Local Authority Litigation

Denis Ryan considers where local authorities stand in respect of
personal injury claims on foot of accidents on public footpaths
in light of the recent High Court decision of Zara McCabe v
South Dublin County Council

Although the judgment of Mr Justice Gerard Hogan in the case of Zara
McCabe v South Dublin County Council (2014 IEHC 529) delivered on November
18th 2014 may be a restatement of the established legal principles in relation to the liability
of a highway authority for loss or injury arising from non-feasance, the detailed analysis contained in the judgment is a very helpful reminder for practitioners in the area. The case came before the High Court on appeal by the plaintiff against the order of the Circuit Court dismissing her action.

As a preliminary, it is worth quoting McMahon & Binchy’s Law of Torts (Fourth Edition 2013) where
it is stated on page 1026, “It is well established that, whereas a highway authority may be liable
for misfeasance, that is, acts of positively negligent character regarding the maintenance or repair of the highway, it will not be liable for non-feasance, that is, the failure to maintain the highway, however negligent that failure may have been”.

Ms McCabe sustained injury in 2009 when her foot became caught in an opening in the surface
of a footpath in a housing estate. Hogan J records “The opening in question was missing its stopcock
cover” and “presented a danger to the public at the time...” Although there was controversy between
the defendant’s senior executive engineer who gave evidence suggesting that the most likely explanation was that the stopcock cover had been repaired or replaced shortly before the accident, and the replacement interfered with and removed by unknown third parties before the concrete had set and the plaintiff’s expert witness who postulated that the particular opening had been missed by the local authority when it had carried out general maintenance in the area not long before the accident, Hogan J found it unnecessary to make an adjudication on this dispute as irrespective of any resolution thereof, the result in law would be nonetheless the same.

Hogan J noted that section 2 of the Roads Act 1993 (“the 1993 Act”) defines a footpath as “a
road over which there is a public right of way for pedestrians only, not being a footway”. Section 11
of the 1993 Act (as substituted by section 6 of the Roads Act 2007) provides that the maintenance and repair of all such roads is a function of the relevant local authority. He went on to review the authorities distinguishing Cross J’s decision in Loughrey v Dun Laoghaire Corporation [2012] IEHC 502 involving a plaintiff falling as a result of subsidence between two slabs on the pavement and the ensuing differential in the level of the two slabs causing a tripping hazard on the basis that Cross J found that the danger was “caused by reason of either faulty construction or poor specification and design or a combination of the two”, and accordingly, in Hogan J’s opinion “the case presented a clear example of misfeasance on the part of the council”.

The finding of fact on the evidence in Ms McCabe’s
case had to be that “the council either did not repair
the opening at all (even though it had set out to do
so) or, having done so, the opening was subsequently
tampered with and removed by persons unknown”
and the judge went on to hold “On any view of these
two possibilities, the council is not liable by reason
of the operation of the non-feasance rule”, both the
situation that the council had intended to carry out a
repair after a notification but had not in fact carried
out a repair and the alternative scenario that the
repair was carried out but tampered with “by parties
unknown” amounting to a failure to act. There being
no evidence that the council had repaired the opening
in a negligent fashion, Hogan J dismissed the appeal
albeit reluctantly as he went on to point out that the
rule in question effectively dates back to 1788 and that
section 60 (1) of the Civil Liability Act 1961 which was
to have abolished the distinction between non-feasance
and misfeasance in the context of highway authority
liability has remained in limbo for over 50 years
pending a commencement order.
A number of considerations arise for practitioners
who may be consulted in similar cases including:

1. Practitioners should seek to establish whether a
particular locus in quo is in fact part of a public road.
It can be the case, for example, that certain parking
areas which are open to the public and perhaps
metered are in fact owned and/or occupied by a local
authority as opposed to having been taken in charge
by the Roads Department.

2. Similarly, the rule does not have an application to
questions of the maintenance of public parks and, it
is submitted, green areas (public open spaces) which
are taken over by a local authority on the completion
of a development. It may also be possible to argue
that it should not apply to the maintenance of grass
verges.
3. Practitioners might also consider the question of the
liability of the local authority and/or Irish Water as
sanitary authority responsible for the installation,
maintenance and repair of the public water supply
and sewage system.
4. Obviously, the rule has no relevance to private multiunit
developments where roads would be owned by
an owners’ management company but some modern
developments may have complex mixes of private roadwaysand roads which are taken in charge.