POCOCK AGAINST THE HIGHLAND COUNCIL [2017] ScotCS CSIH

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Defenders and respondents: R Milligan QC, Murray; Ledingham Chalmers LLP

[1] The pursuer is a crofter. On 9 February 2012, when aged 43, he was walking in

Baron Taylor Street, Inverness. He tripped on uneven paving slabs forming part of a central

[2] The pursuer sued the defenders as the roads authority responsible for the street. He

sought damages on the basis of a breach of their common law duty of care owed to

pedestrians. The unevenness had been identified on 20 December 2011, and the defenders

had failed to follow their own policy by remedying it within seven days of that date, failing

[3] In a proof before Lord Clark, conflicting evidence was led concerning the

measurement of the unevenness. The pursuer’s case was that the height difference was

28 mm. That estimate was given by the pursuer’s expert witness Mr McMahon, an

engineering consultant. He based his evidence on photographs taken by the pursuer and his

wife about two weeks after the accident. The pursuer had propped up a Swan Vestas

matchbox at the irregularity to provide a guide to scale. The defenders’ position was that the

height difference was less than 20 mm. That measurement was based on the evidence of the

local authority’s roads inspector Miss Yvonne Low. Miss Low gave evidence that she carried

out monthly inspections of Baron Taylor Street. Prior to 20 December 2011 there had been

nothing of note at the relevant area: but on that date, in accordance with the defenders’

policy (see paragraph [5] below), she had issued a works instruction requiring a repair within

21 days. Accordingly, as she explained, the defect must have been less than 20 mm

(paragraph [70] of the Lord Ordinary’s Opinion). On 23 January 2012 she issued a further

works instruction for the defect, requiring repair within 21 days. Again she explained that

[4] About two weeks later, on 9 February 2012, the pursuer had his accident. The

irregular paving slabs were repaired some time later. In her evidence, Miss Low explained

“There was a general problem in Baron Taylor Street in that the drainage channel was

failing … what was discovered [was that] the paving slabs which made up the

drainage channel area had been embedded in sand and not in concrete and the sand

In cross-examination, she accepted “the possibility of the defect getting worse in time

[5] The defenders had certain written policies which were applicable at the time of the

accident, including the “Road Network Hierarchy and Inspections Policy” and

“Well-maintained Highways – Code of Practice for Highway Maintenance (2005)” (referred to

as “the Code”): paragraphs [2] and [44] to [46] of the Lord Ordinary’s Opinion. Defects

found during safety inspections were to be classified as inter alia Category 2M (medium level

of hazard or risk with a response time of 21 days) or Category 2H (high level of hazard or risk

with a response time of seven days). The response times were “intended for temporary

repairs to make the defect safe”: paragraph [45] of the Opinion. Miss Low explained in

“ … A trip hazard with a hard edge level difference in height of 20 mm or more was a

safety defect. This height difference was not stated in terms in the [defenders’] policy,

but was the basis upon which she proceeded … If she found a height difference of

greater than 20 mm she would stipulate a seven day repair period. For a height

difference of less than 20 mm, it would be a 21 day repair period. The latter type of

defect was something which it was considered would be better attended to in 21 days

“… that the Code is the benchmark for roads authorities, but they might justifiably

depart from the Code for a variety of reasons, including population density, amount

of use of the road or footpath, climate, topography and budgetary considerations…

(paragraph [94] of the Opinion, reflecting Mr McMahon’s evidence as noted in

“… that the guidance in the Code was not prescriptive and that not all Scottish roads

authorities use the same threshold level for defects or deal with the same type of

defect in the same way. When asked who exercises the judgment as to what to repair,

he said he imagined it would be the area manager (paragraph [53] of the Opinion).”

[7] The Lord Ordinary found inter alia that the pursuer had failed to prove a height

differential of 28 mm (paragraphs [113] and [119] of his Opinion). He proceeded on the basis

that the height difference was less than 20 mm. He concluded that there had been no breach

of the duty of reasonable care owed by the defenders to the pursuer, and also no contributory

[8] Counsel for the pursuer submitted that the Lord Ordinary had not resolved the

conflict in evidence about the height differential. He had failed to make a finding in fact, or

to provide reasons for accepting one body of evidence (Miss Low) rather than another

(Mr McMahon). He did not have a proper basis for concluding that the trip hazard was less

than 20 mm at both inspections. He erred by failing to find that the irregularity was 28 mm.

A substitute finding should be made that, on a balance of probabilities, the height difference

[9] Esto Grounds 1 and 2 were not well-founded, and esto the irregularity was taken to be

less than 20 mm, that irregularity nevertheless constituted a “trip hazard”. That conclusion

was based upon the whole circumstances of the case, not merely upon Miss Low’s

categorisation. The weight of the evidence, including the location at the city centre, the

identification of the irregularity on two occasions, the roads inspector’s view that there was a

trip hazard, the defenders’ roads policy with timescales for repair, the 21-day work order, and

the fact that it was known that defects at that area could deteriorate rapidly, gave rise to an

inference that the standard of care required of the defenders was to effect a repair in the time

available before the pursuer’s accident. The judge had to be an independent objective

assessor of what was required to fulfil the minimum standard of reasonable care at common

law. The Lord Ordinary erred by giving too much weight to the significance of the roads

[10] Ultimately, senior counsel submitted that the reclaiming motion should be allowed;

the Lord Ordinary’s interlocutor of 10 March 2017 recalled; and decree granted in favour of

the pursuer for the sums referred to in paragraph [129] of the Lord Ordinary’s Opinion.

[11] The Lord Ordinary had resolved the conflict in the evidence. He made a clear finding

based on the credibility and reliability of the roads inspector Miss Low. He accepted her

evidence that the height difference at the time of the inspections was less than 20 mm. An

appeal court should be slow to interfere with such a finding (Clarke v Edinburgh and District

Tramways Co Ltd 1919 SC (HL) 35 at page 36; McGraddie v McGraddie 2014 SC (UKSC) 12;

Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203 paragraphs [62] to [67]; CD v

Lanarkshire Acute Hospitals NHS Trust [2017] CSIH 30 paragraphs [23] and [24]; AW v Greater

Glasgow Health Board [2017] CSIH 58 paragraphs [38] to [58]). The Lord Ordinary’s

[12] There was a danger of confusing a witness’s assessment of an irregularity as a

“hazard” and the court’s assessment. The Lord Ordinary had not made that error. He

accepted that Miss Low described it as a hazard, but he himself did not make a finding that it

was a hazard (paragraph [114] of his Opinion). Thus there were two questions: (i) was the

irregularity a trip hazard within the defenders’ policy (yes); (ii) was the irregularity a hazard

in terms of Macdonald v Aberdeenshire Council 2014 SC 114 (no). A failure by a roads authority

to follow their own policy was not necessarily negligence at common law (Esdale v Dover

District Council [2010] EWCA Civ 409 paragraphs [11] to [13]). Even if the Lord Ordinary’s

Opinion could be read as not excluding the existence of some sort of tripping hazard, his

conclusion indicated that the defect, deficiency or irregularity in the surface was at the lower

end of the scale of hazards, and thus a common law standard of reasonable care did not

require its repair within the time available prior to the accident.

[13] The Lord Ordinary had heard all the evidence. He had applied the correct tests. He

had, in the exercise of his judgment, reached a conclusion. An appeal court should be slow to

interfere (Esdale cit sup, McClafferty v British Telecommunications Ltd 1987 SLT 327 at page 328D,

McLaughlin v Strathclyde Regional Council 1992 SLT 959 at page 961J; Mills v Barnsley

Metropolitan Borough Council [1992] PIQR 291 at P293 and P294; Morton v West Lothian Council

2006 Rep LR 7 paragraph [67]). The reclaiming motion should be refused.

[14] The Lord Ordinary proceeded on the basis that the unevenness in the paving slabs,

measured at the dates of the two inspections (20 December 2011 and 23 January 2012) was

proved to be less than 20 mm. The evidence which had been led included the following.

[15] First, evidence given by the roads inspector Miss Yvonne Low. The Lord Ordinary

clearly accepted her evidence. He described her at paragraph [112] as “a careful individual,

who took her job very seriously”. He stated that he was “left in no real doubt that if she had

come across a hazard with a height difference of greater than 20 mm she would have

classified it as falling within Category 2H and hence requiring repair within seven days”. In

relation to this witness to primary fact, the Lord Ordinary was entitled to reach the views he

[16] Secondly, the Lord Ordinary had the contemporaneous records including the works

instructions which Miss Low issued. These were consistent with her oral evidence.

[17] Thirdly, the Lord Ordinary took into account the fact that Miss Low was the only

eye-witness physically present at the dates of the inspections. She alone could provide

information about the height differential based upon actual presence at the site on those dates.

By contrast, the pursuer’s engineer Mr McMahon did not have that benefit (paragraph [110] of

the Opinion). He based his measurements and opinion on photographs taken by the pursuer

and his wife some two weeks after the accident, with a match box positioned on the paving

slabs to give some indication of scale. Mr McMahon accepted that the height difference could

have changed between the dates of the inspections and the date of the accident (paragraph [113]

of the Opinion.) He also accepted that the height difference might not have been as great as

[18] The Lord Ordinary took all the evidence outlined above into account. From his

Opinion, it is clear that he found Miss Low to be a credible and reliable witness. He gave her

evidence considerable weight (paragraphs [111] and [112] of the Opinion). From his Opinion,

it is clear that he gave less weight to the evidence of Mr McMahon, bearing in mind the

method by which Mr McMahon had reached his estimated figure of 28 mm, and the

qualifications noted in paragraph [17] above. He was entitled to do so. He thus resolved the

conflict in evidence, by preferring the evidence of Miss Low to that of Mr McMahon. He

“I therefore conclude that the pursuer has failed to establish the key factual basis of

his pleaded case: that the defect, at the date of its identification, involved a height

Thereafter he proceeded on the basis that he was satisfied that there had been a height

difference of less than 20 mm on the inspection dates. On the evidence before him, he was

entitled to do so. We are not persuaded that there is any merit in the pursuer’s first or second

[19] In McClafferty v British Telecommunications plc 1987 SLT 327, a pedestrian’s foot caught

on a manhole cover projecting ¾ inch (approximately 19 mm) above the level of the

pavement, resulting in a fall and injury. Lord Justice Clerk Ross considered the question of

the roads authority’s delictual liability at page 328D as follows:

“ … [In Gordon v Glasgow Corporation and Innes v James K Neil & Co and Glasgow

Corporation, both decisions unreported] it was pointed out that it was always a

question of degree whether negligence could be established where there was some

degree of inequality of surface on a public footpath. In the former case, Lord

‘There is no doubt that inequality of surface, even a very small one, may result

in a similar mishap to a pedestrian. But the maintenance of complete

uniformity on a city foot pavement is a counsel of perfection considerably

above the standard attainable in practical administration. The question of

whether there has been neglect of duty is always a question of degree.’

… In Meggs v Liverpool Corporation [1968] 1 WLR 689 at page 672 Lord Denning MR

‘It seems to me, using ordinary knowledge of pavements, that everyone must

take account of the fact that there may be unevenness here and there. There

may be a ridge of half an inch or three-quarters of an inch occasionally, but

that is not the sort of thing which makes it dangerous or not reasonably safe.’

That case was one where the plaintiff tripped and hurt herself because certain

flagstones were uneven so that one of them had sunk about ¾ inch …”

[20] Similar reasoning was adopted by Lord Coulsfield in McLaughlin v Strathclyde Regional

Council 1992 SLT 959, at page 328D, when dealing with a defect in a road surface. He

“ … Any unevenness in a road or pavement may cause a fall, but I think that it is clear

that a road authority is not required to keep all pavements, far less all parts of the

See too the observations of Steyn LJ in Mills v Barnsley Metropolitan Borough Council

[21] A more recent authority relating to the state of a road is Macdonald v Aberdeenshire

“ [64] … 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

[65] In my opinion this state of the law strikes a fair and reasonable balance between

the interests of [road-users] on the one hand and the interests of the roads authority

on the other hand. Roads authorities are under a public law duty to maintain the

roads under their care, and it seems fair that they should be held to minimum

standards not just in public law but as a matter of delictual liability in civil law …”

[22] Senior counsel for the defenders submitted that the irregularity in the paving slabs,

being less than 20 mm, did not constitute a “hazard” within the definition in Macdonald.

Miss Low’s categorisation was not definitive. It was for the court to determine whether or not

the unevenness was a hazard falling within the definition in Macdonald. The Lord Ordinary

[23] We agree. The Lord Ordinary did not rule out the existence of a trip hazard of some

sort (cf Lord Justice Clerk Ross in McClafferty, quoting Lord President Clyde, paragraph [19]

above). Indeed in paragraph [114] of his Opinion, the Lord Ordinary stated:

“ … the defect was nonetheless, as Yvonne Low accepted, a trip hazard which fell

within Category 2M and the Council’s policy was to repair it within 21 days.”

However the Lord Ordinary correctly took into account the fact that –

“ … a failure by the Council to follow its own policy or plan is not of itself sufficient to

establish a failure to exercise reasonable care (see Syme v Scottish Borders Council, at

paras 18 and 20). The policy cannot dictate the content of the duty of reasonable care.

The purpose of the hierarchy within the policy, according to paragraph 1.3 of the

document, is to ‘provide the basis for a maintenance strategy and enable the

prioritisation of works activities …’. It is ‘ … a tool to determine where resources

[24] Similar observations were made by Smith LJ in Esdale v Dover District Council

“[12] I cannot accept [counsel’s submission that if the council fails to follow its own

policy, the council has failed to take reasonable care and is in breach of the common

law duty of care]. The test of whether, in all the circumstances, the council has taken

such steps as are reasonable to see that visitors are reasonably safe does not depend

upon what standards of safety the council sets itself as a matter of policy. The test to

be applied is an objective one. The question, in effect, is: does the judge, as the

embodiment of the reasonable person, think that the council has taken such steps as

are reasonable, in all the circumstances, to keep the visitor – the claimant here –

reasonably safe? What the council sets as a policy is certainly not determinative,

although I would not go so far as to say that it is irrelevant. One can immediately see

that the council’s policy could not be determinative. If the council had a policy that

footpaths need not be repaired unless there was a defect of more than two inches, no

one would suggest that, if that policy were followed, it could be said that the council

had taken such care as was reasonable. Conversely, if the council wished to set a very

rigorous policy in an attempt to provide a high standard for its visitors, it would not

follow that the standard of what is reasonable must be set at the same level.

The judge was not only entitled but obliged to form his own independent view of the

dangerousness or lack of it on this defect in the footpath, and also whether the

council’s decision, through Mr West, not to order its repair was consistent with taking

reasonable care for the safety of visitors. In my view, the judge’s legal approach was

correct. The actual conclusion which he reached was one which, in my view, he was

entitled to reach. This was a matter of judgment for him and provided that he took all

relevant matters into account and did not take irrelevant matters into account, this

court will not interfere with that judgment any more than it will interfere with an

exercise of discretion. This is not an exercise of discretion but an exercise of judgment,

but the judge’s view will command the respect of this court unless he has clearly erred

[25] It was therefore for the Lord Ordinary, taking account of all the circumstances

(including, but not on a determinative basis, the defenders’ published roads maintenance

policy and repair timetables), to exercise his judgment in assessing whether there had been a

[26] In carrying out that task, the Lord Ordinary took into account inter alia the nature,

size, and location of the irregularity; the need for roads authorities to have a system of

prioritisation, related to the degree and nature of any risk; the categorisation of the height

differential by Miss Low as a medium risk with an expected response time of 21 days in

terms of the defenders’ published policy; Miss Low’s evidence that the majority of roads

authorities would not intervene where the height differential was less than 20 mm; and

Mr McMahon’s evidence that “for the vast majority of roads authorities, the intervention level

was 20 mm” (paragraph [116] of the Opinion). The Lord Ordinary also took into account

certain extracts from the Code relating to Westminster Council (15 mm as the “investigatory

level” with no clear designated consequence or response time) and Perth and Kinross Council

(a 20 mm height difference defined as “a moderate level of hazard” with a designated

response time of seven days, but no guidance in respect of a differential of under 20 mm:

paragraphs [46] and [117] of the Opinion). Further, the Lord Ordinary took into account

relevant authorities including McClafferty v British Telecommunications plc, McLaughlin v

Strathclyde Regional Council, and Macdonald v Aberdeenshire Council (see paragraphs [19] to [21]

above), and noted that a failure by a roads authority to follow their own policy was not of

itself sufficient to establish a failure to exercise reasonable care. Ultimately the Lord Ordinary

“[118] The pursuer led no evidence that a roads authority of ordinary competence

exercising reasonable care required to repair, within 21 days, a hazard created by a

height difference of less than 20 mm. As noted, Mr McMahon proceeded upon the

basis that the defenders required to repair defects of greater than 20 mm within

specific periods. He did not deal at any stage with the repair of defects of less than

[27] Against that background, taking all the circumstances of the case into account, and

applying authorities including Macdonald v Aberdeenshire Council 2014 SC 114, the

Lord Ordinary concluded that there had not been a breach of the defenders’ common law

[28] In our opinion, the Lord Ordinary was entitled to do so. He weighed up all the

relevant evidence, found certain facts established, applied the law correctly, and in the exercise

of his judgment concluded that the defenders had not failed in their duty of reasonable care

owed to the pursuer at common law. We do not accept that the Lord Ordinary gave undue

weight to the evidence of roads authorities’ practices and codes. We have been unable to

identify any error in his approach or his conclusion. Absent any error, an appeal court

should be slow to interfere with such an exercise of judgment (Elsdale cit sup, McClafferty v

British Telecommunications Ltd 1987 SLT 327 at page 328D, McLaughlin v Strathclyde Regional

Council 1992 SLT 959 at page 961J; Mills v Barnsley Metropolitan Borough Council [1992] PIQR

291 at P293 and P294; Morton v West Lothian Council 2006 Rep LR 7 paragraph [67]).

[29] In the result, we are not persuaded that this is a case in which we should interfere. We

[30] For the reasons given above, we refuse the reclaiming motion. We continue meantime

any question of expenses.

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