Local authority liable for injury to jogger after failing to repair footpath

Personal injuries – assessment of damages – accident at caravan park owned by County Council - plaintiff was jogging when he tripped over a depression or hole in the surface of the footpath at the entrance of the caravan park, causing him to fall to the ground and suffer a fracture to the knuckle on the third digit of his right hand - suffered a comminuted fracture of the knuckle on the third digit of his right hand – all matters at issue – council submitted that he injured his hand whilst boxing – alleged that it was a fraudulent claim - argued that the road and footpath in the caravan park constituted a public highway and they were entitled to rely on the defence of non-feasance – argued that plaintiff was a recreational user as he was jogging – occupiers’ liability – contributory negligence – evidence on liability – previous road trafficc accident – evidence on causation and quantum – credibility of the plaintiff and his claim – delay in bringing the accident to the attention of his solicitor - factors to which the court can have regard when determining whether a defendant acted with reckless disregard towards a plaintiff – Court found that the plaintiff has given a credible explanation for the delay - Court found that the road is similar to an internal road leading to a block of corporation flats – Court determined that if the road was a public road, which had been taken in charge by the defendant, then it should have been noted in a schedule or map maintained by the Road’s Authority pursuant to s. 10(5)(a) of the Roads Act 1993 - area was under the control of the council’s housing department – Court satisfied that the road and footpath at the locus, were not a public highway – accordingly the landowner was not liable to the user of a public right of way for negligent non-feasance -  defence of non-feasance would not apply in this case - damage to the footpath was not caused by normal wear and tear - legislation did not intend that there should be changing duties of care owed to an entrant, depending on what activity he or she was doing at any one time – Court satisfied that the classification of the entrant as either a “visitor”, or a “recreational user”, is determined by the circumstances in which they enter the property in the first place - a visitor as defined in the Act, they do not lose such status, merely because they engage in some form of recreational activity while on the premises – Court satisfied that the plaintiff did not lose his status as a visitor, merely because he was jogging up the footpath on the evening that he met with his accident - satisfied that the depression and scoring on the surface of the footpath, constituted a danger to people using it – in failing to repair the footpath, the council breached the common duty of care which it owed to the plaintiff – Court declined to make any finding of contributory negligence against the plaintiff – Court awarded €35,000 in general damages for pain and suffering to date - €20,000 in respect of future pain and suffering - Court can have regard to the nature of the defence run by a defendant when considering whether it is appropriate to make an award of aggravated damages – council accused him of putting forward a fraudulent claim - entitled to be compensated for the upset caused to him by virtue of the nature of the unsuccessful defence - €5,000 as aggravated damages - overall award in favour of the plaintiff of €60,000.