Roads & Misfeasance
Cases
Edward O’Riordan v Clare County Council and Response Engineering Limited
Highway Authority as Occupier
2019/305
Court of Appeal [Unapproved]
19 October 2021
unreported
[2021] IECA 267
Mr. Justice Noonan
October 19, 2021
JUDGMENT
1. Liability for dangers on the highway has been the subject of litigation for centuries. It has given rise to the well-known and long settled distinction between misfeasance and non- feasance. In cases of the former, the highway authority may be liable, but in the latter, it is not. This appeal concerns the liability of the highway authority, in this case the appellant, Clare County Council (“the Council”), for such a danger on the highway which caused injury to the respondent (“the plaintiff”). The High Court held that the Council was liable and awarded damages to the plaintiff.
Relevant Facts
2. The facts and evidence are set out in considerable detail in the judgment of the High Court and a brief synopsis will suffice for the purposes of this judgment. The plaintiff was, at the relevant time, 64 years of age and lived in Shannon. As described by the trial judge, Sunday the 3rd of August, 2014 was a fine summer’s day and sometime around mid-day, the plaintiff went out for a leisurely cycle which took him down a public road known locally as the “Diamond Road”, so called because a facility owned by the DeBeers company was located at the end of the road. There were several cattle grids along the road and as the plaintiff cycled over one of these, he fell from his bicycle and suffered a serious injury to his left ankle.
3. The cattle grid in question was different from the others on the road in that, as one approached it as the plaintiff did, it was preceded by a concrete ramp, something akin to a small speed bump, although its actual purpose was never established during the course of the five day hearing in the High Court. The cement ramp appears to have been laid immediately adjacent to the cattle grid so that some of the concrete overlapped the first bar of the grid. At some unknown time, part of the overlapping concrete broke away leaving behind a 1 inch drop from the ramp onto the cattle grid. This was found by the judge to be the cause of the plaintiff’s fall.
4. It was common case that neither the ramp nor the cattle grid was constructed by the Council. In fact, the Council first acquired the roadway from a public entity known as Shannon Development which transferred all its assets to the Council in 2004. Those assets apparently included land, roads, footpaths, open spaces, waste water treatment plants, pumping stations storm and foul water systems among more. The transfer was described in evidence as the largest property transfer in the history of the State. It appears that the road in question together with the cattle grid and ramp was constructed by Shannon Development.
5. As I have said, the transfer took place in 2004 but in what manner it was effected was never established in evidence in the High Court. This court was informed at the hearing of the appeal that the transfer appears to have taken place by way of formal deed as opposed to by statute or statutory instrument, though no such deed was put before the High Court or this court. Ultimately nothing turns on that. Some years subsequent to the transfer, in 2011 the road was designated a public road by the Council which appears to have been done pursuant to s.11 of the Roads Act, 1993.
6. The evidence established that where private property is taken in charge by a local authority, for example the roads and footpaths in a housing estate constructed by a private developer, it is normal for the relevant council to carry out a survey of the property prior to it being taken in charge. In the present case, none of the witnesses who gave evidence for the Council were in a position to confirm that such a survey had been carried out and rather surprisingly, it emerged that no real effort appears to have been made to establish that fact. There was, however, no issue about the fact that from the time of the transfer in 2004, nothing was none by the Council to the cattle grid or concrete ramp. It is also relevant to note that while the identified hazard was the 1 inch drop created by the breaking away of the concrete that overlapped the cattle grid, the evidence never established when this event occurred. Thus, it could have happened prior to 2004, between 2004 and 2011, or at any time after 2011 up to the time of the plaintiff’s accident.
Decision of the High Court
7. The judge first set out the evidence on liability from both sides. He then set out his findings of fact on the liability issues. He accepted fully the plaintiff’s evidence and found him to be an honest and truthful witness. The plaintiff was cycling slowly and in a cautious manner when the accident occurred. The sudden and unexpected drop from the ramp to the cattle grid caused the plaintiff to lose control of his bicycle and fall. The judge was satisfied on the evidence that the cattle grid and concrete surround were likely to have been constructed or installed by Shannon Development, the Council’s predecessor in title.
8. He accepted the evidence of the plaintiff’s engineer that laying concrete over the metal bar of the cattle grid is a defective and inappropriate method of construction. This rendered the concrete liable to be broken up with the passage of vehicular traffic over it, which was an entirely foreseeable consequence. The judge also considered that the ramp should have been set back a distance from the grid. He concluded that, both in respect of 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.
9. The judge also held that it was likely that prior to the transfer of assets from Shannon Development to the Council, an inspection or survey of the condition of those assets had been carried out but it was possible that it did not go into the level of detail which would have picked up the defective features of the concrete surround of the cattle grid. He also expressed surprise that no one on behalf of the Council appeared to have undertaken a search of the archives to determine if a survey report existed.
10. He found on the evidence that the Council was aware that people regularly walked and cycled, as well as drove motor vehicles, on this road, both for work and recreational purposes. He found it 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. He noted that prior to the plaintiff’s accident, the plaintiff and many others had cycled over this cattle grid without apparent difficulty.
11. The court then turned to a consideration of the legal issues arising, noting that the plaintiff’s claim was advanced under two principal headings, first, that the Council was liable in its capacity as a road authority for misfeasance in respect of the condition of the cattle grid and secondly, that it was liable because the cattle grid amounted to a public nuisance. The judge noted that alternative and subsidiary claims were advanced both on foot of the Occupiers Liability Act, 1995 and the Roads Act, 1993.
12. In considering these issues, the trial judge first turned to an analysis of the law relating to negligence and in particular misfeasance versus non-feasance. He described the Council’s “immunity” from liability in the case of non-feasance, noting that this was abolished by s. 60(1) of the Civil Liability Act, 1961 but that section was never commenced. The immunity was preserved by s. 2(3) of the Roads Act, 1993. He then turned to an analysis of the authorities to which I will come in due course. On the issue of negligence, I think it is fair to summarise the trial judge’s finding of liability against the Council as arising from the fact that they were the successors in title to Shannon Development who were negligent in constructing the cattle grid and concrete ramp.
13. He held that this deprived the Council of the defence of non-feasance. He further based this conclusion on the fact that a survey at the time of transfer ought to have revealed the defect in the road. Although recognising that this might appear unfair to the Council, he noted that it was open to the Council to obtain an indemnity from Shannon Development at the time of the transfer and this mitigated any perceived unfairness. He considered that as a matter of “common sense”, liability should rest on the Council in respect of the negligence of its predecessor.
14. Having found the Council liable to the plaintiff on the basis of negligence, the judge then considered the alternative claim advanced concerning a public nuisance on the highway. He was satisfied that in addition to being liable to the plaintiff in negligence in its capacity as road authority, the Council was also liable for the tort of nuisance. He referred to a number of cases in this respect from which he concluded that there was ample authority for the proposition that where a private individual could show particular or special damage arising from such public nuisance, he could bring a claim in respect of it against the relevant highway authority.
15. The cases referred to by the judge, which I will shortly examine, were in his view sufficient to defeat the contention of the Council that it could it have no liability in public nuisance. As for the Council’s argument that it could not have a liability in public nuisance where it neither created the nuisance nor had knowledge of it, the judge’s view was that this ignored the fact that it was the Council’s predecessor in title that created the nuisance and the Council had the means of knowledge of that nuisance. Since the Council failed to use reasonable care to discover the existence of the nuisance, it was liable. Such liability also flowed from the fact that the nuisance was continued and adopted by the Council. The Council therefore, failed in its duty to remedy the nuisance either when the assets were transferred in 2004 or when it was designated a public road in 2011.
16. Having made those findings, the judge found it unnecessary to express a final view on liability under the Occupiers Liability Act, 1995 or arising under the Roads Act, 1993. He did however express misgivings as to how the 1995 Act could apply in circumstances where the Council could not exclude the public from using the road. He found it difficult to see how the Council could be regarded as the occupier of the road in those circumstances.
17. As regards the plaintiff’s claim pursuant to s.13(2) of the Roads Act, 1993 which provides that it is a function of the roads authority to maintain and construct all local roads within its relevant area, he noted that this claim was not being pushed strongly by the plaintiff and felt it unnecessary to consider it further.
18. Finally, on the issue of contributory negligence the court’s view was that the plaintiff was guilty of contributory negligence to the extent of 25%. Having considered the medical evidence in detail, the court assessed general damages in the sum of €140,000. Special damages were agreed at €11,206.50 resulting in a net decree in favour of the plaintiff of €113,404.87.
Misfeasance and Non-feasance
19. The distinction between misfeasance and non-feasance is one that has been recognised by the common law of England since at least the 18th century. Its first express adoption in Ireland seems to have occurred at the start of the 20th century in Harbinson v. County Council of County Armagh[1902] 2 I.R. 538. The plaintiff was travelling over a bridge by horse and cart when the horse put his foot into a hole, throwing over the cart and seriously injuring the plaintiff. The principal issue was whether the common law rule had been modified by the passage of the Local Government (Ireland) Act, 1898 which, in section 82, imposed new obligations concerning the maintenance and repair of highways on the County Council.
20. Lord O’Brien L.C.J. summarised the law in the following terms (at pp. 543 et seq): –
“It remains then to deal with the course of judicial decision upon this subject, and to consider the question whether the Act of 1898 has in any way altered the law by imposing an additional liability upon the defendants. It has been established by a long line of authorities, extending over one hundred years, that road authorities are not responsible in damages at the suit of an individual in an action founded on non- feasance by them. The cases range from Russell v. The Men of Devon2. T.R. 667 down to the case of Saunders v. Holborn District Board of Works[1895] 1 Q.B. 64 in 1895.
The various decisions on the subject down to the year 1892 have been succinctly examined by Lord Herschell in his judgment in Cowley v. Newmarket Local Board[1892] App. Cas. 345, at 353. He says:-
‘It was held as long ago as the case of Russell v. The Men of Devon that an action could not be maintained at common law by one of the public in respect of an injury sustained through a highway being out of repair. This decision was no doubt largely, but it was not exclusively, founded on the fact that the inhabitants of the county are not a corporation, and cannot be sued collectively. In the subsequent action of M’Kinnon v. Penson8 Ex. 319; 9 Ex. 609, brought against the county in the name of their surveyor for a similar cause, it was urged that the 43 Geo. 3, c. 59, s. 4 which enacted that the county might be sued in the name of their surveyor, had removed the only difficulty in the way of the plaintiff. It was held, however, that the effect of the statute was not to create a new liability, but only a more convenient method of enforcing existing rights. And in Young v. Davis2 H & C. 197 it was held in the Exchequer Chamber that a surveyor of highways was not liable to an action for injuries resulting from the breach of his duty to keep the highways in repair…’…
The principle upon which this long course of authority rests is thus very clearly stated by Lord Halsbury in the same case. He says at p. 349 of the report:-
‘The question appears to resolve itself into whether the public authorities in whom the highways are vested by the statute can be held liable in an action for any defect in the repair. I think in this case the liability would have to put upon the ground that there was default in the construction of the highways through which an accident happened to a passenger. The wide consequences of the existence of such a right of action would be very serious.
As long ago as 1788 a question of an analogous character was raised in the Court of King’s Bench; and the argument then, as now, was that where one person received an injury by reason of any other person or persons omitting to do that which by law he or they are bound to do, he may maintain an action in the circumstances to recover satisfaction for the damage he has received in consequence of that omission.
In that case it was said (which seems to me to be decisive of this case) that the principle which decides against this kind of action is accurately stated in Brooke’s Abridgment, tit. Action on the Case, pl. 93, where it is stated that ‘if a highway be out of repair by which my horse is mired no action lies, car est populus et surra reforme per presentment’, which must be understood to mean that as the road ought to be repaired by the public no individual can maintain an action against them for any injury arising from their neglect: Russell v. The Men of Devon.’”
21. Lord O’Brien cited, at p. 546, a further passage from the judgment of Lord Hannen from the same case to like effect, namely that the imposition of a duty by statute to maintain and repair the highway on a public body did not give rise to a cause of action for damages at the suit of a private individual. He also cited the following passage from the unanimous judgment of the Judicial Committee of the Privy Council in The Municipality of Pictou v. Geldert[1893] App. Cas. 524 where Lord Hobhouse said: –
“By the common law of England, which is also that of Nova Scotia, public bodies charged with the duty of keeping public roads and bridges in repair and liable to indictment for a breach of this duty, were, nevertheless, not liable to an action at the suit of a person who had suffered injury from their failure to keep the roads and bridges in proper repair…The latest English case is Cowley v. Newmarket Local Board[1892] App. Cas. 345, decided in the House of Lords. It must now be taken as settled law that a transfer to a public corporation of the obligation to repair does not of itself render such corporation liable in an action in respect of mere non- feasance. In order to establish such liability, it must be shown that the Legislature has used language indicating an intention that this liability shall be imposed.”
22. Two concurring judgments were delivered in HarbinsonThat the rule concerning non-feasance is not confined to negligence, but embraces public nuisance also, is evident from the judgment of Johnson J. who said (at pp. 550-551): –
“In this action the plaintiff sues the defendants (the County Council of County Armagh) for damages for injuries he sustained in consequence of a public county road, which, where the occurrence out of which the alleged cause of action arose, crossed a small stream by an old stone bridge or culvert, part of the structure of the high road, was out of repair and a public nuisance, by the neglect and breach of duty on the part of the County Council (since the Local Government (Ireland) Act, 1898, came into operation) to maintain and keep this public highway in a state of repair, reasonably safe for public traffic. The county council had given this road and bridge into the charge of the county surveyor because no sufficient contractor could be had. From whatever point of view the consideration of this case is approached, in the result, it is an action by an individual for damages against the county council, the public authority, whose duty it is to keep this highway in repair, not for misfeasance in anything they have done in or about such repair, but for non-feasance in omitting to maintain and keep the highway in a proper state of repair, and I think it is clear and settled law that a public road authority, unincorporate or corporate, whose duty by the common or statute law is to keep a public highway in repair, and who may be compelled to do so by the appropriate proceedings for this purpose, is not liable to such an action as the present one, even though their omission is a public nuisance.” (my emphasis)
23. In his judgment, Gibson J. noted (at p.563): –
“In England and Ireland alike, in case of acts of comission, the person or corporation guilty of the wrong could be impleaded by anyone thereby injured.
This being the existing state of the law, had it been the intention of Parliament to make a radical change by giving a right of action to individuals where none existed before, the obvious course would have been (as Pollock, C.B., remarks in M’Kinnons Case 8 Ex. at p.329) to recite the grievance and provide for the remedy in express terms. The statute, however, does nothing of the kind. It operates by way of transfer: Cowley’s Case .”
24. Harbinson provides clear authority for the proposition that even the imposition by statute of a duty to repair and maintain a highway did not, in the absence of express words, operate to upset the long established common law rule.
25. In Gallagher v Leitrim County Council[1955] 89 ILTR 151, the non-feasance principle was restated by Kingsmill Moore J.: –
“The principle is that the local highway authorities are not liable for leaving public roads or footpaths in improper repair; they are not liable for failing to take steps to restore these roads or footpaths to a proper state of repair. If, however, they do anything and do it in such a way as to create a danger they are liable.”
26. An authoritative statement of the principle in more modern times is to be found in the judgment of the House of Lords, subsequently followed in this jurisdiction, in Gorringe v. Calderdale Metropolitan Borough Council[2004] 1 WLR 1057. There, Lord Hoffman said (at p. 1062): –
“10. My Lords, the general rule is that even in the case of occupiers of land, there is no duty to give warning of obvious dangers: see the recent case of Tomlinson v Congleton Borough Council[2004] 1 AC 48. People must accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others. And a highway authority is not of course the occupier of the highway and does not owe the common duty of care. Its duties (and those of its predecessors, the inhabitants of the parish) have for centuries been more narrowly defined, both by common law and statute.
11. At common law it was the duty of the inhabitants of a parish to put and keep its highways in repair. A highway had to be, as Diplock LJ said in Burnside v Emerson[1968] 1 WLR 1490, 1497, ‘in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.’
12. The inhabitants appointed a surveyor of highways to carry out this duty on their behalf and the expense was met by levying a rate. By various statutes culminating in the Highways Act 1959, the duty was transferred from the inhabitants to statutory highway authorities. It is now contained in section 41(1) of the Highways Act 1980; a highway authority is ‘under a duty…to maintain the highway’. But the common law duty to repair was the only duty of the inhabitants. In all other respects the public had to take the highway as they found it. Furthermore, the duty of the inhabitants was a public duty which was enforceable only by a prosecution on indictment. It could not be relied upon by an individual to found a claim for damages. I expect it was thought burdensome enough for the inhabitants to have to pay the highway rate. There was no reason why they should have also to pay damages for injuries caused by the deficiencies of the surveyor in carrying out repairs. The users of the highway were expected to look after themselves.
13. This remained the law when the duty was transferred to highway authorities. An individual who had suffered damage because of some positive act which the authority had done to make the highway more dangerous could sue for negligence or public nuisance in the same way as he could sue anyone else. The highway authority had no exemption from ordinary liability in tort. But the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual. Thus it was said that highway authorities were liable in tort for misfeasance but not for non-feasance. Sometimes it was said that the highway authority was ‘exempt’ from liability for nonfeasance, but it was not truly an exemption in the sense that the authority had a special defence against liability. The true position was that no one had ever been liable in private law for non-repair of a highway…”
27. As Lord Hoffman explains, the rule has never been that the highway authority enjoys a special form of exemption or immunity from suit in respect of nonfeasance. In fact, there is not, and never has been, a liability at common law on any party for failure to maintain the highway. Thus, as was said in argument, when the inhabitants of the parish dedicated a highway to the public, the public took it warts and all. The position in the United Kingdom changed in 1961, but our Civil Liability Act of the same year was never fully implemented in this respect.
28. These authorities also demonstrate that the rule concerning liability for non-feasance extends to all forms of civil liability and is not confined in its operation to causes of action founded on negligence as distinct from public nuisance. The rule is often seen as anomalous, as indeed it was by the trial judge here, unfair and perhaps even unconscionable in some respects. It sits ill with modern concepts of negligence and culpability. Thus, for example, even in circumstances where a highway authority not only knows, or ought to have known, of a danger on the highway but has been repeatedly and explicitly informed of it, it remains the position that it has no liability for a failure to intervene, assuming of course it did not create the danger in the first place. Nor does a highway authority have any duty to warn. As Lord Rodgers put it in Gorringe (at para 80), “travellers had to look out for themselves”.
29. The rule is so firmly entrenched in our law that nothing short of statutory intervention of the kind contained in s. 60 (1) of the Civil Liability Act, 1961 can dislodge it. 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: –
“(3) 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.”
30. In his judgment in McCabe v. South Dublin County Council[2014] IEHC 539, Hogan J. commented on the “illogical distinction” between non-feasance and misfeasance, describing the rule as being “blunt and indiscriminate” and at odds with general principles of tort law. Despite that, he observed that the distinction still retains “its ancient purity in this jurisdiction” and felt constrained to apply it, notwithstanding these misgivings, having regard to the fact that the rule remains embedded in the fabric of our common law undisturbed for over two hundred years. He expressed the view that the rule now probably lies beyond the capacity of the courts to repair or amend, despite it being unsatisfactory and anomalous.
31. The difference between misfeasance and non-feasance is sometimes equated with the difference between doing something or doing nothing, between act or omission. That approach does not always yield satisfactory results. In “Rediscovering the Law of Negligence” (Hart Publishing, Oxford: 2007), Beever, in his commentary on the distinction observes (on p. 209): –
“The general point is this. Deciding not to act is itself an action. When I stay in bed all day I act, and the fact that my body does not move makes no difference to this conclusion. Similarly, I act when I decide to hold my breath and when I decide to start breathing again. All omissions are also actions. Hence, arguing over whether something is an action or omission is like arguing over whether something is coloured or blue.”
32. Counsel for the Council posited the distinction in terms of the difference between making things worse and not making things better, an attractive formulation in my view. Fortunately, the necessity to wrestle with concepts bordering on the metaphysical is avoided by the fact that on any view of the matter here, the Council did not make things worse but merely failed to make them better.
The Approach of the Trial Judge
(i) Inherited defect
33. The trial judge referred to a number of relevant authorities, including some I have mentioned above, and concluded that Shannon Development had negligently constructed the cattle grid and concrete ramp and that this amounted to misfeasance. He went on to say (at p. 47, para. 70): –
“…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 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 non-feasance in respect of the defective construction or installation of that feature.”
34. The judge thus decided that the Council was liable for the negligence of its predecessor in title. 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.
35. In Nash v. Rochford Rural District Council[1917] 1 KB 384, the plaintiff was riding his pony on a highway in respect of which the defendant was the authority. The horse put his foot through the crust of the highway, throwing and injuring the plaintiff. The cause was the negligent construction of a drain under the road. The drain was not constructed by the defendant but by its predecessor in title. The curial part of the judgment as reported in the headnote to the law report is as follows:
“Held by the Court of Appeal, that, as there was no right of action for damages against a highway authority unless actual damage had accrued, the preceding highway authorities were not under any liability which could be passed on to their successors; and, further, that, on the true construction of the Acts of Parliament creating the successive highway authorities, there was nothing to make any such authority liable for acts of misfeasance committed by its predecessors.”
36. The claim was accordingly dismissed.
37. Nash was subsequently applied in Baxter v. Stockton-on-Tees Corporation[1958] 2 All ER 675. There, a county council constructed a road between 1938 and 1940 which included a dangerous feature comprising an unlit island approaching a roundabout. In 1941 a different body, a county borough council, became the highway authority pursuant to statute. In 1955, the plaintiff’s husband, while riding his motorcycle at night, collided with the kerb of the approach island and was killed. His widow brought proceedings against the borough council. Her claim was dismissed by the Court of Appeal. In giving the judgment of the court, Jenkins L.J. noted the facts which have echoes of the present case (at internal p.7): –
“From the time when they took over the road until the time of the accident of the deceased the defendants did not make any alterations to the roundabout or its approaches or the lights and traffic lights to which we have referred. They simply took over the road, roundabout, islands, lights, traffic signs, and all, from the Durham County Council and left them as they were. They were no doubt doing what was necessary in the way of maintenance.”
38. The headnote records the court’s determination: –
“Held- (i) the action failed in limine because the borough council had merely kept the island as they found it when they took over the road.
(ii) Moreover, (a) even if the county council had so negligently constructed the island and road as to be liable for injuries caused by the danger so created while the county council remained in charge of the road (which the court did not find to be the case) yet any such liability would not have been transferred to the borough council; and (b) if the county council had been under a duty to protect the public from danger from the island, viewing it as an obstruction placed on the highway by the county council, any such duty would have flowed from misfeasance in creating the obstruction and would not have been inherited by the borough council.”
39. Jenkins L.J. considered that there was authority for the proposition that a highway authority constructing a road for the public for public use under statutory powers owes a duty to the public to take reasonable care to construct the road properly, so that it will be reasonably safe for the purposes for which it is intended to be used. Thus, if the deceased had been injured while the county council was still in charge of the road, it may have been liable on this principle. However, he continued (at p. 684): –
“Be that as it may, we fail to see how the defendants could be held liable on this principle, inasmuch as they were not the constructors of the road.”
40. He also said (at p. 685):
“It appears to us that the real answer to the submission of counsel for the plaintiff is that failure to light or give some other form of warning of an obstruction on the highway by a highway authority who themselves created the obstruction is taken out of the category of mere non-feasance and brought within the category of misfeasance by their positive act of creating the obstruction giving rise to the need for lighting or other means of warning. But no positive act in relation to the approach island was done by the defendant. They merely kept the island as they found it when they took over the road. The theory that the defendants inherited from the county council the duty to light or provide some other form of warning of the presence of the approach island appears to us (with respect to the learned judge) to be untenable in view of Nash v. Rochford RC[1917] IKB 384.”
41. A similar issue was considered by the High Court in this jurisdiction in Gaye v. Dublin County Council (Unreported, High Court, Morris J., 30th July, 1993) in which the plaintiff fell on a defective footpath in an estate that had been privately constructed but subsequently taken in charge by the local authority. In the course of his judgment, Morris J. noted the plaintiff’s argument that when the local authority took over the estate, they assumed responsibility for any already existing nuisance (at p. 6): –
“It is argued on behalf of the plaintiff that even when the defendants took the estate in charge in 1963 they assumed full responsibility for the nuisance which existed in the estate which may have been created by the builder. Again the validity of any such submission depends entirely upon establishing that the nuisance alleged did in fact exist at the time when the estate was taking in charge. As has already being pointed out, there is no evidence before the court that at the time when the estate was taken in charge the nuisance, if it be a nuisance, existed, and, accordingly, the argument that the defendants must be taken to have adopted the nuisance and assumed responsibility for it must fail.”
42. As appears from this passage, the court did not have to, and did not in fact, decide whether the local authority could have assumed responsibility for a pre-existing defect in the absence of evidence as to when the nuisance originally occurred. Notably however, the same factual position obtains in this case and logically, the same consequence follows. This case was referred to but distinguished by the trial judge on the basis that in the present case, it is accepted by the Council that the cattle grid and concrete surround were present when the assets were transferred by Shannon Development. While that is true, it does not assist in relation to when the nuisance occurred by virtue of the breaking up of the concrete ramp and the formation of the 1inch drop.
(ii) Duty to inspect
43. An additional ground for imputing negligence, and thus misfeasance, to the Council appears to have been the conclusion of the trial judge that the Council was under a duty to survey and inspect the road at the time of transfer and had this been done, the hazard ought to have been detected. Thus he said (at p. 48): –
“…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… 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.”
44. The proposition that a highway authority is bound to inspect a highway and ensure defects are remedied on, or prior to, transfer and/or dedication to the public, is novel, far reaching and contrary to authority. The implications of such a duty for local authorities would be simply enormous. It runs directly counter to the ancient rule that the public take the highway as they find it on dedication. Contrary to what I have already held, they would become liable for inherited defects that they failed to detect by inspection. Highway authorities would become liable for every defect in every footpath and road in every estate taken in charge by them.
45. The trial judge points to the fact that it was open to the Council to seek an indemnity from Shannon Development and that may well be so, assuming that the Council has a discretion to decline the transfer absent such indemnity. As was pointed out to us in argument, a discretion does not always arise. Thus, for example, s. 180(2) of the Planning and Development Act, 2000 was enacted to provide for local authorities compulsorily taking in charge the many ghost housing estates that littered the country following the financial crash of 2008. On the trial judge’s reasoning, each local authority thereby became liable for every defect in every such unfinished estate.
46. That this is not the law is illustrated in a further passage in the judgment of Morris J. in Gaye (at p.6): –
“Moreover, circumstances may arise in which a local authority given the particular circumstances of the case may deem it expedient and proper to take an estate in hand notwithstanding defects. Such a situation might well arise in the event of the builder becoming insolvent. The local authority, adopting the lesser of two evils, may well be prepared to take the estate in charge fully aware of defects. In such circumstances no negligence in failing to inspect would arise.”
47. The proposition also appears to run counter to the intent of the Roads Act, 1993 which as I have already noted expressly preserves the non-feasance rule. Further, it does not provide for any obligation to inspect and remedy defects before taking a road in charge pursuant to s. 11 any more than it provides that a roads authority will be liable for such defects subsequent to the road being taken in charge..
48. The mere fact that a local authority has the power to inspect, and frequently and perhaps even routinely does so, cannot of itself result in the imposition of a liability. In Flynn v. Waterford County Council[2004] IEHC 335, the plaintiff was involved in an accident at a road junction where there was a warning sign that had become obscured by vegetation which the plaintiff claimed constituted a breach of the road authority’s statutory duty to him as embodied in s. 95(3)(a) of the Road Traffic Act, 1961, as amended, which provides: –
“The road authority may provide for public roads in their charge such information signs and warning signs as they consider desirable.”
49. In his judgment, Finnegan P. noted that the word “may” in the section was to be contrasted with the word “shall” in a subsequent section and said (at 4088-9): –
“I cite the last provision in which the word ‘shall’ is used as opposed to ‘may’ in s. 95(3)(a). On this basis I find that s. 95(3)(a) confers a discretionary power on a road authority and not an obligation. Applying the principles enunciated by the Supreme Court in Glencar v. Mayo County Council & Anor[2002] 1 IR 112 to s. 95(3)(a) I am satisfied that it was not the intention of the legislature in enacting that provision to confer on an individual an entitlement to claim for damages. Where a statutory provision does not give a private right to sue it would be most unusual that it should nevertheless give rise to a duty of care at common law: Gorringe v. Calderdale Metropolitan Borough Councils[2004] 2 All ER 326. Lord Hoffman at p. 336 said: –
‘In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom we could reasonably foresee would otherwise be reduced to sleeping rough. And the argument would in my opinion have been even weaker if the council, instead of being under a duty to provide accommodation merely had a power to do so.’
In the present case, the defendant merely has a power to erect signs. I am satisfied that that power does not give rise to a cause of action in a person who suffers injury because of their failure to do so as a breach of statutory duties. Neither can the failure to do so give rise to an action for negligence of common law.
The Roads Act 1993 I am satisfied does not alter the common law save and except that it includes within the duty to maintain a road a duty to provide and maintain public lighting. The failure of a road authority to maintain a public road does not confer upon an individual a right to civil redress for damages: Brady v. Cavan County Council[2000] 1 ILRM 81 and Harbinson v. Armagh County Council[1902] 2 IR 538.”
50. It is clear to my mind therefore that the Council here had no statutory obligation to carry out an inspection of the road prior to taking a transfer from Shannon Development, less still an obligation at common law to do so. Even if such a statutory obligation, as distinct from discretionary power, to inspect existed, such an obligation would not operate to modify the common law non-feasance principle unless expressly so provided in the statute or arising by necessary implication. As we have seen, even a statutory obligation to repair does not give rise to a private law remedy, absent express words to that effect in the statute.
(iii) Public Nuisance
51. Every danger on the highway is a public nuisance. As stated by His Honour Judge O’Briain in Hassett v. O’Loughlin[1943] 78 ILTR 47:
“A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes use of the highway unsafe or dangerous to the public.”
52. The trial judge gave separate consideration to the Council’s liability in public nuisance as distinct from negligence. Although perhaps not entirely clear, the judge appears to have considered that the doctrine of misfeasance/non-feasance is applicable to negligence but not necessarily nuisance. Referring to McMahon and Binchy’s Law of Torts (4th Ed, Bloomsbury 2013), the judge said it is open to a private individual to maintain civil proceedings where that person had suffered “particular” or “special” damage as a result of a public nuisance.
53. He referred to a number of cases where damages were recovered for dangers on the highway amounting to a public nuisance. However, many of the cases referred to by the trial judge were claims for a public nuisance on the highway created by third parties such as adjoining land owners, rather than claims for public nuisance against a highway authority where that authority was not the creator of the nuisance. The distinction is critical because the non-feasance rule has no application to parties other than the highway authority.
54. In equating the two, the trial judge in my view fell into error. The non-feasance rule would effectively be set at naught if it only applied to claims in negligence but not in public nuisance. Such a limitation is quite inconsistent with the passages in the judgments I have already highlighted. Although the High Court judgment in this case contains a consideration of whether negligence is a necessary ingredient to the establishment of liability in public nuisance, that can only be relevant here if the non-feasance rule is inapplicable to nuisance.
55. Thus, in Hassett, the defendant placed a heap of stones on the highway which caused the plaintiff’s horse to shy and the defendant was liable for the consequences even though he had not been negligent. Mullen & Ors. v. Forrester[1921] 2 IR 412 was another case involving the liability of the owner of land adjoining the highway for causing a danger amounting to a public nuisance on the highway.
56. The judge also referred to Skilton v. Epson and Ewell Urban District Council[1936] 2 All ER 50. That case was brought against the highway authority for public nuisance and was relied upon by the plaintiff both in the High Court and in this court. There, the defendant council in the exercise of statutory powers under the Road Traffic Act 1930 inserted a stud or “cat’s eye” in the highway. It subsequently became dislodged and as the plaintiff was cycling nearby, a passing car threw up the stud which knocked the plaintiff from her bicycle. The Court of Appeal held that the insertion of the stud was not done as part of the defendant’s duty as highway authority to maintain the highway but that it amounted to a public nuisance for which it was liable.
57. I find it difficult to see how this case assists the plaintiff. Unlike in the present case, the defendant in Skilton created the nuisance by inserting the cat’s eye which subsequently became dislodged. In fact, if anything the judgment is supportive of the Council’s position here as it expressly recognises that the non-feasance rule applies to nuisance. Thus, Slesser L.J. says (at pp 53-54): –
“The question which has to be decided by the court is this, essentially. Have the defects caused a nuisance in the highway? If they have caused a nuisance in the highway, it may be that they are responsible to that individual who has been injured as a consequence of that nuisance; but there is an important exception to the general principle for nuisance in an action. In the case of the maintenance of highways, for a very long time indeed – in fact the law knows no view to the contrary – it has been held that a local authority who are the highway authority are not responsible for the mere non-repair of the highway. It is not necessary for this purpose, though the matter appears in some of the older abridgments, to go further back than the case of Russell v. Men of Devon, in which I think the side-note expresses accurately the view of the court:
‘No action will lie by an individual against the inhabitants of a county, for an injury sustained in consequence of a county bridge being out of repair.’”
58. Slesser L.J. therefore, explicitly recognises that the non-feasance rule applies to nuisance. Skilton was referred to by Finnegan P. in Flynn where the plaintiff, as here, relied upon it as authority for the proposition that the defendants were liable for creating a danger on the highway by permitting the sign to be obscured. He said (at pp. 4090-4091): –
“… I am satisfied that the Plaintiff cannot bring himself within the principle upon which [Skilton] was decided – 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. In the circumstances giving rise to this claim the existence of the obscured sign does not constitute a nuisance.
If no sign had been erected this could not give rise to a claim by an individual for damages for breach of statutory duty: Glencar v Mayo County Council and Another[2002] 1 IR 112. If the failure to erect a sign cannot give rise to liability can the Road Authority be liable if having erected a sign they fail to maintain the same by ensuring that it remains visible? In Gorringe v Calderdale MBC[2004] 2 All ER at 334 Lord Hoffmann said: –
‘If the Highway Authority at common law with no duty other than to keep the road in repair and even that duty was not actionable in private law, it is impossible to contend that it owes a common law duty to erect warning signs on the road. It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.’”
59. Here, the Council did nothing to create the risk nor did they do anything to avert it. They did not make things worse but merely failed to make them better. In commenting on Flynn, the trial judge 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. That is true up to a point. A road authority may be liable for a nuisance it creates but Flynn is certainly not authority for the proposition that a road authority is liable for a nuisance it merely inherits.
60. Consistent with that is the decision of the Supreme Court in Kelly v. Mayo County Council[1964] IR 315, also cited by the trial judge. Lavery J. considered that if the highway became damaged and a source of danger to users as a result of the passage of the local authority’s lorries over it, that might amount to an actionable nuisance but on the facts, the Supreme Court was of the view that this had not been established. That again appears to be no more than a statement of the principle that if the highway authority creates a public nuisance on the highway, it may be liable for it. That does not aid the plaintiff herein but more importantly, it says nothing to the applicability of the non-feasance rule to nuisance, which remains the law in Ireland
61. Thus, the trial judge’s observation at para. 79, having analysed these authorities, that “[i]t 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” is not sound and does not follow from the authorities said to support it. The Council here is not contending that, qua roads authority, it has no possible liability in public nuisance. Its contention is a much narrower one, namely that it is not liable in public nuisance where the alleged danger was not created by it but was present when the road and lands were transferred to it and when the road was taken in charge.
62. The judge also referred to O’Shaughnessy v. Dublin City Council and Others[2017] IEHC 774 where the High Court held the defendants liable in respect of a piece of stone which jutted out from the foot of the wall of a Luas bridge constituting a public nuisance over which the plaintiff tripped. There, it appears that liability was imposed on the owners and operators of the Luas as adjoining landowners for adopting the nuisance created by its predecessor in title, which again is consistent with the earlier authorities.
63. At para. 82, the judge noted the Council’s contention that it could have no liability in nuisance in circumstances where it had not created the alleged nuisance and had no knowledge of it and its reliance on the judgment of the High Court in Dempsey v. Waterford Corporation[2008] IEHC 55 in that regard. Having set out the facts of that case, the judge said (at p. 56): –
“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…”
64. The judge therefore, appears to again impute liability to the Council for the wrong of its predecessor in title, which I have already held to be erroneous. He appears to consider that the trigger for this liability was either the transfer in 2004, or the designation as a public road in 2011, or both. Neither had that effect, in my view, as already explained. He then returned to the theme of the failure to carry out an inspection: –
“83. …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 surveyor 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.”
65. I have already dealt with this conclusion and the reasons why I believe it to be incorrect. The knowledge or otherwise of the Council was entirely immaterial to its liability. The evidence established that from the acquisition of the assets by the Council in 2004, it did nothing in relation to this cattle grid and concrete ramp. It follows from this, by the application of the non-feasance rule, that it can have no civil liability to the plaintiff, irrespective of the category or classification of such liability. Perhaps counterintuitively, even if the Council had full knowledge of the danger by being repeatedly warned about it, that is, as already explained, nihil ad rem.
66. Nor is that conclusion in any way affected by whether the nuisance was continued or adopted by the council. The trial judge considered that his conclusion was supported by the judgment of the House of Lords in Sedleigh-Denfield v. O’Callaghan[1940] AC 880 on which the plaintiff places reliance. That case did not involve a nuisance on the highway at all.
67. A trespasser put a pipe on the defendants’ lands for carrying off rainwater. The defendants subsequently became aware of it and continued to avail of it. It became blocked and flooded the lands of the adjoining owner. The defendants were held liable even though they had not created the nuisance originally. The plaintiff relies on the following passage in the speech of Lord Atkin as support for its contention that the Council assumed liability for the nuisance in this case, even if they did not create it (at p. 899): –
“In the present case, however, there is as I have said sufficient proof of the knowledge of the defendants both of the cause and its probable effect. What is the legal result of the original cause being due to the act of a trespasser? In my opinion the defendants clearly continued the nuisance for they come clearly within the terms I have mentioned above. They knew the danger, they were able to prevent it and they omitted to prevent it. In this respect, at least, there seems to me to be no difference between the case of a public nuisance and a private nuisance and the case of Attorney General v. Tod-Heatley, is conclusive to show 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. I cannot think that the obligation not to ‘continue’ can have a different meaning in ‘public’ and in ‘private’ nuisances.”
68. The trial judge extrapolated from this that liability in public nuisance could still arise in circumstances where the nuisance was continued and adopted by the Council in this case, as he found. I cannot agree with that conclusion for the reasons I have already given. The judgment in Sedleigh-Denfield contains no implications for the non-feasance rule and is simply irrelevant to it. The fact that it has been followed in this jurisdiction in cases such as Larkin v. Joosup[2006] IEHC 51 and UCC v. ESB[2015] IEHC 598 does not advance matters.
69. At para. 86 the trial judge said: –
“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.”
70. This conclusion by the trial judge is as radical as it is novel. With respect, I do not believe that any of the authorities to which the judge refers can be taken to support this proposition, which is contrary to centuries of jurisprudence. A duty to remedy a nuisance not created by the Council simply cannot co-exist with the non-feasance rule.
(iv) Occupier’s Liability/Council as owner of the soil
71. It is, as I have said, not entirely clear if the trial judge based his conclusions on liability on the asset transfer in 2004 or the subsequent designation as a public road in 2011. He did, however, recognise that there were potential difficulties with the concept of occupier’s liability where a public highway is concerned, although he found it unnecessary to decide that point in the light of his previous determination on negligence and nuisance. I agree with the views he expressed concerning the Occupiers Liability Act, 1995. 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.
72. In McGeown v. Northern Ireland Housing Executive[1995] AC 233, the plaintiff tripped on a dangerous hole in the footpath of a housing estate where she lived, which was owned by the defendant. The plaintiff brought a claim for damages, inter alia based on an alleged breach of the Occupiers Liability Act (Northern Ireland) 1957. The House of Lords held that a person using a public right of way did so by right and could not be the visitor of the owner of the land over which the way passed for the purposes of the Occupiers Liability Act. Accordingly, the landlord was not liable to the user of a public right of way for negligent non-feasance.
73. In the passage of Lord Hoffmann’s judgment in Gorringe to which I have already made reference, he also expresses the view that the highway authority is not the occupier of the highway and does not owe the common duty of care.
74. A similar conclusion was arrived at by the High Court in this jurisdiction in Stephenson v. Sligo County Council[2019] IEHC 617. The plaintiff was caused to slip and fall on a public access road to Aughris Pier in County Sligo. She pleaded, inter alia, a breach of s. 4(4) of the Occupier’s Liability Act, 1995. The plaintiff’s complaint was that the defendant had failed to properly remove slippery material from the surface of the road, relying in effect, on non-feasance. It should be noted that this judgment post-dates the High Court judgment in the present case.
75. In a section of his judgment, Haughton J. considered the application of the Occupier’s Liability Act, 1995 to a road authority. There was no direct evidence as to the ownership of the road but Haughton J. was satisfied that the evidence pointed to it being part of a public roadway, which was probably constructed by the Grand Jury along with the pier to which it afforded access. While there was no evidence that the road was formally taken in charge by the defendant, he was satisfied that it was a public road within the meaning of the Roads Act, 1993. This was also clear from the fact that the defendants had undertaken works on the road some years earlier.
76. He concluded therefore that the claim against the defendant council was in their capacity as road authority. Interestingly, he noted at para. 71 that “such a claim engages the common law liability of the road authority for misfeasance and negligence and public nuisance, which I accept has survived the Occupiers Liability Act 1995…”
77. He went on to say (at para. 72): –
“…Mr. Bland, on behalf of the defendant, submitted that ‘no slip or trip and fall claim against the road authority has been determined under the Occupier’s Liability Act 1995 in the twenty-four years and thousands of slip and fall claims since its enactment for the very good reason that it has been universally accepted that the Occupier’s Liability Act 1995 has no application to such claims against roads authorities.’ This accords with my own experience as a practitioner and as a judge.
73. Mr. Christie sought to rely on s.13(2) of the Roads Act 1993 as placing on the defendant an obligation to maintain the access lane. It provides: –
‘(2) It shall be a function of the Council of a County, the Corporation of a County or other borough or Council of an urban district to maintain or construct all local roads – (in the case of the Council of a county – in its administrative county, ….’
However, this provision is empowering, and does not create a mandatory or actionable duty to maintain or upgrade any particular road. As Mr. Bland argued, it is a matter of policy for the road authority to decide how and where and when to spend the monies at its disposal for road maintenance and construction, and it is not an area in which the courts can, or should, interfere. As Keane C.J. stated in Glencar Exploration plc v. Mayo County Council[2002] IR84 at p.140-141: –
‘For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non- exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property. ’ [Emphasis added]
This principle was applied by Finnegan P. in the context of a road traffic accident in Flynn v. Waterford County Council (Unreported, High Court, 20th October, 2004) where the ‘Stop’ sign had been vandalised, left in the ditch and led to an accident at the junction. There was no positive obligation on the Road Authority to erect a sign.
It is therefore clear that the Road Authority has no statutory or common law duty to improve an existing road which can be the basis for an action in negligence.”
78. Accordingly, Haughton J. concluded that the Occupier’s Liability Act, 1995 had no application and that the common law rule concerning non-feasance applied.
Evidence concerning the danger
79. For completeness, I should refer to this point, described by counsel for the Council as very much a secondary point. Although the trial judge held that Shannon Development was negligent in constructing this cattle grid and concrete ramp in the manner it did, it is clear that the danger and hence, the public nuisance, only eventuated when the concrete edge broke away. As the trial judge remarked, when this occurred was never established. If it could be said that the Council had any liability arising from its failure to inform itself of the danger, whether by inspection or otherwise, there was, in fact, no evidence to establish that it could have done so.
80. As I have already noted above, the concrete could have broken away at any time, even in theory on the morning of the plaintiff’s accident, and thus an inspection in 2004 or 2011 might have revealed nothing. That is true as far as it goes, but the counter-argument to that point is that even in the absence of the broken concrete, an inspection ought to have disclosed that the ramp was defectively designed and liable to disintegrate at any time. However, in my judgment, nothing really turns on this in the circumstances already outlined.
Conclusion
81. It is impossible not to feel considerable sympathy for the plaintiff in this case. He was engaging in a harmless and healthy leisure pursuit when an accident befell him, largely not of his making, which has had permanent and serious repercussions for him. One instinctively feels that a remedy ought to be available for someone like this plaintiff who falls victim to the negligence of a public body, albeit not the defendant in this case. The ancient non-feasance rule which originated in England has long since been abolished there but still holds sway in this jurisdiction. Perhaps it is time for it to be re-evaluated, but such is now beyond the competence of the courts.
82. It is with some regret therefore that I would allow this appeal, set aside the Order of the High Court and dismiss the plaintiff’s claim.
83. My provisional view with regard to costs is that as the Council has been entirely successful in this appeal, it should be entitled to its costs in this court and the court below. The point of principle at issue in this case is a very important one, not just for the parties to these proceedings but many other public authorities. This judgment will undoubtedly be of assistance to such bodies. In the light of that fact and the comments I have already made, I would strongly urge on the Council that it might reasonably consider not seeking its costs in these proceedings against this unfortunate plaintiff. If the plaintiff wishes to contend for an alternative form of order, he will have liberty to apply to the Court of Appeal Office within fourteen days of the date of this judgment for a short supplemental hearing on costs. In default of such application, an order in the terms proposed will be made unless within the same period the court is informed by the parties that an accommodation has been reached.
84. As this judgment is delivered electronically, Faherty and Collins JJ have indicated their agreement with it.
Swift v. Westport U.D.C.
[1944] I.R. 276
Black J. 276
Occupiers Liability Basis pre-1995 Act
SULLIVAN C.J. :
Dec. 20.
I have read the judgment prepared by Mr. Justice Murnaghan: I agree with it and have nothing to add.
MURNAGHAN J. :
This matter comes before the Court by way of Case Stated under s. 38, sub-s. 3, of the Courts of Justice Act, 1936, under which a Judge of the High Court hearing appeals from judgments or orders of the Circuit Court may refer any question of law arising in such appeal to this Court.
Mr. Justice Gavan Duffy, on the hearing at Castlebar of an appeal by the defendants against a decree made in favour of the plaintiff, agreed to state the case with which the Court is now concerned.
[The action was brought by Margaret Swift, an infant, suing by her father and next friend, Michael Swift, against the Westport Urban District Council, and the indorsement of claim is for damages for that the defendants, their agents and servants, as sanitary authority, so negligently and carelessly erected, maintained and supervised a certain iron grating, which was the cover of a gully-trap, in the highway at High Street, Westport, in the county of Mayo, that same was, and is, attractive and dangerous to children and the plaintiff, while playing with the said grating, was injured by same falling on and injuring her leg.
The facts as found by the learned Judge are set forth with care and in great detail in the Case Stated. I shall refer to the main facts in a summary way.
The plaintiff, a child aged about 5 years and 3 months, was on the 22nd July, 1941, in company with her brother, aged about 7, in High Street; her father’s house was about 25 feet distant from the iron grating and was the only occupied house in the immediate vicinity. The occurrence took place in daylight, and, as the case finds, “(a) at the time of the accident the plaintiff was playing in High Street while her brother was playing close by.” Paragraph 8 of the Case finds other material facts dealing with the occurrence as follows:”(b) the plaintiff caught and lifted the cover of the gully-trap with both hands; (c) the cover fell from her hands on to her right foot, severely injuring her big toe; (d) she was able to lift the cover and she extricated herself; and her father, running out of his house, picked her up some five yards away from the gully-trap; and (e) her mother was absent from home on an errand at the time.”The learned Judge also stated that High Street is in a district occupied by poor people, that there is little traffic on this street, and that children habitually play on it.
The defendants, as appears from the indorsement of claim, are sued as the sanitary authority, and the Case finds (par. 11) that the defendants, as such sanitary authority, have the powers and duties of an urban district council, and that all sewers within the district, together with all buildings, works, materials and things belonging thereto, are vested in, and under the control of, the defendant corporation as such sanitary authority, and, in particular, the said gully-trap and its appurtenances are so vested in the defendants and under their control.
It will, I think, be useful to turn to the Public Health (Ir.) Act, 1878, and it will be found that s. 15 of that Act is the enactment under which sewers, etc., are vested in the sanitary authority. Sect. 17 of the Act enacts:
“Every sanitary authority shall keep in repair all sewers belonging to them and shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of the Act.”
The Case Stated finds in paragraph 6 that the gully-trap is laid to carry away surface water, and in paragraph 12 (a)that the gully-trap is set in a limestone casing into that portion of the roadway which consists of a water-channel, about 20 inches wide, running close to the kerb of a footpath along the High Street; (b) that it is a well made contrivance and consists of a cast-iron box, 15 inches deep, fitted with a slotted and hinged cast-iron cover; (c) that the cover measures 111/2 inches in width by 181/2 inches in length, and its slots are 11/4 inches wide; (d) that there is no locking device to fasten the cover; (e) that this cover fits into the frame of the gully-trap so as to lie there, when closed, by its own weight and to be level with the surface of the channel where it lies; (f) that the cover is hinged at its lower end and can be lifted to slightly beyond the vertical position, and, when so lifted, will stand, leaving the gully-trap open; (g) that the hinged cover enables the gully-trap to be cleaned, and it is the duty of a scavenging contractor to clean it and other gully-traps once a week or more often; (h) that the cover is heavy, and requires about 30 lbs. pressure to raise it, and about 40 lbs. pressure to raise it to 45 degrees; and (i) that the hinged cover was at the time of the accident in working order. The road falls very sharply, at a gradient of about one foot in five, from the house of the plaintiff’s father to the place where the gully-trap is laid (par. 9 (c)).
The Case Stated finds in paragraph 13 that the gully-trap is of a type very widely used, and in paragraph 14 that the gully-trap, when closed, constituted no obstruction and no danger to ordinary traffic. It is also found in the Case (par. 15) that the plaintiff’s accident was the first of its kind, within the sanitary district of Westport, to be reported to the defendants.
The Case Stated deals at great length with the possibility of having some form of locking device, and with the advantages and disadvantages of any such device. On these matters the learned Judge states his finding (par. 23 (e)): “That neither device can reasonably be considered to be impracticable in a town where it is already the duty of a scavenging contractor to visit the road gully-traps once a week or more often,” but he also states his finding (par. 23 (f)): “That accidents to young children playing with a road gully-trap fitted with a hinged cover and no lock have in practice proved to be very rare.” In paragraph 24 of the Case the learned Judge finds as follows:”I find that the gully-trap, placed and constructed as it was in High Street, Westport, was at the date of the accident attractive to young children, 5 or 6 years of age, and dangerous to such a child playing with it.” In paragraph 26 he found that the child was not guilty of contributory negligence.
The Case also finds in paragraph 10 that the defendants have the duty, as the road authority, to take order for the maintenance and construction of the High Street, but it is not found in the Case that the soil of such street is vested in the defendants.
Cases dealing with allegations of negligence where young children have been injured are always difficult, as has, indeed, been observed by Hamilton L.J. in the Court of Appeal in England in Latham v. R. Johnson & Nephew, Ltd. (1). That case is a leading authority on the obligations of a private owner of land to young children who are upon his land as licensees,i.e., with his permission, express or implied, and this case was much relied upon in argument. Similarly, cases were cited which dealt with the obligations of private owners of chattels who brought objects, both dangerous and attractive to children, upon the public highways.
These two classes of cases, though not exactly the same in principle, have many points in common, and I cannot better illustrate this similarity than by quoting the observations of Lord Atkinson, found in his speech in the House of Lords in Cooke v. Midland Great Western Railway Go. of Ireland (2). He says:”I therefore think that if the owner of any premises on which dangerous and alluring machines or vehicles of the character I have mentioned are placed gives leave to boys of a mischievous and intermeddling age, or to children of such tender years as to be quite unable to take care of themselves, to enter upon the premises, he will be quite as responsible for any injury one of the boys or children may sustain as if he had deposited the same machine, or left the same vehicle, in the public street. The right of the boy or child to be on the public street, as one of the public, is, no doubt, a larger right than that which would belong to him as a licensee, but the knowledge of the owner of the machine or vehicle that he is placing or leaving in the way of boys and children a temptation alluring to them, and dangerous in its nature, with which, moreover, it is not improbable they will come in contact, is not less in the latter case than in the former. And it would appear to me that the liability of the owner is at bottom based upon this knowledge.”
The actual decision in Cooke v. Midland Great Western Railway Co. (1) has been very carefully examined in this country and in England, but it is not now necessary to follow this matter. The question which Lord Atkinson referred to in his speech at p. 239, viz., whether in similar circumstances the owner of land was under a like obligation to children who were trespassers, has been answered in the negative in this country: Coffee v. McEvoy (2), and in England in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck (3)in the House of Lords.
It would seem that the knowledge of these authorities has given an orientation to the arguments before Mr. Justice Gavan Duffy, which is reflected in the two questions which the learned Judge has submitted for determination by this Court. These two questions are:
(1) whether the plaintiff ought to be non-suited as a trespasser? and (2) whether upon the facts the road gully-trap, placed and constructed as it is, and erected and maintained by the defendants as aforesaid, is in law capable of constituting an allurement, and an allurement of such a character as to entitle the plaintiff, if she is not non-suited as a trespasser, to succeed in this action?
The first question, as I understand it, asks whether the plaintiff was a trespasser on the roadway before she intermeddled with the grating, and is put, I think, on the basis that an infant trespasser has no cause of action unless there is on the part of the owner of the land a wilful intention to injure.
If the answer to this question should be a decisive factor in the determination of legal liability in the present case, I should be disposed to hold that the infant plaintiff was not a trespasser on the road. As I have pointed out the road was not vested in the defendants; and, even if it were, I cannot think that the finding in the Case that the plaintiff was playing on the road was intended to be a finding of fact which would amount to such an excessive user of the road as would make the plaintiff a trespasser in the light of such authorities as Fielden v. Cox (4) and Harrison v.Duke of Rutland (5). However, for the reasons I shall later indicate, this question does not become a material one in the present case.
The second question, as I understand it, is based on a view that the plaintiff, not being a trespasser, but being at least a licensee upon the road, would be entitled to be protected against an allurement which is dangerous. Hamilton L.J. states the general principle in Latham v.R. Johnson & Nephew, Ltd. (1):”The rule as to licensees, too, is that they must take the premises as they find them apart from concealed sources of danger; where dangers are obvious they run the risk of them.” In the case of children, however, the idea of the concealed source of danger is developed by him at p. 416 in these words:”On the other hand, the allurement may arise after he has entered with leave or as of right. Then the presence in a frequented place of some object of attraction, tempting him to meddle where he ought to abstain, may well constitute a trap, and in the case of a child too young to be capable of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object.” This second question thus seems to ask whether the gully-trap in question could in law be regarded as “a concealed source of danger” or “trap”within the principle as thus defined.
Whether, in the case of a private owner of land, who permitted young children to be upon his premises, a gully-trap similar to that described in the Case Stated could be an allurement such as to impose liability, or could not be, is not, in my opinion, the exact measure of liability in the present case. Nor is the test to be applied that which must be used if a private person placed the same type of gully-trap in a way over which young children either by licence or by right were accustomed to pass. The defendants in the present case are by statute empowered to execute certain works upon the roadway. If the statute had exactly specified the type of work to be constructed, and the defendants had adhered strictly to this type of work, they would incur no liability whatever. But the statute has not specified with exactness the type of work to be executed. The relevant section of the Public Health Act, 1878s. 17 directs that the sanitary authority “shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of the Act.” In these circumstances the Court must deal with the matter on the principle that the defendants are liable if they have been guilty of negligence in the exercise of their statutory powers.
Regard must be had to what the statute intended to achieve, and it must be ascertained whether or not the defendants have, in order to achieve this end, acted reasonably, and, in particular, whether they failed to anticipate the presence of children and the likelihood of damage to children by what they have done, without taking reasonable precautions to guard against it.
This I understand to be the principle of law really involved. The Case Stated contains much evidence dealing with the practicability of suggested precautions, and it contains certain findings of the learned Judge, but the case must ultimately depend upon an estimation of all the facts and a determination of what was reasonable in all the circumstances. Such a determination is not within the province of this Court in a Case Stated upon a question of law.
In my opinion the questions put in the Case Stated should be answered in the manner following:
1. This question does not require to be answered.
2. The plaintiff is entitled to recover if the learned Judge is satisfied that the defendants have been negligent in the exercise of their statutory powers, and the test of such negligence is whether the defendants have not acted in a reasonable way to attain the objects contemplated by the Public Health (Ir.) Act, 1878, and, in particular, whether they have failed to anticipate the presence of children and the likelihood of damage to children in the making and maintaining of the gully-trap without taking reasonable precautions to guard against such damage.
O’BYRNE J. :
I agree with the judgment of Mr. Justice Murnaghan, and do not desire to add anything.
BLACK J. :
When Mr. Justice Gavan Duffy asked us to say whether the plaintiff ought to be non-suited as a trespasser, he must have thought that being a trespasser might make a difference. It would make a difference if the defendants were the occupiers of the land on which the injury was sustained, if the decision of the House of Lords in Addie & Sons (Collieries), Ltd. v. Dumbreck (1) is accepted here. The defendants would not be liable to the trespasser for ordinary negligence. There would have to be “some wilful act involving more than absence of reasonable care”something amounting to malice actual or constructive.
But in the present case the defendants were not owners or occupiers of the street. They had merely certain statutory rights and duties affecting it. Does the doctrine in Addie & Sons (Collieries), Ltd. v. Dumbreck (1) apply to people in that position? It was expressly founded on the principle stated by Lord Kinnear in Devlin v. Jeffray’s Trustees (2),that “when people come on the lands of others for their own purposes without right or invitation, they must take the lands as they find them.” The dictum does not say that it is only so far as the owner or occupier is concerned, that the trespasser must take the lands as he finds them. It says he “must take them as he finds them.” It does not expressly limit the trespasser’s disability to cases where the owner or occupier is defendant. The only express exception is that asserted in Addie’s Case (1), namely, where there is actual or constructive malice. True, Lord Kinnear went on to say that trespassers “cannot throw any responsibility upon the persons on whose lands they have trespassed.”But his indication of the owners may have been due merely to the fact that in the case before him the defendant happened to be the owner. In nearly all the relevant cases the defendants were the occupiers. I have only at hand one where they were not. It is Petrie v. Owners of SS.”Rostrevor” (3), where the owner of an oyster bed sued shipowners for negligence in handling their ship which destroyed the oysters. The plaintiff had no right to lay down the oyster bed and was thus a trespasser. The defendants were neither owners nor occupiers of the locus in quo. Yet FitzGibbon L.J. quoted Harrison v. Duke of Rutland (4) as in point, thus assimilating the defendants’ freedom from liability to that of the Duke, although in his case the soil of the highway was vested in him. Sergeant Dodd contended that a trespasser could not maintain an action for negligence in the absence of proof of malice, even though the defendants were neither owners nor occupiers. The Court of Appeal exonerated them. Lord Ashbourne thought the standard of care due to a trespasser by the defendants (although they were neither owners nor occupiers) would be an entirely different standard from that which would be applied if the plaintiff was in lawful possession. FitzGibbon L.J., while accepting the finding of negligence in the handling of the ship, said, “this will not give a cause of action to the plaintiff, to whom the navigators of the ship owed no duty . . . The captain . . . was bound to the plaintiff not to recklessly or wilfully injure the oysters.” He saidthere was not sufficient evidence of any “reckless conduct or of such gross negligence” as to create liability to the trespasser.
That looks to me like an express decision of our former Court of Appeal that mere ordinary negligence will not suffice where the plaintiff is a trespasser, even though the defendants are neither owners nor occupiers. The words of FitzGibbon L.J.: “reckless” and “wilful” are the very words stressed in Addie’s Case (1). As against all this, I have not in mind any decision expressly limiting Lord Kinnear’s wide dictum to cases where the defendant is owner or occupier.
Again, in the Excelsior Wire Rope Co., Ltd. v. Callan (2),Lord Dunedin was ready to hold that the plaintiff was not a trespasser, but what he called a “permittee.” Alternatively, he said:”Assuming, as did Scrutton L.J., that the children were trespassers, I think that, to use the words of Lord Hailsham in Addie’s Case (1), the appellants’ servants acted ‘with reckless disregard of the presence of the trespasser’; or, to use my own words, ‘that the acting was so reckless as to amount to malicious acting’.” Yet in the Excelsior Case (2), as Lord Atkin pointed out, the defendants were neither owners nor occupiers of the land on which the plaintiff was injured. It can hardly have been present to Lord Dunedin’s mind, if such be the law, that the fact of the plaintiff’s being a trespasser would be immaterial because the defendants were neither owners nor occupiers. If he had treated it as immaterial, he must then have held that mere absence of reasonable care would have made the defendants liable, and it would have been unnecessary for him, if not, indeed, likely to mislead, to assign as an answer to the defence that the negligence was of such a kind as to amount to malicious acting.
Lastly, in Kenny v. The Electricity Supply Board (3)the land on which the plaintiff was injured belonged to, and was occupied by, a person other than the defendants, who had merely a right to maintain their pylons upon it and their wires over it. Notwithstanding this fact, it was argued that Addie’s Case (1) applied, and that more than mere lack of ordinary care must be proved to make the defendants liable, if the plaintiff was a trespasser. Kennedy C.J. explicitly reserved this question. FitzGibbon J. discussed Addie’s Case (1) and the distinctive disability of a trespasser with great elaboration. I am unable to account for his doing so if all the time he thought that the fact of the plaintiff’s being a trespasser would be immaterial, on the ground that the defendants were neither owners nor occupiers of the land.
In view of the foregoing I should prefer not to express any opinion as to whether, in this case, the principle governing liability for negligence on the part of people in the position of the defendants would, or would not, be affected by the fact, if it were a fact, of the plaintiff’s having been a trespasser upon the highway when she sustained the injury.
I should deem it better to Leave that problem open for full and free argument in some future case where it might be necessary to decide it, and to deal with the first question submitted to us by simply answering it. We can only answer it upon the learned Judge’s findings. The only finding that could even remotely suggest that the child might have been a trespasser is the finding that “at the time of the accident she was playing in High Street,” and that “she caught and lifted the cover of the gully-trap.” This alone would not make the child rank as a trespasser upon the street; otherwise the child in Lynch v. Nurdin (1) would have been a trespasser on the street. True, many Judges have explained Lynch v. Nurdin (1) as a nuisance case, although in Cooke’s Case (2) Lord Macnaghten said it was not, and so did the Judges in Donovan v. Union Cartage Co., Ltd. (3). But if there is a doubt about Lynch v.Nurdin (1), there is none about Glasgow Corporation v.Taylor (4). It was a pure case of negligence, and the child’s trespass to the poisonous shrub did not bring him into the category of a trespasser in the park, so as to render applicable the restricted principle of liability to a mere trespasser. That being a House of Lords’ decision of the 18th November, 1921, I treat it as settling the law, and making it impossible to hold that this plaintiff ranks as a trespasser upon the street merely because she committed an act of trespass to the gully-trap. I could not hold her to have been a trespasser upon the street unless I knew, which I do not, that the finding meant more than that her “playing”consisted merely in her meddling with the trap. But even if it meant that she was playing before touching the trap, that without more would in my opinion, be equally insufficient to show that she was a trespasser upon the street. Hickman v. Maisey (5), quoted with seeming approval by this Court in Ferguson v, O’Gorman (1), shows that the old narrow idea of the rights of the public on the highway is out of date. Collins L.J. said it is “subject to all those reasonable extensions . . . recognised as necessary . . . in accordance with the enlarged notions of people in a country becoming more populous and highly civilised,” so long, of course, as the paramount right of passage belonging to the public is not interfered with. Here was a child in a poor street in a country town, and a part where there was only one occupied house, little traffic, and seldom a motor car. Such poor children spend most of their outdoor time upon the street and nearly all their activity may be said to be a form of play. Where it does not amount to obstruction, I believe it is recognised as normal and necessary, if children in such localities are to have any fresh air or exercise at all. I think such recognition is one of the “enlarged notions”contemplated by Collins L.J. Interference with the paramount right of passage would be a different matter. In my opinion the finding of Mr. Justice Gavan Duffy, as it stands, would not justify the classification of this plaintiff as a trespasser upon the highway when she was injured.
I think the wording of the second question and the words”such an allurement” show that the learned Judge had in mind that it is not everything which is in any way attractive to a child that would amount to “such an allurement” as would entitle the plaintiff to succeed. This gully-trap would be dangerous to nobody if not meddled with. It would not be likely to be meddled with if it did not allure. Hence, unless it was likely to be meddled with it would not be likely to be a danger. If it was not likely to be a danger there would be no liability. But the authorities go farther still. I think they show that in order to create liability, not only must there be a likelihood of the thing being meddled with by children and so proving dangerous, but it must be reasonable to have expected people in the position of the defendants to have anticipated that likelihood. I think that is the true test, not merely in the case of an ordinary individual, but in the case of a public body carrying out statutory duties imposed in terms such as those used in s. 17 of the Public Health Act, 1878.
In Papworth v. Mayor of Battersea (No. 2) (2) the defendants were held not liable for an injury to a cyclist caused by a grating on the highway, notwithstanding that it was in fact dangerous from the day when it was laid down owing to defective construction. The ground was that the defendants could not reasonably have been expected to anticipate that it would prove dangerous. Counsel, doubtless realising what Hamilton L.J. said in Latham v. Johnson and Nephew, Ltd. (1) about the difference between cases of negligence and cases of nuisance, insisted that at the trial the question of nuisance was not raised, and was thus not open on the appeal. But in Harrold v. Watney (2)Vaughan Williams L.J. seems clearly to have thought that although framed as a claim for negligence, the case might be decided as one of nuisance, and that a thing on or close to a highway which was only dangerous to children might be a nuisance as affecting a substantial section of the public. But he thought that even considered on the basis of nuisance alone, the test of liability was “ought what the child did to have been present to the mind of the person who created the nuisance as a probable result of his act?” In applying this test, I think that regard must be had to what, in Glasgow Corporation v. Taylor (3), Lord Atkinson called “the nature, character, and strength of the temptation.” In weighing that one must take into account any factor that would be likely to reduce the strength of the temptation to meddle, such, as here, the weight and unwieldiness of the trap, and the extent to which that element might excuse a reasonable man from failing to anticipate danger. Likelihood of being meddled with by children is not in my view established solely by the fact that a thing has in fact been meddled with by a particular child on a single occasion. By analogy, the fact that a motor omnibus skidded and injured a passenger did not in itself prove that the bus was either a danger or a nuisance. See Wing v. London General Omnibus Co. (4).I think that the sharp difference of judicial opinion in that case was rather upon the application of the principle than upon the principle itself.
Another element to be considered in determining whether the defendants ought to be expected to have anticipated the meddling is the finding that for a long period a great number of similar gully-traps have been in public use, and that “the plaintiff’s accident was the first of its kind within the district to be reported to the defendants.”
All these are considerations for the learned Judge and not for me. I am only concerned with the test to be applied.
My opinion would, therefore, be that the first question should be answered in the negative, and the second question in the affirmative, it being understood that this latter answer would not imply that I should myself hold that the grating was such an allurement as would entitle the plaintiff to succeed, but merely that I could not say that it is not reasonably open to a Court to decide the matter either way, provided that it applies the test above indicated in arriving at a conclusion.
The case was accordingly remitted to Gavan Duffy J. for Decision.
GAVAN DUFFY J. :
23 March 1944
I can give my decision on this appeal briefly, because the Case Stated sets out the facts in detail and the Supreme Court has expounded the law; the question left to me is whether the defendant Council was negligent in the exercise of its statutory duty.
The plaintiff was a little girl, living in a street of habitations so little fit for human beings that all the houses in the immediate vicinity of the structure occupied by her father had been pulled down by the defendants. The place where she was hurt was not in a private close, but on the public highway. The object which occasioned her damage was no casual nor unusual feature in the locality, but a permanent fixture. The reasonable expectation was that the slum children would make the street their playground, particularly as the street was so steep as to be unusually free of traffic dangers; the declivity from the child’s home to the gully-trap had a fall of about one foot in five. It was not to be expected that small accidents, entailing no great harm to a child, would be solemnly reported at the Town Hall or Council office; nor were the defendants entitled to assume that a child of five would not, at least occasionally, and perhaps quite often, be allowed out in her own street, and a safe street at that, without a responsible person in charge; her mother was sure to have many other things to do.
I accept the evidence that hinged gully-traps with no locks and of reputable make have been widely used by sanitary authorities for many years. Yet a very simple and satisfactory way to secure them was found, when people were using them for ashpits. And it is highly significant that so experienced a town surveyor of Westport as Mr. Conway considers these gully-traps unsafe. In my view, they are a manifest danger to little children with no playgrounds, in a place like High Street, Westport.
The trap with which the child was playing lay only 25 feet from her own door, on the same side of the road, in a water channel running beside the rough footpath. That was a seductive lure for this little gill of five; a fascinating contrivance with a charm of its own, it was generally wet, muddy and slimy, and had nicely placed bars, peering through which one could (and doubtless one did) enjoy a view of the slush in the sump below; and its grid was movable; once a week at least the town scavenger was to be seen opening it up, so that the children must have been used to the opening of the trap as a familiar and apparently easy operation; the cover was heavy, but, being hinged at its lower end, it was not too heavy for the plaintiff to move. The child then played with this thing of joy, so happily provided almost at her door and probably the most obvious plaything in sight. She lifted the grid with both hands, got her right foot under it and then let the cast-iron cover fall; she had the strength to extricate herself; she suffered a deep gash in the big toe with very severe pain; and the doctor came frequently for about two months.
The plaintiff succeeds upon the evidence in establishing negligence, because the defendants failed to anticipate the presence of children and the likelihood of damage to children in the making and maintaining of that gully-trap in High Street, and failed to take reasonable precautions to guard against damage to children interfering with the gully-trap.
I affirm the decree of the learned Circuit Court Judge, with a variation. I award to the plaintiff the sum of £25 for damages, whereof £20 are to be paid into the Circuit Court for the plaintiff and the remaining £5 represent the fees payable to the doctor. I affirm the decree in the matter of costs and expenses and I award to the plaintiff her costs of this appeal, together with witnesses’ expenses on the same scale as in the Court below, eliminating any fee for the attendance of the plaintiff’s doctor, who was unable to be present at the hearing before me.
7. There was contributory negligence on the part of the plaintiff.”
At the trial of the action in the Circuit Court before Judge Sheehy the plaintiff was awarded a decree for £64 damages, the Circuit Court Judge being of the opinion that, in the circumstances of the case, a special onus lay upon the defendants with regard to the likelihood of injury resulting to children, and that the defendants had not discharged that onus.
The defendants appealed, and the appeal came before the High Court on circuit (Black J.) at Monaghan on oral evidence. The hearing was then adjourned to Dublin for the taking of further evidence and for legal argument.
F. Roe for the plaintiff:
The evidence establishes clearly that the gully-trap which caused the injury to the plaintiff’ was an object of attraction to children amounting to an allurement, and, in view of the ease with which it could be opened and the considerable weight of the grating, it was inherently dangerous to such children as might be attracted to it. The defendants ought to have anticipated both the attractiveness and the danger of the trap, and, having failed to do so, are liable in damages to the plaintiff. [He referred to Cooke v. Midland Great Western Railway Company of Ireland. (1) and to Swift v.Westport Urban District Council (2).]
R. McGonigal K.C. and Michael McGilligan for the defendants:
Assuming that the elements of allurement and danger to children have been established, there is no liability upon the defendants since it has not been shown that they were bound, as a matter of law, to have anticipated both the allurement and the danger: Papworth v, Battersea Corporation (No. 2) (3). Glasgow Corporation v. Taylor (4),which might appear to govern this case, is clearly distinguishable.
McGovern v. Clones U.D.C.
[1944] I.R.
Black, J. 294
Occupiers Liability Basis pre-1995 Act
The plaintiff sustained a somewhat serious injury to his foot. He was then about four years old. Another young boy lifted a street gully-trap, and, while childishly meddling
with it, let it fall on the plaintiff’s foot. The gully-trap was hinged, and although about 40 lbs. weight, a child of five, as the evidence satisfies me, could open it. The accident happened in O’Neill Park, Clones. O’Neill Park is a cul-de-sac,where there is little traffic. There are some 118 humble houses in it, and about 300 children under 12 years of age reside in them. They have no playground, and use O’Neill Park, which is really a public thoroughfare, for this purpose. It is, therefore, a locality where young children would be likely to abound and to exercise their meddlesome proclivities. There are in Clones, and long have been, some 22 gratings of the same type as that which injured the plaintiff. There are over 100 other types of gratings, all, or most of which, do not work upon a hinge, but can be lifted out completely. The type of grating which did the injury is one used by local authorities all over Ireland, and has been described as the Dublin Corporation standard gully. It is made on a large scale by at least two very well-known firms of manufacturers, namely, Messrs. Tonge & Taggart, and the Hammond Lane Foundry.
If, then, this type of grating had proved to be to any appreciable extent a danger or a cause of injury to young children, there was ample opportunity for the fact to have become widely known; for, having regard to their very widespread use, such gratings must exist in many places quite comparable with O’Neill Park, Clones, in respect of their accessibility to young children likely to be playing upon the street. The only evidence of that kind was that a couple of other children had been injured some time previously by similar gratings. There was no evidence that the defendants, or any of their officers, had been made aware of these accidents prior to the plaintiff’s injury. Sergeant Parsons of the Garda Siochana had at the latter date been three years in Clones. He had on two occasions warned children who were lifting gratings in another street, but although he made inquiries, he had heard of no complaints of injuries. A street cleaner had seen children lifting these traps in O’Neill Park on two or three occasions, but did not think this dangerous or report it. Another street cleaner did report to the town superintendent two or three times that he had seen children lifting traps in Cara Street, but these were traps of a different type from the trap in question. The Town Clerk of Clones swore that she never heard any complaint of any of the gratings having injured anybody. Such being the facts, I have to deal with the law, and then with the truly difficult question of its application to the facts in question.
In Swift v. Westport Urban District Council (1) it was strenuously argued that the child who meddled with the grating, as the present plaintiff did, must be regarded as a trespasser upon the thoroughfare for the purpose of determining the principle governing the liability of the local authority which placed the grating where it was. This would mean that upon the doctrine affirmed in R. Addie & Sons (Collieries) v. Dumbreck (2) the defendants would not be liable, inasmuch as no one could contend that the defendants laid down the grating with malicious intent or with such reckless disregard of the presence of the child as would amount to malicious intent. In Swift’s Case (1) in the Supreme Court I stated, and need not here repeat, my grounds for rejecting that theory, citing a dictum of Collins L.J. in Hickman v. Maisey (3) which was approved of by the Supreme Court in Ferguson v. O’Gorman and others (4). I might also have mentioned Culkin v. McFie & Sons, Ltd., (5) where Croom-Johnson J. refused to treat as a trespasser a boy who ran after a lorry in the street to catch sugar falling from it, saving (at p. 620) that “to hold otherwise would be to turn into a trespasser any child who chased his ball into the roadway or ran across the roadway in play.” In Lathamv. R. Johnson & Nephew, Limited (6), Hamilton L.J. drew a clear distinction between the case of a child who is a trespasser when he goes upon the ground at all where he sustains an injury and that of a child who has a right to go upon the ground, but who while there commits an act of trespass to some object which he finds there and by which he is injured. Having regard to the reasons assigned by the Law Lords in Glasgow Corporation v. Taylor (7), I regard that decision as incompatible with any idea that the defendants here, if they would otherwise be liable, could escape on the ground upon which the defendants in Addie’s Case (2),were exonerated.
It is, of course, well settled that people must not place dangerous things which they know or ought to know to be dangerous, without either warning or precaution, in a place where other people are invited to be, and a fortiori where they have a legal right to be, as, for example, a public thoroughfare. I am not concerned with bare licensees, who, although they also have a certain protection, stand upon a different footing. If young children are in question, it may be no defence to say that the offending thing would not jave been dangerous to an adult, or even to a child if the child had not meddled with it. On the other hand, it is not everything with which a child may meddle and with which it injures itself that will subject the responsible parties to legal liability. There are certain kinds of things capable of causing injury in respect of which the law does not differentiate in the way indicated between adults and children. It does not treat a child that is old enough to run about unattended as a creature bereft of all intelligence or instinct of self-preservation. There are many dangers which are regarded as obvious even to quite young children and against which the law expects them to protect themselves. Such dangers are exemplified by the ornamental pond cases: Hastie v. Edinburgh Magistrates (1), and Stevensonv. Glasgow Corporation (2). The same principle was laid down in a different type of case, Plantza v. Glasgow Corporation (3), the Lord Justice-Clerk saying that “a child of five knows perfectly well not to run up against obstructions.” I cannot regard the grating in the present case as belonging to the category of obvious dangers which a young child is expected to appreciate.
At one time I thought it might have been sought to get the plaintiff’s case treated as one of nuisance, as distinct from negligence, and to contend that in that way he might be in a stronger position in law. Hamilton L.J. in Lathamv. R. Johnson & Nephew, Limited (4), emphasized the distinction between these two classes of cases as one which”must never be lost sight of.” Some Judges have held that the much-quoted decision of Lynch v. Nurdin (5)could only be supported on the basis of nuisance, while others have been equally convinced that it was a case of negligence simpliciter. Amongst those who based it upon nuisance were Walker L.C. and Holmes L.J. in Cooke v.Midland Great Western Railway Company of Ireland (6),Vaughan Williams L.J. in Harrold v. Watney (7), Farwell and Hamilton L.JJ. in Latham v. R. Johnson & Nephew, Limited (4), Warrington L.J. in Hardy v. Central London Railway Company (8), and Greer L.J. in Liddle’s Case (9).On the other hand, those who rejected the nuisance explanation include Lord Macnaghten in Cooke’s Case (10),Acton and Talbot JJ. in Donovan v. Union Cartage Company (1), and, seemingly, Slesser L.J. in Liddle’s Case (2).The present case, however, was neither framed nor presented as a case of nuisance as distinct from a case of negligence; and, apart from this, I am relieved of the necessity of entering into the interesting controversy mentioned by the decision of the Supreme Court, to which I was myself a party, in Swift v. Westport Urban District Council (3). In accordance with that decision, I must test the liability of the defendants here by asking myself one net question, namely, whether in all the circumstances they ought to have been expected to have anticipated that the offending grating in O’Neill Park was likely to be meddled with by young children and to cause them injury, and to have taken precautions against that likelihood.
This test of whether reasonable men ought to have anticipated a likelihood of danger was established by a wide range of authority. It was the decisive question posed in Sullivan v. Creed (4), where it was repeated in turn by Gibson J., Palles C.B., and FitzGibbon, Walker, and Holmes L.JJ., respectively. It was reiterated in Latham v. R. Johnson & Nephew, Limited (5) by Hamilton L.J., whose words were quoted with approval in Glasgow Corporation v.Taylor (6) by Lord Buckmaster and Lord Shaw. Hamilton L.J. was dealing with a child case, and he made it a condition of liability that the defendant “ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object.” But later in his judgment (p. 416) he says:”What objects which attract infants to their hurt are traps even to them? Not all objects with which children hurt themselves simpliciter.A child can get into mischief and hurt itself with anything if it is young enough.” And at p. 419:”One asks what kind of chattel it is in respect of which its owner owes a duty of care towards strangers, equally whether it is in a public place or on his own premises, and equally whether the strangers are invited or only licensed. There is only one answer: the chattel must be something highly dangerous in itself, inherently or from the state in which its owner suffers it to be.” These words of Hamilton L.J. (later Lord Sumner) carry special weight quite apart from the judicial eminence of their author, namely, because his judgment in Latham’s Case (5) has since been so often quoted with approval in judgments and in speeches in the House of Lords that it may be said to have
been treated as a classic exposition of the law on the points with which it deals. The phrase a “highly dangerous thing” had been used in the same connection by Lopes J. in Parry v. Smith (1). The phrase “dangerous in itself”without the qualifying word “highly” occurs in many judgments, and almost always the Judges who have used it have given as illustrations such things as loaded guns, poisons, and the like, which shews that they were thinking of things capable of causing fatal, or a very high degree of, harm. Indeed, in the relevant cases in which the plaintiff succeeded, the thing which did the harm was in its nature capable of producing the gravest degree of harm. Examples are the loaded gun in Dixon v. Bell (2), and in Sullivanv. Creed (3); the horse and vehicle in Lynch v. Nurdin (4), Illidge v. Goodwin (5), and Engelhart v. Farrant and Company (6); the bottle of phosphorous in Williams v.Eady (7); the soda water bottle in Crocker v. Banks (8);the chevaux de frise in Clark v. Chambers (9); the bank of sand in Mackenzie v. Fairfield Shipbuilding and Engineering Company, Limited (10); the insecure shutter in Findlayv. Angus (11); the crushing machine in Campbell v. Ord and Maddison (12); the rotten fence in Harrold v. Watney (13);the unsafe barricade in Jewson v. Gatti (14); the turntable in Cooke v. Midland Great Western Railway Company of Ireland (15); and the poisonous berry in Glasgow Corporationv. Taylor (16).
The thing which caused the harm in all these cases was something that anybody would know might well result in death, or serious mutilation, or a fall causing either of those results. If one thought of it one might realise that the hinged grating in this case could cause a young child to lose fingers or toes. Moreover, if left open, a pedestrian or a horse could trip upon it or set a foot in the trap with grave results. Yet a quite reasonable person might never think of these possibilities; for the very character of the thing and its position flat upon the ground with the appearance of a fixture would be unsuggestive of danger. In Duffv. National Telephone Company, Limited (17), Lord Shand said “It is not perhaps easy to define what the word
‘dangerous’ precisely means when used in cases of this kind, but I think that the cases we were referred to explain themselves, and define tho term.” If the cases I have above quoted can be said implicitly and by way of analogy to define the term, dealing as they do solely with a range of things which anybody would see at first sight to be capable of causing very grave injury, it may seem doubtful whether they may not by analogy exclude such a contrivance as one of these common street gratings.
For myself, I incline to give a wide meaning to Lord Sumner’s classification of things “highly dangerous in themselves,” and to make inclusion in it depend, not so much upon the gravity of the injury such things are capable of causing, as upon their known likelihood to cause some appreciable injury to persons innocent, of contributory negligence or too young properly to be deemed blameworthy contributors to their own injury. What exactly the force of Lord Sumner’s word “highly” as qualifying the phrase”dangerous in itself” may be I shall not venture to say; but it would seem at least to point to the exclusion of things which average, careful people would be likely to associate in their minds with harmlessness, or not to associate with injury even to children, notwithstanding that they might in fact cause harm to blameless victims or have been calculated ab initio to do so, like the sunken grating in Papworth v. Battersea Corporation (1). In that case a cyclist was thrown and hurt by a grating placed in a depression in the street. The jury found that, placed as it was, it had been dangerous from the day it was laid down, but that the defendants were not negligent in having failed to apprehend the danger, even though the grating and the depression were plain for everybody to see. The jury’s findings are of small account; but what is of interest is that the Court of Appeal saw nothing unreasonable in them. There are cases in which it may not be negligence to place a thing in a public street or not to apprehend danger from it, even though it proves to be, and to have been all along, in fact dangerous. Papworth v. Battersea Corporation (1) was held to be such a case.
It seems to me that the law does not demand that people should anticipate danger from things from which, or in circumstances in which, ordinary people, reasonably mindful of the safety of others, do not normally anticipate danger; for it is our experience of the care which reasonable men normally take in given circumstances which is our only
criterion for judging what care ought reasonably to be expected in those circumstances.
This principle appears to underlie various weighty decisions. I shall confine myself to three of them. First, there is Latham v. R. Johnson & Nephew, Limited (1). There, the placing by the owners in a place known to be frequented by children of a heap of stones was held not to render the owners liable. It is true that the plaintiff there, unlike the present plaintiff, was not in the place where he was injured as of right, nor was he an invitee. He was rather a bare licensee. But, inasmuch as the defendants not merely knew that the heap of stones was where it was, but actually caused it to be placed there, the fact that the plaintiff was a mere licensee would not have exonerated the defendants, if the heap of stones had been regarded as a thing highly dangerous in itself and if the Court had thought that the defendants ought reasonably to have anticipated that children would be likely to meddle with and get injured by it. The case is therefore in point. Both Farwell L.J. and Hamilton L.J. refused to regard a heap of stones as “a thing highly dangerous in itself,” and the latter Judge enunciated the dicta which I have already quoted. I incline to think the Court had in mind a consideration which would appear to be applicable to the grating here, namely, that a heap of stones is a common sight even in places to which children have access, and is not usually associated in people’s minds with the causing of injury to them.
Next, in Donovan v. Union Cartage Company (2), the defendants were held not liable for leaving an unhorsed van unattended in the street in respect of an injury to a child which climbed into the van and fell, sustaining injury. The Judges quoted with approval the dictum of Hamilton L.J. which I have mentioned, and said that in order to give rise to liability the object must be inherently dangerous, that there was “no such element of inherent danger in a sound, stationary and immobile vehicle,” and that “to extend the principle of Lynch v. Nurdin (3) to things in no way dangerous in themselves . . . . would be to impose burdens of responsibility so far-reaching and incalculable as to be unreasonable and intolerable.”
The third case that comes to my mind is Duff v. National Telephone Company, Limited (4). There, a wheelbarrow was left in a lane in a town where young children were likely to be. Now, it seems to me not unlikely that young children, coming across a wheelbarrow in such a place might meddle with it and clamber into it, and equally that they might lean too much to one side and capsize it with resultant injury to themselves, which is precisely what happened. But the plaintiff failed, Lord Shand ridiculing the idea that”an ordinary wheelbarrow is a dangerous article in any sense.” Yet I am not sure that the possibility of its capsizing if a child leaned too much to one side of it might not be as much beyond the appreciation of the child-mind as the chance that a child meddling with a street grating might let it fall on its own or another’s fingers or toes, and if so, the wheelbarrow might be as much a trap to a child as the grating, and I should imagine it would be just as much of an allurement.
The idea underlying these decisions seems to me to be that the heap of stones, the unhorsed van, and the wheelbarrow, respectively, were all things that are frequently left where children have access to them, yet are seldom heard of as causing injury, and normally are not associated in the minds of reasonable people with any likelihood of doing so.
I think one of the best expositions of the duty of reasonable care is that of Lord Wrenbury in Fairman’s Case (1). It contains this passage: “There are some things which a reasonable person is entitled to assume, and as to which he is not blameworthy if he does not see them when if he had been on the alert and had looked he could have seen them.”I think it would be legitimate to substitute for the words”see” and “seen” in this passage, the words “foresee”and “foreseen,” and to apply the dictum to cases where it is alleged that people ought to have foreseen given dangers. Thus, adapting Lord Wrenbury’s words, we might say “there are possible dangers which a reasonable man is entitled not to foresee, that is to say, which he is not blameworthy for not foreseeing, when if he had been alert, and had thought more acutely, he might have foreseen them.”
In this case the grating might well prove attractive to children, since small articles might fall through it and excite a child to try to get them out. No doubt the local authority might have foreseen that possibility and the chance that injury might result from it, if, to use Lord Wrenbury’s word, they had been alert. The question is whether they can fairly be blamed for not having had that alertness in foresight. I have given anxious thought to this, and my conclusion is that they cannot fairly be blamed in the circumstances.
I base this view, not so much on any one of the following considerations, as upon the cumulative effect of them all together. First, the grating, fitted as it was, is not the kind of thing that ordinary people would usually associate with the causing of injury. Next, the plaintiff’s own father, although he had seen children playing with these traps, and had even heard of one or two being hurt by them, did not think them dangerous or warn his children against them. Perhaps many a parent would have warned his child if he had actually seen it lifting the trap; but if the average parent went into new premises and found such a trap in his backyard, I much doubt whether it would ever occur to him to warn his children not to tamper with it, even if he knew they could open it, any more than it might occur to him to warn them not to clamber into a wheelbarrow such as Lord Shand thought it would be extravagant to call”a dangerous article in any sense.” Again, these gratings are well-known standardized articles made by reputable manufacturers on a large scale and for use in places where children are certain to abound. A local authority might well have its alertness to possible danger disarmed by the thought that such manufacturers would not be likely to risk their money in turning out contrivances for public use on a large scale if they were likely to constitute an appreciable danger to children. Had the grating been an experimental product of some local smith, greater care and forethought might perhaps have been expected from the defendants before they adopted it for use in O’Neill Park.
Finally, these gratings have long been in general use by public bodies throughout the country, and notably by the Dublin Corporation. This use must extend to many places where children are as likely to dally and play as they are in O’Neill Park, Clones. Yet, so far as the evidence shews, there seems to have been no previous complaint of any child having been injured by such a grating, although two other eases of some degree of injury having been previously caused to children by similar gratings were unearthed after the plaintiff’s complaint. It is true, as Willes J. said in Indermaur v. Dames (1), that “no usage could establish that what was in fact unnecessarily dangerous was in law reasonably safe.” But usage and the experience of usage may be valuable as evidence, either positive, or negative, or both, as to whether a thing can fairly be regarded as in fact dangerous, and as to what reasonable men can fairly be expected to have anticipated and provided against.
Taking all these considerations into account I find myself unable to feel satisfied that the present defendants could fairly be expected to have anticipated that the type of grating with which the plaintiff was injured would be likely to be meddled with by young children and to cause them injury, and accordingly I must dismiss the claim.
Whether, if I had been satisfied that warning of other accidents, or of any given number of accidents like that which happened to the plaintiff had reached the defendants or their officers before the plaintiff’s accident, that would have made any difference in my decision it is unnecessary for me to determine. My duty is to decide the case on the facts proved before me, and to that duty I advisedly confine myself.
I wish to add that my decision is in no way influenced by any view that it would be impracticable to render these street gratings incapable of being opened by a child like the plaintiff. No doubt to do so would be troublesome, and even if confined to localities like O’Neill Park, might involve an unwelcome increase of expense. If the defendants had had to convince me that such precautions would have been impracticable the evidence put forward with that object would not have satisfied me. I decide the case solely upon the ground which I have explained.
Fitzgerald v South Dublin County Council
[2015] IEHC 343
JUDGMENT of Mr. Justice Bernard J. Barton delivered the 21st day of May 2015.
1. This is an action brought by the plaintiff against the defendant for damages for personal injuries and loss arising as result of an accident which occurred on the 11th June 2006 when the plaintiff was playing on a common area of a housing estate situated adjacent to 34 Cloonmore Crescent, Jobstown, Tallaght, Dublin 24; then the plaintiff’s home.
2. The plaintiff’s case is that whilst he was crossing the common area to retrieve a football, he slipped and fell to the ground. When he did so, his back struck part of a broken bottle which was lying in the grass and as a result of which he sustained a laceration injury to the right hand side of his upper back. He brings this case in negligence and for breach of statutory duty against the defendant as the owner and occupier of the common area in question.
3. A full defence was delivered on behalf of the defendant who pleaded, inter alia, that the plaintiff was a recreational user on the common area within the meaning of s.4 of the Occupiers’ Liability Act 1995 (the Act). The defence also included a plea of negligence and/or contributory negligence on the part of the plaintiff; the essence of which is that the plaintiff was the author of his own misfortune in failing to keep a proper lookout, to exercise due care and attention and playing on the open space when he knew or ought to have known that broken glass was present.
4. The plaintiff was born on the 22nd November 1996 and was therefore only 9 years old when this accident occurred. He has since attained his majority and the court has made an order amending the title of the proceedings enabling him to proceed in his own name.
5. It was accepted by the defendant during the trial that in the particular circumstances of this case the plaintiff was too young to be held guilty of contributory negligence. Accordingly, if legal liability is found to rest with the defendant, the plaintiff is entitled to succeed 100% in respect of his claim.
6. The plaintiff is currently studying for his Leaving Certificate. He is hoping to qualify as a carer. He has already obtained experience as a carer in the context of undertaking voluntary work in Northampton for the Prince’s Trust. After he finishes his exams, it is his intention to go back to Northampton where he has been offered an apprenticeship in becoming a carer.
7. At the time of the accident the plaintiff was very keen on soccer and was a follower of the Shamrock Rovers team, and for which it was his ambition to play when he was older.
8. The estate where the plaintiff lived at the time of this accident has a number of open green spaces. One of these was a triangular-shaped common area adjacent to his home where the plaintiff often kicked a ball about with his friends and where the accident occurred. In the housing estate there were also a number of regulation football pitches to which the plaintiff , depending on the time of year and weather permitting, would go to play organised games a couple of times a week .
9. On the evening of the 11th June 2006 the Plaintiff was involved in a football ‘kick-about’ with some friends. A couple of jumpers or jackets had been used to create a goal. In the course of play the ball was kicked across part of the open green space towards the entrance to the plaintiff’s home. The accident occurred when he went to retrieve the ball.
10. The plaintiff’s mother took photographs of the triangular open green space within 24 hours of the accident. These photographs were introduced into evidence. Those photographs show that at the time when they were taken the grass was cut short. These photographs also show a few bits and pieces of what might be described as rubbish scattered about on the open green space, as well as what appears to be a bicycle lying on the ground next to one of the boundary walls. In addition, the photographs show what appear to be a number of brown coloured shards of glass. One photograph, said to be taken at the accident locus, shows what appears to be blood on and in the vicinity of some broken glass.
11. The football pitches and all of the common areas of the Cloonmore estate, including the triangular area where the accident occurred, are the property and under the control of the defendant. It was accepted in the course of the trial that the defendant was responsible for the maintenance of these open areas, and which included grass cutting.
12. As a result of the accident the plaintiff sustained a significant laceration to the upper right hand side of his back, which created a ten centimetre flap and which included the subcutaneous fat but not the underlying muscle. The wound was inspected and cleaned at the Adelaide and Meath Hospital and on the next day it was closed with sutures.
13. Some two weeks after the accident it was noted on medical review that the edges of the laceration were mildly inflamed .The plaintiff was prescribed and kept on antibiotics in respect of a discharge from the wound. When he was reviewed subsequently, it was noted that the wound had completely dried up.
14. The plaintiff went on to make an uneventful recovery but has been left with a 10 cm scar which I have had the opportunity of viewing. There is no functional impairment of the right arm and the reports of Mr Awadalla, consultant paediatric surgeon, dated the 4th December 2006 and the 16th December 2014, were admitted into evidence.
15. Although the plaintiff’s scar is well healed, it is very obvious – even beyond conversation distance. There is some keloid tissue present and the scar is about half an inch in width. The plaintiff does not like the sight of the scar and generally keeps it covered. He sometimes experiences pain in the area of the scar and for which he takes pain killers intermittently depending on the level of symptomology.
16. In its defence the defendant pleaded, inter alia, that the plaintiff was guilty of inordinate and inexcusable delay in bringing the proceedings, thereby greatly prejudicing the defendant in its defence of the proceedings.
17. This defence was pursued at the trial of the action. Insofar as the plaintiff himself was concerned, he felt that it would be entirely unjust that he should be blamed for the delay which, admittedly, took place before he attained his majority. In relation to that the plaintiff’s mother, who had been his next friend, gave an explanation for the delay which she admitted had taken place, and which she fully accepted ought not to have taken place. She sought to excuse the delay by virtue of circumstances in which she found herself, and which included a significant post natal depression. Having heard all of the evidence, I am satisfied that the defendant was not prejudiced by the delay in its defence of the proceedings and, in any event, the delay was in all of the circumstances excusable.
18. The evidence of the plaintiff’s mother, Mrs Fitzgerald, was that for some considerable time prior to the date of the accident, she had regularly phoned the relevant department of the defendant Council to complain of problems in relation to the triangular-shaped open space. In essence her complaints related to anti-social behaviour which included, amongst other things, young people sitting up drinking on low walls which bounded the open green space. Mrs Fitzgerald gave evidence as to how her calls would be dealt with and that she would be put through to an individual in the appropriate department. Apart from making these calls she did not at any stage confirm their content either by email or by letter. She assumed her complaints would simply have been recorded and would be acted upon. On occasion she also went to the County Council offices to make similar complaints.
19. In evidence she said that her complaints also related to rubbish being left around and in the vicinity of the open space. She accepted that the defendant Council cut the grass but in relation to the presence of rubbish her view was that, more often than not, the rubbish encountered would just be pushed up against the side of the boundary wall rather than removed. She herself cleaned up rubbish from time to time, especially after the accident, and accepted that on a few occasions the defendant did come and collect the rubbish that she had picked up. She described the rubbish as consisting of all sorts of things including bits of bikes. She never saw any litter pickers in the vicinity of the green open space but she accepted that the height of the walls had been increased by the defendant; most likely in response to complaints about anti social behaviour.
20. Having notified the defendant of the accident, Mrs Fitzgerald gave evidence that some days later an official called to her house with cleaning-up equipment, which included big green bags. She did not recall seeing litter wardens either before or after the accident, nor litter pickers at any time, though she did recall some grass cutters whom she assumed were the defendant’s employees. She accepted that the grass was cut often enough to keep it short but that rubbish scattered here and there was a continuing problem and that it was only through the efforts of herself and a neighbour that this problem was in some areas ameliorated. As far as she was concerned, however, the defendant did not follow up on the promises made to board up the area, or plant flower beds or otherwise deal with the rubbish problem.
21. Expert evidence on behalf of the plaintiff was given by Mr Donal McCarthy, chartered engineer. He accepted, however, that he had no expertise in the management of open green spaces. Nevertheless, as an engineer his view was that the rota system of men and machinery, which had been the subject matter of discovery and which was put to Mr McCarthy, was deficient and that there ought to have been rubbish bins located at different places around the estate. In addition it was his opinion that there ought to have been warning signs erected in the vicinity of the open space. It was also his opinion that there ought to have been independent inspections of the green open spaces later in the week since, on his analysis of the rotas prior to the accident, most all inspections and/or maintenance works took place in the early days of any given week. Mr McCarthy’s opinion was that warning signs and the presence of rubbish bins would have assisted in ameliorating an obvious litter problem and which was apparent from the account given to him by Mrs Fitzgerald and also upon his own inspection of the area as shown in his own photographs.
22. Evidence was given on behalf of the defendant by Ms Paula O’Rourke, executive park superintendent, and by Mr Paul Allen who was responsible for the organising and management of the litter and grass cutting crews employed to maintain the open green spaces. These witnesses gave evidence in relation to the defendant’s system of recording public complaints prior to and at the time of the accident, as well as to the defendant’s system of maintenance of the open green spaces under its control and which extended in area to in excess of 4,000 acres. It became apparent from this evidence that, in addition to the dates of attendance for maintenance of the Cloonmoore area set out in a letter of 11th February 2013 which had been sent to the plaintiff’s solicitors, there were attendances on other dates as well. In this regard there was evidence that the Kubota grass cutting machine, which was utilised for cutting certain types of open spaces and which would have included the triangular open space the subject matter of these proceedings, would have been particularly liable to sustain damage if it were driven over or onto debris such as stones, bits of bricks, pieces of metal or broken bottles. Accordingly, it was necessary for employees to proceed to inspect and pick up any such objects prior to grass cutting. This was always done in advance of the cutting itself. That could be done on the day of the actual cutting or on the day before. That litter was a problem in the housing estate as a whole was not really in dispute. Some areas were known black spots but the open space in question was not one of these. The defendant did what it could, given its resources and the extensive open parks and green spaces under its control. Rubbish was picked up prior to or during grass cutting operations but there was nothing the defendant could do to prevent rubbish being deposited or scattered on the open spaces thereafter. Mr Allen’s evidence was that he would have been regularly out and about carrying out inspections to ensure that the system was being complied with, directing special attention to problems as and when they arose, and ensuring his teams carried out their tasks in accordance with instructions and to a required standard.
The law.
23. Section 1 (1) of the Occupiers Liability Act 1995 defines a “recreational user” as:-
“an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930, but not including an entrant who is so present and is—
(a) a member of the occupier’s family who is ordinarily resident on the premises,
(b) an entrant who is present at the express invitation of the occupier or such a member, or
(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member.”
24. Section 1 (1) of the Act of 1995 also defines the meaning of “recreational activity” as “… any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance.”
25. The duty owed by an occupier to a recreational user or a trespasser is set out in s.4 (1) of the Act of 1995 as follows:-
“In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty—
(a) not to injure the person or damage the property of the person intentionally, and
(b) not to act with reckless disregard for the person or the property of the person, except in so far as the occupier extends the duty in accordance with section 5.”
26. This section also sets out the factors to which, together with all of the circumstances of the case, the court must have regard in determining whether or not the occupier acted with reckless disregard towards a recreational user or trespasser and which are as follows:-
“(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;
(f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;
(g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
(h) the nature of any warning given by the occupier or another person of the danger; and whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.”
27. Absent any evidence of intention to injure, the test of recklessness on the part of the occupier is, in my view, an objective one and that this is so is apparent from the wording employed by the Oireachtas in s.4 (2) of the Act of 1995.
28. It is also my view quite clear from the wording in s.4 of the Act that the duty owed by an occupier to a trespasser or a recreational user is not only less onerous than the statutory duty of care owed by an occupier to a lawful visitor within the meaning of s.3 of the Act , but significantly so. The statutory duty of care under s.3 may be said to be co-terminous with the ordinary duty of care at common law as enunciated by Lord Atkin in Donoghue v. Stephenson [1932] AC 562 and as thereafter explained and applied in the many decisions of the courts in the United Kingdom and the courts in this jurisdiction. See Vega v.Cullen ( unreported) HC PeartJ. delivered 9th November 2005.
29. By adopting the phraseology “reckless disregard” used in the old case law, the Oireachts rejected the recommendation contained in the final report of the Law Reform Commission in relation to occupiers’ liability towards recreational users or trespassers that the liability should be in respect of “gross negligence”. In choosing the terminology “reckless disregard”, the Oireachtas determined that the point at which the occupier was to have a liability should be quantitatively greater than that which may be said to constitute “gross negligence”. As to whether the liability in respect of reckless disregard is to be equated, albeit accessed objectively, to the liability arising from an intention to injure on the part of the occupier, it is my view that any other construction of the section would admit a lower threshold for the imposition of liability and which, giving the words their ordinary and natural meaning, was not the intention of the Oireachtas. Although “reckless disregard” is not defined by the Act, such terminology had long since been adopted in pre-existing case law and must be considered as being so understood by the Oireachtas in choosing that terminology when enacting s.4 of the Act .
30. It may, I think, be argued with some force that the effect of the provisions of s.4 of the Act – with regard to the liability of an occupier in respect of the static condition of the premises involving a danger existing at the time of an accident – has been to return broadly to the state of the law regarding such liability as enunciated in the authorities prior to the decisions of the Supreme Court in Purtill v. Athlone UDC [1968] I.R. 205 and McNamara v. ESB [1975] I.R. 1.
31. However, for the sake of completeness and clarity it would seem appropriate to observe that these statutory provisions do not affect the duty of care under common law negligence principles in respect of the occupier’s acts or omissions (sometimes referred to as “activities”) in or upon the premises. That this is so is evident from the provisions of s.2 (1) which stipulates that the duties, liabilities and rights provided for by the Act in substitution for those applying to occupiers at common law, are confined to dangers existing on the premises. In short, the effect of s.2 (1) is to preserve the common law relating to the acts or omissions of an occupier otherwise than in relation to the static condition of the premises.
32. Finally, in the same way that an omission as well as a positive act can constitute negligence, there would seem to be no good reason in law why the use of the word “act” in the wording of s.4 (1) (b) should be interpreted otherwise than as connoting acts of omission as well as commission on the part of the occupier in relation to the danger.
33. That the effect of s.4 (1) (b) is to significantly restrict the liability of the occupier towards trespassers and recreational users has in fact long since been recognised by our courts. In Thomas v. Leitrim County Council [2001] 3 JIC 0701, where the Supreme Court held that the plaintiff was a licensee, when visiting Glencar waterfall, County Leitrim, in a suit which arose from an accident which occurred prior to the coming into force of the Act , Hardiman J., delivering the unanimous judgment of the court, observed in relation to the Act that:-
“…had this law been in force at the time of the plaintiff’s accident her position would have been a less favourable one than under the old law, which applies to this case”.
As to the effect of s.4 generally, see the judgment of Geoghegan J. in Weir Rodgers v. S.F. Trust Limited [2005] 1 ILRM 471.
Submissions and Decision
34. It was submitted on behalf of the plaintiff that in order for recreational use to arise, it was necessary that there be some form of organisational activity in which the plaintiff was involved. It was submitted that merely kicking a ball about on the open space did not satisfy such a requirement and that, in essence, the plaintiff was a lawful visitor to whom the defendant owed a statutory duty of care prescribed by s.3 of the Act.
35. The defendant submitted that no such issue had been raised by way of special reply to the defence. However, even if the court considered the delivery of a special reply unnecessary by virtue of the provisions of Order 23 of the Rules, the case had proceeded on the premise that the plaintiff’s presence on the common open space was one of recreational use rather than as a visitor within the meaning of s.3 of the Act.
36. Whilst I accept the submission of the defendant on this aspect of matters, it is also clear that the plaintiff pleaded and sought to make a case at the trial against the defendant for ordinary common law negligence.
37. It was submitted on behalf of the plaintiff that given certain inconsistencies between the documented rotas in respect of different open green spaces (including the area the subject matter of these proceedings) and the diary entries made by Mr Allen in relation to additional work carried out by his team, and further, having regard to the inadequacies of the defendant’s system relating to the recording of complaints and action taken in response to complaints made prior to the date of the accident and which failed to disclose any complaints having been made by Mrs Fitzgerald, that the court should reject such evidence as being unreliable with regard to those matters.
38. I have had the opportunity to observe the demeanour of both Ms. O’Rourke and Mr. Allen during the course of their giving evidence. I found both witnesses to be most credible and I accept their evidence as being reliable in relation to the system for recording and responding to complaints, as well as in relation to the defendant’s system for the inspection and maintenance of the open green spaces under its control.
39. It was not suggested to Mrs. Fitzgerald that she had not made complaints or that there hadn’t been any complaints generally about anti-social behaviour or litter problems. The court accepts that, although for reasons explained by Ms. O’Rourke that not every complaint at the time would have been recorded in a permanent form, the plaintiff did make complaints which included complaints in relation to litter. However, the court is also satisfied that there was a reasonable system in place for dealing with such complaints.
40. The defendant employed litter wardens, litter pickers and grass cutters as part of its management of something over 4000 acres of open spaces under its control. Its parks department is, not surprisingly, organised around the seasons and so grass cutting is rarely an issue during the winter but is a priority during the growing season. Not surprisingly, therefore, personnel are deployed during the year to meet the demands of the seasons as well as those arising by reason of human activity.
41. That litter on the open green space was a problem and that there were well known black spots in areas under the control of the defendant was, on the evidence, beyond question.
42. Having had an opportunity to peruse the defendant’s records in relation to its grass cutting and maintenance system for the area in question, which includes quotas for both men and machines and, further, having regard to the days on which the Cloonmore open spaces were maintained as set out in the defendant’s letter of the 11th February 2013, the entries made in his diary by Mr. Allen and accepting his evidence, as I do, that he designated and supervised his maintenance and grass cutting crews , I am satisfied that the records in relation to the rotas, the nature of the work involved, and the dates on which it occurred, are reliable.
43. It is also clear on the evidence, and the court finds, that the plaintiff did slip and fall whilst in the process of retrieving a football and that as a result of doing so he fell backwards onto the ground striking a piece of broken glass – most likely from a broken beer bottle – and that as a result he sustained a laceration which has left a permanent scar described earlier in this judgment. The question, of course, is whether the defendant has a liability in law for that accident and its consequences.
44. Mr. Allen explained that the grass of the open space where the accident occurred was regularly cut in the summer with a Kobota grass cutting machine. He referred to photographs taken by the plaintiff’s engineer, Mr. McCarthy, which show a considerable amount of litter close to one of the boundary walls of the open green space. These photographs also show that the grass of the open green space had been cut no more than two or three days previously.
45. Most of the litter, on my viewing of the photographs, is seen to be lying not only on top of the grass but also on top of the grass cuttings which have started to turn brown in colour. I am satisfied, on the evidence of Mr. Allen in relation to the operation of the Kobota grass cutter, that it would either have been damaged or, alternatively, would have shredded the litter seen in these photographs had litter or rubbish such as that seen in Mr. McCarthy’s photographs been present on the day when the grass was cut. It is also evident from these photographs that the litter in question had not been subjected to shredding of the type that would have occurred if it had been caught up in the blades of the Kobata. On the balance of probabilities, I am satisfied that the litter shown in these photographs came to rest where it is seen in them; most likely as a result of being blown there by wind after grass cutting had taken place.
46. The fact that the litter seen in the photographs is intact also happens to be consistent with the evidence given on behalf of the defendant that litter was picked up a day before or the day of the grass cutting. Moreover, the photographs taken by Mrs. Fitzgerald within 24 hours of the occurrence of this accident, while showing bits of litter here and there on the open green space as well as bits of glass – including the piece of glass on which it is most likely the plaintiff fell – also show that the grass was short. It follows therefore that the grass had to have been cut within a few days at most before the accident.
47. These photographs are also corroborative of Mr. Allen’s evidence as to the regularity of grass cutting during the spring and summer of the year in which this accident occurred, which fortifies me in my conclusion that the evidence of the defendant in connection with its system for the supervision and maintenance of this open green space is reliable.
48. Whilst it was submitted on behalf of the plaintiff that the presence of the glass on the ground in the grass (which would have been visible to the plaintiff or anyone else walking on the common area as it was the next day when photographed by Mrs Fitzgerald ) was a danger of which the defendant was aware on the day of the accident by virtue of the plea in that regard contained in its defence, it is quite clear from any reading of the defence in this case that the plaintiff was being put on proof of his claim. The plea of negligence and/or contributory negligence alleged in the defence was made without prejudice to the demurrers in the proceeding paragraphs and was, in any event, withdrawn at the trial.
49. Mr. Allen gave evidence at the trial in relation to the functions of litter pickers and grass cutters. Quite apart altogether from any safety considerations, it is abundantly clear from that evidence that the removal of bits of debris and litter – including bottles or broken glass – was essential if the grass cutting machinery was not to be damaged. That machinery is in daily use during the summer. If it were rendered inoperable or less effective by coming in contact with debris of one sort or another capable of damaging the machine, the parks department would be left without that machine pending repair, something it could ill afford in the summer months and given the vast area of open green space to be maintained.
50. It also means, of course, that the defendant was aware that such problems existed and so was required to devise a system to deal with them. I am satisfied that the defendant’s management and grass cutting system had the dual purpose of protecting men and machinery as well removing litter and debris from the green open spaces.
51. In the course of the trial one of the suggestions made by the plaintiff for dealing with the problem of broken glass was that signs should have been erected and/or bins supplied or a hoarding could have been erected. The latter of these , it seems to me, would be completely counter-productive and contrary to the policy of providing open green space for the general enjoyment of the public at large.
52. Finally, given the necessity of having to remove objects which might likely cause damage to the Kobota grass cutting machine and, given the shortness of the grass evident from the photographs taken by Mrs. Fitzgerald, I think it highly likely that the bits of broken glass and the bits of litter shown in those photographs were deposited on the green open space at some time within the day or two following the last grass cutting.
Conclusion.
53. In my view there is no credible evidence upon which the court could come to a conclusion that the defendant was guilty of common law negligence. Similarly, I am satisfied that s.3 of the Act has no application to the facts of this case.
54. The plaintiff was involved in a ‘kick-about’ with some of friends. They had erected a temporary goal by using some clothes. What else was this if it wasn’t a recreational activity within the meaning of the Act? The plaintiff was a recreational user of the open green space and as such the defendant’s duty towards him was that as set out in s.4 of the Act.
55. There can be no doubt but that the piece of broken glass lying on the grass of the open space constituted a danger which was present at the time when this accident occurred. I am satisfied on the evidence that the defendant was aware that pieces of broken glass or objects which could cause damage to the machines, as well as causing injury to members of the public using the open green spaces, was a recurrent problem and that this was most likely generated by anti-social or other miscreant behaviour.
56. There was no suggestion in this case that the defendant intended to injure the plaintiff. Accordingly, there being no liability at common law or under s. 3 of the Act, any liability on the part of the defendant for the danger which existed on the premises can arise only if, in relation to that danger, the defendant acted with reckless disregard towards the plaintiff. As to that, the court is bound to have regard to all of the circumstances of the case including the matters set out in S. 4 (2) of the Act. As to that the defendant relied on the decision of this court in Kirwan v Dublin City Council (Unreported, High Court, Feeney J., 9th March, 2011) delivered by Feeney J. on the 9th March 2011.
57. That was a case which arose as a result of an accident when the infant plaintiff, together with a number of friends who were playing on a green open space, caught her foot in a hole. The facts of that case differ in a number of respects and in particular with regard to the making of complaints. The court was satisfied on the evidence that the defendant had procedures in place which ensured, insofar as was reasonable, that the area was kept in a reasonably proper and fit condition. In this regard Feeney J. observed:-
“It (the defendant) couldn’t operate a system which avoided all holes or depressions being present, because it was a general recreational area where all sorts of uses could take place, where children used it, where holes could be dug, where animals could scrape and excavate and where depressions could be caused as a result of subsidence. To place an onus on the Defendant to avoid the presence of depressions or small holes in those circumstances, would, in fact, require constant observation and inspection of the very highest degree and one which could not be suggested as being necessary or required.”
58. With an appropriate modification by reference to broken glass or other bits of debris being discarded, I adopt this statement of the learned trial judge.
The court found that whilst the defendant clearly owed a duty to the plaintiff as a recreational user, it was satisfied that the defendant was not in breach of the provisions of the Act and had not acted towards the plaintiff with reckless disregard.
59. As in that case, the court is satisfied that the system of management and maintenance of the open green spaces devised and employed by the defendant prior to and at the time of the accident was reasonable and entirely appropriate for what was a general recreational area.
60. Whilst on the evidence the factors set out in s.4 (2) (a), (b), (c) and (h) are satisfied, the court is also bound to have regard to the other factors, including:
(d) whether the danger was one against which the defendant might reasonably be expected to provide protection; (e) the burden on the defendant of eliminating the danger or of protecting the person from the danger , taking into account the difficulty, expense or impracticality, having regard to the character of the premises and the degree of the danger, of so doing; and, (f) the character of the premises, including, as in this case, premises used for recreational activity and the desirability of maintaining the tradition of open access to such premises for such activity.
61. The expense and burden which would be placed on a local authority, such as the defendant, in protecting members of the public – including children – from dangers on open green spaces created by anti-social or miscreant behaviour through discarding broken bottles or the like or otherwise, would be nothing short of immense not to mention impracticable and, in my view, intolerable. Anti-social behaviour by its very nature is unlikely to be affected by the erection of notices or the placement of refuse bins. That the defendant could be required to inspect what in this case would be over 4,000 acres of open green space more than once or at best twice in a week – never mind maintaining and cleaning such an area at any shorter interval – would neither be realistic nor reasonable. A balance has to be struck between what is reasonable and practicable in terms of maintenance and safety of open green spaces and the desirability of making such spaces available for the enjoyment of the public.
62. This was an unfortunate accident which has left the plaintiff with a permanent scar. Whilst it represents a permanent cosmetic deficit the scar has not resulted in any functional disability, nor will it affect his chosen career as a carer – a choice for which he is to be commended. Regrettably, whilst I accept his evidence as being entirely truthful, on the findings made by the court the accident is not attributable to negligence and even less so to reckless disregard on the part of the defendant. Accordingly, the claim will be dismissed and the court will so order.
Chambers v Powerscourt Estates Ltd
[2016] IEHC 369
JUDGMENT of Mr. Justice Barr delivered on the 29th day of June, 2016
Introduction
1. The accident in this case occurred on Saturday, 13th September, 2014. The plaintiff was pushing her mother in a wheelchair along a path in the gardens of Powerscourt House, when, owing to a very steep slope on the path, she was caused to lose control of the wheelchair and fell to the ground, causing a significant injury to her wrist. The essence of the plaintiff’s case is that the defendant failed to take any or any reasonable steps to designate the path which was safe for use by wheelchair users from other paths, which were not safe for such use, due to the presence of a large slope thereon. The defendant, as occupier of the house and gardens, denies that it failed to provide a safe route for use by wheelchair users. In this regard, they state that there was a blue line designated on a map, which had been given to the plaintiff, which clearly showed a level path that was safe for use by persons using a wheelchair. Liability and quantum are in issue between the parties.
Liability
2. The plaintiff was born in 1968 and is employed as a promotions consultant at Dublin Airport. On Saturday, 13th September, 2014, she went, with her mother, to visit Powerscourt House and Gardens. On arrival at the reception area, they purchased two tickets for entry to the gardens. However, they decided to have something to eat in the cafeteria before embarking on the walk.
3. The plaintiff stated that after lunch, they came back to the reception area. There, the plaintiff was given a leaflet, which was folded and which extended to a little longer than an A4 page when opened out. On one side of the leaflet, there was information about a number of different points of interest that could be seen within the gardens. The entire of the reverse side of the leaflet constituted a map of the gardens, with various routes and points of interest marked thereon. The plaintiff stated that the lady at reception showed her a route marked on the map in blue, which was a disabled access route.
4. The plaintiff stated that having obtained a wheelchair for use by her mother, they proceeded out of the rear of the building into the gardens. They then turned to their right and came to the route marked in blue. They turned left and walked down the side of the main gardens, going in a clockwise direction. Towards the end of this path, they entered a wooded area and proceeded along the path turning to their right, coming to the pets’ cemetery. The plaintiff stated that she brought the wheelchair to a halt just beside a wrought iron bench. She left her mother at this point and proceeded down the steps into the pets’ cemetery. She stated that she had proceeded to this area, where the wrought iron bench was, by walking towards the camera as shown in photograph No. 8 of the engineer’s booklet of photographs.
5. The plaintiff stated that when she returned to the area where her mother had been waiting, she was unsure as to the direction that she should take, due to the fact that to her left, as she faced the camera, there was another path going off in another direction into a different wooded area. The plaintiff stated that she was a bit confused as to whether they should proceed along the path on which they had been travelling, or whether they should make the left turn and proceed into the wooded area. This would have involved them to an extent turning back and proceeding somewhat in the direction from which they had come. The plaintiff stated that there was no sign or marker in the area to show the designated blue route, which was safe for wheelchair users.
6. The plaintiff proceeded to follow the path which led down a slope as shown in photographs No. 9 and 10 of the engineer’s photographs. She would have been moving away from the camera in these photographs.
7. The plaintiff stated that this path sloped suddenly in a steep fashion, such that the wheelchair began to move quickly away from her. The plaintiff had to run after the wheelchair, holding onto it as best she could. She stated that she tried to bring the wheelchair to a halt by turning it into the embankment, but she was unable to do so, as she tripped and fell and suffered an injury to her left wrist. The wheelchair eventually came to a halt, but the plaintiff was unsure as to how this happened.
8. In cross examination, the plaintiff stated that she had been confused as to which path to take when she returned to her mother at the wrought iron bench. She stated that she did not take the map out of her pocket and consult it at that time.
9. Mr. Barry Tennyson, Consulting Engineer, gave evidence on behalf of the plaintiff. He stated that while the map on the reverse of the leaflet would have helped people ascertain where the various points of interest were, it was of very little use as a map, as it did not give any indication at all as to any dangerous slopes which occurred on the paths running through the gardens. In this regard, he stated that the building regulations provided that for wheelchair users, a slope should not have a downgrade of more than 8%. The slope at this particular locus had a downgrade of 16%. In these circumstances, he was of opinion that the path was dangerous for wheelchair users. He felt that that the path should have been identified as unsuitable for wheelchairs. It was his opinion that it was easily foreseeable that visitors would take the wrong turn and would end up on this path rather than continuing along the level path.
10. Mr. Tennyson was of opinion that where there were a number of intersections between various paths, some of which contained dangerous slopes, there should be signage at the various junctions, indicating which paths were unsuitable for wheelchair users. He stated that a simple and inexpensive sign at the locus would have prevented the plaintiff taking the wrong turn. He stated that a lay person cannot distinguish between a slope that is safe and a slope that is dangerous for wheelchair users. They would need guidance on the matter. He accepted that the slope would be readily apparent to a person standing at the top of the slope, but they would not necessarily know how dangerous it was to proceed down the slope with a wheelchair.
11. Evidence was given on behalf of the defendant by Ms. Kaleigh Greene, who had been a receptionist at the main house that day. She had worked for the defendant up until August 2015. She stated that she recalled the plaintiff and her mother coming to the reception desk. They bought two tickets. The witness gave the plaintiff the tickets and also a map. The plaintiff stated that she was going to have some lunch first and Ms. Greene stated that that would not present a problem as the tickets were valid for the entire day.
12. She stated that she recalled the plaintiff and her mother returning to the reception area after lunch. They proceeded directly to take one of the wheelchairs which was nearby, which she thought was a little unusual, as people normally asked whether the wheelchairs were available for hire.
13. Ms. Greene stated that she approached the plaintiff and showed her the disabled route, which was marked as the blue route on the map. She stated that the plaintiff inquired about visiting the pets’ cemetery, to which she replied that they could not get the wheelchair into the pets’ cemetery due to the steps leading down to that area. She stated that the plaintiff’s mother could go in if she was able to manage the steps. She stated that the plaintiff also wanted to visit the Japanese Garden. Ms. Greene stated that if the plaintiff’s mother needed a wheelchair, she would not be able to go there, as there were a number of slopes on the path leading to the garden and also there were steps at the Japanese Garden itself. She stated that the slopes would be too steep for a wheelchair and that they would not be able to get back again. Ms. Greene stated that she stood beside the plaintiff and pointed these sloped areas out to the plaintiff on the map. She had a clear recollection of telling her that she could not go down the slope marked on the path with the red dotted line leading from the pets’ cemetery to the Japanese Garden.
14. In cross examination, Ms. Greene stated that she highlighted the whole route leading from the pets’ cemetery to the Japanese Garden as being a steep slope. She stated that she pointed this out to the plaintiff on the map. She recalled telling the plaintiff that she could not go to the Japanese Garden as there was too steep a slope on the red dotted line. There is a slope at the beginning of the path in the area of the pets’ cemetery and also at the end of that route at the Japanese Garden itself. She stated that she told the plaintiff to follow the blue line and not to go onto the red line.
15. Evidence was also given by Ms. Sarah Slazenger, the general manager of Powerscourt House and Gardens. She stated that the front part of the gardens had been constructed in the 1740s and that the terraces were added in the period 1840 – 1875.
16. The gardens were first opened to the public in the 1940s. There was an increase in people visiting the property in the 1950s and 1960s, where the total number of visitors rose to one hundred thousand per year. The house was refurbished after an extensive fire in 1997 and the gardens became a very popular visitor attraction. Today there are approximately two hundred thousand visitors per annum.
17. The witness stated that they were conscious of the requirements of wheelchair users visiting the property, so a significant portion of the garden was accessible on one level path which was suitable for wheelchair users. This was designated as the blue route on the map. She stated that wheelchair users might be individuals, who either had their own wheelchair, or would use the complementary wheelchairs that were supplied at the property, or they could be groups of wheelchair users, who would come with their carers. Ms. Slazenger stated that this type of accident had never happened before. She stated that they looked for feedback from their visitors and no one had ever complained about accessing the gardens.
18. The witness stated that she was surprised that the plaintiff was not able to follow the blue route, as designated on the map. She stated that when you stood at the top of the slope, it was clear that it was not suitable for wheelchair users. She thought that it was extraordinary that people would bring a wheelchair down that slope. She thought that the wheelchair accessible route was adequately designated on the map. She did not think that it was necessary to put a sign at the locus indicating that it was dangerous to bring a wheelchair down the slope.
19. The witness stated that the blue route was quite obvious on the map and was clearly suitable for use by persons using wheelchairs as it was level throughout. She stated that they did not consult with any engineers in relation to this route because the path was completely flat. She stated that wheelchair users used this route without any difficulty.
20. Finally, evidence was given by Mr. Seán Walsh, Consulting Engineer, on behalf of the defendant. He stated that he thought the map was an excellent pictorial representation of the grounds, which would be of great assistance to persons using the area. He accepted that it did not show any particular slopes and was not drawn to the exactitude of an OS map. However, he thought that it was perfectly suitable for ordinary recreational users visiting the property.
21. He accepted that there was no evidence of topography on the map, but when a person emerges from the house, the topography of the site was obvious. A person would immediately see that there is a large depression to the rear of the house. He stated that the landmarks in the grounds were graphically represented on the map.
22. In this case, the plaintiff and her mother went down the path to the side of the main garden and then turned to their right and eventually came to the pets’ cemetery. At this time, the plaintiff was on the correct blue route. She then turned backwards and left the blue route and took the path going down the slope. She went down an extremely steep gradient. He stated that it was patently dangerous. He stated that it would be clear to anyone looking at the path that it was sloped and dangerous.
23. Mr. Walsh did not think that it was necessary to put a sign at that particular junction as the danger was clearly obvious. The map clearly showed an appropriate route for wheelchair users.
24. He noted that from the evidence of Ms. Greene, there had been some discussion between Ms. Greene and the plaintiff about slopes and the importance of staying on the blue route had been addressed with her. He stated that the blue route was perfectly suitable for wheelchair users and was communicated well on the map. In this case, the plaintiff had made the extraordinary decision to go down the slope. He was not surprised that there had been no similar accidents prior to this accident.
25. Mr. Walsh stated that a person was standing at the top of the slope, would be struck by the exceptionally steep gradient. When one stood at the top of the path, one would get a sense of a very steep slope.
26. He stated that the blue route was a level path for disabled users; it was not a complex route and was clearly delineated on the map. The plaintiff had been given a very clear map and had also been given very clear instructions by Ms. Greene. She was told that the blue route was level and that she should stick to it. He accepted that not all the red line route was sloped, it was a level path for parts of it, such as down by the Triton Lake. He accepted that it would not be an expensive thing to put up a sign at the locus. However, he did not think that the sign would have prevented an accident. The plaintiff had a map in her pocket and there was a patent risk in going down the slope. If she was confused, she could have retraced her steps and gone back to the house by the same route that she had taken to the pets’ cemetery. He was of opinion that where a person had a clear map and could see that there was a patent slope on one particular path and then proceeded down that path, a sign was not a relevant issue.
Conclusions on Liability
27. It is clear that on this occasion, the plaintiff and her mother intended to walk among the gardens, while her mother used a wheelchair. The plaintiff had been given a map which clearly depicted a blue route thereon, which was suitable for wheelchair users.
28. I accept the evidence of Ms. Greene that the plaintiff had indicated to her that she would like to see the pets’ cemetery and the Japanese Garden. To this, Ms. Greene had stated that it would not be possible for the wheelchair to be brought down to the pets’ cemetery itself, as this was down a number of steps. I also accept the evidence given by Ms. Greene, that she indicated that the route leading from the pets’ cemetery as designated by the red dotted line and going to the left on the map, towards the Japanese Garden, would be unsuitable due to the fact that there were slopes on this path. I accept the evidence of Ms. Greene that she specifically pointed this out to the plaintiff, when they had come back to the reception area having had their lunch.
29. It is common case that the plaintiff went out of the back of the house and turned to her right, moving along the terrace to the rear of the house and then turned left and proceeded down the side of the formal gardens. She then came into a wooded area and turned to her right, coming, after some short distance, to the pets’ cemetery. The plaintiff stated that she left her mother beside a wrought iron bench and she proceeded down the steps to look at the cemetery itself. She then returned to her mother and it was at this point that she was confused as to which path she should take. If the plaintiff was confused, she should have taken the map out of her pocket and looked at it. That map clearly showed that persons, who had turned right and come to the pets’ cemetery on their left hand side, should proceed on, keeping the pets’ cemetery to their left and then make a right turn leading to the Dolphin Pond. This was clearly visible on the map. It would not require any specific training or ability on the part of the plaintiff to be able to work out which was the correct path to take, if following the blue route. Unfortunately, the plaintiff did not do this, but instead somewhat turned back on the route that she had taken and proceeded down the red route, which immediately brought her to a steep slope. If the plaintiff had thought about it for a moment, she would surely have realised that this was not the correct path, as Ms. Greene had informed her that the blue route was entirely level.
30. At the time that the plaintiff had reached the pets’ cemetery, she had done so entirely safely by following the blue route. If she had been confused at that time, all she had to do was take the map out of her pocket and look at it. She would then have seen that the blue route proceeded on to the right so that she would keep the pets’ cemetery on her left at all times. In the circumstances of this case, where very clear instructions had been given by Ms. Greene and where the plaintiff had in her possession a clear map, which showed her a safe route to follow, it is not appropriate to find liability against the defendant for the accident which occurred.
31. Under the Occupiers Liability Act 1995, an occupier owes what is called “the common duty of care” towards a visitor such as the plaintiff. This is a duty to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. In essence, the occupier has to take reasonable care for the safety of the visitor. I am satisfied that in this case, where clear instructions had been given by Ms. Greene and where the plaintiff had been supplied with a clear and easily understood map of the gardens, the defendant has not failed in the common duty of care it owed to the plaintiff. While the provision of a sign at the top of the path which had the slope on it, may have prevented the accident, it seems to me that the fact that there was a slope on that path, was something which should have been readily observable to the plaintiff.
32. Accordingly, I dismiss the plaintiff’s case as against the defendant.
Comerford v Carlow County Council
[2017] IEHC 720
EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 24th day of November, 2017.
Summary
1. This case involves a claim for personal injuries as a result of a ‘trip and fall’ on pedestrianised cobble lock. In considering this claim, this Court is obliged to follow the law on personal injuries in relation to liability and quantum as laid down by the Court of Appeal.
2. In Byrne v. Ardenheath [2017] IECA 293, the Court of Appeal noted that expert evidence, in this case by an engineer, is frequently compromised by the fact that all too often the opinions appear to correspond too favourably with the interests of the party that is paying the expert. The Court of Appeal went on to state that in straight forward matters, such as a trip and fall as in this case, the High Court when faced with expert evidence alleging negligence was obliged to “bring ordinary common sense to bear on their assessment of what should amount to reasonable care”. In applying those principles to this case, this Court concludes that the plaintiff’s claim should be dismissed.
Factual background
3. The plaintiff is a 38 year old man who was a student at the time of the accident. He claims that he fell in a hole in cobble lock paving attached to a footpath near his home in Shroughan Close, Tullow, County Carlow on the 2nd March, 2013, at approximately 7.30 pm. He fractured his nose as a result of the fall and he claims that his nose tilts to the right as a result of the accident. The hole in the cobble lock is within a few inches of the base of a lamppost. There were some blocks missing in the cobble lock and part of the cobble lock had been replaced with concrete that was uneven and was protruding over the level of the cobble lock. It was with this uneven concrete that he says his face and nose came into contact. In this regard, it was conceded by the defendant that the repair work was shoddy and defective.
4. However, this Court did not find that the plaintiff’s recollection, of the details of the alleged accident which happened over 4 years ago, was convincing because:
• He said his foot went into a hole and then he fell forward and his face hit the ground on some rough concrete some 30 inches from his foot. The plaintiff is 5 ft 6 inches tall and in this Court’s view the plaintiff’s account of how he fell is improbable when one considers that he did not have any injuries to his knees or his hands and yet landed on his face only 30 inches from his foot.
• He conceded under cross examination that he told Dr. Nair that he fell outside his house, which was recorded in Dr. Nair’s letter of 10th June, 2013. However, the hole into which he alleges he fell is in fact some 200 metres from his home. During his cross examination, he sought to say both versions of the accident were correct, namely that the hole which is 200 metres from his house is ‘outside his house’.
• He also conceded during his cross examination that he told Dr. Nair that he fell into a pothole. The hole into which he told this Court he fell, could not in this Court’s view be described as a pothole but a hole in a pedestrianised section of block paving.
• He also said in his evidence that he was coming from his home on the footpath and was walking to a field some 30 metres away. If this was the case, the obvious route for him was to stay on the footpath and avoid the hole in the cobble lock, or to take the most direct route over the cobble lock to the field and this would have avoided the hole by some 10 metres. The direction he says he took to that field, which took him into the hole, would not therefore have been the logical route to take to his destination and it also would have involved him walking within inches of a lamp post which would be an unusual manoeuvre.
5. It is also relevant to note that the plaintiff was advised by a specialist that he saw within days of the accident, that he should return to have his nose rebroken and reset within a 10 day window after the accident. He failed to do so and is now claiming that the plastic surgery to have his nose rectified, at a cost of approx. €10,000, should be paid for by Carlow County Council as a result of his failure to follow medical advice.
6. The most significant factor in this case however is that the section of missing and defective cobble lock is very significant in size, since it is at least 30 inches in length and approximately 25 inches wide. In this regard, this Court is obliged to follow the law on personal injuries as laid down by the Court of Appeal. Again, this Court would reiterate the principle expressed by the Court of Appeal in Byrne v. Ardenheath [2017] IECA 293, that it is obliged to “bring ordinary common sense to bear on their assessment of what should amount to reasonable care”. Applying this principle it is difficult to see how the plaintiff did not see the hole of this size and simply avoid it, particularly as it is directly under a lamppost and there was no suggestion that the lamppost was not working at the time of the accident.
7. It might also be noted that this Court would be obliged to have regard to the Book of Quantum in relation to personal injuries if the plaintiff had established that the defendant was liable for his injuries. As the plaintiff’s nose fracture has fully recovered the level of damages would have been in the €18,000 – €22,100 range in the Book of Quantum (and thus comfortably within the jurisdiction of the Circuit Court). This is particularly so since it was the plaintiff’s own decision not to have his nose re-broken and straightened within the 10 day period after the accident, which would have obviated the need for an extra €10,000 in cosmetic surgery.
8. For all of these reasons, this Court finds that the plaintiff has not established on the balance of probabilities that the accident occurred as alleged and even if it did, it would have been entirely the responsibility of the plaintiff.
9. On this basis, the claim is dismissed.
Cronin v Ardkeen Sakes Ltd t/a Londis
[2017] IEHC 406
EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 22nd day of June, 2017.
1. This case involved a plaintiff who fell in the defendant’s car park after she had left a neighbouring pub on the 21st June, 2014, at about 6 p.m. The defendant is the occupier of a Londis shop and the adjoining car park. The car park is used by customers of the shop, as well as being used by cars and pedestrians who frequent other nearby shops and premises. It was suggested on behalf of the plaintiff that the car park was also used by articulated trucks delivering goods to the Londis shop.
Factual background
2. On the day in question, the plaintiff had spent just over an hour at the pub and had consumed in that period three drinks; albeit three glasses of shandy. It is relevant to note that in her evidence to this Court, she stated that she was not a drinker and so was not used to drinking.
3. The plaintiff was wearing wedge heeled shoes which she described in her evidence as having a heel of about an inch. It is however relevant to note that when the shoes were produced in Court, it transpired that they had a five inch heel. In addition the front part of the shoe was also raised to almost an inch.
4. The plaintiff alleges that she caught her footwear in the uneven and cracked tarmacadam in the car park, that she fell forward and her left leg went from under her and backwards and that she suffered a fracture to her ankle. This resulted in extreme pain, which she described as worse than childbirth. Two plates were inserted in her ankle and she spent twelve days in hospital. It was necessary for her to use a Zimmer frame for several months after the accident.
5. Her solicitor’s letter which was issued on the 2nd July, 2014, which seems to be either the day, or very close to the day, that she was released from hospital alleges that she “slipped” in the car park. Similarly, the note which was taken by the Hospital staff on her admission on the day of the accident states that “she slipped”. Despite these two relatively contemporaneous accounts of the accident, it is relevant to note that Mrs. Cronin in her evidence to this Court, some three years after the accident, denies that she slipped on the tarmac. Rather she claims that her heel caught in the uneven tarmac in a depression in the tarmac which she has identified as the locus of the accident. She alleges that the uneven tarmac is the responsibility of the defendant and she alleges that the car park was unsafe because of its uneven surface where she fell.
6. The spot where she alleges the accident occurred is a slight circular depression of about a 1 metre in diameter in the tarmacadam, and the tarmacadam has a web-like or crazed pattern which the engineering evidence suggested occurs in tarmacadam after several years. Of more significance, from the plaintiff’s perspective, is that this part of the tarmac had three small indentations of at least 10 millimetres in depth.
7. The plaintiff’s husband was walking ahead of her at the time of her fall and when he heard her scream, he rushed back to help her. It is relevant that he could not confirm his wife’s evidence that it was at the alleged depression in the tarmac that the accident occurred. While the plaintiff’s son was alongside her when the accident occurred, he was not called to give evidence to confirm the locus of the accident. It follows that the only evidence that this Court has of the locus of the accident is the plaintiff’s evidence. It appears that the plaintiff first confirmed the locus of the accident on the day that she was released from hospital. On that day, she drove with her husband to the car park where she identified to him the locus of the accident from the car in which she was driven from the hospital. She remained in the car, as she was at this stage using crutches. She explained to the Court that the reason that she identified the locus of the accident on the day she was being released from hospital was because she was due to meet her solicitor that day in her home.
8. It is also relevant to note that in her evidence to the Court the plaintiff indicated that at the time of the accident, the plaintiff was not paying any particular attention to where she was going, as this was the route she always takes.
9. The plaintiff also indicated that since her accident she has seen what she termed “thousands” of depressions like the one that caused her accident, but she acknowledged that she had not fallen into any of them.
10. The defendant’s engineer examined the alleged locus of the accident some six months after the accident. Applying a spirit level across this depression he indicated that there was a drop of some 15 millimetre from its highest point to its lowest. His evidence was that there were three indentations in the centre of the depression, some 25 millimetres in diameter with a depth of 10 millimetres.
11. Some six months later the locus was examined by the engineer on behalf of the plaintiff who was of the view that the indentations were 15 to 20 millimetres deep. The defendant’s engineer suggested that the difference in the readings could be due to the passage of time and further wear and tear of the area in the six months between the date of the inspections and there was some evidence from the photographs that the area had degraded somewhat, albeit that it was hard to discern as the photographs were taken of the locus in wet conditions on the first occasion and in dry conditions on the second occasion. In any case, as was evident from the photographs show to the Court, one is dealing with a crack or indentation in the tarmac of the order of 15 millimetres in depth.
Legal liability for the accident?
12. Against this background, the legal issue for this Court is whether, on the balance of probabilities, the plaintiff fell as she indicated by catching her heel in the indentations in the car park which were identified by her. In light of the evidence to which reference has been made before the Court and the inconsistencies in the plaintiff’s own recollection of even the size of the heel she was wearing on the day in question, this Court concludes that the plaintiff has failed to discharge the onus on her to prove on the balance of probabilities that the accident occurred at the locus she has indentified in the manner she has claimed.
13. This is not to suggest that the plaintiff is deliberately misleading the Court, but simply that before a Court can affix a third party, in this case the owner of the Londis shop, with the considerable damages which are being sought by the plaintiff, it is not sufficient for the Court to conclude that that the accident could or might have occurred as claimed, but rather the Court must be able to conclude that on the balance of probabilities her injury was caused by her heel catching at the exact spot indentified by her in the car park. Based on its consideration of the strength of the evidence, this Court concludes that the plaintiff has failed to convince this Court that, on the balance of probabilities, the accident occurred in the manner claimed by the plaintiff.
Legal obligation upon property owners to maintain premises in near perfection?
14. Although not determinative of this issue, it remains to be observed that even if this Court had concluded that on the balance of probabilities that the defendant had fallen in the way she described at the locus she indentified, there would remain the issue of whether the occupier of a car park is legally liable for the fact that his car park is not perfectly flat but rather that the tarmac contains unevenness and cracks or indentations of 15 millimetres or more in depth. What we are talking about here, as is evident from the photographs produced in evidence, are minor hollows with a diameter of about a 1 cent coin and of a depth of about the same size, which the plaintiff accepted she has come across regularly, albeit that she had not fallen on other tarmac surfaces.
15. If this Court were to find that the defendant was liable for the damages in this case, it would lead, in this Court’s view, to the almost intolerable position that owners of car parks were required to ensure that the tarmac in all of their car parks was perfectly level or within millimetres of being perfectly level with a consequent increase in claims and possibly an increase in insurance costs as a result
16. This Court does not believe that when people walk around this country they can expect surfaces upon which they walk to be perfectly flat, or to put it another way that there is a duty of care on the owners of such surfaces to maintain the surfaces without minor indentations or cracks. Rather it is this Court’s view that pedestrians cannot assume that tarmacadam in car parks or roads or other surfaces, particularly where they are exposed to the elements and heavy duty usage, will be perfectly flat.
17. While much of the jurisprudence in personal injury cases is taken up with the rights of victims of accidents as it should be, this Court is also acutely conscious that it has a duty to ensure that owners of property are not subjected unnecessarily to the very considerable cost of having to defend High Court actions which are based on claims that they are obliged to maintain their premises in a state of near perfection, particularly when there will be instances where unsuccessful plaintiffs will not have the resources to pay the considerable costs of the defendant having to defend such High Court actions.
18. When unfortunate accidents occur it is not always somebody else’s fault and it is this Court’s view that this was such a case. One can have sympathy with the plaintiff for the very severe pain and discomfort she has had to endure as a result of a fall. However, the role of this Court is not to award damages on the basis of sympathy. Rather it is this Court’s role to determine whether a third party should be affixed with the considerable damages (and in this context one is dealing with a claim for a minimum of High Court damages of €60,000, in the context of an average industrial wage of circa. €37,000). It is this Court’s view that such damages should not be visited upon the defendant in this instance.
Walsh v Wexford Wanderers Rugby Club
[2017] IEHC 228
JUDGMENT of Mr. Justice Barr delivered on the 7th day of April, 2017
1. In this case the plaintiff seeks damages in respect of personal injuries suffered by her, when she tripped and fell to the ground while crossing the car park area at Wexford Wanderers Rugby Club at approximately 00:30 hours on 6th May, 2012. It is the plaintiff’s case that her accident and the resulting injuries, were caused by the negligence and breach of duty of the defendant, for failure on its part to maintain the area in a safe and proper condition. In particular, the plaintiff states that there was a hole or depression in the car park and there was a large stone in the hole, into which her right foot came in contact and as a result she was caused to go over on her ankle, resulting in a fracture to the right ankle.
2. All matters are in issue between the parties. In particular, it is the defendant’s case that, while the plaintiff did fall to the ground while in the car park, it was at a totally different area to that alleged by the plaintiff. While not admitting that there was any defect in the car park, in the area alleged by the plaintiff, they deny that there was any defect in the surface of the car park in the area where they allege that the plaintiff met with her accident. There is also an allegation in the defence that the plaintiff had consumed a considerable quantity of alcohol on the night in question, and that she fell due to her intoxicated condition. It is also alleged that she failed to take reasonable care for her safety while crossing the car park.
The evidence
3. The plaintiff was born on 1st April, 1981 and is currently 36 years of age. She is employed as a shop assistant in a supermarket. She stated that on 6th May, 2012, she had made an arrangement with her friends, Amy Farrell, Jennifer Farrell and Ashleigh Casey, to go to a function which was being held in the local rugby club and would then go on to a nightclub in Wexford. The plaintiff stated that on the day in question, she had gone to Naas with her mother for the purpose of doing some shopping and meeting up with a friend of her mother’s. She said that she returned back home to Wexford at approximately 18:30 hours. She had a shower and then her mother dropped her to Amy Farrell’s house, arriving at approximately 20:30 hours.
4. The plaintiff stated that Ashleigh Casey had already arrived at Amy Farrell’s house and that Jennifer Farrell was also there prior to her arrival. When she got to the house, the other girls where in the process of straightening their hair. The plaintiff stated that she had one vodka and 7-Up in the house. The four of them went by taxi to the rugby club at approximately 21:00 hours. There was a social function going on in the rugby club, which had been hosting a “rugby blitz” that weekend.
5. The plaintiff stated that when she arrived at the rugby club, she had a standard sized mineral bottle in her bag which was ¾ full of vodka. One of her friends also had a similar sized bottle, also containing vodka. The idea was that they would smuggle these bottles of vodka into the nightclub later that night, due to the fact that alcoholic drink was quite expensive in the nightclub.
6. The plaintiff stated that she had two or three vodkas and 7-Up at the rugby club. She stated she had these drinks during the 3.5 hours that they were at the club.
7. The plaintiff stated that on the night in question she was wearing black coloured flat shoes, with a low heal. She stated that as she was 6 feet 1 inch tall, she did not wear shoes with high heels. She produced a photograph to the court showing the shoes that she was wearing on the night in question.
8. The plaintiff gave the following account of her accident: at approximately 00:30 hours the girls had decided to leave the rugby club. One of her friends had phoned for a taxi and the taxi driver had phoned her back to say that he had arrived at the club. She left the club house in the company of Jennifer Farrell. They had come out of the main door and out onto the decking area as shown in photograph no. 4. They had proceeded across the car park area shown in that photograph, walking towards the camera. She said that she had proceeded through the bollards which are shown in that photograph, which are designed to prevent vehicular traffic on the area immediately in front on the club house entrance. She stated that she had then walked across the main car park area to a point approximately 7 feet to the right of the open shed, as shown in photograph no. 2 of Mr. O’Reilly’s photographs. She stated that there was a dip or hole in the surface of the car park and that her right foot went into it, where it struck a large stone that was in the hole and she went over on her ankle. This caused her to fall to the ground. She stated that she was helped up by Jennifer Farrell and by the taxi driver, who had got out of the taxi to come to her assistance. They helped her into the taxi. She stated that her companions were still in the rugby club at that time.
9. When the other girls emerged from the club, the taxi dropped them to the nightclub in Wexford town. However, she was not able to go into the nightclub due to severe pain in her right ankle. She and Amy Farrell got a taxi to her own house. She stated that at that time she thought that she had just sprained her ankle. Ms. Farrell made her comfortable on the couch in the downstairs living room and fetched a duvet for her from the bedroom. The plaintiff took some painkillers at that time. On the following day her ankle was still very painful. She went to hospital, where it was confirmed that she had suffered a fracture of the right ankle.
10. The plaintiff stated that her accident had been caused due to the unsafe and dangerous condition of the car park and also due to the fact that there was inadequate lighting in that area. In this regard, she stated that the light which was above the emergency doors at the gable end of the club house, as shown in photograph no. 8, was not switched on, on the night of her accident.
11. In cross-examination it was put to the plaintiff, that two of her friends, Ms. Amy Farrell and Ms. Ashleigh Casey, would state that she had arrived at Ms. Farrell’s house much earlier than she said she did, and that she had in fact arrived there at approximately 18:00 hours. The plaintiff denied that that was true. When asked about her relationship with Ms. Amy Farrell, she stated that she had known Ms. Farrell for approximately ten years. They had worked together in Pettits Supermarket in Wexford. She stated that they had been friends, but that they had fallen out over this case.
12. It was put to the plaintiff that the evidence of her two friends would be that they had in fact consumed a considerable quantity of alcohol before leaving the house to go to the rugby club. Ms. Farrell and Ms. Casey would say that they had consumed two 750 mls bottles of vodka, almost two bottles of Peach Schnapps, a bottle of apple flavoured Mickey Finns and a bottle of strawberries and cream flavoured Mickey Finns. They would state that each of them, including the plaintiff had consumed approximately 10-15 drinks before leaving the house. The plaintiff denied that that was true. She was adamant that she had only had one vodka and 7-Up at the house. She did accept that the content of one bottle of vodka, had been split into two standard sized mineral bottles and that she had put one of the bottles into her bag, for consumption later in the evening.
13. In this regard, it was put to the plaintiff that Ms. Farrell and Ms. Casey, would state that while they were in the rugby club, mixers were bought at the bar and the four of them then went into the ladies toilet where the bottles of vodka were produced and were poured into the glasses containing the mixers. The plaintiff denied that that happened. She stated that it had never been intended to drink the vodka, which they had brought with them, in the rugby club, but they had intended to drink it when they got to the nightclub. It was put to her that that could not have been the intention, due to the fact that bags were searched prior to entering the nightclub. The plaintiff did not accept that and stated that it was always their intention to consume the vodka in the nightclub.
14. The plaintiff was asked about the area of the car park immediately in front of the front entrance and beyond the bollards as shown in photograph no. 4. She stated that she had not fallen in that area. She accepted that that portion of the car park appeared to be in good condition, as shown in the photographs. It was put to the plaintiff that the evidence of Ms. Farrell and Ms. Casey, would be that she had fallen in the area immediately in front of the decking and entrance to the club house itself. This was in the area beyond the bollards as shown in photograph no. 4. The plaintiff stated categorically that that was not true. She said that her friends were not telling the truth about how much they had to drink on the night in question, or about where she fell.
15. The plaintiff also gave evidence about the curious incident which occurred on 1st March, 2014. On that evening, the plaintiff and Ms. Amy Farrell and Ms. Casey had arranged to have dinner in Ms. Farrell’s house. Ms. Jennifer Farrell was not going to be there, as she had returned to live in Scotland. Before arriving at the house, the plaintiff sent a text or facebook message to her two friends, informing them that she was on the way up to the house and that she just had “a thing for you to sign as well about when I fell”. Ms. Casey asked her what it was that she wanted them to sign. She replied “just a note, you can change it according if you want, you can hang onto it till after the weekend or that.” To which Ms. Casey replied “me and Amy were inside the rugby club when you fell, so we didn’t even see what happened.” The plaintiff stated that when she received these messages, she knew that her friends were not going to help her with her case against the rugby club, so she did not go up to the house for dinner. She did not see her friends again socially after that.
16. When the plaintiff was asked what she had tripped over, she stated that her foot went down into a hole, which had a large stone in it. She stated that her mother had gone to the rugby club a week later, and had taken photographs of the area where she fell.
17. Evidence was given by Mr. Jack O’Reilly, Consulting Engineer, on behalf of the plaintiff. He carried out an unofficial inspection of the site on 25th March 2014, when he simply drove onto the premises in the company of the plaintiff. She pointed out to him where she had fallen and he took a series of photographs of the general car park area. He stated that the surface of the car park was fairly typical for a car park in sports clubs and other such premises. It was an unbound surface, in that it was not made up of tarmacadam or concrete. The surface was sufficient for an area which was used as a car park, but it required maintenance, due to the fact that it would develop pot holes due to the passage of vehicular traffic across the surface.
18. Mr. O’Reilly stated that for a car park, one would typically find that the surface was made up of mill waste material, which was a by product of stone crushing. It was somewhat like a stone dust. It would be used for pot hole repair. In this case, stones of 1-2 inches in diameter had been used and this would not be part of the mill waste material. The presence of such stones were a hazard, due to the fact that the stones would be liable to move under foot. He thought that the defendant should have removed the stones, or overlaid the surface with mill waste. He stated that the presence of the stones on the surface as shown in the photographs, meant that the surface was similar to having marbles on the top of it. In relation to the lighting at the locus as pointed out by the plaintiff, Mr. O’Reilly stated that by arrangement with the defendant, he had re-attended at the premises on 30th March 2015 at 18:56 hours, when he had taken photograph no. 8, which showed the lighting around the club house. He stated that if the halogen light, which was placed above the emergency doors on the gable wall of the club, was switched on this would have provided dim lighting at the locus of the accident. Such lighting would have been sufficient to allow under foot conditions to have been visible to someone walking at the locus.
19. Mr. O’Reilly pointed out that on the date of the joint inspection in March 2015, he and the defendant’s engineer, Mr. Walsh, had looked at the same area, which was the area identified by the plaintiff as being the area where she fell. Neither the defendant’s engineer, nor anyone on behalf of the club, pointed out to him that it was suggested that the plaintiff fell in any other area of the car park. They did not examine any other area of the car park. He said that he was surprised to learn that the defendant thought that the accident had happened at a different area, because if they had such a belief, that would usually have been made known to him at the time of the joint inspection.
20. In cross examination, Mr. O’Reilly accepted that he had not made any reference to mill waste material in his written report. However, he had said that the surface was unsuitable and unsafe and likely to cause an accident. He did accept that the surface was typical of a club car park. However, he stated that it would be necessary to maintain the car park. He stated that he was critical of its condition at the time of his inspection. He confirmed that the plaintiff did not say anything to him about a hollow or hole in the surface of the car park.
21. Mr. O’Reilly stated that his informal inspection of the locus had been carried out almost two years post-accident. At that time there were pot-holes evident in the car park, as shown in photograph 6. He could not say what the surface was like at the time of the accident in 2012.
22. It was put to the witness that the defendant’s evidence would be that in the days prior to the weekend of the rugby blitz, maintenance was carried out to the general car park area by club volunteers. Mr. O’Reilly stated that that would be appropriate.
The defendant’s evidence
23. The defendant called Mr. Gerry White, who was a work colleague of the plaintiff’s. He was also a member of the rugby club. He had been participating in the blitz that weekend. He stated that he met the plaintiff as she was entering the club at approximately 21:00 hours. He was leaving at that time. He formed the impression that she was quite drunk, due to the fact that he could smell alcohol on her breath and she was slurring her words. He had spoken to her for about two minutes.
24. When the content of Mr. White’s evidence had been put to the plaintiff in cross examination, she denied that she had a strong smell of alcohol on her breath. She recalled that Mr. White had been very drunk that night. She stated that he was not an enemy of hers, but suggested he would lie about his encounter with her,because he was heavily involved in rugby club. When this was put to Mr. White, he denied that he had been drunk when he left the club that evening. He stated that he had played a match that day as part of the blitz, he had then gone home and changed and then returned to the rugby club. He stated that he had had one drink in the club when he returned. He stated that he did not have any drinks earlier in the evening, after the match. He denied that he had been drunk as alleged by the plaintiff.
25. Ms. Amy Farrell gave evidence about the consumption of alcohol in her house and about the pouring of vodka from the mineral bottles into glasses in the ladies toilet of the rugby club, along the lines that had been put to the plaintiff in cross examination. In cross examination, it was put to her that, on her account, she had had an extraordinary amount to drink that night. She stated that while they had had a considerable amount to drink, it was not more than she could handle on a normal night out. It was put to her that the intention had been to bring small mineral bottles of vodka into the nightclub in their bags, due to the expensive price of drinks in the nightclub. She stated that this was not possible, due to the fact that they would search peoples bags on entry to the nightclub. She stated that it had been their intention to drink the vodka in the rugby club. She stated that she was definitely with the plaintiff, when the plaintiff poured the vodka from the mineral bottle, into the glasses containing the minerals, while in the ladies toilet.
26. In relation to the plaintiff’s fall, she stated that she had been inside in the bar in the club when the plaintiff fell. Her sister, Jennifer, came into the bar and told her what had happened. She stated that she went out the emergency doors in the gable wall of the club and turned to her right and walked around the club house. She stated that she saw the plaintiff lying on the ground. She was parallel to the steps to the decking area, as shown in photograph no. 4, and was halfway between the club house and the pitch. She stated that the plaintiff was quite drunk. She and Ashley Casey picked her up and brought her to the taxi. The taxi brought them to the nightclub. However, when the plaintiff got out of the taxi she found that she could not walk on her ankle. Ms. Farrell stated that she then got another cab and brought the plaintiff back to her own house. She brought the plaintiff into the house. The plaintiff could not go upstairs, so she got a duvet for her and brought it downstairs.
27. She stated that the plaintiff did not complain to her about the surface of the car park. Ms. Farrell stated that the lighting in the area where the plaintiff had fallen, was fine.
28. Ms. Farrell gave evidence in relation to the texts or messages which had passed between the plaintiff and Ms. Casey, on the night when there was due to be a dinner at Ms. Farrell’s house. She confirmed the account which had been put to the plaintiff. She stated that after that, the plaintiff’s mother had called to see her, to see if she would go as a witness on behalf of the plaintiff. She had refused to get involved in the case.
29. She was asked as to how she had come to be a witness for the defendant. She stated that she had contacted the rugby club in December 2016, when she had contacted a Mr. Declan Noctor, who was a member of the club committee. He put her in contact with the defendant’s solicitor. She furnished a statement to the defendant’s solicitor on the day before the action was due for hearing. She stated that she was a member of the rugby club and had played on the ladies team known as the “Vixens”.
30. Evidence was also given by Ms. Ashleigh Casey. She stated that the plaintiff had been her best friend. She had worked with the plaintiff in Pettitts Supermarket. She, Amy Farrell and the plaintiff had been very good friends. In relation to the drinking before they went out, she was adamant that they had been on their first drink when the plaintiff arrived at Ms. Farrell’s house, at approximately 18:30/19:00 hours. It was put to her that the plaintiff’s evidence was that she had only arrived at 20:30 hours, she stated that that was not true, that they had all been in the house for a number of hours before going to the rugby club. She said that the plaintiff was telling lies, if she said that she only had one drink in the house. Ms. Casey also confirmed the account of the incident concerning the drinks in the ladies toilet, as recounted by Ms. Farrell.
31. In relation to the plaintiff’s fall, she stated that she was at the main entrance to the club house as shown in photograph no. 5. She was looking back into the club to see if her friends were following. She had her back to the car park. She said that after the plaintiff fell, she turned around and saw the plaintiff on the ground just across from the decking as shown in photograph no. 5. She tried to lift the plaintiff from the ground, but was not able to do so. Jennifer Farrell went inside and got her sister, who came around from the back of the club and they both lifted the plaintiff up and brought her to the taxi.
32. Ms. Casey stated that on the night of the dinner party, when they refused to sign any letter for a solicitor, the plaintiff did not turn up to the dinner. She never saw her socially after that. She later received a text from the plaintiff’s mother, saying that the plaintiff was under pressure and that if they signed the letter, it would help a lot. She stated that she ignored this text. Some time later, the plaintiff’s mother called up to her house and said that if she did not sign such a letter, the plaintiff would be in danger of losing her home. She confirmed that the plaintiff had not complained to her about the surface of the car park on the night of the accident.
33. In cross examination, the witness stated that while she had consumed more than a bottle of spirits that night, she was well used to that amount of alcohol. She accepted that on occasions when she had drunk a lot, she may have woken up on the following morning and not remembered events from the night before. However, she denied that that had happened on this occasion. She stated that she did remember the events of that night. She stated that they had refused to sign a letter for the plaintiff’s solicitor, as they did not want to get involved in the matter.
34. Finally, evidence was given on behalf of the defendant by Ms. Deborah Carty, who was the president of Wexford Wanderers Rugby Club at the time of the accident. She stated that the weekend in question was a very big event in the life of the club. They hosted a competition known as the “Casey Cup”, which was a tournament between their rugby club and Greystones RFC, in memory of a young man who had lived and worked in both areas. During the weekend, all the teams in the club, from the “mini” rugby team right up to the senior team, and including the ladies team and the “golden oldies” team, would play matches against the corresponding teams from Greystones RFC.
35. She stated that in advance of the weekend, they would have a club clean up day, where volunteers would attend and would make sure that the club was in very good condition for the competition. This would involve redecorating the club, making sure that the lighting was in operation and carrying out maintenance work to the car park. She stated that the car park was well maintained throughout the year. However on the club clean up day, members would assist with tractors and diggers to maintain the car park for the weekend event. Extra stone would be brought in from Roadstone and would be laid by a team led by the club grounds-man, Mr. Billy Morris. Part of that work would have involved the filling in of any pot holes that existed in the car park. It was put to the witness that the photographs taken by the plaintiff’s engineer in March 2014, showed the car park in considerable disrepair, with pot holes evident in photograph no. 6. Ms. Carty stated that those photographs were taken when the season had been up and running for a number of months. She stated that the car park would have been in a better condition on the weekend of the blitz, after the club clean up day.
36. In relation to lighting at the locus, Ms. Carty stated she was a registered electrical contractor. She had overridden the timers on the halogen light above the emergency exit and on the bulkhead lights around the perimeter of the club house, so that they would stay on for the entire of the nights during the weekend. In addition, she stated that the area where the plaintiff fell was also illuminated by two sets of training lights, which could be seen in photograph no. 3. She stated that approximately eight years ago, the club had put in new lighting on the pitches. The old training lights were kept in situ, but were turned around so that they shone on the club house and car park. In addition, on the night in question, she had been working in the kitchen area, which was the flat roofed extension, which could be seen projecting from the front of the club house in photograph no. 6. She stated that she had been preparing a curry for approximately 500 people, which would be consumed on the following day. For this reason she was in and out of the kitchen during the night and the light from the kitchen window, as shown in photograph no. 5, would have shone onto the area in front of the decking.
37. The witness stated that she knew the plaintiff vaguely, as she was the same age as her sister and cousins. She recalled seeing the plaintiff on the night of the accident. She believed that the plaintiff had drink consumed and was intoxicated. She noticed that the plaintiff did not buy alcohol at the bar, but merely bought a 7-Up. She followed the plaintiff and saw her in the ladies’ toilet, where she had a glass in her hand and a bottle with liquid in the other hand and was pouring it into the glass.
38. In the course of cross examination of this witness by junior counsel for the plaintiff, a strange thing happened. Counsel asked the witness to have a look at a series of photographs, which had been taken of the locus by the plaintiff’s mother on 13th May, 2012. When objection was taken to the introduction of this evidence, Counsel applied to call the plaintiff’s mother, Ms. Clare Walsh to prove the photographs.
39. The court permitted the cross examination of Ms. Carty to be halted, for the purpose of calling Ms. Clare Walsh as a witness. She stated that approximately one week after the accident, she and her friend, Mr. Leonard, went to the rugby club and took photographs of the car park. She gave the photographs to the plaintiff’s solicitor. She also confirmed that on the day of the accident she and her daughter had been in Naas until approximately 17:30 hours. It took them approximately 1.5 hours to drive home to Wexford. After the plaintiff had got herself ready to go out, she dropped her daughter to Ms. Farrell’s house at approximately 20:30 hours.
40. In cross examination, Ms. Walsh stated that she had been in Naas that day for the purpose of shopping and visiting a friend, called Mr. Leonard. They had left his house when he went to get ready to go to work as a bouncer in a nightclub. She confirmed the time at which she had dropped her daughter to Ms. Farrell’s house. She did not know why Ms. Farrell was saying that the plaintiff had been there since approximately 18:00 hours. She accepted that she had sent texts to both Amy Farrell and Ashley Casey and had asked them to confirm that they had been in the rugby club on the night that the plaintiff fell. She stated that the plaintiff’s solicitor had suggested that she should obtain such letters. When that had not proved successful, she had called to Ms. Casey’s house, which had also been suggested by her solicitor. She stated that she asked Ms. Casey to sign a two line letter to confirm that she had been at the rugby club that night. She denied saying that the plaintiff would lose her house if Ms. Casey did not go to court, or that she would have pay her own hospital bills. She stated that she had paid the plaintiff’s hospital bills. She confirmed that she had also called around to Ms. Farrell’s house.
41. In relation to the four photographs that had been produced in court, she stated that she had taken these on her mobile phone. Mr. Leonard had also taken photographs on his phone. She could not recall exactly how many photographs she had taken in all.
42. When the cross examination of Ms. Carty resumed, she confirmed that she had been checking up on the plaintiff that night. She had seen the plaintiff buy 7-Up at the bar and had not seen her in the club before. She was annoyed that she brought her own drink to the club, as this was one of the main fund raising events in the club. She stated that she definitely saw the plaintiff pouring the drink from the mineral bottle into a glass in the ladies toilet. She did not confront the plaintiff at that time, as it was a social occasion. She accepted that she did not stop the plaintiff pouring the drink. She said maybe she should have. She confirmed that Ms. Farrell and Ms. Casey were on the “Vixens” team in the club.
Conclusions
43. One of the very few uncontroversial facts in this case is that the plaintiff suffered a fracture of her right ankle while crossing the car park at Wexford Wanderer’s Rugby Club at approximately 00:30hrs on 6th May, 2012. Almost every other piece of evidence about the events of that evening was hotly contested between the parties.
44. The first area of controversy concerned the amount of alcohol consumed by the plaintiff prior to going to the rugby club that evening. Ms. Farrell and Ms. Casey said that they met up circa 17:30hrs and that while they were on their first drink, the plaintiff arrived at circa 18:00hrs. They stated that they consumed two bottles of vodka, almost two bottles of Peach Schnapps, almost a full bottle of Mickey Finns and a bottle of strawberry and cream shots, before leaving the house. The parties are in agreement that the third bottle of vodka was split into two smaller mineral bottles which were empty.
45. The plaintiff’s evidence was that she had spent the day in Naas with her mother shopping and visiting a friend, Mr. Leonard. They drove back to Wexford at approximately 17:30hrs, arriving there circa 19:00hrs. She stated that her mother dropped her to Ms. Farrell’s house circa 20:30hrs. The plaintiff was adamant that she had only one vodka and 7-Up in the house prior to going to the rugby club at 21:00hrs.
46. I prefer the accounts given by Ms. Farrell and Ms. Casey on this issue. It seems to me that there was no motive for them to lie about this aspect of the case. I also find that their account is supported by the evidence of Mr. White, who met the plaintiff on his way out of the rugby club, as she and her friends were arriving. I accept his evidence that the plaintiff appeared drunk, as he could smell alcohol on her breath and she was slurring her words. Either, Ms. Farrell, Ms. Casey and Mr. White are telling the truth, or they have conspired together to tell an elaborate lie about the plaintiff’s consumption of alcohol and her condition, as she arrived at the rugby club. I have had regard to the fact that all three of these witnesses played on teams in the rugby club. However, I do not think that they have conspired together to tell lies about the plaintiff on this account. Accordingly, I am satisfied that the plaintiff was at Amy Farrell’s house reasonably early that evening and had consumed a considerable quantity of alcohol prior to arriving at the rugby club.
47. The second area of controversy was whether the plaintiff poured vodka from the mineral bottle into glasses which had mixers in them, while in the ladies toilet at the rugby club. Ms. Farrell, Ms. Casey and Ms. Carty, say that this happened. The court was impressed by Ms. Carty, who was president of the rugby club at the time. She very candidly said that she was suspicious when she saw the plaintiff buy mixers at the bar. She followed her into the toilet and saw the plaintiff and her three friends, pour liquid from the mineral bottles into glasses. She said that she was annoyed about this, as that evening was a major fundraising event for the club. However, she let it go and did not do anything about it at the time.
48. If I were to accept the plaintiff’s evidence that that did not happen, I would have to find that these three witnesses had conspired together to concoct this story in order to blacken the plaintiff in relation to her activities that night. I simply do not think that these witnesses came together to give perjured evidence against the plaintiff. I accept their evidence that this event happened in the ladies toilet, as described by them.
49. However, these were merely peripheral matters, which did not touch upon the issue of liability, but concerned the issue of the plaintiff’s credibility. The crux of this case concerns where in the car park, the plaintiff fell and what caused her to fall. The plaintiff’s case is that she had proceeded out from the club house in the company of Jennifer Farrell and had gone from the decking area, down the two steps, across the front area went through the bollards and was going towards the taxi, when she stepped in a hole or depression which was almost 7 feet to the right of the shed structure, as shown in photograph 7. The plaintiff says there was a large stone in the hole, which caused her to go over on her ankle. She said that she was helped up by Ms. Farrell and the taxi driver, who got out of the taxi and helped her into it.
50. The evidence of Ms. Casey and Ms. Farrell was quite different. While neither of them saw the plaintiff fall, Ms. Casey, who was standing at the front door of the club house looking back into the club house itself, heard the plaintiff cry out and turned around. She said that she saw the plaintiff lying on the area of the car park some feet away from the decking area as shown in photographs 4 and 5. Ms. Farrell stated that she had been in the bar, when she was alerted by her sister to the accident. She went out the emergency doors as shown in photograph 8, walked around the club house and saw the plaintiff lying on the ground in front of the decking area, as shown in photographs 4 and 5.
51. To deal firstly with a discrete issue concerning the lighting at the alleged locus, the plaintiff made complaint about the level of lighting in that area. Ms. Carty stated that she had overridden the timer on the external lighting in the club house. She stated that the halogen light above the emergency exit doors, was switch on, on the night of the accident. The plaintiff’s engineer Mr. O’Reilly accepted that if that light had been on, there would have been sufficient lighting in the area identified by the plaintiff, to allow underfoot conditions to be visible. I accept the evidence of Ms. Carty that the halogen light and the bulk head lights as well as the training lights, were switched on, on the night of the accident. Accordingly, I find that the lighting in the area identified by the plaintiff was adequate.
52. In cross examination, the plaintiff conceded that there did not seem to be anything wrong with the surface of the car park in the area immediately in front of the decking. She accepted that there was probably adequate lighting in that area, but she remained adamant that she did not fall in that area.
53. The plaintiff made the case that she had intended to call the taxi driver as a witness on her behalf, but that unfortunately he had died some days prior to the matter coming on for hearing. That was certainly a disadvantage to the plaintiff, but it was not the fault of the defendant. The court can only reach its decision on the evidence presented to it.
54. In relation to the issue as to the correct locus of the accident, in evidence, Mr. O’Reilly stated that at the time of his official joint inspection of the locus on 30th March, 2015, neither the defendant nor their engineer, stated that the plaintiff had fallen at any location other than that which had been nominated by the plaintiff, being the area in the main car park approximately 7ft to the right of the shed shown in photograph 2. Mr. O’Reilly stated that if the defendants thought that the accident had happened in a different area, they would usually state that at the joint inspection. I do not think that that criticism can validly be made against the defendant, having regard to the evidence of Ms. Farrell, which I accept, that it was only in December 2016, that she contacted Mr. Noctor, a member of the committee of the rugby club. I also accept her evidence that she made her statement sometime thereafter. Thus, at the time of the inspection in March 2015, the defendants would not have been aware of Ms. Farrell’s evidence as to the locus of the accident.
55. On the issue of the locus of the accident, there is a stark conflict between the plaintiff’s evidence and that of her two former friends. In considering this question, the court has had regard to the demeanour of the witnesses. The court has also had regard to the somewhat extraordinary situation regarding the photographs taken by the plaintiff’s mother. The surface of this car park was a surface that was perfectly adequate if it was well maintained. Being a soft surface, as distinct from a hard surface like tarmacadam or concrete, it was liable to develop potholes from time to time, as vehicular traffic moved across it. For this reason, the surface required monitoring and maintenance on a constant basis. Thus, the surface would change from time to time, depending on the volume of traffic and the weather conditions.
56. Mr. O’Reilly very fairly conceded that because the surface would change over time, he could not say what the surface was like at the time of the accident based on his unofficial inspection, 22 months after the accident in March 2014. Mr. O’Reilly did not mention seeing Ms. Walsh’s photos either in his report, or in his evidence. Mr O’Reilly is a very experienced and honourable expert witness. The court is satisfied that if he had been shown these photos, he would have mentioned that in his report, or in his evidence. Accordingly, I find as a fact that Mr. O’Reilly was not shown these photographs.
57. It was extraordinary that he was not shown the photographs taken by Mrs. Walsh on 13th May, 2012. These photographs captured the condition of the alleged locus, reasonably soon after the accident. In her evidence, Mrs. Walsh stated that she had gone to the car park on the Sunday following the accident, with her friend Mr. Leonard. Curiously, she did not state that the plaintiff was with her on that occasion. However, I do not draw any inference in that regard, as she was not specifically asked whether the plaintiff was with her, and if not, how she and Mr. Leonard identified the relevant locus.
58. I cannot see any logical reason why these photographs were not shown to Mr. O’Reilly, or why they were not led in evidence as part of the plaintiff’s case. One can only conclude that for some reason, the plaintiff and her legal advisers decided not to use these photographs as part of her case and then changed their minds when Ms. Carty was being cross examined. Even then, when the court asked the plaintiff’s senior counsel whether he wanted to recall the plaintiff and Mr. O’Reilly to comment on the photographs, he declined and said that he would just call Mrs. Walsh to prove the photographs. Thus, the court has been left with a set of photographs, without any engineering evidence on them. In these circumstances, the court will have to form an opinion on its own examination of the photographs.
59. The court has also had regard to the fact that the case made by the plaintiff at trail, was not the same account that she had given to her engineer. She told him that she slipped on loose stones. There was no mention of any hole or depression. Whereas in her evidence, she stated that her foot had gone into a hole, with a large stone in it. There was no hole shown in the photos taken by Mrs. Walsh. Perhaps that is the reason why they were not used, or shown to the engineer. It is difficult to construe the plaintiff’s actions in deliberately withholding vital photographs from her own engineer, as being consistent with anything other than a fraudulent motive.
60. Having considered all of the evidence, I am satisfied that Ms. Farrell and Ms. Casey have given a truthful account of what happened. I do not think that they have conspired to give false evidence as to the location of the plaintiff’s fall. If they were going to do that, it would be logical that they would have given a false account of how the plaintiff came to fall in the first place. They did not do that. They conceded that they had not seen the plaintiff fall, but did see her on the ground after the fall. Ms. Casey said that she turned around when she heard the plaintiff shout out. She saw her lying on the ground in front of the decking. Ms. Amy Farrell said that she came around the corner of the club house, having been alerted to the accident by her sister, Jennifer. She found the plaintiff lying on the ground in front of the decking.
61. Having observed the plaintiff, Ms. Farrell and Ms. Casey give their evidence and having regard to the findings already made about the plaintiff’s consumption of alcohol before going to the rugby club and the findings in relation to the toilet incident, I prefer the evidence of Ms. Farrell and Ms. Casey in this regard. I find that the plaintiff fell in the area to the front of the club house just beyond the decking. As the plaintiff does not make any complaint about the surface of the car park in that area, that is the end of the case.
62. However, even if I am wrong in my finding as to the locus of the accident, from a careful perusal of Mrs. Walsh’s photographs, I am not satisfied that the area of the car park, as shown in those photographs, being the area where the plaintiff maintained that she met with her accident, was in an unsafe or dangerous condition at the time of the accident. There is no hole shown in the photographs. There is an area of lighter coloured stones shown in the photographs, which may have been used to level out a previous depression or pothole, but it does not seem to me to constitute a hole or depression of such depth, that it would render the area unsafe for people walking across it. Further, I do not accept that the presence of small stones on the surface of the car park, constituted a hazard or danger to persons traversing the car park. Having regard to the findings reached by the court in this case, I dismiss the plaintiff’s action against the defendant.
Edward Ronan v Tipperary County Council and Joanne Barrett
[2016 No. 443 P]
High Court [Approved]
11 June 2021
unreported
[2021] IEHC 492
Mr. Justice Twomey
June 11, 2021
JUDGMENT
INTRODUCTION
1. This is a claim for compensation from a slip and fall against a local authority and a house owner by a gentleman when he was walking onto a foot path.
2. It considers the important principles in slip and fall claims of:
• the obligation of a plaintiff to look where he is going,
• the duty of a plaintiff to take reasonable care for his own safety, and,
• the application of common sense to claims for compensation for personal injuries
as set down in by the Court of Appeal in Power v. Waterford City and County Council[2020] IECA 196, Lavin v. Dublin Airport Authority[2016] IECA 268, Byrne v. Ardenheath[2017] IECA 293 and Cekanova v. Dunnes Stores[2021] IECA 12.
3. In this regard, on a superficial or prima facie level, one can always say that an accident would not have happened but for X or Y (in this case the ramp between a footpath and the road). However, as noted by the Court of Appeal in Lavin v. Dublin Airport Authority, this does not make the ramp the ‘legal cause’ of the accident.
4. Accordingly, perhaps the first question for a lawyer advising plaintiffs in trip and fall cases is whether the plaintiff was looking where he was going and if he was, whether he should have seen the hazard in question. These straightforward questions would, in this Court’s view, have led to this claim (and perhaps other similar claims) not being taken and perhaps an easing of the backlog in personal injury claims.
SUMMARY
5. The plaintiff (“Mr. Ronan”) is a gentleman from Tincurry, Cahir, Co. Tipperary and is 63 years old. On the 17th of February, 2015 at approximately 7pm he claims that he injured his lower back when he tripped on a concrete ramp between a road and footpath, when he was visiting his sister at No. 18 Dunesk, Rosemount, Cahir, Co. Tipperary. Mr. Ronan’s claim is for damages for fractures to his lower back, which he says he sustained when he fell. He claims, inter alia, that he cannot now sleep because of this back pain which he suffered as a result of this fall.
6. The defendants deny that there any was any negligence on their part and further claim that Mr. Ronan sustained the fractures to his back when he fell down the steps outside a pub, some five years earlier in 2010.
7. The ramp, the subject of these proceedings, is five feet in length (on the road parallel to the path) and approximately five inches wide and slopes up from the road to a height of five inches. It leads from the road to the footpath which is itself five inches above the road. In this way this ramp appears to have been constructed to facilitate the mounting of the footpath by a car in order, it would appear, to park at the far side of the footpath in front of the houses that front on to the footpath. The ramp is constructed in front of No. 17 Dunesk, which property is owned by the second named defendant (“Ms. Barrett”), who is the next-door neighbour of Mr. Ronan’s sister (“Ms. Ronan”) who lives at No. 18 Dunesk.
8. Mr. Ronan claims that Ms. Barrett is liable for the damage caused to his lower back as a result of this fall, on the basis, inter alia, that she constructed the ramp to facilitate the parking of her car. She denies this allegation and points to the fact that there is ‘dished area’ (i.e. where the path gently slopes down to the road to facilitate cars entering a driveway) immediately to the left of where the ramp has been constructed, which dished are a she says she uses to access the parking area in front of her house. Hence, she claims that she would have no reason to construct such a ramp.
9. Mr. Ronan also claims that the first named defendant, Tipperary County Council, is liable for breach of duty as it took a long term lease of No. 17 from Ms. Barrett for the purposes of social housing and it owes a duty of care to third parties, such as Mr. Ronan, who might be visiting the estate, in relation to the danger caused by this ramp which is immediately outside a house leased by Tipperary County Council.
ANALYSIS
10. Engineering evidence was provided on behalf of Mr. Ronan that the concrete ramp was constructed some time prior to October 2011 and so it was there for several years prior to the accident in 2015. Evidence was also provided that Mr. Ronan visited his sister two or three times a week at around 7 pm, and that he generally approached his sister’s house on foot in close proximity to the ramp. Despite this fact, Mr. Ronan claims that the first time that he saw the ramp was the night he fell on it.
11. However, it is clear to this Court from the ramp’s dimensions and the photographic evidence produced that the ramp is a significant piece of concrete and that any person who was looking where he was going could not fail to see it even at night time (and in this regard, there was no evidence to suggest that the housing estate was not well-lit), even if they only walked close to it on one occasion, let alone 2 – 3 times a week.
12. On the balance of probabilities therefore, this Court concludes that Mr. Ronan was aware of the ramp and that on the night in question, when it would have been dark, he was not paying sufficient attention to his own safety to avoid what he regards as a dangerous hazard and that this was the cause of his fall.
13. If he had been paying attention, it seems clear to this Court that he would not have tripped on the ramp. In this regard, no evidence was provided that he had slipped on this ramp on any occasions between 2011 and 2015, despite being a regular visitor to his sister’s house, nor was any evidence provided of any other members of the public having tripped on this ramp.
14. Accordingly, it is this Court’s view that as regards causation, on the balance of probabilities the legal cause of Mr. Ronan’s accident was not the alleged acts or omissions of the defendants, as alleged, but rather it was Mr. Ronan’s inattention and lack of care that caused him to fall.
Duty to look where you are going
15. The forgoing conclusion is based on the legal principle that a person who is walking in this country, whether on private property or property owned by State body, such as a local authority, has a duty to look where they are going. See for example the Court of Appeal decision in Power v. Waterford City and County Council[2020] IECA 196 at para. 33 et seq. of the judgment of Binchy J.
Duty to take reasonable care for your own safety
16. It is also based on the legal principle that a person is expected to take reasonable care for her own safety, see for example the Court of Appeal decision in Lavin v. Dublin Airport Authority[2016] IECA 268 at para. 52 of the judgment of Peart J. If Mr. Ronan was looking where he was going, he could not have failed to see this ramp and then he would not have fallen. Therefore the cause of the fall is not any negligence or breach of duty by his sister’s neighbour or the local authority, but his own lack of attention. This is not only common sense, but it also clear from the foregoing caselaw.
Common sense must be applied to slip and fall and other non-complex accidents
17. The application of common sense to these types of situations is important as is clear from Byrne v. Ardenheath[2017] IECA 293. In that case, the Court of Appeal dismissed a claim for damages for a slip and fall, in that case on a grassy hill, and Irvine J., as she then was, noted at para. 32 that it was important to highlight:
“[…] the need, particularly in cases where the court is not dealing with a complex specialist field of activity, for the trial judge, 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 .” (Emphasis added)
18. An example of this application of common sense is to be found in the Court of Appeal decision in Cekanova v. Dunnes Stores[2021] IECA 12, where a claim for damages for personal injuries was made by a woman against a shop that sold her a glass jug which shattered when she attempted to make tea in it. This claim was dismissed and Noonan J noted at para. 31 that:
“It is universally known by reasonable adults of normal intelligence that boiling or very hot water has the potential to shatter an ordinary glass vessel.”
19. The importance of common sense to the law on personal injuries (and indeed the common law generally) was noted by Keane J., in Turner v. The Curragh Racecourse[2020] IEHC 76, which was a case for personal injuries which was dismissed because the cause of the accident was not the negligence of a jockey riding a horse on the Curragh, as alleged, but rather the failure of the plaintiff to keep a proper look-out while out jogging. As noted by Keane J. at para. 55 (in the course of quoting from the judgment of Geoghegan J. in Weir-Rodgers v. S.F. Trust Ltd[2005] 1 I.R. 47):
“the common law is just the formal statement of results and conclusions of the common sense of mankind” (per Lord M’Laren in Stevenson v. Corporation of Glasgow(1908) SC 1034 at 1039)
20. The case before this Court, like the Ardenheath case, does not involve any complex issues, namely falling over a ramp when walking over it, and it is common sense that one may fall if one does not look where one is going and it is clear to this Court that Mr. Ronan would not have fallen if he was looking where he was going.
What is the true or legal cause of the accident?
21. Of course, one can always say, as noted by the Court of Appeal in Lavin v. Dublin Airport Authority at para. 54, that but for some particular thing an accident would not have happened – in this case the ramp. However, a plaintiff must bear in mind the very important principles of common sense, looking where one is going and taking reasonable care of oneself before making claims for compensation, since these principles, in some cases of accidents leading to personal injuries, will be the true or legal cause, of the accident.
22. And so it is in this case that while the ramp was in one sense the ‘ cause’ of the accident, it is crucial to bear in mind that the happening of that accident does not per se give rise to a right to compensation, since the ‘legal cause’ or proximate cause of the accident was the plaintiff’s failure to keep a look out and take reasonable care for his own safety.
The reliability of Mr. Ronan’s evidence
23. As regards Mr. Ronan’s evidence, the onus was on him to establish that the accident occurred in the manner claimed by him. He has failed to convince this Court on the balance of probabilities that this was the first occasion on which he noticed the ramp, despite its size and his having been a regular visitor to his sister’s house for a period of four years between 2011 – 2015. In addition, he has failed to convince this Court on the balance of probabilities that, even if this were the case, that he could not have noticed it on this occasion and duly avoided it, unless he was not looking where he was going.
24. In this regard, it is relevant to note that Mr. Ronan’s evidence was inconsistent and therefore not very reliable. At times he contradicted himself, such as when he claimed that he fell on his back when he tripped over the ramp. When challenged on how he could have fallen on his back when walking forward, he changed this evidence to claim that in fact he had suffered this very considerable damage to his back, namely multiple fractures of his vertebrae, when he was getting up after the fall. (In this regard, Mr. Ronan accepted that he had been to hospital some five years previously for x-rays on his back following a fall down some stairs outside a pub and that he was told at that time about various injuries and in particular, that he was told that he had compression injuries to several vertebrae in his back. He did however claim that he never had any back pain after that incident and so he claimed that it was the ramp accident, rather than the pub accident, which caused his current back pain.)
25. The most striking example of his inconsistent evidence is the fact that his evidence was even inconsistent with his own expert’s evidence. For example, when he was challenged about the basis for certain claims contained in his own engineer’s report, Mr. Ronan claimed that he had never met his own expert engineer, Mr. Michael Fogarty. However, Mr. Fogarty, who is an independent expert, with a duty to the court above any duty to Mr. Ronan, gave sworn evidence that he had met Mr. Ronan at a visit to the site after the accident. Similarly, Mr. Ronan also gave sworn evidence that he had never before seen Ms. Barrett, his sister’s next door neighbour, yet Ms. Barrett gave sworn evidence that she had met Mr. Ronan briefly on several occasions, as he had mistaken Ms. Barrett’s house for his sister’s house on several occasions and come to her front door. (As noted below, this Court found Ms. Barrett to be a convincing witness).
26. It is also relevant to note that, before being challenged on his evidence, Mr. Ronan gave evidence that he hit his right leg off the ramp and that he fell and landed on his back between the path and the ramp, thereby causing the serious back injuries he now claims. However, his own engineer acknowledged in evidence that when somebody who is walking forward trips, they normally fall forward and not on their back.
CONCLUSION
27. For all these reasons, this Court treats with considerable caution the claims made by Mr. Ronan, and it does not believe that Mr. Ronan’s memory is reliable and therefore that this Court can rely on his recollection of how the accident occurred to support the claim he makes and to enable this Court to conclude that he has discharged his onus of proof on the balance of probabilities. In any case, this Court has concluded that if the accident occurred as Mr. Ronan suggested, the cause of the accident was his failure to keep a proper look out when walking.
28. Even if this Court had found that the accident had occurred as Mr. Ronan claimed, this Court would have considerable difficulty with Mr. Ronan’s attempt to affix Ms. Barrett with liability for his fall. This is because, in contrast to Mr. Ronan, this Court found Ms. Barrett to be a credible witness who gave consistent evidence, in particular regarding the fact that she did not construct the ramp, since she did not use, or need to use, the ramp to access the parking area in front of her house, as she could use the dished area to the left of the ramp to access that parking.
29. She also gave credible evidence that her neighbour, Ms. Ronan, used the ramp for the purpose of accessing the parking in front of her own house (No. 18). This was because if Ms. Ronan wished to access the parking in front of her own house, she would have to mount the path close to the ramp (when Ms. Barrett was parked outside her house (No. 17) and if there was a car in the disabled parking space in the road space in front of Ms. Ronan’s house). Therefore, on the balance of probabilities, this Court finds that Ms. Barrett did not create the ramp as alleged by Mr. Ronan and cannot therefore be held liable for the injuries sustained by Mr. Ronan when he fell on the ramp (even if Mr. Ronan had convinced the Court that the accident was not his fault and that it had happened as alleged). While the evidence supports a finding that the ramp was of use to Ms. Ronan, it is not necessary for this Court to make a finding as to whether Ms. Ronan or her partner constructed that ramp.
30. Finally, this Court does not need to decide on the claim that a landlord, such as Tipperary County Council, in taking out a lease of a house, which lease specifically restricted the demised premises to the interior of the house (which it did in this case), owes a general duty of care to members of the public in relation to matters which are outside the demised premises under the lease. In this case, the ramp was clearly exterior to the house. It is also relevant to note that the ramp was on the roadway which was not taken into charge by the local authority, which fact was accepted on behalf of Mr. Ronan. In these circumstances, even if the accident had occurred as claimed by Mr. Ronan, this Court would express considerable reservations as to whether such a duty of care could be owed by a landlord, whether a public authority or not, to Mr. Ronan in such circumstances.
31. Having considered the evidence therefore, and in all the circumstances of the case, this Court must dismiss Mr. Ronan’s claim.
It may be lose-lose for the ‘winning’ defendants
32. This Court also awards the costs of the proceedings to Ms. Barrett and the local authority.
33. However, as Mr. Ronan is unemployed, it may well be that both defendants will end up having to pay their own legal costs even though they have won the litigation. If so, this is an example of what the Supreme Court in Farrell v. Bank of Ireland[2012] IESC 42 has described in as the ‘ inevitable injustice’ for defendants who do not ‘ buy of f’ what they believe to be unmeritorious claims and thereby end up ‘losing’ financially, when they have to pay their own legal costs of ‘winning’ proceedings brought by an impecunious plaintiff.
34. As noted in more detail in Dempsey v. Foran[2021] IEHC 39, in the absence of financial disincentives for such plaintiffs (which also take account of the right of access to the courts), this ‘ inevitable injustice’ means that there is an unlevel playing field since, in terms of legal costs, it is ‘win and no lose’ for impecunious plaintiffs but ‘lose/lose’ for defendants. This injustice is the same whether the defendant is a local authority funded by the taxpayer, an insurance company funded by premiums from policy holders or an individual defendant such as Ms. Barrett, who may or may not be funding the litigation out of her own pocket, since as noted by Hardiman J. in O’Keeffe v. Hickey[2009] 2 I.R. 302 at p. 317 in relation to personal injuries actions:
“I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual.”
Nuala Ryan v Tipperary County Council
2016 4546 P
High Court
17 May 2019
unreported
[2019] IEHC 345
Ms. Justice Bronagh O’Hanlon
May 17, 2019
JUDGMENT
1. The plaintiff is a housewife and resides at 13 St. Bernadette’s Terrace, Clonmel in the County of Tipperary.
2. The plaintiff has sued the defendant, a local authority having its offices at Civic Offices, Nenagh in the County of Tipperary with responsibility for the construction, upkeep, and maintenance of the public roadways and laneways in Clonmel, County of Tipperary.
3. The plaintiff obtained authorisation under s.14 of the Personal Injuries Assessment Board Acts, 2003 and 2007 on the 10th day of February, 2016 bearing authorisation number PL1223201469580.
4. On or about the 4th day of January, 2014 the plaintiff was cycling her bicycle in the laneway at or near St. Bernadette’s Terrace, Clonmel in the County of Tipperary when she was caused to fall heavily to the ground by a dangerous and defective section of the laneway, as a result of which the said accident, the plaintiff claims to have suffered severe personal injuries, loss, damage, inconvenience and expense.
5. The plaintiff gave evidence that she was born in December 1957 and is now aged 61 years of age, and that she has lived at number 13 St. Bernadette’s Terrace for the last 17 years.
6. She described herself as having been an active person prior to the accident and had two Jack Russell dogs at that time whom she walked. She also used her bicycle and went into town which was a 20-minute journey bicycle. The plaintiff described how her bicycle skidded on the pebbles in the laneway which is between numbers 5 & 6, St. Bernadette’s Terrace, which was shown to the court in photograph number 3 and the plaintiff contended that there was a large number of pebbles on the surface of the laneway. The contention was that the local authority, its servants and/or agents in the form of contractors laid a stripe of tar as far as the arch and then stopped. The plaintiff described how when she hit the ground she was trapped and could not move and that two girls picked her up. She described skidding under the archway where the lane meets the arch.
7. The plaintiff’s complaint was that a contractor to the local authority laid tar in the laneway, but that other works was completed from start to finish for a particular network of laneways in that area. There was a gradient down from a red garage door in number 4 down to the archway and a gulley trap with a bode/sunken area of tarmacadam and pebbles. The plaintiff’s contention was that the surface of the lane was left as if it were like marbles on top of a skating rink. The plaintiff was brought by her husband to hospital in Clonmel and she was discharged 3 days later. A senior radiologist then noticed a fracture on her lumbar spine. She was given an anaesthetic patch to her back and transferred to Waterford Hospital where she was found to have a wedged compression fracture of the 2nd vertebra. The plaintiff had to wear a spinal brace for which she was fitted while in Waterford Hospital and she wore this brace post-accident for a 12 week period.
8. The plaintiff suffered pain in her lower back and left leg down to her foot and was found to have osteoporosis. Her mobility was quite restricted and as a result of the injury she is obliged to sleep downstairs.
9. The plaintiff finds herself on a waiting list for the epidural treatment which she hopes might help but as a result of difficulties suffered by her she could not exercise and has therefore put on a lot of weight and is on tablet medication at present. The plaintiff was obliged to desist from walking as a hobby for a period of time. The plaintiff is not able to carry out household tasks such as hoovering which her husband now does instead and she cannot sit for very long because of the pain. The plaintiff suffers from pain in the back and has had to also desist from cycling for the present.
10. Under cross-examination the plaintiff confirms that she owns her own house. She thought that she was safe but was not expecting this accident to happen as she had learnt to ride a bicycle when she young and she had never fallen before from a bicycle.
11. The plaintiff said she was not expecting to fall at the locus. The plaintiff confirmed that there had been potholes along the lane which had been filled in. The plaintiff confirmed that she was claiming special damages in the sum of €1,680 which were not agreed.
Evidence of Mr. James Ryan
12. Evidence was heard from Mr. James Ryan husband of the plaintiff. This witness confirmed that most of the houses at the locus are privately owned through tenant purchase schemes. This witness confirmed that there had been potholes on the laneway and that nothing had happened to fix these potholes until 2014 at the time of the local elections when Mr. Ryan contacted a Council member, Siobhan Ambrose. Mr Ryan had attended the County Council offices to complain about the defective gate at the locus and about the pot holes there. Consequentially the County Council put grit into the holes in the laneway. This witness confirmed that a Mr. Cooney a local contractor had been undertaking work at the time for the Tipperary Council and that this man did do work on the laneway. He identified two laneways on either side of William O’Brien Street which had received a full tarmacadam completed works in mid-2005. This witness told the Court that he thought that the workers would be coming back to finish their laneway. This witness under cross-examination indicated that a good tarmacadam job had been done up to the end of the archway but that they had then left the scene.
Evidence of Mr. Jack O’Reilly, Engineer
13. Mr. Jack O’Reilly an engineer from O’Reilly’s Engineers gave evidence of his inspection of the locus on the 15th of September, 2014 and that the plaintiff’s husband was there and his wife subsequently confirmed the details to him. Mr O’Reilly described this as a service laneway originally a local authority complex which was now a mature area.
14. This witness said that there was 85 yards beyond the archway down the laneway and as shown at the right hand side of photograph 2, which was produced to the Court, there was a back gate into the plaintiff’s residence. This witness described grit and crushed stone and gravel and a grate under the arch with loose pebbles over a macadam surface. This witness described how the tarmacadam ends exactly at the end of the laneway at the end of the strip of cream paint and that it is not smooth and he described (as shown in photograph 5) a joint line showing the commencement of a sinking effect with dishing overall 3 inches from the surface of the gulley to the surface of the macadam. He described this dishing as being there to provide for run-off water from the second patch to the drainage of the gulley and he said that there were two lines of varying concentration of pebbles. This witness said that the source of the pebbles could only be from the laneway that they are washed down and trapped in. In the opinion of this witness, it is a space 90 yards long and if it had been continued in terms of its surfacing there would have been no problem. The witness said that there was therefore a reasonably foreseeable dishing which was catching material running off the dish and that in his opinion this was a design issue.
15. With reference to photographs 4 and 5 the plaintiff’s engineer on looking left to right at the photographs referred to infilling which had been done on the right hand side. The witness noted that the archway was 9 feet high and he said that this arch exacerbated pebbles which can’t get out and this witness said that tar should have had sufficient strength to withstand traffic and that the gate was closed by the residents and can be used to close the lane and that work had definitely been done to the gate and that the gate had been changed since his report.
16. Under cross-examination Mr. O’Reilly said that everyone knows that cyclists have duty to look after themselves. He said that this was service yard with a dead-end and it was for residents use and he said that he agreed that the plaintiff cycles that route three times a day. He said if you see a problem on the surface you avoid it and he agreed that it was correct that the plaintiff had cycled on the right side of the lane. He agreed that the dimensions of the archway were 7ft 9inches wide and that the opening end it was 8ft and he said a cyclist can see to the end of the road and can see anyone coming and can cycling on any part of it.
17. This witness said that he was unable to say for certain whether the plaintiff had consciously elected to cycle on one part other than another part of the path and that she may not have been concentrating on where she was cycling. Mr. O’Reilly said that there was no dispute but that there was gravel on the road and that the gravel didn’t get there yesterday. He said there were significant chippings near the gully and that the chippings were across the entire width of the road. The witness said that it was a public lane/archway under the control of the local authority and that chippings shouldn’t have been there. He said chippings need not have been there and that if the plaintiff was at the front or the back that it wouldn’t be a normal process for a normal person she may not have perceived it as a hazard. This witness did agree however that an engineer or supervisor inspecting the lane would see the chipping and the overlaying tar as a hazard. He said the width of the laneway was 7ft 9inches with chippings on tar which gives a marbling effect across the entire laneway.
18. In terms of the surfacing the laneway he said it was hit and miss approach were repairs had been carried out in the past. This witness said that cars turned in there and they were not the cause of the problem because the risk of the damage was greater if one were travelling at speed. He said he had no idea by whom the repairs had been carried out but that it would have been most appropriate to have crushed stone material. The plaintiff’s engineer was not in a position to say whose repairs were actually there. He said that the chippings had been washed into a depression created by the laneway
Evidence of Mr. John Fulham
19. Mr. John Fulham is an engineer who was called to give evidence on behalf of the defendants. This witness gave his qualifications to the court and indicated that originally the report was carried out by Joseph O’Sullivan engineer who is now retired and signed by him. This witness said that the lane was made of crushed stone construction and was both in the 1930s. He also added that there was no evidence of any resurfacing of the stone part of the laneway in relation to the contention of the Mr. Ryan in his evidence who said that the laneway had been tarmacadam since he moved in and that was seventeen years ago and he was never challenged on this evidence. This witness said that there were potholes to the left and right of the laneway and that photograph number 7 showed a lot of damage and photograph number 8 showed the worst section of the potholes. He said that this was not surprising for a non-bound surface. He described the gravel finish as crushed loose as opposed to being tight. This witness agreed with Mr. Reilly engineer in terms of the type of material used and but he thought that it looked as if repairs had not been made by the local authority and he said that run off material from the stone part was washed out from materials and that the original material was still in place. He said that the more recent repairs had caused a problem.
20. This witness said that any road user including a cyclist would have a good view of the laneway and he said that the concentration of stones on the surface suggest that the plaintiff had tried to avoid them and he agreed that there was no alternative route in or out of that laneway and that it was 80 metres long.
21. Under cross-examination Mr. Fulham agreed that there were other connected laneways built at the same time and that William O’Brien Street had adjoining sections and he said in the other sections the archway cuts it off. He agreed that the laneway was built at the same time and that the last portion was tarmacadam started to finish on both sides and that on his instructions it was not recently tared and that the extent of the tar was from the road to the end of the archway. This witness took the view that if there was material washing off that it was vital to have a gully trap there and that the purpose of the gully trap was to prevent water collecting. He said that it was inevitable that one would get some material and that material ought to be compacted and kept in place. He didn’t know why tarmacadam had not been placed all the way down on the laneway and he agreed that tar would be better it would be flatter and that there would be drainage to the side. He agreed that whatever drainage was used there was loose material getting onto the surface where there was run off water.
22. It was put to this witness that Mr. Ryan, engineer for the plaintiff had given evidence which was uncontroverted that this was council land and that the local authority fixed potholes along the laneway. Mr. Fulham argued that it is a laneway that had never been fixed before. Under cross-examination it was put to this witness that there was loose material and that it wasn’t looked after by the local authority and that Mr. Ryan had said that there was one repair since 2014 carried out by the local authority. This witness said that he didn’t know the age of the tarmacadam but that the lane was generally in good condition and it was put to him that Mr. Ryan thesis had been that sometime from 2005 onwards it was tarmacadam and he said he didn’t know that he didn’t want to say that it was not ten years old.
23. Robert Hogan, Town Foreman, Clonmel, gave evidence that he had worked for the defendants for 28 years contracting, resurfacing and doing general operative/maintenance work. This witness said that there was no evidence of council repair work that it was not the type of material they would use. This witness said that new stone was not used to repair the surface not for potholes but for the surface of a laneway and that they did not do any works on this laneway and he maintained that this included not doing pothole refill work.
Medical Reports
24. The plaintiff’s medical reports were handed in to the Court. Dr Kelly, General Practitioner referred to his report of 22nd September, 2015. He noted that the plaintiff attended the accident and emergency department and was reassured. She was reviewed however and on 15th January, 2014 was contacted by South Tipperary General Hospital and sent to Waterford Regional Hospital and she was diagnosed with L2 end plate fracture and associated osteoporosis and was advised to continue analgesia and to have physiotherapy for four weeks and then to have review. The plaintiff was in a spinal brace four weeks later and remained in same for four weeks. The plaintiff was seen again on 14th February 2014, with back pain and difficulties sleeping as a result of this pain. Paramol and Ibuprofen were prescribed and on 18th February 2014 this was changed to Vimovo a different anti-inflammatory medication with stomach protectant. Further changes were made because of difficulties with her stomach. A muscle relaxer, Baclopar, was added in on 3rd March, 2014. On 8th April, 2014 some of her medication was altered and her antidepressant medication was stopped because she was having difficulties with her memory. A DEXA (Dual Energy X-Ray Absorptiometry) scan showed marked osteoporosis of the lumbar spine.
25. In March, 2015 the plaintiff suffered from mood difficulties and irritability, she had marked weight gain with a lot of back pain and lack of progress with this difficulty which was affecting her daily life. An MRI scan in March, 2015 showed a wedge compression fracture noted L2 and this was unchanged compared to the previous reports in May, 2014. L4/L5 showed similar evidence of mild degree of degeneration as did L1-2 and L2-3 and L3-4. The plaintiff suffered from mild memory loss with a score of 26 of out of 30 when tested. The plaintiff had mid back pain radiating down to her right leg causes her difficulty walking her dogs or walking home from town. She is not able to hoover and has pain going up and down the stairs and she therefore currently sleeps downstairs. The plaintiff is described as mildly depressed and there has been no improvement in the previous 21 months and she had little relief from painkillers. The plaintiff was continuing to wait for a breast reduction operation at that time and for an epidural and had difficulty sleeping. In the opinion and prognosis given by her GP the plaintiff suffered from a fall from her bike which resulted in exacerbation of degenerative changes to her back and may or may not have caused an L2 osteoporotic fracture, she was obviously found to have had a background of same which made her predisposed to fracturing her lumbar spine spontaneously or due to trauma and he said the causative effect of the accident is difficult to determine. This doctor found that the plaintiff’s discomfort and pain is unlikely to resolve due to the background of degenerative changes in her lumbar spine and her osteoporosis. This witness noted that she had a premorbid condition of depressed mood but that prior to the accident she did not attend his surgery complaining of back pain on such a frequent basis.
26. Mr. Ruairí Mac Niocaill Consultant Orthopaedic Surgeon prepared his reported which is dated the 3rd October, 2016 and the radiological examination is referred to from January, 2014 showing compression of the anterior-superior aspect of L2, wedge compression. Subsequent images in Waterford Regional Hospital confirm fracture. The MRI scan performed in Waterford Hospital in January, 2015 again confirmed this L2 anterior wedge compression fracture with mild/moderate degenerative changes in some of the other adjacent vertebrae including some facet joint degeneration in her lumbar spine. This report sets out in terms of opinion and prognosis that although her pain is not directly over the L2 vertebrae it would not be uncommon for patients having had a lumbar spine fracture, to have ongoing low back pain, the presumption being that the alteration in the biomechanics following the fracture causes abnormal loading of the lumbar spine generally and may cause previously asymptomatic degenerative changes to become symptomatic. Her pain is troubling for her but she does not have an indication at the moment that surgical intervention is required and on that basis she is awaiting a review with pain specialist for an epidural injection to address the low back pain for her and should that prove unsuccessful she may require to be seen by a sub-specialist spine surgeon.
27. Professor Molly, Consultant Physician/Rheumatologist prepared a report dated 10th May, 2017. He describes the nature of the plaintiff’s fall and that she had a fracture as described he said she has ongoing pain and discomfort with pain down her left leg persisting and that he was arranging an EMG of this to evaluate the situation further. He noted that exercise was advised to build up her back muscles and that this would involve exercising in water which she has found comforting and helpful and that she was very frustrated by the fact that she had not gone back to her pre-accident state and that she is still restricted and her quality of life is affected. Professor Molloy’s report dated 25th July, 2017 notes that the plaintiff remains symptomatic and that she had been doing her exercises, hydrotherapy and is on medication for osteoporosis. He said it was difficult to predict when the symptoms will settle and it is now five years since the accident and her difficulties appear to be chronic and will require medication and management for the foreseeable future. He did note that she was doing exercises weight bearing specifically he noted the continued difficulties in her quality of life and that this will require significant lifestyle changes in order to minimise her symptoms.
28. Mr. Michael O’Riordan in his report of 19th November, 2018, found the plaintiff to have tenderness and extremely limited movements of the lower spine and that the tips of the fingers can just about get to the tops of the patellae and that extension was zero and that latter bending was only a few degrees each side. This report says that the degree of disability complained of is in excess of what one would expect from this type of injury and that it would be extremely unusual to have tenderness in the spine nearly five years post injury and that the degree of stiffness is way in excess of that would one would expect with this type of injury. He said that osteoporosis which she has is not caused by falls and that it almost certainly predated her fall and would have rendered her more liable to an injury falling the fall.
29. Dr Chabbra in his report referred to as his follow up report following an examination of 9th February, 2017 noted that because the plaintiff was immobilised in a brace this has therefore exacerbated her symptoms for some time due to her pre-existing degenerative changes in view of the lack of mobility in her spine. He said she could continue to have some intermittent difficulties in her spine in the future and in fact was seen by Mr. Mac Niocaill a few weeks ago and noted that she had been put on a waiting list for an epidural injection to address her back pain by a pain specialist. Mr. Chabbra’s previous report had given by way of opinion and prognosis that she had symptoms as of that report related to her degenerative disk and mild facet joint arthritis in the lower lumbar area starting from L2/L3 and he felt that because of pre-existing degenerative changes and prior history of sciatica she is likely to have intermittent difficulties in her spine in the future.
Legal submissions on behalf of the plaintiff
30. These submissions highlight that the evidence clearly establishes that the plaintiff’s injury was not caused by the County Council’s failure to repair the laneway (nonfeasance) but by negligent design and construction which created a nuisance which was the cause of foreseeable harm to the plaintiff. The plaintiff’s submissions stress that the tarmacadam had been laid over 9ft of the length of the archway to fall to a gully and that this was to prevent surface water from escaping from the laneway onto the street. Because the tarmacadam slopped down to the gully there was a dishing effect on all sides. This was design and construction, the effect of this was that stones from the laneway were carried onto the tarmacadam surface by rain water and accumulated there. It is also that the tarmacadam was not of sufficient strength to take the weight of the vehicles passing over it and rutting had been caused on either side of the drain leaving a depression for the accumulation of pebbles. The plaintiff relies on Sheehan v. Ireland [1977] I.R. 550 where Costello J. at p. 554 stated:
“There presently exists in the law relating to the liability of road authorities for defects in public roads and footpaths and 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 injury thereby but if it merely fails to maintain a footpath so that it falls to disrepair that is merely nonfeasance and it is not liable to someone injured due to its lack of repair.”
31. Lavery J. in Kelly v. Mayo County Council [1964] I.R. 315 at p. 318:
“as such (highway) authority they are liable to damages for injury suffered by a road user if they had been negligent in doing repairs or an interfering with the road. They are not liable for injuries suffered caused by the want of repair of a road.”
32. Cross J. para. 15 Loughrey v. Dun Laoghaire Corporation [2012] IEHC 502 regarding a trip on an uneven payment the court found as a matter of probability that the cause of the deterioration in the slab was either poor specification and design or faulty construction and then that the court would be obliged to conclude that the differential was caused by the fault of the local authority and misfeasance rather than nonfeasance and he said that either the faulty construction or poor specification and design or a combination of the two represented an act of misfeasance on the part of the local authority. A number of authorities were referred to as establishing that the accumulation of stones and debris is a nuisance for examples in Clements v. Tyrone County Council [2005] 2 I.R. 415, Butterly v. Mayor of Drogheda [2007] 2 I.R. 134 and Siobhan Martin v. Louth County Council DPIJ: Hilary and Easter Terms 1998 p. 99 McMahon and Binchy 4 Ed. paras. 19.74).
33. It is argued in these submissions that the incident was caused by the work carried out by the council i.e. in the construction of a dished gully and tarmacadam which sloped and was unsafe design in circumstances where it was clearly foreseeable that because of the depression in the tarmacadam caused by its construction, stones from the laneway would accumulate which caused a nuisance and danger to persons using the laneway.
34. It was argued that it was foreseeable incident that traffic would use the laneway and it that it was not solely for pedestrian access. It is argued further that if tarmacadam had been laid properly with underlying support of sufficient strength it would not have rotted and it is further argued that rotting in the tarmacadam would cause an accumulation of stones thereby constituting a nuisance and danger to persons using the laneway.
Legal Submissions on Behalf of the Defendant
35. The defendant submits that the front of the laneway had been resurfaced in tarmacadam but the balance of it remained as originally constructed in the 1930s. It is submitted that there was wear and tear on the laneway, as evidenced by the potholes. There was evidence that some of the potholes had been the subject of repair work. This repair was done by placing stones in the holes. The local authority was convinced that it had not done such repairs and that the manner of filling these holes was not their method of work. The plaintiff claimed that by reason of an accumulation of stones present as she entered the archway in the region of a drain comprised in the tarmac surface of the laneway. It is common case that the source of the stones was the original laneway. The plaintiff’s engineer had indicated that the tarmacadam surface comprised rotting which resulted in a greater concentration of the pebbles in certain areas.
36. The defence of nonfeasance and negligence/contributory negligence on the part of the plaintiff was pleaded. The defence set out the distinction between nonfeasance and misfeasance as summarised by Costello J. (as he then was) in the State (Sheehan) v. Government of Ireland [1987] I.R. 550, 554 as follows:
“There are at present exist in the law relating to the liability of road authorities for defects and 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 it is guilty merely of (nonfeasance) it is not liable to someone injured due to its lack of repair. The prosecutor’s advisors were aware of this distinction in the law, a distinction which means that Mr. Sheehan’s claim would fail if the only wrongful act to be established against the corporation was a failure to repair”.
37. Reference is made to the decision of Lavery J. in Kelly v. Mayo County Council [1965] I.R. 315: “as such [highway] authority they are liable in damages for injuries suffered by a road user if they have been negligent in doing repairs or interfering with the road. They are not liable for injuries suffered or caused by the want of repair of a road. This is a familiar distinction – they are liable for misfeasance but not for nonfeasance. The Kelly case involved a fourteen-year-old boy who was injured when he was thrown by reason of a pothole in the road surface, from his bicycle. The claim was dismissed.
38. In Hampson v. Tipperary County Council [2018] IEHC 448 the plaintiff came to harm it is submitted on a pavement which was thirty years in antiquity and a hole developed between two concrete kerbs where there was a drainage pipe situate beneath the kerb arrangement. The court was not satisfied that there was any deficiency in the original construction and dismissed the plaintiff’s claim on the grounds of nonfeasance.
39. Hogan J. in McCabe and South Dublin County Council [2014] IEHC 529 he said the council could only have been liable if there had been evidence that it repaired the particular opening in question and that it had done so in a negligent fashion and were there had been in those circumstances there would have been an act of actionable misfeasance. But there was in fact no evidence to this effect and he therefore affirmed the decision of the Circuit Court and dismissed the plaintiff’s action.
Application of the nonfeasance rule
40. In relation to this case it is submitted that the laneway was over seventy years in antiquity by the time the incident occurred, the subject matter of these proceedings. It is submitted that there was no suggestion of negligence in the laneway as constructed day 1 nor was there any evidence that the local authority had been involved in any works of repair on the laneway. It is submitted that the local authority is entitled to abate a nuisance created by a third party but is under no legal obligation to do so.
41. It is submitted in this case that the stones on which the plaintiff came to harm were identified as either the breakup of the laneway or infill material used in the repair of potholes by third parties and that no liability in law can attach to the defendant on either basis.
42. The suggestion of rotting on the resurface tarmac area is in the respectful submission of the defendant an irrelevance. A cause or approximate cause of the incident as identified by the plaintiff was the stones or accumulation of stones at the locus and the tarmacadam surface was not the source of those materials. The defendants claim that this is a nonfeasance issue and that therefore no liability can attach to the defendant.
43. Reference is made to Glencar Exploration Company Limited v. Mayo County Council [2002] 1 I.R. 84 when the Chief Justice indicated that the it is necessary in reaching a decision for the court to look at the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.
44. It was further submitted that the plaintiff herself has a duty and an obligation to take care for her own safety both at common law and pursuant to statute and that s. 671 of the Roads Act of 1993 provides for this.
45. It was submitted that the plaintiff could have removed these stones herself that she was using the laneway on a daily basis and that there was no one more familiar than herself with this laneway and that she was one of seven householders for whom this laneway existed.
46. It was submitted that the extent of the duty claimed is that the local authority should exercise a greater degree of vigilance or have a greater degree of foresight than the plaintiff in respect of the alleged hazard. She did not see it as hazardous, did not see any need to take a simple step to remove the accumulation did not think that the cycling of her bike was contraindicated but effectively claims that the council should have and effectively suggests therefore that the council ought to exercise greater care for her than she did for herself.
47. It was further submitted therefore that the incident occurred by reason of her own negligence and breach of duty which breach was of such significance as to preclude any liability on the part of the defendant.
Findings of Fact
48. It is clear that the design of construction of the lane caused a nuisance and that the negligent reinstatement which was never completed fully caused this accident. The plaintiff, her husband and engineer gave credible evidence. Mr. Ryan’s evidence was not contradicted. The defence engineer did not answer the points made by the plaintiff’s engineer and the court finds that the stones and the debris on the surface of the lane was a nuisance and a danger to the public and to the plaintiff.
49. The court finds that the gully scoping on the surface and dishing effect were factors which led to this accident.
50. 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. This court awards €65,000 in general damages plus €1,680 in special damages giving a total of €66,080.
Grace Convery v. The County Council of the County of Dublin
[1996] 3 I.R. 153
[1993 No. 8133P; S.C. No. 401 of 1995]
High Court 13th October 1995
12th November 1996
Carroll J.
13th October 1995
Mrs. Convery is a resident of Springfield Estate, Tallaght, Co. Dublin, since the early 1970s. She sues on behalf of the residents of three roads in the estate, Alderwood Park, Alderwood Way and Alderwood Avenue, to abate a public nuisance caused by the extreme volume of traffic passing through these roads. The action was commenced by plenary summons followed by an application for an interlocutory injunction. It was agreed that the hearing of the motion would be the hearing of the action, that there would be no pleadings, and that the deponents would be subject to cross-examination. In all, eleven affidavits were filed. The relief claimed is a mandatory injunction directing the defendants to abate the nuisance caused by the vehicular traffic using the three roads as an access route to Tallaght Town Square and other termini.
Springfield Estate was built in the early 1970s. Attempts were made to deal with the problem. The matter was before Dublin County Council on the 11th February, 1991, when it was proposed that bollards would be erected at the northern end of Alderwood Avenue and Virginia Heights. On the 25th February, 1991, the Council rejected the recommendation on the grounds that the vast majority of residents of the Springfield Estate objected to the closure. The matter came before the County Council again on the 16th April, 1991, when the County Manager was asked to report concerning what measures he proposed to take to alleviate the difficulties for the residents of Alderwood Park.
A report by Mr. John Henry, acting senior engineer in the Roads Department of the defendant, on a traffic survey carried out in July, 1992, sets out the problems. The Springfield area is bounded by Cookstown Lane to the north, Tallaght Bypass to the south, The Square to the east and Cheeverstown Road to the west. There are approximately 1,580 houses in the area, two schools, a neighbourhood shopping centre and some local shops. He says in essence the problem is a traffic “rat run” through the residential area which developed over the years. This was caused partly by a temporary access arrangement which has virtually become permanent and in part because of the time lag between the construction of the houses and the completion of the main road infrastructure. During the building boom of the 1970s this was not an uncommon problem and effects in some cases remain to this day. The problem is often compounded by the fact that local residents become accustomed to the traffic patterns which develop and resist the changes which would result from the completion of the network.
In the Springfield area, Maplewood Road was intended to be the local distributor road linking Cheeverstown Road to the Cookstown/Old Bawn Road and serving the access requirements of the whole area. The Cookstown/Old Bawn Road has not yet been constructed, so Alderwood Park, Way and Avenue have become the alternative route of the temporary arrangement. This alternative route with frontage development along its entire length is not an appropriate access route, particularly now that traffic volumes have grown to the present levels.
The report deals with a traffic survey carried out on the 16th July, 1992, by the local community under the guidance of the County Council. The through traffic element of flow at the southern end of Alderwood Park on the day in question was 24.3%. There was also a significant amount of traffic on the Alderwood Park going to and from Raheen, Whitebrook and Maplewood which are zones in the estate most remote from Alderwood Park. Mr. Henry said this traffic could also be considered as through traffic. These zones accounted for 40% of the total through traffic.
He said it is clear that Alderwood Park, Way and Avenue are acting as the local distributor road in the same way as Maplewood Road was built for this purpose. He discussed possible solutions. If bollards were placed at the junction of Alderwood Park with Old Blessington Road, this would result in a transfer of traffic to Maplewood Road of 42.6%. While he mentions fears expressed by residents that traffic at the schools would be substantially increased, he said the increase is not unexpected and must be judged in the context of the type of road which would carry this traffic and the capacity for which it is designed. Maplewood Road has little frontage development and is capable of carrying many times this volume.
The other option discussed was the construction of part of the Cookstown/Old Bawn Road and the linking of Maplewood Road to it as originally planned, together with the closure of Alderwood Park. The traffic along Maplewood Road at the school would remain unchanged but the traffic east of Alderwood Avenue would increase substantially, but again this must be judged in the context of the planned function of this road.
The third option he mentioned was to close Alderwood Avenue at the shops. This had the social drawback that it isolated the area east of the bollards, i.e. Alderwood Park, Alderwood Drive, Alderwood Way and some of Alderwood Avenue from the schools and the rest of the Springfield area. He concluded by saying the views of the local community should first be determined and if as a result of this consultation other options are proposed, these would be examined and hopefully a solution would emerge. But he said the present traffic situation in Alderwood Park, Way and Avenue is unacceptable as a residential environment and he said there must be a more equitable sharing of the traffic burden generated largely by the local community.
The report was presented by Mr. Henry at a meeting of the South Dublin Area Roads and Traffic Sub-Committee on the 11th June, 1993. At this meeting a motion was passed that Alderwood Park be closed to through traffic at its junction with Old Blessington Road by the provision of bollards. The normal procedure following the passing of such a motion would be to report to the South Dublin Area Committee, and if that committee adopted the recommendation, the procedure for the provision of bollards would be initiated by giving statutory notice of the Committee’s proposal to the public press.
At the meeting of the South Dublin Area Committee on the 15th June, 1993, a further resolution was carried that the committee defer consideration of the recommendation to the next meeting of the Area Committee and that the Council consult with local residents’ associations in this matter. These consultations were held on the 23rd June, 1993. On the 6th July, 1993, a meeting was held of South Dublin Area Committee and on that occasion a resolution was passed that the temporary closure procedure identified in the Manager’s report be initiated and that officials of the Council attend at a public meeting to be arranged locally to discuss the matter. The Council officials attended the public meeting held on the 15th July, 1993, at which Mr. Henry presented his report. On the 21st July, 1993, the County Manager advertised his intention temporarily to close access at the junction of Alderwood Park and Blessington Road in theIrish Press. On the 22nd July, 1993, the proposal was advertised in theTallaght Echo. Two thousand four hundred and eighty one objections were received to the proposal. On the 29th July, 1993, the County Manager made a decision not the proceed with the closure of the access. A copy of this decision was not available.
Mr. John Murphy, a senior administrative officer in the Roads Department of the defendant, said that the only binding motion was passed on the 6th July, 1993, whereupon the statutory procedure was initiated by the County Manager. He said that the County Manager at all material times followed the correct procedure and made a valid and reasonable decision not to proceed with the closure of the access from Alderwood Park to Blessington Road following consideration of the many objections received. He said the Council accepted that the original planning permission showed a map revealing the location as a cul-de-sac.
In oral evidence, he said that following the traffic report, they proposed, in an effort to solve the solution, to let people see what would happen if there were temporary closures for three months. He said temporary closure is a function for the County Manager. But he said if a temporary closure was going to be permanent, they would have to go back to the local representatives. He said local authorities live in a political atmosphere and he was satisfied the closures would not work, due to local opposition.
Mrs. Convery claims that the number of vehicles using the route has increased to 12,000 a day. She said the figure was arrived at on their own count of six hundred to eight hundred an hour for seventeen hours a day. I accept that the traffic count in July did not represent the ordinary everyday picture. It was taken at a time when there were school holidays and other holidays and the traffic was much lighter.
Mrs. Convery described how the excessive weight and volume of vehicles is causing Alderwood Park to break up. Cracks are appearing in houses. The noise level is unbearable. Windows have to be kept closed due to the stench of fumes, children are in danger and there have been a number of fatal accidents.
The estate was developed by McKone Estates Ltd. Mr. John McKone said that the basic principle behind the layout of the scheme, which was the cluster system, was insisted on by the planning officers. The roads in Alderwood Park, Way and Avenue were not designed for through traffic but as estate roads. It was envisaged that the only entrance would be where Alderwood Court/Avenue met the district distributor road, Maplewood Road, which was designed and developed to a specification that would enable it to fulfil the function of a local distributor road. The development commenced in 1971 and so far as the company was concerned it was completed by 1978.
The effect of closing off Alderwood Park would be to direct traffic to the local distributor road, Maplewood Road, and from there to the district distributor road, Cheeverstown Road, and to the proposed Cookstown/Old Bawn Road when that is constructed.
A lot of development took place in Tallaght Town Square in the late 1980s. Mr. Kieran O’Malley, an engineer and town planner, gave his opinion that a reasonable town planner would have ensured that there was sufficient contribution from developers to ensure the construction of the portion of the proposed Cookstown/Old Bawn Road to the junction with Maplewood Road. The cost of this was estimated in 1991 to be between £600,000 and £750,000. He gave evidence of inspecting the planning file and that the original planning maps indicated a cul-de-sac in this area.
I am quite satisfied that when the estate was being developed the planning permission required that the Alderwood area would form its own enclave within the Springfield estate, the only access being from the local distributor road, Maplewood Avenue. Instead of that, a temporary arrangement for access to the estate via Alderwood Park has become a convenient means of exit for many of the houses in parts of the estate further away from Tallaght Square, not to mention through traffic, including commercial traffic, from outside the estate.
I fully accept that the traffic conditions which the residents of Alderwood Park/Way/Avenue have to endure daily amounts to a public nuisance.
The question is whether the Council can be forced to abate the nuisance.
The Council can be sued for public nuisance if it arises due to negligence by the Council in the exercise of its statutory duties – see Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J., 21st February, 1986).
In this case the Council, as planning authority, imposed a particular type of development on the builder, with the result that the three roads affected are unsuitable for the traffic which now uses them in breach of the original scheme or design.
The planning department permitted extensive development east of the Alderwood area (including The Square, Tallaght) without ensuring that the road infrastructure was adequate or would be within a reasonable period. It did not require substantial contributions from developers to ensure that at least the portion of the Cookstown/Old Bawn Road to the Tallaght Bypass could be constructed.
The Council has been aware for many years of the appalling conditions which the residents of Alderwood Park/Way/Avenue have to endure. But the members of the Council bowed to the number of objectors (representing votes) who have become used to inflicting themselves on the residents of the three roads. It has placed the unjustified convenience of a large number of voters over the legitimate complaints of a comparatively small number of householders. Tyranny of numbers is not democracy. The Council is elected to make decisions in the interest of the common good which does not always coincide with popular approval.
The Council is responsible to ensure proper roads are constructed so that there is proper traffic management.
In my opinion the failure of the Council to take any concrete steps to alleviate the problem amounts to negligence.
While the immediate nuisance is created by the volume of traffic, the real cause lies in the Council permitting the type of road required at the time of the initial development to be used far beyond its capacity as a distributor road long after the estate was completed.
The Council cannot hide behind the efforts which it did make and blame the local opposition for their inaction. All it has done so far is to talk, commission a report, and talk some more. This is not good enough.
I will grant relief in terms that I will direct the Council to abate the nuisance within a reasonable time. It has a number of options and it is up to it to choose. I will hear submissions on what would be a reasonable time.
Following the judgment of the High Court, but before any order had been perfected, the County Council attempted to close off one of the entrances to Alderwood Park. Its attempts to do so met with resistance from residents of other areas. On the 24th November, 1995, the High Court (Carroll J.) ordered that Alderwood Road be closed at its junction with Old Blessington Road.
Notice of appeal was filed on the 6th December, 1995. The appeal was heard by the Supreme Court (O’Flaherty, Barrington and Keane JJ.) on the 22nd October, 1996.
O’Flaherty J.
12th November 1996
I agree with the judgment which is about to be read by Keane J.
Barrington J.
I also agree.
Keane J.
The facts of this case are largely not in dispute. The plaintiff is the secretary of a residents’ association in Tallaght which represents people living in three roads in the Springfield Estate, i.e. Alderwood Park, Alderwood Avenue and Alderwood Way. The plaintiff herself has lived in the area since the early 1970s. She and other residents living on these roads have been involved for some time in a vigorous campaign to combat what is acknowledged by the defendant in these proceedings (the County Council) to be a major traffic problem. It is not in dispute that the roads in question have been carrying volumes of vehicular traffic for some time now which are far greater than the volumes for which they were designed. The congestion increased significantly as a result of the development of The Square shopping centre at Tallaght and the plaintiff and the other residents anticipate that, unless some steps are taken, it will deteriorate further as a result of the development of a hospital, a Dublin Bus headquarters and a leisure centre.
In effect, what has been happening is that both commercial traffic and motorists, many of them resident in the area, are using these roads as a short cut or, as it is now sometimes called, a “rat run”. The residents, angered by what they considered the culpable inaction of the County Council, eventually began the present proceedings. A plenary summons was issued on the 2nd December, 1993, in which the plaintiff claimed:
“(1) An injunction directing [the County Council], its servants and agents to take such steps as are necessary to prevent vehicular traffic using Alderwood Park, Alderwood Way and Alderwood Avenue, Tallaght, as an access route to Tallaght Town Square and other termini.
(2) A mandatory injunction directing [the County Council], its servants and agents to comply with the resolution of the Councillors of the defendant directing the temporary closure of Alderwood Park, Alderwood Way and Alderwood Avenue to vehicular traffic using same as an exit route.
(3) An injunction directing [the County Council], its servants and agents to abate the nuisance that is caused by the aforesaid vehicular [traffic] through Alderwood Park, Alderwood Way and Alderwood Avenue.
(4) Damages for nuisance.
(5) Further and other relief.
(6) Costs.”
The plaintiff then brought an application for an interlocutory injunction, which came on for hearing in the High Court before Carroll J. and which was treated as the hearing of the action. The plaintiff in a grounding affidavit said that as a result of the development of The Square shopping centre, the number of vehicles running through Alderwood Park had increased from 4,000 per day to approximately 12,000 per day and that this situation had become “extremely intolerable” for the residents. She referred to a traffic survey which she said had been conducted by Dublin County Council officials and in particular by their senior engineer, Mr. John Henry. This survey, having analysed the traffic flows, said that there were three possible solutions to the problem, the closure of Alderwood Park at its junction with the Old Blessington Road, the opening of Maplewood Road on to the Cookstown/Old Bawn Road and the closure of Alderwood Avenue at its northern end where a number of shops are situated. The plaintiff said that she believed that all of the participants in that survey agreed to be bound by its findings, but that the agreement had not been honoured by the County Council. She also said that the residents were finding cracks on the front walls of their homes and that there had also been some serious accidents at the junction of old Blessington Road and Alderwood Park. The residents were also suffering, she alleged, from”unbearable” noise levels and the fumes were such as to oblige the residents to keep their windows closed even in warm weather.
The plaintiff also referred to a location map provided with the deeds to the properties in the estate and said that it was clear from that map that Alderwood Park was never intended to be opened in its present state and that the Old Blessington Road was to have been a cul de sac, but that these plans had been changed for reasons unknown to the residents.
In a replying affidavit, Mr. Henry said that he did not know the basis on which it was claimed that the traffic passing through Alderwood Park had increased from 4,000 vehicles per day to approximately 12,000 per day. He denied that it was intended that the findings of the report referred to in the plaintiff’s affidavit were to be binding and, said that, in any event, no recommendations were included in the report. He said that the road closure proposals discussed were strongly resisted by the majority of the residents of the Springfield area, who took the view that the new traffic pattern would result in similar or greater traffic problems elsewhere in the Springfield area.
In another affidavit filed on behalf of the County Council, Mr. John Murphy, a senior administrative officer in its Roads Department, referred to decisions that had been taken by the elected members of the County Council. He said that a proposal by the elected members that bollards should be installed at Alderwood Avenue/Virginia Heights was advertised in the daily newspapers and approximately 2,000 objections were received to the proposal, following which the Roads and Traffic sub-committee agreed not to proceed with the proposal. At that time, the elected members passed a resolution to provide bollards at the junction of Alderwood Park/Blessington Road. On the 25th February, 1991, however, the elected members of the Council declined to pursue that proposal. On the 21st July, 1993 the County Manager advertised his intention temporarily to close the access at the junction of Alderwood Park/Blessington Road, following which 2,481 objections were received. On the 29th July, 1993, the County Manager, having considered the objections, decided not to proceed with the closure.
It appears to have been common case that, while the suggested closures would undoubtedly create traffic problems for other residents in the estate, these would be alleviated by the construction of the Cookstown/Old Bawn Road to which Maplewood Road would eventually be connected. While that project was shown as a five year objective in the development plan, there was at the time of the hearing in the High Court no commitment of the necessary funds by the Department of the Environment. We were informed, however, during the appeal that the funds were now being made available and that work on the new road would commence shortly.
There was also oral evidence at the hearing in the High Court. One of the witnesses, Mr. Kieran O’Malley, a town planning consultant, said that he had examined a “landscape map”, which was one of the documents on foot of which planning permission had been granted for the development of the estate, and on which the words “proposed cul de sac” appeared beside what he called “a hammerhead configuration” at the western end of the Old Blessington Road. There was no such indication at the eastern end but he thought that this was probably because the map did not go as far as the junction with the proposed Old Bawn/Cookstown Road. There was, however, a draft action plan for the area in 1974 which appeared to show a cul de sac at the eastern end.
In a reserved judgment, the learned trial judge said:
“I am quite satisfied that when the estate was being developed the planning permission required that the Alderwood area would form its own enclave within the Springfield estate, the only access being from the local distributor road, Maplewood Avenue. Instead of that, a temporary arrangement for access to the estate via Alderwood Park has
[1996]
3 I.R. Convery v. Dublin County Council
Keane J. 165
S.C.
become a convenient means of exit for many of the houses in parts of the estate further away from Tallaght Square, not to mention through traffic, including commercial traffic, from outside the estate.
I fully accept that the traffic conditions which the residents of Alderwood Park/Way/Avenue have to endure daily amounts to a public nuisance.
The question is whether the Council can be forced to abate the nuisance.
The Council can be sued for public nuisance if it arises due to negligence by the Council in the exercise of its statutory duties – see Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J, 21st February, 1986).”
She went on to say that the County Council, as planning authority, had permitted extensive development east of the Alderwood area (including The Square) without ensuring that the road infrastructure was adequate or would be so within a reasonable period and that it had not required substantial contributions from developers to ensure that at least a portion of the Cookstown/Old Bawn Road could be constructed.
She also said that the elected members of the Council had bowed to the large numbers of voters who had objected and had wrongly given priority to their representations over the legitimate complaints of a relatively small number of householders. She added that, in her opinion, the failure of the County Council to take any concrete steps to alleviate the problem amounted to negligence. She concluded:
“I will grant relief in terms that I will direct the Council to abate the nuisance within a reasonable time. It has a number of options and it is up to it to choose. I will hear submissions on what would be a reasonable time.”
It would appear that, following the delivery of this judgment, no order of the High Court was made up in order to give the County Council time to decide what option it would take.
The County Council initially sought to comply with the judgment by making use of its powers as a road authority under the Road Traffic Act, 1994 to close off one of the entrances to Alderwood Park. It appears, however, that its efforts to do so were physically frustrated by residents of the other areas, some of whom also instituted proceedings in the High Court seeking an interim injunction to restrain the County Council from interfering with vehicular access to and from Alderwood Park to the Old Blessington Road. The County Council then decided to abandon the attempts to close off the access and the High Court was so informed.
Carroll J. then made an order on foot of her judgment requiring the County Council to close Alderwood Park at its junction with Old Blessington Road within 7 days from the making of the order. The County Council now appeal from that judgment and order to this Court.
Submissions of the parties
On behalf of the County Council, Mr. O’Donnell submitted that the plaintiff had not sought to challenge any of the decisions of the County Council by way of judicial review and, in the result, the Court in this case was not concerned with any questions of public law. The appeal was solely concerned with a private law issue, i.e. as to whether the County Council was liable in tort for the damage alleged to have been caused to the plaintiff by the volume of traffic passing through Alderwood Park, Way and Avenue.
As to the claim founded on public nuisance for which the County Council was allegedly responsible, Mr. O’Donnell submitted that it gave rise to both factual and conceptual difficulties. It was not clear at what stage the right of the plaintiff to sue arose, since there was no indication as to the number of cars which could lawfully travel along the road without constituting any nuisance. He submitted, however, that the conceptual problem was even greater, since the public nuisance found to exist in the High Court was caused by individual acts none of which were unlawful, i.e. the exercise by motorists of the public right to pass and repass on a public highway. He cited in this connection the English decision of Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] Q.B. 343 and said that the decision of O’Hanlon J. in Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J., 21st February, 1986) referred to by Carroll J was clearly distinguishable. In the latter case, the defendants had been found liable for a private nuisance resulting from their operations on a plot of land in their ownership in a residential area and a defence that they had acted without negligence in the exercise of their statutory power had been rejected.
As to the claim which had succeeded in the High Court based on negligence, Mr. O’Donnell accepted that the modern authorities, in Ireland and elsewhere, established that, in certain circumstances, a public authority could be held liable for the negligent exercise of a discretionary power. However, he submitted that the leading Irish cases ( Siney v. Dublin Corporation [1980] I.R. 400; Ward v. MacMaster [1985] I.R. 29 (High Court); 1988 I.R. 337 (Supreme Court); Sunderland v. McGreavey [1987] I.R. 372 (High Court); Sunderland v. Louth County Council [1990] I.L.R.M. 658 (Supreme Court)) established that such a liability would only arise where a duty of care in favour of the plaintiff existed independently of the duty to the public as a whole imposed on the authority by the relevant legislation. He submitted that, in the present case, the duties of the County Council as a planning authority and a road authority were owed to the public in general and that they were under no duty of care towards the plaintiff which could give rise to an action such as the present.
On behalf of the plaintiff, Mr. Reidy submitted that the findings by the High Court Judge that the County Council had been guilty both of creating a public nuisance and of negligence were findings of fact which should not be set aside by this Court. He submitted that, in the present case, the initial nuisance was attributable to the failure of the County Council to require a sufficient contribution from the developers of The Square towards the cost of the construction of the Old Bawn/Tallaght Road and that its continuance was due to the failure on its part to perform its statutory duties as a road authority, a failure which, as the High Court had found, was motivated by political considerations. He submitted that the High Court Judge was also entitled to find as a fact that the County Council had been guilty of negligence in permitting a contravention of a planning permission which had been granted by it by not taking steps as the road authority to close off the access at the Old Blessington Road as envisaged by that permission. He submitted that these actions or omissions on the part of the County Council were properly described as”operational decisions”, applying the dichotomy favoured by Lord Wilberforce in Anns v. London Borough of Merton [1978] A.C. 728, and, accordingly, gave rise to an action for negligence by the County Council in the performance of its duties.
The applicable law
The County Council is a body which has duties, powers and functions which it must exercise for the benefit of the public. The High Court is invested with a supervisory jurisdiction designed to ensure that such bodies act in accordance with the law and, in particular, do not act in a way which is arbitrary, unreasonable or oppressive or offends against any constitutional norms. That jurisdiction is invoked in our modern law by the judicial review procedure.
Various acts and omissions of the County Council which have come under scrutiny in the present proceedings arose from its statutory role as a planning authority and roads authority. The judicial review procedure has not been invoked by the plaintiff in the present case and it is agreed by the parties that, in the result, no questions of public law, which would have been relevant in such proceedings, arise in the present case. This, it is accepted, is a case in which the plaintiff could only succeed if she established that the County Council had been guilty of an actionable tort. The claim on her behalf is that the actions or omissions of the County Council amounted to a public nuisance or to negligence.
A public nuisance consists of an act or omission which causes injury to, or materially affects the reasonable comfort and convenience of, the public, or a section of the public. It is, however, only actionable at the suit of an individual, if he has suffered particular damage over and above that suffered by other members of the public.
While the authorities demonstrate that the use of land in such a way as to alter the character of an area by bringing greater volumes of people and traffic to it may give rise to an action in private nuisance (see Dewar v. City and Suburban Racecourse Company [1899] 1 I.R. 345; O’Kane v. Campbell [1985] I.R. 115), they have no relevance to the present case, where the acts or omissions complained of do not arise from operations on land of the County Council and the action is framed as one in public nuisance. The same can be said of the decision of Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J., 21st February, 1986) which arose out of the operations by the defendant local authority on a particular plot of land in their ownership and occupation.
It has been held in England – in Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] Q.B. 343 – that even a lawful use of the public highway may, in extreme circumstances, amount to a public nuisance. In that case, the defendants were operating a commercial port on the site of a former naval dockyard and the plaintiffs, the relevant local authority, alleged that the use of the roads leading to the port by heavy goods vehicles amounted to a public nuisance for which the defendants were responsible. The court rejected that claim, noting that the plaintiffs themselves had given permission under the relevant legislation for the activities by the defendants which had led to the increased traffic and that the control of the traffic was a matter for it in its capacity as planning authority and not for the courts. Buckley J. observed at p. 358 that:
“It is not necessary for me to hold that otherwise lawful use of a highway can never amount to a public nuisance, whatever the circumstances and however excessive the use. Extreme circumstances may arise when it could be right so to hold (see Halsey v. Esso Petroleum Company Ltd. [1961] 1 W.L.R. 683).”
No authority was cited to us for the proposition that a local authority, in its capacity as a planning or road authority or in any other capacity, can be held liable in public nuisance because of volumes of traffic on the highway resulting, not from any operations carried on by it, but indirectly from decisions taken by it as a local authority.
The action for negligence depends on the establishment by the plaintiff of a duty of care to her on the part of the County Council of which it has been in breach and as a result of which the plaintiff has suffered damage. As to whether a duty of care existed in the present case, the law was stated as follows by Costello J. (as he then was) in Ward v. MacMaster [1985] I.R. 29 at p. 49:
“(a) When deciding whether a local authority exercising statutory functions is under a common law duty of care the court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss. But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting. Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the plaintiff is in the class of persons which the statute was designed to assist.
(b) It is material in all cases for the court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.”
In that case, the plaintiff was the purchaser of a house in respect of which one of the defendants, a local authority, had advanced a loan in exercise of its powers under the Housing Act, 1966. It was required by that Act, and the regulations made under, it to satisfy itself, before making the loan, as to the value of the house and for that purpose retained a valuer to value the property. The latter, who had no qualifications in building construction, inspected the bungalow and found no defects. There were in fact serious defects which came to light at a later stage.
Costello J. found that, in the light of these facts, there was a sufficient relationship of proximity between the plaintiff and the local authority such that in the reasonable contemplation of the latter carelessness on its part in the carrying out of the valuation of the bungalow might be likely to cause the plaintiff damage.
That conclusion was upheld on appeal to this Court (see [1988] I.R. 337). In the course of his judgment, McCarthy J., after analysing the various leading decisions in other common law jurisdictions on this topic, concluded (at p. 349) that:
“Whilst Costello J. essentially rested his conclusion on the ‘fair and reasonable’ test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body who injured him.”
Applying those tests, McCarthy J. found that the proximity of the parties was clear and said at p. 351:
“The [Housing Act, 1966] imposed a statutory duty upon the County Council and it was in the carrying out of that statutory duty that the alleged negligence took place. It is a simple application of the principle in Donoghue v. Stevenson [1932] A.C. 562 confirmed in Anns v. Merton London Borough [1978] A.C. 728 and implicit in Siney v. Dublin v. Corporation [1980] I.R. 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the parties.”
He was also satisfied that it was reasonably foreseeable by the local authority that the plaintiff would lack the means to carry out an expert examination and would rely on the inspection by the housing authority.
It is clear from the judgments in that case that the fact that the plaintiff belonged to a particular category of persons for whose benefit the powers and duties of the housing authority under the Act were to be exercised – i.e. applicants for loans who could not obtain such assistance from commercial institutions – was of critical importance in determining whether they owed him a duty of care in the exercise of those powers and duties.
This is in sharp contrast to the decision in Sunderland v. Louth County Council [1990] I.L.R.M. 658 where a local authority was sued for what was alleged to be its negligence in granting a planning permission for the retention of a house built on a site where serious drainage problems arose because of the unsuitability of the site. The plaintiff’s claim failed in the High Court, whose decision was upheld by this Court on appeal. McCarthy J., with whom the other members of the court agreed, drew this important distinction at pp. 662 and 663 of the judgment:
“Both Siney and Ward were cases where the statutory duty of the local authority arose under the Housing Act 1966, an Act which is demonstrably and unequivocally designed towards the protection and improvement of the housing conditions of persons who are not able by their own resources to provide it for themselves. So also a number of the English cases cited – Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 374; Anns v. Merton London Borough Council [1978] A.C. 728; Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210; Investors in Industry Limited v. South Bedfordshire District Council [1986] Q.B. 1034 – were cases under the Public Health Act, 1937, an Act directed towards the protection of the public health and welfare or, in the Peabody case, under the London Government Act 1963 which prohibited the erection of buildings unless drains were constructed to the satisfaction of the Council.
The fundamental difference between what may be called planning legislation and housing legislation is that the first is regulatory or licensing according to the requirements of the proper planning and development of the area but the second is a provision in a social context for those who are unable to provide for themselves; if they are unable to provide for themselves then the duty on the provider reaches the role that would be taken by professional advisers engaged on behalf of the beneficiary. This is in marked contrast to the watchdog role that is created under the Planning Act, a watchdog role that is for the benefit of the public at large.”
He summed up his view as follows:
“The Act in conferring statutory powers on planning authorities imposed on them a duty towards the public at large. In my view, in conferring those powers, the Oireachtas did not include a purpose of protecting persons who occupy buildings erected in the functional area of planning authorities from the sort of damage which the plaintiffs have suffered. This being so, the council, in the exercise of those powers, owed no duty of care at common law towards the plaintiffs.”
The decision in Weir v. Dun Laoghaire Corporation [1983] I.R. 242 was also referred to in the submissions. In that case, the plaintiff was injured when she fell while walking directly across a road towards a shopping centre which fronted upon the pavement on the far side of the road. At the time of her accident, a bus lay-by was being constructed by a third party alongside the far pavement, which was being narrowed for the purpose of extending the width of the road surface along the length of the far pavement. The surface of the proposed lay-by was two inches lower than the surface of the road and the plaintiff’s fall was caused when she tripped in passing from the level of the road to the surface of the proposed lay-by. A fourth party had been granted by the defendant, as the planning authority, permission to build the shopping centre and, on an appeal by an objector, the Minister for Local Government, while granting the permission, had imposed a condition that the fourth party must provide a bus lay-by beside the shopping centre if the defendant planning authority should so require. The defendant, which was also the highway authority, did so require, authorised the fourth party to construct the bus lay-by and approved the plans for the construction.
The plaintiff claimed damages in the High Court for the alleged negligence of the defendant. The trial judge refused the defendants’ application to have the plaintiff’s claim withdrawn from the jury on the ground that the defendant was not liable for the acts and omissions of the third party. The jury then found that the defendant Corporation had been negligent and assessed damages. On an appeal to this Court, the majority (O’Higgins C.J. and Hederman J.) held that there was evidence to support the jury’s findings of negligence. O’Higgins C.J., in the course of his judgment, having referred to the facts, said at p. 247 that:
“From these facts, it can fairly be inferred that the provision of the bus lay-by had been required by the defendants as the planning authority, and that the work was carried out by [the third party] on behalf of the developers and with the knowledge and approval of the defendants as the planning authority.”
He concluded that in these circumstances, the defendant, having licensed the works in question, was fixed with knowledge of them as the highway authority and was accordingly liable in damages to the plaintiff.
In a dissenting judgment, Griffin J said that a highway authority could be held liable for damage caused by misfeasance, where an interference with the highway is effected by its servants or by an independent contractor engaged to do work on its behalf (although not for casual or collateral negligence of the contractor). The fact that it had given planning permission, in its capacity as planning authority, to another party to carry out the work was not, in his view, to be equated with its doing the work themselves or through the agency of an independent contractor.
It would seem from the judgments that the attention of the Court in that case was not drawn to s. 26, sub-s. 11 of the Local Government (Planning and Development) Act 1963 which provides that:
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It is clear from this provision that a planning authority (or An Bord Pleanála on appeal) which is confined in reaching its decision to considering the matters referred to in the preceding subsections of s. 26, cannot be said to have authorised the developer by the grant of a permission to commit an act which would be otherwise unlawful, whether because it interfered, for example, with the right to light of other property owners or created an unacceptable hazard for persons such as the plaintiff in Weir v. Dun Laoghaire Corporation [1983] I.R. 242. While the latter decision was cited in Sunderland v. McGreavey [1990] I.L.R.M. 658 it is not referred to in the judgment of McCarthy J. It is, however, clearly irreconcilable with the decision in that case and must, I think, be regarded as having been reversed sub silentio.
Conclusions
There can be no doubt that the plaintiff and the other residents of these roads have had to endure a serious interference with the normal amenities of life in a residential area as a result of a volume of traffic which is greatly in excess of the design capacity of the roads. At the same time, the difficulties encountered by the County Council in attempting to cope with the problem should not be underestimated. While the weight to be given to them is a matter on which different views could doubtless be taken, it could hardly be expected wholly to disregard the claims by other residents in this area that closing off the access to these roads would simply create problems for them.
As to the claim founded on nuisance, the traffic did not originate in any premises owned or occupied by the County Council and was not generated as a result of any activities carried on by it on land in the area. The fact that the traffic reached a volume which caused significant inconvenience and discomfort for the residents was the result of a combination of factors: the development of large scale residential and commercial projects by private interests, the decisions of thousands of individual drivers to use this particular route, and the failure of central government to allocate funds for the provision of the necessary roads infrastructure, to mention the most obvious. The decisions of the County Council to which objection is taken is only one of a number of factors which has resulted in the present position. To treat the County Council, in these circumstances, as being the legal author of a public nuisance would be entirely contrary to principle and wholly unsupported by authority.
As to the claim founded on negligence, it is clear that the plaintiff has failed to establish that there was a relationship between her and the County Council which created a duty to take reasonable care arising from its public duty under any statute. The powers and duties of the County Council as planning authority and roads authority are vested in it in order to ensure the proper planning and development of its area and the provision and maintenance of an appropriate road network in that area. While its exercise of those powers and duties can be regulated by the High Court by means of the judicial review process so as to ensure that they are exercised only in accordance with law, the plaintiff does not belong to any category of persons to whom the Council, in the exercise of those powers, owed a duty of care at common law.
I would allow the appeal, set aside the order of the High Court and substitute therefor an order dismissing the plaintiff’s claim.
McCabe -v- South Dublin County Council
[2014] IEHC 529
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 18th November, 2014
1. This is an action for personal injuries arising from an incident which took place on 2nd June 2009 when the plaintiff’s foot became caught in an opening in the surface of a footpath as she walked along Brookview Drive, Tallaght, Dublin 24 sometime around 11pm that evening. It is not in dispute but that as a result of the incident Ms. McCabe fell on her right hand and banged her head. The fundamental question which arises in this appeal from the Circuit Court is whether the local authority in question, South Dublin County Council, is liable in negligence for these injuries or whether it can invoke the traditional rule of immunity for non-feasance for this purpose.
2. The extent of the plaintiff’s injuries are not seriously in doubt. Following the incident the plaintiff was in pain and was removed to Tallaght Hospital. She was later treated as an out-patient at South Tipperary General Hospital, Clonmel, Co. Tipperary. It transpired that Ms. McCabe suffered a minor fracture of her hand which required the application of a cast. The cast was removed after about a month and the injury had largely healed. While the plaintiff has certainly suffered pain and discomfort, she fortunately did not suffer any major long-term adverse effects. It must be acknowledged, however, that the injuries continue to affect her grip, her capacity to lift her young children or in using her computer. In addition, Ms. McCabe often suffers discomfort in her right hand in cold weather.
3. The dimensions of opening in question were about 8cm. by 8cm. and it was situate on the footpath opposite No. 12 Brookview Drive. The opening in question was missing its stopcock cover. It is clear from the very helpful photographs which were supplied by the plaintiff’s engineer, Mr. Jack O’Reilly, that the opening presented a danger to the public at the time of the incident in question.
4. In passing, I would totally reject the suggestion made by the Council to the effect that there was some element of contributory negligence on the part of the plaintiff inasmuch as it was suggested that she was speaking on a mobile telephone at the time of the incident and that she did not keep a proper look-out as a result. While pedestrians, like all road-users are required to act prudently and reasonably and to keep a proper look-out, the perfectly common act of using a mobile telephone while walking on a footpath cannot in itself be regarded as amounting to contributory negligence. This is especially so given that the opening itself and its location was apt to catch any user of the footpath unawares.
5. Before considering any of the legal issues which arise, the underlying facts must first be considered.
6. It is common case, however, that when the existence of the opening was drawn to the Council’s attention in July 2010, a joint inspection followed involving the plaintiff’s engineer, Mr. O’Reilly, and Council personnel. It is agreed that the stopcock cover was found to be absent and a replacement cover was satisfactorily inserted a few days later on 30th July 2010. But what was the position before that date?
7. The Council’s records establish that in November 2006 a variety of stopcock covers were repaired on Brookview Drive, including the stopcock cover at No. 12. There is a clear documentary record – which was confirmed in oral evidence by Mr. Brendan Kelly – to the effect that on 13th December 2006 the re-instatement work was inspected and found to be acceptable. Mr. Kelly expressly gave evidence to the effect that he would not have recorded this fact without having personally inspected the works to see that they were in order. I fully accept Mr. Kelly’s evidence in this regard.
8. In 2007 the Council commissioned a road asset condition survey in respect of all the roads and footpaths within its functional area. The object of this survey was to identify those roads and footpaths which were thought to be in need of repair. While the survey described the footpaths in Brookview Drive as being in a “medium” state of repair, the only potential hazards which were identified was a broken water valve outside No. 24 and what was described as a “patch” outside No. 23. Critically, however, no missing stopcock cover was found outside No. 12.
9. While the principal author of the report is now, sadly deceased, the accuracy of the report was not seriously challenged at the hearing. We can therefore proceed that as of the date of the survey in 2007 the stopcock cover was not missing.
10. In January 2009 the Roadworks Control Unit of the Council received a complaint that a stopcock cover was missing outside No. 12 Brookview Drive. The Council then took steps to repair the cover and it appears that this was done on 13th February 2009. It is true that, unlike the re-instatements which took place in November 2006 and in July 2010, the Council could not produce a direct documentary record of the repair and reinstatement which was said to have taken place on that occasion. Yet there is a clear record of the report and the day book sheets (which are a form of daily record of general work done) shows that the water maintenance section were engaged in general maintenance in the Brookview area on that day.
11. How, then, did it come to pass that there was such an opening outside No. 12 Brookview Drive in early June 2009? Two possibilities suggest themselves. First, there is the possibility that the opening was not actually repaired in February 2009, whether through oversight or otherwise. Second, there is the possibility that the opening was in fact repaired by the Council, but that before the concrete could set, the opening was removed or tampered with as a result of anti-social behaviour on the part of unknown third parties.
12. In this connection it must be observed that Mr. Derek Sergeant, a senior executive engineer attached to the Council’s water department, gave evidence that there were in fact significant problems of anti-social behaviour involving the removal of the stopcock covers. Mr. Sergeant stated that these covers were very easily removed while the concrete is still fresh. The plaintiff’s engineer, Mr. O’Reilly, was, however, emphatic that in the event that the opening was tampered with, one would expect nonetheless to see residual evidence of base bedding or concrete staining immediately adjacent to the cutting, with perimeter concrete also showing some distress were the opening abruptly to be removed in this fashion. Mr. O’Reilly was equally adamant that he could find no evidence of any of this when he inspected the opening in July 2010.
13. In the end I have concluded that it is unnecessary for me to make any adjudication on these disputed facts upon which there was much to be said for the evidence of both sides. I think it unlikely that the Council’s records in respect of February 2009 were mistaken, yet equally the photographs supplied by Mr. O’Reilly showed no evidence of any distress or disturbance of the kind he suggested would inevitably accompany any tampering with the opening. I have arrived at this view, because irrespective of how these factual issues are resolved, the result in law is nonetheless the same.
The misfeasance/nonfeasance distinction
14. Section 2 of the Roads Act 1993 (“the 1993 Act”) defines a footpath as “a road over which there is a public right of way for pedestrians only, not being a footway.” Section 11 of the 1993 Act (as substituted by s. 6 of the Roads Act 2007) provides that the maintenance and repair of all such roads is a function of the relevant local authority.
15. So far as the question of liability of a local authority qua highway authority is concerned, the common law draws a clear distinction between non-feasance (i.e., a failure to act to maintain the roads and footpaths) on the one hand and misfeasance (i.e., the negligent repair of the road and footpath) on the other: see generally, McMahon and Binchy, The Irish Law of Torts (Bloomsbury, 2013) at 1026-1028.
16. This distinction was well summarised by Costello J. in The State (Sheehan) v. Government of Ireland [1987] I.R. 550, 554:
“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 non-feasance. 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 non-feasance) it is not liable to someone injures due to its lack of repair.”
17. The Supreme Court had previously ruled to similar effect in Kelly v. Mayo County Council [1964] I.R. 315 where Lavery J. stated ([1964] I.R. 315, 318-319):
“As such [highway] 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 non-feasance.”
18. In Kelly the plaintiff was a 14 year old schoolboy who was injured when he was thrown from his bicycle. The bicycle itself had got caught into a pothole as the plaintiff cycled on a public road. It was alleged that for a few weeks prior to the accident the Council had been engaged in the drawing of stones and gravel in heavy lorries along the road where the accident had occurred. The plaintiff contended that the Council had damaged the road through excessive user, thereby creating the pot-hole. The Supreme Court rejected the plaintiff’s claim that the evidence of the user of the road was such as to amount to a nuisance.
19. Lavery J. observed ([1964] I.R. 315, 321):
“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 lesser extent…The existence of pot-holes and other irregularities in the surface of public roads is within universal experience and is inevitable and the falls from a bicycle of a young boy, through riding on a rough surface, is, unfortunately, also within universal experience.”
20. This issue was also considered in more recent times by Cross J. in Loughrey v. Dún Laoghaire Corporation [2012] IEHC 502. In that case the plaintiff was injured when she tripped on a pavement and injured herself badly. The evidence established that there was subsidence between two slabs on the pavement and that the ensuing differential in the level of the two slabs caused a tripping hazard. Cross J. posed the issue in the following terms:
“Accordingly, the Court is left with considering the cause of the deterioration as being either weathering/ageing or poor specification and design or faulty construction. On the face of it, any of those three possible causes are reasons for the subsidence which occurred. If, as a matter of probability, the Court finds that the cause of the deterioration in this slab was either poor specification and design or faulty construction, then the Court will be obliged to conclude that the differential was caused by the fault of the local authority and misfeasance rather than non-feasance.”
21. Cross J. found on the facts that:
“….the differential in height between the two slabs was caused by reason of either faulty construction or poor specification and design or a combination of the two, and accordingly, represents an act of misfeasance on the part of the local authority.”
22. It was for these reasons that Cross J. found for the plaintiff, as the case presented a clear example of misfeasance on the part of the Council.
23. In the present case the Council either did not repair the opening at all (even though it had set out to do so) or, having done so, the opening was subsequently tampered with and removed by persons unknown. On any view of these two possibilities, the Council is not liable by reason of the operation of the non-feasance rule.
24. 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. This very point was made by Kingsmill Moore J. in Kelly ([1964] I.R. 315, 323), as in that case the Council had intended to repair the pot-hole which caused the accident, but had not yet actually set about effecting this repair:
“I think that 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 settled law that a public authority is not liable for non-feasance.”
25. 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.
26. In sum, therefore, the Council could only have been liable if there had been evidence that it had repaired the opening and that it had done so in a negligent fashion. In those circumstances, there would have been an act of actionable misfeasance. But there was in fact no evidence to this effect and I must accordingly affirm the decision of the Circuit Court and dismiss the plaintiff’s action.
Conclusions
27. 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.
28. 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 (“the 1961 Act”), 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 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, the distinction still retains “its ancient purity in this jurisdiction”.
29. 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.
30. 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 the s. 60(1) of the 1961 Act) or with the Oireachtas which could effect further legislative change should it think necessary to do so.
31. I arrive at this conclusion most reluctantly, because the plaintiff has clearly suffered not inconsiderable injuries by reason of an opening on a public path which was a danger to the public and which was apt to catch pedestrians unawares. I nonetheless find myself compelled by reason of the application of the nonfeasance rule to hold against the plaintiff and thereby to affirm the decision of the Circuit Court.