The High Court has affirmed the Circuit Court’s decision to dismiss Zara McCabe’s personal-injury action against South Dublin County Council over an opening in a Tallaght footpath.
The incident happened around 11pm on 2 June 2009, when Ms McCabe’s foot became caught in an opening on Brookview Drive. She fell on her right hand and hit her head. The opening, about 8cm by 8cm, was missing a stopcock cover and lay opposite No. 12 Brookview Drive.
Ms McCabe suffered a minor fracture to her hand and wore a cast for about a month. The judgment said the injury had largely healed, but she continued to experience some effects on her grip, lifting her young children and using a computer, as well as discomfort in cold weather.
The Council rejected liability. Its records showed repairs to stopcock covers on Brookview Drive in November 2006, with work inspected in December that year. A 2007 survey did not identify a missing cover outside No. 12. The Council received a complaint about a missing cover there in January 2009 and said repair work was carried out on 13 February, although it had no direct documentary record of that repair.
The judge identified two possible explanations for the opening in June 2009: the February repair may not have been completed, or the cover may have been removed or disturbed by unknown people before the concrete set. Council engineer Derek Sergeant described problems with covers being removed. The plaintiff’s engineer, Jack O’Reilly, said he found no signs of disturbance around the opening when he inspected it in July 2010. The judge did not decide which account was correct, concluding that either possibility led to the same legal result.
Under the rule applied by the court, a local authority could be liable for negligent repair of a road or footpath, known as misfeasance, but not simply for failing to maintain or repair it, known as non-feasance. The court said there was no evidence that the Council had repaired the opening negligently. An intention to repair, or a failure to act after a hazard arose, did not take the case outside the non-feasance rule.
The judge rejected the Council’s suggestion that Ms McCabe was contributorily negligent because she had been using a mobile phone while walking. He said using a phone on a footpath did not, by itself, amount to contributory negligence.
The court dismissed the action and affirmed the Circuit Court decision. The judgment noted that the statutory provision intended to abolish the distinction between misfeasance and non-feasance had not been brought into force; it said any change to the rule was for the Government or the Oireachtas.