Those involved in catastrophic road accidents frequently point the finger of blame at potholes or other defects in the road surface. As one case showed, however, it can be an uphill task to pin responsibility for such accidents on highway authorities.
The case concerned an accident that befell an articulated lorry whilst works were in progress to convert a stretch of the M25 into a smart motorway. The lorry was using the hard shoulder when its wheels strayed onto the verge and over a filter drain. The driver steered sharply and applied emergency braking.
The lorry tipped onto its side and slewed across all three lanes of the motorway. It crashed into the central barrier, which gave way. Three construction workers were trapped in the wreckage, one of whom suffered grievous crush injuries to his legs, both of which had to be amputated. The lorry driver's employer later settled the construction worker's personal injury claim for a sum of approximately £8 million.
That was not the end of the matter, however, in that the employer later sought to recover part of that sum from the highway authority which bears responsibility for maintaining the M25. It contended that the accident was, at least in part, caused by a defect in the drain which presented a danger or trap to ordinary road users.
Dismissing the contribution claim, however, the High Court noted that the drain had been constructed following best practice. It found that a trough or rut in the verge, which was said to have been caused by the defective drain, was not present prior to the accident. The damage to the verge observed in post-accident police photographs was almost exclusively caused by the lorry's nearside wheels.
The Court acknowledged that highway authorities should anticipate mistakes being made by careless drivers and that errant vehicles straying onto the verge whilst the roadworks were in progress was a likely event. It was not, however, persuaded that the lorry driver's actions in braking hard and steering sharply to his offside amounted to ordinary use of the highway. The unprecedented circumstances of the accident represented an extreme and rare occurrence which went beyond the normal run of events that the highway authority could be expected to foresee.