamson in the company of the pursuer.

[9] The first set of photographs was taken with a disposable camera on 15 January 2006. The whole film was exposed. These photographs form 6/19 of process. A further nine photographs were taken with a borrowed digital camera about a week or two weeks later. They form 6/16/1 of process. A further four photographs were taken about a week after that on a second visit by the pursuer and Ms Williamson to West Nile Street. These are 6/1 and 6/16/2 and 6/16/3 of process. Number 6/16/2 of process shows the pursuer's left foot positioned in the hole. This photograph was not taken to show the precise position of the pursuer's foot when she tripped but merely to demonstrate that her foot in the shoe she was wearing when she fell fitted in the hole. The other three photographs are views which include a 30cm folding ruler that the pursuer had brought in an attempt to illustrate the dimensions of the hole. These were taken on a third visit, perhaps a week after the second visit. It was the pursuer's evidence that all of these photographs had been taken by the middle of February 2006. A group of five photographs were taken by the pursuer's daughter on 4 May 2009 in order to illustrate the hole following its repair. These form 6/18 of process.

[10] The pursuer went back again to the scene of her accident in August 2006 to find that the hole was still there. Nothing, she said, had changed.

[11] The footpath where the hole was situated is constructed from granolithic concrete. It has a kerbstone on its west side dividing it from the carriageway of West Nile Street. The hole was close to that kerb. In Mr Paton's opinion the original damage to the concrete had been caused by an excessive weight such as might be imposed by the wheel of a heavy vehicle or the outrigger of a crane. That is supported by the roughly concentric pattern of cracks in the surface of the surrounding concrete illustrated by the photographs. The perimeter of the hole was irregular but I consider that, on the evidence, Mr Clarke was entitled to describe it as being very approximately dish-shaped. It was deepest towards its centre where the concrete had been entirely displaced revealing the underlying infill. Thus, as I understood the evidence, at the centre of the hole, the concrete forming the surface of the footpath was completely absent. I did not hear evidence as to the specification of the depth of the concrete on this granolithic pavement. Moving out from the centre of the hole, broken fragments remained in situ, some inclining towards the centre. Number 6/16/2 of process shows the toe of pursuer's left shoe positioned against an edge or lip formed by a broken piece of concrete standing proud at the north perimeter of the hole. The edge does not appear to be deeper than the depth of the sole of the shoe but, as Mr Paton argued, the sole of a shoe may be expected to curl somewhat upwards at its toe and the base of the sole may not be resting on the lowest point of the hole. Number 6/16/3 of process is an out of focus shot of a 50 pence piece on edge. I did not find it of assistance but would record the information provided by Mr Clarke that a 50 pence piece is 27mm across.

[12] Both the pursuer and Ms Williamson gave two or two and a half inches as their estimate of the depth of the hole at its deepest point from the surface of the undamaged pavement. The Investigation Report dated 16 March 2006, 6/11 of process, compiled by Jean Brown (who did not give evidence), records a "centre depth" of approximately 2 inches. On one of their visits to West Nile Street the pursuer and Ms Williamson had a ruler and clearly used it to measure the extent of the hole in area. This they gave as about 12 inches by 12 inches. It was my impression that it was the area of the hole that they were particularly concerned with as opposed to its depth. I consider Mr Clarke to have been correct when he said in submission that it was not clear as to how the measurement of depth had been carried out, if indeed it was a measurement rather than an estimate. There was force in Mr Clarke's observation that the extent to which the ruler in photograph 6/1/2 of process is bent at its hinge is not immediately suggestive of a two inch difference between the deepest point of the hole and the surrounding concrete but his proposition depends on the two ends of the ruler being placed on the undamaged level surface of the pavement which may not have occurred. Mr Paton was "comfortable that two inches was an exaggeration". However, Mr Paton was simply working from the photographs and, while I would tend to agree with his conclusion on looking at the photographs, neither he nor I have expertise in photographic interpretation. Mrs Smith estimated the depth at the deepest point by reference to part of the length of her finger which when measured was 40mm. That estimate was, Mr Clarke submitted, to be looked at in a context where Mrs Smith's colleague has been hurt and taken to hospital. Mr Weir went to inspect the hole in response to the intimation of claim on 28 June 2006. He measured the hole at approximately 30mm deep by reference to the level of the underside of a metre rule laid across the hole. As I shall have occasion to return to, in 2005 and 2006 the footpaths and carriageways of the streets in the centre of Glasgow were subject to systematic inspection by employees of the defenders. West Nile Street fell within the area for which Mr Storrie was responsible. He walked it looking for hazards once a month. A record of his inspections is 7/4 of process. On 19 June 2006 he carried out an inspection of West Nile Street and noted a "hole in grano" as a "Category 1 defect" (7/4/58 of process). His note of the measurement included a depth of 30mm taken, he explained, at an edge of the defect.

[13] The pursuer and Ms Williamson did not notice significant changes in the appearance of the hole over the period that they observed it but it was a matter of agreement among the professional witnesses that a hole such as is illustrated in the photographs would be expected to deteriorate over time as a result of the action of rain, frost and physical impacts. Mr Di Rollo pointed to the differences in appearance as between 6/19/I and 6/1 of process as illustrating this as far as the area of the hole was concerned. Number 6/19/I of process suggested a snugger fit for the pursuer's shoe than did 6/1. However, Mr Paton offered the opinion that the hole had existed for a considerable period of time prior to 16 December 2005. This would be consistent with what the pursuer said she had been told by the barber.

[14] Having regard to the evidence summarised above I consider it probable that a hole, broadly similar to what is illustrated in the photographs and as I have described, was in existence on and before 16 December 2005. Its various dimensions are likely to have been less than they were on 11 January 2006 and when inspected by the pursuer and Ms Williamson shortly thereafter, but not substantially so. I would see the main mechanism for the increase in size of the hole to have been further cracking of concrete by reason of the impact of traffic and displacement of broken pieces rather than deterioration due to frost and water action as canvassed with the professional witnesses. I take the measurements spoken to by Mr Storrie and Mr Weir and the locations at which they took them to be correct. Thus, by June 2006 the hole was at least 30mm deep near its centre point but it also had a 30mm edge. I cannot find the feature of a 30mm edge to have been established as probable as at 11 January 2006 or 16 December 2005 in the absence of any evidence to that effect from the pursuer or Ms Williamson but, having regard to their evidence, I take the depth of the hole at its deepest point then to have been not much less than 30mm and more than 20mm.

[15] The repair illustrated in 6/18 of process, by filling in with tar, was relatively easy to accomplish.

The defenders' system and its application to the hole
[16] I have already touched upon the defenders' system of proactive street maintenance. In 2005 and 2006 the footpaths and carriageways of the streets in the centre of Glasgow were subject to systematic inspection by employees of the defenders, one of whom was Mr Storrie. West Nile Street fell within his area of responsibility. Mr Storrie walked both footpaths once a month looking for "anything that is a danger or an obstruction, anything that puts a user at risk". These defects were categorised as either Category 1 or Category 2. Mr Storrie's inspection was visual. This included watching people as they negotiated the footpath. He carried a 15cm steel rule. He made notes in a reporter's notebook and transferred these notes to the pro forma record sheets collected in 7/4 of process. There is a completed Summary of Category 1 Defects sheet for each monthly inspection. There are a few completed Summary of Category 2 Condition Levels sheets. Where Category 1 defects are noted in the footpath dimensions are given. The shallowest depth noted is 25mm. There are a number of examples of depths of 30 or 35mm.

[17] Once completed, copies of the Summaries of Category 1 Defects were faxed to the department responsible for coordinating repairs for attention. Mr Storrie did not consider that he was under any pressure to under-report defects.

[18] Mr Storrie was asked, without objection, to explain how he identified a hole or tripping hazard. He said that there were "guidelines from head office, nationally agreed for all councils". He would look for a trip by which he meant an edge that could disrupt normal passage; a step between two different levels. When asked what was the guidance on a trip or edge he replied that "under 20mm was not a problem but over 20mm was something to consider, 20mm was the intervention point". However, a sudden change of as little as 10mm could amount to a reportable defect. When asked to consider the situation where a hole did not present a trip or edge Mr Storrie explained that a sudden change of 20mm or 40mm was generally a defect but a graduated change in level was commonplace. Where there was no trip or edge he would only consider reporting a hole if it was causing a problem, if, for example people were having to adjust their pace. Even where there was an edge other factors might come into consideration. Mr Weir's evidence was similar to that of Mr Storrie as to the appropriate intervention point. A depth of 20mm was a consideration but this was not "written in stone". When cross-examined he explained that his understanding was that a 20 to 25mm edge satisfied the criteria for a Category 1 defect. However, not every street in the city centre was treated the same way.

[19] Mr Storrie confirmed that what appeared on 7/4/58 of process was the only record of the hole described by the pursuer. He had no memory of this hole. He had no doubt that it had existed on the occasions of previous inspections to that on 19 June 2006. He had no doubt that he would have seen it on 25 January 2006. Because of the presence of the hoarding and the consequent narrowing of the footpath, he would have been quite particular in giving it full consideration. The question, he said, was: when did it become a safety defect? When asked to comment on the appearance of the hole as illustrated in 6/16/1 of process he did not regard it as presenting a risk to safety; it had no edges, it was a hollowed area, there was a lot of stuff in the hole, there was enough of a surface to walk on. It may have constituted a fault but it did not constitute a safety defect. It was not a Category 1 defect. Had he seen a Category 1 defect in December 2005 or January 2006 he would have reported it. Something must have changed in the period between January and June 2006 for him only to have noted a 30mm edge on his inspection on 19 June. Depth was important but less important than change in level. Other criteria were relevant; location, proximity to the kerb, for example. Mr Weir viewed the hole on 28 June 2006; a week after Mr Storrie had identified it as a Category 1 defect. He did not find a 30mm edge or trip. Had he done so he would have considered it as meriting a 2-hour response. His assessment did not put the hole into Category 1. He would have considered a 28-day response adequate. Mrs Francis described a Category 1 defect as one which presented an imminent risk to users. When asked to consider what was shown in 6/16/1 of process she did not consider it to be a Category 1 defect. It was a depression in the footpath. Similarly, when asked to consider what was shown in 6/1 of process she did not consider that to be a Category 1 defect. She accepted that it showed a defect but rather, erring on the side of caution, a Category 2 defect meriting attention in the next cycle of planned maintenance. That the hole had a 30mm edge would not of itself mean that it constituted a Category 1 defect. It would depend on all the circumstances, including how abrupt was the edge.

[20] When Mrs Francis was asked what criteria were employed by the defenders in determining which defects in the footpath should be reported for remedial action, Mr Di Rollo objected on the grounds of lack of record, absence of any documentary production and no foundation in the cross-examination of Mr Paton or the examination-in-chief of Mr Storrie and Mr Weir. I reserved the objection. It was renewed by Mr Di Rollo in submissions in relation to any evidence tending to support an alternative standard to that which can be derived from the Code of Practice for Highway Maintenance (the "Code") in its edition of July 2005. I shall return to this objection when considering how the appropriate standard of care in this case is to be determined.

[21] When the question was allowed to be put, Mrs Francis's answer appeared to be less prejudicial than Mr Di Rollo may have feared. The defenders had adopted the criteria in the Code, albeit in its edition of 2001. Mrs Francis had been on a working party that decided not to adopt the 2005 edition. However, in terms of managing risks the texts of the two editions were essentially the same. A relevant defect was one where there was a rapid change of level of 20mm. Inspectors had some discretion but less so where the change in level was abrupt. There was a liability to catch on a vertical face which was not the case where the difference came about more gradually. She did not think that this was laid down in any written guidance. It was something that was learned in the industry. However, she accepted 20mm as the threshold for investigation.

[22] The defenders' system envisaged a Category 1 defect being rectified within 5 days.

Discussion and decision
[23] Parties were agreed as to the applicable law. They were content to adopt a statement which appears in a decision of mine, Hutchison v North Lanarkshire Council, 7 February 2007, unreported. There I record a submission by counsel for the defenders in that case, with which I agreed. The submission was in the following terms:

"At common law the duty incumbent upon a roads authority in relation to the maintenance of repair of footways or carriageways for which it is responsible is a duty to take reasonable care and does not extend to maintaining the surfaces of these footways, far less carriageways, in a uniformly flat and even condition. Irregularities in those surfaces are to be expected and it will always be a question of degree whether a particular defect gives rise to a reasonably foreseeable risk of injury: McClafferty v British Telecommunications plc 1987 SLT 327, McLaughlin v Strathclyde Regional Council 1992 SLT 959. Even if a pursuer has suffered injury as a result of a defect which presented a reasonably foreseeable risk of injury, that is not sufficient in itself to establish fault on the part of a roads authority. The pursuer requires to establish that it was reasonable and practicable for the roads authority to have become aware of the defect (and to have repaired it) before she suffered injury. In order to do so a pursuer requires to prove that inspection in accordance with a practice common to roads authorities would have revealed the defect or that some special and exceptional circumstances, such as numerous previous complaints about the defect, made it reasonable and practicable to inspect the locus before the accident occurred: Gibson v Strathclyde Regional Council 1993 SLT 1243. In the absence of any evidence establishing failure to comply with common practice, or special circumstances, the failure by roads authorities to implement its own repairs and maintenance policy may give rise to liability: McGeouch v Strathclyde Regional Council 1985 SLT 321, but the allocation of finite resources among competing demands is entrusted to the discretion of the roads authority and the reasonableness of the policy decisions made by the authority is not subject to review by the Court in an action for damages unless the decision is so unreasonable as to fall outwith the ambit of discretion and relates to operational matters: Syme v Scottish Borders Council 2003 SLT 601, Jackson v City of Edinburgh Council, Temporary Judge Gordon Reid, QC, 4 November 2004, unreported."

[24] I did not understand there to be any dispute that, as a matter of generality, a discontinuity or unevenness or depression or other irregularity in an urban footpath, even of quite modest dimensions, can cause a pedestrian using the footpath to trip or otherwise to lose their footing. While not something that required to be established by expert evidence (a very similar observation was made by the first Lord President Clyde in Gordon v Glasgow Corporation, First Division, 26 June 1923, as is noted by Lord Justice-Clerk Ross in McClafferty supra at 328F, and much the same has been said by other judges since) this factual proposition was accepted in terms by Mr Paton at the beginning of his cross-examination. It can therefore be said, as Mr Di Rollo confirmed in the course of his submissions, that any difference in level of a footpath gives rise to the risk of injury. With that consideration in mind, as I understood him, Mr Di Rollo accepted that merely because a depression or change in level presents a reasonably foreseeable risk of injury to pedestrians that does not of itself give rise to a duty on the part of a roads authority exercising reasonable care to restore the footpath to a level condition. A point does come, however, when a roads authority with actual or constructive knowledge of a defect presenting a reasonably foreseeable risk of injury is under a duty to intervene by removing the defect in order to prevent an accident happening. Relying on Mr Paton's evidence and the terms of the Code, it was Mr Di Rollo's submission that, at least in the case of a centre city footpath such as that of West Nile Street, that point came when there was an abrupt difference in level of 20mm. In this context Mr Di Rollo distinguished an abrupt difference or change in level from a "trip" in the sense of a vertical edge. "Abrupt" meant "sudden" One had to have regard to how a foot would go into and come out of this hole in the course of a step. One also had to have regard to the fact that a hole will deteriorate over time. Mr Di Rollo did not present his case as one of casual negligence on the part of Mr Storrie, rather his case was one of negligent instruction and enforcement of a system in that the system adopted by the defenders did not provide for the identification of defects in the footpath at the threshold of an abrupt change in level of 20mm. The defenders gave instructions that the 20mm threshold only applied where there was a tripping hazard, otherwise an edge. As a result Mr Storrie's training only allowed him to identify a defect as a Category 1 defect at a threshold beyond that recommended by the Code.

[25] Before considering Mr Di Rollo's argument further, I should say something about the way he formulated it and, in particular his reference to "a reasonably foreseeable risk". While Mr Di Rollo did indeed say that merely because a depression or change in level presents a reasonably foreseeable risk of injury to pedestrians, that does not of itself give rise to a duty on the part of a roads authority to repair it, I understood that that had to be seen in context. What I took him to mean was that merely because a defect presented a foreseeable risk of injury to pedestrians that alone did not require a roads authority exercising reasonable care to repair it. The duty depends on something more than a risk. There must be a material risk. In the cases the expression "a reasonably foreseeable risk" is sometimes used to indicate a risk of the degree of materiality that requires to be obviated: eg McClafferty supra at 328H. I did not understand that is how Mr Di Rollo was using the expression. Rather, quite properly, he was accepting that foreseeability of risk of injury is not of itself enough to give rise to a duty to repair.

[26] Mr Di Rollo's argument that the hole in this case constituted a material risk of injury requiring that it be repaired within no more than seven days depends in large part on the Code being accepted as the measure of the appropriate standard of care to be achieved by a roads authority such as the defenders in the latter part of 2005. Mr Di Rollo did not suggest that the court had to follow the Code; simply that it would be reasonable to do so (which might come to much the same thing). It was, and this was to return to the objection to the leading of evidence from Mrs Francis in relation to the criteria for identifying Category 1 defects, the only source for standards defining what maintenance was reasonable which was before the court. That latter point is, I consider, correct and had it been necessary I would have upheld Mr Di Rollo's objection to any attempt to lead evidence of an alternative source of standards and that for the reasons given by Mr Di Rollo when making his objection. However, I did not understand from Mrs Francis's answers that the defenders were putting forward a materially different standard to that set out in the Code. True, whereas the defenders had adopted the Code in its 2001 edition, they had, according to Mrs Francis, decided not to adopt the 2005 edition. Prima facie, that must be a decision that a roads authority is entitled to take. However, under cross-examination, Mrs Francis went on to say that whatever other differences there may be between the editions (as there must be given the defenders' decision), in terms of managing risk the text is essentially the same. Where the 2005 text is before the court and the 2001 text is not before the court, I see that evidence as permitting the court to take the Code in its 2005 edition to be the equivalent of the "guidelines" adopted by the defenders and spoken to by Mr Storrie in his evidence. That the defenders had in that sense adopted the Code takes the pursuer a good distance forward in her contention that the Code should be regarded as setting the standard of reasonable care for a roads authority in the position of the defenders. The defenders clearly considered the matter and decided that the Code provided an appropriate standard to determine the extent of their duty of reasonable care. As appears from its terms, that is one of the purposes of the Code. It does not claim to be mandatory but it notes that it is endorsed and supported by a number of local and central government agencies, including the Scottish Executive and the Convention of Scottish Local Authorities. Mr Paton described the Code as providing "best practice" guidance. The potential for there being a distinction between "best practice" and reasonable practice was raised in cross-examination but not explored. In the circumstances of this particular case I therefore accept, as is averred by the pursuer, that the exercise of reasonable care by the defenders required that they follow the recommendations of the Code (in the sense of the defenders implementing a system and their responsible employees adhering to that system).

[27] It therefore becomes necessary to identify what are the relevant recommendations of the Code and to determine whether not repairing the hole prior to 11 January 2006 indicates a failure to follow these recommendations.

[28] West Nile Street is a Primary Walking Route as defined in the Code, table 2 page 83. The Code recommends that a Primary Walking Route should be the subject of a monthly safety inspection (table 4, page 94). For all that Mr Di Rollo made a point about a four weekly frequency not being met, I accept that the defenders followed that recommendation. I see that there may be a question over how closely the defenders followed the recommendations in paragraphs 9.4.17 to 9.4.21 of the Code as to the recording of Category 2 defects but the critical contention on behalf of the pursuer was that Mr Storrie failed to identify the hole as a Category 1 defect on 16 December 2005, whereas had he been instructed in terms of the Code he would have done so. That comes to be a contention that the defenders did not instruct the application of the parameters for defect definitions which appear in Appendix B of the Code, at pages 236 to 240, and, because he had not been so instructed, Mr Storrie did not apply them.

[29] Paragraph B1.2 defines Category 1 defects as those that require prompt attention because they represent an immediate or imminent hazard or because there is a risk of short-term structural deterioration. A Category 1 defect is a defect that merits a Category 1 response. A Category 1 response is merited where there is a high probability of a high impact risk eventuating. Identifying a Category 1 defect is a matter for the judgment of the safety inspector (paragraph B1.5) but section B2 suggests items for inspection. These include "abrupt level differences in the running surface", "potholes, cracks or gaps in the running surface" and "crowning, depression and rutting in the running surface". Paragraph B3.1 explains that whether defects of the sort included in section B2 should be treated as Category 1 will depend, amongst other things, upon the assessed risk posed by: the depth, surface area or other degree of deficiency of the defect or obstruction; the volume, characteristics and speed of traffic; the location of the defect relative to highway features such as junctions and bends; and the location of the defect relative to the positioning of users. There follow examples of investigatory levels adopted by three local authorities: paragraph B3.3 Westminster Council; paragraph B3.4 Perth and Kinross Council; and B3.5 the Northern Ireland Road Service. Mr Di Rollo drew my attention to the whole terms of Appendix B but took as the intervention threshold he submitted was required in the exercise of reasonable care particularly from two criteria adopted by Perth and Kinross Council and reproduced in paragraph B3.4 of the Code: for repair within 24 hours "Defects presenting an urgent or imminent hazard or risk of rapid structural deterioration. ...Such defects will include ... trip or other abrupt level difference in footway or kerb exceeding 20mm in all footway categories, of a size and location likely to cause injury to user, but excluding such level differences between adjoining kerbs" and for repair within 7 days "Defects presenting a moderate level of hazard or risk of structural deterioration. ...Such defects will include ... trip or other abrupt level difference in footway or kerb exceeding 20mm in all footway categories in any location but excluding such level differences between adjoining kerbs". In that repair within 7 days was sufficient for his purposes in relation to causation, Mr Di Rollo presented the latter criterion as the standard which should have been applied to the hole in the footpath on West Nile Street. He accepted that the evidence did not establish that the hole presented a "trip" on 16 December 2005, hence his concentration on "other abrupt level difference". However Mr Di Rollo submitted that, in addition to abrupt level difference, proximity to the kerb, restriction of the width of the footpath and centre-city location were all factors pointing to the conclusion that the hole should have been regarded as a defect presenting a moderate level of hazard and therefore requiring a Category 1 response as at 16 December 2005.

[30] I understand the argument that a difference in level encountered as between putting one foot down and then the next can be described as "abrupt" but I am not satisfied that that consideration has the result that the hole falls to be regarded as "a trip or other abrupt level difference in footway or kerb exceeding 20mm". Taking a "trip" to be a vertical edge, and having regard to the fact that the purpose of the Code is to make recommendations rather than to lay down prescriptions, I would understand an "other abrupt level difference in [the] footway" to be something of the nature of a vertical edge and on the evidence I do not find the hole, as at 16 December 2005, to have been or to have included something of the nature of a vertical edge. I do not see that as conclusive of the issue that I have to determine. It was a matter of agreement that the hole was a defect and, in common with other irregularities in the footpath, that it presented a degree of risk to the safety of pedestrians. Like other defects it was liable to deteriorate. Accordingly, it was a candidate for classification as a defect "presenting a moderate level of hazard or risk of structural deterioration" to use the language adopted by Perth and Kinross Council and quoted in paragraph B3.4 of the Code in the context of a defect meriting a 7 day response. When considering risk of structural deterioration in this context I would take it that the relevant risk is that the defect will deteriorate to the point of presenting a moderate level of hazard. Therefore what requires a 7 day response is a defect which either presents a moderate level of hazard or is likely to do so before the next planned inspection. Mr Di Rollo pointed out that there were a number of risk factors associated with the hole other than its dimensions. Mr Paton expressed the opinion that it was a "reportable defect". That had not however been the view of Mr Storrie until his inspection on 19 June 2006 and on 28 June 2006 Mr Weir considered that a 28-day response would have been adequate. Like Mr Paton, Mrs Francis had not seen the hole but on the basis of photographs and description she did not accept that it fell to be regarded as a Category 1 defect. For her it was Category 2 at most, by which she meant that it could be dealt with in the next cycle of planned maintenance.

[31] Looking to the whole evidence I am unable to conclude that as at 16 December 2005 the hole presented such a material or reasonably foreseeable risk of injury to pedestrians that the failure of the defenders to have it repaired prior to 11 January 2006 amounted to breach of their duty of reasonable care. In coming to that view I have accepted Mr Di Rollo's invitation, as far as this particular case is concerned, to accept the Code as setting out the appropriate standard to be reached by a roads authority exercising reasonable care at the relevant time. The use of language in the Code reflects the fact that it is not intended to be mandatory. It simply puts forward recommendations. This gives rise to difficulties in construction when one tries to apply it as if it were a prescriptive document. I have felt able to come to a view as to what is meant by "other abrupt level difference" but precisely what may be "a moderate level of hazard" as that expression is used in paragraph B3.4 is rather hard to identify, simply by looking at the text. Clearly a judgement has to be made. It is for that reason that I have had regard to the evidence not only of Mr Paton, but also of Mr Storrie, Mr Weir and Mrs Francis when attempting to apply the Code to circumstances of the case, and on that evidence I am unable to find that the hole presented a moderate level of hazard or risk of deterioration into such a condition at or within the relevant time.

Disposal

[32] I propose to pronounce decree of absolvitor. As will be appreciated, this is not intended as an adverse reflection on the pursuer's evidence, which I have essentially accepted, or her claim to have been seriously injured in circumstances that imply no fault on her part. I shall reserve all questions of expenses.