Council's insurer uses novel defence in personal injury claim

A Castlebar-based councillor has criticised Mayo County Council and its insurers for using a lack of maintenance on a Castlebar footpath over the past two decades as an actual legal defence in a personal injury case.

Fine Gael Cllr Ger Deere told last week's meeting of the Castlebar Municipal District that he had received a copy of correspondence sent by IPB Insurance, on behalf of Mayo County Council, to a woman who fell on the lip of a footpath on the Pontoon Road in Castlebar, adjacent to the Sacred Heart Hospital. The woman suffered "significant injuries" in the accident.

The insurance company told the complainant it would be denying liability in respect of her claim, citing a defence of ‘nonfeasance’. The letter further explained that nonfeasance is a legal defence that a local authority, such as Mayo County Council, can use when a road or pavement, which was constructed to proper standards, has deteriorated over time and there have been no "negligent works" carried out by the local authority.

“Mayo County Council engineers have advised that the footpath in question has been in situ for 25-plus years,” the letter frmo the insurance firm continued. “No works have been carried out to the footpath by the council. The lip has developed over time.”

Cllr Deere said what the letter meant was that the council is avoiding a legal claim on the basis that it failed to maintain the footpath for over 25 years.

“The state of this footpath has been highlighted for the past six or seven years and because the council didn’t carry out any work, it deteriorated over time,” Cllr Deere said. "The council are being praised here for not doing work and it has be highlighted.”

Head of the Municipal District David Mellett said council staff had recently received feedback on the Draft Footpath Programme and one of the areas emerging as a priority is the footpath close to the Sacred Heart Hospital.