Kelly v Mayo County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1965
• Date: 01 January 1965
• Court: Supreme Court

Kelly v. Mayo County Council.

FRANCIS KELLY, an infant, suing by his Father and Next Friend, John Kelly

Plaintiff

and

MAYO COUNTY COUNCIL

Defendants.

Supreme Court.

Negligence - Public nuisance - Liability - Alleged excessive user of highway by local authority - Damage to highway - Personal injures to cyclist using the highway.

The plaintiff was injured by being thrown from his bicycle when it got caught in a rut or pot-hole while he was cycling along the public road. For a number of weeks prior to the accident, the defendant County Council had being drawing stones and gravel in heavy lorries which were being driven along the road in question to a point further along the road where repairs were being carried out. The plaintiff sued the County Council as users of the public road, alleging that by excessive user they had damaged the road by creating the rut and had thereby created a nuisance. The trial Judge (Teevan J.), at the close of the case for the plaintiff. ruled that there was no evidence upon which the jury could properly find for the plaintiff. On appeal by the plaintiff to the Supreme Court it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery and Kingsmill Moore JJ.), dismissing the appeal, that the evidence adduced as to user of the road did not amount to nuisance.

Attorney-General v. Scott [1904] 1 K. B. 404 distinguished.

New Trial Motion.

The plaintiff, Francis Kelly, a boy aged fourteen years, was injured as a result of being thrown from his bicycle while cycling along the public road near his home in County Mayo. The bicycle got caught in a pot-hole about 1¹/₂ feet in length and six inches deep which was at the side of the road and which, it was alleged, was caused by the defendant County Council's excessive user of the road in drawing gravel in heavy lorries along the part of the road in question. The County Council were not sued as the highway authority, but as users of the road and the case was laid in negligence and nuisance. The facts have been summarised in the head-note and are fully set out in the judgment of Ó Dálaigh ó dálaigh C.J., post.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

This is a new trial motion. Mr. Justice Teevan, at the close of the evidence for the plaintiff, ruled that there was no case to go to the jury.

The plaintiff, a boy aged fourteen years, was injured by being thrown from his bicycle while cycling on the public road near his home in the County of Mayo. His bicycle got caught in a rut on the road and this caused him to be thrown to the ground. The rut was about 1¹/₂ feet in length and six inches deep. The case was laid in negligence and nuisance, but the defendant County Council were not sued as highway authority but as users of the public road. The allegation was that by excessive user they damaged the road and thereby created a nuisance.

For a number of weeks prior to the accident the defendant County Council had been drawing stones and gravel in trucks along the road in question to a point further on where certain repairs were being carried out. This user, it was said, had caused a pot-hole, of the dimensions already mentioned, to develop.

The clearest picture of what the plaintiff complained of is contained in the evidence of the witness, McMenamin. McMenamin, a County Council employee, had been engaged on the road repairs which were in progress at some distance from the scene of the accident, and, moreover, witnessed the accident to the plaintiff.

He describes the condition of the road on the day of the

accident by saying that there were a lot of pot holes and sludge; that there were two very large pot-holes, each 1¹/₂ feet in diameter and about six inches deep, situated at either side of a gullet; that they were full of water. He further says that before the County Council started hauling stones the road was in "fair nice order," with some pot-holes but not a lot, that the biggest of these pot-holes might be six inches long by two or three inches deep, that the lorries used by the County Council were six-ton lorries, making about ten journeys a day, but that a lot of the stones or gravel was brought to the scene of the repair work by a route other than that on which the plaintiff was injured and that some but not a lot of road material was brought by that route.

The gullet at one end of which the pot-hole which caused the plaintiff injury was situated had been repaired by County Council workers some time prior to the accident and by, among others, McMenamin. A trench had been dug across the roadway in carrying out this operation. McMenamin in his cross-examination said that the two deep pot-holes were on the gullet, i.e., as I understand the evidence, on the trench; and the clear inference therefore is that the pot-holes developed in this trench (see answers 945/948).

The interference with road surface in order to repair the gullet was not a matter which was within the knowledge of the plaintiff's legal advisers. No case was made in respect of it either in the High Court or in this Court.

But the evidence has in my opinion this importance: that it indicates that the pot-hole which developed was very probably as much, if not more, due to the condition of the road arising from the digging of the trench as to the effect of traffic.

The plaintiff's case was put upon the basis that the pot-hole in which the bicycle caught was due to the County Council's excessive user of the road and constituted a nuisance. Reliance was placed on Attorney-General v. Scott(1). There an action was brought by the Attorney-General at the relation of the Monmouthshire County Council and by the county council to restrain the defendant, Scott, from using locomotives on the public highway in such a way as by damage to cause a nuisance. The complaint against Scott was that in hauling stone by a traction engine of eleven tons and in two laden trucks he had so cut up a section of the main road as to...