Ciaran Rogers, principal solicitor at Rogers Solicitors in Dublin, writes on the law in Ireland around potholes.

I much prefer riding in Summer than in Winter for obvious reasons. It was actually dry last Sunday morning (shock, horror!) so off I went for a spin. I love riding on a Sunday morning as there is little traffic and the world seems that little bit less stressed. Riding helps clears my head and it is generally when I come up with ideas and plans for the week ahead. It’s my “me time”. I had a few ideas bouncing around in my head regarding the content of this article, but I was undecided. And then it hit me. Literally. With a bang!

I hit a massive pothole, roughly 4 feet by 2 feet and 6 inches deep. I was thrown about in my seat and my manhood took a bashing, but I managed to stay on the bike. It gave me a fright alright as I could easily have lost control. I went back to take a look at the pothole and I could not believe that my bike was unscathed. It was shocking. It also looked as if it had been there for some time which was even worse. Did the Council not notice this beast?

Potholes are a winter hazard. They occur as a result of liquid entering cracks in the roads surface. The liquid will then freeze and expand, causing cracks and potholes. And then it got me thinking. What if I had lost control and damaged my bike or my person, what then? Will I just put it down to experience and learn to be more vigilant for these hazardous holes? Or could I pursue the matter with the local authority? Would it be worth the hassle? Joe Public may even need to hire an evil lawyer!

In a nutshell, legal liability for local authorities is divided into 2 categories – “nonfeasance” (failure to act to repair a road surface) and “misfeasance” (the negligent repair of a road surface). Local authorities are traditionally immune from legal liability if they neglected or omitted to repair a public road, and this is a nonfeasance. If the authority does decide to repair a road but does so badly, then they may be liable, and this is a misfeasance.

I feel that this is highly unsatisfactory. So, if a Council takes the time to go out and actually maintain or repair a road surface, they may leave themselves exposed to liability in the future. But if they sit back and do nothing, then they are immune.

But then again, this is Ireland and it doesn’t surprise me in the slightest. The position was summed up in the case of Kelly v Mayo County Council when it was held by Lavery J that local authorities “are liable in damages for injuries suffered by a road user if they have been negligent in doing repairs or in interfering with then road. They are not liable for injuries suffered or caused by the want of repair of a road.”

Across the pond in England and Wales a local authority is deemed to be negligent under section 41 of the Highways Act 1980 if they have failed to carry out regular repairs and inspections of a road surface. So the only way they will escape liability is by regularly inspecting each and every road surface. This seems fair and reasonable to me. If you regularly maintain the road then at least some effort has been made. The legal system also realises that a Council cannot inspect every single road on every single day. But if they have regularly inspected a road every few months, then there is nothing more that could reasonably be expected to do.

However it may still be worth pursuing your local Council in Ireland. It is not uncommon for authorities to cough up a few hundred Euros for damaged alloys wheels despite all of this nonfeasance, misfeasance and legal-jargan-feasance malarchy. All they can say is no and you might even get lucky.

Had my bike been damaged by the pothole, or worse still I got hurt, it is unlikely that I would get anywhere with the local authority. Nonfeasance is their get out of jail card. But every cloud has a silver lining and potholes are no different! In the Christmas period of 2013 a large and evil pothole appeared on the fringes of Ennis in County Clare. By some accounts it measured about a metre long was about a foot deep and was even dubbed the “Claureen Crater”. One particular tyre company owner stated that “over the few days at Christmas, we would have had income of €12,000.00 from seventy wheels damaged by that single pothole”. Business was booming! Pot (hole) luck for him!

There are more obvious hazards to motorcyclists out there, such as car drivers. And car drivers. And car drivers! But if a car driver is negligent we can hold them accountable through the Court system in the usual way and justice will nearly always prevail.

I really feel that the Irish Government should reform the legislation regarding local authorities’ maintenance obligations to Irish roads. The regime in England and Wales places an onerous burden on local authorities to keep the roads in decent shape. As a keen motorcyclist I feel this is only fair. Had I encountered the “Claureen Crater” on my bike I really could have been badly hurt. I could even have been killed by the sound of it. And yet the Council would escape any liability by simply doing nothing at all. Nonfeasance in non-sense.