Richard Godden looks at a case clarifying the requirements for a successful claim in a specific type of road traffic accident.

The recent case of Bowes v The Highland Council, though tragic for those involved, might at first glance seem a bit run-of-the-mill to anyone else. A car collided with the parapet of a bridge, which collapsed, and the car fell over the side. The driver was killed. There was convincing evidence that the parapet was defective, and that the local council responsible for the bridge had been warned about its dangerous condition years before the accident. The council was ordered to pay compensation to the driver’s family.

One of the surprising things about the case is that the council spent so many years and so much money opposing it. In the event they hardly covered themselves in glory in court, coming out with flimsy arguments and unimpressive witnesses, at one stage even making ill-advised attempts to discredit the engineer who had tried to warn them about the dangerous state of the parapet. Over-confident parties in a court case are not particularly unusual, but rarely where their case is as unsympathetic as the Highland Council’s.

However, there are some interesting aspects of the case which deserve a bit more of a mention.

Road traffic accidents are very common, usually where a driver collides with another road user. But there is an important class of case where the accident is caused by the road itself, and the court in Bowes took the opportunity to clarify the requirements of a successful claim.

Firstly, for a local council to be liable to pay compensation for a road accident like this, two things must be proved. First, the injury must be caused by the sort of danger that would create a significant risk of an accident to a careful road user. So councils are entitled to assume that drivers will take reasonable care, and have regard to any obvious dangers on the road. They don’t have to protect drivers from obvious dangers like bends, blind summits, snow and ice, visible road junctions, or things restricting the driver’s view such as buildings, trees, or the configuration of the road. In all such cases, a careful driver should slow down and look carefully ahead. If he does not do so, the accident is his own fault.

Second, the Council must be at fault in failing to deal with the hazard. This is by no means automatic. An injured person must prove that a reasonable local council would have identified the hazard and taken steps to correct it, whether by altering the road, or by placing suitable signs, or in an extreme case closing the road altogether. In short, it must be reasonable to expect the council to have done something about it. For example, if a wall blows down in a storm and is lying across a road, and five minutes later a car crashes into it, the council will be able to say that they should not have to pay compensation because they had no chance to do anything about it. But in the Bowes case, where the council had known for years that the bridge parapet was in a dangerous state, and had done nothing, ignoring its own engineer’s reports, it was obviously reasonable for them to have carried out proper repairs.

Another unusual feature of the case is the issue of what is called “contributory negligence.” This is the rule whereby a claimant’s damages are reduced if he is to some extent to blame for the accident by not taking enough care for his own safety. The amount by which they are reduced is usually expressed as a percentage, and will be whatever the court thinks just. In this case, the court held that the driver must have been careless in colliding with the parapet in the first place. Nobody saw the accident happen, but piecing together all the known circumstances, it was pretty clear that he must have somehow lost control of his vehicle. So it would not be surprising if the court had knocked a substantial percentage off the compensation which the grieving family received. Yet there was no deduction at all.

The judge’s reasoning was that the people most to blame for the accident by far were the council officials. Yes, the driver should not have lost control of his vehicle, but if the parapet had behaved as it should his injuries would have been very minor, if anything. So in all the circumstances, the driver’s carelessness was not really a significant feature, and the compensation was awarded in full.

Repairs to the Kyle of Tongue Bridge have now been carried out. It is just a pity that these were not done in time to save Mr Bowes’ life.