In a High Court judgment delivered in the case of Zara McCabe –v- South Dublin County Council, by way of appeal from the Circuit Court, on the 18th November 2014, Judge Gerard Hogan re-affirmed the position of the doctrine of non-feasance in Irish law. It is an established principle in Irish law that a local authority enjoys immunity from suit by virtue of the doctrine of non-feasance. There is a clear distinction in the law between a failure to act (non-feasance) and a negligent action e.g. a negligent repair (misfeasance).
Its origins lie in public policy considerations, that a local authority should not be held liable for inaction where constraints in terms of funding or third party interference may have impacted upon it carrying out its statutory obligations.
The plaintiff, Zara McCabe, alleged an injury to her right hand and head when her foot became caught in an opening in the surface of a footpath. It was found on examination that a stopcock cover was missing. South Dublin County Council was in a position to assert that the stopcock cover was in place at an inspection which occurred approximately two years prior to the alleged incident. However, it received another complaint a number of months prior to this incident that a stopcock cover was again missing at the incident locus. It was not in a position to produce any evidence of its replacement prior to the incident complained of in this case. There was a suggestion that there was anti-social behaviour in the area giving rise to the removal of stopcock covers.
Judge Hogan noted that the distinction between non-feasance and misfeasance was actually abolished by the enactment of section 60(1) of the Civil Liability Act 1961, but, over fifty years later, the commencement of that sub-section awaits the making of a Government order. The plaintiff therefore was bound to fail in circumstances where she was unable to prove an act of negligence, rather than inaction, on the part of the local authority.
The rule therefore remains in force in our jurisdiction and local authorities are entitled to rely on this doctrine to avoid liability in such circumstances.
For more information on this issue, please contact Tríona Walsh, Senior Solicitor in our Defence Litigation Unit.