Court Success: An excellent outcome for Dundee City Council

  • Zurich Municipal welcomes the court success of Alan Cairns v Dundee City Council (Court of Session, Edinburgh)
  • The Pursuer’s case was that the Council failed in the exercise of reasonable care to operate a system which ought to have been operated
  • An excellent result for local authorities who face challenging decisions and expectations of the public

Background

On Saturday, 1st December 2012 at 11:45am, the claimant was crossing an icy car park in Broughty Ferry, Dundee. He slipped and fell to his injury. He sued Dundee City Council for £350,000. Damages were agreed at £125,000.

The law

The claimant brought a claim at common law and under Section 2 of the Occupiers Liability (Scotland) Act 1960.

The principal basis for the action was that the Council should have cleared any ice from the car park earlier in the morning before the accident took place. The evidence was that there was an ad-hoc system in place but that no gritting would have taken place on a Saturday. There were no car park maintenance personnel employed on a Saturday.

Legal arguments

The Pursuer’s case was that the Council failed in the exercise of reasonable care to operate a system which (reasonably) ought to have been operated; and that had it been operated, it would have probably prevented the Pursuer’s accident. It was also said that the Council ought to have warned of the risk of non-gritting (given that they had no personnel to grit on a Saturday) and, had they done so, the claimant would not have had his accident.

Decision

The claimant’s case failed. As a matter of law, local authorities are given a wide discretion as to scope and scale of their roads and footpath winter clearance policies. Councils can prioritise as they see fit and commensurate with their resources. There is no requirement to carry out ice clearance works everywhere and all the time. Reference was made to the previous Zurich case of Ryder v Highland Council (2013) in the decision.

One of the main difficulties for the claimant was on causation. He could never say what system would have prevented the accident because there was no evidence, as a matter of fact, of when the ice had formed. The authorities are certainly clear that one cannot expect all slippery areas to be dealt with at once. There was no evidence in this case that having an operative on duty on the Saturday would, of necessity, have meant that the car park where the accident occurred would have been gritted before the accident.

Commentary

This is an excellent outcome for local authorities who face challenging decisions in relation to the allocation of resources, policy demands and expectations of the public.

This claim was handled by Alan Bremner in our Mid Value Claims Team. Our panel solicitors Clyde & Co represented us at Court.