High Court: Claim for indemnity and contribution against County Council dismissed in fatal road traffic case

The driver and his employer argued that the Council had failed to take certain precautions to address the risk of a driver crashing into the workers. However, Mr Justice Paul Coffey held that there was no basis for a finding of negligence against the Council in circumstances where the driver had been adequately forewarned of the works.

Background

The plaintiff had been part of a highway maintenance team that was assigned to the N4 motorway by the Council. The maintenance team was made up of vehicles and pedestrian workers, and was working on the hard shoulder of the carriageway. The workers were trimming grass on the verge, picking up litter and cleaning drains along a 500-metre section of road.

The maintenance crew operated in a 55-metre long convoy, with leading tractors trimming the grass. The tractors were followed by pedestrian litter-pickers and a Caterpillar digger. The rear of the convoy was brought up by a pick-up truck which had large reflective warning signs saying “road works ahead.” All vehicles had flashing lights and the personnel were wearing hi-visibility jackets. There were also several warning signs placed on the road before the maintenance works.

Further, the driving environment excellent, with optimum weather and road surface conditions.

At approximately 11.20am, a HGV truck driven by the third defendant, Mr Vlastimil Zachar, collided with the pick-up truck and the Caterpillar digger, causing injuries to the plaintiff and other workers. One of the workers, Mr Padraig Noone, was killed in the accident.

It was common case that the driver had approached the accident location on a section of the roadway that consisted of a long gentle bend followed by a straight section of road which began approximately between 150m and 100m from the locus. Witnesses stated that the truck was driving normally up until a few moments before colliding with the maintenance crew.

The plaintiff brought personal injuries proceedings arising from the accident, with Sligo County Council, Mr Zachar and his employer, MDS Distribution Limited, named as defendants. As part of the proceedings, MDS and Mr Zachar sought indemnity and contribution from the Council on the basis that it had failed to take appropriate steps to maintain the safety of the crew.

The Council challenged the assertion that it had any liability in the proceedings. The hearing lasted two weeks, at which point the parties asked the court to determine the issue of indemnity and contribution. It was argued that the Council was negligent because it had, inter alia, that the Council had failed to identify proper precautions in its mandatory risk assessment, that the convoy was not 1.2 metres in from the hard shoulder as required by regulations and that a long safety zone should have been set up.

It was also argued that a stop/go system should have been put in place on the road to prevent collision. Finally, it was said that a Lorry Mounted Crash Cushion should have been placed behind the pick-up truck, which would have prevented direct contact with the convoy.

High Court

Mr Justice Coffey gave an ex tempore judgment rather than a written decision on the basis that the parties asked for a unitary trial of the action.

The court noted that the driver had already been convicted of careless driving as a result of the action, which was prima facie evidence of negligence and causation. The court also referred to the evidence of garda interviews with Mr Zachar, where it was stated that the truck had been set on cruise control for 88 kmp/h, which was over the speed limit. Further, the driver had admitted that he may have had a “microsleep” while driving.

The court held that, on the balance of probabilities, Mr Zachar had been awake while negotiating the bend before the maintenance crew and then fell asleep in the 5-6 seconds it took to reach them thereafter. He would therefore have had an uninterrupted view of the pick-up truck before falling asleep, the court said.

It was also held that the driver would have passed warning signs and seen the flashing lights of the vehicles as it approached. The court held that the driver “recklessly chose to ignore his drowsiness and the risk of falling asleep and persisted in driving”.

The court considered the three guidance manuals produced by the Council regarding temporary traffic systems. The court noted that one of the guidelines required a “lateral safety zone” in which all maintenance vehicles were 1.2 metres in from the hard shoulder. In this case, the convoy was within this distance from the hard shoulder. As such, the court held that the Council’s risk assessment should have required the lateral safety zone.

However, the court held that any negligence by the Council in failing to operate the later safety zone was “overwhelmed and made irrelevant” by the reckless actions of the driver. Accordingly, the driver’s actions constituted a novus actus interveniens for which the driver and employer were solely responsible (Conole v Redbank Oyster Co. and Anor. [1976] I.R 191 applied).

The court also held that the lateral safety zone was not designed to prevent injuries from this type of accident or confer immunity on an errant driver, so liability could not be apportioned based on a failure to implement the safety zone.

The court then considered whether a longitudinal safety zone with warning cones could have been put in place by the Council. There was no evidence that the driver would have been awoken if he collided with a plastic safety cone, the court said. Even if the cones could have woken the driver up, the court held that he would likely be in a soporific and impaired state. As such, it was “pure speculation” if the driver would have reoriented himself.

Further, the court held that a stop/go system would not have worked because a “vehicle whose driver has fallen asleep has no driver and is impervious to visual cues”. Again, it was a matter of speculation if the driver would have been alert enough to obey a stop/go system.

Finally, the court rejected the submission that the LMCC could have stopped the accident. The court noted the angle of the accident and held that there was no evidence which showed, as a matter of probability, that the cushion would have prevented a collision with the pick-up. In fact, all the evidence suggested that the HGV truck encroached on the hard shoulder just before impacting the pick-up, so a LMCC was unlikely to have made any difference.

Conclusion

Accordingly, the court dismissed the claim for indemnity and contribution against the Council and apportioned full liability to the employer and the driver.