A local authority is not liable in a High Court case brought by one of its workers who was injured in an accident in which a colleague also died when a passing lorry collided with roadside maintenance vehicles.
Mr Justice Paul Coffey ruled the council is not obliged to provide an indemnity and contribution for damages in an action brought by injured Sligo County Council worker Damien Davey whose colleague Padraig Noone died in the accident on August 13, 2015, while they were carrying out maintenance works on the hard shoulder near Castlebaldwin, Co Sligo.
The judge ruled Vlastimil Zachar of Connell Drive, Newbridge, Co Kildare, the lorry driver whose vehicle hit the road workers, and the owners of the truck MDS Distribution Ltd, have full liability for the accident. The decision is binding on the question of liability in seven other actions brought over the accident.
Mr Zachar's truck was travelling at 88kmph when it veered off the single carriageway into the hard shoulder where it collided with the rear of a council truck which then hit a digger. The drivers of the council truck and the digger were injured along with three pedestrian workers, including Mr Davey and Mr Noone who died at the scene.
Mr Zachar (45) was convicted and fined a total of €4,000 in February 2019 for careless driving causing the death of Mr Noone (62) and of careless driving causing injury to Mr Davey and another council worker who was also injured. He was also disqualified from driving for seven years.
At the driving charges hearing, the court was told Mr Zachar had suffered from obstructive sleep apnoea which was not diagnosed until March 2018, two and a half years after the accident.
In a judgment published today in relation to Mr Davey's civil action for damages, Mr Justice Coffey said it is not in dispute the impacts were of massive force and directly caused by the negligence of Mr Zachar "who it is accepted fell asleep at the wheel of his vehicle", for which his employer MDS Distribution is vicariously liable.
Mr Zachar and MDS claimed an indemnity and contribution from the council because they 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.
Mr Justice Coffey was satisfied that although Mr Zachar's driving was already impaired by drowsiness, he must nonetheless have been awake in order to negotiate the curve of the long but gentle bend that preceded the straight stretch of road where the council workers were. While awake and probably from a distance of at least 300m, Mr Zachar had a clear and uninterrupted view of the council’s works area, he found.
Mr Zachar had not only passed but seen the two clearly visible warning signs which were at 270metres and at 162m from the point of impact together with the warning vehicle with its keep right sign and in all probability the digger with its flashing beacon that was working behind it, he said.
The judge was satisfied that as he negotiated the bend, and while therefore awake, and probably from much earlier, Mr Zachar must have been aware that 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.
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.
The recklessness of Mr Zachar therefore constituted a new intervening act for which he and his employer must bear sole responsibility, he said.