Provisions Of Civil Liability Act, 1961 Relating To Road Maintenance Remain To Be Introduced Into Law By The Government

Section 60(1) of the Civil Liability Act, 1961 provides that a Road Authority shall be liable for damage caused as a result of their failure to adequately maintain a public road. Under the relevant provisions a “public road” means a road that responsibility for the maintenance of which lies with a Road Authority and includes any bridge, pipe, arch, gulley or footpath, pavement, fence, railing or wall which forms part of such road and which it is the responsibility of the Road Authority to maintain. A Road Authority” means the Council of every County, the Corporation of a County or other Borough or the Council of an urban district.

This section has no legal effect as successive Governments have steadfastly refused to sign the Ministerial Order which would impose this legal duty on Local Authorities.

It has long been established law that a Public Authority will not be liable for its failure to maintain a public road. This is the legal term called non-feasance. However, any injury sustained as a result of the negligent repair or maintenance of a public road will render the public Authority and its agents liable. This is called mis-feasance.

However, there may be instances when Local Authorities may become liable if they become aware through complaints from members of the public that certain roads and footpaths within their areas are hazardous either through negligent repairs or through parties having previous accidents at those locations.

If the Local Authority receives these complaints and does not carry out the appropriate works to make the areas safe for road users they could be held liable for consequential loss sustained.

An issue may now arise in relation to the current weather crisis is whether maintenance and repair carried out by Local Authorities would include the gritting of roads. Clearly a Local Authority who are applying materials to road surfaces is an acknowledgment by them as Statutory Bodies that the road surfaces themselves are a danger to road users. In this instance the Local Authority are accepting responsibility to ensure that the roads are made less hazardous. They are also discriminating between major and minor roads based on traffic statistics to try and reduce the level of accidents.

It may be difficult in the future for Local Authorities to defend claims where they may have gritted part of a road but due to lack of stock, left the remainder of a road ungritted and thereby a potential danger and somewhat of a trap. If a person commences a journey either by road or on foot secure in the knowledge that the road surface is gritted and then that person travels over to an ungritted area without warnings being present on the road and an accident befalls them the Local Authority could be liable.

There are many dimensions to Civil Claims and even though this Government and previous Governments have steadfastly refused to sign the Ministerial Order required to bring Section 60 into operation this may not provide an absolute defence against future claims. Courts may be swayed by the actions or inactions in certain cases of Local Authorities regarding their treatment of surfaces in their areas.

Contrast this with the legal duty owed by the Authorities in the United Kingdom where Section 41 of the Highways Act 1980 provides that the Highway Authority is under a legal duty to maintain the highway and must plan all winter services such that they meet all statutory requirements.
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The UK Authorities have prepared a winter service code which provide that the service provider must prepare a severe weather plan in order to deliver a winter service and perform the standards required by the code. At a minimum this provides for-

Response and treatment times
Response times of one hour; response time is defined as the maximum time taken from the decision to begin treatment until the winter services vehicles are loaded, manned and ready to leave the compound.
Treatment times of two hours, the treatment time is defined as the maximum time taken from leaving the compound through to returning to the compound after completion of the treatment route.

The service providers in the United Kingdom use online electronic winter reporting systems which are kept up to date during the winter period. The service providers also submit continuity reports online daily during the winter period and these also must provide details of salt stock capability and reserve fleet levels.

In the United Kingdom they provide for an effective winter service through the coordination and actions of trained and appropriately qualified staff. The service providers in the UK prepare equipment and depot facilities in advance of the winter period so that there is no delay if bad weather occurs earlier than expected, and they undertake proper and effective maintenance of all equipment throughout the winter period.

It is clear that the Highway Agency in the United Kingdom who have responsibility for dealing with severe weather have detailed and highly organised plans and systems in place to deal with severe weather conditions and it is obvious that such plans must now be implemented in Ireland and an appropriate and competent agency charged with responsibility for all major and national routes.
Such are the numbers of injured persons presenting to A and E departments throughout the country that litigation must be inevitable.