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 maintain a public road. Under the relevant provision 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. . 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.
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.
It may be difficult in the future for Local Authorities to defend future 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.
There are many dimensions to Civil Claims and even though this Government and previous Governments have steadfastly refused to sign a 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.
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 time
- Response time is 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 time is two hours and 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.
LIAM MOLONEY
Moloney and Company
