Courts

Company, not council, liable for lorry’s fatal crash into roadworkers, appeal court holds

Council worker Damien Davey and a number of colleagues were injured while one, Padraig Noone (63), lost his life

In two separate judgments, the Court of Appeal dismissed the appeal. Photograph: Nick Bradshaw

Thu Feb 23 2023 - 21:54

A county council is not liable for any damages due to one of its road workers following a crash in which a passing lorry driver fell asleep at the wheel, the Court of Appeal (CoA) has ruled.

The owners of the truck, MDS Distribution Ltd, bore full liability for the crash when the truck hit a number of Sligo County Council workers who were cutting hedges and clearing drains along the hard shoulder of the N4 near Castlebaldwin, Co Sligo, on the morning of August 13th, 2015, the CoA found.

Council worker Damien Davey and a number of colleagues were injured while one, Padraig Noone (63), lost his life.

The lorry driver, Czech national Vlastimil Zachar (47), of Connell Drive, Newbridge, Co Kildare, was later fined and banned from driving for seven years for careless driving causing death.

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More than two years after the crash Mr Zachar was diagnosed with obstructive sleep apnoea which can cause the sufferer to fall asleep with no warning.

Seven legal actions, including one from Mr Davey, were brought over the crash.

In October 2021, the High Court’s Mr Justice Paul Coffey ruled in Mr Davey’s case that full liability for the damages claim was with MDS and Mr Zachar.

Mr Justice Coffey said Mr Zachar’s 15-tonne truck was travelling at 88km/h when it veered off the single carriageway into the hard shoulder and collided with the rear of a council works truck which then hit a digger.

Mr Justice Coffey said that as Mr Zachar negotiated a bend in the road, while still awake, he must have been aware he was feeling drowsy from which it can be inferred that he made a conscious decision to continue driving and not to pull in and take a rest.

He said Mr Zachar and MDS alleged the council wrongfully failed to take due or proper precautions by way of temporary traffic management control measures to address the risk of a driver falling asleep and crashing into its works area.

The judge said the council ought to have, but failed, to provide an effective lateral safety zone to ensure that the truck and the digger were placed at least 1.2m in from the broken line of the hard shoulder.

However, such negligence as there was on the part of the council in failing to operate a lateral safety zone “was overwhelmed and made irrelevant” by the negligence of Mr Zachar.

In those circumstances, the council bore no liability, he found.

MDS appealed, claiming, among other things, the judge failed to properly consider and engage with the expert evidence and, had he done so, he should have apportioned liability.

It also said the High Court judge wrongly inferred Mr Zachar must have been awake when he negotiated the bend and aware he was feeling drowsy and made a conscious decision to continue driving.

The council opposed the appeal.

In two separate judgments, the CoA dismissed the appeal.

In the main judgment, Mr Justice Seamus Noonan said the trial judge’s conclusion was one that was “open on the evidence and correctly arrived at”.

He also said the trial judge was perfectly entitled to draw this inference that Mr Zachar was awake as he drove round the bend. But, he said, even if he was not so entitled, “it matters not a jot” because the plain fact of the matter is that Mr Zachar fell asleep at the wheel. This was negligent.

This was admitted to be so but “extraordinarily” this admission only came on the third day of the trial and not before, he said.

In a concurring judgment, Ms Justice Úna Ní Raifeartaigh said if one approached the problem in this case from the point of view of the duty of care that was owed, the answer was that the council was not liable.

Mr Justice Caroline Costello also agreed with the judgments.

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