[2004] IEHC 335

THE  HIGH  COURT
2002 7103P

BETWEEN

KEVIN  FLYNN
PLAINTIFF

AND

THE  COUNTY  COUNCIL  OF  THE

COUNTY  OF  WATERFORD

DEFENDANT

Judgment of Finnegan P. delivered on the 20th day of October 2004.

The Defendant is sued as the Road Authority responsible for a road leading from Portlaw to the main Kilmeaden to Carrig-on-Suir Road designated in the Defendant’s records as the A16.  The section of the A16 is known locally as Priests Lane and is approximately one half mile long.  It is some thirteen to fourteen feet wide but is splayed and slightly wider at its junction with the Kilmeaden to Carrig-on-Suir Road.  On the date of the accident giving rise to this claim a Stop sign was located at some nine feet from the junction.  The Plaintiff’s Engineer gave evidence that there was also a stop line with the word “stop” painted on the roadway:  however Garda Maurice Clifford who investigated the accident gave evidence and introduced a sketch map of the scene which did not show any stop line nor the word “stop” but merely a centre line on Priests Lane.  He had taken photographs of the scene but these had been mislaid and had not been located.  On the balance of probability I am satisfied that the sketch map represents the road markings at the date of the accident.  In addition to the Stop sign there was an advance warning sign provided at a distance of seventy five yards from the junction.  John Whelan who was then the Road Overseer for the Defendant for the area gave evidence that he gave an instruction on the 28th July 1999 for a new advance warning sign to be erected to replace another sign which had been vandalised.  The instruction went to Paul Kelly.  The vegetation on the ditch had been cut in July.  Paul Kelly a general worker with the Defendant gave evidence that he received the instruction at 7.55 a.m. on the 28th July.  On that day he saw a vandalised advance warning sign on Priests Lane.  He filled a dumper with the necessary equipment and replaced the sign.  There was a concrete pole on which the vandalised sign had been placed but this was broken.  He got a new sign from the Depot and erected the same on a new metal pole some ten yards closer to the junction.  He used a strimmer to clear vegetation on the ditch to clear the view to the sign.   If this evidence is correct the new sign had been erected prior to the accident and the vegetation trimmed.  

The Plaintiff’s father gave evidence of having inspected the locus of the accident some two weeks after the accident.  He saw the warning sign in the ditch all bent and faded.  It was some distance from the present location, there was vegetation around it and you could hardly see it if driving.  The sign was not on a pole and he believed it was on a tree.  

On the balance of probabilities I am satisfied that an instruction was given to replace the sign on the 28th July 1999 but that Mr. Paul Kelly, the Defendant’s General Worker is incorrect in his recollection that he carried out the work on that day but rather that the work was not carried out until after the date of the accident.

The legal issue to arise in this action is whether there is an obligation upon the Road Authority, the Defendant, to erect signs and to maintain them.

Dr. Denis Wood, Engineer on behalf of the Plaintiff gave evidence of best practice and in this regard relied upon Layout of Roads in Rural Areas 1968 H.M.S.O. and Junctions and Access:  The Layout of Major/Minor Junctions 1984 U.K. Department of Transport.  He also referred to the Traffic Signs Manual produced by the Department of the Environment in 1996.  I accept these as setting out best practice both in relation to road signs and road markings and the clearing of vegetation.  However I am satisfied that none of these publications impose a duty on a highway authority if one does not otherwise exist at law.

The Plaintiff relied upon the Roads Act 1993.  Section 2. of the Act defines “road” as follows –

(a)	any street, lane, footpath, square, court, alley or passage,

(b)	any bridge, viaduct, underpass, subway, tunnel, overpass, overbridge, flyover, carriageway (whether single or multiple), pavement or footway,

(c)	any weighbridge or other facility for the weighing or inspection of vehicles, toll plaza or other facility for the collection of tolls, service area, emergency telephone, first aid post, culvert, arch, gulley, railing, fence, wall, barrier, guard-rail, margin, kerb, lay-by, hard shoulder, island, pedestrian refuge, median, central reserve, channelliser, roundabout, gantry, pole, ramp, bollard, pipe, wire, cable, sign, signal or lighting forming part of the road, and

(d)	any other structure or thing forming part of the road and –

(i) 	necessary for the safety, convenience or amenity of road users or for the  construction, maintenance, operation or management of the road or for the protection of the environment, or

	(ii)	prescribed by the Minister.

Thus “road” includes both poles and signs forming part of the road.  Section 2(3) of the Act  provides as follows –

“Nothing in this Act affects any existing rule of law in relation to the liability of a Road Authority for failure to maintain a public road.”

Section 2(4) provides as follows –
“The maintenance of a public road includes the provision and maintenance of public lighting.”

The Road Traffic Act 1961 section 95(3) as amended provides as follows –

“(3)a	The Road Authority may provide for public roads in their charge such information signs and warning signs as they consider desirable.”

Section 95(5)a provides as follows –
“A road authority shall provide for public roads in their charge such regulatory signs (other than special category signs) as may be requested by the Commissioner.”

I cite the last provision in which the word “shall” is used as opposed to “may” in section 95(3)a.  On this basis I find that section 95(3)(a) confers a discretionary power on a Road Authority and not an obligation.  Applying the principles enunciated by the Supreme Court in Glencar v Mayo County Council and Another 2002(1 I.R. 112) to section 95(3)a I am satisfied that it was not the intention of the Legislature in enacting that provision to confer on an individual an entitlement to claim for damages.  Where a statutory provision does not give a private right to sue it would be most unusual that it should nevertheless give rise to a duty of care at common law:  Gorringe v Calderdale Metropolitan Borough Council (2004) 2 All ER 326.  Lord Hoffmann at p. 336 
said  -

“In the absence of a right to sue for breach of the statutory duty itself it would in my opinion have been absurd to hold that the Council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom we could reasonably foresee would otherwise be reduced to sleeping rough.  And the argument would in my opinion have been even weaker if the Council, instead of being under a duty to provide accommodation merely had a power to do so.”

In the present case the Defendant merely has a power to erect signs.  I am satisfied that that power does not give rise to a cause of action in a person who suffers injury because of their failure to do so as a breach of statutory duty.  Neither can the failure to do so give rise to an action for negligence at common law.  

The Roads Act 1993 I am satisfied does not alter the common law save and except that it includes within the duty to maintain a road a duty to provide and maintain public lighting.  The failure of a Road Authority to maintain a public road does not confer upon an individual a right to civil redress for damages:  Brady v Cavan County Council (2000) 1 ILRM 81 and Harbinson v Armagh County Council (1902) 2 IR 538

Accordingly if the Plaintiff is to sustain his claim he must do so at common law.  Taking it that the sign was in disrepair and that it was largely obscured by vegetation and that the result of this was that the sign was not visible to a motorist going along Priests Lane until he was almost upon the sign can this give rise to a claim in negligence?  The Plaintiff relies upon the following proposition in Pratt and McKenzie Law of Highways 20th Edition 1962 at page 142 –

“Where a highway authority places something in the highway under statutory powers and not for the purposes of maintaining the highway … they are bound to keep and repair the statutory work so placed and are liable to an action for injury arising out of their failure to do so.”

The authority cited for this proposition is Skilton v Epsom and Ewell UDC (1936) 2 All ER 50.  In that case the highway authority had inserted studs into the highway for the purposes of directing traffic.  One of the studs came loose and injured the Plaintiff.  At first instance it was held that the stud was not part of the highway and that therefore the exemption for non feasance did not apply to the Defendant.  On appeal the Court of Appeal was unable to express a view as to whether the stud was or was not part of the highway but determined that this was not in the circumstances of the case material and the case was decided by asking the question whether the Highway Authority had caused a nuisance in the highway and this question being answered in the affirmative the Plaintiff succeeded.  I am satisfied that the Plaintiff cannot bring himself within the principle upon which that case was decided – that a common law liability might arise from acts done on or around the highway that have created a source of danger to users of the highway.  In the circumstances giving rise to this claim the existence of the obscured sign does not constitute a nuisance.

If no sign had been erected this could not give rise to a claim by an individual for damages for breach of statutory duty:  Glencar v Mayo County Council and Another 2002 1 IR 112.  If the failure to erect a sign cannot give rise to liability can the Road Authority be liable if having erected a sign they fail to maintain the same by ensuring that it remains visible?  In Gorringe v Calderdale MBC 2004 2 All ER at 334  Lord Hoffmann said –

“If the Highway Authority at common law with no duty other than to keep the road in repair and even that duty was not actionable in private law, it is impossible to contend that it owes a common law duty to erect warning signs on the road.  It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others.  Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others.  But it is insufficient to justify the imposition of liability upon someone who simply does nothing:  who neither creates the risk nor undertakes to do anything to avert it.”

In the present case had the Defendant done nothing it would not have attracted a common law duty of care.  Having given a warning the circumstances which prevailed on the day of the accident were such that the warning was less than that which was desirable but even then the Defendant had done more than it was at common law obliged to do.  In these circumstances it seems to me that no liability at common law arises.

The Plaintiff also relied on Bird v Pearse 1979 RTR 369.  In that case the highway authority carried out resurfacing which obliterated white lining on the road which had established a system of priorities at a junction.  It was held foreseeable that there was a risk of drivers misunderstanding their priorities at the junction in that the Highway Authority had created a pattern of traffic flow which did not exist before they placed the white lines on the road, a pattern which drivers could be expected to rely upon.  In these circumstances there was a duty of care to the Plaintiff to prevent accidents occurring as a result of the removal of the white lines.  The decision in that case was based upon the highway authority encouraging a pattern of behaviour among road users and altering the same without warning.  No such conduct on the part of the Defendant arises in the present case.

The Plaintiff has failed to satisfy me that the Defendant in this case was in breach of statutory duty or indeed if a breach of statutory duty should arise having regard to the statutory provisions that the same confers upon him a right of action.  Further he has failed to establish the existence of a duty on the Defendant at common law to maintain the sign which it had erected so that it would be clearly visible.  Accordingly I dismiss the Plaintiff’s claim.

Approved by Finnegan P.