MacDonald v Aberdeenshire Council

Factual and Procedural Background

The pursuer was involved in a serious road traffic accident on 8 May 2006 at an intersection between a minor road (C2L) and a major road (A97). The accident resulted in the death of two passengers in the pursuer's vehicle. The pursuer alleged that road markings and signage at the junction were inadequate and poorly maintained by the defenders, the local roads authority, leading to insufficient warning of the junction and the requirement to give way. The pursuer contended that the defenders failed to repaint faded road markings and reposition or add necessary road signs in a timely manner despite inspections and an open works order. The defenders denied owing a duty of care to the pursuer and sought dismissal of the action as irrelevant. The Lord Ordinary dismissed the action, holding no duty of care was owed, and the pursuer reclaimed. The defenders cross-appealed, challenging the rejection of their plea of irrelevance and lack of specification.

Legal Issues Presented

1. Whether the defenders owed the pursuer a common law duty of care to repaint road markings, reposition or add road signs, or otherwise indicate the proximity of the crossroads where the pursuer was required to give way.
2. If such a duty existed, the nature and extent of that duty.
3. Whether the defenders’ conduct in the circumstances constituted a breach of any such duty.

Arguments of the Parties

Pursuer's Arguments

• The road markings at the junction were worn and insufficient, failing to give clear and effective warning of the approaching junction and the need to give way.
• The "Give Way" sign was poorly positioned and not visible until the pursuer was very close to the junction.
• The defenders had a duty to maintain and repair road markings and signage, including repainting faded markings within 24 hours as recommended by relevant codes of practice and local authority manuals.
• The defenders inspected the junction but failed to take timely action to renew markings or improve signage prior to the accident.
• The pursuer was unfamiliar with the roads and did not have clear warning of the junction, leading to her driving through it without slowing or stopping.
• The defenders’ failure to maintain the road markings and signs constituted negligence causing the accident.

Defenders' Arguments

• No duty of care was owed to the pursuer by the defenders in respect of repainting road markings or repositioning signs.
• The statutory powers granted to local authorities did not impose a common law duty to repaint or maintain road markings or signs at all times.
• The defenders had discretion in prioritising road maintenance and the timing of repairs, and such discretion should not be interfered with by the courts.
• The pursuer’s pleadings lacked sufficient specification, including absence of averments regarding the location being particularly dangerous, prior accidents, reliance on road markings, or precise details on when or where signs should have been placed.
• Imposing such a duty would expose roads authorities to broad and onerous liability for all junctions regardless of risk or history.
• The accident was not reasonably foreseeable as a result of any hazard created or maintained by the defenders.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the historical and contemporary common law principles governing the liability of roads authorities in Scotland, contrasting them with English law. It reaffirmed that Scottish law imposes a common law duty of care on roads authorities to take reasonable care to maintain roads free from hazards that present a significant risk of accident to careful road users.

The court analyzed the pursuer’s pleadings and found that although the defenders had statutory powers to manage and maintain roads, those powers did not create a general duty to repaint road markings or reposition signs at every junction. The court emphasized that the existence of a hazard—defined as a danger not obvious to a careful driver—is a prerequisite for liability. The facts as averred indicated that the junction’s configuration, including bends, dips, and buildings, presented obvious dangers that a careful driver should anticipate and respond to by slowing down and exercising caution.

The court held that the pursuer’s pleadings failed to establish that there was a hazard of the relevant kind at the junction. The lack of clear road markings and signage did not amount to a hazard that would impose a legal duty to act on the defenders outside their routine maintenance discretion. The defenders had issued a works order and inspected the junction but had not acted unreasonably in timing or prioritization of repairs. The court also noted the absence of any averments indicating a history of accidents or complaints that would have alerted the defenders to a specific danger requiring urgent attention.

Applying the tripartite test from Caparo, the court found that while there was proximity between the roads authority and road users, it was not fair, just, and reasonable to impose a duty of care in the circumstances given the general nature of the maintenance duties and the broad discretion afforded to the defenders. The court rejected the pursuer’s reliance on codes of practice and local authority manuals as these did not impose legally enforceable duties or override the defenders’ discretion.

The court further distinguished the present facts from cases where liability was found due to the roads authority’s active creation of a dangerous situation or assumption of responsibility, which was not present here. The court agreed with the Lord Ordinary’s dismissal of the action as irrelevant and lacking specification, and refused the pursuer’s reclaiming motion.

Holding and Implications

The court's final decision was to DISMISS the pursuer’s reclaiming motion and uphold the dismissal of the action by the Lord Ordinary.

This decision confirms the position in Scots law that local roads authorities owe a common law duty of care to road users only in respect of hazards that present a significant risk of accident which are not obvious to careful drivers. The duty does not extend to a general obligation to repaint road markings or reposition signs within any particular timeframe absent evidence of a specific hazard or special circumstances. The ruling reinforces the discretionary nature of roads authorities’ maintenance functions and the requirement for pleadings to specify the existence of a hazard and breach of duty with sufficient precision. No new precedent was established beyond clarification and reaffirmation of existing law.