A woman has lost her damages claim blaming a local authority for her footpath slip and fall which caused her injuries to her head, wrist and shoulder.
In ruling on Wednesday, Ms Justice Nuala Jackson said Breda Long was a “most honest witness”, but added that Tipperary County Council could not be held responsible for creating a danger.
While there were wet leaves on the footpath on the day the fall occurred, November 16th, 2018, the judge said there was no evidence of water or silt “ponding” in the area as was alleged.
“Unfortunately, accidents happen, and sometimes with serious consequences. This is such an occasion,” the judge said.
In her recent judgment, Ms Justice Jackson said Ms Long, of Ballyanny, Nenagh, Co Tipperary, was walking her pets when she slipped or tripped and fell out into the road.
An ambulance brought her to hospital, where she remained as an in-patient for five days.
Her head injury was not serious, although it left scarring, while her wrist has largely recovered, the judge noted. Ms Long’s shoulder injury has persisted and her movement in the joint continues to be restricted.
The judge noted works were carried out on the footpath in 2019, so the only evidence about its condition on the date of the incident was a Google photograph from 2009.
The 2009 photo supported Ms Long’s contention there was a slope on the path, the judge acknowledged.
Ms Long alleged the council “failed to properly design and/or repair the footpath, thereby allowing water and leaves to accumulate and present a danger to pedestrians”.
The judge accepted her claim that she slipped on leaves and associated detritus.
Misfeasance v Non-feasance
A retired garda gave evidence that the footpath was in a poor physical state, with cracks and bits of concrete missing.
He said he had previously seen leaves at the point of the footpath where the fall took place, adding such a build-up was regular in winter when conditions were damp.
Ms Justice Jackson said Ms Long’s case effectively asked her to surmise that the 2019 works to the pavement may have occurred to cure a defect created by “ponding”.
The council said the path was there for 50 years and repair is perfectly normal. The slope on the footpath, which facilitates buggies and wheelchairs, was an acceptable design, the council also argued.
Ms Justice Jackson cited case law that has established a “well-known and long settled distinction” between the two concepts of misfeasance and non-feasance.
She considered past court decisions holding that local highway authorities are not liable for leaving public roads or footpaths in improper repair, but are liable where they do something to create a danger.
Ms Long had to show the council created a danger and was therefore guilty of misfeasance, Ms Justice Jackson explained.
The judge said it was clear the council constructed the path in a way which causes water to flow to the point where it meets the road. However, she could not find that the council created a danger.
On the evidence before the court, this is a “clear case of non-feasance rather than misfeasance”, Ms Justice Jackson concluded.
