Carroll v Kildare County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1950
• Date: 01 January 1950
• Court: Supreme Court

Carroll v. Kildare County Council.

JULIA T. CARROLL

Plaintiff

and

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

Defendants.

Supreme Court

Limitation of action - Public authority - Action for negligence - Damage to property - Damage not apparent until more than six months after cessation of negligence - Action barred by Public Authorities Protection Act, 1893 -Meaning of "continuance of injury or damage" - Public Authorities Protection Act, 1893 (56 & 57 Vict., c. 61), s. 1 (a).

In the year, 1942, the defendants, pursuant to s. 24 of the Local Government Act, 1925, reconstructed a public road, which was then a narrow bog road and which passed close to premises occupied by the plaintiff. The soil beneath both the road and the plaintiff's premises was of a peaty nature and the method of road-making adopted included the use of a steam-roller. In May, 1944, fractures appeared in the walls of the plaintiff's premises and later developed to such an extent that in June, 1944, a part of the premises required extensive repairs while the remainder was beyond repair. On the 22nd June, 1945, the plaintiff commenced proceedings, claiming damages for the injury to her premises which, she alleged, had been caused by the negligence of the defendants in the reconstruction of the road. The defendants by their defence relied upon (inter alia) the Public Authorities Protection Act, 1893, s. 1 (a). At the trial of the action before Maguire J. and a jury an application by the defendants for a direction was refused by the trial Judge, and the jury found that the defendants had been negligent and they awarded damages to the plaintiff. On appeal by the defendants it was

Held by the Supreme Court (Maguire C.J., Geoghegan and O'Byrne JJ.; Murnaghan and Black JJ. dissenting) that as the injury to the plaintiff's premises had been caused at the time of the reconstruction of the road, the action had not been commenced within the time limited by s. 1 of the Public Authorities Protection Act, 1893, and that therefore it was not maintainable.

Held further by the Supreme Court: The words, "continuance of injury or damage," in s. 1 (a) of the Public Authorities Protection Act, 1893, mean continuance of the act which caused the damage.

Carey v. Bermondsey Corporation, 67 J. P. 447 applied. Backhouse v.Bonomi, 9 H. L. Cas. 503, and Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127 distinguished.

Witness Action.

The plaintiff, Julia T. Carroll, brought an action against the defendants claiming damages for injury to premises occupied by her as a licensed premises and dwellinghouse at Derrycrib, in the County of Kildare, as a result of the alleged negligence of the defendants in the raising and reconstruction of a public road adjoining the said premises in the year, 1942. The soil beneath both the public road and the plaintiff's premises was of a peaty nature, and the work involved the use of a steam-roller. Both before and after the reconstruction the road was used extensively by heavy motor lorries. In May, 1944, cracks appeared in the walls of the plaintiff's premises and, in 1945, part of the premises required extensive repairs and the remainder of the premises was beyond repair. On the 22nd June, 1945, the plaintiff commenced proceedings, claiming that the injury to her premises had been caused by the negligence of the defendants in failing to take reasonable care, having regard to the nature of the subsoil. At the trial of the action before Maguire J. the trial Judge refused to grant an application, made on behalf of the defendants, for a direction that judgment should be entered for the defendants on the grounds 1, that in doing the acts complained of the defendants acted in pursuance of a statutory duty and without negligence; 2, that the action was barred by the Public Authorities Protection Act, 1893. The jury, having found for the plaintiff, assessed damages at £475, and judgment was entered accordingly.

The defendants appealed to the Supreme Court (1).

Cur. adv. vult.

Maguire C.J. :—

The plaintiff brought this action to recover damages in respect of injury to a licensed premises, dwellinghouse and farm building at Derrycrib, in the County Kildare, which she alleged was caused by the negligence of the defendant Council in the raising and reconstruction of the public road adjoining the said premises.

The action was tried on the 18th, 19th, 20th, 24th and 25th days of June, 1946, by Mr. Justice Maguire. The jury found that the defendants were negligent in the maintenance and construction of the road adjoining the plaintiff's premises in 1942, and assessed damages at £475.

Accordingly, judgment was entered for the plaintiff for this sum. The defendants moved this Court to set aside the verdict and judgment so entered and to enter judgment for the defendants or, in the alternative, to order a new trial on the grounds—

• 1, that the trial Judge should have acceded to the application to withdraw the case from the jury made at the conclusion of the plaintiff's case and repeated at the conclusion of the evidence on the grounds—

  • (a) that there was no cause of action disclosed on the pleadings;

  • (b) that there was no evidence of negligence by the defendants or that the matters complained of amounted to a nuisance;

  • (c) that there was no proof of damage caused by any of the matters complained of;

  • (d) that the plaintiff's cause of action, if any, was barred by the Public Authorities Protection Act, 1893;

2, that the verdict of the jury was without evidence and against the weight of evidence.

The evidence given at the trial showed that in the autumn of the year, 1942, the defendant County Council reconstructed the public road which passes near the plaintiff's premises. There is no question that this work was undertaken by them in pursuance of the duty with which they are charged by s. 24 of the Local Government Act, 1925, to maintain and construct public roads in the County.

It is clear from the authorities that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although damage is caused to someone. It is equally well established that an action does lie for doing that which the Legislature authorised, if it be done negligently. [See Geddis v. Proprietors of Bann Reservoir(1), per Lord Blackburn at p. 455.]

The plaintiff alleges that injury was caused to the foundations of both her licensed premises and dwellinghouse by the use of a heavy steam-roller which was driven up and down over a section of the public road which passes in front of the premises. It is not suggested that the use of a steamroller in the making of roads is not proper. Apart from the fact that the County Council have statutory powers to purchase steam-rollers, it would be absurd to argue that the use of steam-rollers in the work of road construction is not normal and proper. The plaintiff, however, alleges that the defendant Council was negligent in they did not exercise reasonable care in the manner in which they carried out the work. From the evidence it would appear that the soil underneath both the road and the plaintiff's premises is of a peaty nature. Expert witnesses called for the plaintiff gave it as their opinion that, by reason of the nature of the soil, the method of road-making adopted by the defendant Council was likely to cause and did cause injury to the plaintiff's premises. This danger, they said, would have been avoided if before putting the steam-roller to work a trench had been

made between the side of the road and plaintiff's premises, or if a concrete apron or platform had been put down between the roadway and the buildings. A third way of avoiding the risk of injury to the premises suggested was the diversion of the road at the point where it adjoined the plaintiff's premises. In my opinion it would be unreasonable to require the defendants to adopt this last-mentioned measure.

It was, however, the duty of the defendant Council to adapt their road-making methods to the existing conditions and circumstances. If either of the other two measures suggested would have been effective, it was the duty of the defendants to adopt one or other of them, and if injury was caused by their failure to do so in my view the defendant Council could properly be held responsible for the damage which ensued. The evidence that the steam-rolling operations caused damage to the premises was neither clear nor satisfactory.

While, as stated, the plaintiff's case was that the foundation of her premises suffered injury by reason of the passing of a steam-roller to and fro over the road surface fronting her premises, it was clear on the evidence that the main damage of which evidence was given was caused by the passage of heavy lorries laden with turf along the newly constructed road. It would seem that turf lorries commenced to use this road in the year, 1940, that is, before the roadmaking operations began. Their passage according to the evidence caused vibrations which were perceptible in the premises, causing glasses on the shelves to jingle. There were cracks in the cement floor of the shop portion of the licensed premises before the road was reconstructed.

After reconstruction the road was used by turf lorries which passed along it in considerable numbers. There was an interruption of this traffic for a period of some months in the early part of the year, 1944, caused by the closing of the road to enable work on a bridge to be carried out. The cracks in the buildings of which evidence was given were not observed till the month of May, 1944. It was not until then that the plaintiff discovered the damage to the premises. The plaintiff's case was that these cracks were due to a disturbance to the foundations caused by the use of the steam-roller in August, 1942. An elaborate scientific explanation was advanced by Mr. Noonan, one of the witnesses for the plaintiff, as...