Action for damages for emotional distress (Articles 105-106 of the Introductory Act, 932(3) of the Civil Code) arising from the fatal injury of the appellants' relatives in a road accident on VOAK due to the illegal failure to install and connect safety barriers on the side of a sound barrier wall. The infringement of the relevant provisions, failure to install and attach safety barriers (such as sound barriers) in front of an obstacle may, according to the lessons of common experience, be considered, in principle, as a proximate cause of the consequences of an accident due to the vehicle's deflection from the road and its impact, after reversal, on the barrier.
It is admissible, pursuant to Art. 12 par. 1 of the Law. 3900/2010, ground of appeal that the established illegality of the administration regarding the failure to install and connect the safety barriers in front of the sound barrier wall, based on the specific circumstances of the case (the vehicle was diverted sideways on the road and collided with the wall of the sound barrier wall), is causally linked, in a general and abstract manner, to the fatal injury to the occupants of the vehicle, because, according to the appellants' well-founded claim, there is no case-law of the Council of State on the legal question raised. As is apparent from the provisions of the relevant legislation, safety barriers are vehicle restraint systems which limit, as far as possible, the consequences of accidents and are intended to restrain vehicles which are diverted from their course and, if necessary, to return them smoothly to the road. Moreover, where there are sound barriers alongside the road which constitute a solid barrier which cannot be deformed when a vehicle strikes it and which therefore present a particular risk to the occupants of the vehicle, safety barriers should be installed alongside them in order to limit the severity of the impact and its consequences.
In this case, the judgment under appeal held that there was no causal link between the unlawful acts and omissions of the administration and the fatal result of the impact of the car on the sound barrier wall, on the ground that ‘the direction and speed of the car were the factors which led to it and not the lack of safety barriers’. In the sense of the judgment under appeal, as it follows from it, the unlawful acts and omissions of the administration at issue cannot be regarded objectively as a proximate cause of the collision of the vehicle with the wall and its consequences, where the vehicle does not strike the right-hand side of the metal safety barriers, but swerves sideways and then turns around and strikes the concrete wall directly at speed. However, in accordance with the above provisions, the purpose of safety barriers is to limit as far as possible the consequences of accidents and to restrain vehicles which are diverted from their course in all cases, without discrimination. In view of this, the failure to install and attach safety barriers in front of an obstacle (such as noise barriers) in breach of the above provisions may, in accordance with the lessons of common experience, be regarded, in principle, as a proximate cause of the consequences of an accident due to the vehicle being diverted from the road and hitting the obstacle when it reverses. Consequently, the abovementioned finding that the constructional defect at issue could not objectively, in the specific circumstances referred to above, have had an influence on the fatal outcome of the collision is not lawfully justified, since it is not stated in the judgment under appeal - nor, moreover, is it apparent from it - on the basis of what evidence the Court of First Instance reached that conclusion. Consequently, on that ground, which is put forward in the main proceedings, the present application must be granted and the contested decision (No 21/2021 of the Administrative Court of Appeal of Chania) must be set aside.