Judge finds Scottish council liable for defective parapet in fatal bridge accident

Plumber David Bowes, 46, drowned after his pick-up truck collided with the parapet on the Kyle of Tongue Bridge in Sutherland and fell into the water.

His family raised an action for damages against the Highland Council, but the local authority disputed liability.

However, a judge in the Court of Session ruled that the council breached its duty of care in failing to deal with the hazard.

Lord Mulholland heard that the accident occurred on 2 February 2010 at around 10am, when Mr Bowes was driving his Toyota Hilux 4x4 pickup on the A838 road in a westerly direction.

The weather at the time was poor with squalls of snow showers and the road surface was covered with snow and slush.

The self-employed plumber was on his way to see a potential customer in Durness and was travelling across the Kyle of Tongue bridge when his vehicle crossed from the westbound to the eastbound lane, mounted the kerb on the north side of the bridge, collided with the parapet and fell into the water.

Unfortunately, Mr Bowes was unable to escape from the vehicle and drowned.

His partner Anne Scott, parents June Bowes and Brian Bowes, children Anna Marie Bowes, David Ewan Bowes and Jemma Louise Illingworth, accepted by the deceased as a child of his family, and sisters Deborah Bowes and Christine Grant sought damages from the council, as the authority for managing and maintaining the bridge and its parapets, on the basis that the accident was caused by the defender’s failure at common law to take reasonable care for his safety.

Quantum of damages was agreed but the case went to proof on liability.

The bridge, which was built in 1971, was one of 1,400 bridges under the management of the council.

The court was told that an engineer carried out an inspection of the bridge on the A838 road in 2005.

He recommended that major repairs to the structure be carried out without delay and that in the case of the parapet it should be carried out in the next financial year.

Defects were identified in welds between posts and bases along with cracked base castings.

The engineer also recommended that interim measures be put in place pending the replacement of the parapet, with a reduction in the speed limit, traffic lights and a temporary barrier.

Monitoring of the structure was introduced but was ceased after January 2008.

The pursuers’ case was not that the defender was obliged to replace the parapet before the accident, but that in accordance with the common law duty of care, interim measures should have been introduced by the defender prior to the accident or alternatively the bridge should have been closed.

The defender’s case was that the defender did not owe a duty of care to the deceased and as a result there was “no requirement to put in place temporary measures” pending replacement of the defective parapet.

However, the court held that the defender was at fault for failing to deal with the hazard which they clearly had knowledge of from 2005, prior to the accident.

The judge said it was “surprising and alarming that basic health and safety principles of risk assessment were not applied to the critical issue of the safety of the parapet”.

In a written opinion, Lord Mulholland said: “I therefore hold that had the parapet been acting to its design capacity, the Toyota Hilux driven by the deceased would have been contained by the parapet and the vehicle would not have left the bridge and the deceased would not have drowned. At worse given the absence of any other traffic at the time he would only have sustained minor injury.

“In my opinion, the decision to discontinue monitoring was wrong, did not make sense, was against previous advice and, in relation to a matter clearly related to safety, meant that the defender had no idea of the containment strength of the parapet, if any, whether it was continuing to deteriorate, to what extent and rate it was deteriorating, and what measures, if any, should be taken to deal with the problem.”

He added: “The temporary barriers together with other interim measures would have reduced speeds such that Mr Bowes would probably not have left the bridge to his death on 2 February 2010. The possibility of this kind of accident was foreseeable.

“I accept that there is no accident history on this bridge. However, the parapets were erected for the purpose of preventing the type of accident which occurred in this case and accidents do happen on any stretch of any road, including a bridge, often in poor weather.

“The fact that the parapet was erected and then scheduled for replacement when it deteriorated is a recognition of a need generated by the foreseeability that an accident on this bridge was more than a remote possibility. The fact that it did happen is proof indeed that parapets working as intended are required.

“I therefore find it proved that the defender breached its duty to deal with the hazard, namely the defective parapets, by implementing interim measures until the parapets were replaced. To do so would have prevented the death of the deceased.”