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Cite as: [2014] IEHC 529
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Judgment
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Neutral Citation: [2014] IEHC 529 THE HIGH COURT [2012 No. 290CA] BETWEEN/ ZARA McCABE PLAINTIFF AND
SOUTH DUBLIN COUNTY COUNCIL DEFENDANT 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 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:
19. Lavery J. observed ([1964] I.R. 315, 321):
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:
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 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. |
