Michael Macdonald v Comhairlie Nan Eilean Siar (2015) CSOH 132

This was a case where the defenders successfully defended a personal injury action brought by Mr MacDonald in the Court of Session following a slip whilst walking home at night due to lack of street lighting. 

The case was brought at common law and under the Roads (Scotland) Act 1984 against the roads authority. 

The defenders averred that the power conferred by section 35 of the Roads (Scotland) Act 1984 - “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.” – did not impose a duty on them to provide street lighting. It was the defenders’ opinion that the road did not need to be lit and they were not liable for accidents arising from the lack of lighting.

At proof the pursuer led evidence that lighting formerly operated all night, and that other residents had complained to councillors that street lighting was now turned off at 1am. The pursuer contended that section 35 “did not impose an absolute duty to provide lighting and involved the exercise of discretion, but that discretion had to be exercised properly and having regard to all appropriate circumstances.” The British Standard for the design of road lighting highlighted “the necessity of lighting in as far as the safety of pedestrians was concerned.”

The pursuer also contended that the defenders had not properly exercised their discretion if they had not carried out a proper public consultation or advertisement exercise. He argued that the public consultations had been inadequate, because the meetings had taken place at other locations in the Western Isles.

The defenders submitted that there was no statutory or common law duty on the defenders to provide street lighting at any particular locus (s. 35; Keogh v. City of Edinburgh Council; Sheppard v. Glossop Corporation). Further, the defenders’ policy of extinguishing street lighting during certain hours of darkness was a political decision and was not justiciable in an action for damages by a member of the public. In any event, since the 1970’s, street lighting at the locus had been extinguished at 2 am; as the accident took place after that hour, any change in policy was not causative of injury.

Lord Matthews found that the streetlights had not previously operated later than 1.15 am, so neither the policy nor the implementation of the policy could have caused the accident. In obiter dicta, Lord Matthews accepted that the policy was not justiciable in the present action and that on the authorities cited, there is no statutory or common law duty on a roads authority to provide street lighting. Referring to MacDonald v. Aberdeenshire Council, Lord Matthews held there was no obligation on a road authority to protect members of the public against an obvious hazard. It was difficult to categorise darkness as anything other than obvious. In any event, the steps taken by the defender to consult on and publicise their change of policy was reasonable.

Decree of absolvitor was pronounced. See Lord Matthews’ opinion.