Liability For Dangers On The Highway And The Ancient Principle Of Nonfeasance

• Published date: 30 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Dillon Eustace
• Author: Ms Elaine Healy

Edward O'Riordan v Clare County Council and Response Engineering Limited [2021] IECA 267

The Court of Appeal has recently overturned a 2019 High Court decision to hold Clare County Council (the "Council") liable in negligence and public nuisance for personal injuries sustained by a man who fell when cycling over a faulty cattle grid and concrete ramp on a public road in Shannon, Co. Clare in 2016.

High Court

The cattle grid and ramp in question were constructed by Shannon Development, the Council's predecessor in title, having transferred all of its assets to the Council. The Council were unable to confirm that a survey had been carried out on this stretch of road at the time of this transfer. It was accepted by the trial judge, Mr. Justice Barniville, that the cause of the plaintiff's injury was the 1 inch drop from the ramp onto the cattle grid after a portion of this ramp fell away. It was also accepted by the trial judge that the Council had done nothing to the cattle grid or the concrete ramp since 2004 after taking this road in charge, however, as successors in title to the ramp, as opposed to the creators of it, the court found that the Council was not entitled to the defence of nonfeasance in relation to either the negligence or public nuisance liability claims.

Court of Appeal

In overturning the High Court decision, the Court of Appeal reaffirmed the historical distinction between misfeasance - where a roads authority repairs or maintains a road negligently; and nonfeasance - where they omit to repair or maintain a road.

Mr. Justice Noonan highlighted that, although the legislature in the United Kingdom had dislodged this distinction in liability by way of their Civil Liability Act 1961, the equivalent Irish provision contained in section 60 (1) of the Civil Liability Act, 1961 had yet to be commenced and that the Irish legislature had indeed preserved this distinction in the Roads Act 1993, which provides that nothing in that Act would affect any existing law relating to the liability of a road authority for failure to maintain a public road.

Given how firmly entrenched the nonfeasance rule is in Ireland, Mr Justice Noonan found that a roads authority has no liability for a failure to intervene if it did not create the danger existing on the road in...