Appeals in simple procedure actions can only be taken on a point of law (Section 82 of the Court Reform (Scotland) Act 2014). As most simple procedure decisions relate to factual disputes, such appeals are few and far between. Earlier this week I represented one of our local authority clients at one of those rare appeals.
Background
The claimant raised a simple procedure action against a local authority claiming damages and loss of earnings totalling £4,500, following a road traffic accident on 22 December 2022. He alleged -
- Some of the roadside tarmac on a rural single carriageway road, was missing, with no markings visible.
- There were no warning signs, cones or lights in place.
- His vehicle was damaged.
The claimant sought to recover the costs of having his vehicle repaired, emotional stress and potential loss of earnings.
We lodged a defence that was as follows -
- The road was inspected monthly in the year prior to the accident.
- The road was inspected on 7 December 2022, with no defect identified.
- There were no reports of any other accidents or reports of a defect between the date of inspection on 7 December 2022 and the claimant’s accident.
- They were not aware of the defect.
Following evidence and submissions, the sheriff absolved the local authority and found no expenses due to or by either party.
Appeal
The claimant submitted an appeal form setting out 6 grounds of appeal. However no relevant or specific legal challenge was made.
During the appeal, the claimant sought to rely on images from Google which he believed demonstrated the defect had been in existence at the time of the previous inspection. This evidence had not been put before the court at the evidential hearing. In Rankin v Jack [2010] CSIH 48 it was held that the court possesses a discretionary power to allow additional proof, however the court will not allow a party to introduce evidence which was available or should have been available, if proper investigation were carried out, at the time of the original hearing.
The claimant accepted the Google image had not been before the sheriff at the evidential hearing.
Test for Interference
The test for interfering with first instance findings on the evidence was set out by Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41 at para [67] -
“In the absence of some identifiable error, such as … a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
Outcome
Following submissions, Sheriff Principal Pyle, highlighted to the appellant that in order to succeed he required to identify that the sheriff had made an error in law, which he had failed to do. He went on to confirm that there is no absolute duty on a local authority to maintain public roads. They are under a duty to take reasonable care. The evidence before the sheriff was that the local authority had a system of inspection in place, the system was complied with, the inspection immediately prior to the accident had been carried out properly and no defect had been identified. On that basis, the sheriff was entitled to find that the local authority had fulfilled their duty of reasonable care.
With regard to the attempt to introduce and rely on new evidence, Sheriff Principal Pyle, stated that the photograph had not been before the sheriff and was not referred to in the claimant's Grounds of Appeal. As such, the photograph could not be considered as part of the appeal.
The appeal was refused and expenses on the Chapter V scale were awarded in favour of our client.
