Woman loses damages claim against county council after fall on pavement

Ms Justice Nuala Jackson said Breda Long was a “most honest witness” but Tipperary County Council could not be held responsible for creating a danger.

While there were wet leaves on the footpath on November 16, 2018, the judge said there was no evidence of water or silt “ponding” in the area as alleged.

“Unfortunately, accidents happen and sometimes with serious consequences. This is such an occasion,” the judge said.

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 said. Ms Long’s shoulder injury has persisted and her movement in the joint continues to be restricted.

Works were carried out on the pavement in 2019, so the only evidence about its condition on the date of the accident was a Google photograph from 2009.

The 2009 photo supported Ms Long’s contention that there was a slope on the path, the judge said.

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.

A retired garda gave evidence that the footpath was in a poor physical state, with cracks and bits of concrete missing. He said he previously saw leaves at this place and this 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 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.

The judge said it was clear the council constructed the path in a way that 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 Jackson said.