Highway Robbery – The Old Liability Rule Returns

A recent Court of Appeal judgment has confirmed that the ancient rule for determining liability for accidents on public roads has certainly not gone away. The old rule stipulates that if a local Authority repairs a road but makes a botch of it, they will be liable for any accidents caused by their defective work. This is called Misfeasance. On the other hand, if a public road over the years simply falls into a state of disrepair, the Local Authority cannot be held liable for any accidents arising from the road’s natural state of disrepair over time. This is called non-feasance.

A 64 year old cyclist riding his bike down a public road came to a ramp right up beside a cattle grid but where, unfortunately, the ramp had worn away leaving a small drop or gap between the ramp and cattle grid. He came off his bike suffering a serious ankle injury and sued the county council.

In the high court it was accepted that the ramp/ grid had been in place for many years, but the county council had not interfered with the ramp in any way. It was also not known when the ramp had deteriorated, presumably over several years.

The court held that the county council was liable for the negligent construction of the ramp/ grid by its predecessor, Shannon Development. It ruled that the county council should have been aware of the defect if it had carried out a survey on taking over the road from Shannon Development in 2004 and perhaps should have looked for an indemnity at the time. The high court ruled the county council was liable for injuries suffered by the plaintiff and awarded him € 113, 000 in damages.

Not surprisingly, the county council appealed to the court of appeal who considered fully the old non- feasance rule in the 1902 Harbison case where the rule was established. In that case, the court ruled that failure to maintain a public highway did not give rise to any action against the local authority. However, if the local authority repaired a road but its repairs were defective, then it would be liable.

The court of appeal held that the high court was wrong in finding that the county council was liable for an inherited defect from a predecessor in title. It was an established rule that the public “takes the highway as it finds it” and it found there was no legal basis for the trial judge’s finding.

The appeal court also held that a local authority was not bound in law to inspect a public road and ensure it was free of defects prior to it being formally taken in charge. Finally, the appeal court confirmed that the Occupiers Liability Act 1995 was not applicable here as it was wrong to suggest the county council was in any way an occupier of the highway. The court allowed the council’s appeal to succeed and refused to award any damages to the unfortunate plaintiff.

The judgments may have been complicated but the rule remains simple; cyclists and pedestrians: take care on the highways – you may not always be compensated out there !

The case is O’ Riordan V Clare County Council & Another 19/ 10 /21  (No. 2019/305 [ 2021] IECA 267)


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