A provincial road authority may be held primarily liable for injuries caused by a dangerous pothole, even where the driver contributed to the accident by driving too fast for the prevailing conditions. A failure to repair the pothole or warn motorists may amount to a breach of the authority’s duty of care and be the primary cause of the accident.
The claim arose from a serious single-vehicle accident on a provincial road. A driver was travelling in a military vehicle on official business when the vehicle struck the edge of the roadway at a pothole. The driver lost control, the vehicle overturned, and he was left permanently paralysed. He later passed away, and the claim was pursued by the executrix of his estate.
Evidence showed that the road had deteriorated over time due to heavy truck traffic, rainfall, and underlying ground conditions. The pothole had developed gradually and posed a danger to motorists. Despite this, no warning signs were erected, and no steps were taken to repair the road.
The road authority denied liability and argued that the accident was caused by the driver’s excessive speed rather than the condition of the road. The court rejected this argument. Based on expert evidence and physical markings at the scene, the court found that the vehicle only lost control after striking the pothole. The authority’s own expert accepted that this sequence of events was probable.
The court held that the road authority knew, or ought reasonably to have known, of the deteriorating condition of the road and the danger posed by the pothole. It failed to take reasonable steps within a reasonable time to repair the pothole or to warn road users of the hazard. This omission was wrongful and negligent and constituted a factual cause of the accident.
The court also considered whether the driver contributed to the accident. It found that he was aware of the poor condition of the road and increased his speed to meet a deadline. This reduced his ability to react safely after encountering the pothole. The driver was therefore contributorily negligent.
Liability was apportioned at 80% to the road authority and 20% to the driver.
This judgment confirms that road authorities cannot avoid liability simply by pointing to driver error. Where a dangerous pothole exists and no reasonable steps are taken to repair it or warn motorists, the authority may remain primarily liable for the resulting harm, even where the driver’s conduct contributes to the loss.