McCabe v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 18 November 2014
• Neutral Citation: [2014] IEHC 529
• Court: High Court
• Date: 18 November 2014

[2014] IEHC 529

THE HIGH COURT

[No. 290 CA/2012]

McCabe v South Dublin Co Council

BETWEEN/

ZARA McCABE

PLAINTIFF

AND

SOUTH DUBLIN COUNTY COUNCIL

DEFENDANT

ROADS ACT 1993 S2

ROADS ACT 1993 S11

ROADS ACT 2007 S6

MCMAHON & BINCHY LAW OF TORTS 4ED 2013 1026-1028

SHEEHAN, STATE v GOVT OF IRELAND 1987 IR 550 1986 8 1751

KELLY v MAYO CO COUNCIL 1964 IR 315

LOUGHREY v DUN LAOGHAIRE CO COUNCIL UNREP CROSS 23.11.2012 2012/23/6580 2012 IEHC 502

RUSSELL v MEN OF DEVON 100 ER 359 1788 2 D & E 667

WADE & FORSYTH ADMINISTRATIVE LAW 10ED 2009 755

O'BRIEN v WATERFORD CO COUNCIL 1926 IR 1

CIVIL LIABILITY ACT 1961 S60(1)

CONSTITUTION ART 50.1

LOCAL GOVERNMENT (IRELAND) ACT 1898

Tort – Damages & Restitution – Personal injury – S. 2 of the Roads Act 1993 – Distinction between misfeasance and non-feasance

Facts: The plaintiff in the present proceedings had challenged the decision of the court that the defendant was not guilty of breach of negligence. The plaintiff having caught her foot into an opening contended that the defendant was duty-bound to maintain the premises.

Mr. Justice Gerard Hogan refused to set aside the impugned order and held that the defendant was not guilty owing to non-feasance. The Court held that the concerned authorities would be liable for personal injuries only under misfeasance, that is, negligence to do repairs, but not for want of repair of a road. The Court held that in the present case the defendant did not repair the opening at all or even if they had, it had been tempered by unknown persons, and hence, the defendants were not liable. The Court nevertheless expressed dismay over the way the distinction was drawn between misfeasance and non-feasance.

1 1. This is an action for personal injuries arising from an incident which took place on 2 ^nd June 2009 when the plaintiff's foot became caught in an opening in the surface of a footpath as she walked along Brookview Drive, Tallaght, Dublin 24 sometime around 11pm that evening. It is not in dispute but that as a result of the incident Ms. McCabe fell on her right hand and banged her head. The fundamental question which arises in this appeal from the Circuit Court is whether the local authority in question, South Dublin County Council, is liable in negligence for these injuries or whether it can invoke the traditional rule of immunity for non-feasance for this purpose.

2 2. The extent of the plaintiff's injuries are not seriously in doubt. Following the incident the plaintiff was in pain and was removed to Tallaght Hospital. She was later treated as an out-patient at South Tipperary General Hospital, Clonmel, Co. Tipperary. It transpired that Ms. McCabe suffered a minor fracture of her hand which required the application of a cast. The cast was removed after about a month and the injury had largely healed. While the plaintiff has certainly suffered pain and discomfort, she fortunately did not suffer any major long-term adverse effects. It must be acknowledged, however, that the injuries continue to affect her grip, her capacity to lift her young children or in using her computer. In addition, Ms. McCabe often suffers discomfort in her right hand in cold weather.

3 3. The dimensions of opening in question were about 8cm. by 8cm. and it was situate on the footpath opposite No. 12 Brookview Drive. The opening in question was missing its stopcock cover. It is clear from the very helpful photographs which were supplied by the plaintiff's engineer, Mr. Jack O'Reilly, that the opening presented a danger to the public at the time of the incident in question.

4 4. In passing, I would totally reject the suggestion made by the Council to the effect that there was some element of contributory negligence on the part of the plaintiff inasmuch as it was suggested that she was speaking on a mobile telephone at the time of the incident and that she did not keep a proper look-out as a result. While pedestrians, like all road-users are required to act prudently and reasonably and to keep a proper look-out, the perfectly common act of using a mobile telephone while walking on a footpath cannot in itself be regarded as amounting to contributory negligence. This is especially so given that the opening itself and its location was apt to catch any user of the footpath unawares.

5 5. Before considering any of the legal issues which arise, the underlying facts must first be considered.

6 6. It is common case, however, that when the existence of the opening was drawn to the Council's attention in July 2010, a joint inspection followed involving the plaintiff's engineer, Mr. O'Reilly, and Council personnel. It is agreed that the stopcock cover was found to be absent and a replacement cover was satisfactorily inserted a few days later on 30 ^th July 2010. But what was the position before that date?

7 7. The Council's records establish that in November 2006 a variety of stopcock covers were repaired on Brookview Drive, including the stopcock cover at No. 12. There is a clear documentary record - which was confirmed in oral evidence by Mr. Brendan Kelly ndash; to the effect that on 13 ^th December 2006 the re-instatement work was inspected and found to be acceptable. Mr. Kelly expressly gave evidence to the effect that he would not have recorded this fact without having personally inspected the works to see that they were in order. I fully accept Mr. Kelly's evidence in this regard.

8 8. In 2007 the Council commissioned a road asset condition survey in respect of all the roads and footpaths within its functional area. The object of this survey was to identify those roads and footpaths which were thought to be in need of repair. While the survey described the footpaths in Brookview Drive as being in a "medium" state of repair, the only potential hazards which were identified was a broken water valve outside No. 24 and what was described as a "patch" outside No. 23. Critically, however, no missing stopcock cover was found outside No. 12.

9 9. While the principal author of the report is now, sadly deceased, the accuracy of the report was not seriously challenged at the hearing. We can therefore proceed that as of the date of the survey in 2007 the stopcock cover was not missing.

10 10. In January 2009 the Roadworks Control Unit of the Council received a complaint that a stopcock cover was missing outside No. 12 Brookview Drive. The Council then took steps to repair the cover and it appears that this was done on 13 ^th February 2009. It is true that, unlike the re-instatements which took place in November 2006 and in July 2010, the Council could not produce a direct documentary record of the repair and reinstatement which was said to have taken place on that occasion. Yet there is a clear record of the report and the day book sheets (which are a form of daily record of general work done) shows that the water maintenance section were engaged in general maintenance in the Brookview area on that day.

11 11. How, then, did it come to pass that there was such an opening outside No. 12 Brookview Drive in early June 2009? Two possibilities suggest themselves. First, there is the possibility that the opening was not actually repaired in February 2009, whether through oversight or otherwise. Second, there is the possibility that the opening was in fact repaired by the Council, but that before the concrete could set, the opening was removed or tampered with as a result of anti-social behaviour on the part of unknown third parties.

12 12. In this connection it must be observed that Mr. Derek Sergeant, a senior executive engineer attached to the Council's water department, gave evidence that there were in fact significant problems of anti-social behaviour involving the removal of the stopcock covers. Mr. Sergeant stated that these covers were very easily removed while the concrete is still fresh. The plaintiff's...