State (Sheehan) v The Government of Ireland

JurisdictionIreland
JudgeMr. Justice Costello
Judgment Date29 July 1986
Neutral Citation1986 WJSC-HC 1751
CourtHigh Court
Docket Number1986 No. 305 SS.
Date29 July 1986

1986 WJSC-HC 1751

THE HIGH COURT

1986 No. 305 SS.
SHEEHAN v. IRELAND
THE STATE (AT THE PROSECUTION OF CHRISTOPHER SHEEHAN)
PROSECUTOR

AND

THE GOVERNMENT OF IRELAND
RESPONDENT

Citations:

BOLAND V AN TAOISEACH 1974 IR 338, 109 ILTR 13

CAHILL V SUTTON 1980 IR 269

CIVIL LIABILITY ACT 1961 S60

CIVIL LIABILITY ACT 1961 S60(1)

CIVIL LIABILITY ACT 1961 S60(7)

INLAND REVENUE COMMISSIONERS V NATIONAL FEDERATION OF SELF-EMPLOYED 1982 AC 617

IUDWC, R V RATHMINES UDC 1928 IR 260

MODERN HOMES LTD, STATE V DUBLIN CORPO 1953 IR 202

PADFIELD V MIN AGRICULTURE FISHERIES & FOOD 1968 AC 997

RSC APP T(8)

RULES OF THE SUPREME COURT (IRL) APP V(15)

RULES OF THE SUPREME COURT O.53 r3(5)

WADE ADMINISTRATIVE LAW 5ED P587

Synopsis:

GOVERNMENT

Duty

Performance - Enforcement - Mandamus - Statutory duty - Section of Act of 1961 made provision for imposing on road authority liability for damage caused by its failure to maintain a public road - Sub-section 7 stated that the section "shall come into operation" on such day (not earlier than 1/4/67) as may be fixed therefor by order of the Government - Failure of Government during 19 years to make appropriate order - Plaintiff suffered personal injuries when he fell on a public road in 1983 - Sub- section made provision that the section would not apply to damage arising before the section came into operation - Plaintiff wrote to Government on 31/1/86 requesting them to make appropriate order - Request ignored - Plaintiff claimed an order of mandamus compelling the Government to make the appropriate order - ~Locus standi~ of plaintiff disputed by respondent - Held that the plaintiff had sufficient ~locus standi~ to maintain his claim - Held that sub-s.7 of s.60 of Act of 1961 imposed on the Government a duty to make an order, within a reasonable period after 1/4/67, bringing s.60 into operation - Held that such reasonable period had elapsed - Held that an order of mandamus should be issued against the Government - Civil Liability Act, 1961, s.60 - (1986/305 SS - Costello J. - 29/7/86) [1987] IR 550

|The State (Sheehan) v. Government of Ireland|

JUDICIAL REVIEW

Mandamus

Government - Duty - Failure to activate enactment - Civil Liability Act, 1961, s.60 - ~See~ Government, duty - (1986/305 SS - Costello J. - 29/7/86) [1987] IR 550

|The State (Sheehan) v. Government of Ireland|

PRACTICE

Parties

~Locus standi~ - Statute - Section not in operation - Sub-section making provision for activation of section - Prosecutor obtaining mandamus to compel activation of section - Civil Liability Act, 1961, s.60 - (1986/305 SS - Costello J. - 29/7/86) [1987] IR 550

|The State (Sheehan) v. Government of Ireland|

STATUTE

Section

Operation - Postponement - Provision for activation of inoperative section contained in sub-section of that section - Civil Liability Act, 1961, s.60 - (1986/305 SS - Costello J. - 29/7/86) [1987] IR 550

|The State (Sheehan) v. Government of Ireland|

Mr. Justice Costello
Mary P. O'Donoghue Registrar
1

Mr. Christopher Sheehan (the prosecutor herein) fell on the footpath at Cathedral Road, in the city of Cork on the 18th June, 1983. He fractured his arm in the fall and instituted proceedings in the Cork Circuit against the Cork Corporation claiming £15,000 damages for negligence. The Corporation has denied that it was negligent or that there was "misfeasance" on its part. There presently exists in the law relating to the liability of road authorities for defects in public roads and footpaths a distinction between misfeasance and non feasance. If an authority commits a positive act of negligence in the contruction of a footpath or in its maintenance (that is, an act of misfeasance), it is liable to a person injured thereby. But if it merely fails to maintain a footpath so that it falls into disrepair (that is, is guilty merely of non-feasance) it is not liable to someone injured due to its lack of repair. The plaintiffs advisers were aware of this distinction in the law, a distinction which means that Mr. Sheehan's claim will fail if the only wrongful act to be established against the Corporation was a failure to repair. They were also aware that provisions to amend the law in this connection were contained in the Civil Liability Act enacted as long ago as 1961. Section 60(1) of that Act provided that

"A road authority shall be liable for damage caused as a result of their failure to maintain a public road"

2

but subsection (7) had postponed the operation of subsection (1) by providing that

"This section shall come into operation on such day, not earlier than the 1st day of April, 1967, as may be fixed therefore by order made by the Government".

3

The 1st April, 1967 has come and gone and in the intervening nineteen years no order has been made under the section, the law has remained unreformed and the Cork Corporation, like other road authorities throughout the country, enjoys immunity from liability for defects in public highways arising from its failure adequately to maintain them. On Mr. Sheehan's behalf, Mr Riordan, his solicitor, wrote on the 31st January 1986 to the secretary of the government requesting that the government make an order under subsection (7) bringing section 60 into operation. He was told by letter of the 4th February that the matter had been referred to the Department for the Environment.

4

Thereafter he heard nothing further and assumed (an assumption which has not been challenged) that his request had been turned down. He then obtained a conditional order of mandamus directing the government to make an order fixing the day on which section 60 is to come into operation. Cause has been shown by the government and I must now decide whether the conditional order should be made absolute.

5

There are two preliminary points taken as to the jurisdiction of the court to make an order of mandamus in this case. Firstly, it was submitted by Mr O'Keeffe on behalf of the respondents that in no circumstances could an order for mandamus be made against the government,a submission based, apparently, on the proposition that in English law since a prerogative order emantes from the crown it cannot lie against the crown. But there is bo analogy between the law of Ireland and England on this topic. An order of mandamus made now by-an Irish court is not a prerogative writ of mandamus which ,before the establishment of the State, was the means by which the courts enforced observance of statutory duties (compare the forms contained in Appendix V No. 15 of the 1905 Rules with Appendix T No. 8 of the 1962 Rules). And under the Constitution the government which it establishes is not the successor to the crown. There is no constitutional reason, therefore, which would prohibit the making of an order of mandamus against the government.

6

Secondly, it was argued that an order by the government under section 60(7) bringing the section into operation was an "executive function" and that the court had no jurisdiction in this particular case to order that such a function be performed. In support of this submission reliance was placed onBoland v. Ireland (1974) I.R. 338. That case related to a communique issued by the Irish and British governments after a conference in Sunningdale in which reference was made to the proposed signing of a formal agreement by the two governments incorporating certain...

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