Proving Misfeasance Against Local Authority For Defective Roads & Footpaths

29 Apr Proving Misfeasance Against Local Authority For Defective Roads & Footpaths

The Irish Courts have grappled with the thorny issue of the distinction between misfeasance and nonfeasance since the enactment of the Civil Liability Act in 1961 (the 1961 Act) which technically abolished the distinction, and which successive governments have not implemented.

The distinction has been defined by the Courts as follows:

“There at present exists in the law relating to the liability of road authorities for defects in public roads and footpaths a distinction between misfeasance and nonfeasance. If an authority commits a positive act of negligence in the construction 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 guilty merely of nonfeasance) it is not liable to someone’s injuries due to its lack repair”¹.

The Supreme Court had previously ruled to similar effect setting out the distinction between highway authority being liable in damages for injuries suffered by a road user “if they have been negligent in doing repairs“ and “not liable where injuries are caused by want of repair to a road”².

In the High Court decision of Zara McCabe v South Dublin County Council (SDCC)³, Judge Hogan as he then was in the High Court examined the case law in this area. The circumstances of the case surrounded an injury to the Plaintiff’s foot caught in the surface of a footpath where the extent of the injuries were not in doubt, nor was the defect in the footpath. It was also acknowledged that the defect in the footpath had been brought to SDCC’s attention and it had commissioned a survey.

Judge Hogan considered Section 2 of the Road’s Act 1993 (the 1993 Act) which defines a footpath as “a road over which there is a public right of way for pedestrians only, not being a footway”.

Section 11 of the 1993 Act (as substituted by Section 6 of the Roads Act 2007) provides for the maintenance and repair of all such roads being a function of the relevant local authority.

In McCabe it was accepted that the SDCC either did not repair the opening, despite having conducted a survey, or having repaired the opening it was subsequently tampered with and removed by persons unknown as a result of which SDCC was deemed not liable by operation of the nonfeasance rule.

The fact that SDCC had intended to repair was not enough to bring the case outside of the nonfeasance rule since the authorities were to the effect that there must be negligence in the actual repair of the highway before the case comes within the scope of the nonfeasance immunity.

The Court noted on the other hand if the opening had been repaired but was subsequently removed or tampered with by persons unknown there was equally no liability to SDCC in the latter situation. The most that could be said was that SDCC had failed to act when it knew that the opening presented a hazard. Nevertheless, the nonfeasance rule served to bar any action in respect of this ground.

In summary SDCC could only be liable if there was positive evidence that it repaired the opening in a negligent fashion, to be an act of actionable mis-feasance.

Judge Hogan considered the legal authorities where the Courts have criticised the “illogical distinction” between nonfeasance and misfeasance.

Hogan J. also noted the statutory abolition of the distinction under the 1961 Act and that the Supreme Court had described it as either “anomalous” or “unsatisfactory” and “of longstanding” despite the fact that Section 60 (i) of the 1961 Act remains on the statute books the sub-section has never been brought into force by implementing order. Subject to any future challenge on constitutionality the rule remains embedded in the fabric of the common law carried over into the post-constitutional legal system. It was beyond the capacity of the Courts to repair or amend given its “historical vintage.”

In Devine, the Court was satisfied based on the engineering evidence adduced by the Plaintiff and based on the Engineer’s testimony that the surface was more than 16 years old that the water ingress in the locus was due to the failure to seal the face of the kerb with bitumen emulsion as required by the appropriate British Standard 4987 of 1973 which was in force when the macadam strip was laid. The Plaintiff established on balance a probability the defect arose from misfeasance on the part of Dublin City Council. The Court nevertheless was satisfied that the size of the hole was such that it was clearly visible and avoidable by a pedestrian and that the Plaintiff failed to exercise reasonable care for his own safety as required under Section 67 of the Road’s Act 1993 and therefore imposed a deduction of 25% for contributory negligence.

The critical difference in Devine is that the Plaintiff convinced the Court that the local authority had carried out defective repairs. Therefore, unlike McCabe, or O’ Riordan or Stephenson the statutory immunity for nonfeasance could not be availed of by the local authority.

Occupiers Liability Claim

The Court of Appeal in O’ Riordan v Clare County Council & Others⁴ in dismissing the Plaintiff’s claim on appeal from the High Court held that a highway authority is not the occupier of a highway by virtue of the fact that the public has the right to pass and re-pass over the highway and cannot be excluded by the owners of the soil.

In O’ Riordan the Court also quoted with approval from the High Court decision in Stephenson v Sligo County Council⁵. In finding irrespective that there was no evidence that the road was taken in charge. The Court nevertheless held it was a public road within the meaning under the Roads Act 1993 as the Local Authority had carried out work to the road. The Court in O’ Riordan was fortified in its view of the non-implementation of Section 60(1) of the 1961 Act by virtue of Section 2(3) of the Roads Act 1993 which provides that nothing within the 1993 Act affected any existing rule of law in relation to the liability of a road authority for failure to maintain a public road.

The Court of Appeal in O’ Riordan also overturned the High Court finding that the highway authority was bound to inspect the highway and ensure that defects are remedied prior to transfer or dedication to the public as being “novel, far reaching and contrary to authority” and running “directly an ancient rule that the public take the highway as they find it on dedication”.

The Court of Appeal further held that the mere fact that a local authority has the power to inspect infrequently and perhaps even routinely cannot result in the imposition of liability.

In O’ Riordan the Court also clarified the law in relation to dangers on the highway as public nuisance and expressly found that the doctrine of mis-feasance/non-feasance was applicable to nuisance as well as negligence. In finding that “the road authority may be liable for nuisance it creates but not for nuisance it merely inherits”, the Court expressly found that the knowledge of the Council was entirely immaterial to its liability.

What if Local Authority carries out partial repairs?

In Stephenson Mr. Justice Haughton in the High Court doctored with approval the Burton principles ⁶in finding that the local authority could not be guilty of mis-feasance where it carried out works to remedy a specific defect but failed to carry out additional works to another defect when the claim related to that other defect which was not addressed. The Court held that the road authority was only liable for a positive act of negligence when it undertakes repair or reconstruction of a roadway which did not extend to a general obligation or liability for acts of omission.

Failure to conform with building standards

In the case of Devine⁷ the Court in considering the liability of a local authority held in favour of the Plaintiff noting again that “to succeed in a claim for misfeasance against a road authority, a plaintiff must prove that the road authority by a positive act of negligence in the design, construction, modification or repair of the public road created a danger for road users that caused the Plaintiff’s injuries”.

• About
• Latest Posts

Gavan Carty

Gavan specialises in Professional Negligence, Construction Law, Commercial Litigation and Insurance Law.

Latest posts by Gavan Carty (see all)

• Proving Misfeasance Against Local Authority For Defective Roads & Footpaths - April 29, 2026
• Compensation for Criminal Injuries in Ireland – a CJEU Update - December 11, 2025
• Favourable Rulings for COVID-19 Insurance Claimants - May 21, 2025