It is hard to believe that in 2015, the Law which decides whether persons injured on a public roadway or footpath are entitled to compensation is still governed by an English decision of the year 1788!  However, that fact was again reinforced in a recent decision of the High Court (McCabe v South Dublin County Council) where a High Court Judge, dismissing an appeal by an injured person whose claim had already been dismissed in the Circuit Court, held that the old rule, dating back to the 18th century, was still, in effect, the Law in Ireland.

The case related to injuries suffered by a lady in Tallaght who tripped and fell when her foot became caught in an opening in the surface of a footpath.  The opening in question was missing a stopcock cover and it was clear from her engineer’s photographs that it presented a danger to the public at the time of the accident.  Prior to her injury the Council had received a complaint that the particular stopcock cover was missing.  The Council claimed that it had repaired the cover some months before the accident.  Why, therefore, was the cover missing on the night of the accident?  The Judge held that there were two possibilities:-

(a) Either the opening had not actually been repaired by the Council at all, or; –

(b) That it had been repaired but tampered with later by parties unknown (there was known to be anti-social behaviour in the area).

The claimant’s engineer found no evidence of tampering with the area around the stopcock.

The Judge held that it was immaterial in any event whether it had not been repaired by the Council at all or whether the repair was subsequently interfered with because the Law is that a Local Authority is liable in damages for injuries suffered by a road or path user only if the Council has been negligent in doing repairs or in interfering with the roadway.  It is not liable for injuries caused by a want of repair or failure to repair.  This is the distinction the Common Law draws between “nonfeasance”– a failure by the Council to act to maintain roads and footpaths and “misfeasance” – the negligent repair of a road or footpath.  The Council is liable in damages for injuries caused by misfeasance but not for nonfeasance.

In this case either the Council did not repair the opening at all or the repair was interfered with by some third party.  Either way the Council was held to be not liable by reason of the operation of the “nonfeasance” rule.  The Council could have been held liable if it had been found on the facts that it had negligently repaired the opening in question but, as there was no such evidence, the Judge felt obliged to dismiss the appeal.

It is shocking to realise that, as long ago as 1961, in the Civil Liability Act (Section 60 (1)) it was proposed to abolish this distinction between “nonfeasance” and “misfeasance” but that particular subsection has never been brought into force – after 54 years!  In 1987 the Government was challenged to bring the Section into force but the Supreme Court held that it was not legally obliged to do so.

Claims of this kind are complicated and must be handled with care and legal advice is essential.

In the meantime, until the Government brings this Section into force, some injured persons will go without compensation because of this antiquated Law.  There is an election coming – get after your electoral representatives to drag the Law into the 21st Century!