The Appeal Court has found Devon Council jointly negligent in a pothole crash injury claim following a car accident on the C-25 which left one passenger brain damaged and a second tetraplegic.
The accident, which happened in November 2006, occurred when a Land Rover driver – identified as “TR” – overtook a slow moving car travelling on the rural road between Honiton and Smeatharpe. As he was doing so, “TR”´s offside wheels dropped into an 8cm pothole alongside the edge of the road. “TR” attempted to steer his vehicle out of the defect in the road but lost control of the Land Rover and swerved across the road and crashed into trees. A Later investigation found that the Land Rover had been travelling at 45mph – well within the speed limit for the road.
“TR”´s two passengers both sustained catastrophic injuries – one suffering permanent brain damage and multiple skeletal injuries, while the second passenger was rendered tetraplegic and suffered traumatic amputation of an arm. Each passenger received compensation for their pothole crash injuries from “TR”´s insurance company, but the “TR” subsequently made a pothole crash injury claim against Devon Council – claiming that he would not have had the accident were it not for the poor condition of the road.
At the High Court in April 2012, Mrs Justice Slade found that Devon Council was 100 percent liable for the accident on the grounds that the safety inspection regime on the stretch of road had been inadequate and its state of repair was “well below a standard a reasonable driver could expect”.
The judge heard evidence that the road was only inspected twice a year contrary to the Code of Practice for Highway Maintenance Management (2005) to adequately inspect and maintain the winding and hilly road. The judge was also told that no risk assessment had been carried out prior to the six-monthly inspection program being adopted despite the council being aware that the road was used by agricultural vehicles and heavy goods lorries.
However, at the Appeal Court in London, Lord Justice Hughes – sitting with Lord Justice Lloyd and Sir Stanley Burnton – found that, although he could find no flaw in Mrs Justice Slade´s interpretation of the law, “TR” bore half the blame for the tragedy and 50 percent liability in the pothole crash injury claim. Lord Hughes said that the pothole in the road was “there to be seen” and there had been plenty of room to manoeuvre. He ruled that “TR”´s inadvertent error in not seeing and avoiding the 8cm pothole contributed to the accident.
He concluded: “Although the error may have been one which many might make, it amounted to a significant failure to keep a proper lookout and to manage the car correctly; it had terrible consequences. In my view, the only proper finding was that there was contributory negligence to the extent of 50 percent”.
Footnote: The two passengers have already settled their claims for pothole crash injury compensation. The passenger with the brain injury received a lump sum of £1.2 million, while the second victim was awarded a lump sum of compensation for pothole crash injuries amounting to £3 million plus annual payments of £275,000. The High Court case in April 2012 and Appeal Court case above were heard to determine liability in the pothole crash injury claim.