Harbinson v County Council of County Armagh

Judgment Date18 January 1902
Docket Number(1901. No. 1.)
Date18 January 1902
CourtKing's Bench Division (Ireland)
County Council of County Armagh (1).

K. B. Div.

(1901. No. 1.)











Negligence—Liability of local authority for non-repair of a highway—County council—Local Government (Ireland) Act, 1898, sections 4 and 82.

A county council, as the local road authority, is not liable at common law in an action for damages for injury caused by negligent omission on their part to repair a highway under their control; nor is such immunity altered by the provisions of the Local Government (Ireland) Act, 1898, sections 4 and 82, imposing upon a county council new and additional obligations in respect of the maintenance and repair of highways.

New Trial Motion.

This action was brought by the plaintiff for damages for personal injuries, and for injuries to his horse and car, sustained by reason of the defendants' alleged negligence in maintaining a road in their county. It was tried before Mr. Justice Barton and a special jury at the Belfast Summer Assizes, 1901. On the 30th of March the plaintiff was driving into Portadown with a horse and cart laden with eggs. When passing over a bridge or culvert, where the public road crossed a small stream, the horse put his foot into a hole and fell; the cart was broken, and the plaintiff was seriously injured. the evidence was to the effect that this hole in the crown of the bridge or culvert was caused by a stone in the arch of the bridge falling out of its place, with the result that the surface of the road had sunk in. This had occurred

within twenty-four or forty-eight hours prior to the accident. No evidence of any active misfeasance by the defendants or their employees was offered. At the close of the plaintiff's case, counsel for the defendants asked for a direction, but the learned Judge declined to direct. For the defendants the county surveyor and other witnesses were called. From their evidence it appeared that this particular road was in the surveyor's charge, no tenders having been sent in for the contract for its maintenance. There never had been anything wrong with this bridge for the last fifteen or sixteen years. A surface man had been over the road examining it on the 11th March. Since the accident the defendants had rebuilt the bridge. The surface man had been there on March the 29th, and (it was stated) there was no hole in the bridge at that time. The following questions were left to the jury:—

1. To what damages (if any) is the plaintiff entitled?—Ans. £225.

2. Was the damage caused by mere wearing out or non-repair of the road, or by the dangerous condition of the culvert?—Ans. By the dangerous condition of the culvert.

3. Was the culvert originally properly constructed having regard to the traffic at that time?—Not answered.

4. Was the damage caused by the negligence of the defendants in allowing the culvert to remain in a condition which was dangerous having regard to the traffic which they knew or ought to have known the culvert would have to bear?—Ans. Yes.

5. Was the culvert at the point where the accident occurred in a dangerous condition on the day before the accident, and were the defendants guilty of negligence in having allowed it to remain in that dangerous condition until the accident happened in consequence of such dangerous condition?—Ans. Yes.

Upon these findings the learned Judge gave judgment for the plaintiff for £225 and costs. He stated in his report that the plaintiff had undoubtedly suffered considerable injuries and loss, but that serious legal difficulties were in his way having regard to the authorities. In putting questions to the jury, his Lordship had in mind Russell v. Men of Devon (1); Cowley v. Newmarket

Local Board (1); Municipality of Bathurst v. Macpherson (2); Municipal Council of Sydney v. Bourke (3); and Victoria Corporation v. Patterson (4). After the jury had retired, counsel for the defendants objected to the fourth question left to the jury, and asked his Lordship to direct that under no circumstances could there be an obligation on the defendants to strengthen a bridge in accordance with the increase of traffic. His Lordship declined so to direct. He stated that he had not directed to the contrary, but had left the question of fact to the jury, so that the Court might be able to judge as to the legal effect of the answer. His Lordship pointed out that the fifth question and finding, on which the plaintiff's counsel seemed principally to rely, related to an independent and subsequent alleged breach of duty. As to the third question, he considered that the jury acted reasonably in refraining from answering the third question, as there was little, if any, evidence of any breach of duty imputable to the defendants in reference to the construction of the bridge. His Lordship was not asked to leave any other question to the jury.

The defendants now moved that the verdict and judgment be set aside, and that judgment be entered for the defendants on the grounds (a) that the statement of claim did not disclose any sufficient cause of action; (b) that on the pleadings and evidence the Judge should have directed a verdict for the defendants, or, in the alternative, that a new trial be ordered on the ground of non-direction and mis-direction, and that the verdict was against evidence.

S. L. Brown, K.C., and C. Murphy (Gordon, K.C., with them), for the defendants.

O'Shaughnessy, K.C., and Chambers (The Solicitor-General (Campbell, K.C.) with them), for the plaintiff.

Cur. adv. vult.

S. L. Brown, K.C., and C. Murphy (Gordon, K.C., with them), for the defendants.

O'Shaughnessy, K.C., and Chambers (The Solicitor-General (Campbell, K.C.) with them), for the plaintiff.

Lord O'Brien, L.C.J.:—

This case is one of very considerable importance. The plaintiff sustained serious injuries by reason of a public road, the maintenance and repair of which was imposed by the Act of 1898 upon the defendants, being out of repair. It is admitted that the road was out of repair, and the question is whether the defendants, the County Council of county Armagh, can be made amenable in damages for the injuries sustained. If the cause of the injuries was mere omission on the defendants' part to repair the road, and not any act of commission by them, then upon the authorities the defendants are not responsible, unless the Local Government Act creates some new or added liability making them responsible as well for the consequences of omission on their part as for the consequences flowing from acts of commission.

It, therefore, becomes necessary to examine the facts, in order to ascertain whether the injuries sustained were the consequence of non-feasance on the defendants' part or in the nature of a positive act by them causing the injuries. If we find that there were such acts of commission on the part of the defendants, and that these were the efficient cause of the injuries, we need go no further. If, on the other hand, it appears that there was nothing more than non-feasance on their part, it becomes necessary to examine the Act of Parliament to see if any added liability be thereby imposed. If there be none, verdict and judgment must be entered for the defendants.

I shall later on have to say some few words in reference to the decisions that have been pronounced on the subject; in the first instance, however, I proceed to examine the facts. On Saturday, the 30th March, 1901, at about 9.30 a.m., the plaintiff, a grocer and farmer, who lived some four miles from Portadown, was proceeding into that town with a horse and cart with eggs to sell. When passing over a certain bridge, where the road crossed a small stream, the horse put his foot into a hole, which undoubtedly was in the crown of the bridge. The horse plunged, and the result of his efforts to recover himself was that he fell the cart was broken, and the plaintiff sustained injuries admittedly of a very grave character. The accident is very succinctly described in the plaintiff's evidence. He states: “I had a valuable trap, a school-cart, a large one. I left home about 8.30. I know where the stream is in the townland of Drumakelly. There is a bridge there; a river or stream runs under it. There was a hole in the bridge; the horse went down into it with his off foreleg as far as the shoulder; the horse fell on his face and hit his jaw; his knees were broken; the trap was broken; nothing was left but the wheels; everything was smashed. On that side of the county road there is no fence for about 19 yards, and there is a great big pool at the side like an old flax-hole. The road was eaten away, or slid away by cattle. No repairs had been done to it for a long time. When the horse went into it, he made an effort to get out, and plunged forward; at the second effort he went down, with the trap and all and myself, into the pond at the side of the road. I was injured in the back, on the left side, and across the back. I fell forward in front of the boxes of eggs. The boxes all fell over me—a minute did it all. I was in bed about a month.”

The next material witness is George Barraskill. He was examined for the plaintiff, and stated that about six o'clock on the previous evening, Friday, he was down at the place where the accident occurred, and that he saw the hole in the bridge. He stated that the hole was about the size of the opening of a zinc basket.

The next material witness was a man named M'Clatchey. He stated that he worked in a factory, and crossed this bridge night and morning when going to and from his work. He said that he remembered the day on which the accident had occurred to the plaintiff; that on the evening before he had his hand in the hole; that Barraskill had shown it to him; that the bottom of a zinc basket could have been put into it; that the surface was broken for a width of...

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