Edward O'Riordan v Clare County Council and Response Engineering Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 19 October 2021
• Neutral Citation: [2021] IECA 267
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/305

Between/

Edward O'Riordan

Plaintiff/Respondent

and

Clare County Council and Response Engineering Limited

Defendants/Appellants

[2021] IECA 267

Noonan J.

Faherty J.

Collins J.

Record Number: 2019/305

High Court Record Number: 2015/9346P

THE COURT OF APPEAL

Injury – Liability – Damages – Appellant appealing against damages award – Whether the appellant was liable

Facts: The plaintiff/respondent, Mr O’Riordan, lived in Shannon. On the 3rd of August, 2014, he went out for a leisurely cycle which took him down a public road. There were several cattle grids along the road and as the plaintiff cycled over one of those, he fell from his bicycle and suffered a serious injury to his left ankle. The High Court held that the first defendant/appellant, Clare County Council, was liable and awarded damages to the plaintiff. The Council appealed to the Court of Appeal against the €113,404.87 damages award for personal injuries. The appeal concerned the liability of the Council for such a danger on the highway which caused injury to the plaintiff.

Held by Noonan J that the trial judge had erred in law by holding that the Council was liable for not maintaining the highway. Noonan J held that the “ancient non-feasance rule” which limited liability against a highway authority was still applicable and, accordingly, the damages award was overturned.

Noonan J held that he would allow the appeal, set aside the order of the High Court and dismiss the plaintiff’s claim. Noonan J’s provisional view was that as the Council had been entirely successful in the appeal, it should be entitled to its costs in the Court of Appeal and the court below.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 19th day of October, 2021

1 . Liability for dangers on the highway has been the subject of litigation for centuries. It has given rise to the well-known and long settled distinction between misfeasance and non-feasance. In cases of the former, the highway authority may be liable, but in the latter, it is not. This appeal concerns the liability of the highway authority, in this case the appellant, Clare County Council (“the Council”), for such a danger on the highway which caused injury to the respondent (“the plaintiff”). The High Court held that the Council was liable and awarded damages to the plaintiff.

Relevant Facts

2 . The facts and evidence are set out in considerable detail in the judgment of the High Court and a brief synopsis will suffice for the purposes of this judgment. The plaintiff was, at the relevant time, 64 years of age and lived in Shannon. As described by the trial judge, Sunday the 3rd of August, 2014 was a fine summer's day and sometime around mid-day, the plaintiff went out for a leisurely cycle which took him down a public road known locally as the “Diamond Road”, so called because a facility owned by the DeBeers company was located at the end of the road. There were several cattle grids along the road and as the plaintiff cycled over one of these, he fell from his bicycle and suffered a serious injury to his left ankle.

3 . The cattle grid in question was different from the others on the road in that, as one approached it as the plaintiff did, it was preceded by a concrete ramp, something akin to a small speed bump, although its actual purpose was never established during the course of the five day hearing in the High Court. The cement ramp appears to have been laid immediately adjacent to the cattle grid so that some of the concrete overlapped the first bar of the grid. At some unknown time, part of the overlapping concrete broke away leaving behind a 1 inch drop from the ramp onto the cattle grid. This was found by the judge to be the cause of the plaintiff's fall.

4 . It was common case that neither the ramp nor the cattle grid was constructed by the Council. In fact, the Council first acquired the roadway from a public entity known as Shannon Development which transferred all its assets to the Council in 2004. Those assets apparently included land, roads, footpaths, open spaces, waste water treatment plants, pumping stations storm and foul water systems among more. The transfer was described in evidence as the largest property transfer in the history of the State. It appears that the road in question together with the cattle grid and ramp was constructed by Shannon Development.

5 . As I have said, the transfer took place in 2004 but in what manner it was effected was never established in evidence in the High Court. This court was informed at the hearing of the appeal that the transfer appears to have taken place by way of formal deed as opposed to by statute or statutory instrument, though no such deed was put before the High Court or this court. Ultimately nothing turns on that. Some years subsequent to the transfer, in 2011 the road was designated a public road by the Council which appears to have been done pursuant to s.11 of the Roads Act, 1993.

6 . The evidence established that where private property is taken in charge by a local authority, for example the roads and footpaths in a housing estate constructed by a private developer, it is normal for the relevant council to carry out a survey of the property prior to it being taken in charge. In the present case, none of the witnesses who gave evidence for the Council were in a position to confirm that such a survey had been carried out and rather surprisingly, it emerged that no real effort appears to have been made to establish that fact. There was, however, no issue about the fact that from the time of the transfer in 2004, nothing was none by the Council to the cattle grid or concrete ramp. It is also relevant to note that while the identified hazard was the 1 inch drop created by the breaking away of the concrete that overlapped the cattle grid, the evidence never established when this event occurred. Thus, it could have happened prior to 2004, between 2004 and 2011, or at any time after 2011 up to the time of the plaintiff's accident.

Decision of the High Court

7 . The judge first set out the evidence on liability from both sides. He then set out his findings of fact on the liability issues. He accepted fully the plaintiff's evidence and found him to be an honest and truthful witness. The plaintiff was cycling slowly and in a cautious manner when the accident occurred. The sudden and unexpected drop from the ramp to the cattle grid caused the plaintiff to lose control of his bicycle and fall. The judge was satisfied on the evidence that the cattle grid and concrete surround were likely to have been constructed or installed by Shannon Development, the Council's predecessor in title.

8 . He accepted the evidence of the plaintiff's engineer that laying concrete over the metal bar of the cattle grid is a defective and inappropriate method of construction. This rendered the concrete liable to be broken up with the passage of vehicular traffic over it, which was an entirely foreseeable consequence. The judge also considered that the ramp should have been set back a distance from the grid. He concluded that, both in respect of the defective manner of construction and the failure to locate the concrete feature a distance from the cattle grid, the concrete surround was defectively designed and constructed and created a danger or hazard to cyclists such as the plaintiff.

9 . The judge also held that it was likely that prior to the transfer of assets from Shannon Development to the Council, an inspection or survey of the condition of those assets had been carried out but it was possible that it did not go into the level of detail which would have picked up the defective features of the concrete surround of the cattle grid. He also expressed surprise that no one on behalf of the Council appeared to have undertaken a search of the archives to determine if a survey report existed.

10 . He found on the evidence that the Council was aware that people regularly walked and cycled, as well as drove motor vehicles, on this road, both for work and recreational purposes. He found it difficult to conclude other than that the Council was or must have been aware of the state of the cattle grid and, in particular, the concrete surround. He noted that prior to the plaintiff's accident, the plaintiff and many others had cycled over this cattle grid without apparent difficulty.

11 . The court then turned to a consideration of the legal issues arising, noting that the plaintiff's claim was advanced under two principal headings, first, that the Council was liable in its capacity as a road authority for misfeasance in respect of the condition of the cattle grid and secondly, that it was liable because the cattle grid amounted to a public nuisance. The judge noted that alternative and subsidiary claims were advanced both on foot of the Occupiers Liability Act, 1995 and the Roads Act, 1993.

12 . In considering these issues, the trial judge first turned to an analysis of the law relating to negligence and in particular misfeasance versus non-feasance. He described the Council's “immunity” from liability in the case of non-feasance, noting that this was abolished by s. 60(1) of the Civil Liability Act, 1961 but that section was never commenced. The immunity was preserved by s. 2(3) of the Roads Act, 1993. He then turned to an analysis of the authorities to which I will come in due course. On the issue of negligence, I think it is fair to summarise the trial judge's finding of liability against the Council as arising from the fact that they were the successors in title to Shannon Development who were negligent in constructing the cattle grid and concrete ramp.

13 . He held that this deprived the Council of the defence of non-feasance. He further based this conclusion on the fact that a survey at the time of transfer ought to have revealed the defect in the road....