Potholes. Where do you stand? with RedFM and Victor Barry
Just to recap some of the advice given on the show about potholes. This is in relation to getting your car damaged from driving into one. This is especially helpful before you decide to head off and sue the council. Strangely, there is no absolute duty on the council to fix the potholes that are now dotting our beautiful country. And specifically there is no liabilty on their part where they haven’t attempted to fix it. We call this non-feasance ie. they don’t fix it at all and the damage has occurred due to the wear and tear from the weather.
However, if they have fixed the pothole and made a botch job of it then we call this misfeasance and you may well get somewhere. But! But! The judges have an attitude where they don’t like swimming against the council. If the council were liable in every situation you can imagine the flood gates for litigation would open. The courts would be swamped. (I am trying to work in as many water metaphors as I can here).
If you want to deep dive into this topic take a look at the Civil Liability Act 1961. It lists out the defences open to the road authority at Section 60(2):
1. they had given sufficient warning that the road was a danger eg. bollards
2. they had taken reasonable precautions to secure that the road was not a danger to traffic
3. they had not a reasonable opportunity to give such warning or take such precautions
4. the damage resulted from a wrong committed by any person other than the road authority
So you see it ain’t all plain sailing as far as making the Council pay for your damaged car.
Shane Healy, Healy O’Connor Solicitors LLP, Cork and Dublin