The Court of Appeal (CoA) has overturned a €113,000 High Court damages award to a man who suffered an ankle injury after falling off his bicycle when he went over a broken concrete ramp which overlapped a cattle grid.
Edward O’Riordan was 64 when the accident happened while he was out for a cycle near his home in Shannon, Co Clare on August 3rd, 2014.
He suffered a serious injury to his left ankle and had sued Clare County Council and Response Engineering Ltd.
The High Court awarded €140,000 in 2019, but reduced the sum 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 run by 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.
It was argued that there was no evidence that the council had carried out a survey at the time of the transfer and nothing was done by it to the cattle grid or a concrete ramp which broke away and created the one inch drop that led to Mr O’Riordan’s fall.
The council appealed the High Court decision and Mr Justice Séamus Noonan, on behalf of the three-judge CoA, on Tuesday said the court would “with considerable regret” allow the appeal and overturn the award.
He said it was “impossible” not to feel considerable sympathy for Mr O’Riordan, who was engaging in a healthy leisure pursuit when an accident, largely not of his making, befell him and had a permanent and serious impact.
The judge 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, while the ancient rule of non-feasance, where a roads authority is not liable in such a case, had been abolished in England, it still holds sway in Ireland.
“Perhaps it is time for it to be re-evaluated, but such is now beyond the competence of the courts”, he said.
Earlier, Mr Justice Noonan said the legal authorities on non-feasance demonstrate that the rule concerning liability for it 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, and the High Court had said it was unfair and perhaps even unconscionable in some respects, he said.
“It sits ill with modern concepts of negligence and culpability”, he said.
The rule means, even when a highway authority knows, or ought to have known, of a danger on the highway and has been repeatedly and explicitly informed of it, it has no liability for a failure to intervene, assuming of course it did not create the danger in the first place, he said.
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 can dislodge it, he said.
Although it is 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”.
Adjourning costs issues, the judge urged the council, given the important point of principle in this case, not to seek costs against Mr O’Riordan.