Jennifer O’Connell: We are world experts at anomalies, fudges and blind eyes

Listening to all the disquiet about the anomalies in the Covid reopening plan, anyone would think this was new and unfamiliar territory for us. In reality, we’re world experts at anomalies, fudges, unhappy compromises, acts of hypocrisy and blind eyes. Long before there was a plan called Living with Covid, we abided by an unofficial constitution entitled Living with Anomalies.

Rule number one: don’t talk about the anomalies or you might have to address them. Rule number two: never carry a can that can be kicked down the road.

Take an anomaly outlined in the Court of Appeal this week, which shed light on both a 60-year-old legal fudge and some of the dysfunctional attitudes to accountability in this country.

The court was ruling on the case of cyclist in Co Clare who came off his bike on a concrete ramp at a cattle grid on a public road. The ramp had broken away and left a gap, causing him to seriously injure his ankle. He successfully sued the county council and was awarded €140,000, which was subsequently reduced to €113,000. The council appealed, and last week the award was overturned.

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Listen to what the judge, Mr Justice Seamus Noonan, who found "with considerable regret" in favour of the council, said about this. One instinctively feels a remedy ought to be available to members of the public for negligence of a public body, he said. However, 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.

You might speculate that our post-colonial hangover has left us with low expectations of the institutions that are supposed to serve us

Absorb that for a moment. In effect, the law incentivises the authority, in this case the county council, to not do its job. As long as it ignores the problem, it’s not responsible. Liability only occurs if it attempts to fix it, and an accident happens anyway. Much safer, then, to turn a blind eye.

You might think this is a uniquely Irish solution to the recent problem of rising personal injuries awards. In fact, it's an ancient English one; the rule of non-feasance was established by the English courts in 1788, which have long since abolished it. In 1961, legislation was passed to remove the anomaly here, while striking a fair balance between "those using the roads and those whose financial responsibility it is to maintain the roads", as a spokesperson for then minister for justice Charlie Haughey put it. The section was to come into operation no sooner than 1967 to give the authorities time to get the roads repaired.

Fast forward 60 years and we're still waiting; 1967 came and went. In 1986, an order was won against the government requiring it to enact the relevant section, but it was subsequently overturned by the Supreme Court. In 1993, the Roads Act preserved this absurd anomaly. How has this farcical situation, where the local authority is better off doing nothing about a potential public danger, been allowed to stand for 60 years?

The answer is the same as always. Money. As Mr Justice Noonan put it, the rule is often seen as anomalous, and perhaps ought to be re-evaluated, but this is beyond the competence of the courts. Remedying it would have huge significance for the exchequer. Successive governments have determined it’s better to kick the can down the road and pretend not to notice all the potholes.

A more relevant question is why taxpayers put up with it. There’s not much appetite to enact legislation that might fuel so-called compo culture, it’s true, but having safe and well-maintained roads is an issue of public safety. You might speculate that our post-colonial hangover has left us with low expectations of the institutions that are supposed to serve us. This is why we accept the sewage swirling in swimming spots or the mattresses dumped in ditches as unfortunate, but inevitable, facts of life.

With no legal remedy for the affected homeowners, a political solution to the mica crisis will be found – which is only right, because this was a systems failure

But blaming it on some lethargy inherent in the Irish psyche ignores the structural factors at play. Ireland has the weakest local government of any country in Europe, thanks to successive governments stripping power from local authorities. A 2019 research paper by Dr Mary Murphy of Maynooth University found that only 8 per cent of Irish public spending occurs at local level, compared to an EU average of 23 per cent.

There are real world, urgent and devastating consequences that can arise from having a toothless and under-resourced local authority. Just ask the people of Donegal, Mayo and Clare, whose homes are crumbling due to defective building materials. During the period when the majority of the now-deteriorating blocks were produced, it was up to manufacturers to declare their products fit for purpose, while local authorities were responsible for overseeing market surveillance.

“Enforcement action... was generally carried out on a reactive basis... on foot of information received from complaints,” the 2017 report of the Expert Panel on Concrete Blocks states. The report “does not consider it was reasonable” to expect local authorities to have prevented the problems from occurring – even though, strictly speaking, that was their job – since they never had the technical expertise or the budget to proactively test products. This system of self-certification and light-touch regulation was, it turns out, as safe as houses. You can take a drive up the Inishowen peninsula today and see the results for yourself.

With no legal remedy for the affected homeowners, a political solution to the mica crisis will be found – which is only right, because this was a systems failure. There’s no 1788 get-out clause for the Government this time. Ultimately, taxpayers will be left to pick up the bill. We’re a great little country for the anomalies, fudges and blind eyes, until something goes wrong.