[Article] "Council not liable for bike crash on poor road"

Ghost Rider

A rather worrying legal "development", this...

http://www.irishtimes.com/newspaper/ireland/2008/1210/1228864618975.html

seamus

Having looked into it, it's not a legal "development" at all, and is based on a legal ruling from the late 1600's :eek:

Basically, if a road is poorly constructed or badly repaired, then that amounts to negligence on the part of the council (because they did their job poorly). In that case, they are liable for damages which arise.

However, if the road has simply deteriorated over time, the council can't be held liable for not repairing it because they didn't technically do anything wrong. That is, it's the difference between the council not doing their job correctly and the council not doing their job at all. In the latter case, they aren't held liable unless the statutes say they should be.

http://en.wikipedia.org/wiki/Non-feasance

TinyExplosions

Seamus beat me to it, but there's a good link here about it

Jumpy

Is there any law which states that grilles for drains must be placed sideways as to not catch bike wheels?
All of the ones I have ever seen go side to side. Just hit one the other day that my wheel sunk into as it was running parallel to the road. Wondering if I should advise the council.

DirkVoodoo

I remember reading this ages ago in relation to pedestrians falling on the pavement, the council is only liable through poor construction and not if you trip over a cracked paving stone or similar through "wear and tear".

seamus

DirkVoodoo wrote: »

I remember reading this ages ago in relation to pedestrians falling on the pavement, the council is only liable through poor construction and not if you trip over a cracked paving stone or similar through "wear and tear".

Indeed. It seems a bit mad, but the logic behind it is that the council didn't actually do anything which caused the incident to occur.

It's identical to walking down the road, and the person beside you trips on their own feet and does a comical falling-down routine. Then they try to sue you for negligence for failing to do anything to stop them hitting the ground. Which is clearly nonsense. But if you bumped into the person which caused them to trip on their own feet and fall, you may be liable.

Often however, as the wiki article points out, courts will attempt to find some way or some reason to declare misfeasance on part of the council. In the cracked paving stone example you give, they may often twist it to say that the paving stone was incorrectly installed, which caused it to crack, or that it was cracked when it was installed.

Ghost Rider

You mean this dates back to legal rulings predating even our own Constitution? Are you sure?

Besides, if this all came down to a distinction between the responsibility for building roads and the responsibility for maintaining them, why couldn't the judge have just said that? The implication from the article was that there was a legal technicality that "lay people" would have trouble understanding!

He also implied the cyclist himself had not acted responsibly by not cycling around the "concrete lip" in the road. I wonder how important that was to the judge's ruling. Hard to say from the present article...

seamus wrote: »

Having looked into it, it's not a legal "development" at all, and is based on a legal ruling from the late 1600's :eek:

Basically, if a road is poorly constructed or badly repaired, then that amounts to negligence on the part of the council (because they did their job poorly). In that case, they are liable for damages which arise.

However, if the road has simply deteriorated over time, the council can't be held liable for not repairing it because they didn't technically do anything wrong. That is, it's the difference between the council not doing their job correctly and the council not doing their job at all. In the latter case, they aren't held liable unless the statutes say they should be.

http://en.wikipedia.org/wiki/Non-feasance

Ghost Rider

Oh wait, I took a look at the linked thread and I see the distinction now: it's not between the responsibility of those who construct and those who maintain roads. It's between the failure to maintain at all and the failure to properly maintain roads.

That's staggering...

TinyExplosions wrote: »

Seamus beat me to it, but there's a good link here about it

seamus

Ghost Rider wrote: »

You mean this dates back to legal rulings predating even our own Constitution? Are you sure?

Yep. It's all to do with common law. Much of our civil law dealing with liability and such that we take for granted, has its basis in common law.

Besides, if this all came down to a distinction between the responsibility for building roads and the responsibility for maintaining them, why couldn't the judge have just said that? The implication from the article was that there was a legal technicality that "lay people" would have trouble understanding!

The legal profession tend to have this elitist idea that many legal concepts are beyond the man on the street, and can only be properly understood after 7 years of study, which is why we need them in court.

The judge though might just have been referring to the number of such cases that he sees in court where people believe they are entitled to compensation based on someone else's inaction.

He also implied the cyclist himself had not acted responsibly by not cycling around the "concrete lip" in the road. I wonder how important that was to the judge's ruling.

Well, that's true to a certain extent. If I slip on a 7up bottle on the side of the road, who's at fault. Is the fault of the person who littered, the fault of the council cleaner who saw it but didn't pick it up, or is it my fault for failing to avoid what was a visible and easily avoided hazard on the road?

TinyExplosions

I think what gets me about it is that a council who neglects to perform their statutory duty to repair the road, and allows it go get into a dangerous state are not liable for accidents caused, but if the council do a repair, but do it badly, this is misfeasance or malfeasance, and they can be held liable.

Does that mean that the council have to prove they have never repaired a road if you have an accident?

It's very confusing really...

Ghost Rider

For this distinction to be significant, I imagine the council must be able to show that the state of the road was due its having been neglected rather than poorly maintained.

But I wonder how a judge would rule if it were impossible to prove that? It's not hard to envisage such cases...

TinyExplosions

Ghost Rider wrote: »

For this distinction to be significant, I imagine the council must be able to show that the state of the road was due its having been neglected rather than poorly maintained.

But I wonder how a judge would rule if it were impossible to prove that? It's not hard to envisage such cases...

but is poor maintenance not neglect? Weird really

Ghost Rider

In ordinary language, yes! I was just using those terms to reflect the distinction that I think the judge is referring to i.e. between "doing it badly" and "not doing it at all". But yeah - the fact that there is a distinction at all is nuts.

TinyExplosions wrote: »

but is poor maintenance not neglect? Weird really

blorg

Distinguishing between an act (repairing a road badly) and an omission (not repairing a road at all) goes back a long way.

fenris

This is an issue that the motorcyclists at MAG ireland have delt with in an interesting manner

http://www.magireland.org/roadmain.htm

As I understand it the hazard has to be notified to the council or city engineer. Once the hazard is notified then it becomes negligence if it is not fixed, this removes the "we didn't know about it you honour and how can we be reasonably expected to monitor all of our roads on a daily basis" defence.

They nice people even have a form that you can download for the purpose.

Also it may be worth checking with MAG to see if a hazard that contributed to your accident was previously notified.

Ghost Rider

Perhaps, but it is and was always possible to argue that an omission is an act. (The mere fact of the existence of the verb "to omit" is itself a kind of proof!)

What's bizarre is that this archaic distinction is still being referenced by judges.

blorg wrote: »

Distinguishing between an act (repairing a road badly) and an omission (not repairing a road at all) goes back a long way.

blorg

Ghost Rider wrote: »

Perhaps, but it is and was always possible to argue that an omission is an act. (The mere fact of the existence of the verb "to omit" is itself a kind of proof!)

What's bizarre is that this archaic distinction is still being referenced by judges.

It's not really "archaic", it is pretty fundamental to our system of law and to me at least seems sensible. Doing something and not doing something are fundamentally different things. Same principle distinguishes between killing someone and letting them die.

Plenty of other stuff in our legal system dates back a long way, just because a concept is old does not mean it is outdated.

rflynnr

blorg wrote: »

Distinguishing between an act (repairing a road badly) and an omission (not repairing a road at all) goes back a long way.

I suppose the question here is one of intent. We distinguish between murder and manslaughter on these grounds even though the outcome of both acts is the same. Thus arguably it is legally important as to whether a road surface becomes unsafe through action or inaction. If poor repair creates the problem, then the council cannot shirk the blame. However, if a road breaks up after a particularly icy night, and someone gets hurt the next morning, it would seem unjust to blame the council for failing to notice the road's state of disrepair. In short, "nonfeasance" as a legal concept seems to defend the council for failing to be omnipotent.

However, I suppose it could be argued that the Council should have a legal duty of care to ensure that if it's going to build roads of less-than-infinite lifespans (as it inevitably must), that it periodically subjects those roads to examination. In this particular case it seems unlikely that the council or its proxies (i.e. council workers) consistently failed to notice the deterioration of a given stretch of road over several decades as is tacitly suggested by the reporting of the story.

Ghost Rider

Come off it. Of course I don't think that just because a concept is old that it is outdated! I'm calling it archaic/outdated because it is both old and inadequate.

The distinction you cite (letting someone die vs. killing them) is not what is at stake. In this specific case we are referring not to an entity without legally specified responsibilities (like, say, a passer by at the scene of a murder) but to an organisation charged with the maintenance of the roads. Now if the definition of the term "maintenance" in that context (whatever legal documents form the basis of the council) does not include "making sure it's in good condition, whatever the cause" (ie as a result of either active or passive neglect), then I put it to you that that is an inadequate definition of "maintenance".

Furthermore, it follows that the legislation enshrining that definition is inadequate. And I would add that because it is also old, it is archaic (or, if you prefer, outdated).

blorg wrote: »

It's not really "archaic", it is pretty fundamental to our system of law and to me at least seems sensible. Doing something and not doing something are fundamentally different things. Same principle distinguishes between killing someone and letting them die.

Plenty of other stuff in our legal system dates back a long way, just because a concept is old does not mean it is outdated.

Ghost Rider

You're right: there is a sense in which "nonfeasance" is an important concept. But we're not talking abotu a failure of DCC to be omnipotent in this case. As the article reports, an engineer who examined the road surface actually said it had (and I quote) "had well passed its design life of 40 years and had broken up".

So we're clearly not talking about a failure to be omnipotent. We're talking about a failure to maintain the road, if by maintenance we mean (in part) ensuring that it hasn't "passed its design life".

That's not a particularly controversial understanding of the word "maintenance", you have to admit!

rflynnr wrote: »

I suppose the question here is one of intent. We distinguish between murder and manslaughter on these grounds even though the outcome of both acts is the same. Thus arguably it is legally important as to whether a road surface becomes unsafe through action or inaction. If poor repair creates the problem, then the council cannot shirk the blame. However, if a road breaks up after a particularly icy night, and someone gets hurt the next morning, it would seem unjust to blame the council for failing to notice the road's state of disrepair. In short, "nonfeasance" as a legal concept seems to defend the council for failing to be omnipotent.

However, I suppose it could be argued that the Council should have a legal duty of care to ensure that if it's going to build roads of less-than-infinite lifespans (as it inevitably must), that it periodically subjects those roads to examination. In this particular case it seems unlikely that the council or its proxies (i.e. council workers) consistently failed to notice the deterioration of a given stretch of road over several decades as is tacitly suggested by the reporting of the story.

rflynnr

Ghost Rider wrote: »

You're right: there is a sense in which "nonfeasance" is an important concept. But we're not talking abotu a failure of DCC to be omnipotent in this case. As the article reports, an engineer who examined the road surface actually said it had (and I quote) "had well passed its design life of 40 years and had broken up".

So we're clearly not talking about a failure to be omnipotent. We're talking about a failure to maintain the road, if by maintenance we mean (in part) ensuring that it hasn't "passed its design life".

That's not a particularly controversial understanding of the word "maintenance", you have to admit!

I didn't mean the omnipotent point to refer to this particular case pace my second paragraph.

Ghost Rider

I would add, by the way, that the business of having to fill in a form and let the DCC know about problematic spots is all very well when it comes to incidental problems with road surfaces e.g. potholes (though I do find it disappointing that DCC can claim ignorance in the absence of such notice - typical of the general erosion of the public sphere, though).

But that's beside the point here. If the forensic engineer is to be believed - and I have no reason to doubt him - then there was every reason to think the road had needed examination as a matter of routine - or what should be routine - before this incident even occurred.

In fact, he seems to be implying that all roads of that type should be routinely checked. I wonder if DCC are officially charged with that responsibility...? I assume not. (But if so, I'd like to know why the judge in this case didn't refer to that responsibility as that would seriously undermine the defence of "nonfeasance", I imagine.)

Ghost Rider wrote: »

You're right: there is a sense in which "nonfeasance" is an important concept. But we're not talking abotu a failure of DCC to be omnipotent in this case. As the article reports, an engineer who examined the road surface actually said it had (and I quote) "had well passed its design life of 40 years and had broken up".

So we're clearly not talking about a failure to be omnipotent. We're talking about a failure to maintain the road, if by maintenance we mean (in part) ensuring that it hasn't "passed its design life".

That's not a particularly controversial understanding of the word "maintenance", you have to admit!

Ghost Rider

Sorry, you're right - I missed that.

Yep, it does sound incredible that they missed it - especially when a forensic engineer describes the road as "passed its design life". In that case, such a road would a priori require structural examination, never mind what anyone did or didn't actually see on the surface of it.

rflynnr wrote: »

I didn't mean the omnipotent point to refer to this particular case pace my second paragraph.

Eoin D

In reference to the design lifes of roads there the most impossible thing to stick to. If you were to deign a road 50 years ago would you have been able to foresee the volume of traffic on the road or the types of vehicles on it (the particularly important bit there being their weight and load carrying capacity)?

Also, those concrete roads were made during/post war, they're concrete because they were tough times and the oil wasn't there for the required bitumen for hot rolled asphalt roads etc. so they were made in less than ideal circumstances.

This sort of stuff happens all the time as well

Darby OGill

I work for a council and remember this stuff from my interview days, sort of.

I think part of the logic behind the principle of non-feasance is that, theoretically, a road starts to deteriorate from the day it is built. Therefore, at any given time, 99.99% of the network is going to be less than perfect, to varying degrees of course. But if the council was to be held accountable for every incident caused by less than perfect roads, havoc ensues.

Of course, the roads should be better and people lose out, but it's hard to see a solution. As pointed out, poor workmanship, if proven, is mis-feasance and must be covered for any losses caused. I would suggest that we all report poor surfaces to the correct section, and keep copies of correspondence for reference.

I've lost about four car tires over the years due to potholes, so I feel the pain too........

BostonB

Theres a couple of bits on my route which are woeful. Time to get the camera out and start writing letters.