Chantal Feeney

In Breda Long v Tipperary County Council, the High Court ruled that the defendant in the case could not be held liable for the injuries that the plaintiff suffered and, having considered the matter, ruled it was a ”clear case of non-feasance, rather than misfeasance”.

The two concepts of misfeasance and non-feasance have a “well-known and long settled distinction” within Irish law. Misfeasance refers to the wrongful or negligent exercise of a lawful authority in their duty, whilst non-feasance refers to the failure to perform an act that is required by law.

Facts of the case

The plaintiff, who was found to be a “most honest witness” by Ms Justice Jackson, was walking her family pets on the 16th of November 2018 on a stretch of footpath which was familiar to her, when she slipped or tripped and fell, resulting in various injuries.

Ms Long brought a High Court personal injury case against Tipperary County Council who she claimed were liable for causing her to fall and as such should compensate her accordingly.

The plaintiff pleaded against the defendant that the construction of the footpath “provided for a sloped surface on the footpath and/or failing to properly design and/or repair the footpath thereby allowing water and leaves to accumulate and present a danger to pedestrians”. The plaintiff called expert evidence from an engineer, together with a retired member of An Garda Síochána, who referenced the poor physical state of the footpath in his evidence.

The plaintiff claimed that repair works carried out to the pavement since the accident exemplified that a previous issue existed and may have been done to “cure a defect due to ponding”. In contrast, an engineer for the defence gave evidence that the footpath was approximately 50 years in existence and that any repair/reinstatement would be perfectly normal.

It therefore was a matter for the plaintiff to prove that, at the time of the incident, there was a “ponding” of water which directly resulted in the accumulated leaves becoming a slipping hazard. None of the plaintiff’s witnesses were in a position to give evidence to this effect.

The law

In consideration of the law, Ms Justice Jackson highlighted that the onus was explicitly on the plaintiff to prove her case, as per Banco Ambrosiano SPA v Ansbacher Company “on the balance of probabilities”.

Misfeasance vs non-feasance

Ms Justice Jackson commented on a number of cases in her judgement, which referenced the clear distinction between mis-feasance and non-feasance.

In Gallagher v Leitrim County Council, Kingsmill Moore J commented:

Noonan J in the Court of Appeal decision in O’Riordan v Clare County Council & Another expressed that:

Application of law to facts

It was clear to the court that the defendant had installed the road and footpath some 50 years ago. In doing so, the design caused water to flow to the point where the road meets the footpath. Ms Justice Jackson stated that “Mr Morgan’s [the plaintiff’s engineer] evidence is that such construction would be faultily designed if it resulted in ponding to occur such that would cause silt to accumulate which, together with wet leaves, would constitute a danger”.

Whilst Justice Jackson took no issue with this proposition, the evidence put to the court did not support such a situation. As such, she found that the defendant did not create a danger.

In concluding, Ms Justice Jackson commented how “accidents happen”. However, for a defendant to be liable, fault must be allocated. In finding in favour of the defendant, Ms Justice Jackson concluded: “On the evidence before me, this a clear case of non-feasance rather than misfeasance.”

Conclusion

The case of Breda Long v Tipperary County Council expounds the principle that local authorities can rely on immunity for non-feasance for failure to act.

Section 60(1) of the Civil Liability Act 1961 sought to abolish the distinction between non-feasance and misfeasance; however, some 60 years later, the subsection has not yet been commenced by the government.

It remains, therefore, for the present time at least, as Cross J put in the matter in Loughrey v Dun Laoghaire Corporation, the distinction still retains “its ancient purity in this jurisdiction”.

• Chantal Feeney is a solicitor in the litigation department at Comyn Kelleher Tobin LLP.