County council loses appeal in damages case

THE burden of a case which was in essence a dispute between two local authority defendants would ultimately fall on the public…

THE burden of a case which was in essence a dispute between two local authority defendants would ultimately fall on the public, and it was regrettable they would have to bear the costs of what seemed unnecessary litigation, a Supreme Court judge said yesterday.

Mr Justice Keane was giving judgment in a case taken by Mr Vincent Merriman, who was injured when walking to his home in Drumcairn Avenue, Tallaght, in July 1986. He put his foot into an open gully, fell forward and hurts his back.

Mr Merriman issued proceedings against Dublin Corporation, claiming damages for negligence and breach of duty. The corporation sought to join Dublin County Council as defendants. The corporation and county council claimed contributions against each other under the Civil Liability Act, 1961.

The Supreme Court dismissed an appeal by the county council against a High Court award of £10,000 to Mr Merriman.

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The place where the accident happened was in the functional area of the county council. It was, however, in an estate of houses, roads and other infrastructural works which had, been constructed by the corporation in its capacity as a housing authority.

The requisite permissions and approvals under planning legislation had been given for all these works by the county council, but at the date of the accident the roads had not been "taken in charge" by the county council.

In the High Court it was held that the corporation did not owe any duty of care to Mr Merriman. However, the judge decided the council was liable since the gully formed part of a sewer which was vested in the council at the time of the accident and which it was obliged to keep in repair. He ruled that Mr Merriman was entitled to damages against the council of £10,000. The county council appealed that decision.

Mr Justice Keane said there was no evidence in this case, that the gully or grille were designed or constructed in a defective manner.

As a result, once the houses and infrastructure had been completed, the corporation was in the same position as any private developer aid was under no continuing obligation to maintain or repair the infrastructural work, save to the extent that that obligation was imposed on it by statute, in its capacity as a local authority.

He was satisfied, the High Court judge was correct in concluding it was a sewer vested in the county council as the sanitary authority, and it was under a duty to keep it in repair.