Roads & Misfeasance
Overview
Roads authorities may be liable for misfeasance (negligence) in relation to work done on the roadway. They are not liable for nonfeasance, a failure to take positive action where repair of the roadway is required.
The Civil Liability Act 1961 placed an obligation on road authorities by which they would be liable for damage caused as a result of failure to adequately maintain a public road. The legislation was due to be brought into force by 1967. However, despite a number of unsuccessful legal challenges against the failure to activate legislation, it has not, in fact, been brought into force.
Road Authorities are not generally occupiers of the road for occupiers’ liability purposes. The argument has been made that the effect of the Occupiers’ Liability Act is to place a positive duty on road authorities. This is questionable, and the position in a given case will depend on the precise status of the roadway. The authority must have, at a minimum, sufficient control over the road concerned.
In the context of modern roadways, there may be several statutory bodies which may open the road for work. It may be difficult to ascertain whose negligence or misfeasance has caused the relevant incident, as is commonly the case with accidents the roads have been excavated. It is commonly the last authority to excavate the roads that is liable or have the highest degree of contributory negligence.
Not an Occupier
In O’Riordan v Clare County Council and Response Engineering Ltd [2021] IECA 267, the Court of Appeal r’s did not accept that a highway authority could owe a duty rejected the argument that a highway authority could owe a duty under the Occupiers’ Liability Act 1995 to highway users. Noonan J. observed:
“The highway authority is not the occupier of the highway. That is evident from the fact that the public has the right to pass and repass over the highway and cannot be excluded by the owner of the soil.”
Persons use the highway as of right and not as visitors.
Non-Feasance
“If the opening was not repaired at all then the Council has no liability by reason of its inaction, even it had intended to repair the opening itself following a notification of the missing stopcock cover. It is true that, as the plaintiff argued, the Council intended to repair the opening. This in itself is not sufficient to take the case outside of the non-feasance rule, since the authorities are at one that there must be actual negligence in the actual repair of the highway before the case comes outside the scope of the nonfeasance immunity…. If, on the other hand, the opening was in fact repaired but it was subsequently removed or tampered with by persons unknown, there is equally no liability on the part of the Council. In that latter situation the most that can be said is that the Council thereafter failed to act when it knew (or ought to have known) that the opening presented a hazard to the public. Nevertheless, even in this situation, the non-feasance rule serves to bar any action in respect of this ground.”
“No one can pretend that the non-feasance/misfeasance distinction is perfectly satisfactory or that the rule in this blunt and indiscriminate form sits easily with general principles of tort law. The rule, after all, has its origins in a decision of the English King’s Bench in 1788 (Russell v. Men of Devon (1788) 2 Term Rep. 667) which declined to hold that a statutory duty to repair the highway was enforceable because the local parish (on whom the duty fell) was not a legal entity. Yet the ‘illogical distinction’ between nonfeasance and misfeasance nonetheless survived the transfer of the statutory duty to repair the highways to local authorities with legal personality who could sue and be sued: see Wade and Forsyth, Administrative Law (Oxford, 2000) at 755. Decisions of the Supreme Court describing the rule as either ‘anomalous’ (see O’Brien v. Waterford County Council [1926] I.R. 1, 8, per Murnaghan J.) or ‘unsatisfactory’ (see Kelly v. Mayo County Council [1964] I.R. 315, 324 per Kingsmill Moore J.) are of long standing.
Uncommenced Amendment
These considerations notwithstanding, I must nonetheless apply the law as I find it. This is especially so given that the Oireachtas has, in fact, legislated on this topic. It is often, perhaps, overlooked that the distinction between non-feasance and misfeasance was actually abolished by the enactment of s.60(1) of the Civil Liability Act 1961…., but over 50 years later the commencement of that sub-section awaits the making of a Government order. That sub-section has never been brought into force by the Government and in Sheehan [State (Sheehan) v Government of Ireland [1987] IR 550] the Supreme Court rejected the argument that the Government was legally obliged to make such an order. It follows, therefore, that, for the moment, at least, as Cross J. put the matter in Loughrey v Dun Laoghaire Corporation [2012] IEHC 502, the distinction still retains ‘its ancient purity in this jurisdiction’.
Subject only to some future challenge to its constitutionality (an issue on which I express no view), the rule nonetheless remains embedded in the fabric of the common law which was carried over into our post-Constitution legal system in December 1937 by Article 50.1 of the Constitution, even if–as the Supreme Court pointed out over 90 years ago in O’Brien–the rule can be regarded as anomalous and although the historical underpinning for the rule (such as it ever was) vanished no later than 1898 with the enactment in that year of the Local Government (Ireland) Act 1898 which vested all local authorities with a legal personality.
As such, given its historical vintage and the fact that it has remained undisturbed for over 200 years, the rule now probably lies beyond the capacity of the courts to repair or amend. If, then, the law is considered to be unsatisfactory, the remedy for this lies either with the Government (which could, should it consider it appropriate to do so, make a commencement order in respect of … s.60(1) of the 1961 Act) or with the Oireachtas which could effect further legislative change should it think necessary to do so.”
Road Standards
In Falvey v Limerick County Council [2019] IEHC 858, Barton J. found it to be misfeasance where the design and layout of a road junction did not meet the construction standards recommended by the National Roads Authority. The recommended minimum corner radius was recommended to be be incrfeased to 10 metres with a one-in-five pitch where heavy goods vehicles might mount the pavement, in turning left thereby damaging the footpath. The plaintiff had tripped and fallen there.
Barton J. stated:
“The duty of the local authority qua highway authority is to maintain the public roads and footpaths in charge and, where applicable, to do so in accordance with the guidelines. Where a highway authority undertakes the design, layout and construction of a junction in an urban setting which includes footpaths, as occurred with the locus in quo, regard must be had to the junction design geometric considerations contained in the guidelines …”.
In Meehan v Tipperary County Council [2019] IEHC 432
“… failed to carry out adequate inspection, warn the plaintiff of the risk, or cordon off the area at risk. The County Council were therefore in breach of s. 13 of the Roads Act 1995.”
Public Nuisance
In O’Riordan v Clare County Council [2019] IEHC 330, the plaintiff was injured having cycled over a cattle grid which is negligently designed by the councils predecessors before they took over the road. The council was held liable for the nuisance. The issue of misfeasance/nonfeasance did not apply
Ryan v Tipperary County Council [2019] IEHC 345 involved a bicycle on a country lane where the work done involve negligent design causing stones and debris to remain on the surface
“The court finds that the gully scoping on the surface and dishing effect were factors which led to this accident. It was reasonably foreseeable that if the gully and tarmacadam surface were constructed in such a way as to lead to a slope with dishing that the resulting accumulation would cause a trap for the public and for the plaintiff.”
Acts of Predecessors
In O’Riordan v Clare County Council [2019] IEHC 330 Barniville J.
“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.”
O’Riordan v Clare County Council and Response Engineering Ltd [2021] IECA 267 concerned the issue as to whether misfeasance (negligence) by a predecessor road owner followed by nonfeasance by the council was subject to the general immunity for nonfeasance (failure to repair). The claimant was injured fighting over a cattle grid installed by a previous owner of the role.
The High Court had said
“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.”
The Court of Appeal ([2021] IECA 267) did not accept this position and held that the Council enjoyed immunity for
“The fact that sixty years have passed without the section being commenced speaks to its huge significance for the Exchequer. Indeed, far from being reversed by statute, it is expressly preserved by s.2 (3) of the Roads Act, 1993 .”
“As he noted himself, there is no authority for such a proposition but, contrary to the judge’s view, the reason for that is that it is simply incorrect. The notion that liability can be acquired for an inherited defect in a highway is one that runs counter to the settled rule that, on dedication, the public takes the highway as it finds it, defects and all. Apart from an appeal to common sense, the judge identifies no legal basis for the imposition of liability in negligence in such circumstances and the authorities are to the contrary effect.”
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
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Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019