Kelly Morton v West Lothian Council - Court of Session 3rd
November 2005
Ms Morton lost control of her vehicle when she encountered a
patch of black ice on the road that caused her to cross the
carriageway and collide with an oncoming car. Her passenger died,
and she sustained life-threatening injuries resulting in ongoing
disability.
She raised an action against the Council on the basis that they
had a duty, in accordance with their own policy, to grit the
accident locus. Had they done so black ice would not have formed.
The claim was split into two parts. Firstly, she claimed that the
Council had failed to grit the small section of road at the
accident locus due to the gritter drivers deviating from the
prescribed gritting route. She further claimed that if that was not
proved the very fact that ice had formed inferred that the Council
had not complied with their duties. Given that breach in duty could
only be within the knowledge of the Council, she argued that the
onus shifted to the Council to provide a non-negligent
explanation.
In relation to both cases Ms Morton failed, and the defenders
were absolved of negligence. Whilst this was ultimately based on
the particular facts of the case, the judgement is interesting for
the more general comments made by Lord Glennie in relation to the
nature of the duty of care, and his consideration of the shifting
onus.
The Council conceded that if Ms Morton established that their
drivers had deviated from their route then they were negligent.
Whilst the nature of the duty was not, therefore, in issue, Lord
Glennie made it quite clear that he considered the law in this area
was not settled. In his view, to convert the general duty of care
to road users into a specific duty to grit a particular road, by a
particular time, would involve a pursuer demonstrating not only
that the treatment was a requirement of the strategy adopted by the
council, but that it was also a requirement of all strategies
within the range of strategies that was open for adoption by the
council. A specific duty could also be advanced if a pursuer could
demonstrate an assumption of responsibility to grit the locus.
Reliance on the policy of the Council, and the instruction to grit
that morning would not be enough.
There was clearly an unwillingness on the part of Lord Glennie
to accept that a duty could easily be imposed on a local authority
that has been asked to exercise its discretion.
The judgement moved on to consider whether, and when, the burden
of proof shifts in a case where there are many factors within the
control of the defender, but where there are a number of crucial
factors that are not. Whilst the gritting operations were within
the Council's control, the weather, and its effect on treated
roads, were not. It was the Council's position that the rain could
have diluted the effect of the salt, thus causing black ice to
form.
Lord Glennie acknowledged that the usual situation in which the
onus of proof shifts to the defender to explain the loss occurred
without his negligence is in a case where all the circumstances
giving rise to the loss are within the control of the defender. He
agreed with Ms Morton's submissions that there may be an extension
of this principle where a pursuer can eliminate from the enquiry
all possible causes outwith the control of the defenders. The
weather conditions, therefore, were a factor that had to be
excluded by Ms Morton before the onus shifted rather than proved by
the Council, by way of non-negligent explanation, after that has
occurred.
Although Lord Glennie has not ruled out the possibility of the
onus shifting in a gritting case in the future, it is clear from
his judgement that the difficulties that the pursuer would have in
excluding the extraneous factors will be extraordinary. Ms Morton's
agents have marked an appeal, and it may be that the appeal court
will disagree with this assessment. However, that may also provide
the defenders with the opportunity to revisit their concession, and
allow a full consideration of the nature of the duty of care. Watch
this space!
Contributed by Katy Nisbet