In Bowes v Highland Council  CSIH 38 (5 June 2018), the Inner House considered the issue of duty of care among others, after the defenders/reclaimers appealed against the Lord Ordinary’s decision finding them liable for breaching their duties to deal with the hazard of defective parapets on a bridge.
The pursuers/respondents were the relatives of a driver who died after he lost control of his vehicle and it collided with one of the parapets. The parapet failed, causing his vehicle to leave the bridge and fall into the sea below. In finding the reclaimers liable, the judge held that the death would have been prevented if they had not breached their duty to deal with the defective parapets by implementing interim measures until the parapets were replaced. Although the judge decided that the deceased’s loss of control had been due to his negligence, there was no finding of contributory negligence.
The Inner House noted that the Lord Ordinary had identified that the test to be applied was as set out in MacDonald v Aberdeenshire Council 2014 SC 114, namely whether a roads authority using reasonable care would have identified the hazard and taken steps to correct it. The court highlighted two important points. First, at the time of the accident, the reclaimers had accepted that the bridge and parapets required extensive repair and replacement and they had been aware of this for several years. The other point was that the respondents’ position was not that the reclaimers had a duty to carry out the repair work or to close the road, but that given the reclaimers’ knowledge of the state of the parapet, they should have put interim measures in place until repairs could be carried out.
On the reclaimers' argument that the judge had erred in relation to the scope of the duty of care, the Inner House disagreed, noting that the duty was based on Scottish authorities and had been analysed in MacDonald.
The court decided, however, that the decision on contributory negligence could not stand. The primary cause of the accident had been the deceased's negligent loss of control. Both the deceased’s driving and the defective parapet had causative effect in relation to the accident. Although the deceased had not contributed to the parapet being defective, his death would not have occurred in the absence of his negligent driving. The reclaimers’ blameworthiness was much greater than that of the deceased and, on that basis, a contribution of 30% was appropriate.