Chef fails in damages claim against council over late night fall due to lack of street lighting

The pursuer claimed that prior to the implementation of the cost-cutting policy the lights were kept on all night and that had he known of the change he would have taken a torch.

However, a judge in the Court of Session assoilzied the defenders after ruling that the lights were not on all night prior to the incident and therefore “neither the policy itself nor its implementation could have caused any accident”.

Lord Matthews heard that Michael MacDonald had raised an action of damages for personal injury against Comhairle nan Eilean Siar, based on “fault and negligence” at common law, following the accident in the early morning of 27 November 2011.

The pursuer was making his way home in the South Uist village of Lochboisdale in the early hours when he lost his footing and fell, resulting in a broken ankle.

He left the Lochboisdale Hotel where he worked as a chef at 12.15am and went to a friend’s house some 400 yards away.

As he was returning home at about 2am after his friend and his wife had dropped him off close to his house, he realised that he had left his keys behind and turned round, but as he did so he caught the edge of the kerb and fell.

He told the court it was “pitch black” and he could not see his hand in front of his face, nor could he see where his feet were placed, and that he would not have lost his footing if the lights were on at that time – as was previously the case, he claimed.

The pursuer also averred that the defenders were responsible, in terms of the Roads (Scotland) Act 1984, for providing and maintaining lighting for roads in the village.

Had a streetlight been on it would have provided “adequate lighting” but at some point before about November 2011 the defenders introduced a “budget saving” practice of causing street lighting at the locus, among other places, to be switched off between about midnight and about 7am.

It was said that the defenders “knew or ought to have known” that patrons and employees of the hotel would have to walk along the streets and footways between midnight and 7am and that in an area with no other forms of artificial lighting the defenders’ failure to provide appropriate street lighting would cause the pursuer and others to be “at risk of injury”.

The defenders accepted that they were the roads authority but as far as lighting was concerned they referred to section 35(1) of the 1984 Act, which states that a local roads authority “shall provide and maintain lighting for roads, or proposed roads, which are, or will be, maintainable by them and which in their opinion ought to be lit”.

They averred that at the material time there was “no defect” in the lighting at the locus and that it was their opinion that it “did not require to be lit” throughout the hours of darkness at the material time.

It was submitted that there was no statutory duty or common law duty on the council to provide street lighting at any particular locus.

The defenders averred that since they were acting under permissive powers they were not liable for accidents arising from a failure to light. Esto they were to any extent liable in damages the pursuer contributed to the accident by his own negligence.

The court was told that the streetlights were operated by a mechanical clock for 20 years until this was changed to a digital clock on 1 November 2011 and well over three weeks had elapsed between that date and the date of his accident.

As a matter of fact there had been no street lighting at the locus at 0200 since at least the mid-1970s and any recent change of policy “could not have been causative of the pursuer’s accident”, it was submitted.

On any view of the evidence it would have been pitch dark when the pursuer left the hotel at 0015 and certainly would have been dark at 2am when he was dropped off, so he “ought to have been using a torch”, it was argued.

Lord Matthews said he was satisfied that the pursuer sustained an accident as averred and that the streetlights were off at the time, but added there was “no doubt” on the evidence that the lights went out at midnight, almost four weeks before the incident.

The judge also accepted the evidence of James McArthur, a street lighting engineer with the council since 1981, who explained that the position before 1 November 2011 was that the lights went off between 1am and 7am, and after that the hours were midnight until 0630.

That evidence was “fatal” to the contention of the pursuer that the lights were on all night prior to the policy change.

In a written opinion, Lord Matthews said: “Since I have taken the view that the lights were not on all night prior to the accident and that in particular they were off at 0115 at the latest, it follows that neither the policy itself nor its implementation could have caused any accident after 0200, whether there was a lack of consultation and notice or not. No case is made against the defenders in relation to maintenance of the lights.

“Even if they were on all night, contrary to my findings, there is no suggestion that the defenders knew or ought to have known that that was the position and acted accordingly. It is not suggested that the system of inspection was defective. The whole case, as I understand it, is dependent upon the lights having been on all night prior to the accident. Since that is not made out there can be only one result.”