PETER FOSTER v. DUNDEE CITY COUNCIL & SCOTTISH WATER [2011] ScotSC 191 (07 December 2011)

PETER FOSTER v. DUNDEE CITY COUNCIL & SCOTTISH WATER [2011] ScotSC 191 (07 December 2011)

The defender (roads authority) is solely liable to the pursuer for injuries caused by a missing toby cover because the statutory duty to inspect and maintain the footway rests with the defender. The third party (statutory undertaker) is entitled to rely on the defender's inspection system and is not liable to the pursuer or the defender for the negligent inspection. There is no basis for apportionment or relief as all negligence lies with the defender.

Citation
[2011] ScotSC 191
Parties
Pursuer: Peter Foster; Defender: Dundee City Council; Third Party: Scottish Water
Jurisdiction
Scotland
Judgment Date
07 December 2011
Procedural Posture
Civil Action for Damages (personal Injury) / Judgment After Proof (trial)
Outcome
Decree for the pursuer against the defenders for £2,500; defenders not entitled to relief from the third party; decree of absolvitor for the third party; defenders liable in expenses.
Legal Topics
Negligence, Liability of Roads Authorities, Liability of Statutory Undertakers, Apportionment of Liability, Duty of Care, Independent Contractor Liability
Tort Public Liability Statutory Duty Negligence Liability of Roads Authorities Liability of Statutory Undertakers Apportionment of Liability Duty of Care +1 more

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Parties

Peter Foster

Pursuer

Dundee City Council

Defender

Scottish Water

Third Party

Procedural Posture

Civil Action for Damages (personal Injury) / Judgment After Proof (trial)

Legal Issues

  1. 1 Is the roads authority (defender) liable to the pursuer for injuries caused by a missing toby cover?
  2. 2 Is the statutory undertaker (third party) liable to the pursuer or to the defender for the same injuries?
  3. 3 Can the defender recover relief or contribution from the third party for its liability to the pursuer?

Ratio Decidendi

The defender (roads authority) is solely liable to the pursuer for injuries caused by a missing toby cover because the statutory duty to inspect and maintain the footway rests with the defender. The third party (statutory undertaker) is entitled to rely on the defender's inspection system and is not liable to the pursuer or the defender for the negligent inspection. There is no basis for apportionment or relief as all negligence lies with the defender.

Court Disposition

Decree for the pursuer against the defenders for £2,500; defenders not entitled to relief from the third party; decree of absolvitor for the third party; defenders liable in expenses.

Orders

  • Decree against defenders in the sum of £2,500 with interest at 8% per annum from date of decree.
  • Decree of absolvitor in favour of the third party.