The High Court dismissed claims by M.D.S. Distribution Limited and Vlastimil Zachar seeking indemnity or contribution from Sligo County Council over a fatal crash at roadworks on the N4 near Castlebaldwin, Co Sligo.
In an ex tempore judgment delivered on 29 October 2021, Mr Justice Paul Coffey apportioned full liability to Zachar and his employer, M.D.S. Distribution Limited. The ruling followed a 14-day trial on liability. The judge said the determination would bind the defendants in seven other claims arising from the same accident.
The crash happened on 13 August 2015 when a Scania HGV owned by M.D.S. and driven by Zachar left the northbound carriageway and struck a stationary Mitsubishi pick-up and then a digger in the hard shoulder. The impact injured the drivers and three pedestrian workers. Padraig Noone died at the scene; the plaintiff, Damien Davey, was among those injured.
The judge said it was accepted that Zachar fell asleep while driving and that his negligence caused the collisions. The court also noted his 2019 conviction for careless driving causing Noone’s death and serious bodily injury to Davey and Anthony Feighney. The judgment described the conviction as admissible as prima facie evidence of negligence and causation.
The distribution company and driver argued that the Council’s temporary traffic management plan should have included further measures against the risk of a driver falling asleep and entering the work area. The judge found the Council’s precautions were otherwise adequate, but that it should have provided an effective 1.2-metre lateral safety zone so the pick-up and digger were set further back from the hard shoulder line. He found the Council negligent in that respect and in breach of duty to the two vehicle drivers.
However, the judge concluded that this negligence was overwhelmed by Zachar’s conduct. He found Zachar had seen the warnings and work vehicles, was aware he was drowsy and at risk of falling asleep, and chose to continue driving. The court held that his recklessness was a novus actus interveniens, leaving him and his employer solely responsible.
The judge rejected arguments that cones, a stop/go system or a lorry-mounted crash cushion would probably have prevented the crash. He said the evidence did not establish that cones would have awakened Zachar or that a crash cushion would have been struck, and considered a stop/go system could have shifted risk to traffic queued on the live carriageway.