The driver is liable. They drove into a flood, which is obviously dangerous to do.
I think the courts may disagree with you wrong on this, I see both Liverpool City Council and Network Rail both in the dock in the months to come.
It's 2100 Saturday night, dark.
The lighting in the underpass often doesn't work or is very, very dim.
If you're driving towards Sefton Park (ie Westbound, towards the river) it is pretty dark beyond the bridge.
- The legal test would be, could someone with ordinary vision have easily seen the flood in this
unusual, dark, covered location?
- Did the structure's owners, maintainers and associated utilities do enough to prevent this?
I know the diveunder well, and 25 years ago when the drainage was well maintained by LCC it still got a substantial puddle when it rained. In this modern world of councils not doing any maintenance and the water firms denying any responsibility, this happens - and a metre deep flood is to be expected.
Personally, I see a prosecution, possibly by the HSE. We shall wait and see.