The Court of Appeal has upheld an appeal by Clare County Council against a €113,000 damages award for personal injuries sustained in a highway accident. The plaintiff had successfully litigated in the High Court after he had fallen off his bike due to a defective ramp on a highway maintained by the Council.
The court held that the trial judge had erred in law by holding that the Council was liable for not maintaining the highway. It was held that the “ancient non-feasance rule” which limited liability against a highway authority was still applicable and, accordingly, the damages award was overturned.
The plaintiff lived in Shannon and was 64 years old. In August 2014, he was riding his bike down a public road. Eventually, he came to a cattle grid which had a concrete ramp immediately preceding it. The edge of the ramp had worn, meaning that there was a one inch drop between the end of the ramp and the cattle grid.
When the plaintiff ran over the ramp/grid, the drop caused him to lose his balance and fall from the bike. He suffered a serious injury to his left ankle. The plaintiff subsequently sued Clare County Council and Response Engineering Limited for the accident (although the case focused on the Council’s liability).
The road in question had been transferred to the Council from Shannon Development in or around 2004, although no evidence was presented as to how this transfer took place. In 2011, the road was designated to be a public road by the Council, under the Roads Act 1993.
Ordinarily, the Council would carry out a survey of the road prior to it being taken in charge. It was not established if this had been done, but it was accepted that the Council had not interfered with the ramp/grid. It was also noted that there was no evidence to establish when the ramp had deteriorated, as it could have happened prior to 2004, between 2004 and 2011 or anytime thereafter.
In the High Court, the trial judge accepted the plaintiff’s account of the accident. It was also accepted that the ramp and cattle grid construction was defective and rendered the ramp liable to breakage. As such, it was held that the construction posed a danger to the plaintiff.
In assessing liability, the court considered the law relating to misfeasance and non-feasance by highway authorities. While an immunity for non-feasance was abolished by the Civil Liability Act 1961, it was preserved by section 2(3) of the Roads Act 1993. The court held that the Council was liable for Shannon Development’s negligent construction of the ramp/grid as it was a successor in title to the road.
On this basis, it was held that the Council could not raise the defence of non-feasance. It was held that the Council should have been aware of the defect if it had carried out a survey and the Council could have sought an indemnity from Shannon at the time of transfer.
Further, the court held that the Council was liable for the tort of nuisance. The court ruled that where the plaintiff could show particular or special damage arising from such public nuisance, he could bring a claim in respect of it against the relevant highway authority.
The trial judge ultimately held that the Council was liable for the injuries and that the plaintiff was entitled to €113,000 in compensation. The Council appealed the decision to the Court of Appeal.
Court of Appeal
Delivering judgment in the case, Mr Justice Seamus Noonan began by tracing the long history of the non-feasance rule in the common law. Considering Harbinson v. County Council of County Armagh  2 I.R. 538, the court held that a failure to maintain a highway did not give rise to a cause of action against a highway authority. Instead, it was only in circumstances of misfeasance (e.g. positive action to cause deterioration) that the authority could be liable.
It was held that, under Harbinson, the non-feasance rule was not confined to negligence, but extended to the tort of nuisance as well. The court also referred to later judgments which agreed with the law under Harbinson, including McCabe v. South Dublin County Council  IEHC 529 and Gorringe v. Calderdale Metropolitan Borough Council  1 WLR 1057.
Citing Gorringe, the court said that “the rule has never been that the highway authority enjoys a special form of exemption or immunity from suit in respect of nonfeasance. In fact, there is not, and never has been, a liability at common law on any party for failure to maintain the highway.”
The court held that the trial judge was “simply incorrect” when he determined that the Council was liable for an inherited defect from a predecessor in title. It was a settled rule that the public “takes the highway as it finds it” and there was no legal basis for the trial judge’s finding, the court said (Nash v. Rochford Rural District Council  1 KB 384).
Mr Justice Noonan also held that a highway authority was not bound in law to inspect a highway and ensure defects were remedied prior to dedication. He therefore described the trial judge’s findings as “novel, far reaching and contrary to authority” (Flynn v. Waterford County Council  IEHC 335 applied).
The court also held that the trial judge had fallen into error when considering that the Council was liable for the tort of nuisance. The court stated that the trial judge had referred to a number of claims where the nuisance was created by third parties rather than the highway authority. As such, the non-feasance rule did not apply in those cases. However, the rule still operated in the present case, as to do otherwise would set the non-feasance rule at naught.
The court agreed with the trial judge that the Occupiers Liability Act 1995 was not applicable in the case, as there was no basis for saying that the Council was an occupier of the highway.
In light of the court’s findings, it was held that the appeal had to succeed and that the plaintiff was not entitled to damages. The court suggested that the non-feasance rule should be re-evaluated as it operated to deprive an unfortunate plaintiff from damages. However, it was held that the courts could not overturn such a rule.