Scottish Court of Session Decisions

John M'Intyre, ghillie, Bohuntin, Roy Bridge, brought an action against the Lochaber District Committee of the County Council of Inverness, as the road authority of said district, in which he concluded for damages on account of injuries caused by his having fallen over the parapet of a bridge upon the public road from Spean Bridge to Roy Bridge. He averred that the parapet was from 8 to 12 inches in height, and that it was insufficient for the public safety.

The pursuer founded on section 94 of the Act 1 and 2 William IV. cap. 43, incorporated with the Roads and Bridges (Scotland) Act 1878, and printed as schedule (C) of the latter Act, which provides as follows:—“The trustees of every turnpike road shall erect sufficient parapet walls, mounds, or fences, or other adequate means of security along the sides of all bridges, embankments, or other dangerous parts of the said roads …”

The defenders, in answer, admitted that the height of the parapet wall was as stated by the pursuer, but averred that parapets of the height in question were common in many rural districts, and especially throughout the Highlands, and were sufficient for the safety of the public, having regard to the sparseness of the population.

The pursuer pleaded—“(1) The pursuer, having suffered loss, injury, and damage through the fault and negligence of the defenders, is entitled to compensation therefor. (2) The defenders having failed to erect sufficient parapet walls or other means of security on both sides of said bridge in terms of the statutory requirements, and the pursuer having suffered loss, injury, and damage in consequence, the defenders are liable to him in damages.”

The defenders pleaded—“(1) The action is irrelevant and ought to be dismissed. (2) The pursuer not having received the injuries of which he complains owing to the fault of the defenders, they are entitled to absolvitor.”

Proof was allowed and led.

The facts are sufficiently set forth in the interlocutor of the Sheriff-Substitute ( Davidson).

On 8th May 1901 the Sheriff-Substitute pronounced the following interlocutor:—“Finds in fact that on the night of 23rd October last the pursuer, when walking on the bridge over the burn known as Alt Marie, on the public road between Fort-William and Kingussie, his dog, which was walking on his right side led by a string held in his right hand, came in contact with him, causing him to trip and fall over the south parapet of said bridge over the burn, a height of over 15 feet, in consequence of which he sustained a severe head wound and shock, and was disabled from pursuing his usual employment for a period of six months: Finds that the average height of said parapet above the road did not exceed 12 inches, the maximum height of a portion thereof being 14 inches: Finds that the said bridge was a dangerous part of the public road, and said parapet did not afford ‘adequate means of security,’ as required by statute, to persons travelling over said bridge: Finds in law that the defenders were in fault in respect of the insufficiency of said parapet, and are therefore liable in damages to the pursuer: Finds that the damages may be reasonably assessed at the sum of £25, and decerns against the defenders for payment of said sum to the pursuer: Finds the defenders liable in expenses,” &c.

The defenders appealed to the Court of Session, and argued—The Sheriff-Substitute was wrong in finding the defenders liable. The question whether this bridge was a ‘dangerous’ place within the meaning of section 94 of the Turnpike Act, was a question of circumstances. In a sparsely populated district, such as this, the same precautions were not necessary as in the neighbourhood of a town.— Gibson v. Glasgow Police Commissioners, March 3, 1893, 20 R. 466, 30 S.L.R. 469; Murray v. Lanark Road Trustees, June 9, 1888, 15 R. 737, 25 S. L. R. 545; Greer v. Stirlingshire Road Trustees, July 7, 1882. 9 R. 1069, 19 S.L.R. 887; Fraser v. Magistrates of Rothesay, May 31, 1892, 19 R. 817, 29 S.L.R. 740; Barrie v. Commissioners of Kilsyth, December 1, 1898, 1 F. 194, 36 S.L.R. 149. To afford complete protection at all such places would involve the erection of parapets at least 3 feet 6 inches in height, and that would impose an excessive liability and involve largely increased assessments.

Argued for the pursuer and respondent—The provision of the Turnpike Act was imperative, that the road authorities must erect parapets at all bridges. The only question therefore was, whether a parapet of less than a foot in height was a sufficient parapet; and it was clear that such a parapet could be no protection.— Harris v. Burgh of Leith, March 11, 1881, 8 R. 613.