Scope and Duty of Care to those who have responsibility for roads and highways in Scotland
The recent Scottish Court of Appeal case of Bowes v Highland Council  CSIH 38, provides an interesting summary of the nature and scope of the duty to be applied to those who have responsibility for roads and highways in Scotland.
The claim was raised by the family of a man who died after losing control of his vehicle on a bridge and hitting a parapet. The parapet was known to be defective by the roads authority, and the nature of the defect meant that it failed, causing the deceased’s vehicle to go over the side and into the river below. The evidence was that had the parapet not been defective the car would have remained on the bridge, and the deceased would only have sustained a minor injury.
At the time of the accident, the roads authority accepted that they knew that the bridge and parapet required extensive repair and replacement work, which was scheduled as part of a planned programme of repairs but was not carried out until after the accident.
Duty of Care
The family’s case was not that the roads authority had a duty to repair by a specific time; or that they had a duty to close the road pending such repair. The case was that given the state of knowledge about the defects in the parapet, the roads authority had a duty to continue to monitor the parapet, to keep informed about its condition pending repair or replacement, and to put in place various interim measures.
Initially, the roads authority sought to argue that there was no duty of care in this situation, or if there was, that duty did not extend beyond the road to the parapet. Ultimately, however, they accepted that a duty did exist. The Appeal Court was quite satisfied that regardless of the law elsewhere, roads authorities in Scotland have a duty of care towards road users at common law.
The roads authority had some other arguments. Of interest, is their position on scope of duty, and the Appeal Court’s response to that.
Scope of Duty
The roads authority, as a public body, argued that the scope of duty had to be circumscribed to reflect financial constraints. Their primary duty was to provide an efficient road system, not to protect drivers from their carelessness. The bridge had a low daily traffic flow; there were a lot of bridges, culverts, safety fencing and cattle grids coming out of their budget. The budget was smaller than the costs estimated for this single repair. The Court of Appeal disagreed. Budgetary constraints, by themselves, could not be used as a mechanism to control and limit the scope of the duty of care to road users. Scope of duty will be assessed the same way whether a defendant is a private company or a public body. That was not to say that they have no relevance and the cost of taking preventative steps, and the financial circumstances of a defendant will always be a relevant consideration.
The family’s case was based on the management of the road at the locus pending repair or replacement. The original Trial Judge had considered the cost of implementing the interim measures suggested by the family and concluded that they were both reasonably practicable and of modest cost. So despite the pressure on the authority’s budget, the Trial Judge found them primarily responsible for the accident. A finding with which the Court of Appeal did not interfere.
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Cameron McNaught, Partner
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