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Abolish Gov’t’s immunity from liability over roads

Published:Sunday | June 28, 2015 | 12:00 AM
Raun Barrett
A motorist rounds potholes on the Church Pen main road in St Catherine on June 10.
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I note the article by Gleaner reporter Jovan Johnson published on Wednesday, June 10, 2015, titled 'Lawyer reminds Jamaicans to sue over poor road conditions'. In the said article, attorney-at-law Kent Gammon was reported as saying that persons can sue the Government where it is believed negligence by the authorities resulted in road-related accidents.

That may be so. After all, the Main Roads Act imposes a duty on the National Works Agency, and, by extension, the Government to make, repair, maintain and manage roads. However, it is highly unlikely that a person will be able to successfully sue the Government for injuries resulting from any breach of its statutory duty to maintain and keep the roads in repairs.

The fact of the matter is that in Jamaica, the liability of a highway authority is governed by the common law. Under the common law, highway authorities are not liable to an action for an injury arising out of a failure to repair the highway. The law, therefore, renders the Government immune from such liability.

There has been a line of legal authorities going as far back as the 19th century that supports this doctrine. One of the earliest cases dealing with this subject matter is the 1892 House of Lords decision in Cowley v Newmarket Local Board. The doctrine is captured in the phrase: "car est populus et surra reforme per presentment" - if a highway be out of repair, by which my horse is mired, no action lies. In Cowley, Lord Halsbury remarked: "That that has been considered to be the law for more than a hundred years is certain ... ." It was held that the Local Board was at most only guilty of non-feasance and not misfeasance and, therefore, not liable for the injuries sustained by the claimant.

Locally, our courts tend to rely on the authority of Sunbeam Transport Service Ltd v Attorney General et al, a 1989 Supreme Court decision. The court found that the highway authority (then known as the Public Works Department) was not liable for injuries and deaths that occurred when a roadway inexplicably collapsed, causing a bus to plunge into a gully resulting in deaths. Justice Wolfe (as he then was) held that the liability of a highway authority is governed by the common law, and such an authority cannot be held liable for damage suffered unless there is clear evidence of an act of misfeasance.

There have been numerous other cases on the subject matter; however, in the interest of brevity, I will only mention two relatively recent decisions of the Supreme Court. In Mavis Smith v Chief Technical Director and Attorney General of Jamaica 2009, the doctrine was also applied. The claimant, while walking along Church Street in Morant Bay, St Thomas, fell into a pothole and had to be hospitalised as a result of her injuries. The claimant failed in her claim to recover damages from the Government. At Paragraph 34 of the judgment, Justice Mangatal could hardly disguise her sympathies for the claimant when she noted: "This immunity of a highway authority from liability for non-feasance has not, to date, been abolished in Jamaica and I have to apply the law as it stands in the circumstances of this case ..."

In a more recent case, decided in 2012, the claimant in Christine Brown v The Attorney General of Jamaica sued the Government in negligence for injuries she sustained while walking on King Street, downtown Kingston, when she fell into a manhole through a broken storm grating, injuring her leg. The claimant, a fruit vendor, suffered permanent injuries to her leg as a result of the accident. Here again, the claimant failed in her claim against the Government to recover damages.

The reason for this unfortunate state of affairs is the distinction that the common law makes between acts of misfeasance and non-feasance.

 

Misfeasance

 

An authority will be held to commit misfeasance where it performs a statutory duty or obligation in a negligent manner. It is liable for injuries to users of the highway if it repairs it negligently or have hired contractors who repair it negligently.

According to the Lord Chancellor in the old English case, Mayer and Corporation of Sureditch v Bull 1904: "The moment the structure of the road is interfered with and it comes within the ambit of the operation commenced by the person who is entitled to interfere with the structure of the road, then until that road is restored into the condition in which it was before that alteration of its structure began, it seems to me the person who interfered with it is responsible for a misfeasance."

Whether any act or omission constitutes a misfeasance is a question of fact. Each case, in that respect, must be decided on its own particular set of facts.

In the three local cases cited above, Sunbeam, Mavis Smith and Christine Brown, the claimants in each case failed to prove that repairs were carried out on the road by the highway authorities and that the repairs were done negligently. Thus, their respective claims failed.

 

Non-feasance

 

On the other hand, non-feasance is the failure of statutory authorities or bodies to carry out functions such as repairing roads, highways gullies, and the like. Highway authorities are not liable to an action for injury or damage arising out of the failure to repair the highway.

 

Distinction between Misfeasance and Non-feasance

 

In simple language, misfeasance is where the highway authority does a bad job constructing or repairing the road, thus rendering it dangerous to its users. In such a case, the authority may be liable for any injuries caused by their negligence. Non-feasance, however, is simply where the authority does not interfere with the road at all, and, over time, because of wear and tear, the road becomes dangerous to its users. In this case, the authority is not liable for any resulting injuries.

 

Need for Change

 

The effect of this immunity from liability which the State enjoys is that those members of the public who use the highways and roads will suffer the injustice of not being compensated for personal injuries and damage to property caused by the State's negligence. This is a most unsatisfactory state of affairs, and it is also quite ironic, too, when one takes into consideration the reported proposal by Dr Morais Guy, non-portfolio minister in charge of transport, to have victims of motor vehicle accidents enjoined to compensate the state for damage to road infrastructure and furnishing.

The law is clearly in need of reform. Justice Mangatal in the Mavis Smith case opined:

"Our laws remain unchanged after centuries, despite wide-scale changes in the level of development and role of government and public authorities in our society ... the legislator will have to consider whether it is desirable for the law to remain in this state, exempting liability of public authority for non-feasance. This state of affairs continues to exist in a time and climate where the citizens are demanding greater accountability from public authorities and requiring some level of accounting as to the allocation and spending of their tax dollars."

The position in England is different. By virtue of the Highway (Miscellaneous Provisions) Act, England first amended its law in 1961. That act has since been repealed and replaced by later pieces of English legislation dealing with highways, but the relevant change in the law has been maintained.

I leave you with a quote from Justice Lawrence-Beswick's judgment in the Christine Brown case where, after ruling against the claimant, the judge went on to say:

"I now join the several voices which for years have called for lawmakers to consider the state of the law concerning non-feasance and misfeasance and to determine if the law should be modernised to reflect society's needs and better serve the citizens whose resounding cry is for justice."

- Raun Barrett is an attorney-at-law with the law firm Malcolm Gordon Law and specialises in personal-injury claims. Send feedback to columns@gleanerjm.com.