Edward O'Riordan v Clare County Council and Response Engineering Limited [2021] IECA 267
The Court of Appeal has recently overturned a 2019 High Court decision to hold Clare County Council (the "Council") liable in negligence and public nuisance for personal injuries sustained by a man who fell when cycling over a faulty cattle grid and concrete ramp on a public road in Shannon, Co. Clare in 2016.
High Court
The cattle grid and ramp in question were constructed by Shannon Development, the Council's predecessor in title, having transferred all of its assets to the Council. The Council were unable to confirm that a survey had been carried out on this stretch of road at the time of this transfer. It was accepted by the trial judge, Mr. Justice Barniville, that the cause of the plaintiff's injury was the 1 inch drop from the ramp onto the cattle grid after a portion of this ramp fell away. It was also accepted by the trial judge that the Council had done nothing to the cattle grid or the concrete ramp since 2004 after taking this road in charge, however, as successors in title to the ramp, as opposed to the creators of it, the court found that the Council was not entitled to the defence of nonfeasance in relation to either the negligence or public nuisance liability claims.
Court of Appeal
In overturning the High Court decision, the Court of Appeal
reaffirmed the historical distinction between misfeasance –
where a roads authority repairs or maintains a road negligently;
and nonfeasance – where they omit to repair or maintain a
road.
Mr. Justice Noonan highlighted that, although the legislature in
the United Kingdom had dislodged this distinction in liability by
way of their Civil Liability Act 1961, the equivalent Irish
provision contained in section 60 (1) of the Civil Liability Act,
1961 had yet to be commenced and that the Irish legislature had
indeed preserved this distinction in the Roads Act 1993, which
provides that nothing in that Act would affect any existing law
relating to the liability of a road authority for failure to
maintain a public road.
Given how firmly entrenched the nonfeasance rule is in Ireland,
Mr Justice Noonan found that a roads authority has no liability for
a failure to intervene if it did not create the danger existing on
the road in question, nor does it have a duty to warn road-users of
a danger it did not create. Importantly, the Court of Appeal held
that this distinction between misfeasance and nonfeasance applied
equally to liability in public nuisance as it did to liability in
negligence. In the words of Mr. Justice Noonan in his judgment on
behalf of the Court of Appeal, to hold otherwise would run
"contrary to centuries of jurisprudence."
In support of his judgment, Mr Justice Barniville had referred to
cases where damages had been successfully recovered for public
nuisance on a highway. However, the Court of Appeal distinguished
those cases on the basis that they involved public nuisance created
by third parties (such as adjoining land owners) and were not
claims against a road authority which is legally entitled to the
defence of nonfeasance. Furthermore, knowledge of the danger on the
road, Mr. Justice Noonan held, was entirely immaterial to the
liability of the Council to the plaintiff. Although perhaps
counterintuitive he accepted, even if the Council had been
repeatedly warned about a danger on the road it did not create, it
would still not be liable to the plaintiff "irrespective
of the category or classification of such liability."
Comment
Public bodies, such as the Council in this case, generally have the same duty of care and are subject to the same liability for tortious acts such as negligence, trespass or nuisance as private individuals or companies. However, as this case illustrates, the principle of nonfeasance continues to confer them with a defence from liability where public roads have not been repaired or maintained by them.
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