JOSEPH MUNRO McKNIGHT and MRS JOAN McKNIGHT v. CLYDESIDE BUSES LIMITED and GLASGOW CITY COUNCIL and RAILTRACK PLC and MIMA DUNLOP

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OPINION OF LADY COSGROVE in the cause (FIRST) JOSEPH MUNRO McKNIGHT and MRS JOAN McKNIGHT, (ASSISTED PERSONS) Pursuers; against CLYDESIDE BUSES LIMITED Defenders: and (FIRST) GLASGOW CITY COUNCIL, (SECOND) RAILTRACK PLC and (THIRD) MIMA DUNLOP Third Parties ________________

23 December 1998

The pursuers in this action of reparation are the parents of Catherine McKnight (the deceased) who was killed in a road accident in September 1994 when she was 11 years old. The defenders are the bus company who owned and operated the double decker bus on which the deceased was travelling when it was involved in a collision with an overhead railway bridge in West Street, Glasgow. The upper deck of the bus struck the underside of the bridge forcibly and the deceased was killed as a result of the impact. The defenders' employee, who was the driver of the bus, was subsequently convicted of a contravention of section 3 of the Road Traffic Act 1988.

The facts of the accident as averred on record are not in dispute. The deceased was one of a group of girl guides who were returning on the bus which was being driven by one of the defenders employees in the course of his employment with them from an outing to Wonderwest World, Ayr, through Glasgow to Drumchapel. Two of the adults providing assistance with the said outing travelled to Ayr by car. On the return journey, the bus was following the car driven by one of the adult helpers, Mrs Dunlop northwards in West Street, Glasgow.

The defenders aver that the bridge in question is one of two bridges crossing West Street which are the property of Railtrack. The two bridges are said to be 30 to 40 feet apart and to be of different heights. Travelling northwards, the first bridge is the higher and there is an advertising billboard to its left. At the time of the accident both bridges were painted grey and the lower of the two was marked with chevrons at its lowest edge. There was a height warning sign approximately 65 yards south of the first bridge and a second warning sign mounted on the southmost bridge; the height shown on both signs was that of the lower bridge despite being mounted on the higher bridge. Prior to the accident which caused the deceased's death there had been several collisions between vehicles and the said bridge. Following the said accident new signage was installed prior to and at the bridge by Strathclyde Regional Council who were then the roads authority and new chevrons were applied to the lower bridge and, for the first time, to the higher bridge by Railtrack.

The first third party is Glasgow City Council, the statutory successors of Strathclyde Regional Council, the local roads authority with responsibility for West Street at the time of the accident and with powers for the provision of road signs there. The second third party is Railtrack plc as successors to Scotrail and the British Railways Board. The bridges are the property of the second third party who are responsible for their structural integrity. The third third party is Mrs Mima Dunlop who was the driver of the car which the bus was following at the time of the collision with the bridge.

Each of the third parties has a plea to the relevancy and specification of the defenders' averments so far as directed against them and they each also have a plea to the effect that there exists special cause rendering the case unsuitable for jury trial and the defenders also have a plea to that effect. At the procedure roll hearing before me, counsel for the pursuers submitted that consideration of the question of whether or not issues should be allowed ought to be deferred until after the preliminary pleas on behalf of each of the three third parties had been dealt with and all parties agreed that the debate should proceed upon consideration of these pleas, the case thereafter being put out by order for discussion as to further procedure.

The Defenders' Case against the First Third Party

The defenders aver that the first third party are the local authority with responsibility for West Street at the time of the accident, including responsibility for provision of road signs there. They aver that they had a duty to take reasonable care for the safety of persons using the roads for which they were responsible and to avoid exposing such persons to risk of injury. It is averred further that they had a duty to take reasonable care to provide road signs that gave adequate warning of the hazard presented by low bridges. In particular, it is averred that they had a duty to provide signage which indicated that there were two bridges, to provide signage which indicated that the second bridge was significantly lower than the first and to provide a sign on the second bridge indicating its height. It is also averred that they had a duty to mark the lower edge of the higher bridge with chevrons and to provide signage on the roads leading up to West Street which indicated that there were low bridges ahead to give drivers an opportunity to take an alternative route.

In their answers, the first third party aver that the relevant statutory provisions confer certain powers in respect of roads and bridges but impose no duties upon them and it was that assertion which formed the basis of the attack on the relevancy of the defenders' case against them. Counsel submitted that while the duty imposed by section 1 of the Roads (Scotland) Act 1984 is a duty imposed on a local roads authority to "manage and maintain" all roads in their area, the duty relied upon by the defenders, namely to provide warning signs and markings was not part of the duty to maintain. It was not averred that the existence of the bridge constituted a lack of maintenance of the road or that taking action in relation to the bridge was part of the roads authority's duty of maintenance of the highway. While it was conceded that there was undoubtedly a common law duty on a roads authority to maintain a road, the word "maintain" was confined to a duty to repair or to keep or preserve in its original state (Haydon v Kent County Council 1976 W.L.R. 485 per Denning M.R. at p. 492 and Lanark County Council v Bent Colliery Company 1948 S.C. 155). A duty to provide signs and markings was quite different from a duty to maintain. A duty such as that relied upon which was not associated with an act of maintenance could not have its foundation in the statutory duty to maintain. Further, and in any event, there was no specific reference on record to a duty to maintain and if the defenders' case amounted to a breach of such a duty it would have been reasonable to expect them to make that claim in their pleadings.

It was submitted further that there was no authority which supported the existence of a common law duty of care such as that relied upon by the defenders. The question which then arose was whether the existence of a statutory power, the Road Traffic Regulation Act 1984, sections 64 and 65, which conferred a discretionary power on the local authority to erect road signs gave rise to a common law duty of care. Reference was made in this connection to the case of Stovin v Wise & Norfolk County Council [1996] A.C. 923 as authority for the proposition that the absence of a statutory duty would normally exclude the existence of a common law duty of care and that the question of whether the existence of a statutory power gives rise to a common law duty of care requires an examination of the policy of the statute. In Stovin the House of Lords held that the minimum preconditions for basing a duty of care on a statutory power were, first, that it would have been irrational not to have exercised the power so that there was in effect a public law duty to act, and secondly, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.

It was submitted that in the light of the House of Lords decision in Stovin the defenders, in order to succeed against the first third party, had six hurdles to overcome and in particular required to show: (1) that the Council's omissions were irrational; (2) that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffered loss as a result of failure by the defenders to exercise the statutory powers; (3) that the negligent failure to exercise statutory powers was not related to issues of policy which are not justiciable; (4) that the loss arising was reasonably foreseeable; (5) that the parties were sufficiently proximate and (6) that in all the circumstances it was fair, just and reasonable to impose a duty of care. Junior counsel for the first third party analysed each of these requirements in some detail and submitted that the defenders' averments being inadequate in each and every respect, the case as pled against the first third party was fundamentally irrelevant. Reference was made in this connection to: X Minors v Bedfordshire County Council [1995] 2 A.C. 633; Hallett v Nicholson 1979 SC 1; Lonrho v Shell Petroleum Co Ltd (No 2) [1982] A.C. 1973; R. v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58; Forbes v City of Dundee District Council 1997 S.L.T. 1330; Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] A.C. 211; Coleridge v Miller Construction Ltd 1997 S.L.T. 485 and Taylor v City of Glasgow District Council 1996 S.L.T. 701.

The argument presented on behalf of the first third party proceeded upon the basis that the present case is on all fours with Stovin and the first question which arises is whether, as senior counsel for the defenders contended, that case is in fact distinguishable from this one both in relation to the facts and the issues of law which arise. In Stovin, the plaintiff was seriously injured as a result of a collision between the motor cycle which he was riding along a road and a motor car being driven out of a junction. The junction in question was known by the county council as the highways authority to be dangerous because the view of drivers emerging from the junction was restricted by a bank on adjoining land. Following the occurrence of previous accidents the council had accepted the existence of a visibility problem and had made a proposal to the owner of the land in question suggesting that he remove part of the bank but the owner had made no response. The plaintiff's case against the driver of the motor vehicle was settled but the latter joined the council as third party alleging negligence and breach of statutory duty. The House of Lords dismissed the case against the third party on the basis that the council owed the plaintiff no duty of care.

It is immediately apparent that the object which constituted the danger in Stovin was a bank of earth on land adjoining the road which was outwith the control of the roads authority. The roads authority had no power to remove the bank and reliance was placed by the defender on the powers of the council to serve notice on the owner of the land directing him to do so. In the present case however it is averred that the council assumed responsibility for both the roads and the provision of signage as statutory successors to previous roads authorities. Section 65 of the Road Traffic Regulation Act 1984 (c27) confers power on the roads authority to erect road signs. The defenders thus offer to prove that the council had both the responsibility for the road signs in question and direct control over them and I consider therefore that the present case is distinguishable on its facts from Stovin in this important respect.

It is also clear that the failure on the part of the council in Stovin was regarded as a failure of omission rather than commission. The difficulty inherent in identifying the interaction between the two and the importance of the distinction was recognised by Lord Nicholls of Birkenhead at p. 930:-

"The distinction between liability for acts and liability for omissions is well known. It is not free from controversy. In some cases the distinction is not clear cut. The categorisation may depend upon how broadly one looks when deciding whether the omission is a "pure" omission or is part of larger course of activity set in motion by the defendant. Failure to apply the handbrake when parking a vehicle is a classic illustration of the latter. Then the omission is the element which makes the activity negligent. Dorset Yacht Company Ltd v Home Office 1970 A.C. 104 is an instance where the distinction was not so easy to apply.

Despite the difficulties, the distinction is fundamentally sound in this area of the law. The distinction is based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so.

The law has long recognised that liability can arise more readily in the first situation than the second. This is reasonable. In the second situation a person is being compelled to act, and to act for the benefit of another. There must be some special justification for imposing an obligation of this character. Compulsory altruism needs more justification than an obligation not to create dangers to others when acting for one's own purposes."

In the Dorset Yacht Company case to which his Lordship refers borstal officers used their statutory powers of custody to bring trainees onto an island where they constituted a foreseeable risk to boat owners and then took no care to prevent them from escaping in the night. A majority of the House of Lords did not regard that situation as one in which the alleged breach of duty was merely an omission to use a statutory power and the officers were found liable for the negligence in failing to take care of the trainees. Counsel for the defenders submitted that the act of taking the trainees onto the island was analogous with the taking over by the local authority in this case of the defective road signs and the failure to remedy them with the failure to take care of the trainees.

What is suggested in the defenders' pleadings is that the council's statutory predecessors erected signs which, as evidenced by the number of recent collisions, failed to provide adequate warning of a hazardous situation. The negligent act complained of is the failure on the part of the council to take steps to remedy a situation of foreseeable danger. I am not persuaded that the alleged breach of duty, namely a failure to take preventative action in a situation where there was a right to exercise control, can with certainty be classed as "pure" omission in the Stovin sense of a mere omission to use a statutory power.

Counsel for the defenders submitted that in any event the common law duty on which the defenders rely was one which was well established in the law of Scotland and the issue focused in the pleadings not being a novel one, the case of Stovin had no bearing on the situation. In particular, it was argued that the existence of a common law duty to maintain the highway in a safe condition was well established and the proposition which was relied upon under reference to the case of McFee v The Police Commissioners of Broughty Ferry (1890) 17R. 764 was the very broad nature of the duty of care where the road in question is vested in the local authority. In McFee a person driving a cab along a street at night was killed by coming into contact with a railway bridge. His widow raised an action of damages against the police commissioners as custodiers of the street on the ground that they ought either to have had the danger removed or to have taken effective measures to prevent the public from using the street for purposes for which it was not safe. The sheriff awarded damages and in refusing to sustain the defenders' appeal the Lord Justice Clerk (at p. 767) explained the nature of the defenders' duty as follows:

"Their duty is, in my opinion, to see that there shall be no dangerous obstruction on the roads of which they have the control. If anything occurs to create a danger on these roads, it is their duty to guard against it. It is their business not to allow traffic to pass along the road until they have either put the road into a proper state, or (if they desire to maintain that another person or body is liable to do so) until they have caused that person or body to perform the duty. It is new to me that a public body, custodiers of a public road, are entitled to say that they know it is dangerous but cannot suggest a mode of making it safe, and therefore to maintain that they are entitled to leave it as it is. That is a proposition which cannot be accepted. They are bound as guardians of a public safety to take means to prevent the manifest danger which exists".

Reference was also made in this connection to Laing v Paull & Williamsons 1912 S.C. 196 and Black v The Corporation of the City of Glasgow 1959 S.C. 188. In Laing, a woman walking along a pavement in Aberdeen injured herself when she placed her foot on a metal disc on the pavement covering an opening into a cellar. The disc was the property of the defenders who were bound in terms of certain local Acts to keep the cover in repair but the pavement itself was vested in the Town Council and could not be altered without their authority. The Court held that there was fault on the part of the Town Council and the Lord Justice Clerk put the matter thus (at p. 201):

"I cannot hold otherwise than that the city, which owned the pavement, was bound to exercise reasonable care that such arrangements as they sanctioned for openings in the pavement when required should not be a source of danger to the public when closed, whether by faulty construction or by decay from age. They alone could interfere with the granite flags to keep the street safe, and I think they were bound to know whether their pavement as fitted with shoots was in such a condition as to constitute a danger, and were bound to have the cause of danger removed."

In the case of Black the pursuer was injured when walking on a privately owned footpath as a result of a loose paving stone. The breach of duty alleged against the defenders was said to consist in a failure to provide a barricade, fence, warning light or other means of warning pedestrians walking on the public street adjacent to the footpath. Lord President Clyde in that case affirmed the duty of a local authority in a situation in which a street or pavement is vested in its control, or is under its possession and control, as a public street or pavement to take reasonable care to maintain it in a safe and secure condition for the passage along it of members of the public.

Senior counsel for the first third party conceded that these cases were authority for the proposition that there is a duty on a roads authority to maintain the highway. He submitted however that it was important to determine the proper limits which were imposed on that duty. In the present case the duty which was relied upon, namely the duty to provide signs which gave adequate warning of the hazard presented by the low bridge, did not relate in any way to maintenance and accordingly could not have its foundation in the statutory duty to maintain. Further, there was no averment that it was any part of a duty of maintenance of the road to take action in relation to the bridge; nor was it said that the existence of the bridge constituted a lack of maintenance of the road.

Counsel's submission with regard to the limitation on the duty to maintain is no doubt well founded but the duty which is contended for by the defenders in respect of the first third party is not a duty to maintain the highway but rather the distinct and particular duty of providing adequate warning of hazards and the consequent related duty of remedying defective signs. The question which falls to be addressed therefore is whether the authorities to which reference has been made support the contention that that duty is one which is recognised by the common law.

While the facts in McFee (supra) are remarkably similar to those in the present case, counsel for the first third party attempted to distinguish that case on the basis that the police commissioners were a body which was quite different from the roads authority in its present regulatory function in that the latter was in no sense the guardian of the public safety. He submitted further that there was no reported case in Scotland which founds on McFee, far less any case in which its reasoning has been extended to a roads authority. I observe in this connection that McFee was cited without any suggestion of disapproval in Black (supra), a case involving a roads authority and I observe also in this connection that the footnote in McFee (at p. 767) indicates that the statute relied upon was one which imposed on the police commissioners the particular duty to take steps to prevent danger to persons walking along streets. It is clear from the opinion of the Lord Justice Clerk in the passage to which reference has already been made that he attaches significance to the fact that the defenders were custodiers of the road and therefore had control over it and is of the view that their duty was to take steps to remedy a dangerous situation and to prevent the manifest danger which existed.

Senior counsel for the first third party also attempted to distinguish the case of Black (supra) on the basis that the duty to warn in that case was associated with the duty to maintain and there was no duty to warn which was not associated with a duty to repair. That is a contention which in my view is unsound since the footpath in that case was not under the control of the roads authority and therefore could not have been maintained by them. The general duty relied upon by the pursuer in Black is the duty of the defenders as the responsible local authority charged with the safety of pedestrians using the street to take reasonable care that it was maintained in a safe and secure condition for the passage along it of members of the public and the particular duty is that of providing a barricade, fence, warning light or other means of warning pedestrians of the existing danger, a duty which mirrors the specific duty relied upon by the defenders in the present case.

In the present case the defenders offer to prove that there existed at the time of the accident a bridge crossing a city street which the roads authority knew provided insufficient headroom for certain classes of vehicles, including double decker buses, and that in the period of six years prior to the accident there had been a long catalogue of incidents occurring on a regular basis involving vehicles colliding with the bridge. The duty of a roads authority towards road users is to take reasonable care in all the circumstances (Smith v Middleton & Others 1971 S.L.T. (Notes) 65 per Lord President Emslie at p. 66). In my view, the Scottish authorities to which reference has been made amply vouch the proposition that that duty encompasses an obligation on the roads authority arising out of their ownership of and responsibility for the road to remedy a dangerous situation of the type which the first defenders offer to prove was known to exist at the time of the accident. The Lord Justice Clerk in McFee, supra specifically negatived the proposition that a roads authority was entitled to leave a road in a dangerous state and do nothing for the safety of the public using it (at p. 767).

Further, I reject the contention which was advanced on behalf of the first third party that any duty on the roads authority is restricted to taking care with regard only to the actual road surface. In my view, a highways authority is under a similar duty of care in respect of road signs placed above the road surface over which it has control in terms of the Road Traffic Regulation Act 1984. In Levine v Morris [1990] 1 W.L.R. 71 the Court of Appeal held that the Ministry of Transport in the exercise of similar powers was under a duty of care to motorists when siting large road signs to take reasonable care not to expose them to hazards. While that case was concerned with the actual siting of road signs, I find support for the view I have reached from the court's acceptance that the duty to take reasonable care with regard to road signs is a facet of the duty of care which is incumbent upon a roads authority.

Senior counsel for the first third party argued that if a duty of care was to be imposed in relation to the siting of road signs this would extend to the provision of school warning signs and signs in relation to old people's homes and the like. It is not of course necessary for present purposes to attempt to define the limits of the duty which I find exists. What the instance case is concerned with are signs which it is averred have given rise to a situation of manifest danger to road users. In such a situation I consider that a roads authority is under a duty to take steps to remedy the obvious hazard which is known to exist: it cannot ignore its duty to act in the interests of public safety. Further, it matters not in my view whether the defect arises from the original erection of the sign or as a result of it having become faded (as is alleged in respect of the chevrons on the bridge). In Laing, supra the Lord Justice Clerk (at p. 767) made it clear that the danger which the owner of the pavement was bound to have removed included danger arising both from faulty construction and by decay from age.

It follows from what I have said that the defenders have relevantly averred common law duties of care in respect of the first third party and, further, that since the issue focused in the pleadings is not a novel one so far as public bodies are concerned, it is not necessary to embark upon an analysis of the principles set out in Stovin. Further, and in any event, even if I am wrong in the view I have reached as to the relevancy of the defenders' averments of a common law duty of care, it is clear that the starting point of the House of Lords' consideration of the issues involved in the case of Stovin was that there was no difficulty over categorisation of the failure in that case as one of omission. As I have already indicated, I do not consider that it is possible in the circumstances of the present case to reach a similar clear cut view as to categorisation and it follows in my opinion that it would in any event be appropriate to allow a proof before answer to determine the various factual matters bearing upon that issue.

Junior counsel for the first third party presented a subsidiary argument to the effect that although the defenders aver that the signs provided were inadequate or misleading, there was no averment to the effect that the driver of the bus was in fact misled. Thus even if the defenders were able to prove all the facts averred by them they would be unable to demonstrate the necessary causal link between the breach of duty and the accident. That submission was subsequently adopted on behalf of the second third party in relation to the defenders' case against them. In response, junior counsel for the defenders referred to the fact that this argument does not feature in either the original note of arguments or the supplementary note submitted on behalf of either the first or second third party. He submitted that in any event the point was without merit since it is specifically averred on record that but for the first third party's failures in respect of the duties incumbent upon them the accident would not have occurred and in respect of the second third party it is averred that their failure in their duties caused or materially contributed to the accident. I consider that that submission is well founded and that these averments are in the circumstances sufficient for proof before answer. In any event, since it was conceded that this criticism was first mentioned in the course of the submissions on behalf of junior counsel for the first third party, I would have considered it appropriate, had I been persuaded by it, to afford the defenders the opportunity to remedy any defect in their pleadings.

The Defenders' Case against the Second Third Party

The defenders aver that the two bridges in West Street are the property of the second third party, Railtrack, who are responsible for them and for maintaining the height of them. They aver both a breach of the Railways Consolidation Clauses (Scotland) Act 1845 and also of the common law duty of care.

Section 42 of the 1845 Act provides for a minimum headroom of 15 feet on "every bridge to be erected". The attack on the relevancy of the defenders' statutory case was founded on the averment on behalf of the second third party that the bridges in question came into use in July 1840. Counsel acknowledged, however, that the statute in question was a consolidating provision and that the matter would require to be explored at proof. It was conceded therefore that that part of the defenders' case ought appropriately to be remitted to proof before answer.

In support of their common law case of fault against the second third party the defenders aver that they had a duty to take care to users of the road passing beneath the bridge and a duty to take reasonable care to avoid or minimise the dangers to road users created by the said bridge. In particular, it is averred that they had a duty to take reasonable care to provide such users with adequate warning of the dangers constituted by the said bridges and to provide warning signs on the bridges sufficient to indicate the hazard that existed.

In advancing her submission that the averments of a common law duty were both irrelevant and fatally lacking in specification, senior counsel submitted that the two specific duties said to be incumbent upon the second third party were predicated upon an averment to the effect that they knew or ought to have known that in the absence of warnings and signs there was a material risk that an accident would occur and that was an averment which was manifestly unsupported by relevant averments of fact. In particular, the factual averments indicate that there was not an absence of signs but that at the time of the accident the lower of the two bridges was marked with yellow and grey chevrons at its lowest edge and that there was a warning sign mounted on the southmost bridge. Further, it was submitted that the defenders' averments appear to offer to prove that it was the roads authorities task to provide warnings and signs and in particular they aver that at meetings which took place between the first and second third parties prior to the accident it appears that a clear understanding emerged that it was the first third party's responsibility to take steps in connection with the provision of warning signs. The factual averments did not point to the second third party being expected to do something in relation to the signing but rather to the first third party having undertaken that responsibility. Reference was made in particular to an averment on behalf of the defenders to the effect that at a meeting which took place on or about 23 June 1993, the second third party requested the roads authority to install mandatory signing on the bridges at West Street. It was argued that if the first third party had the power to erect signs, had done so and had undertaken to take further steps, the question arose of what more was there for the second third party to do. It followed that there was no factual basis for the duties said to be incumbent upon the second third party.

Further, it was submitted that the averments were fatally lacking in specification in that they did not provide the second third party with fair notice of what was meant by warning signs or adequate warning. That lack of specification was prejudicial to the second third party in preparing for proof since there was uncertainty as to the type of technical evidence which would be required.

It is clear that the defenders' case is based on the second third party's ownership of and responsibility for the bridges. There are factual averments that at the time of the accident there were markings on both bridges, chevrons on the lower bridge and a warning sign on the higher. It is clear therefore that what is complained of is not an absence of signs but of suitable and sufficient signs in relation to the hazard which existed. The suggestion by counsel, that given the averments of duty said to be incumbent upon the first third party there was nothing left for the second third party to do, seems to me to be without merit. What the defenders appear to be offering to prove are parallel duties to warn: a duty on the roads authority in respect of road signs and on the second third party in respect of signs actually mounted on the bridge. The defenders aver that following the accident the second third party applied new chevrons to the lower bridge and that for the first time chevrons were applied also by them to the higher bridge. While it is averred by the second third party that this was done at the request of the roads authority, the issue of the relative responsibilities of the first and second third parties in relation to the signing on the bridge is a matter which is clearly appropriate for exploration at proof. In these circumstances I consider that the defenders have relevantly averred a case of fault against the second third party.

Further, it is evident that the defenders' complaint against the second third party lies in the inadequate nature of the chevrons applied to the lower of the two bridges and the misleading nature of the sign mounted on the higher bridge. It was suggested on behalf of the second third party that specification ought to have been provided as to the appropriate placing and colour of the chevrons and of precisely what it was being suggested ought to have been provided by way of warning signs. It is clear that the duty said to be incumbent upon the second third party is specifically in relation only to what was actually mounted on the bridges and that the defenders' complaint lies in the defective nature of what was provided rather than in a failure to adopt any other particular alternative method of providing warning. In that situation I am of the view that there is no need for the degree of specification suggested and that the averments give the second third party sufficient notice of the case against them. It follows from what I have said that the whole averments are appropriate for proof before answer.

The Defenders' Case against the Third Third Party

The factual averments upon which the defenders rely in respect of the case against the third third party are that she was one of the two adults helping the girl guides' outing who travelled down to Ayr by car. On the way back the bus driver, Campbell Devlin, who led the way into Glasgow in the bus was unfamiliar with the route through the south of Glasgow to Drumchapel. It is then averred:

"Both the bus and the car being driven by Mima Dunlop stopped in Pollokshaws Road. It was explained by Mary McGreskin (the other adult involved) to Mima Dunlop that Campbell Devlin did not know the way back to Drumchapel from that location. It was agreed that Mima Dunlop would lead the way in the car as she knew the road and that Campbell Devlin should follow her. ... The car drove under the railway bridges in West Street. Campbell Devlin was following the car when the accident occurred."

In support of her plea to the relevancy of the case as pled against the third third party, counsel submitted that there was a fatal lack of crucial factual averments to support the defenders' case: there was no averment of any conversation or direct arrangement entered into between the bus driver and Mrs Dunlop nor any averment that Mrs Dunlop was told or knew or ought to have known as a car driver that the bridge would be too low for the bus. It was not sufficient to narrate that the bus was following the car without averring a causal link between Mrs Dunlop's actions as driver of the car and those of the bus driver.

In response, counsel for the defenders submitted that what was crucial was the averment of the assumption by Mrs Dunlop of the responsibility for safety of the bus. Reference was made in this connection to Sharp v Avery & Kerwood [1938] 4 A.E.R. 85. In that case the plaintiff was a pillion passenger on a motorcycle which was driven by the third party who in turn was following the defendant who was also riding a motorcycle and had agreed to lead them as he was familiar with the road. The accident occurred at a bend where, instead of keeping to his proper side of the road and going round the curve, the leading motorcyclist went straight on. The other cycle which had followed him off the road collided with him and the plaintiff was injured. The Court of Appeal held that in the circumstances since the defendant had undertaken to lead the third party and the plaintiff he was under a duty to both of them not to put them in a position of danger. Counsel founded on the fact that it is clear from the report in Sharp that the plaintiff who was the pillion rider made no express arrangement with the driver of the leading motorcycle but was nevertheless held to be entitled to complain of his negligence. I am not persuaded that this case is of assistance to the defenders and in particular I consider that it falls to be distinguished on its facts from the present case. In the first place, while there was no suggestion of any arrangement having been entered into between the plaintiff as pillion passenger and the driver of the leading cycle, it is clear that the court considered the fact that there was a specific arrangement between the two motor cyclists made the case exceptional (p. 89B), and of course that case is concerned with two vehicles of the same type. Further, it appears to be the case that the negligent act was considered to be that having gone off the road the lead cyclist, instead of doing what he might have done to avoid any possible risk to those who were following him, namely, turning to the left to go back to his own side of the road, put on his brakes thus causing the collision (page 87 F - G). In other words, the negligent act for which the lead driver was held responsible related to his own response to finding himself in a situation of danger with the other cycle following immediately behind him. In the present case it is not suggested that there was any arrangement made directly between the two drivers. Nor is it suggested that having appreciated she was in a situation of danger Mrs Dunlop responded in a way which prevented the bus driver from taking evasive action.

The particular duties which are said to have been incumbent upon the third third party in the present case are the duty to take reasonable care in giving directions not to lead the bus into a situation of danger and to take reasonable care not to drive under said low bridges. There is no suggestion in the defenders' pleadings that the danger constituted by the low bridge was an obvious danger of which Mrs Dunlop ought to have been aware (and any such averment would of course be inconsistent with the defenders' case against the other two third parties). Nor is there any averment that she knew or ought to have known that the bridge would be too low for the bus or that she ought to have taken a route which avoided any low bridges. Further, there is no suggestion either that the driver of the bus had any reason to believe that Mrs Dunlop would have regard to considerations of safety in respect of the bus or that having gone under the bridge because the car did so, he then had no time to stop before the collision. In these circumstances the averments of duty are in my view wholly unsupported by any suitable factual narrative so that the case as pled against the third third party is fundamentally irrelevant (Jamieson v Jamieson 1952 S.C. (HL 44). It follows that so far as the third third party is concerned, the first plea-in-law falls to be sustained and the third party notice dismissed.