Public Nuisance

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Cases

Connolly v. South of Ireland Asphalt

[1977] IR 99
O’Higgins C.J.

O’Higgins C.J.
21st January, 1977

While travelling on his motor-cycle along Monastery Road, Clondalkin, on the night of the 21st January, 1973, the late Jonathan Wade fell off his machine on to the roadway and was run into and killed by a motor vehicle owned and driven by the defendant. His fall from the motor-cycle occurred immediately opposite the entrance to premises owned by the third party and used by them for the purpose of their business. The roadway where he fell and the entrance to the third party’s premises immediately beside it were broken into several pot-holes and were covered by ice. Proceedings were taken in the High Court by the widow of the late Jonathan Wade against the defendant claiming damages by reason of his death. These proceedings were compromised between the parties on terms which recognised that the late Jonathan Wade had been guilty of a degree of contributory negligence and the settlement was approved by the High Court; no question arises in relation thereto.
Under the provisions of the Civil Liability Act, 1961, the defendant claimed a contribution from the third party and, after the settlement of the
plaintiff’s claim, the defendant’s claim for a contribution was heard by Mr. Justice Murnaghan sitting without a jury. Mr. Justice Murnaghan decided that the defendant was not entitled to claim a contribution from the third party, and an appeal has been brought by the defendant to this Court against that decision. The defendant claims to be entitled to a contribution from the third party under the provisions6 of s. 21, sub-s. 1, of the Act of 1961. The application of that sub-section to this case and to the defendant’s claim against the third party involves a consideration of whether the third party can be said to be “liable in respect of the same damage” in the same way as the defendant was liable. The “damage”here is the loss of the life of the late Jonathan Wade and “liable” means, in the circumstances, legally liable to the plaintiff.
Is the third party liable in respect of this death in the same manner as the defendant was? Put in another way, the question is whether the plaintiff, while conceding contributory negligence on the part of her husband, could succeed in an action brought against the third party alone in recovering damages for his deathsuch damages being reduced only on account of the contributory negligence of the plaintiff’s husband. Could such an action have succeeded if the plaintiff had brought it, let us suppose, because the identity of the motorist who had collided with her husband had never been discovered? The answer to this question must be considered in the light of the evidence adduced before the learned trial judge and the facts as found by him on such evidence. Let us examine these facts.
It appears that the third party’s premises in Monastery Road, Clondalkin, were situated on the left-hand side as one travelled from the Naas Road towards Clondalkin. This was the direction in which the plaintiff’s husband was travelling. These premises were approached from the roadway by an entrance which was some 50 yards wide and which narrowed to a gateway set some distance back from the road. The third party’s business entailed the constant use of large lorries, both laden and unladen, which travelled to and from these premises over this entrance and the roadway immediately adjoining. As a result of this traffic of heavy lorries, portion of this entrance and the immediately adjoining roadway was damaged in such a manner that a line of pot-holes appeared on the Dublin (or Naas Road) side of the entrance to the third party’s premises. These pot-holes or breaks had appeared on numerous occasions prior to the fatality; in wet weather they became filled with rain water which was splashed around by the wheels of passing vehicles.
On the night of the accident rain water, so splashed, had turned into ice by reason of a heavy frost, and an icy patch from one to two feet in width extended from the edge of the entrance out on to the roadway in the immediate vicinity of this line of pot-holes. Therefore, on the night of the accident the position was that anyone travelling on this road towards Clondalkin would be using a road which, in the vicinity of the third party’s premises, was broken along its left edge into a line of seven pot-holes, and which was covered at that place with a sheet of ice from one to two feet in width and extending out on to the roadway. It appears from the evidence that some of the pot-holes were covered with ice while others contained broken ice. In that condition it seems obvious that this portion of the road was unsafe and dangerous in certain circumstances. Perhaps it was not dangerous for a motorist, or in daylight, but very probably it was dangerous for a motor cyclist or for a pedal cyclist who travelled thereon at night not observing either the holes or the ice. It seems reasonably foreseeable that such a cyclist could very easily over-balance or fall if a wheel of his bicycle skidded on the ice or entered one of the holes.
In his very careful analysis of the evidence, this is what the learned trial judge found had happened to the plaintiff’s husband. The judge found that the deceased over-balanced and fell on to the roadway as a result of coming in contact with this danger on the road. The judge’s finding in this respect is amply supported both by the evidence of the three GardaÃ officers in the patrol car which was stationary opposite the scene of the accident, and by the condition of the roadway and the proper inference to be drawn therefrom. While he was on the roadway and occupied in picking himself up and recovering his bicycle, the plaintiff’s husband was driven into and killed by the defendant’s vehicle which approached the plaintiff’s husband from the direction from which he had travelled. The learned trial judge rejected, as he was fully entitled to do, the defendant’s explanation of his failure to avoid colliding with the deceased as being due to his vehicle skidding on the icy patch on the roadway. The learned judge concluded that the defendant was not keeping a proper look-out and that he failed to see the deceased ahead of him on the road as he ought to have done. On the judge’s findings which, of course, I accept, the collision between the defendant’s vehicle and the deceased was not due to the condition of the roadway but to the defendant’s own negligence.
These facts, as found by the learned trial judge, seem to me to establish negligence on the part of the deceased (which was not in issue) and on the part of the defendant, in the absence of either of which there would have been no fatality and no damage. These facts also establish that, despite the existence of this negligence in the case of either or both, there would have been no fatality and no damage had the roadway not been dangerous and had not the condition of the roadway caused the deceased to fall from his motor-cycle.
It is on these facts that the question of the third party’s possible liability to the plaintiff ought to be considered. In the statement of his claim against the third party, the defendant alleged a liability both in nuisance and in negligence. It seems to me appropriate that the question should be considered under each of these headings.
It has been said that actionable nuisance is incapable of exact definition. The term nuisance contemplates an act or omission which amounts to an unreasonable interference with, disturbance of, or annoyance to another person in the exercise of his rights. If the rights so interfered with belong to the person as a member of the public, the act or omission is a public nuisance. If these rights relate to the ownership or occupation of land, or of some easement, profit, or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance. In this case we are concerned with the allegation that the third party were guilty of causing a public nuisance.
The third party used heavy lorries for the purpose of their business and the lorries travelled, laden and unladen, to and from the premises of the third party over the junction of the entrance with the roadway. This, in itself, was a lawful exercise of the third party’s right to carry on their business and to use for that purpose lorries of their own choosing. However, what the third party did resulted in damage to the roadway upon which these lorries travelled; the damage was caused at the point where the entrance joined the public road on the Dublin side of the third party’s premises. It was clear that at this point the lorries used could not be supported by the road surface, either because of their weight or their number. The, result was that breaks and holes appeared, not rarely, but on numerous occasions. Were the third party entitled to carry on regardless of the damage so caused merely because of their proprietary rights? Sic utere tuo ut alienum non laedas is a maxim which expresses the view that people should have regard to the rights and conveniences of others in the way they use what is theirs. While it may lack preciseness, it has here a sufficient application to prescribe a limit to what it was permissible for the third party to do in pursuance of their legitimate business interests. In my view the third party were not entitled to exercise their rights without regard to whether damage was being or would be caused to the public road.
Damage was caused not only to the third party’s own entrance but also to the roadway, and this consisted of the seven holes already described. In
my view the question is whether this damage, so caused, constituted a danger to members of the public using the roadway. That the breaks or holes initiated on the third party’s own property appears to me to be immaterial. It is well established that an excavation or interference with one’s own land can be regarded as actionable where the land is so adjacent to the roadway as to constitute a danger to a person who, while using that roadway, turns into or travels thereon and thereby suffers damage: Barnes v. Ward 7; Hardcastle v. South Yorkshire Railway 8; Carshalton U.D.C. v. Burrage. 9
Here the damage to the road surface extended from the third party’s premises out on to the roadway itself. That this damage could constitute a danger to a person using a motor-cycle on that roadway at night is, in my view, not open to question. Once the holes appeared it was to be expected that in wet weather they would retain water which in turn would be splashed by passing traffic. In winter time this led inevitably to the added hazard of an icy patch being formed contiguous to the line of pot-holes. The learned trial judge was satisfied on the evidence that either the pot-holes or one or more of them or this ice caused the deceased to get into difficulties on his cycle and to fall. This in my view is a finding that the deceased’s fall was caused by the danger on the roadway created by the acts and omissions of the third party.
The deceased, having been caused to fall on the public road, was struck and killed by the defendant’s passing car. Not only was he killed because he had fallen in the path of an approaching car but, in my view, the likelihood of such a misfortune happening to him was present from the very moment he was caused to fall.
In my view, the result is that the third party, having so damaged the surface of their own entrance and the adjoining roadway as to create a danger on the roadway, were guilty of committing a public nuisance thereon. The plaintiff, being the widow of the deceased, suffered particular damage because of this nuisance in that it was a factor contributing to his death. On this account she could have maintained an action against the third party in respect of the damage she suffered.
With regard to negligence very little need be said. The third party’s operations caused breaks in the road surface and these breaks were left unrepaired. This was no sudden happening but came about gradually. As the road surface was broken by the pressure of lorry traffic it should have been obvious that a serious road hazard was being created. Nevertheless, nothing was done to remedy the situation. Anyone who renders a road unsafe must contemplate that people using the road may be injured. In my view the third party were negligent in causing the roadway to break and in failing to repair it. It was negligence also to ignore the added risk of splashed water in winter time turning into ice, and so permitting the condition of affairs to exist which confronted the deceased on the night of the accident. In my view what happened was clearly foreseeable by those who caused or permitted this condition of affairs to exist. On this ground of negligence also I am of opinion that the plaintiff could have held the third party liable to her in respect of the death of her husband.
In my view this appeal should be allowed and the defendant should be held entitled to a contribution against the third party.

Kenny J.
On the evening of Sunday the 21st January, 1973, there was a heavy fall of rain. When it stopped, the weather became bitterly cold and there was very heavy frost on the roads near Dublin. At about midnight or shortly after it Jonathan Wade, a well-known artist, was riding a motor scooter on Monastery Road: he was coming from the Naas Road and going towards Clondalkin. The lights on his scooter had not been turned on. Mr. Wade was riding about three feet out from the edge of the highway on which there was no kerb and was travelling at a very slow speed. Monastery Road is 20 feet wide and, as it leads to Clondalkin, has heavy traffic on it at all times.
The third party had offices and land on Mr. Wade’s left which adjoined the highway. There was a wide opening to the gate of the third party’s premises into which heavy lorries went frequently. These heavy lorries, which were laden and unladen, had created seven pot-holes most of which were partly on the highway and partly on the opening which led to the gate. The combined length of the seven pot-holes was about 28 feet and they varied in depth from 2 inches to 6 inches. Water collected in them and was splashed out by the wheels of traffic which might have to travel near the edge of the highway.
On the night when Mr. Wade was killed, water had splashed out on to the highway and had become ice on the road. This patch of ice extended one or two feet on to the highway measured from an imaginary line across the opening which led to the gate. The place where the accident happened was lit by two electric lights placed at the north and south points where the opening began. The lights were dull and did not give good vision.
A Garda patrol car was travelling on Monastery Road in the Naas direction and the Guards in it saw Mr. Wade coming in the opposite direction. They gave evidence that Mr. Wade was off balance as if he had got on to rough ground and was trying to hold himself on his scooter. He did not succeed and fell on the road. He then tried to pick himself and his scooter up. It seems to me certain (and the trial judge so held) that Mr. Wade’s scooter skidded on the ice on the road. The defendant was driving a car at about 30 m.p.h. in the same direction as Mr. Wade was going. The wheels on the left side of his car did not go into the pot-holes or cross the ice. He did not apply his brakes before he struck and killed Mr. Wade. After the accident the defendant said on a number of occasions: “It’s my fault,” “I hope they shoot me for this” and “I did not see him.”
The trial judge stated his findings of fact with admirable clarity and rightly held that the defendant was grossly negligent in failing to see Mr. Wade and in not putting on his brakes. He also held (and I entirely agree with his finding) that Mr. Wade was negligent because he did not see the pot-holes and ice and failed to steer his scooter so as to avoid them.
Mr. Wade’s widow began an action against the defendant only and claimed damages for negligence. The defendant issued a third-party notice against the third party and delivered a statement of claim in which he pleaded that the third party had been negligent and had created a public nuisance which caused or contributed to the accident. The action by Mr. Wade’s widow against the defendant was settled for Â£25,000 on the morning of the day when it was listed for hearing. As Mr. Wade was survived by a widow and four young children, this figure was a compromise; counsel on this appeal have agreed that it took into account the certainty that a jury would have held that Mr. Wade was guilty of some degree of contributory negligence. The defendant’s claim for contribution against the third party was then heard without a jury by the trial judge, who dismissed it. He held that he did not have to decide finally whether the third party should reasonably have foreseen what happened because, even if the third party were negligent, “I would in these circumstances as between the defendant and the third party have found the defendant 100% at fault.”
Section 21 of the Civil Liability Act, 1961, provides:
“(1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.”
Section 2 of the Act of 1961 includes a number of relevant definitions.”Wrong” is defined as meaning “a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional.” The word “wrongdoer” is defined as meaning “a person who commits or is otherwise responsible for a wrong” and “concurrent wrongs” is defined as meaning “wrongs committed by persons in respect of which they are concurrent wrongdoers.”
I have no doubt that a defendant is entitled to recover contribution from a person who is not sued in the original action only if the plaintiff in the action could have succeeded in proceedings against the person from whom the contribution is claimed. The words in the section “or would if sued at the time of the wrong have been, liable in respect of the same damage” establish this. Therefore, it is necessary to consider whether Mr. Wade’s widow would have succeeded against the third party in an action based on negligence and public nuisance.
Negligence causing death or personal injury is a legal wrong. It is a breach of a duty owed generally. The duty arises when a reasonable human being should have foreseen that his action or omission to act will cause death or injury. Therefore, to make a defendant liable for negligence causing death or personal injury, he must have failed to foresee what a reasonable man would have foreseen. This foreseeability relates not only to what is done or omitted to be done but also to the consequences of doing or not doing what a reasonable man should do. Professor Heuston (the Regius Professor of Law in the University of Dublin) has pointed out in successive editions of Salmond on Torts (in which he has most helpfully almost re-written the whole section dealing with negligence) that the concept of reasonable foresight is used in seeking the answer to two distinct questions,i.e., was the defendant under any duty of care at all and, if so, did he observe the standard required in the circumstances of the case? The concept now extends, in addition to the two mentioned by Professor Heuston, to the result of the failure of the defendant to foresee the consequences of his act or omission to act: Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. 10 [The Wagon Mound (No. 2)]. The most striking feature of the case law on this vexed topic is the variety of terms usedsee Lord Reid’s speech in that case. Montaigne was not the only one who wrote that most of the occasions of the troubles of the world are grammatical.
What should the directors and employees of the third party, as reasonable men, have foreseen in this case? They should have foreseen (a) that the pot-holes which their lorries had made would become full of water in January; (b) that cars, motor bicycles, motor scooters and bicycles would cause water to be splashed across this busy road; (c) that in January there was likely to be severe frost and that, at night at least, the water splashed would become a sheet of ice; (d) that motor bicycles, motor scooters and bicycles would be in great danger of skidding or falling sideways on this patch of ice; (e) that riders of these would be thrown on to the road surface; (f) that lorries or cars following these might run into the riders of these vehicles.
When an accident has happened there is a constant temptation for judges to attribute to the reasonable man a degree of foresight which an Old Testament prophet would have envied. One must not attribute to the reasonable human being a superhuman degree of foresight. Should the directors and employees have anticipated, in addition to the matters I have mentioned, that a driver of a car travelling behind a motor-cyclist who was crossing this icy patch and who had fallen would drive with gross negligence and so kill or injure the motor-cyclist? I do not think that they should but, on the better authorities, this is not a defence to a claim which Mr. Wade’s widow could have made against the third party.
No two accidents are alike and the fact that a defendant did not foresee the exact way in which an accident happened does not excuse him. There are numerous cases on this topic, but I propose to confine myself to three because they are decisions of the House of Lords and of the Privy Council and so of the highest authority. In Miller v. South of Scotland Electricity Board 11 Lord Keith of Avonholm said at p. 34 of the report:
“It has been pointed out in other cases that it is not necessary to foresee the precise accident that happened and similarly it is not necessary, in my opinion, to postulate foreseeability of the precise chain of circumstances leading up to an accident. There does not seem to me to be anything fantastic or highly improbable in the series of happenings that are alleged to have led to the accident here. If it is reasonably probable that an accident may happen from some act of neglect or commission that may be enough to discharge the initial onus on the pursuer, though it would remain, of course, to show that the pursuer was within the class of persons to whom a duty was owed. The question is:Was what happened so remote that it could not be reasonably foreseeable?”
Hughes v. Lord Advocate 12 was not cited to the trial judge or to us; it is so relevant to this case that I propose to outline the facts of it. A child aged 8 years was in company with another boy in Russell Road, Edinburgh. Near the edge of the roadway there was a manhole 9 feet deep. Post Office employees had opened the manhole to work on the telephone cable. They placed a sheltered tent over it and put four paraffin lamps on its corners. At 5 p.m. all of them had left the site for a tea break. The shelter and lamps were thus unattended. The employees had removed the ladder from the manhole and left it beside the shelter; and they had pulled a tarpaulin cover over the entrance to the shelter and left a space of about 2 feet between the lower edge of the tarpaulin and the ground. The lamps were left burning. The boys took one of the lamps and the ladder into the tent to explore. One of them tripped over the lamp which fell into the manhole and caused a violent explosion in which both of them were seriously burned. The cause of the explosion was that paraffin from the lamp had escaped and formed a vapour which was ignited by the lamp. There was coercive expert evidence that the escape of vapour and its ignition by the lamp was highly improbable and could not have been foreseen by anyone. The House of Lords held that the happening of the accident of the type which did occur was reasonably foreseeable even though the way in which it happened (the explosion) could not possibly have been foreseen, and that this did not absolve the defendant from liability. The analogy of this authority to the instant case is striking. Here the third party should have foreseen that a motor-cyclist, the rider of a motor scooter or of a pedal bicycle, would slip or slide on the ice path and fall and, possibly, sustain slight injuries. Although the third party could not have foreseen that a motorist would drive with gross negligence, in my opinion, they are liable. It is a matter of regret that this case was not cited to the trial judge as, if it had been, he might have decided this issue in another way.
The trial judge held that the defendant was 100% negligent, and I understand this to mean that he thought that the third party could not have foreseen that the accident would happen in the way it did. If he meant that the third party’s negligence was not a cause of the accident, it is sufficient to say that this was not mentioned in the argument in this Court. As it was not mentioned, I do not intend to enter into the question of causationa problem which has vexed the best minds of humanity for 2,400 years and the legal discussion of which has been thoroughly obscured by the use of such Latin jargon as causa causans, causa sine qua non, remota causa.
The third authority is the advice of a particularly distinguished Privy Council in The Wagon Mound (No. 2) 13 which was a case based on negligence and nuisance in which Her Majesty was advised that foreseeability of the injury is a necessary element in the measure of damages recoverable in a case of nuisance, and that Hughes v. Lord Advocate 14 was a correct decision.
Therefore, I am of opinion that the third party were negligent, that their acts and omissions to act contributed to the accident, and that they are liable to make a contribution to the damages paid by the defendant.
I think that the third party are also liable in nuisance. In modern conditions of fast-moving traffic, a sheet of ice on a busy highway is a public nuisance for which the person creating it is liable in damages. In McKenna v. Lewis and Laoighis County Council 15 (which was not cited to the trial judge or to us) the former Supreme Court unanimously held that an excavation on land adjoining a highway which lies so close to the highway that a person accidentally straying off the road could fall into it is a danger to persons using the road and so a nuisance.
Sharp v. Powell 16 was relied on to establish that the ice patch was not a nuisance. In that case a servant of the defendant washed his van in a public street. Because of a severe frost and a blockage in a drain, the water did not get away but spread over the street and became a sheet of ice on which the plaintiff’s horse slipped and was injured. The Court of Common Pleas held that the defendant could not reasonably be expected to foresee that water would accumulate and freeze at the spot where the accident happened. I think that the court attributed a remarkable lack of foresight to the defendant’s servant, and I agree with the remarks of Lord Reid at p. 637 of the report of The Wagon Mound (No. 2) 13:”It may be that today the defendant’s servant would be expected to be more wide awake and observant but given the finding of fact regarding foreseeability the rest followed.” The decision in Sharp v. Powell 16 is not authority for the proposition that a patch of ice created by a defendant in a highway cannot be a nuisance.
Counsel for the third party argued forcefully that it is an offence for anyone to interfere with the highway and that his clients could do nothing
as they could not repair the highway. There are two good answers to this contention. The pot-holes were partly on the premises owned by the third party and partly on the highway. The bigger area of each of them was on the property of the third party and they could and should have repaired these. If they had done so, the portion of the pot-holes in the highway would have been minute and the quantity of water in them would have been so much smaller that it would probably not have caused the ice patch. Secondly, the pot-holes beside the highway but not in it were themselves a nuisance because water could accumulate in them and spread on to the road and form an icy patch. He also submitted that a private individual cannot have a cause of action in relation to damage to the highway. But the pot-holes themselves did not cause or contribute to the accident: it was the ice formed from water splashed from the pot-holes which constituted the nuisance. The damage to the highway caused by the third party was merely the reason why the ice formed. This claim by the defendant, while based in part on the pot-holes, rested mainly on the effect which they had on the highway by the formation of the patch of ice. Reliance was also placed on the pot-holes on the property of the third party as being part of the nuisance.
I am of opinion that the defendant is entitled to contribution from the third party on the ground of nuisance. The principles on which contribution is to be assessed, the meaning of “fault” in s. 21, sub-s. 2, of the Act of 1961, and the amount of the contribution were not discussed in argument at all and so we cannot give any decision on these questions at the moment.

Parke J.
In my opinion the appeal should be allowed and the third party held to be liable in negligence and in nuisance.

O’Riordan v Clare County Council & anor

[2019] IEHC 330 (21 May 2019)

Barniville J.
Status:

JUDGMENT of Mr. Justice David Barniville delivered on the 21st day of May, 2019
Introduction
1. On Sunday 3rd August, 2014 in the late morning or early afternoon, the plaintiff, who was then aged 64 years, and living locally in Shannon, was out for a leisurely cycle on a bicycle his adult children had purchased for him about three years previously in anticipation of his pending retirement at age 65. It was a fine summer’s day and the plaintiff having set out in a particular direction from his home in Shannon decided to change course and to head on his bicycle towards an area outside Shannon known as Clonmoney South, which was well known in the locality as a beauty spot frequented by generations of families from the area and by walkers, runners and cyclists of varying ages and abilities. The plaintiff proceeded down the public road at Clonmoney South which in addition to being a public road is also under the ownership of the first defendant, Clare County Council (the “Council”). The road is known locally by some as the “Diamond Road” (as the diamond company, DeBeers, operates or operated a facility at the end of the road). The road leads to a waste water treatment plant operated by the second defendant, Response Engineering Ltd (“Response”), and a cul-de-sac at the end of the road. As the plaintiff attempted to negotiate his bicycle over a cattle grid which had been constructed or installed on the road, he fell from his bicycle suffering a very serious injury to his left ankle which has left the plaintiff with permanent damage to the ankle and requiring a fusion of the ankle or a replacement of the ankle joint. The cause of and responsibility for the plaintiff’s fall and consequent serious injuries are at the heart of this case which was heard by me in the High Court in Limerick over five days in February 2019.

2. While the facts of the case are relatively straightforward, the case gave rise to a number of difficult legal issues on which counsel made very helpful oral legal submissions and provided me with numerous cases in support of their respective positions at the conclusion of the evidence. The legal issues required careful consideration. Having done so, I have concluded that for the reasons set out in this judgment, the plaintiff is entitled to succeed in his case against the Council in negligence and nuisance. It has not been necessary for me to resolve other difficult legal issues which arise under the Occupiers’ Liability Act, 1995 (the “1995 Act”) or under the Roads Act, 1993 (as amended) (the “1993 Act (as amended)”). I have also concluded that the plaintiff must bear some responsibility for the accident and I have concluded that the plaintiff is guilty of contributory negligence to the extent of 25%. Having regard to the very serious injuries sustained by the plaintiff and the impact of those injuries on him, I have assessed general damages for pain and suffering to date at €95,000 and into the future at €45,000 giving a total for general damages in the sum of the €140,000. Special damages were agreed at €11,206.50. Taking account of the plaintiff’s contributory negligence, there will, therefore, be an award in favour of the plaintiff of €113,404.87.
Structure of judgment
3. I will adopt the following structure in this judgment. First, I will provide a summary of the plaintiff’s claim against the Council and the Council’s defence to that claim. I will then consider the liability issues, outlining first the evidence and then my findings of fact in relation to liability. I will then consider the legal issues which arise before setting out my conclusions on those legal issues and on the liability issue. I will then proceed to consider the question of quantum, looking first at the evidence relating to quantum and then the relevant legal principles applicable to quantum before setting out my conclusions on quantum. I will then summarise my overall conclusions and the award which I propose making.
Summary of claim and defence
4. In summary, the plaintiff contends that his fall and consequent injuries were caused by the negligence, nuisance and breach of statutory duty on the part of the Council and/or Response, their respective servants or agents, by reason, principally, of the condition of the cattle grid where the plaintiff fell and, in particular, by reason of the state of the concrete area surrounding the grid. The plaintiff claims that the state of the concrete surround (or “ramp” or “dome” as it was described on behalf of the plaintiff) was such that there was a rise and then a sudden drop from the concrete surround onto the metal bars of the grid which was unexpected and caused the plaintiff to lose control of his bicycle as he proceeded cautiously from the paved surface of the roadway over the concrete surround or ramp and onto the start of the metal bars of the cattle grid itself. The plaintiff claims that the Council and/or Response, their respective servants or agents, were responsible for the condition of the concrete surrounding the grid and the grid itself and that it was caused to be in the condition it was in at the time of the accident with a drop of about one inch (25mm) from the concrete surround or ramp onto the first of the metal bars of the grid as a result of the defective and negligent design, construction and installation of the grid and, in particular, the concrete surrounding it. In the alternative, the plaintiff claims that the concrete surround or ramp immediately before the grid which led to a sudden drop of the type referred to amounted to a danger to the users of the public roadway and, therefore, a public nuisance. The plaintiff advanced additional claims under the 1995 Act to the effect that he was either a “visitor” or a “recreational user” within the meaning of those terms in the 1995 Act and that the Council/Response are liable to him under the relevant provisions of that legislation. Additional or alternative claims were advanced (but not really pursued with any vigour) under the 1993 Act (as amended).

5. The proceedings were defended by the Council on its own behalf and on behalf of Response and it is appropriate, therefore, to refer only to the Council in terms of the liability and other issues in the case. The Council denies liability under each of the heads of claim advanced by the plaintiff. The Council rejects the contention that the concrete surround was or could properly be classified as a “ramp” or that it posed a danger to the users of the road, such as the plaintiff. The Council contends that the plaintiff ought not to have had any difficulty in negotiating the cattle grid on his bicycle and that, if he felt that there was any difficulty in doing so, he should have dismounted his bicycle prior to the cattle grid and walked around the cattle grid through a gap between a pillar and a number of boulders to the left side of the pillar. The Council disputes the description of the accident given by the plaintiff and contends that it must have occurred in some other way to that described by the plaintiff. On the legal issues, the Council contends that in its capacity as the highway authority or road authority it could have no liability to the plaintiff in negligence having regard to the doctrine of nonfeasance. The Council asserts that it took over the road in question including the cattle grid and its concrete surround from Shannon Development when it took a transfer of assets of Shannon Development including roads, footpaths, open spaces, waste water treatment plants, pumping stations, storm and foul water systems and other assets in 2004. It did not carry out any works to the roadway in question and, in particular, to the cattle grid and concrete surround following its acquisition in 2004 or subsequent to its designation of the road as a public road in 2011. It claims, therefore, to be entitled to rely on the doctrine of nonfeasance. In response to the claim in nuisance, the Council claims that it can have no liability by reason of its status as the highway or road authority and that as the cattle grid and concrete surround is not a danger to the public and was not installed by the Council, it can have no liability to the plaintiff in nuisance. As regards the claim under the 1995 Act, the Council contends that in the event that the 1995 Act has any application, the plaintiff was a “recreational user” and that having regard to the duty owed by an occupier towards a recreational user of premises not to injure the person intentionally and not to act with reckless disregard for the person, the Council can have no liability to the plaintiff under the 1995 Act. Further, the Council relies on the duty on a person using a public road to take reasonable care for his or her own safety and to take all reasonable measures to avoid injury to himself as well as the duties at common law in order to defeat the plaintiff’s claim or, alternatively, to support a finding of contributory negligence against the plaintiff.

6. In brief response, with regard to the negligence claim, it is contended on behalf of the plaintiff that his claim is for misfeasance and not nonfeasance by reason of the defective and negligent construction of the concrete surround or ramp at the cattle grid and that the Council must bear responsibility for the negligence of its predecessors in title. With regard to the nuisance claim, it is contended that the Council is liable for maintaining the nuisance created by its predecessor in title from whom the Council acquired the road and cattle grid and that it cannot escape responsibility by reason of the fact that the cattle grid and its concrete surround or ramp constituted a danger to those using the road by reason of the fact that its predecessor in title constructed or installed the grid and its concrete surrounds.
A. Liability

The evidence: liability

(1) The Plaintiff’s Evidence
7. On the plaintiff’s side, the witnesses called on behalf of the plaintiff on the question of liability were (a) the plaintiff himself, (b) Inspector Tom Kennedy of An Garda Síochána, (c) Mr. Gerry McIntyre and (d) the plaintiff’s consulting engineer, Mr. Michael Flynn.
(a) The Plaintiff
8. The plaintiff gave evidence as to his personal circumstances. He was born on 13th May, 1950 and is a married man with three adult children. The plaintiff was employed as an accountant in the finance department of the HSE in Co. Clare and retired on 13th May, 2015, on his 65th birthday. This was after the accident the subject of the proceedings. The plaintiff lives with his wife in Shannon, Co. Clare. He explained that about three years before the accident, his three adult children clubbed together and bought him a bicycle with the intention that he would take up cycling in anticipation of and following his retirement. The bicycle was a Falcon Shadow Terrain mountain bike. Photographs of the bicycle were attached to the report of the Council’s consulting engineer, Mr. Brendan Twomey. The bicycle is in the mountain bike style, with the wide wheels and tyres characteristic of that style of bicycle and with enhanced suspension at the front and rear wheels. In the two years or so prior to his accident the plaintiff would go for a bicycle ride about two or three times per week, normally for about ten miles (16 km). The plaintiff explained that on Sunday 3rd August, 2014 he decided to go out for a cycle in the late morning. It was a lovely August day. The plaintiff left his house and was cycling for about half an hour when he decided he would alter his course and instead head towards the road at Clonmoney South. He was familiar with the area since the early 1960’s and explained that it was a place where families and other people from the locality of Shannon would go during fine weather as it was close to the Shannon Estuary and about fifteen minutes walk from Shannon town. There is a good view of the Shannon River Estuary and the mountains in the distance from the road. At the end of the road there is a water treatment plant which is now operated by Response. There is also a facility on the road owned by DeBeers. I interject here by noting the fact that it is agreed that the road came into the ownership of the Council in 2004 when it was transferred with other assets to the Council by Shannon Development. It is also agreed that the road is a public road. The Council’s evidence was that it was so designated in 2011 albeit that the mechanism by which it was designated was not clarified or explained in evidence. The road is classified as a local tertiary road and was given the number L73481 in 2011 by the Council as the relevant road authority.

9. The plaintiff explained that he entered the road from the top and proceeded down the road at a ” leisurely ” pace. He encountered a gateway and cattle grid (being the first of a number of cattle grids on the road). There were pillars on either side of the gateway and cattle grid and a gate which was open. There was subsequent evidence that the gate remained open at all times and indeed the only person that ever saw the gate closed was the Council’s consulting engineer, Mr. Twomey. As of the date of the accident, there was a sign on the left hand pillar containing the words ” Private Road: Access to Authorised Personnel Only: This gate may be locked at any time “. There was a gap to the left of the left hand pillar, between the pillar and a series of boulders. The plaintiff explained that as he entered onto the cattle grid on his bicycle, the front of the bicycle dipped down dramatically and in an unexpected fashion causing him to lose control of the bicycle. The plaintiff fell to the left and the bicycle to the right. The plaintiff attempted to save himself with his left foot and described his ankle as being crushed in the fall. He fell onto the metal or steel bars of the cattle grid towards the left of the grid. He explained how he fell by reference to a series of photographs taken by the plaintiff’s consulting engineer, Mr. Flynn on 17th June, 2015. Mr. Flynn’s photograph 1 showed the sightline which the plaintiff had as he approached the gate and cattle grid. Photograph 2 is a photograph taken from the same direction but closer to the gate and cattle grid. The plaintiff indicated that he was cycling towards the left side of the grid. It is Photographs 5 and 6 were taken from the far side of the cattle grid towards the direction from which the plaintiff was travelling. Photograph 7 is a close up of the sign on the left hand pillar and the gap between the pillar and one of a number of boulders. The plaintiff explained that the sign was always there and that the gate was never closed as far as he was concerned.

10. The plaintiff was assisted by a member of the local model aircraft club which operated close by. He had suffered a serious injury to his left ankle and was weak and in a lot of pain. The man telephoned the plaintiff’s wife and the ambulance. Both came without delay. The plaintiff was taken to University Hospital Limerick where he was initially seen in the Emergency Department, treated for his pain and operated on the following day for a very serious fracture of his left ankle. I will return to the plaintiff’s injuries and the effect they had on the plaintiff later in the judgment. Suffice to say at this stage that the plaintiff continues to suffer from the effects of the injuries he sustained in the accident.

11. The plaintiff was extensively (but appropriately and courteously) cross examined on behalf of the Council. He was challenged over the circumstances and mechanism of his fall. It was put to him that the account given by him of the circumstances of the accident differed in the various descriptions given by the plaintiff such as in his application to the Personal Injuries Assessment Board, in his personal injury summons, in the report of Mr. Byrne, his consulting engineer, and in the hospital notes. The plaintiff was entirely consistent in the evidence which he gave in relation to the circumstances of his fall. He consistently explained in his direct evidence and under cross examination, that as he was cycling towards the grid and over the concrete surround or ramp, his bicycle dropped or dipped ” dramatically ” and in a sudden and ” unexpected ” fashion causing him to lose control and fall on the cattle grid. I am satisfied that there is nothing in the plaintiff’s application to the Personal Injuries Assessment Board (which stated, at para. 5, that as he was cycling over the cattle grid, he was caused to come off his bicycle and hit the ground violently), in his personal injury summons (which stated that he was caused to be thrown off his bicycle by reason of a ” sudden drop at or on approach to a cattle grid on the …roadway” ) or in the report of Mr. Flynn (which recorded the plaintiff’s account of the accident as being that ” having left the concrete surface of the roadway onto the metal cattle grid area, there was a sudden drop which caused the front wheel of his bicycle to drop down causing him to lose his balance, fall forward and receive personal injuries “) which was inconsistent with the evidence the plaintiff gave in evidence. Any minor differences were, in my view, completely insignificant.

12. There was a difference between what was recorded concerning the circumstances of the accident in the case notes in the Emergency Department of the Hospital where it is suggested that while cycling his bicycle over a ” cow grate “, the tyres ” got stuck ” and the plaintiff fell from his bicycle and suffered a ” twisting injury to the left ankle “. The plaintiff disagreed with that recorded account of the accident and noted that the record was entered by a member of staff at the hospital at 19:40 on the evening of his accident. The plaintiff disagreed that the record accurately described how the accident occurred and was not in a position to explain how the staff member had interpreted the circumstances of the fall in that way. The hospital staff member was not called to give evidence to explain the circumstances in which the information recorded in the case was taken from the plaintiff and, specifically the condition of the plaintiff when the account of the accident was given by him. The plaintiff said in evidence that by that stage he had been given ” copious amounts of morphine “. I do not believe that there is any significance to the slight difference between the account given by the plaintiff in evidence and what was recorded in the case notes in the hospital. I am satisfied that the account of the accident given by the plaintiff in the other documents to which reference was made by the Council is entirely consistent with the evidence which the plaintiff gave in his direct evidence and under cross examination.

13. The plaintiff accepted under cross examination that he had cycled down the road once before and had cycled over the cattle grid without any difficulty. He accepted that he knew the cattle grid was there.

14. It was suggested to him that he should have dismounted from his bicycle before negotiating the cattle grid, or at least should have slowed down. In response, however, the plaintiff explained that he was proceeding with ” tremendous caution ” and that he was a ” cautious man “. He stated that he was proceeding at a ” leisurely pace ” and mentioned that he was proceeding at approximately walking pace. He slowed down before approaching the cattle grid. He said that he had taught his children how to ride bicycles and was riding this bicycle very carefully. When, somewhat inconsistently with previous questions, it was put to the plaintiff that he may have fallen because he was going too slowly, the plaintiff rejected that suggestion. He explained that he approached the cattle grid on the assumption that he could navigate it properly on his bicycle. He decided that he did not need to dismount from his bicycle as he assumed that the terrain ahead was safe to cycle over on the basis of what he could see. He could see that there was a cattle grid but did not see the drop from the concrete surround or ramp onto the metal bars of the grid until it was too late. He confirmed that as he entered onto the cattle grid, the front of his bicycle dipped dramatically and in an unexpected fashion causing him to lose control and fall. He reiterated his explanation that as he fell, the bicycle went to his right and frame of his body went to the left and that he came down heavily on his left ankle. He confirmed that his bicycle did not skid and stated that he was going very slowly and had come down in the gears on his bicycle as he approached the cattle grid. The plaintiff rejected the suggestion that he had either driven too quickly or too slowly over the cattle grid. While he had cycled over the grid, on one previous occasion, he had not experienced the sort of sudden and dramatic drop which he had on this occasion. He rejected the suggestion put to him on behalf of the Council that the accident could not have occurred in the manner in which he described and that his bicycle had not slid or slipped on the metal bar as was suggested by the Council’s engineer. He did not agree that the front wheel of his bike had gone down between the metal bars of the grid and that that had caused him to fall. It was put to him that if he had dismounted from his bicycle and walked through the gap between the left hand gate pillar and the boulders, the accident would not have happened. However, it was also put to him as part of the same sequence of questions that many people had been able to cycle over the cattle grid without any difficulty at all. It was not, therefore, really suggested to the plaintiff that it was not appropriate for him to cycle over the cattle grid and that it was absolutely necessary for him to walk his bike through the gap between the left pillar and the boulder. I assume that the Council backed off taking the absolute position that the plaintiff ought to have dismounted and walked his bicycle through the narrow gap in light of the significant evidence available that people did regularly cycle over the cattle grid.
(b) Inspector Kennedy
15. The next witness who gave evidence on behalf of the plaintiff was Inspector Tom Kennedy who was stationed in the Shannon area for more than 23 years, 20 of them as inspector. He was familiar with the road on which the plaintiff had his accident and confirmed that the road served as an amenity for the people of Shannon over the years attracting walkers (with or without dogs) and cyclists because of its sylvan setting and Estuary views. He confirmed that he himself had met walkers and cyclists on the road and that he could see no impediment to people using the road. He accepted that there was a sign on the left pillar (as described earlier) but it was noted that it was quite obstructed with peeling paintwork. Inspector Kennedy had not taken any notice of that sign before and that he had not realised that there was a gate there and had never seen it closed. He understood that the road served as a public amenity to which members of the public had access. While he had met cyclists on the road, he had not himself seen them cycling over the grid.
(c) Gerry McIntyre
16. The next witness to give evidence on behalf of the plaintiff was Mr. Gerry McIntyre. He is a physiotherapist by occupation and a member of a local cycling club. He grew up in the Shannon area and became very familiar with the road over the years. He himself regularly runs, walks and cycles on the road in both winter and summer. He explained that this could be four or five times per week. He described it as a “leisure area” for the people of Shannon. He cycled his bicycle down the road, mainly in the summer months. He cycled over the cattle grid and not dismounting. He did not have the difficulty in doing so. He was unaware that there was a gate at the cattle grid.
(d) Michael Flynn
17. Mr. Flynn, the plaintiff’s consulting engineer, then gave evidence. He went through the photographs he had taken. Photographs 1 – 7 were taken at the time of Mr. Flynn’s inspection at the locus of the accident on 17th June, 2015. Photographs 8, 9 and 10 were taken in the days preceding the hearing in February 2019.

18. In his report, Mr. Flynn described the grid and its dimensions (3.8 m wide x 1.35m long). On approach to the cattle grid he explained that there is 500mm of concrete on each side of the grid with a large pothole just before the concrete on the side from which the plaintiff was travelling. There is a drop between the concrete and the steel bars of approximately 1 inch (25mm) and 1Â¼ inch (32mm) (from the concrete onto the metal bar) which he stated would not have been visible to a cyclist on approach (from the plaintiff’s direction). The report then described the left hand pillar or pier of the gate which was some 400mm x 400mm with a 500mm gap between the pillar and a boulder (to the left) which he stated ” may be suitable for pedestrians to walk slowly through …” but would not be suitable for a cyclist as both the width of the gap and also the condition of the ground would not be suitable for a bicycle. He stated in the report that a drop of 1 inch (25mm) and 1Â¼ inch (32mm) down from the concrete on to the metal bars would not have been clearly visible to the plaintiff as he approached the grid and that it would be considered a ” hidden trap or a hazard “. He also stated in the report that there was little evidence of maintenance in the area of the cattle grid as grass was growing through the grid and large potholes were evident on both sides of the grid. He concluded his report by stating that the condition of the cattle grid and particularly having regard to the drop between the concrete surround and the metal bars would be a potential hazard as the drop of 1Â½ inches (sic) would cause a cyclist to lose his or her balance and fall. His opinion was that the concrete surround area should have been maintained or a suitable passing area should have been provided for pedestrians and cyclists. Further he stated in the report that instruction could have been given to cyclists to dismount prior to crossing the cattle grid.

19. When asked in his direct evidence about the purpose of the concrete surround or ” ramp ” or ” dome “, as it was variously called on behalf of the plaintiff, Mr. Flynn stated that he could not understand why it was there. The cattle grid itself was visible to users of the road and he also noted that there are other grids on the road (Mr. Flynn said there are two others and Mr. Twomey on behalf of the Council said there are three) which do not have this concrete surround or ramp or dome. He described the concrete surround as creating a hump which comes down onto the cattle grid itself. It was an ” unusual feature “. If it was intended to be a speed bump he would have expected it to be placed remotely from the cattle grid and also that it would have been highlighted like speed bumps in carparks. The purpose of highlighting it would be to give an early warning to users of the road of this change or rise and fall in the level of the roadway. He explained that the concrete surround effectively creates and accentuates a drop on to the cattle grid. In terms of its installation, his opinion was that the dome of concrete was installed and poured over the steel bars and demonstrated this by reference to his photograph 6 which he stated showed that the concrete had been poured onto the first steel or metal section of the grid and that that portion of concrete had been broken off when cars travelled over it. He explained that the concrete should have been tapered down and should not have left an edge or lip created by the concrete breaking up with vehicles travelling over it. He also demonstrated this ” lip ” and what he called a ” sheer edge ” by reference to his photograph 10 (taken in the days prior to the hearing) which he said clearly demonstrated that the concrete had broken away where it had been laid over the metal bar of the grid. He further demonstrated this “lip” or “sheer edge” by reference to a €2 coin which he said demonstrated a drop of approximately 1 inch (25mm) from the concrete on to the first of the metal bars of the grid which he described as a ” sudden drop”.

20. His evidence was that there were a number of defects in the manner which the concrete surround or ramp or dome was installed. The first was that the concrete was poured over the first of the metal bars of the grid which made it inevitable that the concrete would break up with vehicles travelling over it, creating the lip or drop referred to. Second, it should have been set back from the grid creating a distance between the concrete surround and the grid itself. Third, if its purpose was as a speed ramp, it ought to have been highlighted.

21. He explained by reference to the plaintiff’s account of the accident given to him (which is consistent with the plaintiff’s evidence at the hearing) that the plaintiff approached the cattle grid to the left of the centre of the grid and concrete surround, being where the 1 inch drop existed and that the plaintiff would not have seen that drop on his approach. He explained this by reference to his photographs 2, 3 & 4. He also stated that he had never seen such a concrete edge or surround like this in other grids. In commenting on Mr. Twomey’s photographs, he described the area as being not as overgrown when Mr. Twomey photographed it (in March 2016). He also expressed a view that the gap between the left hand pillar and the boulder (approximately 500mm) was not wide enough to enable cyclists to walk side by side with his or her bicycle and that the bicycle would have to be thrown or pushed ahead of the cyclist. If it had been intended that this was to be the route to be taken by cyclists, he would have expected that it would have been of sufficient width and also that there would have been some signage requesting cyclists to dismount and to use the gap to the left to get past the cattle grid.

22. Under cross-examination, Mr. Flynn accepted that the area was not a specially designated amenity area but stated that it was, and is, used as an amenity for people within the locality. He agreed that the road had been acquired by the Council in 2004 from Shannon Development and that it had also been taken in charge by the Council as a public road. It was put to him that the cattle grid in question was present when the Council took it over in 2004 and that the Council had done no works to it since then. Mr. Flynn explained that in his view the concrete surround or dome was installed after the cattle grid but he could not say when it was done. At that stage there was some uncertainty as to whether the Council owned the road. However, it was subsequently clarified that the Council does own the road and also designated the road as a public road. Mr. Flynn’s evidence was that if the Council took over the road, there was an onus upon it to ensure that it did not contain a feature or features which posed a risk to users of the road. When it was pointed out to him that Mr. Twomey did not accept that there was a ” sheer drop ” or that the concrete had been poured onto the metal bar of the cattle grid, Mr. Flynn disagreed and again referred to his photograph 6 (taken at the time of his inspection in June 2015) and his photograph 8 which he said demonstrated the concrete covering the first of the bars of the cattle grid and that the concrete had broken away at that point. When it was put to him that Mr. Twomey’s view was that this was merely a ” deflection ” and not a ” drop “, Mr. Flynn strongly disagreed stating that one would not expect a deflection of 1 inch (25mm). He reiterated that, in his view, if a dome was installed at the cattle grid, it should have been tapered down so as to ensure no leading edge or drop. In contrast to a pothole where a cyclist could prepare himself or herself for a change in road level, the plaintiff was unable to do so here as he was faced with a sudden drop for which he was unprepared. Mr. Flynn confirmed that the plaintiff had shown him that the route he had taken was over the left side of the concrete surround and of the cattle grid which was where the 25mm/1-inch drop was present. Mr. Flynn clarified the dimensions of the concrete dome or surround by indicating that the height from the top of the concrete surround to the metal bar was in total 2Â¾ inches (70mm) with the last 25mm (1 inch) being the drop from the concrete onto the metal. Mr. Flynn stressed the fact that this drop was unexpected and could not be seen by an approaching cyclist who would not therefore be in a position to prepare himself or herself for the drop. He also explained that the concrete surround had ” all the characteristics ” of a speed ramp or bump. When it was put to him that the concrete surround could have been installed in order to prevent water getting into the cattle grid, Mr. Flynn did not agree stating that if that had been its intention, he would have expected the surround to have be of uniform height across all sides of the cattle grid. Mr. Flynn also explained that he himself had felt the impact of the drop when driving across the cattle grid in his car. He experienced a rise and they a clunking sound as the car passed over the concrete surround and onto the cattle grid. He did so to stress the impact of the drop and to demonstrate how that would have been experienced by a person cycling over the ramp and on to the grid.

23. Mr. Flynn was satisfied that the accident could well have occurred in the way in which the plaintiff described it and rejected the alternatives posited on behalf of the Council (such as the front wheel of the bicycle being caught between the gaps in the metal bars of the grid, which he said would not have occurred unless the front wheel was perfectly parallel with the bars).

24. As regards the gap between the pillar and the boulder to the left of the cattle grid, he accepted that a cyclist could shove his or her bike through the gap but could not cycle through it. However, it was again not forcefully suggested to Mr. Flynn that cyclists ought to proceed through this gap as, almost in the same breath, it was put to Mr. Flynn that cyclists can cross the cattle grid without any problem (and reference was made to Mr. McIntyre’s evidence in that regard). Mr. Flynn explained that if cyclists cycled their bicycles over the centre of the grid then they would not experience the drop or lip which caused the plaintiff to fall. Mr. Flynn concluded by explaining that the cattle grid and its surround was an integral part of the road which posed a danger to users of the road such as the plaintiff who are unable to see the drop or the height of the ramp as they approach it.
(2) The Council’s evidence
25. The Council called four witnesses on the liability issue. They were:

(a) Mr. Michael Healy (an executive engineer with the Council),
(b) Mr. Eugene O’Shea (a retired senior executive engineer with the Council),

(d) Mr. Brendan Twomey, a consulting engineer engaged by the Council.

(a) Michael Healy
26. Mr. Healy commenced working as an executive engineer with the Council in 1999 and still does. He worked in the Shannon area from 2004-2012. He explained that in 2004, the Council took over several assets and services from Shannon Development including the road which is the subject of these proceedings and the waste water treatment plant at the end of the road. He agreed that the Council was responsible for maintaining the road under the Road Acts. He confirmed that the cattle grid at which the plaintiff had his accident was there when the Council acquired the road in 2004 and that the Council carried out no work during his time with responsibility for the Shannon area (up to 2012). He further stated that the Council maintained a register of complaints and could not recall receiving any complaints in relation to the cattle grid and surrounding concrete area. He did not consider the concrete surround or ramp or dome to amount to a hazard to users of the road.
27. Under cross-examination, Mr. Healy confirmed that he was not involved in the transfer of the assets (including the road) from Shannon Development to the Council in 2004. He accepted that when assets were being transferred to or acquired by the Council (such as when it takes a housing estate in charge) it is normal that it would carry out an inspection or survey to assess whether there were any defects in the roads or other assets being transferred or taken in charge and, in the event that there were, the Council would go back to the developer and require those defects to be rectified before the estate or road was taken in charge. It would also be normal for a report to be prepared in respect of such an investigation. However, Mr. Healy was not in a position to confirm whether an inspection or survey was carried out or report prepared in respect of the transfer of the assets from Shannon Development to the Council as he was not involved. It was a very significant takeover of assets (one of the largest if not the largest transfer of assets in the history of the state). Mr. Healy believed that MCOS, Consulting Engineers were engaged by the Council at the time and did prepare reports although he did not believe that those reports dealt with cattle grids in general or the particular grid at issue. Mr. Healy confirmed that he had never come across a ramp beside or adjacent to a cattle grid although he was familiar with speed ramps on roads which would be marked or highlighted. These, he said, were totally different to the cattle grid in question. He did not believe that the purpose of the concrete surround was to act as a ramp and that it was “possibly” to divert water from the cattle grid. He accepted that the normal purpose of a ramp was to reduce speed by impeding the progress of vehicular traffic. He also accepted that ramps needed to be highlighted or signalled in advance. While disagreeing that the concrete surround was designed to act as a speed ramp, he agreed that if he had designed a ramp or other measure for traffic calming he would always have ensured that they were highlighted so as to warn people of their existence. It had never occurred to him that the concrete surround was in fact intended to act as a speed ramp and he described it as a ” concrete base ” or ” concrete reinstatement around a cattle grid “. He thought its purpose may have been to secure the cattle grid in place although he could not answer what feature of the concrete surround led to his view that it was not a ramp. It did not strike him as a speed ramp although he accepted that there was a drop or, as he described it, a ” vertical difference ” between the concrete surround and the cattle grid. He said that it was not like any ramp which he had designed or installed during his time as an engineer. He confirmed that if it was a ramp, he would not have permitted it to be constructed or installed so close to the cattle grid and that if he had been designing it as a speed ramp, he would have located it some distance in advance of the grid although he stated that there was no real set distance specified. He would not have located it right beside the grid and confirmed that if it were a speed ramp (which he did not think it was), it ought to have been located at least one car length away from the grid. He also agreed that if he designed the cattle grid it would have been level and that he would not have allowed a drop in level of 25mm /1 inch to occur so as to avoid any possible lip or trip or fall hazard and to improve the ” ride-ability ” of the route for vehicles and bicycles.

28. Mr. Healy further confirmed that in the case of speed ramps (although he did not accept this was such) it is good practice to highlight them and to use signage. He further stated that he would not condone a drop of 25mm (1 inch) or see that as good practice in the case of a ramp. He then stated it was ” not desirable ” to have a drop of that type coming off a ramp. He could not answer the question as to why (if it be the case) the concrete feature at the cattle grid in question was not picked up in any report when the road was taken in charge (or the assets acquired).

29. On re-examination, Mr. Healy stated that he was unaware as to who had installed the cattle grid and that the Council had not carried out any works to it following the transfer. He further stated that the Design Manual for Roads and Bridges (DMRB) guidelines were only applicable to new roads and bridges and that this is not a new road. It is a local road providing access to the waste water treatment plant generally carrying local traffic only. On further questioning on behalf of the plaintiff, Mr. Healy was unable to answer at that stage whether the road was in the ownership of the Council as distinct from being a public road (that issue was subsequently clarified).
(b) Eugene O’Shea
30. The next witness for the Council was Mr. Eugene O’Shea (formerly a senior executive engineer with the Council with responsibility for the Shannon Municipal District (“SMD”)). Mr. O’Shea retired in 2018. He stated that the SMD contained at least 300 kilometres of roads comprising regional, local primary, local secondary and local tertiary roads. The road in question here is a local tertiary road which he described as being on the lowest rung of roads and which attracted the lowest priority in terms of the allocation of resources. He stated that he assumed that the road and cattle grid were constructed and installed by Shannon Development, but he was not certain of that. He was not aware as to who designed the cattle grid and was not aware of any works being done by the Council on the cattle grid.

31. Under cross-examination, he confirmed that the road was transferred as part of a transfer of assets from Shannon Development to the Council in September, 2014. He further confirmed that the road was both a public road and within the ownership of the Council and that, therefore, the Council was both the land owner and the road or highway authority in respect of the road and had duties in both capacities. He stated that the Council treated the road as it would any public road. He did not recall seeing any order designating the road as a public road.

32. He agreed that normally when a road is taken in charge, an assessment would be made of the state of the road and a report prepared. He was not aware as to whether any such assessment was carried out or report prepared referring to the road in question here. He stated that it was possible that such a report was done but noted that the transfer of assets was the largest transfer in the history of the State and included roads, footpaths, open spaces, waste water treatment plants, pumping stations and storm and foul water systems. He confirmed that he was aware that the road was used as a local amenity for the public and that he himself had availed of the amenity and had travelled the road for recreational purposes and for work. He confirmed that the Council was aware of the fact that the road was used by members of the public (along with all of the other public roads within the Shannon area). He confirmed that if an assessment or survey had been carried out and a report prepared, it would have looked at the condition of the road and considered issues such as whether the drainage system was functioning and whether the road surface was in good condition. It would also have considered whether there were any particular dangers or hazards on the road such as potholes. While not coming under the heading of a “risk assessment”, it would have a similar purpose. Such an assessment or survey would not necessarily have been carried out by someone walking the road and could have been done by means of a “windscreen” survey. If anything unusual had been picked up on such a survey, it would have been reported on. If such a report existed in respect of the road or cattle grid contained on it, he would expect that it would be in the Council’s archives. When asked whether anyone had checked the archives for the purpose of the case, he stated that he was not aware whether that had been done.

33. Mr. O’Shea confirmed that he was aware of the presence of the cattle grid on the road but was not aware of any particular risks associated with it. He had not noticed the 25mm/1 inch drop from the concrete surround or ramp onto the cattle grid (shown in photograph 6). He did not consider the concrete surround or structure to be a ramp. When asked if it was a ramp whether he would he accept that it should be highlighted, Mr. O’Shea agreed with Mr. Healy and confirmed that, if its purpose had been as a ramp and if it were newly constructed or installed, there would have been signage and it would possibly have been highlighted. He agreed that it would be a good idea to mark or highlight a ramp to signal a change in the surface or level of the road for cyclists and vehicles if one was aware that such a change or difference in level existed. He further confirmed that he was aware that cyclists cycled down the road, that some cycled over the cattle grid and some walked around the grid through the gap to the left of the gate pillar, although he then stated that he could not recall seeing people cycle over the cattle grid himself. He did not consider the drop from the concrete surround to the cattle gird as constituting a significant risk to someone cycling a bicycle of the type the plaintiff was cycling. He accepted that the structure of the concrete surround to the cattle grid was not ” run of the mill ” and was abnormal. He posited the possibility that the purpose of the concrete surround was to divert water away from the grid (although it was clear that he did not have any direct knowledge of this). He accepted that the drop from the concrete surround to the cattle grid created a ” lip ” and that if the Council was aware of this, it would consider highlighting it. When asked whether the Council was aware of it and whether anyone within the Council had looked at whether a report existed in relation to the condition of this cattle grid, Mr. O’Shea responded by referring to the large number of roads within the SMD area and made the point that this road was a low priority road and that resources were allocated by the Council depending upon the priority of the road. He did state that if the Council had received a complaint in relation to the condition of the road, it would endeavour to deal with that issue but that no such complaint had been received in respect of this cattle grid whether from the operators of the water treatment plant or from anyone else using the road. He further confirmed that there was no similar concrete surround or ramp at the other cattle grids on the road.

34. When asked whether a person carrying out an assessment of the road (such as prior to its transfer to the Council) would have noticed the concrete surround or ramp, Mr. O’Shea responded that it was possible that they might have but that he could not say. He further responded that it was possible that had someone noticed it that it would be possible to address the issue relatively inexpensively by signage or marking and that it would not significantly impact upon the Council’s budget. Mr. O’Shea accepted that it was not good practice to lay concrete over the metal bars of a cattle grid and that that would not be in accordance with current standards. However, he stated that it was not possible to go around with a microscope picking up every issue that may have existed in relation to the assets being transferred. He accepted that in an ” ideal world “, somebody carrying out a survey or inspection of the road and preparing a report in respect of the road would have noticed the defective engineering at the cattle grid but made the obvious point that we do not live in an ” ideal world ” and that the transfer of assets had to be completed within a certain timeframe and could not ” go on forever “. He was unable, however, to refer to any particular time constraints which existed, although he made the point that the transfer process went on over a number of years. He stated that he imagined that an assessment and report would probably have been carried out and that it should have been done but that he was not actually aware as to whether it had been done.

35. On re-examination, Mr. O’Shea stated that he was unaware that the cycling club was using the road but that no complaint had been made by anyone. He noted that many people used the road every day without complaint including members of the Gardaí, the fire service, owners of land down the road and members of the public. He felt that this cattle grid was not in any worse condition than others and posed no more of a risk than other grids.
(c) Brendan Twomey
36. The next witness to give evidence on behalf of the Council was the consulting engineer, Mr. Twomey. Mr. Twomey’s report was produced which appended the photographs taken by him in March 2016.

37. In his report, Mr. Twomey considered the cattle grid in question as well as the other cattle grids on the road (he identified three other grids whereas other witnesses referred only to two). He stated in the report that the other cattle grids were of the same construction as the cattle grid at issue and that they also had concrete bands on either side of the approaches. However, I observe that it is clear from all of the photographs that none of the other cattle grids had a concrete surround of the type present at the cattle grid at issue and none had the sort of drop which can be seen in photographs (particularly those of Mr. Flynn). Mr. Twomey noted in his report that the cattle grid is located on a public road which is frequented by leisure walkers and cyclists. He observed that there is nothing unusual about this particular grid and he could not locate the ” sudden drop ” about which the plaintiff was complaining. He reported that there was no reason why the plaintiff could not have walked around the cattle grid using the pathway (to the left of the left-hand pillar). While he was unable to inspect the bicycle, in his view this was an area in which an experienced cyclist ought to have been able to traverse (without difficulty). He stated there was no reason why the plaintiff could not have dismounted from his bicycle in advance of the cattle grid ” if he was not confident to pass over it ” and that there were ” adequate sight lines ” (leading up to the grid).

38. In his direct evidence, Mr. Twomey observed that the cattle grid in question is at a low point in the road and is preceded by a noticeable slope. He observed that the area is prone to flooding. He went through the dimensions of the cattle grid and the concrete band or surround which more or less accord with those given by Mr. Flynn on behalf of the plaintiff. He did not consider the concrete band or surround to be a ” ramp ” or ” speed bump” but merely a concrete band that defined the cattle grid. He accepted that he was unaware of the design function of the concrete surround but felt that it was probably to define the cattle grid itself. He felt that the gap between the left-hand pillar and the boulders (which he accepted was 500mm wide) was such as would enable a person to pass through with a bicycle and that the pathway at that point was worn and trodden, indicating that people used it. He accepted that people use the area as a recreational or amenity area, although it is not formally designated as such.

39. Mr. Twomey commented upon the bicycle being used by the plaintiff at the time of the accident and felt that it was a good sturdy bicycle with wheels of sufficient width such that it could manage the sort of drop seen in Mr. Flynn’s photograph 6 (and Mr. Flynn’s photograph 10 showing the €2 coin). He stated that he could not locate a ” sudden drop ” at the approach to the cattle grid and when Mr. Flynn’s photographs were put to him, he felt that the cyclist should have no difficulty in getting over the grid of that point as the wheels of the bicycle would be in constant contact with the ground transitioning from the concrete surround to the metal bars of the grid.

40. He could not understand how the plaintiff found the drop ” sudden ” or ” unexpected ” as the plaintiff had cycled over the cattle grid before. He could not see how the plaintiff could be thrown off his bicycle in the manner outlined although he accepted that a cyclist could lose control of a bicycle on a cattle grid. There was nothing unusual about this cattle grid. He thought that a cyclist approaching the cattle grid had adequate sightlines and could see where he was going. He felt that the plaintiff took a risk in going over the cattle grid on his bicycle and there was no reason why he could not have dismounted and gone around the pathway to the left of the pillar. He did not believe that the concrete surround amounted to a particular hazard or risk for cyclists and referred to the evidence by Mr. McIntyre about members of the cycling club cycling over the grid. He indicated that, if the plaintiff was not confident enough to pass over the cattle grid, he could have dismounted from his bicycle and walked around the grid. He explained that the DMRB guidelines had no application.

41. Under cross-examination, Mr. Twomey was asked whether he had closed the gate (as shown in his photographs). He confirmed he had. He accepted that on the evidence, no one else had ever seen the gate closed. He accepted that the public had access to this area and used it for amenity purposes. He also accepted that it would be very simple and inexpensive to erect a sign informing those approaching the cattle grid of the presence of the grid and of the change in the level of the road. He accepted that if this were a ramp, it would be very simple to warn users of the roadway of its presence but thought that the cattle grid could be seen in any event. He also felt that people could see the concrete surround (which he denied was a ramp). He did not agree that it would be prudent to warn people of the drop from the top of the concrete surround to the metal bars of the cattle grid of 2Â¾ inches or the final drop of 1 inch from the concrete to the metal bar. He felt the drop was more subtle and referred to his photograph 6. When Mr. Flynn’s photograph 6 was shown to him, he did not accept that the concrete had been laid over the first of the metal bars of the grid. He felt that the photographs demonstrated bits of grass, silt and debris and not an indication that concrete had been laid on the metal bars. Mr. Twomey accepted that this cattle grid had a wider section of concrete surrounding it than the other grids on the road. He also accepted that if the concrete surround was flush with the cattle grid there would not be any additional risk to cyclists. He stated that the risk in crossing a cattle grid on a bicycle is the gaps between the metal bars and the risk of the wheels of the bicycle getting caught between the bars.

42. He accepted that if the concrete surround was smooth, had no rise or no lip, there would be no issue for cyclists although he stated that a cattle grid had to be slightly below the level of the road. He also accepted that it would have been simple to install the cattle grid and concrete surround with the concrete abutting against the first of the steel bars giving a degree of continuity in levels.

43. Mr. Flynn’s photograph 10 (showing the €2 coin) was put to him. It was suggested that that photograph showed that the concrete had been laid on the metal bar and had broken up. Mr. Twomey did not agree that the photograph showed the concrete laid on the steel and he thought it showed silt and debris. He could not comment as to whether any change had taken place in the structure of the concrete surround in the period since construction. He was adamant that the photograph (photograph 10) did not demonstrate that the concrete had been laid on the metal bar and was unable to comment on whether the photograph showed that the concrete had broken up in the period since its installation. He did not believe that the drop at issue was such as to create a particular difficulty for a person on a bicycle. However, he agreed that he would not design the cattle grid and surround in that way although he reiterated that he had not seen evidence that the concrete had been poured onto the steel bars (accepting that if it had been, it would not have been an appropriate method of construction). He stated that it was inevitable that there would be a gap or joint in transitioning from one surface (the concrete surface) onto another surface (the cattle grid). He did not believe that the 25mm/1 inch drop was dangerous and did not agree that it was a hazard.

44. On re-examination, Mr. Twomey was asked to compare the drop evident in Mr. Flynn’s photograph 10 with pothole. He stated that potholes could contain more significant drops or depressions and he had never seen signs warning people of potholes.
(d) Aidan O’Rourke
45. The final witness to give evidence on behalf of the Council was Mr. Aidan O’Rourke, a senior executive engineer with the Council with responsibility for the Shannon area since October 2018. He produced a photocopy of a screengrab from the Council’s pavement management system showing the road at issue which has been allocated the code L73481. He identified the road as a local tertiary road and explained that such a road falls within the lowest classification of road within the national system which ranges from motorways down to local tertiary roads. He confirmed that it is a public road.

46. Under cross-examination, Mr. O’Rourke confirmed that the road became a public road in 2011 when it was added to the register. He was unaware as to how this had been done and could not confirm whether an order designating the road as a public road was made. He stated that when a road on land owned by a private owner was being taken in charge by the Council, it would be required to be brought up to standard by the developer or owner or alternatively a bond would be required. He confirmed that he was not aware whether a bond had been obtained from Shannon Development at the time of this transfer. He explained that normally a survey would be carried out which would determine what works would be required to remedy any defects in the road prior to it being taken in charge. He accepted that sometimes a report would be prepared but that it might not always be done. If works needed to be done before the road was taken in charge, funding would be sought from the developer or private owner. He was not aware as to whether a survey had been carried out in respect of the road in question but accepted that it would be normal that such a survey would be done. Certainly in the case of housing estates, a survey and report would be prepared. In relation to the roads in such estates, the survey would consider whether works were required to bring the road up to an acceptable standard. He was unaware as to whether a report had been prepared in the case of the road at issue in this case. He accepted that the road was both a public road and was also within the ownership of the Council.
Findings of fact on liability issues
47. I have carefully considered the evidence as summarised in the previous section of this judgment and I make the following findings of fact based on my assessment of the evidence given by the witnesses called on behalf of the plaintiff and on behalf of the Council.

48. I completely accept the plaintiff’s account of the circumstances in which he fell from his bicycle on 3rd August, 2014. The plaintiff struck me as a very cautious and careful man. He was an honest and truthful witness. The account which the plaintiff gave in his evidence as to the circumstances of the accident was entirely consistent throughout his evidence. I reject the suggestion made by the Council that the plaintiff gave inconsistent accounts of the circumstances of his accident in the various documents and pleadings referred to earlier. While I accept that the description of the accident recorded in the hospital case notes was not entirely consistent with the circumstances of the accident as described in evidence by the plaintiff, I am satisfied that the likely explanation for this is that the member of the hospital staff responsible for making the entry in the case notes did not fully understand or appreciate the explanation given by the plaintiff of the circumstances of his accident. The plaintiff may also have been somewhat confused at that stage having regard to the severe pain which he was in and the fact that he had been administered with a significant dose or doses of morphine. The account given by the plaintiff in his direct evidence and under cross-examination was unwavering. I accept the plaintiff as an entirely truthful and accurate historian as to the circumstances of his accident.

49. The plaintiff was engaged in the commendable pursuit of cycling his bicycle. He was, as befits the character of the plaintiff as revealed to me in the course of the plaintiff’s evidence, cycling in a very cautious manner at or about walking pace as he approached the cattle grid. He was as far from a “boy racer” as it is possible to be. The plaintiff was familiar with the cattle grid and had cycled over it on one previous occasion without difficulty. However, on this occasion, the plaintiff cycled his bicycle towards the left side of the grid. As he cycled over the concrete surround or ramp or dome on the left side, he experienced a sudden and unexpected drop from the concrete onto the metal bars of the cattle grid. While the plaintiff could see the cattle grid as he approached it, from some considerable distance before the grid, the plaintiff could not see the drop from the concrete surround or ramp or dome onto the cattle grid until it was too late. I accept that the drop from the top of the concrete surround to the metal grid was the order of 2Â¾ (70mm) and that the final drop from the bottom of the concrete surround to the metal grid (where the concrete had broken away) was in the order of 1 inch (25mm).

50. I accept the evidence given by the plaintiff and by his engineer, Mr. Flynn, that this was a sudden and unexpected drop and that this is what caused the plaintiff to lose control of his bicycle and to fall to his left in a manner which caused a very serious injury to his left ankle. I accept that the plaintiff was cycling his bicycle at a leisurely pace and had slowed down to an appropriate pace when attempting to negotiate the cattle grid. I do not accept that the plaintiff was either cycling too quickly or too slowly (being the two propositions put to him on behalf of the Council). Nor do I accept that the plaintiff ought to have dismounted his bicycle and walked around the gate pillar in order to negotiate the cattle grid. I am satisfied on the evidence that the plaintiff having successfully negotiated the grid on one previous occasion, felt sufficiently confident to do so again. However, he did not expect to encounter the sudden and unexpected drop which caused him to lose control of his bicycle and which led to his fall. I am also satisfied on the evidence that cyclists regularly cycle over the cattle grid and do not routinely dismount from their bicycles and go around the left hand gate pillar. People do undoubtedly walk around the pillar and it is likely that some cyclists do dismount from their bicycles at that point and shove or pull their bicycle either ahead of or behind them going around the pillar. However, many do not. The plaintiff was entitled to feel confident that he would be able to manage to cycle over the cattle grid by reference to his previous experience. The fact that he did not experience this drop on the previous occasion and the fact that others may not have done so may well be explained by the fact that he and they cycled over the middle or to the right of the cattle grid rather than over the left side of the grid. I am also satisfied on the evidence that the Council was aware that people cycled over the cattle grid.

51. The evidence establishes that the road in question and the features on it, including this cattle grid and the two or three other cattle grids on the road, are within the ownership of the Council and, in addition, form part of the public road. The Council acquired ownership of the road and the cattle grid when they were transferred to the Council by Shannon Development in 2004, as part of a large transfer of assets. The road and cattle grid were, therefore, been within the ownership of the Council since 2004. I also accept that the road has been a public road bearing the code L73481 since 2011, although the precise circumstances in which and the manner in which the road was designated a public road have not been fully explained by the Council. I accept that the road is a local tertiary road which is at the lowest level in the order of hierarchy of roads within the national road system.

52. I am satisfied on the evidence that the cattle grid and the concrete surround were likely to have been constructed or installed by Shannon Development, the Council’s predecessors in title. I find on the evidence and, in particular, on the evidence of the engineers and the photographs which they produced, that the other cattle grids on the road do not contain a concrete surround or a ramp or dome of the type found at the cattle grid in question. While concrete can be seen around one or more of the other cattle grids, it is not of the width or of the height or gives rise to the type of drop that is to be found in the cattle grid at issue here. I do not have to decide whether the concrete surround was installed at the same time or subsequent to the cattle grid. The fact is that it is there and does contain the features referred to earlier and, in particular, the sudden drop of 25mm (1 inch) from the concrete onto the metal bars of the cattle grid. The purpose of the concrete surround or ramp or dome is unclear. If it was for the purpose of defining the cattle grid, then it would not have needed to be raised or to contain this type of drop or fall present. No witness on behalf of the Council could state with any degree of certainty what the purpose of this feature was other than to speculate that it was either to define or delineate the cattle grid or to prevent water from getting into the grid. This is all pure speculation. If its purpose was to define or delineate the cattle grid from the roadway, then it is difficult to see why it was raised or domed and contained the sort of drop that is found as part of the feature. Its purpose may have been to prevent water getting into the cattle grid, as surmised by Mr. Twomey and by one of the Council’s witnesses, however, this was just speculation on their part. It is possible that the purpose was to slow down traffic going over the cattle grid. However, if that were so, it is not clear why similar features are not found in the other cattle grids (with the rise or dome and then sudden drop or fall onto the cattle grid itself). I am not in a position to reach any definitive conclusion as to what the purpose of the feature was. It may have served no purpose at all.

53. I accept the evidence of the plaintiff’s consulting engineer, Mr. Flynn, as to the manner of construction of the concrete surround. I conclude on the basis of Mr. Flynn’s evidence and the photographs taken by him in June, 2015, and in particular photographs 5 and 6, and in February, 2019, in particular photographs 9 and 10, that during the construction or installation of the concrete surround, the concrete was laid over at least the first of the metal bars of the cattle grid. I am satisfied that Mr. Flynn’s photographs clearly demonstrate this. Indeed, this is also evident from Mr. Twomey’s photograph 6 (taken in March, 2016). Insofar as there is a conflict between Mr. Flynn and Mr. Twomey on this issue, I accept Mr. Flynn’s evidence and reject that of Mr. Twomey. I agree with Mr. Flynn that laying concrete over the metal bar of the cattle grid is a defective and inappropriate method of construction. This is particularly so in circumstances where the concrete surround is raised, giving rise to a dome, and where there is a drop or fall from the top of the concrete to the metal grid of in the order of 2Â¾ inches (70mm) and as part of that, a sudden drop or fall of 25mm (1 inch). Laying the concrete on the metal bar of the cattle grid rendered the concrete liable to be broken up with the passage of vehicular traffic over it. This was an entirely foreseeable consequence of this manner of construction. I am satisfied that the breaking up of the concrete laid over the first of the metal bars of the cattle grid in this defective manner is what caused the sudden drop of 25mm (1 inch) from the concrete onto the first of the metal bars of the grid on the left side of the grid. I am also satisfied that such a drop was a hazard or danger to cyclists, such as the plaintiff, who sought to cross the cattle grid at that point on their bicycles. I conclude that a cyclist approaching the cattle grid from the road (in the direction which the plaintiff was travelling) would not see this drop until it was too late. I accept that the drop was sudden and unexpected and that this is what caused the plaintiff to lose control of his bicycle and to fall.

54. I also accept Mr. Flynn’s evidence that, whatever its purpose, whether it be to induce approaching vehicles to reduce speed before crossing the cattle grid, a concrete structure amounting in effect to a ramp or dome ought to have been set back some distance from the cattle grid itself. While there is no set distance for doing so, I accept that at least one vehicle’s length from the cattle grid would have been appropriate, as stated by Mr. Healy. I note that Mr. Healy and Mr. O’Shea, both experienced engineers with the Council, accepted that if they were designing a ramp at this location, they would have designed and ensured its construction or installation at a distance back from the cattle grid itself, although I am not overlooking the fact that both took the view that the purpose of this concrete structure at the cattle grid was not to act as a speed ramp. In my view, if a raised concrete structure such as that found at this location was installed then it ought to have been placed a distance back from the cattle grid. I also accept Mr. Flynn’s evidence that some notification ought to have been given to cyclists approaching the cattle grid of the presence of the ramp or hump created by reason of the manner of construction of the concrete surround. This could have been done at very little expense by way of signage or highlighting, although I accept that the guidelines or regulations applicable to speed humps on new roads and bridges did not have any application to this road.

55. I conclude that in those two respects, the defective manner of construction and the failure to locate the concrete feature a distance from the cattle grid, the concrete surround was defectively designed and constructed and created a danger or hazard to cyclists such as the plaintiff approaching that cattle grid.

56. I am satisfied on the evidence that it is likely that prior to the transfer of assets from Shannon Development to the Council, there was an inspection or survey of the condition of the assets. The assets being transferred included roads of various types including the local tertiary road at issue here. My impression from the evidence given by the Council witnesses is that it is likely that such a survey was carried out and a report prepared but it is possible that it did not go into the level of detail which would have picked up the defective features of the concrete surround at this cattle grid. However, it may have done. I am surprised that the Council witnesses were not in a position further to assist the court by giving evidence as to the nature and extent of the survey or investigations carried out and the nature of any report which emerged from that as part of the transfer process. It is particularly surprising that they were unable to state with any degree of confidence whether a survey or investigation including this road was ever undertaken as part of that transfer process. Mr. O’Shea stated that if a survey was carried out and a report prepared, he would expect it to be in the Council’s archives. However, no person on behalf of the Council appears to have undertaken a search of the archives. No one from the Council was in a position to inform the court as to what steps would need to be taken to try to identify whether a survey was carried out or a report prepared which may have included the road and cattle grid in question. If a survey was undertaken and report prepared which referred to this road, it may or may not have picked up the defective manner of construction and condition of the concrete surround or dome or ramp at the cattle grid. However, it may have done. This is all information within the peculiar knowledge of the Council. It is unfortunate that the Council did not fully address this issue in its evidence to the court.

57. I am satisfied on the evidence that the Council was aware that people used this road and had to cross this cattle grid for a whole range of purposes including the need to obtain access to the water treatment plant at the end of the road as well as for recreation or amenity purposes. It is clear on the evidence that the Council was aware that people regularly walked and cycled down the road. It is clear on the evidence that at least one of the Council witnesses himself was regularly up and down the road for recreational and work purposes. That was Mr. O’Shea. The Council was, therefore, well aware of the fact that people including cyclists used this public road on a regular basis. It is difficult to conclude other than that the Council was or must have been aware of the state of the cattle grid and in particular the concrete surround. The legal significance of this is a different question and I will consider that shortly.

The plaintiff could undoubtedly have dismounted from his bicycle and taken it through the gap between the left hand pillar and the boulders to the left of the cattle grid. It would have been an awkward operation in light of the width of the gap (approximately 500mm) and his bicycle would have had to have been pushed ahead or pulled behind him. However, the plaintiff had successfully negotiated the cattle grid on his bicycle in the past and others had done so without difficulty. It was not forcefully suggested to him that he was wrong to have cycled over the cattle grid but rather that, if he felt unable or not confident enough to do so, then he should have dismounted his bicycle and taken it around the cattle grid. It is clear on the evidence, therefore, that the plaintiff was entitled to go over the cattle grid on his bicycle. I accept, however, that an issue of contributory negligence does arise and I address that later in my judgment.
Legal issues: Liability
58. The plaintiff’s claim is advanced under two principal or primary headings and under a number of other subsidiary or secondary headings. The principal or primary claims advanced by the plaintiff are that the Council is liable in respect of his accident on the basis that the condition of the cattle grid and, in particular, the concrete surround was caused by reason of the negligence of the Council in its capacity as a road authority and that such negligence amounts to misfeasance as opposed to nonfeasance. Another principal or primary claim advanced by the plaintiff is that the condition of the cattle grid and its concrete surround amounts to a nuisance on the public highway, which is a public nuisance, which was created or maintained by the Council or its predecessors in title, Shannon Development. Alternative subsidiary or secondary claims are advanced under the 1995 Act and under the 1993 Act (as amended). There are significant legal issues in relation to each of these heads of claim. I will address each of them in turn and set out my conclusions below.
(a) Negligence: misfeasance v. nonfeasance
59. I have found that as a matter of fact that the concrete surrounding the cattle grid was defective in terms of its design and construction for the various reasons as set out above. What are the legal consequences of that finding? Is the Council entitled, as it seeks to do, to rely on the defence of nonfeasance on the basis that it carried out no works to the road and that such works as were carried out were done by its predecessor in title, Shannon Development, with no intervention by the Council following its acquisition of the road in 2004, and the designation of the road as a public road in 2011? Or does the Council have a liability in misfeasance?

60. It is unnecessary to set out at any length the source of the effective immunity of road or highway authorities in the case of nonfeasance. It is well established at common law. The statutory attempt to remove that immunity in s. 60(1) of the Civil Liability Act 1961, was never implemented in that no ministerial order giving effect to that provision was ever made. Moreover, s. 2(3) of the Roads Act 1993 effectively preserved the immunity by stating:-

“Nothing in this Act affects any existing rule of law in relation to the liability of a road authority for failure to maintain a public road.”
61. In his leading text on The Law of Local Government (1st ed., Round Hall 2014), Browne describes nonfeasance as follows:-
“8-33 Nonfeasance involves cases of pure omission where the roads authority fails to take measures to construct or repair. The roads authority has traditionally been immune at common law from liability for nonfeasance where it fails to carry out its duty to repair and maintain public roads and is consequently not liable for any injury or damage [citing Convery v. Dublin County Council [1996] 3 IR 153 and Flynn v. Waterford County Council [2004] IEHC 335] … As a result of the principle of nonfeasance, local authorities have been held not to be liable for injuries caused to users of a public road where there was a hole in the road arising from the failure to repair the highway or for the failure to clear out ditches or gullies or for the failure to cut branches overhanging a highway or for the failure to level off a drop in the highway [citing Cowley v. Newmarket Local Board [1892] AC 345] …” ( Browne at para. 8-33, pp. 294-295).
62. Browne describes misfeasance as follows:-
“8-34 Although a local authority is generally protected for liability under the doctrine of nonfeasance, if it performs its duties of repair and maintenance in a negligent manner it may be liable for damages or injury arising therefrom (misfeasance). For example, liability has been held in instances where the local authority failed to properly guard or light materials left on a road or use proper machinery or proper materials [citing Breen v. County Council of the County of Tyrone [1908] 42 ILTR 250] and where it removed a protective fence along a highway. A roads authority cannot necessarily escape liability on the basis that it engaged an independent contractor to do the work.” ( Browne at para. 8-34, p. 295).
63. In Keane on Local Government (3rd ed., Bloomsbury Professional 2015) examples of nonfeasance and misfeasance are set out. In explaining misfeasance, Keane states:-
“If a local authority do in fact carry out their duty to construct or repair a road and do so negligently, they are guilty of misfeasance and, not non-feasance, and are liable damage or injury arising. The failure gives rise to liability, whether it arises by commission or omission.” ( Keane at p. 77).
64. While the distinction between misfeasance and nonfeasance remains part of our law, albeit an anomaly, it is important to appreciate the parameters of that distinction and to ensure that it is not applied to confer immunity for nonfeasance in a case which is in truth one of misfeasance dressed up as nonfeasance. The doctrine of nonfeasance must not be extended beyond its established boundaries. The distinction between nonfeasance and misfeasance was concisely explained by Costello J. in the High Court in The State ( Sheehan) v. Government of Ireland [1987] IR 550 where he stated:-
“There [at present] exists in the law relating to the liability of road authorities for defects in public roads and footpaths a distinction between misfeasance and nonfeasance. If an authority commits a positive act of negligence in the construction of a footpath or in its maintenance (that is, an act of misfeasance), it is liable to a person injured thereby. But if it merely fails to maintain a footpath so that it falls into disrepair (that is, guilty merely of nonfeasance) it is not liable to someone injured due to its lack of repair.” (per Costello J. at 554).

65. In the earlier case of Kelly v. Mayo County Council [1964] IR 315, Lavery J. in the Supreme Court stated to similar effect as follows:-

“Defendants are the highway authority charged with the repair and maintenance of roads and particularly of the road upon which the plaintiff’s accident occurred. As such authority they are liable in damages for injuries suffered by a road user if they have been negligent in doing repairs or in interfering with the road. They are not liable for injuries suffered or caused by the want of repair of a road. This is the familiar distinction – they are liable for misfeasance but not for nonfeasance.” (per Lavery J. at pp. 318-319)
66. It will be readily apparent from these passages that if the local authority acting in its capacity as a road authority is negligent in the manner in which a road is constructed, that is a case of misfeasance and not nonfeasance and the immunity does not apply. The immunity applies essentially to the failure (or omission) to maintain and repair a public road and not the failure properly to design and construct it in the first place. That distinction was considered and applied by Cross J. in the High Court in Loughrey v. Dun Laoghaire County Council [2012] IEHC 502. In that case the plaintiff tripped on a public footpath where there was a slight differential (of 6mm) between two paving slabs. The court had to consider whether the differential was caused by weathering or aging or by poor specification and design or faulty construction at the outset. If the court found as a matter of probability that the cause of the differentiation was poor specification and design or faulty construction, Cross J. stated that the court would be obliged to conclude that the differential was caused by the fault of the local authority and amounted to misfeasance rather than nonfeasance. He concluded that as a matter of probability the differential between the two slabs was caused by either faulty construction or poor specification and design or by a combination of those two causes and, therefore, amounted to misfeasance rather than nonfeasance. The local authority was, therefore, liable.
67. These cases were considered by Hogan J. in the High Court in McCabe v. South Dublin County Council [2014] IEHC 529. In that case, Hogan J. found that the failure by the road authority to repair an opening in the surface of a footpath or, if it had been repaired, the subsequent tampering by persons unknown with the opening, constituted nonfeasance and not misfeasance and meant that the authority was not liable to the plaintiff. This was a classical application of the misfeasance/nonfeasance distinction.

68. In support of its contention that the Council can have no liability to the plaintiff in negligence arising from the state of the cattle grid and concrete surround, the Council asserted that there was nothing wrong with the cattle grid and concrete surround and that it did not constitute a danger or hazard to persons such as the plaintiff. I have reached the contrary conclusion, as appears from my earlier findings. The Council went on to contend that, in any event, it could have no liability to the plaintiff on the basis that if the cattle grid and concrete surround did create a danger or was in a defective condition, the Council was entitled to rely on the defence of nonfeasance. The Council relied on the above extract from Browne and on some cases. It first relied on Flynn v. Waterford County Council [2004] IEHC 335. The issue in that case was whether the defendant, as the relevant road authority, had any liability in respect of a road traffic accident by reason of a failure to erect warning signs and to maintain them. The High Court (Finnegan P.) held that the Roads Act, 1993, did not impose any statutory duty on the defendant to erect and maintain road signs and that the failure to do so did not give rise to an action for negligence at common law either. In the particular factual circumstances of that case, a road sign was in disrepair and was largely obscured by vegetation so that it was not visible to a motorist until the last minute. The court held that there was no liability in negligence. The court held that if no sign had been erected that could not give rise to a claim by an individual for damages for breach of any statutory duty. Further, the court held that had the defendant done nothing, it would not have attracted a common law duty of care and that, having given a warning, even if the warning was less than what might have been desirable, the defendant had nonetheless done more than it was obliged at common law to do and, therefore, no liability at common law arose. However, it seems to me that this case does not really advance the critical distinction between nonfeasance and misfeasance in circumstances where the allegation is that the road or a feature on the road, which forms part of the road, was negligently constructed or installed in the first place or where a material alteration was made to the road following its initial construction. That critical distinction is evident from the dictum of Costello J. in Sheehan and from the extracts from Keane and Browne quoted above and is clear from the application of the distinction by Cross J. in Loughrey. Flynn is to my mind more significant for its consideration of the circumstances in which a road authority may be liable in civil proceedings in the case of a public nuisance on the highway and I will consider it further in that context.

69. The next case relied upon by the Council was Cowley v. The Newmarket Local Board [1892] AC 345. In that case, an owner of land adjoining the public highway, in making an approach or entrance to his land without the sanction or authority of the highway authority, made a drop in the level of the highway and left it in a dangerous condition. The plaintiff who was walking along the highway fell down the drop and was injured. He alleged that the highway authority was liable in that it permitted the highway to be in disrepair and in a dangerous condition. However, he failed on the basis that it was a case of nonfeasance and not misfeasance by the authority. Again this appears to be a classic case of nonfeasance where there was no question of any defect in the roadway as constructed and where there was no intervention on the road by the authority or by its predecessors in title. The Council noted that the decision in Cowley was approved of by the former Supreme Court in O’Brien v. Waterford County Council [1926] IR 1 (” O’Brien “) and the Council also relied on that case. However, while noting the ” anomalous rule ” that a road authority is not liable for nonfeasance and only for misfeasance, the court in O’Brien held that what was at issue in that case was misfeasance and not nonfeasance. There, the road authority made repairs improperly so as to make the repaired structure dangerous to persons using the road. The court held that the doctrine of nonfeasance could not be invoked to absolve the road authority from the consequences of negligence in making the repairs. The court further held that it was not correct to say that because the authority was under no obligation to light the bridge, there could, therefore, be no obligation on it to light an obstruction placed by it on a partially repaired bridge erected by it if the works in that state would be a source of danger. Delivering the judgment of the court, Murnaghan J. stated:-

“The true rule of law is that if the defendants rebuilt the bridge so improperly as to make it unsafe for the public to use it at night, and if they did not take such steps as the jury might consider reasonable in order to neutralise the danger arising from using the bridge, they are guilty of acts of misfeasance for the consequences of which they are responsible in damages to any person injured” (at p.9).
This, therefore, was a case of misfeasance and not nonfeasance and it does not seem to me to be of any assistance to the Council in this case.
70. The Council further relied on the extract from Keane quoted above. However, in the examples of misfeasance given by Keane , it is made clear that if the local authority carries out its duty to construct a road and does so negligently, that is misfeasance not nonfeasance. The plaintiff argues that that is what happened in this case. It contends that the cattle grid and concrete surround were negligently constructed in the first place, both by reason of the location of the concrete surround or dome or ramp right at the cattle grid and by reason of the defective method of constructing or installing the cattle surround by laying the concrete onto the metal bars and that this amounts to misfeasance and not nonfeasance. I accept that submission. It is not possible to decide whether the concrete surround was installed at the same time as the cattle grid. However, it matters not. While the Council itself did not carry out the works, its predecessor in title, Shannon Development, did. The works were, therefore, carried out in a defective manner by the Council’s predecessors in title. I agree with the plaintiff’s that the Council cannot distance itself from those defective works on taking a transfer of the road and associated works and lands in 2004 and when designating the road as a public road in 2011. While the parties were not in a position to identify any case in which a predecessor in title of a road or highway authority negligently constructed a road or a feature on a road, it seems to me that it follows from first principles that the Council must have a liability for the negligent acts of its predecessor in title in the construction of the concrete surround at the cattle grid and that it is not entitled to rely on the doctrine of nonfeasance in respect of the defective construction or installation of that feature.

71. The Council did draw my attention to the decision of the High Court in Gaye v. Dublin County Council (Unreported, High Court, Morris J., 30th July, 1993) in a different context. However, one of the issues in that case was whether the local authority could be liable in negligence and nuisance in respect of defects on a footpath in a housing estate built by a developer and taken in charge by the authority some years later. It was alleged that when the authority took the estate in charge, a defect which amounted to a trip hazard was already in existence and ought to have been picked up by the authority when it took the estate in charge. The court concluded that there was no evidence that at the time the estate was taken in charge the trip hazard existed and held that, on the contrary, it was a flaw which would have developed over a protracted period. In those circumstances, the court was not prepared to conclude that it was in existence when the estate was taken in charge and was, therefore, not prepared to assume that there was negligence on the part of the authority. In the present case, however, it is accepted by the Council that the cattle grid and concrete surround was present at the time the road and relevant lands were acquired by the Council in 2004 and when the road became a public road in 1993. I have concluded that the concrete surround did pose a danger or hazard to persons such as the plaintiff. If there was a survey and report prepared at the time of the transfer, this hazard ought to have been picked up. If there was none, then that was the responsibility of the Council and it had the opportunity of carrying out such a survey. I am conscious that it might appear somewhat unfair to the Council to saddle it with the liability for works done by Shannon Development. However, it acquired the lands and the road from Shannon Development and it was presumably open to the Council to provide for an indemnity from Shannon Development under the terms of the transfer. I was not given any evidence as to the terms of the transfer or as to whether provision was made for an indemnity for the Council in that transfer. I see no reason why it would not have been open to the Council to provide for such an indemnity. In those circumstances, I do not believe that it is unfair on the Council to find it liable in respect of the defects in the construction and installation of the concrete surround at the cattle grid by its predecessors in title.

72. In reaching my decision on liability, I have also borne in mind the admonition of the Court of Appeal in Byrne v. Ardenheath Company Limited [2017] IECA 293 that in considering the question of liability, where the court is not dealing with a complex specialist field of activity, the trial judge is required:-

” not only to consider the expert evidence tendered by the parties but to bring ordinary common sense to bear on their assessment of what should amount to reasonable care.” (per Irvine J. at para. 32).
73. I am satisfied that as a matter of common sense, notwithstanding the fact that the works were carried out by the Council’s predecessors in title and acquired by the Council on foot of the transfer referred to with the Council subsequently designating the road as a public road, and notwithstanding its status as a local tertiary road in the hierarchy of roads, having regard to the danger or hazard posed by the concrete surround at the cattle grid to persons such as the plaintiff who are known by the Council to use the road for amenity and other purposes, liability should rest on the Council in respect of the negligence of its predecessor. I am also satisfied, for the reasons outlined earlier, that the negligence in question amounts to misfeasance and not nonfeasance. In those circumstances, I conclude that the Council is liable to the plaintiff in negligence.
(b) Public nuisance on the highway
74. The plaintiff also maintains a claim in nuisance against the Council alleging that the sudden drop from the concrete surround onto the cattle grid constituted a danger or trap amounting to a nuisance. The Council asserts that it can have no liability in nuisance and that the only possible basis on which it would have any liability at all to the plaintiff is in its capacity as a road authority (arguing unsuccessfully as I have found, that no such liability can arise in this case on the grounds of nonfeasance).

75. However, I am satisfied that in addition to being liable to the plaintiff in negligence in its capacity as road authority, the Council is also liable to the plaintiff for the tort of nuisance. The nuisance in question is a public nuisance on the highway by reason of the construction or installation of the concrete surround at the cattle grid which incorporated the sudden drop onto the cattle grid and which, in my view, constituted a danger or hazard to persons such as the plaintiff which was created by the Council’s predecessor in title, Shannon Development, and maintained in place by the Council following the transfer of the road and lands to the Council in 2004. While a public nuisance is a crime, covering a wide and multifarious range of situations, it is open to a private individual to maintain civil proceedings where that person has suffered ” particular ” or ” special ” damage (McMahon & Binchy Law of Torts (4th Ed, Bloomsbury 2013) paras. 24.23-24.04, pp. 980-981). One type of public nuisance is public nuisance on the highway. That is the type of nuisance at issue in this case.

76. Two issues arise in this context on the facts of this case. The first is whether the concrete surround at the cattle grid amounts to a public nuisance to users of the road. The second is whether, the structure having been constructed and installed by the Council’s predecessors in title, the Council can have any liability in public nuisance in respect of it.

77. A public nuisance on the highway can arise in a vast range of circumstances, including where there are obstructions placed on the road or features which make it dangerous to the public using the road. In Hassett v. O’Loughlin (1943) 78 ILTR 47, O’Briain J. in the Circuit Court stated that:-

“A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes the use of the highway unsafe or dangerous to those using it.” (at p. 48).
In that case, the court found that the defendant was liable to the plaintiff in public nuisance in circumstances where the defendant had placed a small heap of stones on the side of the highway which had caused a horse which was being driven with a cart by a third party to shy across the road and to strike the plaintiff’s horse, seriously injuring it. The court found that the pile of stones on the highway was a nuisance as horses were inclined to shy at it. The court was satisfied that the damage in the case flowed from the nuisance. The defendant was held liable for putting the stones on the highway albeit that he did so ” quite innocently and without any negligence”. McMahon & Binchy give this case as an example of public nuisance on the highway caused where the highway is rendered unsafe or dangerous to the public. A host of other examples of dangers to the public using the highway amounting to a nuisance are given by McMahon & Binchy at para. 24.17 (pp. 987-988). They include, relevantly for present purposes, ” damaging the road surface or rendering it hazardous or damaging property under it” and ” placing dangerous materials on or near the highway”.
78. In Mullan & Ors v. Forrester [1921] 2 IR 412, a case relied upon by the plaintiff, the King’s Bench Division, by a majority, directed a new trial in circumstances where a wall on the defendant’s land which abutted the public highway was blown over during a storm killing three people. The court directed a retrial arising from the judge’s charge to the jury. The majority of the King’s Bench Division held that this could amount to a public nuisance and that it was not necessary to prove that the defendant knew or ought to have known of the defective condition of the wall. Gordon J. (who formed part of the majority) stated:-

“Now, a nuisance is something different from, and not to be confounded with, either trespass or negligence, though the wrong is in some respects analogous to trespass, and the two may coincide. If a person erects alongside a public highway upon his own land some structure, or makes some excavation which, as erected or made, is dangerous to persons lawfully using the highway, that is a public nuisance; and if any person lawfully using the highway is injured thereby, he has his cause of action. But I have not found or been referred to any cases of that kind in which any question as to whether defendant knew, or ought to have known, of the dangerous nature or condition of the structure erected, or excavation made by him, has been submitted to a jury or relied on as a defence to an action.” (per Gordon J. at p. 426).
79. That case did not involve a road authority. However, the case of Skilton v. Epson & Ewell Urban District Counci l [1936] 2 All ER 50 (” Skilton “) did. The plaintiff also relied on that case. In Skilton , the plaintiff was riding her bicycle along the highway when a traffic stud which had become dislodged was thrown up by a passing car and struck the plaintiff’s bicycle causing her to fall from her bicycle and sustain injuries. It was found as a fact that the stud had been loose for a number of weeks. The stud had been inserted into the roadway under certain statutory powers. The English Court of Appeal held that, whether or not the stud formed part of the highway, the insertion of the stud into the roadway was not done as part of the authority’s duty to maintain highways and, therefore, the doctrines of misfeasance and nonfeasance did not apply. The court held that the actions of the authority resulted in a nuisance upon the highway and that the authority was properly found liable to the plaintiff notwithstanding the fact that the defendant was also the highway authority. This is an example of a case where the highway authority was found liable for a public nuisance on the highway in circumstances where works were carried out by the authority, not in its capacity as the highway authority but for a different purpose. Skilton was considered by Finnegan P. in Flynn v. Waterford County Council (referred to earlier). However, Finnegan P. was satisfied that the plaintiff in Flynn could not bring himself within the principle on which that case was decided, namely, ” that a common law liability might arise from acts done on or around the highway that have created a source of danger to users of the highway” . He held that the existence of the obscured sign in that case did not constitute a nuisance. It may be noted that Finnegan P. did not suggest that the defendant could have no liability in nuisance by reason of the fact that it was the road authority. In Kelly v. Mayo County Council [1964] IR 315, the defendant local authority was sued for negligence in its capacity as road authority and also for public nuisance on the grounds that the defendant’s lorries had damaged the road by excessive user and created a rut or pothole in the road. It was conceded on behalf of the plaintiff in that case that liability in negligence could not be maintained against the defendant as the road authority. Notwithstanding that the defendant was the road authority, the Supreme Court went on to consider whether it could be liable for creating a public nuisance on the roadway. The Supreme Court held that the evidence was not sufficient to justify a jury finding that the user of the road by the defendant amounted to a public nuisance. However, Lavery J. stated that there were circumstances in which the user of a highway could constitute a public nuisance giving rise to a cause of action to any person who could show particular damage to himself caused by the nuisance (notwithstanding that the defendant was a road authority) but that the user of the road by the defendant in that case was a normal user of the road and not a public nuisance (see p. 321). It seems to me that these cases are sufficient to defeat the contention made on behalf of the Council in the present case that the Council could have no possible liability in public nuisance and that, as the relevant road authority, its only liability would be in negligence, in the case of misfeasance.
80. The plaintiff also relied on the recent decision of the High Court (Barr J.) in O’Shaughnessy v. Dublin City Council & Ors [2017] IEHC 774. In that case, the plaintiff fell over a portion of a stone block which was projecting from one side of the underside of the Luas bridge at the triangle in Ranelagh onto the public footpath. Barr J. considered some of the case law (including Hassett and Stewart v. Governors of Saint Patrick’s Hospital (1939) 73 ILTR 115) and observed that:-

“It is settled law that even a small impediment on the public highway can constitute an actionable nuisance” (per Barr J. at p.14)
The court was satisfied that the piece of stone which jutted out from the foot of the wall of the bridge constituted a nuisance on the public highway.
81. In light of the findings of fact made earlier, and, in particular, my finding that the concrete surround or dome or ramp did constitute a danger or hazard to users of the road such as the plaintiff, I find that the dome or ramp at the cattle grid constituted a public nuisance. I am satisfied, on the basis of the findings of fact which I have already made, that the cause of the plaintiff’s loss of control of his bicycle as he negotiated the concrete surround or ramp was the sudden drop from the concrete onto the metal bar. I am also satisfied that this public nuisance on the road was what caused the plaintiff to lose control of his bicycle and it was, therefore, the cause of the fall and the consequent injuries sustained by the plaintiff.

82. The Council maintained that it could have no liability in nuisance in circumstances where it had not created the alleged nuisance and had no knowledge of it. The Council relied on the decision of the High Court (Peart J.) in Dempsey v. Waterford Corporation [2008] IEHC 55. In that case, the plaintiffs claimed that damage to their house was caused as a result of water penetration from water entering their premises via an old culvert. The defendant local authority denied any knowledge of the existence of this old culvert and contended that it could have no liability to the plaintiff in negligence or otherwise as it was completely unware of its existence and could not have foreseen that it was there. The plaintiff’s claim was based primarily on negligence and nuisance. Peart J. dismissed the claim in negligence holding that the defendant did not owe a duty of care of the type alleged. The court went on to consider the claim in nuisance. It might be noted in passing that the claim was for private and not public nuisance. Peart J. concluded that the defendant could not have been expected to foresee or anticipate that the culvert might exist without digging up the entire street and that led to the inevitable conclusion that the defendant was not liable in nuisance either. Peart J. referred to a passage in Clerk and Lindsell on Torts (18th ed.) where it was stated (at para 19-66):-

“As the general rule is that no one is liable for nuisance unless he either created it or continued it after knowledge or means of knowledge, it follows that it is a defence to prove ignorance of the facts constituting the nuisance, unless that ignorance is due to the omission to use reasonable care to discover the facts.”
The court held that the clear evidence in the case was that the defendant was unaware that the culvert existed and that it did not appear marked on any maps in the defendant’s possession. The court found that the defendant had no knowledge of the culvert. Nor did it have reasonable means of being aware of it since:-
“speculative excavation of the entire street on a ‘just in case’ basis is an unreasonable burden to impose on a local authority.”
83. The Council seeks to rely on this decision to support its contention that it can have no liability in nuisance to the plaintiff in respect of the condition of the concrete surround at the cattle grid as it had neither created nor continued the state of affairs which existed there. However, this completely ignores the fact that it was the Council’s predecessor in title, Shannon Development, who constructed or installed the cattle grid and concrete surround. The state of affairs this created continued to exist after the transfer of the road and lands to the Council in 2004 and after the road was designated a public road in 2011. In addition to the fact that the cattle grid and surround which had given rise to the hazard or danger to users of the road, including the plaintiff, when constructed or installed by the Council’s predecessor in title, the Council continued it after the transfer in 2004 and after the road was designated a public road in 2011. I am satisfied that the Council did have the means of knowledge of the existence of the public nuisance created at that location in that it either carried out a survey and prepared a report on the road together with the other assets being transferred or, if it did not cover this road in any such survey or report, or if the road was for some reason excluded from the survey or report, the Council nonetheless had the means of knowledge of the nuisance. In the event that the Council was unaware of the nuisance created by the condition of the concrete surround at the cattle grid, notwithstanding that Council witnesses were well aware of the cattle grid and that people including cyclists used it, such lack of knowledge was, in my view, due to the omission to use reasonable care to discover the true factual position. In my view, therefore, the decision of Peart J. in Dempsey , far from assisting the Council, is of assistance to the plaintiff in the present case and undermines the defence of the Council to the public nuisance.
84. It is in my view significant that the concrete surround and cattle grid were constructed and installed by the Council’s predecessor in title, Shannon Development, and not by some third party with no connection to the Council or who carried out works at the cattle grid without authority. However, even if the nuisance was created by a third party and was created without the knowledge or consent of the Council or its predecessor in title, liability in public nuisance could still arise in circumstances where the nuisance was continued and adopted by the Council. This issue arose for consideration in Sedleigh-Denfield v. O’Callaghan [1940] AC 880. That was not a case involving a public nuisance on a highway. The nuisance involved the placement of a pipe or culvert on the respondents’ land by a trespasser without the knowledge and consent of the respondents. The respondents subsequently became aware through their servants of the existence of the pipe and used the pipe for draining their fields. The pipe ultimately became blocked with leaves causing water to overflow onto the appellant’s premises causing damage for which he sought damages in nuisance. The House of Lords held that the respondents had to be taken to have had knowledge of the existence of the pipe notwithstanding that it was placed there by a trespasser and consequently they were responsible in nuisance for the damage caused to the appellant. The respondents were found to have continued and adopted the nuisance. Stating that there was no difference between the case of a public nuisance and a private nuisance, Lord Atkin observed that:-

“…where the occupier has knowledge of a public nuisance, has the means of remedying it and fails to do so, he may be enjoined from allowing it to continue. …if an individual could have proved special damage caused by the nuisance… he could surely have recovered damages.”
(per Lord Atkin at p. 899).

85. Lord Wright in the same case stated:-
“…An occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience… if the defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became or should have become aware of it…”
(per Lord Wright at pp. 904-905).

This case has been referred to and applied in numerous Irish cases including Larkin v. Joosub [2006] IEHC 51 and University College Cork v Electricity Supply Board (ESB) [2015] IEHC 598.
86. As I have indicated earlier, in my view the Council is liable to the plaintiff in public nuisance as the nuisance was created by its predecessor in title but was continued or adopted by the Council in circumstances where the Council failed to do anything about it at the time of, or subsequent to, the transfer in 2004 and the designation of the road as a public road in 2011. The Council, therefore, failed without undue delay to remedy the nuisance when with ordinary reasonable care it ought to have become aware of the situation had it addressed it.

87. Finally, in this connection I should refer to another public nuisance case which is also relevant. It is the decision of the Supreme Court in Wall v. Morrissey [1969] IR 10. In that case it was claimed that the defendant had created a public nuisance on the highway when, with the permission of the local authority, he engaged a contractor to open a trench across the highway, laid water pipes in the trench, refilled the trench and subsequently refilled it the following day to compensate for subsidence which had occurred. The plaintiff was injured when he fell from his bicycle as he crossed the refilled trench. The trial judge withdrew the issue of public nuisance from the jury and the jury found that the defendant had not been negligent. On appeal, the Supreme Court agreed that the trial judge had correctly decided that the issue of public nuisance should not be left to the jury. In the Supreme Court, Walsh J. stated:-

“The temporary excavation of the highway is not itself a public nuisance so long as it does not offend by exceeding, in either degree or duration, the temporary requirements of a person whose premises adjoin the highway. A public nuisance is constituted by exceeding this temporary requirement, or by failing to restore the position to the point where it does not operate as a withdrawal of part of the highway from the public, or by leaving the highway dangerous for members of the public using it .” (per Walsh J. at p. 14)
88. Walsh J. continued:-
“It is true that the facts giving rise to a public nuisance often ground a cause of action in negligence also, and in many cases it may matter nothing which of these causes of action is relied upon. It is true, however, as has been submitted by counsel for the plaintiff, that negligence is not an essential element in nuisance… However, I am also content to adopt the reasoning of Lord Reid in the same case [The Wagon Mound (No. 2) [1967] AC 617] and to accept the conclusion which he arrives at, namely, that, while negligence is not an essential ingredient of nuisance in an action on public nuisance, foreseeability is an essential ingredient. In the present case, the defendant created a danger on the highway which did amount to a public nuisance, but before the plaintiff can establish his right to damages he must satisfy the jury that the injury which he suffered was a reasonably foreseeable event on the part of the defendant.” (per Walsh J. at pp. 14-15)
It can be seen, therefore, that while an action for public nuisance does not require negligence to be established, foreseeability must be established. In other words, the plaintiff must establish that the injury suffered by him was a reasonably foreseeable consequence of the public nuisance. I am satisfied in the present case that on the facts found by me, it was reasonably foreseeable by the Council that a person such as the plaintiff cycling over the concrete surround at the cattle grid could lose control of his bicycle, fall from the bicycle and sustain an injury. That is precisely what happened to the plaintiff.
89. In those circumstances, on the basis of the facts as I have found them, I am satisfied that the Council is also liable to the plaintiff for the tort of public nuisance.
(c) Other bases of liability

(i) Occupiers’ Liability Act, 1995
90. The plaintiff also claimed that the Council was liable under the provisions of the 1995 Act. He contended that the Council was an ” occupier ” of ” premises “, which he claimed included the public road on which the concrete surround and cattle grid were located, and that the Council was liable to him either as a ” visitor ” or ” recreational user “. While it was contended on behalf of the plaintiff that he was a ” visitor ” in the sense of being an ” entrant as of right ” under the 1995 Act to whom the common duty of care under s. 3 of the 1995 Act was owed, it was accepted that the plaintiff was more likely to be regarded as a ” recreational user ” to whom the duty provided for under s. 4 was owed (namely a duty not to injure the person intentionally or not to act with ” reckless disregard ” for the person).

91. The Council contended that it could have no liability to the plaintiff under the 1995 Act by reason of its capacity as a road authority. Alternatively, the Council contended that if the 1995 Act did apply, the plaintiff was a ” recreational user ” and that the only duty owed to it was not to act with ” reckless disregard ” for the person of the plaintiff.

92. Both parties relied on a considerable body of case law under the 1995 Act in support of their respective positions. However, in light of the conclusions which I have reached in relation to the plaintiff’s claims in negligence and in public nuisance, I do not find it necessary to deal with the plaintiff’s claim under this heading. I am reluctant to do so in circumstances where I have a considerable doubt as to whether the provisions of the 1995 Act can apply in the case of an action brought against a road authority in respect of an accident which occurred on the public roadway. I find it difficult to see conceptually how the road authority can be regarded as an ” occupier ” of a road (and features on a road, such as the cattle grid and concrete surround at issue in this case) in circumstances where the road is a public road. That is so notwithstanding that in the present case the Council, as the relevant road authority, is also the owner of the road. Once the road was designated as a public road (as the road here was so designated in 2011), I find it difficult to see how the Council could exclude or prevent members of the public from using the road. This inability to exclude persons from using the road, in my view, sits uncomfortably with the Council being an ” occupier ” of the road, notwithstanding that it is also the owner of the road. I note in passing that the position in England and Wales is that a highway authority is not regarded as the occupier of a public road or footpath ( Clerk & Lindsell on Torts (22nd ed., 2018) at para. 12-14). The case cited by the editors is Whiting v. Hillingdon LBC (1970) 114 S.J. 247. In Sydenham, Public Rights of Way and Access to Land (Jordans, 2013), the author states that ” because the public have a legal right to use the public right of way and neither the authority nor the land owner can exclude them”, the highway authority is not regarded as the occupier of the public road. The case cited for that proposition is Gautret v. Egerton (1867) L.R. 2 CP 371. In Stovin v. Wise [1996] AC 923, the House of Lords stated:-

“The position of the highway authority has no resemblance to that of an occupier of premises who is liable to persons who are invited or allowed to come onto the premises. The authority has no control over who uses the highway and the public use it as of right: McGeown v. Northern Ireland Housing Executive [1995] 1 AC 233. The authority is not an occupier of the highway: Whiting v. Hillingdon London Borough Council…”
93. It seems to me that a similar approach is likely to be taken by the courts in this jurisdiction and that once the road is designated as a public road it is difficult to see how the road authority can be regarded as an occupier of that road for the purposes of the 1995 Act. However, I am not making any definitive finding on that issue. It is best left to a case in which a decision on the point is necessary for the outcome of the case. That is not so here.
(ii) Roads Act, 1993 (as amended)
94. Nor do not find it necessary to consider the claim made by the plaintiff arising from the alleged breach by the Council of s. 13 of the 1993 Act (as amended). Section 13 provides that the maintenance and construction of all national regional roads in an administrative county is the function of the relevant local authority for that county. Section 13(2) provides that it is a function of the relevant road authority to maintain and construct all local roads within its relevant area. This head of claim was not pushed strongly by the plaintiff and it is unnecessary for me to consider it any further in light of the conclusions which I have reached earlier.
(d) Contributory negligence
95. It is undoubtedly the case that the plaintiff had a duty to take reasonable care for his own safety when approaching the cattle grid on his bicycle. The plaintiff was under that general duty at common law. He was also subject to the duty arising under s. 67 of the 1993 Act (as amended). That section provides as follows:-

“67- (1) It shall be the duty of a person using a public road to take reasonable care for his own safety and for that of any other person using the public road.
(2) It shall be the duty of a person using a public road to take all reasonable measures to avoid-

(a) injury to himself or to any other person using the public road,
(b) damage to property owned or used by him or by any other person using the public road.”

As a user of the public road at the time of the accident, the plaintiff was subject to the duty of care provided for in s. 67. However, it seems to me that this section does no more than restate the ordinary duty to take reasonable care for his or her own safety for which every adult member of society is subject for (see for example: O’Flynn v. Cherry Hill Inns Ltd. t/a The Oliver Plunkett Bar [2017] IECA 211, per Irvine J. at para. 37; see also O’Donnell v. South Tipperary County Council [2017] IEHC 705, per Twomey J. at para. 9).
96. The Council has pleaded contributory negligence on the part of the plaintiff. Among the matters alleged by the Council to amount to contributory negligence by the plaintiff are his failure to dismount from his bicycle and to walk around the cattle grid and his failure successfully to negotiate the cattle grid. I have already concluded that the plaintiff was entitled to proceed on his bicycle over the cattle grid having done so successfully before. I have also concluded that the accident did not occur by reason of the plaintiff cycling either too quickly or too slowly over the cattle grid. However, while in my view the cause of the plaintiff’s accident was the sudden and unexpected drop encountered by the plaintiff as he cycled over the concrete surround or ramp or dome leading onto the cattle grid, I accept that it would have been open to the plaintiff to dismount and walk around the cattle grid in the small gap between the left hand pillar and the boulders and that if the plaintiff had cycled his bicycle over the middle or over the right side of the cattle grid, he would not have had to negotiate the sudden drop. It seems to me that in those circumstances there was an element of contributory negligence on the part of the plaintiff. I would assess the level of contributory negligence on the part of the plaintiff at 25%. It is certainly no more than that and there may be an argument for being slightly less than that. However, the justice of the case in the particular circumstances persuades me that the appropriate level of contributory negligence in the case is 25%.
B. Quantum

The Evidence: Quantum
97. The plaintiff himself gave evidence in relation to his injuries and the effect they have had. In addition, evidence was given by Mr. Lester D’Souza, consultant orthopaedic foot and ankle surgeon, who has been responsible for the ongoing care and treatment of the plaintiff in respect of his ankle injury and by Dr. Aideen Henry, consultant physician in orthopaedic and sports medicine. In addition to providing a number of reports, Mr. D’Souza and Dr. Henry gave evidence and were cross-examined on behalf of the Council. No medical expert was called to give evidence on behalf of the Council. However, the Council provided two medical reports from Prof. Eric Masterson, consultant orthopaedic surgeon, who examined the plaintiff on two occasions on behalf of the Council. Prof. Masterson was not called to give evidence.
(a) The Plaintiff
98. In brief, the plaintiff gave evidence that he was taken by ambulance to the Emergency Department of University Hospital Limerick following his accident. He was in extreme pain. He sustained a very serious fracture of his left ankle as well as ankle ligament rupture. He had screws and a plate inserted in his ankle. He remained in University Hospital Limerick for two days. He was in severe pain during that period. He was moved to Croom Orthopaedic Hospital for ten days. He was under the care of Mr. D’Souza. He was in a plaster cast and then a boot. The plaster cast remained in place for approximately three months. He required further surgery in late October 2014, to remove the screws and plate. He had several scars on his ankle from the surgical procedures. He was on heavy pain medication and in a lot of pain. He was on crutches and found using the crutches challenging and hurt his shoulder as a result. He was discharged home from Croom Orthopaedic Hospital after about ten days. He was looked after at home by his wife. However, he was unable to manage the stairs and his wife arranged a sleeping area for him in the sitting room on the ground level of their home. He remained there for several months and intends to make permanent changes to the layout of his house to enable him to continue sleeping downstairs.

99. Following the removal of the cast and subsequently the screws and plate, the plaintiff was left with some scarring which remains visible to date. He was required to attend the fracture clinic in the hospital every three weeks for a number of months. He underwent between ten and twelve sessions of physiotherapy in Ennis General Hospital for his ankle. About four or five months after the accident he moved from crutches to using two walking sticks. About a month or so later, he moved from two walking sticks to one stick. He found it necessary to use one walking stick to assist his movement for about two years thereafter. However, he still requires to use his walking stick occasionally.

100. The plaintiff was anxious to get back to work after his accident and did so in November 2014, while he was still using two walking sticks. He was given sedentary duties following his return to work and until his retirement in May 2015. He is still in pain, has difficulty sleeping and requires ongoing pain medication and medication to help him sleep. He has received a number of injections into his ankle joint carried out by Mr. D’Souza. They have not resolved his pain. He explained that even in court while awaiting to give evidence and while giving his evidence, his left ankle was throbbing and felt hot and he found it necessary to take pain medication. He continues to walk with a slight limp. I observed this myself during the course of the trial.

101. The plaintiff explained that he had many and varied plans for his retirement in May 2015 (almost four years ago). He hoped to travel extensively with his wife including visiting his brother in Thailand. He hoped to continue with his cycling and to undertake mountain walking and trekking. He also hoped to pursue his interests in fishing and birdwatching. He has been unable to fulfil these ambitions for his retirement as a result of the ongoing symptoms of his ankle injury. He remains on painkillers and sleeping tablets to assist him sleeping.

102. While accepting that he had a complicated medical history, having had heart trouble in the past, (and other medical issues which are listed at para. 3 of the plaintiff’s replies to particulars dates 20/6) the plaintiff explained, under cross-examination, that he had been able to cope with all of those issues throughout his life, that he had held down a good job and had reared his family. He had made retirement plans despite his medical issues and was confident that they would not prevent him from pursuing those plans, were it not for the accident. He described being in ” reasonably good health ” at the time of the accident. I accept the plaintiff’s evidence in its entirety. I had the opportunity of observing the plaintiff during the course of his evidence and during the five days or so of the hearing. I am satisfied that the plaintiff is a completely honest and truthful witness, that his life has been severely affected as a result of the injuries sustained in the accident and that he continues to suffer from the effects of the injury and will do so for the foreseeable future.

103. The plaintiff explained that he had been advised that it would be necessary for him to undergo further surgical intervention as conservative methods of treatment (namely, the ankle joint injections which he has received from Mr. D’Souza) have not been successful. The plaintiff has been advised that he will require either a fusion of his ankle joint or an ankle joint replacement. He has been unable to decide which of these two options to take as he has been putting off what he has found to be a very difficult decision. These issues were addressed in further detail in Mr. D’Souza’s evidence.
(b) Dr. Aideen Henry
104. Dr. Henry gave evidence on behalf of the plaintiff. She prepared reports for the plaintiff’s solicitors on 31st August 2015, 24th September 2015, 15th August 2016 and 3rd September 2018. She also wrote to Mr. D’Souza on 15th August 2016, referring the plaintiff back for further review in light of the plaintiff’s ongoing difficulties. She sought Mr. D’Souza’s views on a possible fusion or ankle joint replacement for the plaintiff’s persistent symptoms. Dr. Henry, in her reports and in her evidence, described the plaintiff’s fracture as being a ” nasty fracture” which required open reduction and internal fixation. Following her review of the admission notes and the plaintiff’s records, she described the plaintiff’s ankle injuries as being ” a fracture of the posterior malleolus along with a rupture of the syndesmosis with talar shift and a fracture of the proximal fibula”. This type of fracture is known as a maisonneuve fracture (named after the French surgeon, Jules Germain FranÃ§ois Maisonneuve). The fracture involves several of the bones in the ankle as well as ligament rupture. When the plaintiff saw Dr. Henry in August 2015, he had deep pain in the outer aspect of his left ankle. He had pain on ascending and descending stairs and after a short walk. He had pain on trying to cycle. He had pain using the clutch of his car and was told that he may have arthritis in the joint. He was continuing to take painkillers on an ongoing basis. When Dr. Henry examined the plaintiff, she noted that he was walking with a slight limp. She also noted the surgical scars. On the lateral ankle there was a 6cm by 0.3cm surgical scar over the lateral malleolus. On the medial ankle, there were two 0.3cm circular scars. The range of motion testing showed that dorsiflexion was normal but that plantarflexion was reduced to 50% of normal. The plaintiff had tenderness all along the anterior and lateral joint line of the ankle joint. Dr. Henry opined that the plaintiff was continuing to suffer from ongoing pain and restricted movement from the fracture of his left ankle. She referred him for x-rays to establish which bones were fractured and to establish whether osteoarthritis was present.

105. In an addendum to her report dated 24th September, 2015, Dr. Henry outlined the details of the plaintiff’s fracture as noted earlier. She further stated that those details indicated that the ankle injury was ” quite severe and that the ankle joint was disrupted with a fracture” . She explained that the fracture was treated with internal fixation to realign the joint and to immobilise the fragments to enable healing to take place. She noted that there was no current evidence of osteoarthritis. Her belief was that because the ankle joint was disrupted by the accident and required internal fixation to realign it, the plaintiff was at an increased risk of osteoarthritis in the future.

106. Dr. Henry saw the plaintiff again on 15th August, 2016. She noted that at that point the plaintiff could walk up to 200 metres before the pain and the swelling in his ankle increased. The plaintiff’s complaints at that time were that he felt that his ankle was the same as before. However, the pain was more pervasive and was lateral with a constant ache. The pain was worse if he walked. He reported that he would get a very sharp pain when he used the clutch in his car. The plaintiff’s ankle was swollen and it felt hot at night and kept him awake with the pain. The plaintiff was no longer cycling because of the pain and also continued to have pain using the stairs. The plaintiff was on two to four painkillers a day at the time. On her examination of the plaintiff, she noted that the plaintiff walked with a limp. She noted that the scars had faded further so that the lateral 6cm scar was white and very faint by that stage. The medial scars were no longer visible. She further noted that the plaintiff’s range of movement in his left ankle had reduced further with reduced dorsiflexion and plantarflexion and the plaintiff had tenderness of the anterolateral joint line. Dr. Henry opined that the plaintiff was continuing to suffer from ongoing pain and restricted movement dating from the fracture of the posterior malleolus of his left ankle. As the plaintiff’s pain had increased and his movement had reduced, Dr. Henry felt that an opinion should be sought from the plaintiff’s foot surgeon, Mr. D’Souza, with a view to considering a possible ankle joint replacement or ankle joint fusion. She noted that while a joint fusion would restrict the movement of his ankle further and would lock the ankle joint, it would relieve him of pain. Dr. Henry then referred the plaintiff back to Mr. D’Souza in August, 2016.

107. Dr. Henry saw the plaintiff again on 3rd September, 2018. By that stage, the plaintiff had received a number of ankle joint injections from Mr. D’Souza, the first of which gave him some relief but the second made no difference. The plaintiff was still not cycling as his ankle was too sore. He could not walk for more than 300 metres and even then could only do so with the assistance of painkillers. On examination, Dr. Henry noted that the lateral scar was still visible. The plaintiff’s left ankle continued to swell and was sore every day. He explained that it was sore at rest and got worse when walking. The plaintiff was continuing to use a stick when walking on steps. His ankle would wake him up at night with the pain. He continued to take pain medication. On her examination, Dr. Henry noted that the plaintiff walks with a limp and had a flat footed gait. His movement was restricted as before, especially dorsiflexion. The plaintiff was tender over the anterolateral joint line and the lateral scar was unchanged from the last time. Dr. Henry’s opinion following her examination on that occasion was that the plaintiff continued to suffer from chronic pain and restricted movement from the fracture of his left ankle. She noted that the ankle had not responded to two injections so that it was likely that the plaintiff would need an ankle joint fusion in the future. A joint fusion would restrict his movement further but would reduce the pain and the plaintiff would also be left with a limp.

108. On cross-examination, Dr. Henry was asked about whether the plaintiff had pre-existing arthritis in the left ankle. She explained that the x-rays which she had seen from September 2015, did not show any arthritis. However, it was put to her that Mr. D’Souza’s report from December 2016, indicated that initial radiographs of the plaintiff’s left ankle (from August 2014) revealed osteophytic lipping over the anterior tibia and that it was most likely that the plaintiff had asymptomatic early evidence of arthritis in his left ankle. Dr. Henry had not seen those earlier x-rays and felt that the conclusion in relation to the presence of asymptomatic early evidence of arthritis was debatable in that osteophytes on their own did not necessarily indicate the presence of osteoarthritis. Aspects of Prof. Masterson’s reports were put to Dr. Henry but she confirmed that the evidence she had given represented what she had found on her examination of the plaintiff with particular reference to the restricted movement which she observed in the plaintiff’s left ankle. She confirmed that whenever she saw the plaintiff, he was continuing to complain of ongoing pain and that the plaintiff had a limp. Dr. Henry confirmed that in her view the plaintiff was an honest and accurate historian. I found Dr. Henry’s evidence convincing and persuasive.
(c) Mr. Lester D’Souza
109. Mr. D’Souza then gave evidence on behalf of the plaintiff. He provided two reports. The first was dated 8th December, 2016, following his examination of the plaintiff on 5th December, 2016. The plaintiff was under Mr. D’Souza’s care in University Hospital Limerick and in Croom Orthopaedic Hospital.

110. In his first report, he described the plaintiff’s injury to his left ankle and the surgical procedure to fix the fracture and subsequently to remove the screw and plate. At the request of Dr. Henry the plaintiff was referred back to Mr. D’Souza in September 2016. Mr. D’Souza arranged for the plaintiff to have a steroid injection of the ankle. When the plaintiff saw Mr. D’Souza on 5th December, 2016, he was complaining of constant aching and a swollen left ankle which was affecting the plaintiff’s activities in daily living. The plaintiff also had a hot feeling in his ankle at night. On examination of the plaintiff, Mr. D’Souza noted that there was mild swelling of the ankle with good dorsiflexion and plantarflexion and pain on extremes of movement. The tendons were in good working order with no distal neurovascular deficits. Mr. D’Souza commented on the radiographs dated 3rd August, 2014. They revealed a laterally subluxed talus with an increased medial capsular suggesting deltoid ligament injury. There was also high fibular and spiral fracture along with a 10% fracture of the posterior malleolus which was undisplaced. There was a large osteophyte in front of the distal tibia suggesting some degenerative changes in the ankle although the remainder of the ankle itself did not reveal any arthritis. Radiographs on 4th August, 2014 revealed a well reduced ankle. Radiographs on 21st August, 2014 revealed two syndesmotic screws across a three-hole lateral plate with reduced posterior malleolus. Radiographs of the left ankle in September 2016 revealed a normal ankle with evidence of very minimal osteoarthritis. A MRI scan of the left ankle dated 19th September, 2016 revealed degenerative change not only in the ankle but also in the inferior syndesmosis. Mr. D’Souza arranged for the plaintiff to have an injection into his left ankle in the near future. Mr. D’Souza explained that the fracture had healed very well but that the plaintiff had some symptoms suggestive of arthritis. Initial radiographs revealed osteophytic lipping over the anterior tibia but it was otherwise a normal looking joint. He explained that it was most likely that the plaintiff had asymptomatic early evidence of arthritis in his left ankle, sustained a traumatic injury to the ankle and by that stage had symptoms and signs of early arthritis. He recommended a course of intra-articular injections by way of treatment and felt that that should help to control his symptoms in the future.

111. However, in light of the plaintiff’s ongoing difficulties, he was seen again by Mr. D’Souza in December 2017. Mr. D’Souza reported on 5th January, 2018. At that stage, the plaintiff was complaining of ongoing pain in his left ankle and swelling. The pain existed at rest as well as on walking and standing. It was affecting the plaintiff’s lifestyle and he was unable to walk for any length of time or to cycle or run. He continued to have a difficulty coming down the stairs. On examination, Mr. D’Souza noted that the plaintiff had a puffy left ankle. Dorsiflexion was to ten degrees and plantarflexion was to forty degrees. Mr. D’Souza noted again the radiographs referred to in his earlier report. However, in addition, radiographs dated 19th December, 2017 revealed evidence of mild to moderate osteoarthritis predominately in the tibiotalar joint. Mr. D’Souza decided to arrange for another intra-articular injection of the left ankle. While noting that the fracture itself had healed very well, Mr. D’Souza observed that the plaintiff by that stage had symptoms suggestive of arthritis. The MRI scans of the left ankle from September 2016, revealed degenerative changes in the ankle and syndesmosis. Radiographs dated 30th September, 2016 revealed mild arthritis in the tibiotalar joint. The most up to date radiographs (from December 2017) revealed some advancement of osteoarthritis from a mild to moderate degree. There was sclerosis of the adjacent joint surfaces of the talus and tibia. Mr. D’Souza felt that the plaintiff would benefit from a repeat injection for relief. He explained that it was more likely that the plaintiff had asymptomatic early arthritis in the left ankle and then sustained a traumatic injury leading to symptoms suggestive of early arthritis. He felt that the intra-articular injury sustained at the time of the lateral subluxation of the talus, deltoid ligament injury and syndesmotic injury also contributed to the arthritis in the tibiotalar joint. He explained that while many patients could manage with intermittent intra-articular injections of steroid, with advancement the plaintiff may eventually require an ankle fusion or ankle joint replacement if he continued to have night pain and if his daily activities were significantly affected.

112. In his direct evidence, Mr. D’Souza referred to the development of the degenerative change in the plaintiff’s left ankle between September, 2016, and December, 2017. He noted progressive degeneration of the ankle joint. In terms of the options for the plaintiff, given his age, Mr. D’Souza stated that the plaintiff would require either a fusion of his ankle joint or an ankle joint replacement. Fusion would involve stiffening the joint so that it could not move and cause pain. However, one consequence of an ankle fusion could be that other joints could start wearing out because of the stiffness in the ankle. An ankle replacement would allow movement. On balance, Mr. D’Souza’s preference would be for an ankle joint replacement. This would remove all arthritic components. However, the downside would be that there is a failure rate of about 20%. In other words, 20 out of 100 ankle joint replacements fail within ten years. The plaintiff would require further pain medication. If the plaintiff did not take one of these options, the ankle would remain painful, he would experience pain in his ankle at night and would be unable to get a good nights sleep. Mr. D’Souza stated that the plaintiff would need to pursue one of these two options.

113. Mr. D’Souza was cross-examined in relation to aspects of Prof. Masterson’s report and some differences between their respective reports, particularly, in relation to the range of movement noted by each. There was not a great deal of difference between Mr. D’Souza and Prof. Masterson. However, Mr. D’Souza did not agree with Prof. Masterson’s view that the pain level, which the plaintiff would continue to suffer from, would be at a ” nuisance level” rather than being ” seriously disabling”. Mr. D’Souza stated that he was giving his views as a foot surgeon. Mr. D’Souza confirmed that the plaintiff’s normal activities have been significantly affected by his injuries. He confirmed that while there was pre-existing asymptomatic early evidence of arthritis, the nasty ankle injury sustained by the plaintiff had led to the development of the osteoarthritis. He described what he saw in the most recent x-rays of the plaintiff’s left ankle as being a ” dead ringer for arthritis “. Mr. D’Souza did not waiver from the views expressed in his reports. Further, he confirmed that he had tried conservative pain management but that that had not succeeded. He was not challenged on his view that the plaintiff required either a fusion or an ankle joint replacement. I accept Mr D’Souza’s evidence in full.
Findings of Fact on Quantum Issues
114. As I indicated earlier, I accept the plaintiff’s evidence in relation to his injuries, his ongoing symptoms and the effect they have had on his daily life. I found the plaintiff to be a truthful and honest witness who did not exaggerate the impact of the injuries upon him. I had the opportunity of observing the plaintiff during the course of the hearing. This confirmed my assessment of the veracity of the plaintiff’s evidence.

115. Having assessed the plaintiff’s evidence and the evidence of the medical witnesses referred to above, I make the following findings.

116. The plaintiff suffered a very serious and nasty fracture of his left ankle. The fracture is one known as a Maisonneuve fracture. It involved a fracture of a number of the bones in the plaintiff’s ankle (the posterior malleolus and the proximal fibula) as well as a rupture of the syndesmosis with talar shift. The plaintiff required a significant surgical operation to fix the bones and to repair the ligament damage with screws and a plate. Because of the intersection of the various bones and ligaments, I accept Mr. D’Souza’s description of the operation as being like putting a jigsaw together. The plaintiff experienced very significant pain at the time of the accident and subsequent to it. The plaintiff was in a cast for several months which was then replaced by a boot. The plaintiff was in hospital for about two weeks following the accident and was on constant pain relief. The plaintiff required further surgery to remove the screw and plate from his ankle on 29th October, 2014.

117. The plaintiff underwent ten to twelve sessions of physiotherapy on his ankle. He was on heavy pain medication and remains on pain medication to date. The plaintiff also continues to require medication to assist him sleeping due to the pain in his left ankle at night.

118. The plaintiff was on crutches for approximately four months following his operation. He then required the assistance of two walking sticks to walk for a further month or so and thereafter required the assistance of one stick to walk. The plaintiff still uses the walking stick from time to time.

119. The plaintiff’s home life was severely disrupted as a result of the accident. He required considerable assistance from his wife to assist him about his daily duties. The plaintiff had and continues to have difficulty ascending and descending stairs. The plaintiff’s sleeping arrangements were altered as a result of his inability to ascend and descend the stairs. It is the plaintiff’s intention to make permanent changes to his home to enable him to sleep at ground level. The plaintiff was very anxious to return to work and did return to work in November, 2014. His employer, the HSE, was able to facilitate the plaintiff’s return to work by allowing him to work on a sedentary basis. The plaintiff retired in May 2015. The plaintiff had very extensive and ambitious retirement plans which included foreign travel and mountain walking and cycling. He has been unable to pursue those plans. While the plaintiff had a complicated medical history prior to the accident, I am satisfied that the plaintiff was coping with his medical conditions and would have been able to pursue his plans for retirement were it not for the accident.

120. The plaintiff has ongoing problems with his left ankle. He continues to be in pain. He continues to have swelling on his left ankle. His ankle feels hot from time to time (including while he was in court). The plaintiff continues to have difficulty sleeping. Notwithstanding conservative measures in the form of intra-articular injections performed on two occasions by Mr. D’Souza in 2016 and 2018, the plaintiff’s symptoms have persisted. The injections would not have been a pleasant experience for the plaintiffs.

121. I accept the evidence of Mr. D’Souza that the osteophytic lipping over the anterior distal tibia seen on the x-rays at the time of the accident indicate that the plaintiff had asymptomatic early arthritis in the ankle. However, it was just that, asymptomatic. I accept Mr. D’Souza’s evidence that the traumatic injury sustained by the plaintiff brought on symptoms of early arthritis and subsequent scans and x-rays have revealed significant degenerative change in his left ankle and evidence of mild to moderate osteoarthritis predominantly in the tibiotalar joint. I am satisfied on the evidence that it is likely that these degenerative changes were caused as a result of the traumatic injury sustained by the plaintiff when he fractured his ankle in the fall off his bicycle in August 2014. I entirely accept Mr. D’Souza’s evidence in that regard.

122. I am satisfied that the conservative treatment given to the plaintiff in the form of the intraarticular injections into his left ankle have not resolved the plaintiff’s symptoms. I accept that the plaintiff has ongoing, significant and debilitating pain. I also accept that the plaintiff continues to experience swelling of his left ankle. These ongoing symptoms have continued to disrupt and effect the plaintiff’s daily life and activities. In this regard I accept the plaintiff’s evidence and that of Dr. Henry and Mr. D’Souza. While I have been provided with medical reports from Prof. Masterson on behalf of the Council, I have not had the benefit of hearing Prof. Masterson giving evidence or being cross examined. I do note however that Prof. Masterson describes the plaintiff’s injury as a ” nasty fracture to his left ankle with a rupture of the medial collateral ligament ” and a ” nasty injury”. I also note that Prof. Masterson observed in his first report that the plaintiff would remain at moderate risk of post-traumatic arthritis. I accept that that is what occurred. I do not accept Prof. Masterson’s evidence that the ongoing pain being suffered by the plaintiff is properly described as ” intermittent niggling discomfort ” or at a ” nuisance level “. I accept the evidence of the plaintiff and of Dr. Henry and Mr. D’Souza that it is of a much more significant nature and is disabling. While Prof. Masterson notes at the conclusion of his second report in October 2017 that it was merely a possibility rather than a probability that the plaintiff would develop arthritic change in the ankle in the future, I accept Mr. D’Souza’s evidence that arthritic change has occurred and that this was caused by the traumatic injury sustained by the plaintiff when he fell from his bicycle in August 2014.

123. I accept on the evidence that the plaintiff will require either a fusion of his left ankle or an ankle joint replacement. A fusion would result in a stiffening of the joint and would mean that the plaintiff would cease to experience pain. However, his joint will not move. That may create stress on other joints. I also accept the evidence of Dr. Henry that if the plaintiff undergoes a fusion, he will be left with a limp, will be unable to run or take quick steps and his gait will be permanently affected. I note Mr. D’Souza’s marginal preference for the plaintiff to undergo an ankle joint replacement. While this will remove the arthritic components from his ankle joint, it will require a significant further surgical intervention which itself will involve pain and discomfort for the plaintiff. I also note that there is a 20% chance of the joint replacement failing within ten years. Presumably if that happened it would require a further joint replacement. The plaintiff would also require pain medication in that event. There was no evidence to contradict the evidence of Mr. D’Souza that the plaintiff will require either a fusion of his left ankle or an ankle joint replacement. I also accept Mr. D’Souza’s evidence that if the plaintiff does not take one of these options, he will be left with ongoing pain and difficulty in sleeping at night.
Relevant legal principles on quantum
124. In light of my finding on liability, I must assess general damages in respect of the plaintiff’s pain and suffering to date and into the future. The plaintiff’s symptoms are ongoing and he will require further intervention whether by means of a fusion of his ankle or an ankle joint replacement. I must also take account of the fact that I have concluded that the degenerative disease now present in the plaintiff’s ankle joint was caused by the traumatic injury sustained by the plaintiff in the accident, the subject of these proceedings.

125. In McWhinney v. Cork City Council [2018] IEHC 472, I set out what I believed to be the correct approach to be taken in relation to the assessment of general damages to date and into the future. I refer in this context to para. 57 – 61 of that judgment.

126. First, I must bear in mind that the primary objective of an award of damages is, as best the court can do, to put the plaintiff back in the position he was in before he sustained the injuries in the accident for which I have found the Council liable. Recognising the imprecise and imperfect nature of that exercise, Irvine J. in the Court of Appeal in Nolan v. Wirenski [2016] IECA 56, [2016] 1 I.R. 461, stated that the true purpose of an award of damages is ” to provide reasonable compensation for the pain and suffering that the person has endured and will likely endure in the future”.

127. Second, recognising the vast range of injuries which a person may suffer as a result of an accident, Irvine J. stated in Nolan, in a passage with which I am in full agreement, as follows:-

” Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries .” (per Irvine J. at para. 33)
128. I acknowledge and agree with the further observations of Irvine J. in the Court of Appeal in Nolan, where she observed that Denham J. in the Supreme Court advised in M.N. v. S.M. [2005] IESC 17, [2005] 4 IR 461, that:-
“… damages can only be fair and just if they are proportionate not only to the injuries sustained by [the] plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. As [Denham J.] stated at para. 44, of her judgment, ‘there should be a rational relationship between awards of damages in personal injuries cases’. Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages, and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. … However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries to which I have earlier referred.”
129. Third, I have also taken into account and applied the guidance given by Irvine J. in the Court of Appeal in Shannon v. O’Sullivan [2016] IECA 93:-
“‘Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:

(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?

(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?

(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?

(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?

(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?

(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?

(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?

(ix) For how long was the plaintiff out of work?

(x) To what extent was their relationship with their family interfered with?

(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?”

130. I have also seen the recent judgment of Barton J. in Douglas v. Michael Guiney Limited [2019] IEHC 301, which was delivered after the case was heard. At paragraphs 78 and 79 of his judgment in that case, Barton J. set out the applicable legal principles to the assessment of damages. I completely agree with what Barton J. stated in those paragraphs. The principles outlined by the court in that case are consistent with the principles set out by the Supreme Court and the Court of Appeal in a series of decisions which Barton J. himself had recently reviewed in B.D. v. Minister for Health [2019] IEHC 173.
131. I have outlined earlier, the plaintiff’s evidence and the evidence of Dr. Henry and Mr. D’Souza concerning the nature of the injury sustained by the plaintiff, the hospitalisation and surgical intervention required, the ongoing pain and discomfort suffered by the plaintiff, the treatment administered to the plaintiff including physiotherapy, pain medication and intraarticular injections into his left ankle joint, the fact that the plaintiff required crutches and then two walking sticks, and now requires one walking stick from time to time, the changes with the plaintiff had to make to his living and sleeping arrangements at home and the severe disruption to the plaintiff’s retirement plans. I have also outlined the full extent in the very serious fracture sustained by the plaintiff and the ongoing symptoms which the plaintiff is experiencing. It is also extremely significant in this context that the plaintiff will require either a fusion of his left ankle (with the consequences which that procedure will give such as a permanent limp and altered gait) or an ankle joint replacement (with all that would go with such a procedure and the risk that it may fail). Finally, in this context, I have taken account of the development of arthritis in the plaintiff’s left ankle joint. While I have accepted that Mr. D’Souza’s evidence is more than likely that the plaintiff had a symptomatic early arthritis in his left ankle, the traumatic injury sustained by him has caused arthritis to develop in his left ankle. As of December 2017, x-rays disclosed mild to moderate osteoarthritis in his ankle joint.

132. Fourth, I am required by s. 22 of the Civil Liability and Courts Act, 2004 (as amended), to have regard to the (revised) Book of Quantum (2016). In particular, I have had regard to the information provided at Section 5F in respect of ankle soft tissue injuries and fractures. It will be recalled that the plaintiff suffered a very serious fracture of the post malleolus with a rupture of the syndesmosis with talar shift and a fracture of the proximal fibula. There were, therefore, soft tissue and fracture injuries. I am satisfied that the injuries of soft tissue (being the rupture of the syndesmosis) and the fracture fell within the ” severe and permanent ” categories set out in s. 5F of the Book of Quantum. However, in my view, the full extent of the plaintiff’s injuries and the ongoing nature of those injuries together with the certain requirement for further intervention in the form of a fusion or ankle joint replacement is not fully reflected in the injuries described in s. 5F
Conclusion on Quantum
133. In conclusion, having regard to the findings of fact which I have made on the issues relevant to quantum and the legal principles which I have set out, I consider that a fair, reasonable and proportionate sum by way of general damages to compensate the plaintiff for his injuries to date is €95,000. Having regard to the fact that the plaintiff has ongoing problems and will require further intervention in the form of a fusion or ankle joint replacement, I consider that a fair, reasonable and proportionate sum by way of general damages to compensate the plaintiff for the pain and suffering he will experience into the future is €45,000. The total sum for general damages will be €140,000, before deducting 25% in respect of the contributory negligence I have found against the plaintiff.
Overall Conclusions
134. In summary, therefore, I have found the Council liable to the plaintiff for the injuries the plaintiff sustained on 3rd August, 2014, when he fell from his bicycle while cycling over a concrete surround or dome or ramp at a cattle grid on a public road in Clonmoney South, Shannon, Co. Clare. I have found that the state of the concrete surround at the cattle grid amounted to a danger or hazard for persons such as the plaintiff using the road. I have concluded that the Council is liable in negligence in its capacity as the road authority. I have concluded that the state of the concrete surround at the cattle grid was caused by misfeasance rather than nonfeasance in the initial construction or installation of the concrete surround at the cattle grid by the Council’s predecessor in title, Shannon Development, who transferred the road including the cattle grid and concrete surround to the Council in 2004. There were defects in the construction and installation of the cattle grid. Those defects were present at the time the Council designated the road as a public road in 2011. I have also found that the condition of the concrete surround at the cattle grid amounted to a public nuisance which was created by the Council’s predecessors in title and continued or adopted by the Council. I have not found it necessary to express any concluded view on the possible liability of the Council under the Occupiers’ Liability Act 1995, or under the Roads Act 1993 (as amended). Difficult legal issues arise in relation to those heads of claim which it is not necessary to resolve in this case.

135. I have concluded that the plaintiff is guilty of contributory negligence which I have assessed at 25%.

136. I have assessed general damages for pain and suffering to date at €95,000 and general damages for pain and suffering into the future of €45,000. The total, therefore, damages for pain and suffering will be €140,000 before the appropriate deduction for the contributory negligence of the plaintiff. Special damages have been agreed at €11,206.50. This does not include any loss of earnings as there was no such claim. A deduction of 25% must be taken from this sum also.
Award
137. In conclusion, therefore, taking account of the 25% for the plaintiff’s contributory negligence, I award general damages (to include damages to date and into the future) of €105,000. I award special damages in the sum of €8,404.87.

138. Accordingly, there will be a decree in favour of the plaintiff in the sum of €113,404.87.

139. Finally, I thank counsel and solicitors for both sides for their considerable assistance in this case, which included the provision of numerous cases and authorities at short notice, for which I am very grateful.

Mullan v. Forrester.

[1921] 2 IR 417

PIM J. , having stated the facts as above set out, proceeded:
The statement of claim prays for damages against the defendant, first, for the defendant’s negligence in keeping and maintaining the wall; and, secondly, “for that the defendant, being possessed of a wall adjoining a public highway known as Shankhill Road, suffered the said wall to be in a defective and dangerous condition, and so as to be dangerous to persons lawfully passing along the said highway, in consequence of which the said wall fell upon the said William Mullan while he was lawfully passing along the said highway, and killed him.”
This second count is a count in nuisance. The case was tried before Mr. Justice Dodd and a special jury of the City of Belfast on the 31st March and 1st April of this present year. The learned Judge left to the jury a number of questions, all sounding in negligence. He was asked by Mr. Serjeant Hanna, who appeared for the plaintiff, to leave questions to the jury couched in nuisance, and the learned Serjeant submitted five questions for the consideration of the Judge. The questions seem to me to have been somewhat unhappy in their wording, and may have puzzled Mr. Justice Dodd; but, in the result, the Judge refused to put any questions in nuisance to the jury. We are now asked to say that in refusing to put these questions the learned Judge was wrong, and that the case was never properly tried.
On the questions put by the learned Judge, the jury found for the defendant, but the Judge, evidently having some doubt as to whether he was right in not putting questions in nuisance, got the jury to assess damages in case it should turn out that he was wrong in what he had done.
So far as the Judge’s notes are concerned, it would appear to me that the great mass of evidence offered went to the question, not of negligence, but of nuisance. I cannot myself find any fault with the findings of the jury in respect of the question of negligence left to them. There was really no evidence that the defendant had been guilty of any negligence. The wall was an old one, but there is no Suggestion from the beginning to the end of the case that, qua the particular kind of wall, it was in a defective or improper condition. The allegations made throughout by the various witnesses were, not that the wall was out of repair or defective in any way, but that a wall of its length, height, and thickness when left standing alone and without the protection afforded by the other walls and by the roof, was dangerous in itself, that every storm would tend to render it more insecure, and that in the end it must come down.
Mr. W. J. Gilliland, architect, who made the plans and sketches that were put in, said as follows (I quote from the learned Judge’s note):”The wall was unprotected and unsupported from winds at the back. The point of greatest tension is where the wall reaches the footway. The two factors are the weight of the wall and the adhesion of the mortar. A wind velocity of 391/2 miles. At 411/2 miles a fracture begins at the point of tension and destroys the mortar. This factor weakened. There was a wind of 54 miles’ velocity a short time before this. This loosened the mortar. The wall had then no support but its own weight. The wall was then unsafe. A man of any ordinary intelligence would have seen that the wall was dangerous.”
Mr. Frank Hummel, Professor of Engineering in the Queen’s University Belfast, gave evidence as follows (I still quote from the note):”The thickness of the wall was 14 inches from front to rear scientific. Data wall, 14 inches thick, 15 feet 6 inches high, with no interim support in the way of buttresses. I calculated the wind pressure and wind velocity: 551/2 miles’ velocity, 9.8 lbs. per square foot; 411/2 miles would start the bricks from mortar at point of tension. A wall should be only 5 feet high if it is to be kept the length of 79 feet.” To me: “If the roof, though bad, and the back wall had remained, they would have broken the force of the wind. There was not as matters stood anything to prevent the full force of the wind striking the front of the wall.” I said, “You suggested that the two weak parts of the building supported each other like two drunken menwhen one went the other fell?”Witness: “Yes, something like that.”
Mr. Shaw, a building inspector, was examined on behalf of the defendant (I again quote the note):”The wall seemed to be a sound strong wall. Nobody could have thought it would fall.”Mr. Pinkerton, the Assistant City Surveyor, said in cross-examination:”It would be impossible to say if the removal of the roof
would render the wall less capable of resisting the wind. I have not the necessary data. As the wall was originally constructed it was perfectly safe.” Mr. Chamberlain, Chief Assistant Engineer of the Belfast Harbour Commissioners, gave evidence of the force of the wind on the day. He said that it varied from about 30 miles an hour to at one moment 71 miles an hour. The average would have been from 50 to 52 miles an hour. He further said that he thought the force of the wind in or about the time the wall fell would have been about 61 miles an hour.
No evidence of any kind was given to prove that the storm was an exceptional one, or one that does not occur every year in the latitude in which we live, and which must from time to time be expected.
The case was argued by Mr. M’Gonigal, on behalf of the defendant, on the basis that the wall was dangerous as it stood; but he contended that the defendant was quite unaware that there was anything unsafe in the condition of the wall, and that it was necessary, before he could be found guilty of nuisance, that he should have the knowledge that it was dangerous. He contended that, inasmuch as the jury had, in reply to the questions 1 and 2 left to them by the Judge, found that the defendant did not know that the wall was dangerous, and ought not to have known that the wall was dangerous, there would be no use now in ordering a new trial, because the jury had already found that the defendant was ignorant, and therefore, according to Mr. M’Gonigal, innocent in the matter. This raises a very nice point, with which I shall have to deal, but, first of all, I desire to say a few words on the question of nuisance.
It is by no means clear in law how far a person having property beside a highway is liable for injury that may occur by reason of the fall of anything off his property which causes injury to a person passing on the highway. We were referred to an American case in the State of New York, according to which the law in America seems almost to go the length of holding that an owner of property beside the highway was an insurer of the life and limb of those who were lawfully walking on the highway. In the last edition of Clarke and Lindsell on Torts, which only appeared at the beginning of the present year, it is suggestedthat the case of Tarry v. Ashton (1) and Firth v. The Bowling Iron Co. (2) go that far. The learned author says, summing up the effect of these cases as he understood them: “If a brick or a stone falls out of the wall of a building, or a tile or chimney-pot from the roof, the owner of the premises will probably be responsible for any damage that may be caused thereby, irrespective of any question of negligence . . . . , the reason being that he who maintains bricks, tiles, or other bodies in a position from which they may fall of their own weight maintains them at his peril.”This statement of the law has never yet been enunciated by the Courts, but it seems to me implicit in certain of the decisions in the older cases.
In Lambert v. Bessey (3) it is laid down “if a man doeth a lawful act, yet if injury to another arises from it, the man who does the act shall be answerable”; and in Rylands v. Fletcher (4)Lord Cranworth used the following language:”In considering whether a defendant is liable to a plaintiff for damage which the plaintiff may have sustained, the question in general is, not whether the defendant has acted with due care and caution, but whether his acts have occasioned the damage. This is all well explained in the old case of Lambert v. Bessey (3), reported by Sir Thomas Raymond, and the doctrine is founded on good sense, for when one person in managing his own affairs causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer. He is bound sic uti suo ut non laedet alienum. This is the principle of law applicable to cases like the present; and I do not discover in the authorities which were cited anything conflicting with it.”
It would seem, therefore, from these cases that it could be contended, with possible success, that, even were the wall not a nuisance in the legal sense of the word, the defendant would be liable at Common Law. We have not to decide that point, and therefore it is not necessary to go further into it.
Whether the wall in question did in fact constitute a Common Law nuisance or not is solely a matter for a jury, and although I think that the evidence given during the case, as reported by the . B. Div.
learned Judge, is altogether in favour of the view that it became a nuisance from the time when the roof and the side and back walls were removed, still the parties are entitled, if they so desire, to have the decision of a jury on the matter; and without their consent I will not take upon myself to give any decision. I may add that I see no distinction in law between erecting a wall which is a nuisance and doing an act which causes the erected wall to become a nuisance.
But it is necessary to consider whether knowledge on the part of the defendant was essential to finding him guilty of nuisance. My brother Gordon, during the course of the case, referred to a statement in Russell on Crimes, which shows that in the opinion of the learned author of that book knowledge was not necessary.
The point came up in a very clear way before the Court of Queen’s Bench in England in a criminal case of The Queen v.Stephens (1). The note of the case is very short, and puts the point succinctly. It is as follows:”The owner of works carried on for his profit by his agents is liable to be indicted for a public nuisance caused by acts of his workmen in carrying on the works, although done by them without his knowledge, and contrary to his general orders.”
In that case the defendant, Stephens, had been indicted for obstructing the navigation of a public riverthe Tivyby casting or throwing, or causing to be cast or thrown, slates, stones, and rubbish in and upon the bed and soil of the river, and thereby raising and producing great mounds projecting and extending along the stream and water-way of the river. The evidence was that the defendant was an old man, and did not know what his workmen were doing, and that he had given general directions against depositing the rubbish in the river in the way in which it was done. Mr. Justice Blackburn told the jury that the defendant would be liable for the acts of his workmen though done without the defendant’s knowledge, and against his orders. Mellor J., in giving the judgment of the Court, said:”It is quite true that this, in point of form, is a proceeding of a criminal nature, but in substance I think it is in the nature of a civil proceeding, and I can see no reason why a different rule should prevail with regard to such an act as is charged in this indictment between proceedings which are civil and proceedings which are criminal. I think there may be nuisances of such a character that the rule I am applying here would not be applicable to them, but here it is perfectly clear that the only reason for proceeding criminally is that the nuisance, instead of being merely a nuisance affecting an individual, or one or two individuals, affects the public at large, and a private individual, without receiving some special injury, could not have maintained an action. Then, if the contention of those who say the direction is wrong is to prevail, the public would have great difficulty in getting redress. The object of this indictment is to prevent the recurrence of the nuisance. The prosecutor cannot proceed by action, but must proceed by indictment, and if this were strictly a criminal proceeding, the prosecution would be met with the objection that there was no mens rea; that the indictment charged the defendant with a criminal offence when in reality there was no proof that the defendant knew of the act, or that he himself gave orders to his servants to do the particular acts he was charged with; still, at the same time, it is perfectly clear that the defendant finds the capital and carries on the business which causes the nuisance, and it is carried on for his benefit. . . . Under these circumstances, the defendant must necessarily give to his servants or agents all the authority that is incident to the carrying on of the business. It is not because he had at some time or other given directions that it should be carried on so as not to allow the refuse from the works to fall into the river, and desired his servants to provide some other place for depositing it, that when it has fallen into the river, and has become prejudicial to the public, he can say he is not liable on an indictment for nuisance caused by the acts of his servants. It appears to me that all that was necessary to prove is that the nuisance was caused in the carrying on of the works of the quarry. That being so, my brother Blackburn’s direction to the jury was quite right.” And again:”Inasmuch as the object of the indictment is, not to punish the defendant, but really to prevent the nuisance from being continued, I think that the evidence which would support a civil action would be sufficient to support an indictment.”This case shows perfectly clearly that in the opinion of a Court composed of Mr. Justice Mellor, Mr. Justice Shee, and Mr. Justice Blackburn, knowledge is not necessary in civil actions, and also in certain criminal actions, which the learned Judge held were in their nature civil proceedings.
This case was followed by a case of Humphreys v. Cousins (1).In that case the plaintiff and the defendant were, respectively, owners of adjoining houses. An old drain, which commenced on the defendant’s premises, and thence passed under and received the drainage of several other houses, turned back under the defendant’s house, and thence under the cellar of the plaintiff’s house, and ultimately into a public sewer. The part of the return drain which passed through the defendant’s premises being defective, the sewage escaped, and flowing into the plaintiff’s cellar, did damage. The defendant was unaware of the existence of the return drain, and consequently of its want of repair. It was held that, notwithstanding his ignorance, the defendant was liable. “Moreover,” said Mr. Justice Denman in the course of, his judgment, “this right of every occupier of land is an incident of possession, and does not depend on the acts or omissions of other people. It is independent of what they may know or not know of the state of their own property, and independent of the care or want of care which they may take of it”; and later on, speaking of the duty of the defendant to guard his sewage from flowing into the lands of his neighbours, the learned Judge said:”That duty, like his correlative right, is independent of negligence on the part of the defendant, and independent of his knowledge or ignorance of the existence of the drain.”
It was suggested that a case of Silverton v. Marriott (2) points the other way. I think not. In that case the nuisance was not due to any act of the defendant. It was due solely to the act of third parties, who upset a wall belonging to him. This seems common-sense. The law, however, may be that, even in such a case, the defendant is liable to anyone injured by a nuisance created on property over which he had control; but until it is so held I see no reason to differ from the decision.

The point still remains, was this wall a nuisance; that is, was it likely to fall if a heavy wind blew against it, and, therefore, was it a danger in itself? If it was, I again quote Mr. Justice Blackburn in Rylands v. Fletcher (1): “The owner must keep it at his peril; and if he does not do so, he is, prima facie, answerable for all the damage which is the natural consequence of its escape.”
It may be argued that the principle of Rylands v. Fletcher (1)does not extend to the escape of solid bodies. That would seem to me to be wholly illogical in view of the decision in the case of Rylands v. Fletcher (1). The falling of a wall out of the property on which it is on to another property is certainly an escape of that wall. This point, which is the essential point in the case, was never tried, and I have no hesitation in saying that without it the case was not tried at all. I also am of opinion that the findings of the jury that the defendant did not know that the wall was dangerous, and ought not to have known that it was dangerous, do not try the case. I think, therefore, that unless the parties agree to our deciding the matter of nuisance, and allowing the damages to stand if we find against the defendant, we are coerced to send the case back to be tried by a jury in the City of Belfast, when the proper questions can be left for their decision.
The application must be granted with costs, the costs of the first trial to abide the result of the second trial

GORDON J. :
In so far as the plaintiffs’ claims in these actions were based on negligence, the jury have found in favour of the defendant. In so far as it was based upon the wall which fell being a public nuisance, no question was put to the jury, though the learned Judge was requested by the plaintiffs’ counsel to have such question or questions put. He did ask the jury whether the defendant knew, or ought to have known, that the wall was dangerous, and the jury answered both these questions in the negative; and so far as I can see, the learned Judge was of opinion that this was, on the facts of this case, a sufficient answer to any claim based upon public nuisance. No specific question was put as to whether the defendant, by having a proper examination of the wall made, could have ascertained that it was dangerous. The jury did find that he was not negligent in not having the premises inspected from time to time with a view to the safety of the public, or in not reasonably anticipating that the wall might be thrown down by the wind.
Now, a nuisance is something different from, and not to be confounded with, either trespass or negligence, though the wrong is in some respects analagous to trespass, and the two may coincide. If a person erects alongside a public highway upon his own land some structure, or makes some excavation which, as erected or made, is dangerous to persons lawfully using the highway, that is a public nuisance; and if any person lawfully using the highway is injured thereby, he has his cause of action. But I have not found or been referred to any cases of that kind in which any question as to whether defendant knew, or ought to have known, of the dangerous nature or condition of the structure erected, or excavation made by him, has been submitted to a jury or relied on as a defence to an action.
In Harold v. Watney (1), where a child was injured by the defendant’s fence, abutting on the highway, falling on it, the child having stood wholly or partly on it, and the jury having found that the fence was very defective, no question as to defendant’s knowledge of the condition of the fence was put to the jury. The Court of Appeal held that the defective fence being a nuisance, and the cause of the injuries to the plaintiff, the defendant was liable. Even in criminal cases on indictment for a public nuisance, in Russell on Crimes, p. 1838, it is stated that as a general rule the grievance lies in the inconvenience in fact caused, and not in the intent or knowledge of the person responsible: see R. v. Moore (2) and R. v. Carlisle (3). Of course, if the fact of the structure having become a nuisance was due to the act of some third party, or to the happening of something which no one could be expected to foresee, knowledge or the absence of knowledge would, I think, be material in either a civil or criminal proceeding.
There are many cases founded on negligence where what the defendant knew or ought to have known is an important factor. Things done to a public highway, which would otherwise constitute a public nuisance, are often authorized by statute, as, for instance, gas and water companies laying pipes and mains in the highway, railway companies carrying bridges under or over public highways, or in some cases laying their rails on public highways at level crossings. By reason of the statutory powers given, these are not public nuisances, but those who exercise these powers must do so strictly in accordance with their statutory powers, and they must take due care that the works they have so constructed are kept in proper order and repair; and injury caused to persons lawfully using the highway by their failure to do so renders them liable to an action for negligence, as in Oliver v.North-Eastern Railway Co. (1), and other cases. A house properly erected alongside a highway is not a public nuisance, nor are the ordinary appurtenances attached to such house. But if the owner or occupier allows the house to become so dilapidated and ruinous as to be a danger to the public, it becomes a nuisance, and the question of what the owner or occupier (as the case may be) knew or ought to have known as to its condition then becomes important, as it has only become a nuisance by reason of his neglect to keep it in repair.
Two of the cases which have been so much discussed during the argument, in my opinion, throw a good deal of light on this question. In Tarry v. Ashton (2) a lamp which was affixed to a house and was projecting over the highway fell on the plaintiff and injured her, and a jury awarded damages, and judgment was entered for her. The lamp fell because it was out of repair. The claim was based on negligence, and also on the ground that the lamp was dangerous to the plaintiff lawfully using the highway. The jury found that there was no negligence on the part of the defendant personally, but that there was negligence on the part of a man he employed to repair the lamp, and that it was out of repair, but not to the knowledge of the defendant. On a motion to set this verdict aside, Blackburn J. said: “It appears that the defendant came into occupation of a house with a lamp projecting from it over the public thoroughfare, which would do no harm so long as it was in good repair, but would become dangerous if allowed to get out of repair. It is, therefore, not a nuisance of itself, but if the defendant knowingly maintained it in a dangerous state, he would then become liable for a nuisance.” He then goes on to say that the defendant was aware that the lamp was getting out of repair. It was his duty to make it reasonably safe; the contractor he employed failed to do so, and the defendant was liable for the consequences.
Now, this decision is based upon the fact, or the fact assumed by the learned Judge, that the lamp as originally erected was not a nuisance, but that the defendant was liable for the neglect of his duty to keep it in proper repair. But it leaves untouched the question of what would have been the defendant’s liability if he had himself erected the lamp, and left it when erected in such an insecure condition that a week or a month afterwards, owing to that insecurity, it was blown down by an ordinary gale of wind or even by a severe storm, and injured a person lawfully passing along the highway. In the same way, in Palmer v. Buteman (1) the eavegutter which fell was held not to be a nuisance when erected, and the question was, was its fall due to the defendant’s negligence in not keeping it in proper repair? If the facts in the present case were the same, or the same in substance as in these cases, the defendant, on the findings of the jury as to negligence, would be entitled to retain the verdict and judgment entered for him. But what are the facts in this case? The wall which fell and killed these people who were lawfully using the highway upon which it abutted was originally one of the walls of a building having four sides and roofed over, the roof resting on this wall. In this condition, as part of this structure, I am willing to assume that it was not dangerous to the public, and was not a public nuisance. In fact, it had been built by the Corporation as part of an agreement with the defendant for widening the roadway, and had in its capacity as part of the structure withstood the assaults of wind and weather for more than twenty years. But in September, 1920, a complete change was made, for which the defendant must be held responsible. The other three walls of the building and the roof were removed, and this wall, over 70 feet in length, 15 feet 6 inches in height over the level of the footpath, and only 14 inches in thickness, was left to perform what was a new and altered function, namely, to be a boundary wall along a public highway, without the shelter and support of the other portions of the building of which it originally formed part, and its inability to perform that new function was shown by the fact that within two or three months after the change it was blown down by what nautical men would describe as a whole gale of wind or a storm, severe, no doubt, but not such as any witness that was produced ventured to say was so abnormal or extraordinary that it might not be contemplated as likely to occur in the locality. On the evidence for the defendant the velocity of the wind that day varied from 30 to 71 miles an hour, and the wall was blown down when it was about 61 miles an hour. The premises had been derelict for ten years, and no investigation as to the stability of this wall appears to have been made by the defendant or by anyone on his behalf. In my opinion, this was not the case of a structure which when it was erected was perfectly safe and not a nuisance, and then by gradual decay became insecure. It is the case of a change deliberately made in the use of the wall and the conditions under which and the purposes for which it was erected, and the defendant can be in no better position than if he had placed it there in its then condition in September, 1920; and the question is, was it then so dangerous to the public using the highway as to be a nuisance? If it was, in my opinion the defendant is liable for the injury it caused, whether he did not know or ought not to have known of its dangerous condition. This question was not put to the jury. There was strong evidence given for the plaintiffs to show that after the change the wall was dangerous in conditions of weather which might be reasonably anticipated to occur, and in point of fact it fell in a storm which no one alleged was either abnormal or extraordinary. There was no direct ruling of the Judge as to whether there was any evidence on the part of the defendant to show that the wall was not a danger to the public after the alterations made in September, 1920, though I gather from his report that he was inclined to think there was not. My own opinion is that there was not, and that the plaintiffs’ evidence shows that it was then dangerous in conditions of weather which might reasonably be anticipated to occur, and I would be prepared to enter judgment for the plaintiffs on this ground; but my brother Pim thinks there should be a new trial, and I do not dissent from him as to this. Besides, Mr. Andrews claims that the damages found are inadequate. Mr. M’Gonigal stated in the course of his argument that if the Court were of opinion that the verdict for the defendant could not stand, he would prefer to have judgment entered for the plaintiffs for the amounts found by the jury rather than have the actions sent for a new trial; and Mr. Andrews for the plaintiffspart of whose motion was based on the inadequacy of the damageswas willing to accept the amounts found by the jury if judgment was entered for his clients. In the view that we take we cannot do this unless the parties consent; and, in any event, without their consent we would not do anything which might prejudice or embarrass either of the parties on an appeal. Of course, if there is a new trial, the amount of damages as well as the question of liability would have to be determined on that trial.

MOORE J. :
In this case I have the misfortune to differ from my brethren. The wall around which the issues in controversy in this action centre was built by the Corporation of Belfast for the defendant’s father in 1897. It ran approximately east and west, bounding the Shankhill Road, in the City of Belfast, for a length of something like 71 feet. It originally contained two windows and four doors; the doors were built up; the windows were boarded. The wall was somewhere about 15 feet in height; it was built of brick; it was 141/2 inches thick.
On the 3rd December, 1920, under stress of a storm of wind blowing from the south against the exposed back of the wall, which stood athwart its direction, the wall collapsed all along its base on the highway, and fell over across it, killing William Mullan (husband of one of the plaintiffs), who was lawfully passing upon the street.
The action was brought by his widow on behalf of herself and their five children under Lord Campbell’s Act. The right of action under this statute is given when death results from (a) a wrongful act, or (b) negligence on part of another. The plaintiff by her statement of claim pleaded as the cause of action, firstly, the negligence of the defendant in keeping and maintaining the wall in a dangerous and defective condition; alternatively, the wrongful act of the defendant in suffering the wall to be in a condition dangerous to persons lawfully passing along the highway. These are distinct causes of action. The learned Judge left the jury certain questions essential in an action for negligence, and they found that the defendant neither knew, nor ought to have known, that the wall was dangerous, and was not negligent in his dealings with it, nor in failing to anticipate that it might be thrown down by the wind. The plaintiff’s counsel asked to have a question put as to whether or not the wall was a nuisance, but the Judge thought it unnecessary, and in the questions which were left to the jury the existence of a nuisance is assumed in the use of the word “dangerous” as applied to the wall. I therefore assume in the plaintiff’s favour that the jury have found that the wall was a nuisance in that it was a danger to the passers-by on the highway; but they have also found that the defendant had no knowledge of the danger, and the question for us to determine is whether or not the absence of knowledge reasonably to be expected will absolve the defendant from liability for the nuisance, in the absence of a finding that he is its creator.
I have consulted the authorities to which, in the course of very interesting and able arguments on each side, we have been referred. I do not propose to set out in detail the results of my examination, but merely to state my general conclusions.
In cases of nuisance of this sort, the cause of action for the wrongful act complained of is either against the defendant as the originator, author, or creator of a danger to the persons using the highwayand he is primarily liable as suchor against the defendant as the owner or occupier of dangerous premises for wrongfully suffering them to continue in that condition. The defendant, of course, may also be the creator of the nuisance alternatively with the occupier of the premises: see Sir F. Pollock, Torts, 8th ed., pp. 431-2. In the present case the defendant by the statement of claim is sued as the occupier. It was his predecessor in title who had the wall built by the Corporation, and the defendant is charged that being dangerous he wrongfully suffered it to remain in that state on premises in his own occupation. The wall was not originally unsafe, and the plaintiff (as will appear from the questions which Serjeant Hanna wished to have left to the jury) contends that it only became so in May or June, 1920. If the findings of the jury on the other question are to be taken in one view as favourable to the defendant, they clear him of having done any act to cause the danger; and if the questions themselves do not involve this, then there is no finding of the jury that the defendant did by his act cause the danger, because no question on this was submitted to them: see Coupland v. Hardingham (1), approved by the Court in Barnes v. Ward (2).
It has been stated at the Bar that no case has been found in which in an action arising out of nuisance the issue of the defendant’s knowledge, whether real or imputed, has been left to the jury. Certainly this is so on the criminal side of the Court in an indictment for nuisance, where the traverser is in possession of the premises, even though, as between himself and his landlord, he is not bound to repair. This is the old case of Regina v.Watson (3); and I find in Saunders on Indictments that the form of indictment for a nuisance of this nature does not allege any guilty knowledge in the traverser, but merely that he wrongfully and unlawfully suffered the danger to continue. On the civil side, the plaintiff, as in the present caseand also in Tarry v. Ashton (4) and Palmer v. Bateman (5)generally relies on the cause of action in negligence, and there are in consequence not so many reported cases in nuisance. But the general rule would appear to be to exclude the issue of the defendant’s knowledge in all cases where the creation or introduction of the matter or thing subsequently causing the injury is in itself dangerous or likely to become so. Such are the cases where a defendant excavates near a highway, or erects a dangerous fence, or leaves an open area uufenced: Barnes v. Ward (1). The rule equally applies to dangerous erections made by the defendant, or knowingly suffered by him to be continued in their dangerous state, even where he is not himself the occupier: Todd v.Flight (2).
The reason for this rule I take to be clear from the judgments in Rylands v. Fletcher (3), affirmed and approved in the House of Lords, laying down the fundamental principle that where a man brings on his land or creates there a possible source of danger (or, what is the same thing, knowingly permits it to continue there), he is liable for all the consequences which may result from his so doing. It will be noted that Blackburn J. was one of the judges in Rylands v. Fletcher (3). But it seems to me that there may be some difference in cases where a man brings on his land in the ordinary course of dealing with it something not per se dangerous or likely to be so, and his successor, without knowledge, merely suffers it to continue. For example, as was suggested in the argument, it is not per se a nuisance for a man to plant a sapling on his own land adjacent to a highway, which is not dangerous, and may never become so, or may only become so eighty or a hundred years afterwards. In that case it would occur to me that it would be consistent with justice if the tree through gradual but concealed decay became dangerous to passers-by on the highway, that the owner, probably a successor in occupation, before being liable should be shown to have permitted it to continue as such a danger either with personal knowledge or imputed knowledge.
The question of how far knowledge of the existence of the danger is a material issue was raised by Lord Blackburn, then Blackburn J., in Tarry v. Ashton (4), and this case requires our careful consideration. The action was brought for negligence connected with the fall of a heavy lamp overhanging the street, and also (as in the present case) for injury received from the lamp as constituting a nuisance. It appears from the case that the lamp had been erected not by the defendant, but before his occupation. The jury found that the injury was occasioned, not by personal negligence of the defendant, but by the negligence of Chappell,”the defendant’s servant,” who had been employed by him to repair the lamp. It was admitted at the trial that Chappell was a competent and proper person to employ. During the argument on a new trial motion Reg. v. Watson (1) was referred to, and Blackburn J. asked, “Was the lamp in such a state as to be a nuisance; if so, was it to the knowledge of the defendant?” Barnes v. Ward (2) and Hudley v. Taylor (3) were cited, and Blackburn observed that in those cases the defendants had knowledge. Lush and Quain JJ. held that there was an absolute duty on a person having a lamp projecting over a highway to maintain it in a safe state of repair, “so that the public should not (as Quain J. puts it) be prejudiced by his neglect.” The judgment of Blackburn is of great importance in the present action. He points out that a lamp projecting over a public thoroughfare it not a nuisance in itself, “but if the defendant knowingly maintained it in a dangerous state,” then the liability accrues. If there were a latent defecta state of facts going directly to the issue of knowledge or non-knowledge I doubt if the occupier would be liable. If he had knowledge, he would be liable. There was a duty on him from time to time to investigate the state of the lamp. “If he did investigate, and there was a latent defect which he could not discover, I doubt whether he would be liable.”
Now, in the present case, there is a finding of the jury to the effect that the defendant was justified in not investigating, and also in not anticipating the danger. All these statements in the judgment of Lord Blackburn go to establish the view that where the defendant is sued as occupier of the land on which a nuisance exists and not as its original creator, if the subject-matter was not a nuisance originally, he ought not to be made liable for it unless he had knowledge and was in default.

The judgment of Blackburn in Tarry v. Ashton (1) was considered and approved in Silverton v. Marriott (2) in the Queen’s Bench Division by Field and Wills JJ. The plaintiff in that case was injured by a nuisance in the nature of an obstruction to a highway on the defendant’s lands. The nuisance was occasioned by the act of third parties, who pulled down a wall of defendant’s on July 26th, 1887. The debris of the wall lay across the highway. The defendant became aware of this on July 27th. He did not remove the debris, and left 6 inches to 8 inches of the wall standing. The plaintiff was injured in driving over the debris on August 6th following. During the argument counsel for the defendant asked did there arise a new duty on the defendant at the moment he became aware of the defective state of the wall which required him to prevent injury to the public by reason of the wrongful acts of the trespassers. In giving judgment, Field J. says: “If the accident had occurred before defendant was aware of what had happened, I do not think he would be liable.” He then quotes the judgment of Blackburn, and says it is the correct principle.
Blackburn’s judgment is further approved in Palmer v.Bateman (3), an Irish authority. It was an action for negligence, as the several judgments of the Court make clear. The jury found for the defendant on the issues of negligence, and subsequently, as the injuries had occurred by the fall from a house of portion of a gutter on the highway, a motion for a new trial was made on the ground that apart from negligence the injury was caused by a nuisance in the sense in which Serjeant Hanna desired the question, in the present action, to be submitted to the jury. The Court held on the facts that there was no cause of action in nuisance pleaded, and therefore the issue as to nuisance was not open at the trial. But the argument in support of the new trial motion, negligence having been expressly negatived, proceeded on the ground that a nuisance in law existed, and that therefore the plaintiff was entitled to damages. For this reason, the observations of the Court in defining the liabilities of the occupier in nuisance are not mere obiter dicta, although the Judges held the action as brought was only for negligence.

Wright J. quotes the judgments of Blackburn in Tarry v.Ashton (1), to which I have already referred, and adopts them. He adds: “We have not been referred to any case in England or Ireland where an innocent occupier of a house has been held liable under circumstances such as existed in the present case.”That means, where an occupier is by the verdict of the jury discharged from actual or imputed knowledge of the danger, there is no case in which he is held liable in either nuisance or in negligence. He proceeds: “It would be contrary to principle and to common-sense if a person who had come into possession of a house knowing nothing of this defect . . . should be held liable for an accident happening in this way.” And it will be remembered that, as the jury had discharged the defendant on the issue of negligence, the only way in which it was sought to make him liable was in respect of nuisance. The foregoing is a decision of our own Court approving of the law as laid down by Blackburn J., and, in the absence of authority contra, I think it incumbent on us to follow it. I do so.
I come, therefore, to the following conclusions:That prima facie the occupier of land on which a nuisance exists is liable for that nuisance. But while this is the general rule, it is evident that there are exceptions to it. The following are some of the elements to be taken into consideration when seeking for the exception, but I do not judicially determine that they must all co-exist in the same case. (a) The nuisance at the time of its introduction or creation was not then a danger, nor likely to be so. (b) The defendant is sued as occupier merely, and not as the original author or creator of the nuisance, who is, as I have pointed out, primarily liable. (c) The dangerous nature of the matter or thing is caused by latent defects, or by the acts of third parties. I read “latent defect” as equivalent to all defects of any nature whatsoever which, by the exercise of reasonable care and precaution, the defendant could not have discovered, or perhaps I should say that such defects are necessarily on the same plane as latent defects. I find it to be the law that at any rate where these elements co-exist, the plaintiff must succeed in showing that the defendant had knowledge, actual or imputed, of the existence of the danger. This, I think, is the only conclusion to be drawn from the judgment of Lord Blackburn in Tarry v. Ashton (1), subsequently approved in the other cases to which I have referred.
In the present case there is no finding by the jury of the cause which brought about the fall of the wall. It may have been internal decay, a latent defect, or it may have been by the act of the defendant in removing portions of the buildings behind. The plaintiff did not ask that any such question should be put. In the absence of a finding I cannot speculate on liability. It then appears that the wall when erected was not per se a nuisance; that the defendant is sued as the occupier; that there is no finding that he by himself or his servants created the danger; that there is an express finding that acting without negligence he did not know of it. I think he is in the position of “the innocent householder”instanced by Wright J. I think it lay on the plaintiff to show either that the acts of the defendant caused the nuisance or, if they did not do so, then that he had knowledge of the danger and continued it. The plaintiff did not attempt to do the first and wholly failed in the second. The plaintiff cannot now get a new trial in respect of an issue which he did not require to have sent to the jury at the hearing of the action.
I think the learned Judge on the foregoing facts was right in entering judgment for the defendant. The jury found against the plaintiff in negligence, and the Judge in effect non-suited her in nuisance. I think the judgment should stand, and that the present motion should be refused with costs.

Radford v Wexford Corporation

Circuit Court

5 May 1954

[1955] 89 I.L.T.R 184
Judge D. Fawsitt

Wexford, February 19th, May 5th, 1954

Judge Fawsitt found the following facts:—The facts as adduced in evidence were in brief as follows:—1. The plaintiffs are house-holders and ratepayers in the town of Wexlord and each of them occupies premises in the immediate vicinity of Nos. 86 and 90 in South Main Street, Wexford.

a) The plaintiff, John Radford, is a victualler and butcher and carries on and has carried on for approximately 25 years the retail business of selling meat for human consumption in his shop at No. 86 in the said street. In his said premises he exposes for sale to his customers fresh meat, including careasses of freshly-slaughtered beasts, fresh cuts of well-hung meat and fresh offals for human consumption.
b) The plaintiff, Elizabeth Malone, is a fish merchant and carries on business at No. 77 in the said street in the course of which business she exposes to the open air fish for retail sale to her customers, *184
c) The plaintiff, John Pettit, is a grocer and dairyman and carries on business at No. 75 in the said street, wherein, for the purposes of his said business, he exposes to the open air sides of bacon, bacon rashers, sausages, fruit and butter. In the back portion of his said shop he conducts a dairy wherein fresh milk is stored for sale to his customers and milk cans and utensils are washed.
d) The plaintiff, John Purcell, is a licensed publican and grocer and carries on these businesses at No. 79 in the said street.
e) The plaintiff, Patrick O’Connor, carries on the business of licensed grocer and publican at Nos. 92 and 94 in the said street. He is also ground landlord of the shop and residence at No. 90 in the said street.
f) The plaintiff, Ellen Quigley, carries on the business of electrician in the ground floor portion of the premises, No. 90, in the said street. She occupies and uses the upstairs storeys of the said premises as a residence and lets portion of it in the summer months to visitors to Wexford.
All these plaintiffs (Mrs. Malone, the retail fish merchant, alone excepted) gave evidence in Court. Additional witnesses called by them were a surveyor (Mr. Robert Murphy); Mrs. Margaret Murphy, the owner of the premises No. 86 in the said street, who carries on in the top storeys of the same premises the business of lodginghouse-keeper; Mr. Martin Murphy, a school teacher, who is landlord of the said premises No. 90 in the said street and who resides over Mr. Patrick O’Connor’s licensed premises in the said street, and the Medical Officer for Health for the town of Wexford (Dr. Peter Synnott) who attended under sub-poena.

The premises nearest in proximity to the site of the proposed public lavatory are Nos. 86 and 90, and across the street, Nos. 75 and 77 No. 86 is at the corner of South Main Street and Mann’s Lane. It is a high threestorey building with gable windows overlooking the site of the proposed public lavatory. The South Main Street fronting the site of the proposed public lavatory is a thoroughfare 28 feet 6 inches wide. The premises No. 75 at the opposite side is situate at the corner of Oyster Lane and the said street. It is a two-storey building, the front windows of which look on to the said street but not directly across to the site of the proposed public lavatory. The premises No. 77 is also on the opposite side of the said street it is a single storey building with a dormer window looking on to the said street, but not directly on to the site of the proposed public lavatory.

The site of the proposed public lavatory is on the east side of the said street and on the south side of Mann’s Lane, which is but 7 feet wide. The lavatory, when erected, will occupy a frontage along the said street of 33 feet and along Mann’s Lane a frontage of 18 feet. It will be a single storey ground floor building and will have neither door nor window openings looking on to the said street. It will be cut off from Mann’s Lane by a concrete wall, 4 feet 6 inches high, without openings or windows looking on to the said lane. It is intended, when erected, to be a public convenience for men and women. Before the issue of the Civil Bill, work on the foundations for the proposed public lavatory had begun, but was discontinued by the defendant Corporation’s contractor after the service of the Civil Bill on them, pending the decision of the Court on the plaintiff’s claims.

The objections to the erection of the proposed public lavatory were, in brief, as follows:—

I. The site is not a proper situation. The Main Street, South as well as North, is the principal business artery of the town of Wexford. There are other more proper situations and less dangerous sites for a public lavatory in the immediate neighbourhood and equally convenient for the public.
II. The proximity of the proposed public lavatory, after erection, to existing business houses will depreciate the value of such properties.
III. The proximity of the proposed public lavatory after erection to business houses selling meats, fish, poultry, milk, butter and other food and dairy products will cause loss of trade to the proprietors of all such businesses.
IV. A public lavatory will occasion the collection of smells, flies, etc., in the vicinity, which will contaminate foodstuffs and occasion illnesses to residents in the immediate vicinity. In past summer seasons Wexford town has suffered from a shortage in fresh water supplies. Should this happen after the proposed public lavatory is erected and open for use, its use will still more endanger the health of local residents.
V. After its erection and following upon its user as a lavatory by the public, it will become a centre where unemployed persons will foregather to the annoyance of residents in the vicinity and passers-by.
*185

Counsel for the plaintiffs conceded that Wexford town is badly in need of additional public lavatories and agreed that there is now no such convenience at the south end of the town for use by the public.

For the defendant Corporation, it was submitted that they are the Urban Authority charged by Parliament with responsibility for the health of the inhabitants of the town of Wexford and that in discharge of their duty as such Health Authority they proposed to crect a number of public lavatories in the town. In particular they relied on the power conferred upon them as Urban Authority by section 49 of the Public Health Act, 1878 (41 & 42 Vict. ch. 52), which is as follows:—“Any Urban Authority may, if they think fit, provide and maintain, in proper and convenient situations, urinals, water-closets, earth closets, privies and ashpits and other similar convemences for public accommodation.” It was proved in evidence on behalf of the defendant Corporation that the site in question had been selected on the recommendation of the responsible officers of the Corporation after careful inquiry and due deliberation, as a proper and convenient situation for a public lavatory that the Corporation had received and considered a petition from and received deputations of ratepayers, who were opposed to the situation and who had suggested alternative sites, and that the Corporation had caused plans to be prepared for the erection of a public lavatory on the proposed site in South Main Street and that these plans had been approved by the Local Government Department, that following upon such approval, tenders for the erection of the lavatory, in accordance with the approved plans and specifications, had been invited by public advertisements, and that one tender had been accepted by the Corporation and a contract for its construction had been duly entered into.

Evidence for the Corporation also was directed to proving, inter alia, that the provision and maintenance of a public lavatory in the selected situation would occasion no danger to the health or business of residents in the locality; that a caretaker would be employed full-time to supervise the lavatory and the user of it by the public; that Wexford town now has two sources of fresh-water supply, a storage reservoir of approximately 40 million gallons of water and a newly installed pumping system comprising two separate pumps capable of discharging 12,900 gallons and 17,200 gallons respectively of water per hour.

Having found the facts as above set forth Judge Fawsitt in his judgment proceeded as follows:—

“The structure with which this proceeding is concerned has not yet been erected; accordingly the claim for an injunction is based on nuisance and damage that has not yet arisen or occurred and is merely feared to arise and occur in the future. Hence this a quia timet action. It was recognised at common law that a man was entitled to be protected against unlawful disturbance of his rights and a plaintiff might maintain a suit quia timet to secure himself against future apprehended loss. Relief of the nature of that obtainable in a quia timet suit is afforded by the granting of an injunction. This relief is not readily given by the Courts; to obtain it the plaintiff must be able to show imminent danger of a substantial kind for which damages will be no adequate redress.

In A.-G. (Boswell) v. Rathmines and Pembroke Hospital Board [1904] I. R. 161, the Vice-Chancellor said (inter alia): “In [ quia timet actions] it must be shown that the complainants entertain a reasonable well-grounded apprehension that the work which the defendants are carrying out, would, if allowed to proceed, result in substantial damage to the complainants. A mere fanciful objection to it will not be a sufficient ground for obtaining relief, but it must be shown that the work is, or would be, a sub-stantial injury to the person or property of the complainants.” In the Court of Appeal in the same case, Fitzgibbon, L.J., said (inter alia). “It is a quia timet action … to sustain the injunction the law requires proof by the plaintiff of a well-founded apprehension of injury—proof of actual and real danger—a strong probability almost amounting to moral certainty that if the hospital be established, it will be an actionable nuisance. A sentiment of danger and dislike however natural and justifiable—certainty that the hospital will be disagreeable or inconvenient—proof that it will abridge a man’s pleasure or make him anxious—the inability of the Court to say that no danger will arise—none of these, even accompanied by depreciation of property, will discharge the burden of proof which rests on the plaintiff, or can justify a precautionary injunction, restraining an owner’s use of his own land upon the ground of apprehended nuisance to his neighbours. These propositions, quoted from cases of authority, define the issue. The decision depends upon the facts proved in the particular case, with due regard to the opinions of experts, so far as they are founded upon facts; but, with due regard, also, to the decisions of other Courts upon similar *186 evidence in other cases.” Holmes, L.J., in that same case said (inter alia) also: “In considering this question we must be careful not to accept as a measure of danger, the fears of the timid and unreasonable … It would, indeed, be unfortunate if unsubstantial objections were to prevent the establishment of hospitals of this kind. … I have not thing it necessary to analyse the author-authorities referred to during the argument, although I have carefully considered them The difficulty is not in ascertaining the law but in applying the law to a particular state of facts, and this is not a matter in which much assistance can be gained from the result of other actions.”

The law as laid down by the English Courts concerning quia timet suits is identical with the law as expounded in the case of the Rathmines and Pembroke Hospital Board, cited by me above. In Litchfield-Speer v. Queen Anne’s Gate Syndicate (No. 2) [1919] 1 Ch. 407, Laurence J., said, inter alia (p. 413): “… In all cases of apprehended nuisance the authorities show that if the plaintiff proves that he will certainly sustain substantial damage by what the defendant is about to do, the Court will restrain the defendant from doing the act, and will not wait until the plaintiff has sustained the damage. If, however, the act which it is sought to restrain is itself lawful and does not per se constitute a nuisance, the Court will not in general restrain it, although the consequence of the act may be that nuisance will result.”

In Pethick v. Plymouth Corporation (1894) 58 J. P. 476, it was laid down that where an Urban authority acting under section 39 of the Public Health Act, 1875 (which is in identical terms to section 49 of our Public Health Act, 1878), select a site as a proper and convenient situation for a urinal, then, in the absence of mala fides, and assuming that no case of nuisance is made out, the onus lies on the persons objecting to that particular site to show that it is not a proper and convenient situation, and, for this purpose, evidence that there are other situations more proper and convenient is irrelevant. In that case it was argued for the plaintiff that “the erection will almost necessarily be a nuisance and apart from any nuisance by smell, crowds, or otherwise, the mere fact of putting up a urinal in front of a man’s drawing room window is a matter of serious damage to him, and is, therefore, a private nuisance. It cannot possibly be held a bona fide exercise of the defendant’s power. … This place is clearly not proper and convenient.” The Court rejected this argument and declined to grant the injunction asked for by the plaintiff, Chitty, J., observing (inter alia):“… Unquestionably a public convenience such as this near a dwellinghouse is something to be disliked. Though some degree of inconvenience or apprehended inconvenience has been shown, at least the plaintiff has not discharged the burden which lies on him of showing that the site selected is not a proper and convenient site within the meaning of the section. …” There is appended to the report of this case in 58 J. P. at page 473 a note on the action: Mason v. Wallassy Local Board taken from The Times newspaper of December 9th, 1876, in which Jessel, M.R., is reported as having said (inter alia):“… The English were much too squeainish about these matters and that there were few towns on the continent which were not better provided with accommodation of this soft than London. … In order to succeed the plaintiff must show that the local board were exceeding their statutory powers or were actuated by some improper inotive. … The words ‘proper and conveinent’ were words, the import of which was sometimes called ‘relative’, in other words, they did not mean absolutely proper and absolutely convenient, but proper and convenient with regard to the requirements of the public…. In conferring these powers on local boards the legislature assumed that there would be a bona fide exercise of them and it was not for the Court to take the decisions of these questions upon itself and paralyse the actions of the defendants in the meantime unless there was evidence of improper motives. … The evidence on the part of the Board was this erection was imperatively required and was of a character to satisfy public decency.”

In every reported case where an injunction was granted there was nuisance by obstruction, smell or improper behaviour. In Walter v. Selfe (1851) 20 L. J. Ch. 433, a niusance was defined as “an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and simple notions among the English people.” From what I have said and quoted above, it follows that to obtain from our Courts an injunction of the kind asked for in this Civil Bill proceeding, a nuisance as a fact must be made out in order to succeed, and that the mere placing of a convenience of this kind near to or adjoining a dwellinghouse is not sufficient. Where injunctions have been granted to restrain the erection of this class of con *187 venience, there has always been a finding of fact that the structures as erected and used were really legal nuisances to the plaintiff.

The questions which I have to ask myself and answer here are:
(1) Have the plaintiffs shown a strong case of probability that the apprehended mischiefs will in fact arise?
(2) Will these mischiefs or any one of them be irreparable?
If the answers be in the affirmative, the Court will grant the relief sought; if in the negative, this Court is precluded from granting such relief. The lavatory here is not only not in use but is not yet even erected on the selected site. What is feared by the plaintiffs is the arising in the future of smells, the collecting of flies, the loss of trade, the depreciation of the value of property, the congregating of idlers all in the vicinity of the lavatory if and when erected in the particular situation. It has not been shown to my satisfaction as judge that evil-smelling vapours will arise, or disease-bearing insects will accumulate and propagate in the lavatory or its vicinity following upon its erection and user by the public. It has not been proved that financial loss to neighbouring merchants will result from spreading vapours and insects, or that these merchants will suffer loss of customers by reason of the erection of the lavatory, or that user of it by the public after its erection will prevent these merchants from carrying on as gainfully their respective businesses in the future as in the past. In any event, it is not sufficient that the vapours, if and when they arise and the insects if and when they swarm, should do harm to a particular trade in the locality, if they would not prejudicially affect any ordinary trade or the ordinary enjoyment of life. No expert was produced by the plaintiffs to the Court to say that property values in the immediate vicinity of the proposed lavatory will materially depreciate by reason of the situation and user of the lavatory. As for the feared congregating of idlers in the vicinity of the lavatory, there exists an efficient police force in the town of Wexford charged with the duty of protecting the lives and properties of the citizens and of preventing obstruction of town footpaths and thoroughfares, including those of the South Main Street. I am not satisfied that the ordinary comfort and convenience of persons occupying the upstairs portions of the several adjoining dwellinghouses will be interfered with by reason of such occupants being able (if they are curiously observant) to see persons enter and leave the lavatory premises through gable, dormer or other windows of such houses. I have no doubt that the Medical Officer of Health and the other witnesses who told me that they do not like the idea of a public lavatory in the proposed situation were honest in that testimony and do genuinely dislike not only the idea but the reality of a public convenience of this kind erected flush with the public footpath in the main thoroughfare of their ancient town, do not like the idea and probably will never lose that dislike. There are certain features of the plan for this lavatory which I do not like apart altogether from its situation … but all my dislikes are personal and not judicial and are of no avail in a Court of law. A Court is not motivated by personal likes and dislikes. But what I may think on such matters is of no consequence, since as judge I can but decide on facts established on oath before me and apply the law as I know it to those facts. On the evidence before the Court as juror I must answer in the negative the two questions which I have postulated in this judgment. In my considered view as judge this action fails and I must refuse to grant the injunctions, or any of them sought by the plaintiffs in their Civil Bill. This decision will not prevent the plaintiffs or some one or more of them, or other aggrieved person or persons, from applying to this or the High Court for protection of their or his rights if, after the lavatory building has been erected and when it is in use by the public, it should, by reason of smells, insects or other matters, be a nuisance and occasion irreparable injury to the person or property of such persons or person.

Patrick Smyth v Industrial Gases (I.F.S.) Limited and Fitzpatrick

Supreme Court.

15 May 1947

[1950] 84 I.L.T.R 1
Maguire C.J., Murnaghan, Geoghegan, O’Byrne JJ.

Maguire, C.J.:

This action was brought claiming damages for injuries sustained by the plaintiff owing to the negligence of the defendants. In the statement of claim there was an alternative claim based on nuisance. It was tried before Dixon, J., who, at the close of the plaintiff’s case, acceding to an application made by counsel for both defendants, withdrew the case from the jury and entered judgment for the defendants.

The circumstances out of which the action arose may be stated shortly as follows:—A carter, whom it is agreed we should treat as the servant of both defendants, was engaged in carrying a quantity of a substance known as “lime putty” from the premises of the defendant company to a dump under the control of the Corporation of Dublin. He was using for the purpose a horse-drawn vehicle described as a box-cart. In the journey to the dump the cart was driven through the public streets. As it went along portions of the lime putty leaked or dropped, in some way which is not made clear on the evidence, from the cart. A trail was left of the substance almost over the entire route followed by the cart. A number of children, of whom the plaintiff was one, came upon portions of the lime putty on their way from school. They regarded it as something in the nature of snow, picked it up in handfulls, and threw it at each other, in play. Some of the substance thrown by one of his companions got into the plaintiff’s eye and injured it.

The direction asked for at the close of the evidence was based on the submission that there was no evidence to go to the jury that the lime putty was dangerous in itself, and secondly, that the injury to the plaintiff was caused by the intervention of a third party.

The learned trial Judge held that the evidence was not sufficient to satisfy the jury, if it was a matter for them, which he thought it was, and that it did not satisfy him, as a matter of law, that the substance known as lime putty belongs to the class of dangerous objects. He also held that on the evidence the damage was caused by the intervention of a third party and that, as a result, the damage was too remote from the original act of the defendants to make them liable.

Many authorities have been cited to the Court. Applying to this case the principle which seems to underlie them it appears to me that if, in the opinion of the Court, there was evidence on which the jury might hold that the defendants ought to have foreseen that the lime putty dropped from the cart might come into the hands of young children and might be thrown by them so that some of it might get into somebody’s eyes, the question of fact arising on the evidence ought to be left to the jury. This would, in my view, be in accordance with the case of Cooke v. Midland Great Western Railway of Ireland ([1909] A. C. 229). At page 234, Lord Macnaghten said:—

“The question for the consideration of the jury may, I think, be stated thus: Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge *5 which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and playing with the turntable, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident as that which occurred?

“This, I think, was substantially the question which the Lord Chief Justice presented to the jury. It seems to me to be in accordance with the view of the Court of Queen’s Bench in Lynch v. Nurdin [1841] 1 Q. B. 29, and the opinion expressed by Romer and Stirling, L.JJ., in McDowall v. Great Western Railway ([1903] 2 K. B. 331.).”

This view is also in accordance with the Irish case of Sullivan v. Creed [1904] 2 I. R. 317, 37 I. L. T. R. 131, 254 and with the cases of Hewson and Gatty (1886) 2 T. L. R.; Harold v. Watney [1898] 2 Q. B. 320; Latham v. Johnston & Nephew, [1913] 1 K. B. 398 (distinguishable in its facts from this case). Glasgow Corporation v. Taylor [1922] 1 A. C. 44; Wray v. Essex County Council 155 T. L. R. 494.

It is submitted, however, that there was not sufficient evidence to justify the question being left to the jury because the evidence did not show that lime putty was dangerous in itself. It may well be that lime putty, normally, in the hands of adults, would not cause injury or be dangerous, although there are passages in the evidence which, if accepted by the jury, would lead them to hold that it was dangerous. It is clear, however, that if it gets into a person’s eyes it will cause burning, described by the occulist who gave evidence in the case as ‘lime burn.’ Danger is a relative term; it may arise from the nature of the thing itself, or it may arise from a combination of the nature of a thing with other factors such as the natural propensity of children. The turn-table in Cooke and the M.G.W. Rly. (supra) could hardly be said to be dangerous if used by adults, but was, in the view of the Court, dangerous as a plaything in the hands of children. It has been sought to draw an analogy between lime putty and sand or stones in the hands of children. If the view of Lord Atkinson in Glasgow Corporation v. Taylor ([1922] 1 A. C. 44, at p. 52) be accepted, a simple way of distinguishing between such things is available. He says: “There is, in my view, no resemblance between this case and those cases where mischievous boys sustain injury by interfering with or misusing natural objects, such as trees in public parks up which they may be tempted to climb, or water, ornamental or other, into which they may accidentally fall, or be tempted deliberately to enter. The appearance of such objects as these is well known and unmistakable. There is nothing deceptive or misleading about them. They cannot well be mistaken for things other than, or different from, what they really are. Whereas, if the averments in the condescendences be true, there was in this belladonna plant, with the deadly berries which it bore, something in the nature of a trap. The berries looked alluring and as harmless as grapes or cherries.”

If the jury accepted the view that lime putty when scattered on the road-way looked like snow, it would be reasonable to hold that it had the attribute of attractiveness for children which the berries had in that case, while its injurious effect upon the human eye would constitute its concealed peril. Without committing myself to accept the line of distinction drawn between harmful and harmless things by Lord Atkinson in the passage cited, I am of opinion that in this case the jury might well hold that a commonsense person in the position of the defendants ought reasonably to contemplate that if this substance, in the condition in which it was when it fell upon the roadway, got into the hands of children, that it was not improbable that they would throw it at each other, and if they threw it at each other that it might get into somebody’s eyes. Therefore, in my view there was sufficient evidence given on behalf of the plaintiff to justify the question of negligence and, possibly, nuisance, being left to the jury.

As regards the submission that the defendants are not liable because the act of the boy who threw the lime putty should be treated as a novus actus interveniens, in my view the question as to whether an intervention of a third party should be regarded as breaking the chain of causation depends on whether, in the circumstances of the case, the defendants ought reasonably to have foreseen that such an intervention might take place. In view of the natural propensity of children to throw such things as snow at each other, the jury might reasonably take the view that in this case the intervention of the boy who threw the lime putty at the plaintiff was something which a reasonably prudent person ought to anticipate. Putting it another way, the person guilty of the original negligence cannot escape liability by showing that there was intervention by a third person, if it be shown that he ought reasonably to have foreseen that there might be such intervention, and to have foreseen, if such intervention occurred, that injury would result.

For these reasons I am of opinion that the case should not have been withdrawn from *6 the jury. The verdict entered should, accordingly, be set aside and a new trial ordered.

Cunningham v. MacGrath Bros.

[1964] IR 210
O’DALAIGH C.J. :
25 July

I have read the judgment which is about to be delivered by Mr. Justice Kingsmill Moore and I agree with it.

LAVERY J. :
I also agree.

KINGSMILL MOORE J. :
The plaintiff, a chief buyer in Brown Thomas Ltd., left the premises for her luncheon by the side door which leads into Duke Lane and was walking up Duke Lane towards Duke Street when she was hit by a falling ladder very shortly before she reached the end of the lane. Neither she nor any other witness saw the ladder fall and the reason for its fall is conjectural. There was a very strong gusty wind which might have caused a ladder if propped insecurely against the wall to topple over, or it may have been jolted by some passer-by who disappeared rapidly to avoid complications. No other reason for its fall was suggested, nor, in the view that I take, is the exact reason material.
The ladder belonged to MacGrath Brothers, the defendants, who have been sued in negligence and nuisance. The jury made no finding on the issue of negligence, but found the defendants guilty of creating a public nuisance causing injury to the plaintiff and assessed damages. The defendants now appeal, alleging that the findings of the jury were inconsistent, that there was no evidence to support the finding of nuisance, that any such finding was against the weight of evidence, and that the trial Judge should have withdrawn the case from the jury. A further ground of appeal was that the damages were excessive, but this ground was not argued.
Substantially, the defence was that the fall of the ladder was not due to the act or default of the defendants but was due to the action of some person or persons unknown, who removed the ladder from a safe position in Duke Street and put it an unsafe position in Duke Lane. an action which could not reasonably have been foreseen by the defendants.
The accident took place on the 1st January, 1959. Some six months before Brown Thomas Ltd. had employed the defendants to instal two electrically controlled awning blinds over their display windows in Duke Street. One of these blinds was not working properly and the defendants were asked to come and put it right. Shortly before 10 a.m. on the day of the accident the defendants’ workmen arrived, bringing with them two double ladders about eight feet long. These double ladders are a familiar type, each consisting of two single ladders joined together at their tops by a metal fitting which allows the bases of the single ladders to be separated so that the combined ladder, when viewed from the side, is like the capital letter A without the cross stroke. The fitting holds the combination in this position. The distance between the feet of the side members of each single ladder is over two feet, the distance between the bases of the respective single ladders, when open, is some four feet. Thus, when opened and set up, the double ladder has a high degree of stability, lateral and longitudinal, which would preclude it being overturned by even a violent wind or by any light jostle from a passer-by. If placed on a busy side-walk a person not expecting such an obstacle might, in the throng, inadvertently bump into it or catch his toe on one of its legs but the danger of it being knocked over, if it was properly set up, would be very slight.
The workmen set up the two double ladders along the wall of the premises of Brown Thomas Ltd., which abuts on Duke Street, in such a way that the “A”s were parallel to the wall and the inside foot of each of the single ladders was touching the wall. The ladders were then fully open and secure. Between the corner formed by the intersection of Duke Lane and Duke Street and the entrance into the premises of Brown Thomas Ltd. there are four small display windows. Oneladder was opposite the window nearest the corner, the other opposite a window further down. So placed the ladders were an obstruction and inconvenience to passers-by on the foot-path and prevented proper inspection of the articles on display in the windows. The workmen then mounted the ladders and examined the blind. They discovered that one reason why it was not working properly was that portion of the edge of the plaster recess, into which the blind fitted when drawn up, was somewhat proud and needed to be chipped back. In addition some adjustments to the mechanism of the blind were required which necessitated the removal of the blind to the workshop. Mr. MacGrath, the proprietor of the defendant firm, came on the scene some time after 10 a.m. and was shown the difficulty. He got into touch with a Mr. Murphy, a foreman carpenter in the employment of Brown Thomas Ltd. The accounts of what happened next vary widely. I will give first the account as told by Mr. MacGrath and corroborated by his workman, McLoughlin. Mr. MacGrath, Mr. McLoughlin and Mr. Murphy went across to the opposite side of the street to get a general view. Then they came back to the Brown Thomas side and Mr. McLoughlin went up the ladder to point out in detail the work which was necessary to be done. Mr. Murphy said he would have it done immediately and Mr. MacGrath said that if it were done straight away he would leave the ladders for the use of whoever would do it. McLoughlin says that another employee of Brown Thomas Ltd. was present at the time and was shown by Mr. Murphy the work to be done. It was now about 11 a.m. and this man said he would get on to the job as soon as he had finished his tea. Apparently there is a short break for tea at 11 o’clock.
Mr. MacGrath then telephoned for a vehicle to take the blind away, and left. His workmen dismantled the blind and loaded it on the vehicle. They moved the ladders slightly so that the feet of the two double ladders were touching each other and left at about 11.30. When they left the work of chipping had not yet started. They did not return until 4 p.m. when they brought the repaired blind. On arrival they found the two ladders lying on their sides in Duke Lane and the work of chipping the plaster completed. They refitted the blind and took away the ladders.
Mr. Murphy’s evidence was confused and contradictory. He admitted that he was told by someone that a small job of chipping was required and that it had been done under his instructions by a man named Hollingsworth, who had died since. He denied that there was any conversation about the ladder and said he did not know what ladder was used by Hollingsworth. There were, he said, plenty of suitable ladders available in the stores of Brown Thomas Ltd. What is without doubt is that the ladders were left by Mr. MacGrath’s men at about 11.30 in a position where they were a very considerable obstruction to persons using the footpath and that the men did not return for them till about 4 p.m. In the meantime somebody had moved at least one of the ladders and had left it in a dangerous position near the corner of Duke Lane. Who moved it we do not know. It may have been Hollingsworth when he had finished his job of chipping which, it was agreed, should not take more than an hour. It may have been a neighbouring frontager who objected to the pavement of Duke Street being obstructed. It may have been any of the staff of Brown Thomas Ltd. who wished to allow easy inspection of the goods in their display windows. It might even have been a well-meaning passer-by.
Mr. MacGrath, whose evidence impresses me as being fair and candid to an unusual degree, agreed that in the ordinary way he would never leave ladders unattended, that it would be unsafe to leave ladders unattended in a public place, and that he would not do it. His explanation for his action on the day in question was that he left the ladders to facilitate Mr. Murphy and that they were in his charge. That he tacitly assumed Mr. Murphy would take over control of the ladders and see that they were in a safe position need not be questioned. It seems to me extremely probable. But he does not say that he made any express arrangement with Mr. Murphy to look after the ladders and Mr. Murphy, if he is to be believed, certainly did not accept any responsibility. A jury would be entitled to take the view that there was no express arrangement with Mr. Murphy to look after the ladders and that if there was any implied arrangement it was limited to the period when the ladders were being used to enable the work of chipping to be carried out.
Now, speaking generally, any obstruction of the public highway is a public nuisance, prosecutable on indictment and a tort sounding in damages if any member of the public should suffer particular injury thereby. But the owner of property abutting on the highway may, for proper purposes connected with his property, cause such an obstruction, provided that neither in quantum nor duration does it extend beyond what is necessary; and this exception would extend to cover those doing the necessary work. Thus, although the ladders when in position obstructed the footpath, so long as their presence was necessary for chipping the plaster or fixing the blind they did not constitute a public nuisance: but as soon as the chipping was done and there was no need for the ladders to remain in position they did become a public nuisance and if anyone had been injured by them in the position in which they had been left by the defendants’ workmen the defendants would clearly have been liable. But it is contended for the defendants that there was no direct causal connection between the leaving of the ladders in a safe position and the injury to the plaintiff. The accident was due to the intervention of an unknown person who removed at least one of the ladders from a position of relative safety to a position of danger. There was a “novus actus interveniens.”
It is not every “novus actus” which breaks the chain of causation. “If what is relied upon as novus actus interveniensis the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale (1) the accident can be said to be ‘the natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated . . . or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act . . .
It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act”: Hayes v. Harwood (2), per Greer L.J., at p. 156.
A case which bears some resemblance to the present was Clark v. Chambers (3). The defendant had unlawfully placed a spiked barrier so as partially to obstruct a private road. Someone removed the barrier and put it on the neighbouring footpath. A lawful user of the road, coming along it in the dark, felt his way to that portion of the road which he knew to be unobstructed and then, going on to the footpath, ran into the spikes on the portion of the barrier which had been removed. Cockburn C.J., giving the judgment of the Divisional Court, held the plaintiff entitled to recover. After a detailed review of authorities dealing with the defence of novus actus interveniens, he said, at p. 338:. . . a man who unlawfully places an obstruction across either a public or private way may anticipate the removal of the obstruction, by some one entitled to use the way, as a thing likely to happen; and if this should be done, the probability is that the obstruction so removed will, instead of being carried away altogether, be placed somewhere near; thus, if the obstruction be to the carriageway, it will very likely be placed, as was the case here, on the footpath. If the obstruction be a dangerous one, wheresoever placed, it may, as was the case here, become a source of damage, from which, should injury to an innocent party occur, the original author of the mischief should be held responsible.”
I am of opinion that the test to be applied is whether the person responsible for creating the nuisance should anticipate as a reasonable and probable consequence that some person in pursuance of his rights would attempt to abate the nuisance and in so doing would create a danger. Applying this test it seems to me that Mr. MacGrath should have anticipated as reasonable and probable that someonea passer-by, a frontager, or an employee of Brown Thomas Ltd.would remove the ladder and put it somewhere near in a position where it would be less of an obstruction but might constitute more of a danger. This is what happened. The ladder was moved round the corner to Duke Lane, a relatively unimportant side street which is not a thoroughfare. It was probably folded up and put leaning against the wall. In this position, though more dangerous, it would be less of an obstruction to pedestrians and would not obscure the window display of Brown Thomas Ltd. That an unattended ladder, even if spread out, involves some element of danger is recognised by the admitted practice of the men to take down the ladders during the luncheon interval and put them on a hand cart, and by Mr. MacGrath’s acquiescence in the suggestions that “it would be unsafe to leave a ladder unattended in a public place” and that “it was a thing you would not do.”Indeed, the whole tenor of his evidence was that he only left the ladders because he thought they would be taken care of by Mr. Murphy. A jury were entitled to consider that he should have made an express stipulation to that effect and that, as he did not do so, the accident was a reasonable and probable result of his action in leaving the ladders without making some provision for their removal to a safe place when no longer needed. I would dismiss the appeal.

HAUGH J. :
I agree.

WALSH J. :
I also agree.

Kelly v. Mayo County Council.

O’DALAIGH C.J. :
16 Dec.

This is a new trial motion. Mr. Justice Teevan, at the close of the evidence for the plaintiff, ruled that there was no case to go to the jury.
The plaintiff, a boy aged fourteen years, was injured by being thrown from his bicycle while cycling on the public road near his home in the County of Mayo. His bicycle got caught in a rut on the road and this caused him to be thrown to the ground. The rut was about 11/2 feet in length and six inches deep. The case was laid in negligence and nuisance, but the defendant County Council were not sued as highway authority but as users of the public road. The allegation was that by excessive user they damaged the road and thereby created a nuisance.
For a number of weeks prior to the accident the defendant County Council had been drawing stones and gravel in trucks along the road in question to a point further on where certain repairs were being carried out. This user, it was said, had caused a pot-hole, of the dimensions already mentioned, to develop.
The clearest picture of what the plaintiff complained of is contained in the evidence of the witness, McMenamin. McMenamin, a County Council employee, had been engaged on the road repairs which were in progress at some distance from the scene of the accident, and, moreover, witnessed the accident to the plaintiff.
He describes the condition of the road on the day of the accident by saying that there were a lot of pot holes and sludge; that there were two very large pot-holes, each 11/2 feet in diameter and about six inches deep, situated at either side of a gullet; that they were full of water. He further says that before the County Council started hauling stones the road was in “fair nice order,” with some pot-holes but not a lot, that the biggest of these pot-holes might be six inches long by two or three inches deep, that the lorries used by the County Council were six-ton lorries, making about ten journeys a day, but that a lot of the stones or gravel was brought to the scene of the repair work by a route other than that on which the plaintiff was injured and that some but not a lot of road material was brought by that route.
The gullet at one end of which the pot-hole which caused the plaintiff injury was situated had been repaired by County Council workers some time prior to the accident and by, among others, McMenamin. A trench had been dug across the roadway in carrying out this operation. McMenamin in his cross-examination said that the two deep pot-holes were on the gullet, i.e., as I understand the evidence, on the trench; and the clear inference therefore is that the pot-holes developed in this trench (see answers 945/948).
The interference with road surface in order to repair the gullet was not a matter which was within the knowledge of the plaintiff’s legal advisers. No case was made in respect of it either in the High Court or in this Court.
But the evidence has in my opinion this importance: that it indicates that the pot-hole which developed was very probably as much, if not more, due to the condition of the road arising from the digging of the trench as to the effect of traffic.
The plaintiff’s case was put upon the basis that the pot-hole in which the bicycle caught was due to the County Council’s excessive user of the road and constituted a nuisance. Reliance was placed on Attorney-General v. Scott (1). There an action was brought by the Attorney-General at the relation of the Monmouthshire County Council and by the county council to restrain the defendant, Scott, from using locomotives on the public highway in such a way as by damage to cause a nuisance. The complaint against Scott was that in hauling stone by a traction engine of eleven tons and in two laden trucks he had so cut up a section of the main road as to render it dangerous and practically impassable both for vehicles and pedestrians. The section of road in question was a half-mile in length. The plaintiffs moved for and obtained an interim injunction, and an appeal against the granting of this relief, taken to the Court of Appeal, failed. The judgment of the Court of Appeal is authority for the proposition that it is a public nuisance so to use the highway as to make it founderous. The action subsequently came for trial before Mr. Justice Jelf (1) who dismissed the action on the ground that the condition of the roadway was not caused primarily by the defendant’s traction traffic. Mr. Justice Jelf’s judgment was affirmed on appeal.
I accept the principle enunciated in Scott’s Case (2), but in my opinion the evidence given on the plaintiff’s behalf does not bring the plaintiff’s case within the principle.
McMenamin’s evidenceand it is the only evidence in this regardeventually pointed to the opening of the trench and its inadequate re-filling as the primary cause of the offending pot-hole, with the County Council’s haulage traffic as a contributory factor only. However, even if it be accepted that a pot-hole of six inches by two inches or three inches became a pot-hole of 11/2 feet by six inches primarily by reason of County Council haulage traffic, I would still be of opinion that the user here proved was not shown to be either excessive or unsuitable and, moreover, in any event damage of a more extensive nature than the casual creation of two pot-holes of the kind in question here would be necessary to constitute a nuisance.
Scott’s Case (2), as presented on the motion for the interim injunction, is clearly distinguishable on its facts from the plaintiff’s case here. It is to my mind inconceivable that the evidence adduced here on the plaintiff’s behalf of the defendant County Council’s user on this road could be held to amount to nuisance.
For this reason I would affirm the order of the learned trial Judge withdrawing the plaintiff’s case from the jury.

LAVERY J. :
In my opinion Mr. Justice Teevan, the learned trial Judge, was correct in withdrawing the case from the jury and entering judgment for the defendants.
The circumstances of the accident causing injury to the plaintiff for which the defendants are claimed to be liable are set out in more detail in the judgments of other members of the Court.
Defendants are the highway authority charged with the repair and maintenance of roads and particularly of the road upon which the plaintiff’s accident occurred. As such authority they are liable in damages for injuries suffered by a road user if they have been negligent in doing repairs or in interfering with the road. They are not liable for injuries suffered or caused by the want of repair of a road. This is the familiar distinctionthey are liable for mis-feasance but not for non-feasance.
Shortly, the facts are as follows: the plaintiff, riding a bicycle, was thrown from it when the front wheel was caught in a pot-hole or rut on the roadway, and was injured. The road is a public highway in the charge of the defendants, as the road authority. On this appeal, after some discussion, Mr. Lindsay, for the plaintiff, admitted that he could not maintain a claim against the defendants as the road authority.
In my opinion he was compelled to make this admission. The liability of the defendants alleged was therefore based on their user of the road as a public highway in no way to be distinguished from user by any other person entitled to pass and re-pass on his lawful occasions.
This liability is claimed to arise because the defendants, it is alleged, made a user of the road excessive to a degree constituting a public nuisance. The cause of the plaintiff’s fall from his bicycle is said to have been a pot-hole in the road which caught the front wheel of the bicycle.
This pot-hole is said to have been caused by the traffic of heavy lorries owned by or operated by the defendants, which traffic it is said was of a kind for which the road was unsuited and which it was unable to carry.
The defendants’ lorries are shown to have used the road for the carriage of stones and other road material for the purpose of road building or road repairs, not at or near the place of the accident, but at some distance away. The distance is not stated. The nuisance being established, as is said, it brought about the condition of the roadway and caused the injury to the plaintiff.
These submissions would certainly raise difficult questions of law.
But, before these questions have to be considered, it must be shown that there is evidence which if accepted is capable of supporting a verdict for the plaintiff. It is established by the cases quoted by Mr. Lindsay that excessive user of the highway by heavy vehicles of an unusual character, even though the vehicles are not constructed so as to infringe a statutory provision, may constitute a public nuisance and give a right of action to any person who suffers thereby special and peculiar damage.
I should deal with a side issue in order to dispose of it. In the course of the evidence it appeared that the County Council had made or repaired a gullet across the road, at or near the place of the accident, a short time before the accident. It was suggested that the existence of this gullet or the work done by the County Council on it had caused or might have caused or contributed to cause the pot-hole. However, Mr. Lindsay, counsel for the plaintiff, said:”I am not making the case that the gullet operation is the cause of the accident.” This admission was proper and necessary having regard to the evidence. That disposes of this matter so far as the decision of this appeal is concerned, though it may be that the gullet was in a degree responsible for the condition of the road.
What is the evidencestated as favourably as possible to the plaintiff’s claim, which is the approach which the trial Judge and this Court on appeal from his ruling should make? I state it shortly: Mr. Kelly, the plaintiff’s father, said there were no dangerous pot-holes before the County Council started, but definitely there were pot-holes as there are in every contract road, particularly in the dips. He described the pot-holes thus:”I would say the pot-holes were about eighteen inches in diameter and I would safely say they were six or seven inches deep. I didn’t measure them, but to the best of my opinion.” He described the lorries and road machinery as used by the County Council:”There was a lorry taking the stones from the old church. It would go up and down about nine or ten times a dayfor about a week or ten days.” Later, “I couldn’t say how many lorries were bringing stones from the crusher . . . The County Council had a steam-roller and a tar-sprayer and a crusher. I think that was the weight of the machinery apart from the lorries.”I understand that these machines were working at the place where the work was being done. Mr. Kelly said that the traffic had ended a fortnight before the accident happened. James Cusack, who was present at the time of the accident, said that he did not pay any special attention to the road at the time.
This is not and is not intended to be an exhaustive statement of the evidence on the point.
There was, therefore, some evidence that the heavy traffic did damage to the road. I cannot accept that that evidence was sufficient to justify a jury in finding that the traffic was a public nuisance in itself, or that the damage that it caused to the road can fix the defendants with liability.
I do not purport to lay down any general rule. The issue in any case of the kind now before the Court depends on the facts established, or, where the trial judge has withdrawn the case from the jury, on the evidence which would entitle a jury to find that certain facts were established.

User of a highway by vehicles of an unusual construction which may break down the structure of a road, or vehicles which by noise or the emission of sparks or fumes or in any other way may interfere with the user of the highway by others, may constitute a public nuisance and in such a case may be restrained by injunction, and, it seems, may give a cause of action to any person who shows particular damage to himself caused by the nuisance: see Guardians, Armagh Union v. Bell (1). As to injury to pipes, laid in the roadway, see Cavan County Council v. Kane (2).
No doubt, where damage is the direct consequence of the unlawful actfor example, a collision with an offending vehicle, or injury is caused from sparks or fumes emitted by the vehiclethere would be a cause of action. There may be, and, indeed, no doubt are, other circumstances which would involve liability.
It is unnecessary, in my opinion, to consider these questions in this case.
It is impossible to find here that the user of the road by the County Council was not a normal user. The fact that it may have damaged the road is irrelevant. All traffic wears and injures a road to a greater or less extent. The evidence does notwhen accepted at its highestmake it possible to hold that the road was dangerous or founderous. The existence of pot-holes and other irregularities in the surface of public roads is within universal experience and is inevitable and the fall from a bicycle of a young boy, through riding on a rough surface, is, unfortunately, also within universal experience.
I have dealt with the case at some length in deference to the careful and full argument of counsel, but I should make it clear that in my opinion it could be disposed of very shortly as the learned trial Judge did.
I am of the same opinion as he was that the plaintiff has not shown a case proper to be submitted to the jury and I would dismiss this appeal.

KINGSMILL MOORE J. :
The plaintiff is a boy aged fourteen who met with an accident when the bicycle he was riding ran into a pot-hole on a road, with the result that he fell and was injured. He sues the County Council, alleging that lorries chartered by them to carry stones for the repair of the road were responsible for causing the pot-hole and so causing a public nuisance. If the County Council caused a public nuisance by their road haulage, and the plaintiff suffered particular damage thereby, there is no doubt that he had a cause of action.

The trial Judge withdrew the case from the jury at the conclusion of evidence for the plaintiff on two grounds; first, that as the damage to the road caused by the lorries, if any, was in the course of legitimate user no action would lie; second, that, as the lorries were being driven by independent contractors, the County Council would not be liable. From this ruling the plaintiff appeals.
The road where the accident happened was described by witnesses as a gravel road, eleven feet wide, not surfaced by tarmacadam; but the engineer who gave evidence for the plaintiff said that it was a solid road and, with regular maintenance, was suitable for heavy traffic. Pot-holes, according to a number of witnesses, appeared at intervals along its surface in the ordinary course of deterioration from weather and use, but these were filled up from time to time with stones packed into them by independent contractors paid for the work by the County Council or sometimes by the ganger for the County Council.
The offending pot-hole lay in a dip where the slopes of two hills met, a place into which, after heavy rain, water used to run from the slopes, bringing with it silt and mud. There had been considerable rain before the time of the accident and slush lay in the dip, obscuring the pot-hole, which was some eighteen inches wide and was estimated by some witnesses as being five inches to seven inches deep.
Some weeks before the date of the accident, the County Council had started to repair the road by dressing it with tarmacadam and material for this purpose had been procured by crushing the stones taken from a ruined church. The crushed material was then transported by lorry over the unrepaired portion of the road to where the work was in progress. In the course of their journey the lorries passed over the scene of the accident. It was estimated that there would be some nine or ten lorry journeys in the day and that the haulage went on for about ten days. In normal times the road was used chiefly by motor vans and motor cars, though on some days a couple of lorries might traverse it. Before the stone haulage began there were already a number of small pot-holes but there was evidence which a jury might accept that the result of this stone haulage was to increase the number, size and depth of these holes. On the other hand, there was no evidence to suggest that the road was in any way impassable or inherently dangerous to travel. A neighbouring farmer, who drove a van, described it as being bumpy and slushy and in places he would slow down to ten miles per hour, but I can find no evidence that it was dangerous to any person exercising reasonable care. The use of six-ton lorries was not abnormal on the road nor is there any suggestion that they were ever driven in an abnormal way. The most that can be alleged against the County Council is that for a short time they increased the amount of traffic and so caused a road, which is always liable to be worn into holes by ordinary traffic, to be worn rather more rapidly. Roads are made to be used in a normal way and it is the business of the County Council to repair the damage caused by their use. I think the County Council was probably dilatory in filling up the pot-holes, no doubt because the re-surfacing of the road with tarmacadam would shortly have reached as far as the scene of the accident: but it is old and well settled law that a road authority is not liable for non-feasance.
That a person may create a public nuisance by the use on a road of unsuitable vehicles or by excessive and unreasonable user appears also to be settled law. As far back as Charles I an information was held good which alleged that a carrier used a wagon carrying twice the proper maximum weight”cum inusitato numero equorum” by which he spoiled the highway leading from Oxford to London: 3 Salk. 183. In a more modern case, Attorney-General v. Scott (1), on which the plaintiff relied, the English Court of Appeal granted an interim injunction when the affidavits alleged that the defendants by the use of traction engines of great weight, drawing trucks of considerable weight with heavy loads on them, had turned the road into a condition in which it was dangerous to life by night and day. Such a state of affairs, the Court thought, was prima facie a nuisance. At the trial (2) Jelf J. discharged the injunction. He found that the road had become very rough and muddy and very incommodious for traffic of all kinds, rendering necessary the use of very great care by the public: but that this condition was not caused primarily by the defendant’s traffic. It was caused partly by the traction traffic, partly by the continued stone haulage by carts and horses, partly by the ordinary traffic, partly by the weather, but primarily and chiefly by the failure of the County Council to maintain the road in a fit state to bear the traffic, including the traction traffic (which was not more unusual or onerous than they ought to have expected to come upon it), and to the careless and dilatory way in which they proceeded with the reconstruction of the road.
The Court of Appeal upheld the decision of the Judge holding that on these findings of fact the conclusion was inevitable and the traction engine had not caused a nuisance on the highway.”On these facts it must be taken that the traction engine more or less affected the surface of the road; but I can see nothing in the finding of Jelf J. or in the evidence that the use of the traction engine caused the condition of the road”: per Vaughan Williams L.J., at p. 171.
I can find nothing in the evidence in this case to support the contention that the weight of the lorries was excessive or improper or the lorry traffic unreasonable and I do not think a reasonable jury could arrive at findings which were not closely analogous to those of Jelf J. The real cause of the injury, assuming the plaintiff not to have been guilty of negligence (which I doubt), was this failure of the County Council to fill up pot-holes inevitably caused by reasonable and proper use of the road combined with the effects of weather and the gradients and construction of the road. For this failure, a matter of non-feasance, they as a road authority are not liable. This may be an unsatisfactory state of the law, but law it is. This case must be approached as if the persons using or contracting for the use of the lorries were ordinary haulers. Every passage of a lorry to some extent wears and deteriorates the road. When sufficient lorries have passed, or when one lorry has passed sufficient times, the surface will give way and pot-holes will appear. The lorry owner or owners are exercising legitimate rights. Other members of the public have also their legitimate rights of travel. There may come a point where the exercise of the legitimate rights of the lorry owners seriously and substantially interferes with the rights of the other travellers to such an extent that a public nuisance is created, restrainable by injunction. It is a question of degree: Attorney-General v. Brighton and Hove Co-operative Supply Association (1).
In my opinion there was no evidence in this case that the defendants had used their rights to have materials conveyed by lorries on the road to such an excessive degree as to cause or constitute a public nuisance. Accordingly, I consider that the learned trial Judge was correct in withdrawing this case from the jury, though on a ground different from the grounds relied on by the learned Judge.

Wall v. Morrissey

[1969 IR 1
Walsh J. 12
Supreme Court

WALSH J. :
22 May 1969

On the 16th March, 1965, the defendant employed a contractor named Kenneally to excavate a trench across the width of the public highway for the purpose of bringing a water-supply pipe across the highway to a cattle trough on the defendant’s lands. The roadway was 13 feet 6 inches in width, and the trench was cut to a depth of three to four feet and was itself 18 inches wide. In the previous January the defendant had obtained permission from the local authority to break up the roadway for the purpose in question and he had paid a sum of £3 6s. 0d., being the estimated cost of reinstating the surface which would fall on the local authority. One of the provisions of his agreement with the local authority stipulated that the trench was to be filled, in layers of a depth of six inches, with suitable materials and rammed with a heavy rammer and brought up to within nine inches of the surface of the road. Stone was then to be laid for a depth of six inches and well rammed and wedged, and the level then had to be brought up to road level with a layer of two-inch broken stone covered with chippings or suitable gravel and rammed flush with the adjoining road surface; and the defendant was obliged to maintain the surface flush with the adjoining road surface for a period of two months.
Kenneally used a mechanical digger to excavate the trench and, when the water pipe had been installed, he refilled the trench with the material which had been excavated and (as he said in his evidence) he “packed it down with wheels until it got hard.”He added that he had done similar work for the County Council and that what he did on this occasion was done in what he described as “the usual way.” The whole job took only about one hour. When the job was completed the weather was still dry and the contractor went away. It was seen by a County Council roadworks-ganger who expressed himself as satisfied with it. After the refilling of the trench there was still some of the excavated material left over. There was heavy rain during the night, and next morning it was noticed that the trench filling had dropped three or four inches. It was sufficiently deep and soft to trap a motor vehicle’s wheels on that morning. Then, and again later in the day, the defendant and his son added some of the filling, which had not been used on the previous day, to bring the level of the trench up to road surface again. After the first repair on the 17th March it was seen by the County Council ganger who was again satisfied with its condition. On the 23rd March the County Council engineer saw it and considered that it
was not in good condition and directed the County Council employees to deal with it. They excavated about three or four inches of the material and replaced it by gravel.
The accident, of which the plaintiff complains, occurred on the 17th March. At about 10.15 that night, when riding his bicycle along the roadway, his front wheel stuck in the cutting when he was riding across it, with the result that he fell off and sustained personal injuries. Earlier in the evening he had, according to himself, noticed the trench across the road and had dismounted from his bicycle and walked across it. He described it then as being “a foot deep in parts.” However, he had forgotten about it on his return journey with the result, he claimed, that he cycled into it and was thrown off his bicycle because of the defective condition of the refilled trench. According to the defendant he (the defendant) had already levelled up the sagging surface of the trench on two occasions that day: once in the morning at about 9 o’clock and once in the afternoon at about 5 o’clock. He did not see the trench again that day. He said that the amount of filling required in the afternoon was only an inch or two and that when he left it he thought it was all right.
Whatever its condition at the point of time when he left it, it certainly, according to the evidence, deteriorated subsequently because on the 23rd March, as I have stated already, the County Council regarded it as in a bad condition and set to work on it themselves. The only evidence as to its precise condition some hours after the defendant had left it on the 17th March is that given by the plaintiff, where he described what he saw when he dismounted at the trench. Whether that be accurate or not it is not now necessary to consider, and one may proceed on the assumption that the trench had sufficiently subsided to cause the plaintiff to be thrown from his bicycle when he cycled over it later that night.
The plaintiff laid his action in nuisance and also in negligence. The case was tried before Mr. Justice McLoughlin and a jury in Cork on the 20th and 21st July, 1967. At the close of the evidence, the learned trial judge refused the plaintiff’s application to have both the question of nuisance and the question of negligence left to the jury, and the trial judge left only the question of whether the defendant had been negligent. The learned trial judge’s view was that all the issues between the parties were covered by the question of negligence and that there was nothing which could arise on the question of nuisance which would not be raised on the question of negligence. In the result the jury found that the defendant had not been negligent. Against this judgment the plaintiff has appealed on the ground that the learned trial judge misdirected himself in law in refusing the plaintiff’s request to have the issue of nuisance submitted to the jury.
Counsel for the plaintiff, in the course of this appeal, indicated that he had no quarrel with the jury’s finding on the question of negligence but he submitted, as he submitted to the learned trial judge, that the test of foreseeability was of no relevance in the question of nuisance and that it was sufficient for the plaintiff to establish that the defendant had committed a public nuisance and that the injury which the plaintiff suffered had flowed directly from that nuisance.
For the purpose of this appeal I am assuming that the condition of the road which brought about the plaintiff’s accident did amount to a public nuisance.
I do not think that the agreement with the County Council, which was in effect an indemnity to the County Council on the question of the resurfacing of the portion of the highway involved, affects the matter at all. The County Council cannot give a licence to the defendant to commit a public nuisance, nor can it in any way absolve him from the consequences of one. Furthermore, I do not consider that the defendant’s position is in any way altered on the question of nuisance by the fact that he employed an independent contractor. A person who makes an excavation on the highway has imposed upon him a duty of care which cannot be discharged by the employment of an independent contractor, nor can such person delegate to a contractor the work of taking the precautions necessary to prevent the mischievous consequences of the excavation on the highway. The person who procures the excavation is primarily liable for the actionable consequences which may flow therefrom; he is not simply liable vicariously for the acts of the independent contractor.
The temporary excavation of the highway is not itself a public nuisance so long as it does not offend by exceeding, in either degree or duration, the temporary requirements of a person whose premises adjoin the highway. A public nuisance is constituted by exceeding this temporary requirement, or by failing to restore the position to the point where it does not operate as a withdrawal of part of the highway from the public, or by leaving the highway dangerous for members of the public using it.
It is true that the facts giving rise to a public nuisance often ground a cause of action in negligence also, and in many cases it may matter nothing which of these causes of action is relied upon. It is true, however, as has been submitted by counsel for the plaintiff, that negligence is not an essential element in nuisance: see the examples given by Lord Reid in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. [The Wagon Mound (No. 2) 15] However, I am also content to adopt the reasoning of Lord Reid in the same case and to accept the conclusion which he arrives at, namely, that, while negligence is not an essential ingredient of nuisance in an action on public nuisance, foreseeability is an essential ingredient. In the present case the defendant created a danger on the highway which did amount to a public nuisance, but before the plaintiff can establish his right to damages he must satisfy the jury that the injury which he suffered was a reasonably foreseeable event on the part of the defendant.
From such information as the Court has been able to learn from the course of the trial in the High Court, it would appear that the point taken by counsel for the plaintiff in requesting the trial judge to leave the question of nuisance to the jury was the point that foreseeability was not an essential ingredient of that cause of action. That was the course of the trial and in the circumstances, therefore, I am satisfied that it is not necessary or relevant to consider any other matters which might have arisen when the only point which did arise was, in my view, unfounded in law.
During the course of the argument counsel for the plaintiff referred the Court to the decision of Mr. Justice James Murnaghan in Lynch v. Dawson. 16 That case was concerned with the nuisance created by branches of trees overhanging the highway and interfering with the passing traffic, as a result of which a passing lorry was struck and damaged. At first sight that case might appear to be a decision in favour of the proposition that all it is necessary to establish, in the case of an action brought for damages for a public nuisance, is the creation of the nuisance and that injury has flowed to the plaintiff directly from the nuisance. A close examination of the case, however, reveals that the contending points of view of the parties were, on the one hand, the proposition that the owner of the adjoining lands who owned the trees was liable on proof of the fact that a tree overgrows the public road and that this fact alone gave rise to a cause of action if the tree was an obstruction and caused damage. The opposing contention was that liability did not attach to the owner until it was proved that he either knew or ought to have known that the trees were likely to cause an obstruction. The learned judge arrived at the view that the mere fact that a tree by its natural growth caused an obstruction to persons lawfully using the highway gave a right of action to the person injured by the obstruction. It was never claimed in that case that the owner did not know that his trees grew over the roadway but simply that he did not know that they were causing an obstruction. That is tantamount to saying that a reasonable person would not have foreseen that any passing traffic would be likely to be struck by them. The trees were a nuisance only because it was foreseeable that passing traffic might be struck by them. In other words, the necessity of foreseeability had already been assumed by the learned judge. The case is not, therefore, in any way an authority for the proposition that foreseeability is not necessary.
The view that foreseeability is an essential ingredient is supported by the decision of Lavery J. in Gillen v. Fair. 17 That was an action, laid both in nuisance and in negligence, resulting from the branch of a tree growing beside the public highway falling on a passing motor car and killing the driver. The learned judge dismissed the action in negligence on the grounds that the damage was not foreseeable (on the particular facts of that case) and he appears also to have taken the same view on the question of the claim in nuisance which he also dismissed. Finally I turn to the decision of this Court in Cunningham v. McGrath Brothers. 18While in that case the question whether foreseeability was an essential ingredient or not in actionable public nuisance was not in issue, the decision clearly accepted and proceeded on the basis that it was an essential ingredient. The contest was whether, on the evidence, it could be held that the mischief was foreseeable and the answer was in the affirmative.
As this appeal has turned upon the question of whether the trial judge was correct or not in applying the test of foreseeability, I would dismiss the appeal for the reasons I have already given. It is unnecessary to speculate on what other points might have been made at the trial because the action could not succeed in either nuisance or negligence without establishing foreseeability, and for the purposes of this appeal it must be assumed that the jury found that the damage was not foreseeable.

BUDD J. :
I have read the judgment which has been delivered by Mr. Justice Walsh and I agree with it.

FITZGERALD J. :
The plaintiff in this case, Michael Wall, is an agricultural worker living at Ballymacondrick, Cloyne, in the County of Cork. The defendant is a farmer residing at Holly Road, Rostellon in the same county. In the month of January, 1965, the defendant applied to the Cork County Council for permission to make an excavation across the public road, which bounds his farm, for the purpose of installing a water supply to a cattle trough on his land. This permission was duly granted subject to his undertaking to maintain, guard and light the excavation, to take all proper precautions to prevent injury to person or property, to fill in the trench and maintain the filling for two months, and to indemnify the County Council in respect of all claims against them resulting from the excavation.
The defendant employed a man named Kenneally to do the work. In the afternoon of the 16th March, 1965, Kenneally, using a mechanical digger, cut a trench across the road some 18 inches in width and three or four feet in depth. When the water pipe had been installed, Kenneally replaced the excavated material in the trench and packed it by running the wheels of the digger over it. The work took something over an hour and had been completed by 6 p.m., at which time it was seen by William Foley, a ganger employed by the Cork County Council, who examined it in the presence of Kenneally, of the defendant and of the defendant’s son and stated that he was satisfied that the trench was then properly filled.
The trench crossed the road at the bottom of a steep incline as one travels from Rostellon village and shortly after one negotiates a left-hand bend. There was heavy rain on the night of the 16th March and this, coupled with the levels of the roadway, apparently disturbed the filling in the trench during the night. Next morning before 8.30 a.m. Mr. Foley, the County Council ganger, passed over the trench and noticed that the filling had dropped some three or four inches. He met the defendant’s son at the 8.30 a.m. Mass and informed him of the condition of the trench which he had observed. Mr. Thomas McCarthy, when driving his motor van to Mass before 8.30 a.m., observed the trench but failed to stop in time. The front wheels of the van crossed the trench but the back wheels failed to cross it and he could not drive the van out of it. Even with the assistance of neighbours pushing the van, it apparently could not be extracted. Mr. Thomas McCarthy then summoned the defendant who got his son to bring his tractor and pull the van clear of the trench. Mr.
Thomas McCarthy said that the surface of the trench was down by four or five inches. It is clear from the evidence of Mr. Foley and of Mr. Thomas McCarthy that by 8.30 a.m. on the 17th March the trench had become a serious traffic hazard. The defendant and his son apparently proceeded to attend to the matter at once, and they made up the surface to the normal road level by about 9 a.m.
At about 4 p.m. on the 17th March Mr. David Quirke cycled across the trench surface, apparently without difficulty. There was no further evidence as to the condition of the surface from 9 a.m. on the 17th until 5 p.m. that afternoon. The defendant in evidence said that between 5 and 5.30 p.m. he thought that the surface was “a little sagged after the day’s traffic” and he levelled it again. He further stated that he did nothing more to the surface of the trench prior to the County Council putting on the permanent surface on the 24th March. He said it did not require any further topping. He was not challenged as to his not having done any further work on the trench subsequent to the 17th March. John O’Sullivan cycled across the trench at about 7.15 p.m. without difficulty, and he cycled back over it at about 1.30 a.m. on the morning of the 18th. He said he saw the trench by the light of his bicycle lamp and had no trouble crossing it. A Mr. McCarthy, the plaintiff’s employer, with whom he resides, passed over the trench at about 7 p.m. on the 17th March and back across it at about 11.30 p.m. and said he did not notice it. The plaintiff gave evidence that when going to Rostellon village on the afternoon of the 17th March he noticed the trench, and that he had to get off his bicycle and walk across it. He said it was sunk down mostly a foot in parts. He said he was returning about 10.15 p.m. with his dynamo light on his bicycle, cycling Last, that he forgot about the trench being there and did not see it. He said the front wheel of the bicycle hit the trench and he was thrown off and injured, that he picked himself up, felt dizzy and walked home. He subsequently developed headaches and was attended to by Dr. O’Sullivan and detained in hospital for seven weeks. He still complained of a buzzing in his ear at the time of the trial. On cross-examination he was questioned as to the number of drinks he had in Rostellon during the afternoon and evening. He accepted that coming down the hill approaching the trench he would be going pretty fast He said that when he took the bend at the end of the hill the cycle stopped without warning and he was thrown off. He said he only had a dim bulb in his lamp, that the night was hazy and the road wet. Finally, he said he saw the trench just as the wheel of his bicycle struck it.

In his plenary summons the plaintiff claimed damages for his injuries which he alleged were caused by the nuisance and negligence of the defendant. In his statement of claim he alleged that he was injured as a result of his bicycle falling into the trench which the defendant had created on the highway, and that the work had been done negligently by the defendant, his servants and agents. He pleaded, alternatively, that the defendant kept and maintained a nuisance on the highway. In the particulars of nuisance and negligence he alleged that the trench was left in a dangerous and unsafe condition, that no warning was given of its existence, that the surface was not kept in a reasonably fit condition for traffic, that it was filled in an unskilful and dangerous manner and that it was not properly filled. It was not alleged that the opening of the trench was unlawful, and it was not specified whether the nuisance alleged to have been maintained was a public or a private nuisance. In the defence the defendant denied that he was negligent or that he kept and maintained a nuisance. He denied that the plaintff’s bicycle fell into the trench. He denied that the plaintiff suffered any loss or damage and he pleaded that the plaintiff was guilty of contributory negligence. A reply to a notice for particulars did not result in any further allegations so far as negligence or nuisance were concerned. The action came for trial before Mr. Justice McLoughlin and a jury on the 20th and 21st of July, 1967. There was no shorthand note taken and we have had to consider the evidence on the judge’s note, and on his report of the trial which is dated the 28th January, 1969.
The judge left four questions to the jury as follows:”1. Was the defendant negligent? 2. Was the plaintiff negligent? 3. If you answer ‘Yes’ to both Questions 1 and 2, apportion the degrees of fault on a percentage basis as between (a) the defendant and (b) the plaintiff. 4. Assess damages.” In answer to the first question the jury found that the defendant was not negligent, and it thus became unnecessary for them to answer any further questions. It appears from Mr. Justice McLoughlin’s report that at the conclusion of the evidence counsel for the plaintiff asked to have a question left to the jury as to whether the defendant had created a nuisance, and that counsel submitted that to create a danger was a nuisance. Counsel for the defendant submitted that “nuisance” was not appropriate. The judge decided to leave to the jury the issues on negligence alone, ruling that there was no absolute liability apart from negligence. He charged the jury on the negligence issues alone and there was no objection taken to his charge. On the jury’s finding, judgment was entered for the defendant. Against the jury’s finding and the judgment the plaintiff has appealed to this Court; the grounds of appeal being, first, that the learned judge misdirected himself in law in refusing to leave to the jury a question as to whether or not the defendant had created and maintained a nuisance on the public highway; secondly, that he misdirected himself in law in holding that on the evidence there was no case to go to the jury on nuisance as distinct from negligence and, thirdly, that the trial was unsatisfactory.
It was not pleaded in the statement of claim that the initial opening of the trench was unlawful. It was apparently recognised by the pleader that, with the permission of the County Council, which was charged by statute with the maintenance of the road, the defendant was entitled to make the excavation subject to its being done in a proper manner and restored in a reasonable way. That involved the defendant in making an excavation limited to the purpose for which permission was granted, the filling of the trench within a reasonable time, and the maintenance of the temporary surface during the period while the filling settled and reached a condition when the County Council could restore the permanent surface. The plaintiff’s allegations were confined to establishing that the defendant was negligent in filling the trench and failing to maintain the filling and thereby keeping and maintaining a nuisance.
If the trench on the road constituted a nuisance at all, it was a public, and not a private, nuisance. It was an interference with the right of the public at large to use the highway and the only feature distinguishing the right of the plaintiff from that of any other member of the public is that he suffered physical injury: see Salmond on Torts (14th Ed.) p. 83. The unauthorised opening of a trench on a public road is a public nuisance. The failure to refill a trench lawfully opened and to restore the surface of the highway to make it fit for traffic may also amount to a public nuisance. This, however, involves a consideration of the reasonableness or otherwise of the action of the defendant in relation to the time taken to restore the highway. Not every obstruction on a highway amounts to a nuisance. A stationary, or even an unlighted, vehicle on a highway may not amount to a nusiance unless the owner permits it to remain for longer than a reasonable time. The right of the public to pass and repass must be considered in relation to the right of other members of the public who may create temporary obstructions in the course of their normal use of the highway. User must be considered in relation to “give and take” among the people entitled to use the highway: see the judgment of Evershed M.R. in Trevett v. Lee. 19 The creation of a public nuisance is a misdemeanour which confers no right of action on a citizen unless he can establish that he, as distinct from the public at large, has suffered damage. The plaintiff in the present case adduced such evidence, which if accepted would have established that he had suffered such damage and would maintain his claim if the jury were satisfied that the defendant had created the nuisance and that it was the cause of the plaintiff’s damage.
The case was fought by the defendant on the grounds (1) that no obstruction existed in as much as the filling was properly maintained, and (2) that the plaintiff was not injured by the condition of the surface but by his own negligence in the manner in which he rode his bicycle. On the former issue the defendant sought to establish that he had restored the surface of the trench on the afternoon of the 17th March, and that several people had crossed the filled trench without difficulty both before he topped it up that afternoon and after he had done so.
The initial opening of the trench not being unlawful and the initial filling having been properly carried out to the satisfaction of the County Council ganger, there was no evidence upon which a jury could hold that a nuisance existed prior to the early hours of the morning of the 17th March. The deterioration in the condition of the surface on the night of the 16th March would appear to be attributed to natural subsidence of the filling, to traffic passing over it and to the weather conditions and the location of the trench where surface water coming downhill flowed on to it. The defendant did not create the situation which existed when Mr. Thomas McCarthy’s van stuck in the trench on the morning of the 17th March. That situation had developed as a result of a combination of factors over which the defendant had no control. Nevertheless, he was under an obligation to the County Council and to the users of the road to make good the surface which had deteriorated due to natural causes. This obligation was a continuing one for a fixed period of two months, or until such time as the County Council put a permanent surface on the trench. The defendant’s evidence that he did work to restore the surface on the morning and again in the afternoon of the 17th March was not challenged. What was challenged was the sufficiency of the work then done or the failure to do further reconstruction prior to the plaintiff’s accident that night, and that this failure and neglect caused or contributed to the development of the nuisance.
It appears to me that the issue of fact to be decided was whether the defendant had filled up the surface properly during the morning and afternoon of the 17th March or, alternatively, whether he should have attended to it again subsequent to 5 p.m. on that day and before the plaintiff met with his accident. Whether the action were tried by a judge alone or by a judge with a jury, this was the vital fact to be decided. The legal consequences flowing from the decision are matters of law. A decision adverse to the defendant on the issue of fact would necessarily result in a finding of negligence against him and might also justify a finding against him on nuisance. There appears to me, however, to be no basis upon which a finding of the relevant fact against the defendant could result in the defendant being found legally liable for nuisance but not liable for negligence. The trial judge left the question of fact to the jury in the form:”Was the defendant negligent?”. He could equally have obtained their decision on the issue of fact by putting the question:”Did the defendant fail to maintain the surface of the trench?”.
On the question as put, the jury might have given the negative answer either on the basis that the evidence did not satisfy them that the defendant had failed to maintain the trench, or that they were not satisfied that the plaintiff’s injuries were due to any defect in the trench. I assume, for the purpose of this appeal, that the jury were satisfied that the plaintiff’s injuries were attributable to the fall from the bicycle which was caused, or contributed to, by the condition of the surface of the trench. If their verdict is not to be construed in this way the plaintiff’s case must fail. Assuming that their verdict does mean that the defendant had not failed in his duty to maintain the surface of the trench, the question then arises as to whether any other fact required to be decided.
The plaintiff submits that, if the question had been left to the jury and they had been properly directed, the jury could have found that the defendant maintained a nuisance notwithstanding their finding that he was not negligent. Such a result was produced in the case of McKenna v. Lewis and Laoighis County Council. 20 It is clear, however, from the judgment of Sullivan C.J. at pp. 75 and 76 of the report that the issue on negligence was in relation to a particular fact which did not cover other aspects of the case which were alleged to constitute a nuisance.
In my view there are no facts to be considered in relation to nuisance in the present case other than those to be considered and decided on the issue of the defendant’s negligence. Consequently, in my opinion, a finding by the jury in the plaintiff’s favour on nuisance would have been quite inconsistent with their finding against the plaintiff on the issue of the defendant’s negligence. I consider that the judge submitted the proper questions to the jury, that the jury’s finding that the defendant was not negligent is the vital decision and that it effectively governs any case made for the plaintiff which is based on nuisance. I see no basis upon which it could be held that the trial was unsatisfactory and, consequently, in my view the appeal should be dismissed.

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Public Nuisance

Cases

Connolly v. South of Ireland Asphalt

O’Riordan v Clare County Council & anor

Mullan v. Forrester.

Radford v Wexford Corporation

Patrick Smyth v Industrial Gases (I.F.S.) Limited and Fitzpatrick

Cunningham v. MacGrath Bros.

Kelly v. Mayo County Council.

Wall v. Morrissey

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Cases

Connolly v. South of Ireland Asphalt

O’Riordan v Clare County Council & anor

Mullan v. Forrester.

Radford v Wexford Corporation

Patrick Smyth v Industrial Gases (I.F.S.) Limited and Fitzpatrick

Cunningham v. MacGrath Bros.

Kelly v. Mayo County Council.

Wall v. Morrissey

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