A €113,000 High Court award to a man who fell off his bicycle when he went over a broken concrete ramp overlapping a cattle grid has been overturned by the Court of Appeal.
Edward O'Riordan was 64 when the accident happened while he was out for a leisurely summer cycle near his home in Shannon, Co Clare, on August 3rd, 2014. He suffered a serious injury to his left ankle.
He sued Clare Co Council and Response Engineering Ltd. In 2019, Mr Justice David Barniville, then of the High Court, awarded €140,000 but reduced it to €113,404, after finding Mr O'Riordan guilty of contributory negligence.
The court heard the cattle grid, part of the road to the factory of the synthetic diamond-materials manufacturer, De Beers, was built by the Shannon Development Authority whose functions, including responsibility for roads, were transferred to the council in 2004.
There was no evidence the council carried out a survey at the time of the transfer and nothing was done by the council to the cattle grid or a concrete ramp which broke away and created a one-inch drop which led to Mr O'Riordan's fall.
The council appealed the High Court decision and on Tuesday, Mr Justice Seamus Noonan, on behalf of the three-judge Court of Appeal "with considerable regret" allowed the appeal and overturned the award.
Mr Justice Noonan said it was impossible not to feel considerable sympathy for Mr O'Riordan who was engaging in a healthy leisure pursuit when an accident befell him which was largely not of his making and had permanent and serious repercussions for him.
He said one instinctively feels that a remedy ought to be available for someone like Mr O'Riordan for the negligence of a public body.
However, the ancient rule of non-feasance - where a roads authority is not liable in a case like this - has been abolished in England where it originated but still holds sway in this jurisdiction, he said.
"Perhaps it is time for it to be re-evaluated, but such is now beyond the competence of the courts," he said.
Earlier, he said the legal authorities on non-feasance demonstrate that the rule concerning liability for non-feasance extends to all forms of civil liability and is not confined in its operation to causes of action founded on negligence as distinct from public nuisance.
The rule is often seen as anomalous, as it was in this case when it was in the High Court and the judge their found it unfair and perhaps even unconscionable in some respects, he said.
"It sits ill with modern concepts of negligence and culpability," he said.
Therefore, for example, even in circumstances where a highway authority not only knows, or ought to have known, of a danger on the highway but has been repeatedly and explicitly informed of it, it remains the position that it has no liability for a failure to intervene, assuming of course it did not create the danger in the first place, he said.
"Nor does a highway authority have any duty to warn because, as a previous judgment found, “travellers had to look out for themselves.”
The rule is so firmly entrenched in our law that nothing short of statutory intervention of the kind contained in the 1961 the Civil Liability Act, 1961 can dislodge it, he said.
However, 60 years since that Act was passed, the relevant section has not been commenced in law which speaks to its "huge significance for the Exchequer".
If anything, far from being reversed by statute, it was expressly preserved in the 1993 Roads Act which stated nothing in that Act affected the law in relation to liability for a road authority for failure to maintain a public road.
He said the issue of costs will be dealt with later if necessary, but he urged the council, given the important point of principle in this case, not to seek the costs of these proceedings against Mr O'Riordan.