Road Authorities’ Misfeasance and Nonfeasance:
Where are we after 200 Years?
Dr Ciaran Craven Senior Counsel
Bar Council CPD Tort Law Update Conference, February 2015
General
Personal injury and property damage can foreseeably arise from the construction and
maintenance of roads and bridges, either from the manner in which the construction or repair
is carried out, or, indeed, from a failure to repair, when a problem has arisen. Similarly, the
manner in which roads are designed and traffic managed, and the uses to which roads are put
may result in nuisance to other users of the roads and to the owners and occupiers of property
adjoining them. On the basis of a simple test of foreseeability, one might be forgiven for
anticipating that, in any such circumstances, legal redress might be readily forthcoming.
However, the reality is quite different. Fine legal distinctions, for example, between
misfeasance and nonfeasance – which have their origins in Tudor times - are interposed
between the injured party and the anticipated legal remedy. Difficulties also arise in seeking a
remedy for nuisance. This paper is concerned principally with the first of these areas.
Liability for Misfeasance or Nonfeasance
History
In 1955, Kingsmill-Moore J, in the High Court, described the distinction between misfeasance
and nonfeasance in respect of the acts of road authorities it as ‘an archaic principle of law’.1
He succinctly set out the nature of the distinction, thus:
“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.
They are not liable because they do not do the work in the manner which will give
the most permanent results.”
As to how such principle arose, and as to why it still applies, however, has only occasionally
been described.2 Although its origins are ancient, it still seems to remain part of our domestic
law.3
1
Gallagher v Leitrim County Council (1955) 89 ILTR 151. More recently, Keane J (as he then was) referred to
this ‘peculiar state of the law’ (Hynes v Sligo Corporation Personal Injury Judgments Trinity & Michelmas
1993 Doyle Court Reporters, High Court November 11, 1993). Moriarty J was of the view that the distinction
was ‘artificial and outmoded… [I]ndeed, it can some times provide an incentive to a roads authority to lack
diligence and to allow hazards to accumulate with wear and tear….’ (Condon v Cork Corporation Personal
Injury Judgments Trinity & Michelmas 1996 Doyle Court Reporters, High Court October 16, 1996).
The grand jury system for the maintenance and repair of county highways and bridges was
superseded by the present system of county councils established by the Local Government
(Ireland) Act 1898. In Harbinson v Armagh County Council4 it was noted:
“Before the passing of the Act of 1898 the grand jury were not liable, nor was the
county surveyor liable, for nonfeasance; … all the reasoning which established
the immunity of the grand jury and of the county surveyor prior to 1898 is equally
applicable to the county council created by that Act. They could not be
responsible in their personal capacity. No one would act as a county councillor
were so serious a responsibility attached to the office.”5
In O’Brien v Waterford County Council6 a unanimous Supreme Court7 reserved the question
as to whether such authority was binding. Murnaghan J (for the court) assumed, but did not
decide, that the roads authority was not liable for damages where the injuries complained of
were the result of nonfeasance. But, he appeared to contemplate, even if he was unsure of, the
application of the common law rule. He continued:
“Although the County Council are responsible for the proper maintenance of
roads and bridges under their care, and owe a duty to the public in respect of
them, there are good reasons why the County Council should not be subjected to
actions for damages at the suit of persons who have suffered by reason of
omission to repair. This doctrine is not to be whittled down by making fine
distinctions between nonfeasance and misfeasance. Whether the protection of this
common law doctrine extends to local authorities constituted under the Local
Government (Ireland) Act 1898, is still open to consideration in this court if the
occasion should ever arise… The position that the road authority are not liable in
damages for nonfeasance is an anomalous rule which may be justified by special
considerations.”8
2
The judgment of Johnson J in Harbinson v Armagh County Council [1902] 2 IR 538 at 551-556 is the most
complete exposition of the origin of the misfeasance/nonfeasance distinction in respect of the acts of road
authorities. In this case, the plaintiff failed to recover for injuries sustained when his horse fell into a large hole
on a bridge in the charge of the defendant local authority, resulting in the destruction of the cart, his goods and
severe personal injuries to himself. The facts clearly disclosed nonfeasance, there being no evidence of
misfeasance. See, also, Gallagher v Leitrim County Council (1955) 89 ILTR 151, per Kinsgmill-Moore J and
Administrative Law in Ireland (third edition) Hogan G and Morgan D, Round Hall Sweet & Maxwell, Dublin
1998 page 802. See, however, the more recent judgment of Hogan J in McCabe v South Dublin County Council
[2014] IEHC 529 (18 November 2014) and his obiter observations there, discussed later in this paper.
3
Civil Liability Act 1961, section 60 and State (Sheehan) v Government of Ireland [1987] IR 550, [1988] ILRM
437.
4
[1902] 2 IR 538.
5
[1902] 2 IR 538 at 548 per Lord O’Brien LCJ.
6
[1926] IR 1.
7
Kennedy CJ, FitzGibbon and Murnaghan JJ.
8
[1926] IR 1 at 8 per Murnaghan J. In the event, the court found that the defendant County Council had been
guilty of misfeasance, in which case, any comments as to the applicability of the doctrine would have to be
2
Up to recently, there was no modern authority that affirmed the applicability of the rule in a
modern context. In the majority of the written judgments it is either accepted or deemed to be
the settled law.9 In this context, a reprise of the historic cases provides useful illustrations on
the distinction in action.
The Historic Cases
The distinction between misfeasance/non-feasance has been applied and has disentitled many
plaintiffs over the years. The outcomes are, however, heavily fact dependent but nonetheless
not uncontroversial for that reason alone.10
O’Brien v Waterford County Council11 is a case where, on the facts, it was found that the
defendant County Council had been guilty of misfeasance. There, a bridge in the defendant’s
functional area had been blown up in July 1922. In April 1923, the County Council took steps
to make the bridge passable. However, owing to the number of similar works that the Council
had in hand, they only restored the bridge to half its original width. To protect the public
from falling into the gap left by the unrestored part of the bridge, the Council erected a fence
consisting of three lines of larch spars, attached to posts in the ground. Warning notices were
posted at each end of the bridge to the effect that it was suitable for light traffic only and
purporting to disclaim any liability for any injuries caused by using it. The plaintiff’s car,
when travelling over the bridge after dark, failed to negotiate the turn from the road to the
restored part of the bridge, struck the end of the paling and passed through it, ending up
suspended over the unrepaired gap. As a result, the plaintiff sustained considerable injuries
and was awarded £500 by a jury. The defendant’s appeal, on the grounds that there was no
evidence of misfeasance, was rejected by the Supreme Court. Where the barrier was erected
considered obiter. It might be considered cynical to consider that this reference to “special considerations”
presages the decision of the Supreme Court in Glencar Exploration plc & anor v Mayo County Council [2002] 1
IR 84,1 ILRM 481. After all, Glencar does not refer to it.
9
See, for example, Gallagher v Leitrim County Council (1955) 89 ILTR 151 per Kingsmill-Moore J and
Condon v Cork Corporation Personal Injury Judgments Trinity & Michelmas 1996 Doyle Court Reporters,
High Court October 16, 1996 per Moriarty J who stated: ‘ …it remains the law of the land, which is binding …
and must be applied.’ See, too, Hogan J in McCabe v South Dublin County Council [2014] IEHC 529 (18
November 2014), discussed later in this paper.
10
This paper is not concerned with broader liability issues on the part of roads authorities. Insofar as trips and
falls are concerned, In Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291, Dillon LJ stated:
"The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at
all. The question is whether a reasonable person would regard it as presenting a real source of danger."
11
[1926] IR 1.
3
in such a manner that it was dangerous in darkness, the failure to give sufficient warning of
the danger could not be treated as nonfeasance. The court noted:
“What was done by the County Council was one combined act, and it is not
possible to sever the not putting up of a sufficient light or other necessary warning
from the rebuilding of the bridge itself … [W]here the road authority have made
repairs improperly so as to make the repaired structure dangerous to persons
using the road this principle [of nonfeasance] cannot be invoked to absolve the
road authority from the consequences of negligence in making such repairs.”12
A similar finding was made in respect of the failure to light the danger and, in the
circumstances, the jury’s verdict was upheld.
Another case involving injury sustained by reason of a damaged bridge is O’Connor v Kerry
County Council.13 The plaintiff had crossed a bridge earlier on the day of the accident, when
it was passable but had sustained some flood damage. The County Surveyor had been
notified and inspected the bridge that afternoon. Further damage was sustained by subsequent
floods and the bridge was swept away. The plaintiff, who was riding home on his bicycle late
that night, fell into the river and sued the local authority. Some repairs had been effected
some nine months previously, but there was no evidence that they had been negligently
executed. Causation (in respect of misfeasance) not having been established, the defendant
Council’s appeal against the Circuit Court’s award of damages to the plaintiff was allowed by
a unanimous divisional High Court14 on the grounds that only nonfeasance was established.
In contradistinction to O’Brien v Waterford County Council15 the failure to give a warning
was also characterised as nonfeasance.
In Kane v Howth UDC16 the plaintiff’s motorcycle was damaged when, while rounding a
bend, it struck granite slabs or stones that, at one time, surrounded a public pump, and were
projecting above the level of the road surface to a height of between 2 and 4 inches near the
Garda Station in Howth. The slabs were not materially different in colour to the adjoining
wall or to the adjoining road surface. The court summarily rejected the defendant Council’s
argument that the place where the accident occurred was a highway, for the maintenance of
12
[1926] IR 1 at 8 per Murnaghan J.
(1927) 61 ILTR 73 (HC).
14
Meredith and Johnston JJ.
15
[1926] IR 1.
16
[1939] Ir Jur R 54 (Circuit Court, Judge Shannon).
13
4
which they were responsible. However, the Council further asserted that they had only
maintained the road surface ‘close up to but not including the slabs’ and that, over the
previous seven years, the Council had only repaired the street immediately on the adjoining
highway. However, it was conceded that the work had been done in such a way that during
those years a lot of the road material that was placed on the adjoining part of the highway had
become brushed or carried over towards the slabs. In reliance on McClelland v Manchester
Corporation17 the defendant Council was deemed to have been guilty of negligence and
liable for the plaintiff’s claim. It was found that they had, for the previous seven years,
maintained the road ‘immediately adjoining these granite slabs … at least appreciably close
to the slabs, so that anyone coming round the corner, as the plaintiff did, would not see any
material difference between the highway and the slabs.’18
The plaintiff, while walking along the footpath of a bridge that was repairable by the
defendant County Council in Phelan v Kilkenny County Council,19 fell into an opening
caused when the covering flag of a drain became displaced and fell into it, sustaining serious
personal injuries. The flag, when correctly positioned, was normally part of the surface of the
footpath. The drain, for some years prior to the accident, had, from time to time, been out of
repair and occasionally the flag had been out of position. The previous autumn, the flag had
been knocked out of position – probably by the wheel of a passing cart or lorry – and had
fallen into the drain. Council workers later replaced the flag in position, and threw gravel
over it. A unanimous Supreme Court20 allowed the plaintiff’s appeal against the jury’s verdict
for the defendant on foot of the trial judge’s direction. Sullivan CJ (for the court) was of the
view that there was sufficient evidence of misfeasance to go to the jury, the flag replaced by
the defendant Council’s workers not having been made secure. The defendant’s submission
that where a roads authority interferes with a road, the only obligation it incurs is to restore it
to the condition that it was in prior to such interference was rejected. The Supreme Court was
of the opinion that if a roads authority interferes with a road ‘it is bound to leave [it] in a
reasonably safe condition as a highway’.21
17
[1912] 1 KB 118.
[1939] Ir Jur R 54 at 55.
19
[1943] Ir Jur Rep 1.
20
Sullivan CJ, Murnaghan, Meredith, Geoghegan and O’Byrne JJ. Counsel had accepted that in order to
succeed, the plaintiff had to establish misfeasance.
21
[1943] Ir Jur Rep 1 at 4 per Sullivan CJ.
18
5
This approach, however, was not followed by the High Court in Belfast in Quinn v Ministry
of Commerce & Armagh County Council.22 Here, the plaintiff cyclist was thrown from his
bicycle after dark one evening in January 1952 after it had struck a pothole on the main
Newry to Dublin Road. The pothole had been filled with a mixture of stone chips and soil as,
owing to the unsatisfactory weather conditions, it was deemed impracticable to attempt a
permanent patching. At the time of the accident, the temporary filling had worked out of the
hole and was scattered about the road surface. The jury had found that the accident would
have happened, even if the pothole had not been filled in by the defendant County Council.
As it was not caused by the putting in of the temporary filling, accordingly, (and somewhat
controversially, it might be added) it was a case of nonfeasance and the plaintiff failed.
The defendant County Council in McCormack v Kildare County Council,23 however, filled in
potholes using material called ‘one and a half inch plant screening’ consisting of stone
clippings and waste passed through a screen of that size. Although they were also used on
main roads, there they were covered with tar or pitch and rolled. No special binding agent
was used here. One of the stone chips embedded itself in the tyre of the plaintiff’s tractortrailer as it was driven over the repaired road and destroyed the tyre. The court found the
defendant guilty of misfeasance in the manner in which the repairs were carried out and
found for the plaintiff.
In 1938 the County Leitrim Board of Health built a number of houses under a housing
scheme, known as Hyde Terrace, near Mohill. The footpaths were constructed early in 1939
out of stones, old masonry and mortar from a recently demolished workhouse. No repairs
were executed to the footpath after its construction. The plaintiff in Gallagher v Leitrim
County Council,24 on December 16 1954 mounted the footpath opposite her house in this
scheme and her foot caught in a saucer-shaped depression or hole some 2 1/2 inches in depth
and 18 inches by 16 inches in extent just inside the kerb. She sustained a fractured wrist and
sued the defendants as the road authority. They appealed to the High Court against judgment
in her favour in the Circuit Court.
22
[1954] NI 131.
[1953-4] Ir Jur Rep 64 (Circuit Court Judge Fawsitt).
24
(1955) 89 ILTR 151.
23
6
Although satisfied that the cause of the plaintiff's fall was the hole in the footpath, the Court
was also satisfied that it had been constructed to a specification for the type of work, which in
1939, was recognised as proper for a side road which was a cul de sac, as in this case. It was
conceded that the footpath was not designed to last for a long period and that it would last
without repair for five years. After that time, it was further conceded, it would require repair
and it was inevitable that its condition would deteriorate if no further work were done to it.
No repairs were done to the footpath, no funds ever having been allocated for that purpose.
Concluding that the its condition was caused by to the inevitable wear and tear of rain, frost
and of use, the defence of nonfeasance was upheld and the plaintiff’s claim was dismissed.25
In Danaher v Roscommon County Council26 the Supreme Court addressed the question as to
whether or not a road authority could be liable in misfeasance even to an incompetent driver.
Fitzgerald CJ stated that local authorities were:
“ … not entitled to erect on or near a roadway, an obstruction or some unusual
feature which may create an undue risk for a person lawfully using the roadway.
They should anticipate not only that people will use the roadway normally, but
that, through unforeseen circumstances, or something in the nature of fog, or
something of a character not to be expected by the motorist … cars may, when
driven incompetently, leave the travelling surface.”27
In respect of the duty owed to motorists prior to the completion of road works, Henchy J
stated:
“Clearly they are bound to make it in such a way that it will be safe for its normal
use by motorists who are not negligent. But, the duty does not end there. They are
also bound to see that the uncompleted road is not a hazard to persons using it
negligently if the negligence is of a kind which experience shows drivers to be
prone to, and if the particular hazard causing the accident could have been
reasonably obviated or guarded against.”28
25
As Kingsmill-Moore J noted: ‘[The road authority] are not liable because they do not do the work in the
manner which will give the most permanent results.’
26
Supreme Court Unreported Judgment December 21, 1973.
27
See, Irish Law of Torts (second edition) McMahon, B & Binchy W) Butterworths (Ireland) Ltd, Dublin 1990,
page 478.
28
See, Irish Law of Torts (second edition) McMahon, B & Binchy W) Butterworths (Ireland) Ltd, Dublin 1990,
page 478.
7
Some other examples are illustrative. In Mullaney v Dublin Corporation29 the plaintiff
sustained loss of consciousness and spent four days in hospital having been thrown over the
handlebars of his bicycle. The front wheel caught in a hole in a manhole cover. Even though
the evidence suggested that the hole had arisen because a third party had stolen part of the
cover, liability was imposed and the plaintiff was awarded £3,500.
A finding of contributory negligence, in the amount of 25%, was made by Barron J in the
High Court in Aherne v Limerick Corporation & ors.30 There, the plaintiff sustained a back
injury (aggravated by a congenital defect) when he fell in a hole in the footpath outside his
front door. Gas installation works had been carried out by a contractor and the plaintiff,
although aware of the existence of the hole, forgot about it on the date in question. Barron J
found that the contractors were negligent in leaving the hole. The gas company was also
negligent as, he considered, it was their function to see that the installations that they owned
were dealt with and, if work was done for them, it was their function to see that it was closed.
Award: £26,625 against all defendants.
Negligent repair of a footpath – misfeasance – that caused the 75 year-old plaintiff to fall (as
a consequence of which she sustained Colles fracture and injury to her thumb) resulted in an
award of £20,000 in Aherne v Cork County Council and Kinsale UDC.31
But, as a matter of evidence, as well as law, it may be difficult to determine what constitutes
nonfeasance and what amounts to misfeasance. Gaye v Dublin County Council32 is a case in
point. Here, the plaintiff, on August 3, 1989, caught her left foot in a projecting ridge or trip
created by a joint between two pieces of concrete which made up the footpath in Marian
Crescent, Rathfarnham, and she fell heavily to the ground. The trip measured 11 inches in
length and was a height of 3/4 of an inch on the left-hand side and l inch on the right-hand
side. She sued Dublin County Council as the road authority.
29
Personal Injury Judgments Michelmas 1991 Doyle Court Reporters, High Court December 17, 1991 (Costello
J).
30
Personal Injury Judgments Hilary & Easter 1992 Doyle Court Reporters, High Court February 11, 1992
(Barron J).
31
Personal Injury Judgments Trinity & Michelmas 1991 Doyle Court Reporters, High Court October 16, 1992
(Costello J).
32
High Court Unreported Judgment 30 July, 1993 (Morris J).
8
The estate had been built in 1956, at which time, the footpaths were laid. In 1957 work on the
sewers involving running a sewer pipe under the road to connect up with the main sewer at a
point immediately adjacent to where the plaintiff fell was carried out. An opening was made
in the apron - approximately rectangular in shape and measuring approximately 3 ft by 3 1/2
ft and the roadway and the surface of the apron were subsequently reinstated. It was alleged
the difference in height between this rectangular area and the adjoining footpath caused or
constituted the trip. Four basic allegations were made against the defendant Council: (1) that
when the work was completed the back-filling was improperly carried out with subsequent
subsidence; (2) that between the reinstatement of the opening and 1963 when the estate was
taken in charge by the Council, the existence of this potential danger caused by the
subsidence would have been revealed on any proper inspection of the estate - thus the County
Council was negligent in failing to identify the existence of this danger, require the builder to
remedy it and only take the estate in charge when it was safe; (3) that by taking the estate in
charge in that condition the Council adopted the nuisance (the trip) and assumed
responsibility for it and (4) that as the work that was done in 1957 was sewage work (on the
basis of Weir v the Dun Laoghaire Corporation33 the defendants must have known that
whoever carried out the work, was doing this work - on that basis they became responsible
for the proper carrying out of the work and were liable for a failure on the part of the
contractor to carry it out in a proper manner. It was further alleged that this liability extended
to both nonfeasance and misfeasance as the work related to work carried out for and on
behalf of the defendants in their capacity as a sanitary authority.
On the evidence, the court was satisfied that the rectangular area had not subsided
independently of the balance of the apron, there being a lateral crack in the apron basically
dividing it into two parts. These two plates rotated so that each sloped in a different direction
to the other, caused by a combination of circumstances including unsatisfactory depth of
concrete and insufficient expansion joints in the apron. Morris J (as he then was) was
satisfied that the lip in question was formed with the overall movement of the plates that
made up the apron into the driveway of the house. Rejecting suggestion that there has been
subsidence in the rectangle, this aspect of the case failed.
33
[1984] ILRM 113. See, below.
9
As there was no evidence that the lip existed when the estate was taken in charge in 1963, the
second and third allegations also failed (although the court accepted that if subsidence was to
occur as a result of defective back-filling then it would, on the balance of probabilities, have
occurred within the first year or two). Having found that no subsidence had, in fact occurred,
the court was further satisfied that the flaw, which did occur, would have developed over a
protracted period. Apart from knowing that it was probably there in the year 1975/76 when
bitumen was put on the cracks, there was no way of knowing when the lip manifested itself or
the flaws in the pavement first became apparent. Furthermore, Morris J noted that
“ … 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 a
circumstance no negligence in failing to inspect would arise.”
The court, finally, rejected summarily as ‘unsound’ the proposition that the immunity the law
extends to local authorities for their failure to repair roads in their capacity as a road authority
did not extend to this work and that irrespective of whether the crack arose from nonfeasance
or misfeasance, the defendants were liable. Morris J noted:
“In their capacity as a sanitary authority [the defendants] do not have an
obligation to repair the footpaths….”
Thus, it appears, the plaintiff failed because of nonfeasance, although it is difficult to
rationalise the whole of the evidentiary basis that lead to that conclusion.
A 62 year old woman suffered a fracture of her hip, necessitating a hip replacement, when
she tripped and fell on a shore cover that was not flush with the pavement in Hynes v Sligo
Corporation.34 There was no engineering reason for the shore not to have been flush with the
pavement, and there was no suggestion of nonfeasance. This was misfeasance simpliciter and
the plaintiff was awarded £40,000.
34
Personal Injury Judgments Trinity & Michelmas 1993 Doyle Court Reporters, High Court November 11,
1993 (Keane J).
10
A finding that the plaintiff was 80% contributorily negligent35 was made by Judge O’Higgins
in the Circuit Court in Sheehan (a minor) v Clare County Council.36 The infant sustained a
fractured humerus when she fell from her bicycle. Substantial road works had been carried
out at the accident site and there had been no warning of the state of the ground upon which
the plaintiff skidded on gravel. Award: £2,000.
A further accident involving loose chippings arose in Lane v Cork County Council & ors.37
The plaintiff was a passenger in a car that struck a tree. The driver and another passenger
were killed and the plaintiff sued the driver and the County Council as the relevant roads
authority. The accident occurred on a right-hand bend at the bottom of a hill and on the left
side, ahead of the bend was about 90 feet of loose stones – limestone chippings on top of a
firm base consisting of compacted mud and water. The court was quite satisfied that this was
part of he road ‘and was intended to be part of the road’ and not part of the verge; that there
was an intention that people should drive in on it and that, in fact, they did so.
On the evidence, the court found that the driver did go in on the loose chippings with his left
wheel driving too fast and that he then pulled violently to his right. He also had a blood
alcohol level of 186 mg%. Finding that the driver was ‘substantially negligent’, Kinlen J
proceeded to examine whether the County Council contributed to accident or not. Citing with
approval Danaher v Roscommon County Council,38 he found that the margin containing the
chippings was left in an unfinished condition. He was of the view that there ought to have
been some warning to indicate that it was not very suitable for vehicles: ‘certainly people like
motorists would to in there at their peril.’ Although obviously different in colour and texture,
that did not mean that it would not be used. He noted:
35
See, however, the comment of Hogan J (at para 4) in McCabe v South Dublin County Council [2014] IEHC
529 (18 November 2014):“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.” However, the relevance
of such a plea where immunity from liability is at the heart of the defence is not immediately obvious. In
Loughrey v Dun Laoghaire County Council [2012] IEHC 502 (23 November 2012) Cross J rejected any such
claim holding that: “The plaintiff has, of course, a duty to keep a reasonable look out but all the evidence is that
the differential between the slabs was small and I do not believe it would have been apparent to a pedestrian
such as the plaintiff that there was any danger caused by the differential.” (para 46)
36
Irish Law Log 1996 Circuit Court October 12, 1996, Judge O’Higgins.
37
Personal Injury Judgments Trinity & Michelmas 1995 Doyle Court Reporters, High Court October 10, 1995
(Kinlen J).
38
Supreme Court, Unreported Judgment December 21, 1973.
11
“This was a road that had been repaired and left in that condition by the local
authority or by their contractor and I have no doubt at all that the [driver] did
meet this obstruction, that he got into trouble … he wasn’t able to cope
adequately with the trouble in which he found himself….”
A footnote worth setting out in full arises from the decision in Lane. Does the institution of
remedial works at an accident site following an accident amount de facto to an admission of
liability?39 In short, no:
“ … [I]f an omission suddenly becomes the cause of an accident, it should be
remedied and people should not be afraid to remedy it on the grounds that … it
should be taken as some form of admission on their part. It should be remedied
immediately and the fact that it was remedied should not in any way suggest that
there was negligence originally.”
Liability was apportioned between the driver and the local authority in the ratio 80:20.
Yet another case involving loose chippings is O’Toole v O’Halloran & ors.40 Here, the
plaintiff was the rear seat passenger in a car driven by the son of the first named defendant
when it collided with head on with another car a Recess, on the main Galway-Clifden road.
The driver of the car in which the plaintiff was travelling died in the collision, along with all
three occupants of the other car. The plaintiff had no recollection of the accident, having
suffered severe injuries and amnesia for ten days after the accident.
There was no real complaint about the roadway. The accident occurred on a summer’s
evening and the bend at which the collision occurred was long and wide. It was a sweeping
right hand bend with a road running downhill – the downhill fall varying between 1:40 and
1:20. The bend was super-elevated - the outside of the bend being higher than the inside with
a fall between 1:13 and 1:16. And, it was accepted that this bend could be taken in a good car
with good tyres probably in excess of 80 mph. Three allegations were made against the local
authority: (1) that chippings were out on the roadway and contributed to this accident; (2)
there were no warning signs or notices alerting drivers to these chippings, and (3) there were
no road markings. There had apparently been a white line in the centre of this road but after
it had been resurfaced a short while previously, the white line had not yet been restored.
39
Repairs were carried out in both Loughrey v Dun Laoghaire County Council [2012] IEHC 502 (23 November
2012) and McCabe v South Dublin County Council [2014] IEHC 529 (18 November 2014).
40
High Court Unreported Judgment February 5, 1998 (Kinlen J).
12
However, the deceased driver was a native of this area and passed this road many times each
week and the accident occurred on a bright day near mid-summer such that there was no
problem in seeing the chippings. Accordingly, the court dealt summarily with the last two
allegations, being of the view that the presence or absence of a white line in the particular
circumstances were of no relevance to the ability of the driver to cope with this bend. Kinlen
J was of the view:
“that the absence of the yellow lines on the left beside a grass verge and of a
centre white line would not have made any difference to the deceased driver …
who lived in the area and was very familiar with the road.”
Although the court was satisfied that:
“ … there is a duty on a local authority to remove surplus chippings before
removing traffic control and where necessary to re-sweep and to ensure that all
the loose chippings are removed before removing road signs….”
Kinlen J was not satisfied that such chippings as were alleged to have been at the roadside
contributed to the accident. At post-mortem examination, the deceased driver was found to
have had a blood alcohol level of 162 mg%. Distinguishing the case, on its facts, from Lane v
Cork County Council & ors,41 (and, presumably, on the basis that it was not a Danaher-type
case) the court found against the estate of the deceased driver alone. Nevertheless, the
conclusion is worth setting out in terms of re-stating the duty of the road authority:
“[The vehicle in which the plaintiff was travelling] came into this bend at an
excessive speed and … the driver knew the bend and was affected by alcohol and
that because of these factors and the fact that he had four passengers and possibly
maladjusted tyres that there was an over-steer which resulted in this terrible
accident. The accident occurred in daylight. This finding does not exonerate a
local authority from making sure that the carriageway is clear and if it is not, that
it is suitably sign-posted.”
Injuries causing the loss of her spleen resulted when the plaintiff skidded on gravel at the
entrance to a side road and was thrown from her bicycle in Martin v Louth County Council.42
41
See, above. As Kinlen J noted, in Lane, the road had been left in such a condition that the public were actually
invited to use the gravel surface and did in fact do so. And, there was also independent evidence from a man
who lived near by as to what exactly he heard immediately before and at the collision.
42
Personal Injury Judgments Hilary & Easter 1998 Doyle Court Reporters, High Court May 18, 1998 (Carney
J).
13
The gravel had been allowed to accumulate in the middle of the junction after road works in
the area. Liability was imposed and the plaintiff was awarded £75,500.
Moving on to more recent times, in July 2005, the plaintiff in Loughrey v Dun Laoghaire
County Council43 tripped on the footpath near the pedestrian crossing from the DART station
at Dun Laoghaire. She fractured both wrists in the fall and developed reflex sympathetic
dystrophy. She had tripped on a lip of 5 to 6 mm between paving slabs. The plaintiff’s
evidence was that if slabs were properly laid, they ought not to sink differentially;
accordingly the slabs were improperly laid and there was evidence that the slabs generally in
that area were badly laid with a number of lip differentials. The lip, though small, was a
tripping hazard and dangerous, a matter contested by the defendant’s engineers who made
reference to various British standards whereby local authorities are not expected to intervene
and repair differentials of less than 13mm.44 Having found that the likely explanation was
misfeasance, and that the hazard was dangerous, damages in the amount of €260,000.
As to the applicable principles, Cross J, in that case, observed that “the law still remains in its
ancient purity in this jurisdiction”.45 That said, the High Court, in State (Sheehan) v
Government of Ireland,46 was clearly of the view that section 60 of the Civil Liability Act
196147 sought to abolish immunity for nonfeasance by road authorities and to impose a new
liability. Although understandable in the context of the proceedings that were instituted, the
proposition that such immunity existed was assumed rather than argued with the resultant
finding.48
43
[2012] IEHC 502 (23 November 2012).
As to whether or not there was a tripping hazard or English authorities or standards were useful, it was held
that as the standards were set given the abolition of the misfeasance/nonfeasance rule in that jurisdiction for the
benefit of local authorities it “would clearly be unreasonable to expect an English local authority to examine
every piece of pavement for relatively small differentials in height which could only be seen by close inspection.
The issue in this jurisdiction is entirely different. It is whether given a finding of negligence, a particular height
differential is as a matter of fact a danger to a pedestrian” (at para 31). Thus, for example, if the authority had
not caused the problem, it is not to be expected that it would inspect every pavement under its control and visual
inspection would not be sufficient to uncover relatively small lips difference, hence the different lip differential
standards there.
45
Para 18: this was in the context of over 50 years having elapsed since the passing of the Civil Liability Act
1961: “Since the enactment of the Civil Liability Act, generations of skilful civil engineers have struggled
manfully to give practical effect to the intentions of the legislature in relation to s. 60 . . . .” The language was
approved (and the sentiment endorsed) by Hogan J in McCabe v South Dublin County Council [2014] IEHC 529
(18 November 2014).
46
[1987] IR 550, [1988] ILRM 437, see below.
47
See, below.
48
However, see also: See, Administrative Law in Ireland (third edition) Hogan G and Morgan D, Round Hall
Sweet & Maxwell, Dublin 1998 pages 803-4 in the context of the Roads Act 1993 s. 19 (5). In Britain, see
44
14
The Statutory Position: The Civil Liability Act 1961
Thus, the legal distinction was carried over and was seemingly applied as good law following
the foundation of the State. However, its abolition was provided for in the Civil Liability Act,
1961, section 60. It provides for the liability of road authority for failure to maintain a public
road as follows:
(1) A road authority shall be liable for damage caused as a result of their failure
to maintain adequately a public road.
(2) In proceedings under this section, it shall be a defence for the road authority
to prove that—
(a) they had given sufficient warning that the road was a danger to
traffic, or
(b) they had taken reasonable precautions to secure that the road was
not a danger to traffic, or
(c) they had not a reasonable opportunity to give such warning or take
such precautions, or
(d) the damage resulted from a wrong committed by any person other
than the road authority.
(3) In determining whether a road was adequately maintained, regard shall be
had in particular to—
(a) the construction of the road and the standard of maintenance
appropriate to a road of such construction,
(b) the traffic using the road,
(c) the condition in which a reasonable person would have expected to
find the road.
(4) In determining whether a road authority had a reasonable opportunity to
give warning that a road was a danger to traffic or had taken reasonable
precautions to secure that a road was not such a danger, regard shall be had to
the standard of supervision reasonable for a road of such character.
(5) In this section—
"road authority" means the council of a county, the corporation of a county or
other borough and the council of an urban district;
"public road" means a road the responsibility for the maintenance of which lies
on a road authority and includes any bridge, pipe, arch, gulley, footway,
pavement, fence, railing or wall which forms part of such road and which it is the
responsibility of the road authority to maintain.
(6) This section shall not apply to damage arising from an event which occurred
before the coming into operation of this section.
(7) This section shall come into operation on such day, not earlier than the 1st
day of April, 1967, as may be fixed therefor by order made by the Government.
Stovin v Wise v Norfolk County Council [1996] AC 923, [1996] 3 WLR 388, [1996] 3 All ER 801, [1996], RTR
354
15
The Act of 1961 as a whole was enacted and, with the exception of section 60, came into
operation on August 17, 1961. The net effect of section 60 was that a road authority would no
longer be able to plead successfully the defence of nonfeasance. However, an order pursuant
to the provisions of subsection 7 has yet to be made.49
The Challenge to the Failure to Implement the 1961 Law Reform
In State (Sheehan) v Government of Ireland,50 the prosecutor, Mr Christopher Sheehan, had
fallen on the footpath at Cathedral Road, in Cork City on June 18, 1983 and fractured his
arm. He instituted proceedings in the Cork Circuit Court against Cork Corporation claiming
£15,000 damages for negligence. The Corporation denied that it was negligent or that there
was misfeasance on its part. Anticipating that his claim would be defeated by a defence of
nonfeasance, he applied to the High Court in 1986 for an order of mandamus directing the
Government to make an order under section 60 (7) of the Act of 1961 to bring the whole of
section 60 into operation. In the High Court, Costello J, holding that the prosecutor had
sufficient locus standi and granting the relief claimed, made an absolute order of mandamus
on July 29, 1986 requiring the Government within six months of that date, to make, an order
under section 60 (7) bringing section 60 the section into operation. He found as follows:
49
The position in England and Wales is, however, different, which gives rise to quite different considerations
(and consequences), alluded to by Cross J in Loughrey v Dun Laoghaire County Council [2012] IEHC 502 (23
November 2012). Thus, the misfeasance/nonfeasance distinction was abolished by the Highways Act 1961. In
Meggs v Liverpool Corporation [1968] 1 WLR, a case where a woman tripped on uneven flagstones because
they had sunk in different places, Lord Denning MR stated: “In the old days, there would have been a simple
answer to this claim. A highway authority was not liable for the bad state of a highway if it was due to nonfeasance, that is, not doing any repairs. A highway authority was only liable for misfeasance, that is, doing
things badly. That distinction was criticised for years: and in 1961, it was abolished by section 1 of the
Highways Act 1961.
What is the effect of the abolition? It means that the highway authority are under a duty to maintain the highway
and keep it in repair. If it is an dangerous condition so that it is not reasonably safe for people going along it,
then prima facie there is a breach in the obligation to maintain and keep it in repair . . . but the highway
authority can escape liability if they prove that they took all reasonable care that it was safe, having regard to
the various matters set out in the Statute . . . . at the outset, however, in order to make a prima facie case, the
plaintiff must show that the highway is not reasonably safe, i.e. that it was dangerous to traffic.” He also stated
that, using the ordinary knowledge of pavements, "everyone must take into account the fact that there may be
unevenness here and there. There may be a ridge of half an inch or three-quarters of an inch occasionally, but
that is not the sort of thing which makes it dangerous or not reasonably safe".
It is a defence for the highway authority to prove that it had taken reasonable care to ensure that the highway
was not dangerous. To succeed in a claim for failure to maintain or repair the highway, a plaintiff must prove:
"(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that in the
ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the
public;
(b) the dangerous conditions created by the failure to maintain or repair the highway; and
(c) the injury or damage resulting from such a failure." Mills v Barnsley [1992] PIQR 291 per Steyn LJ. He also
stated: “. . . mechanical jurisprudence is not to be encouraged. All that one can say is that the test of
dangerousness is one of reasonable foresight of harm to users on the highway and that each case will turn on its
own facts.”
50
[1987] IR 550, [1988] ILRM 437.
16
“The striking feature of s 60 is the unconditional nature of its first sub-section …
this seems to me to be a clear intimation of parliament's view that the law should
be reformed and an unambiguous expression of intention that a new liability
should be imposed on road authorities. This liability was however deferred for six
years, a deferment obviously intended to give time to road authorities to take steps
to minimise the effect of the new liabilities they would have to bear. After the
lapse of six years it was provided that the section ‘shall come into operation on
such day … as may be fixed therefore by order made by the Government’….
Again, an intention that the law would be changed is to be seen by the use of the
peremptory word ‘shall’. Whilst no time limit is imposed, and to that extent some
discretion in the exercise of the power is given to the Government, it seems to me
that if parliament intended (as I think clearly it did) that the law should be
reformed, it did not intend to confer a discretion which would permit that
intention to be frustrated. This means that the discretion given by subs (7) is a
limited one, and that it should be construed as requiring the government to make
an order within a reasonable time after 1 April 1967. Obviously a reasonable time
has long since passed and in my opinion the government is shown to have failed
to carry out the duty imposed on it by the section. It has not been suggested that if
there was a failure to fulfil a statutory duty I should in the exercise of my
discretion refuse an order.”
The Supreme Court (Finlay CJ, Griffin, Henchy, and Hederman JJ, McCarthy J diss) upheld
the Government’s appeal on the grounds that section 60 (7) did not impose any duty to bring
the section into operation and that mandamus did not, for that reason, lie.51 Henchy J was
satisfied that section 60 (7) was merely enabling. As a matter of statutory construction, he
continued:
“The uses of ‘shall’ and ‘may’, both in the subsection and in the section as a
whole, point to the conclusion that the radical law reform embodied in the section
was intended not to come into effect before April 1967 and thereafter only on such
day as may be fixed by an order made by the Government. Not, be it noted, on
such date as shall be fixed by the Government. Limiting words such as ‘as soon as
may be’ or ‘as soon as convenient’, which are to be found in comparable
statutory provisions, are markedly absent. If the true reading of [the] subsection
were to the effect that the Government were bound to bring the section into
operation, it would of course be unconstitutional for the Government to achieve
by their prolonged inactivity the virtual repeal of the section.”
51
However, the court reserved its position on whether (a) having regard to the separation of powers provided
for in the Constitution the courts could, by order, direct the introduction into effect of legislation which the
Oireachtas had provided should be introduced by an order made by the Government or by a Minister of the
Government, and (b) whether the courts could make such an order in the particular case where the introduction
of such legislation might impose a significant burden on the Exchequer.
17
Holding that the discretion vested in the Government to bring the section into operation on a
date after 1 April 1967 was not limited in any way, as to time or otherwise, he was of the
opinion that:
“ … [the subsection] by vesting the power of bringing the section into operation
in the Government rather than in a particular Minister, and the wording used,
connoting an enabling rather than a mandatory power or discretion, would seem
to point to the parliamentary recognition of the fact that the important law reform
to be effected by the section was not to take effect unless and until the Government
became satisfied that, in the light of factors such as the necessary deployment of
financial and other resources, the postulated reform could be carried into effect.”
Thus, financial and other resource implications were considered to have been central to the
delay in bringing the section into effect. Although over 50 years have elapsed since the Act
was passed, and some 28 years have passed since the Supreme Court’s determination in
Sheehan, section 60 remains in abeyance, and ‘the important law reform to be effected by the
section’ has yet to be implemented. This, of course, begs the question: how long does it take
to deploy the necessary ‘financial and other resources’ to which Henchy J referred? The sixyear delay, apparently contemplated by the Oireachtas – at least in the first instance – as
being necessary for that purpose has long since passed. The net effect has been to leave
unrepealed an ‘anomalous rule’,52 an ‘archaic principle of law’53 that was ‘behind the times’54
a distinction was ‘artificial and outmoded’55 and an ‘unsatisfactory state of the law’56 in a
manifestly different social, political and legal environment to that in which it was first
formulated. It has real personal and economic consequences for individual members of the
public who may suffer, and have suffered, what would otherwise be actionable injury without
legal remedy. In Sheehan, no justification was offered for the delay – although an opportunity
was sought to adduce such evidence, if necessary. It wasn’t necessary and, at this remove,
one can only speculate as to its substance and extent.
Over 20 years before Sheehan Lord MacDermott LCJ in the Belfast High Court made this
apposite observation on the existence of the rule:
52
O’Brien v Waterford County Council [1926] IR 1 at 8 per Murnaghan J.
Gallagher v Leitrim County Council (1955) 89 ILTR 151 per Kingsmill Moore J.
54
Quinn v Ministry of Commerce & Armagh County Council [1954] NI 131 at 143, per Lord MacDermott LCJ.
55
Condon v Cork Corporation Personal Injury Judgments Trinity & Michelmas 1996 Doyle Court Reporters,
High Court October 16, 1996 (Moriarty J) [I]ndeed, it can some times provide an incentive to a roads authority
to lack diligence and to allow hazards to accumulate with wear and tear….’ .
56
Kelly v Mayo County Council [1964] IR 315 at 324 per Kingsmill-Moore J.
53
18
“It confers an unduly wide immunity in respect of negligent omissions, having
regard to the gravity of the dangers which such omissions may cause and the
measure of relief produced by established exceptions has been obtained at the
price of fine distinctions and consequent uncertainty. There was, no doubt,
something to be said for the rule on grounds of expediency in the years that are
past, and it may be that the time is not yet ripe for its complete abolition. But I
venture to think that traffic conditions and the technique of highway engineering
have to-day reached a stage which would justify the authorities concerned in
considering whether it would not now be n the public interest to abrogate the rule
in relation, at any rate, to trunk roads.”57
Nevertheless, the misfeasance/nonfeasance distinction in respect of the acts of a road
authority remains part of the law in this jurisdiction. The Roads Act 1993 s. 19(4) and (5) (a)
provides: “The [National Road] Authority shall not be liable for damage caused as a result of
any failure to maintain a national road” which appears to provide for a similar immunity for
the National Roads Authority and to signal an intention not to implement the provisions of
section 60 of the Act of 1961. Whereas this approach might be considered unconstitutional,58
on a benign interpretation, it might seek to do nothing more than to immunise the NRA for
nonfeasance when it is anticipated that most of its activities will be effected through local
authorities as road authorities.59 Such an immunity seems, absent constitutional challenge to
the survival of the nonfeasance/misfeasance distinction, to apply, as noted, to the activities of
road authorities, pending the implementation of section 60 of the Act of 1961 – and the NRA
is not a road authority, within the meaning of that provision.
The question of constitutionality and tort anomaly was raised again, obiter, by Hogan J, in a
Circuit Appeal in McCabe v South Dublin County Council.60 Here, late one early June
evening in 2009, the plaintiff was injured when her foot caught in an opening in the surface
of a footpath in Tallaght: it was about 8cm by 8cm – a stopcock cover was missing. As to the
background facts, the Court accepted that, in November 2006, a variety of stopcock covers
had been repaired on this footpath and that the re-instatement work was later inspected by a
57
Quinn v Ministry of Commerce & Armagh County Council [1954] NI 131 at 143. See: Roads Act 1993 s.
19(5). Moriarty J noted in Condon v Cork Corporation Personal Injury Judgments Trinity & Michelmas 1996
Doyle Court Reporters, High Court October 16, 1996: ‘[I]ndeed, it can some times provide an incentive to a
roads authority to lack diligence and to allow hazards to accumulate with wear and tear….’
58
See, Administrative Law in Ireland (third edition) Hogan G and Morgan D, Round Hall Sweet & Maxwell,
Dublin 1998 pages 803-4.
59
Roads Act 1993 section 2 defines a footpath as “a road over which there is a public right of way for
pedestrians only, not being a footway.” Section 11 (as substituted by the Roads Act 2007 section 6) provides
that the maintenance and repair of all such roads is a function of the relevant local authority.
60
[2014] IEHC 529 (18 November 2014).
19
Council official and found to be acceptable. It also accepted that, in 2007, a road asset
condition survey of all the roads and footpaths carried out by the Council in its functional
area to identify roads and footpaths thought to be in need of repair described the footpaths in
question as being in a “medium” state of repair and that, other potential hazards having been
identified, the missing stopcock cover was not identified. In January 2009 the Council’s
Roadworks Control Unit, having received a complaint that a stopcock cover was missing at
the locus, a repair and reinstatement took place, although the documentary evidence, in this
regard, was less clear. Insofar as there was an opening there in June 2009, the Court
considered that there were only two explanations: (i) it was not actually repaired in February
2009, whether through oversight or otherwise or (ii) it was repaired but, before the concrete
could set, the opening was removed or tampered with by unknown third parties (acting
antisocially) (there being evidence of anti-social behaviour involving the removal of the
stopcock covers, which were very easily removed while the concrete was still fresh). The
plaintiff’s engineer, however, was emphatic that one would expect 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 or tampered
with in this manner and there was no evidence of this on inspection in July 2010 (when it was
repaired).
Hogan J, however, considered that it was unnecessary to resolve the evidentiary dispute
because, in his view (at para 13), “the result in law is nonetheless the same”. Whether the
Council failed to 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, he held, the Council is not liable by reason of the operation of the nonfeasance rule.61
He continued:
61
At para 23. Be that as it may, the facts of the case were very simple – the outcome for the plaintiff wholly
unsatisfactory, not least because the evidentiary dispute, as set out in judgment, was not resolved. The
propositions advanced by the parties do not seem to have been mutually exclusive. Without wishing to be overly
hostile to the authorities, they are, with respect, rich with examples where one judge’s misfeasance is another’s
nonfeasance. If it were to have been accepted that the Council had repaired the opening in question and that
there was no evidence of mischievous third party interference, the only plausible explanation – as was clearly
the plaintiff’s case – was actionable misfeasance. And, in this context, the Court seemed to accept that there was
force in the Council’s evidence that work had, in fact, been carried out in the area and recognised the force of
the engineering evidence that did not support interference by rogue mischief-makers. Accordingly, albeit
reluctantly, because the plaintiff had suffered 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” (para 31) the decision of the Circuit
Court was affirmed and the action dismissed.
20
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 nonfeasance 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 v
Mayo County Council [1964] IR 315 (Lavery J) at 323] . . . .
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.
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 . . . .”62
Noting the origin of the rule in Russell v Men of Devon,63 that the “illogical distinction” had
survived transfer of the statutory duty to repair the highways to local authorities with legal
personality and the well-recognised criticisms of the rule64 Hogan J felt compelled to apply
the law as he found it “especially so given that the Oireachtas has, in fact, legislated on this
topic”65 For the present, at least, therefore, he agreed with Cross J’s characterisation in
Loughrey, that the distinction still retains “its ancient purity in this jurisdiction” and
concluded:
“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.”66
62
Paras 24-26.
(1788) 2 Term Rep 667.
64
As noted, Murnaghan J considered it “anomalous” in O’Brien v. Waterford County Council [1926] IR 1 at 8
and Kingsmill-Moore thought it “unsatisfactory” in Kelly v. Mayo County Council [1964] IR 315 at 324.
65
Namely, Civil Liability Act 1961 section 60(1).
66
Para 30.
63
21
That said, he conceded: “No one can pretend that the nonfeasance/misfeasance distinction is
perfectly satisfactory or that the rule in this blunt and indiscriminate form sits easily with
general principles of tort law.”67 He also later observed:
“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 . . . ,
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 . . . .”68
What can be said about these propositions: (i) the relationship with tort law more generally
and (ii) the constitutionality of the distinction? Both require consideration of the decision of
the Supreme Court in Glencar Exploration plc & anor v Mayo County Council.69
Is the Immunity Constitutional?
The question arises as to whether or not any challenge to the constitutionality of the
nonfeasance/misfeasance distinction is likely to succeed in the aftermath of Glencar. There,
Keane CJ (for a unanimous Supreme Court) re-stated the distinction in the law of negligence
between liability for acts and omissions:
“The bystander who sees a building on fire and knows that there are people
inside no doubt foresees that if he waits for the fire brigade to arrive rather
than attempting to rescue them himself they may die. But the law has never
imposed liability in negligence on a person who fails to act as a more
courageous citizen might in such circumstances. A strict moral code might
censure his timidity: the law of negligence does not. It is precisely that
distinction drawn by Lord Atkin between the requirements of morality and
altruism on the one hand and the law of negligence on the other which is in
grave danger of being eroded by the approach adopted in Anns v Merton
London Borough [1978] AC 728, as it has subsequently been interpreted by
some. There is, in my view, no reason why courts determining whether a duty
of care arises should consider themselves obliged to hold that it does in every
case where injury or damage to property was reasonably foreseeable and the
notoriously difficult and elusive test of “proximity” or “neighbourhood” can
be said to have been met, unless very powerful public policy considerations
67
Para 27.
Para 29.
69
[2002] 1 IR 84,1 ILRM 481. Glencar involved an action for damages by the plaintiffs arising out of losses
alleged to have been incurred as a result of a decision to include, in the defendant’s county development plan, a
mining ban which was found to have been included ultra vires section 19 of the Local Government (Planning
and Development) Act, 1963.
68
22
dictate otherwise. It seems to me that no injustice will be done if they are
required to take the further step of considering whether, in all the
circumstances, it is just and reasonable that the law should impose a duty of a
given scope on the defendant for the benefit of the plaintiff . . . .”70
Later, he stated:
“ . . . the mere fact that the exercise of a power by a public authority may
confer 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 an 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.”71
Whatever about the question of foreseeability – which is always a matter of fact and, in many
cases, relatively non-contentious in cases involving accidents caused by non-repair of roads
and footpaths – and whether or not proximity of relationship may be established, as a matter
of practicality, the “fair and reasonable” test, other than in the most unusual of cases, is
always going to defeat a plaintiff’s claim. In this context, it merits noting that in Loughrey v
Dun Laoghaire County Council,72 Cross J made two observations. Firstly, contrasting the
position in England after the abolition of the distinction in 1961, he noted that to succeed in
this jurisdiction, for a cognate claim, “a plaintiff must show misfeasance which is a far higher
standard”.73 Secondly, the question of whether or not the tripping lip in question was
dangerous was “one of fact untainted by any considerations of public policy. The very fact
that the plaintiff herself doing nothing wrong fell on this negligently constructed footpath is
of itself suggested that it was dangerous”.74 This tends to suggest eschewing of a “fair and
reasonable” test and broader policy considerations.
70
[2002] 1 IR 84 at 138-139.
[2002] 1 IR 84 at 140-141.
72
[2012] IEHC 502 (23 November 2012).
73
Para 39. On the facts of the case, he rejected as relevant the notion that lips on manhole covers and bubble
paving to assist the visually impaired were greater, noting (at para 42): “The pedestrian will be able to
subconsciously see manholes and take account of them. Similarly, the bubble pavements are of a different
colour to the paving slabs around them and are clearly visible wherever they may be.” He continued (at para
43): [T]he issue of whether or not the lip represented a tripping hazard is entirely different from the issue that
the English Courts had to decide which was whether the differential was dangerous before negligence could be
found against the highway authority”.
74
Para. 48.
71
23
When, if at all, does a duty of care arise on the part of a public authority?
In Ward v McMaster75 the plaintiffs had purchased a house from a builder. Shortly
afterwards, they discovered that it contained serious structural defects which, If not repaired,
would render it dangerous and a risk to health. They had bought the house with the assistance
of a loan from the local authority under the relevant housing legislation and had not had an
independent examination of the house carried out by a surveyor before the purchase.
However, it had been examined on behalf of the local authority by an auctioneer whose
examination did not reveal all of the defects. They succeeded against the builders/vendor, the
claim against the auctioneer being dismissed as he had done all that a competent and
reasonable auctioneer would have done in the circumstances. The claim against the housing
authority was based on the contention that it should have known that the plaintiffs were
impecunious and, accordingly, would be unlikely to retain their own independent surveyor
and would have relied on an appropriate inspection having been carried out on behalf of the
authority. It was not suggested that the authority was under a statutory duty to provide either
itself or anyone else with a surveyor’s report, although they were authorised so to do.
Costello J (as he then was) was satisfied that the resultant damage, although in the nature of a
pure economic loss, was recoverable in light of the decision of the House of Lords in Junior
Books Ltd. v Veitchi Co. Ltd.76 He stated that, in determining whether a duty of care arose in
that case, the following principles applied:
“(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.”
75
76
[1985] IR 29 (HC); [1988] IR 337 (SC).
[1983] AC 520.
24
It was within the reasonable contemplation of the housing authority that carelessness in
carrying out the valuation would be likely to cause damage to the purchaser.77 In addition, it
was consistent with the authority’s public law powers that they should be accompanied by a
common law duty of care in favour of the plaintiffs. And, for similar reasons, it was ‘just and
reasonable’ that the court should hold that a duty of care arose in the case. A unanimous
Supreme Court upheld dismissed the housing authority’s appeal. McCarthy J expressly
endorsed Lord Wilberforce’s two-stage test in Anns v Merton London Borough Council78 and
added:
“While 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 that injured him.”
Up to Glencar, the view was that the Anns two-stage test represented the law in this
jurisdiction, having regard to the decision of the Supreme Court in Ward v McMaster. In
Glencar, however, Keane CJ noted that in the Supreme Court, in Ward, Henchy J was
satisfied that the facts of the case were such that it could be decided in accordance with ‘wellestablished’ principles, given the relationship between the parties and the foreseeability of
damage. No express endorsement of Anns was to be found. As Finlay CJ and Griffin J agreed
with both Henchy and McCarthy JJ, and Walsh J agreed only with McCarthy J, Keane CJ, in
Glencar, signalled a clear retreat from any such position, when he stated (at 509):
“While the decision in Ward v McMaster has been treated by some as an
unqualified endorsement by this court of the two stage test adopted by Lord
Wilberforce in Anns, it is by no means clear that this is so . . . it is not clear that
the observations of [McCarthy J] in relation to the two stage test in Anns
necessarily formed part of the ratio of the decision. Given the far reaching
implications of adopting in this jurisdiction a principle of liability in negligence
from which there has been such powerful dissent in other common law
jurisdictions, I would not be prepared to hold that further consideration of the
underlying principles is foreclosed by the dicta of McCarthy J in Ward v
McMaster.”
77
In Glencar Exploration plc & anor v Mayo County Council [2002] 1 ILRM 481, Fennelly J (at 525) observed
that the loss suffered “did not flow inevitably form the decision of the local authority to make the loan but rather
from an act of incidental negligence in the performance of its statutory function.”
78
[1978] AC 728 at 751.
25
The dissent to which Keane CJ referred is to be found primarily in Caparo Industries plc v
Dickman79 where Lord Bridge stated:
“ . . . in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there exists between the party owing
the duty and the party to whom it is owed a relationship characterised by the law
as one of ‘proximity’ or ‘neighbourhood’ and the situation should be one in which
the court considers it fair, just and reasonable that the law should impose a duty
of a given scope on the one party for the benefit of the other.”
This had followed the earlier decision of the High Court of Australia in Sutherland Shire
Council v Heyman80 where Brennan J had suggested that it was preferable
“ . . . that the law should develop novel categories of negligence incrementally and
by analogy with established categories, rather than by a massive extension of a
prima facie duty of care restrained only by undefinable considerations which ought
to negative, or to reduce or limit the scope of the duty, and the class of person to
whom it should be owed.”
In Ward v McMaster, McCarthy J had robustly rejected any such formulation. Although he
found the proposition attractive, it “ suffer[ed] from a temporal defect – that rights should be
determined by the accident of birth.”81
Although purportedly leaving open the question as to whether Anns represented the law in
this jurisdiction, the retreat flagged by the Supreme Court in Glencar in the parsing in that
case of the judgments in Ward v McMaster turned into a full frontal attack on the adopting of
an Anns approach.82
The essential question is whether, and to what extent, a statutory authority can be made
amenable in damages for the negligent exercise of a power which they were entitled, but not
obliged, to invoke. In Anns, although the local authority was not under a duty to inspect the
79
[1990] 2 AC 605.
(1985) 60 ALR 1.
81
[1988] IR 337.
82
This rapid distancing exercise from an essentially hitherto unquestioned approach of McCarthy J is mirrored
in De Róiste v Minster for Defence [2001] 1 IR 190 (Keane CJ, Denham and Fennelly JJ), also in the area of
judicial review.
80
26
foundations of buildings, it was held that it could be made liable where proper consideration
had not been given to the questions as to whether they should inspect or not.
In Siney v Dublin Corporation83 the Supreme Court held that where a flat had been provided
by a local authority pursuant to their duties under housing legislation, they were obliged to
take reasonable care to ensure that it was fit for human habitation. Accordingly, they were
liable in damages because appropriate humidity tests had not been carried out in order to
determine whether the flat would be sufficiently ventilated. The loss recoverable was an
economic loss, i.e. the cost of remedying the defects in the flat provided by the defendant
corporation. A similar issue arose in Ward v McMaster, where the loss was also in the nature
of an economic loss, i.e. the cost of remedying defects for which the builder and the local
authority were held to be responsible. In each of those cases, the plaintiff belonged to a
category of persons for whose benefit a particular statutory framework had been created and
each could be said to have relied on the relevant local authority’s taking reasonable care in
the exercise of the statutory powers vested in them. In Glencar, Keane CJ stated (at 511-2):
“[T]he 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 . . . 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 an reasonable to postulate the existence of a
duty of care. . . . [W]hen one bears in mind [in Glencar] that the powers in
question were exercisable by the respondents for the benefit of the community as a
whole and not for the benefit of a defined category of persons to which the
applicant belonged (as in Siney and Ward v McMaster), I am satisfied that there
was no relationship of ‘proximity’ between the plaintiffs and the respondents
which would render it just and reasonable to impose liability . . . . [A] general
expectation that the respondents would act in accordance with the law . . . is not .
. . sufficient to give rise to the existence of a duty of care.”
Thus, coming within a particular class for whose benefit a statutory power is exercisable and
reliance on a roads authority’s taking reasonable care in the exercise of that power are prerequisites of the existence of a duty of care, the breach of which can ground an action for
damages. Although both in Siney and Ward v McMaster the damages recoverable, as noted,
were in the nature of pure economic loss, and this was premised on the decision of the House
of Lords in Anns, although such recovery was subsequently disallowed in Murphy v
83
[1980] IR 400.
27
Brentwood District Council.84 Keane CJ, in Glencar, noted that the court had not been invited
to overrule Siney and Ward v McMaster and expressly reserved for another occasion the
question as to the circumstances in which economic loss might be recoverable and whether
Junior Books should be followed. Given this reservation, the thrust of the attack on Anns, the
effective endorsement of Caparo and the headlong retreat from the view expressed in relation
to McCarthy J’s statement in Ward v McMaster whether another Siney or Ward v McMaster
would, accordingly, succeed, must be considered questionable.
In those circumstances, when coupled with the anti-plaintiff thrust of the Personal Injuries
Assessment Board Acts 2003 and 2007 and the Civil Liability and Courts Act 200485 and the
relative hostility of our Courts to expanding the parameters of liability, the prospects for a
challenge to the misfeasance/nonfeasance distinction are not encouraging – either at the tort
or Constitutional level. The final question that then arises is this: can a claim be dismissed in
limine on policy grounds, and, more particularly, where, as Hogan J has clearly pointed out,
“the historical underpinning for the rule (such as it ever was) vanished no later than
1898”?86 Cross J, in Loughrey v Dun Laoghaire County Council87 was careful (and correct)
to eschew policy considerations in factual inquiries and the cases recited were, ultimately,
considered on the merits. That said, it seems odd that veneration for antiquity, particularly
when it produces an anomaly, should, merely because of that antiquity, cause that anomaly to
be perpetuated.88 Abolition of the distinction in England and Wales 50 years ago has not
resulted in chaos – such problems as ensued have been dealt with as they arose. They may
well give rise to their own policy considerations,89 perhaps even a mechanistic jurisprudence,
but that is a problem for another day.
Dr Ciaran Craven SC
February 2015
84
[1991] 1 AC 398.
See, for example, the comments of Kearns J in O'Donnell v. McEntee & anor [2009] IEHC 563 and Lackey v
Kavanagh [2012] IEHC 276 (at para 20).
86
McCabe v South Dublin County Council [2014] IEHC 529 (18 November 2014) para 29.
87
[2012] IEHC 502 (23 November 2012).
88
See, for example, albeit less dramatically, the decision of the Supreme Court in Blehein v Minister for Health
& ors [2008] IESC 40, [2009] 1 IR 275 (SC) aff’g Blehein v Minister for Health & ors [2004] 3 IR 610, [2004]
IEHC 374 (HC) notwithstanding, for example, Murphy v Greene [1990] 2 IR 566, O’Dowd v North Western
Health Board [1983] ILRM 186 and In re R. Ltd [1989] ILRM 757
89
For example, in Loughrey v Dun Laoghaire County Council [2012] IEHC 502 (23 November 2012) Cross J
noted (at para 44): “The courts in England because of their abolition of the distinction between nonfeasance and
misfeasance, adopted as a matter of public policy that before any differential not caused by action of the local
authority, could be considered to be negligent, a relatively large differential between slabs must be found.
Without deciding whether public policy ought to have any role to play in these matters, clearly the same
considerations that apply in England do not apply in this jurisdiction.”
85
28