PETER FOSTER v. DUNDEE CITY COUNCIL & SCOTTISH WATER

Factual and Procedural Background

The Plaintiff, residing at a specified address in The City, was injured on or about 6 June 2003, when he tripped and fell on a footpath in The City adjacent to a common close doorway. The footpath was maintained by the Defendant as the roads authority. The injury was caused by a missing metal cover ("Toby") which concealed a hole leading to drainage apparatus belonging to the Third Party. The Defendant had a system of inspections which failed to identify the missing cover due to negligence by their employee. The Third Party, a statutory undertaker, relied on the Defendant's inspections and did not carry out its own. The Plaintiff and Defendant agreed on the quantum of damages, and the issue before the court was whether the Defendant could recover any or all of that liability from the Third Party. The Defendant sought to amend its plea to pursue relief from the Third Party. The court considered the facts, parties' submissions, and relevant statutory and case law before delivering judgment.

Legal Issues Presented

1. Whether the Defendant, as roads authority, is liable to the Plaintiff for injuries sustained due to the missing Toby cover.
2. Whether the Defendant is entitled to relief from the Third Party for all or part of the damages payable to the Plaintiff.
3. Whether, assuming liability on both Defendant and Third Party, apportionment of liability is appropriate.

Arguments of the Parties

Defendant's Arguments

• The Defendant operates a system of inspections of the footpath at least every three weeks, reporting defects in Third Party apparatus immediately to the Third Party.
• The Defendant accepts a duty to notify defects but argues that the Third Party is solely responsible for maintaining its own plant and liable for any damage caused by defects in it.
• While the Third Party may not carry out its own inspections, it must maintain awareness of its plant's condition and owes a duty of care to road users.
• The Defendant contends that if the Third Party relies on the Defendant's inspections, the Third Party should be liable to the Plaintiff even if the Defendant's inspection was negligent.
• The Defendant relies on the English Court of Appeal decision in Reid v British Telecommunications plc to argue that the Third Party is deemed to have knowledge of defects the Defendant should have discovered.
• The Defendant seeks to amend its plea to obtain relief from the Third Party for the damages payable to the Plaintiff.

Third Party's Arguments

• The Third Party admits the Defendant's liability to the Plaintiff but denies any liability on its own part.
• The statutory duty to maintain roads and footpaths lies with the Defendant under the Roads (Scotland) Act 1984; the Third Party has no private law liability to the Plaintiff under that Act or the New Roads and Street Works Act 1991.
• The Third Party argues it takes reasonable care by relying on the Defendant's inspections and is not liable for the Defendant's negligent inspection.
• The Third Party contends that the Defendant's employee was not under its control and thus the Third Party cannot be vicariously liable for the employee's negligence.
• The Third Party rejects the Defendant's reliance on Reid v British Telecommunications plc as inconsistent with Scottish authority and long-standing legal principles regarding independent contractors and knowledge imputation.
• The Third Party submits that apportionment of liability is inappropriate as only the Defendant was negligent and thus the Third Party is entitled to full relief if any liability were found.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the statutory duty of the Defendant, as roads authority under the Roads (Scotland) Act 1984, to inspect and maintain public roads and footpaths for the safety of users such as the Plaintiff. The Defendant's duty includes inspection of ironwork installed by statutory undertakers like the Third Party and reporting defects to them. The Third Party, in turn, is entitled to rely on these inspections to fulfill its duty of care.

The court found that the Defendant's employee negligently failed to identify the missing Toby cover during inspections, which caused the Plaintiff's injury. The Defendant conceded liability to the Plaintiff but sought relief from the Third Party.

The court rejected the Defendant's argument that the Third Party should be liable by virtue of being deemed to have knowledge of defects the Defendant should have discovered, relying heavily on the English case Reid v British Telecommunications plc. The court distinguished that case on grounds that it involved only the utility and not the roads authority, and found it inconsistent with Scottish authorities such as McLeod v Hastie and Laing v Magistrates of Aberdeen.

The court accepted the Third Party's submission that it is reasonable and proper for the Third Party to rely on the Defendant's inspections and that the Third Party cannot be held liable for the Defendant's negligent inspection, as the Defendant's employee was not under the Third Party's control and the Third Party did not have direct knowledge of the defect.

The court further reasoned that imposing liability on the Third Party in these circumstances would effectively require them to insure their apparatus against all eventualities, which is unsupported by contract or statute and contrary to established principles regarding independent contractors.

Regarding apportionment, the court found no negligence on the part of the Third Party, so no basis existed for apportioning liability. All negligence and causation were attributed to the Defendant. The court therefore concluded that the Defendant must bear full liability to the Plaintiff without relief from the Third Party.

Holding and Implications

The court held that the Defendant, as roads authority, is liable to the Plaintiff for damages in the sum of £2,500 plus interest. The Defendant is not entitled to any relief or contribution from the Third Party. The Third Party is granted decree of absolvitor (dismissal of claims) in its favor. The Defendant’s pleas for relief from the Third Party are repelled.

This decision confirms that statutory undertakers may rely on roads authorities for inspection duties and will not be liable for negligent inspections conducted by the roads authority. The statutory obligation to maintain safe roads and footpaths rests firmly with the roads authority, who cannot pass liability to undertakers simply by virtue of their ownership of apparatus within the footway. No new precedent is established beyond affirming existing principles of liability and control as applied in the Scottish legal context.