We referred to a Dublin Corporation Bye Law of 1899 requiring the clearing of snow from the footpaths of the City of Dublin.

Here is what Section 54 of the Public Health (Ireland) Act 1878 says on the subject:

“54. [Where the [district council] do not themselves undertake or contract for The cleansing of footways and pavements adjoining any premises, the removal of house refuse from any premises, the cleansing of earthclosets, privies, ashpits, and cesspools belonging to any premises, [A district council] may also, and when required by order of the Local Government Board shall, make byelaws for the prevention of nuisances arising from snow, filth, dust, ashes, and rubbish, and for the regulation of the keeping of animals on any premises, or for the prevention of such keeping, so as to be [prejudicial to health].”

This legislation clearly states that the snow is a nuisance. It is a public nuisance if it is on the public pavement. If it is not cleared off by the adjoining occupier, it is being maintained by him/her. Consequently the occupier is answerable for injury sustained by passersby who fall on the snow.

Last January we had snow and ice. Now we have them again.

HERE is a post we published then.

It reads:

“Many people have been injured in Ireland on public pavements due to the recent snow and ice. Public pavements are “public” because they have been “taken in charge” by the local authority. (If they are not taken in charge they are private pavements.)
It is settled law in Ireland that a public authority is not liable for damage arising from “non-feasance”. This means that, if the public authority fails to exercise a statutory power, and loss is sustained which would have been avoided if the power had been exercised, the public authority is not accountable in law for that failure.
(This does not mean that public authorities are not liable for all failures. They are liable to the same extent as ordinary persons for failure to act; that means that a Plaintiff must prove a duty of care resting on the public authority and loss arising from breach of the duty or care.)
Consequently, a failure by a local, or other, authority to clear snow and ice from roads or footpaths, generally, is an act of non-feasance and attracts no legal liability.
Private persons (adjoining owners and occupiers) have, generally, no liability in common law to clear public roads or pavements of snow and ice. They may have a particular liability; if they place the snow or ice on the road or pavement, or create it in the first place. These acts would constitute a public nuisance. For instance, if the owner or occupier transfers a snow burden from his premises onto the public pavement, the presence of the snow is not “natural”. It is man-made. The owner or occupier had created the condition. For further instance, if the owner or occupier pours hot water on the pavement to melt ice already there, and the water freezes, the new ice will have been created by the owner or occupier.
If the servants or agents of a public authority create a public nuisance, the authority will be liable on the general principles of nuisance.
In the City of Dublin a particular liability rests on owners and occupiers (including local and public authorities) adjoining public pavements to clear the pavement of snow immediately on the cessation of the snowfall. The liability was created by bye-laws of June1899. The bye-laws do not expressly create an entitlement to compensation for persons injured on such un-cleared pavements, but the courts have consistently interpreted such statutory obligations as creating and conferring such entitlement.
The liability for private roads and pavements will be covered by either or both of contractual duties, if any, and the Occupiers Liability Act 1995.”

Proving a loss of profit is a common event in “business interruption” insurance. It will also arise as part of a claim against a wrongdoer where the damage complained of has closed or stymied the business.

However, it is not immediately obvious what the method of calculation should be. The claim is, inherently, speculative. The loss is the profit which would have been generated but for the wrongful act. The turnover for a prior relevant period would be a start, but not conclusively so; what if the turnover was in sharp decline? (As has happened in banking and construction in Ireland recently). Of course the turnover may have been accelerating (as is the current position with the business of lawyers practising in the field of professional negligence).

It is necessary therefore to find the trend.

It is also necessary to remember that a reduction in turnover will not reflect exactly the reduction in profit; many overheads remain while the business limps on; in short, the profit reduction percentage will exceed the reduction in turnover expressed as a percentage.

If the BP oil disaster in the Gulf of Mexico happened in Irish waters who would be held responsible?

The question is intentionally ambiguous. It seems to refer to a functioning “administration” which would search out culprits and assign blame and punishment. It seems also to refer to the principles by which blame and perhaps punishment would be assigned.

The first aspect might lead to a rant and should be avoided; it is the second aspect to which I refer, and even that can prove contentious. Consequently, I am invoking consideration of the civil law only.

We know that BP is the lead partner in the drilling of the oil well. We know that the partnership hired an oil drilling platform, and crew, from Transocean. It also engaged Halliburton, as engineers, to pump cement slurry into part of the oil well structures to contain oil.

If damage is caused to a third person during a BP-like operation in Ireland, that person would look to the law of negligence and nuisance to found a claim for compensation. The burden of proving negligence would lie on the injured person. It can be anticipated that the BP partnership would plead that it hired competent independent contractors and that, in standard Irish legal principles, it is not liable for damage caused by any negligence of those contractors.
The Plaintiff would, understandably, reject this. Some obligations cannot be delegated, particularly if they are risky. Drilling an oil well under the sea is risky, particularly at a depth of a mile.

The Plaintiff would still have to prove negligence. If the cause of the accident is to remain unknown, the Plaintiff might be in trouble. (In the BP incident, this is the significance of the admission Barack Obama extracted from BP; proof of negligence need not now be addressed by claimants in civil negligence claims against the BP partnership.)

In Ireland, there would be no admission of liability by a Defendant like BP. Faced by the formidable problems in proving liability in negligence, an Irish Plaintiff would look to the law of nuisance for success. Nuisance is a tort of strict liability. A Plaintiff does not need to prove “fault” to win. He simply needs to prove the source of the damage and that the Defendant was the source.

A leaking oil well is a public nuisance. If the oil damages the property of others the Defendant drilling the well is strictly liable.

Proof of loss from such a source would, itself, require to be sophisticated. Proving loss of profit is not easily done, but would be easy in comparison to the obstacles Plaintiffs commonly have to face in Ireland to hold powerful interests to account.

The Minister for Transport has suggested that he will require the occupiers of premises adjacent to public footpaths to clear them of snow and ice.

He has also, unfortunately, indicated that the occupier will be exempted (by the Minister) of legal liability arising from that obligation.

Why bother?

If the occupiers are free of consequences for failure, they won’t clear the pavement in the first place.

The Minister’s proposal is not suitable for legislation; it is suitable for a proclamation. He is, in effect, proposing to issue a call to arms, directed to the Nation, enjoining the citizens to embrace goodness and to avoid evil.

(The title to this post comes from one of my Christmas presents; a series of CDs of episodes of “Jeeves and Wooster”, starring Hugh Laurie as Bertie and Stephen Fry as Jeeves. My particular interest is in the Drones club and its members; it helps to understand current Irish politics by realizing that the Drones are in charge)

(Slippy pavements are not our major problem; NAMA is the big problem).

Just before Christmas, Ireland suffered a number of flooding instances. They did not all have the same cause and cannot all be termed “acts of God”. (Few events in Ireland would qualify in that category).

Dempsey v Waterford Corporation [2008] IEHC featured a case of flooding causing, the Plaintiff alleged, an actionable nuisance. In the case the Defendant was found not to be liable, principally because it did not know of the existence of the sewer from which the flooding came. The law of nuisance requires that the nuisance be caused by the Defendant or be continued by the Defendant after gaining knowledge or means of knowledge of the nuisance. (In short, if the Defendant did not know of the nuisance but ought to have known of it, he will be liable.)

Nuisance does not require proof of negligence on the part of the Defendant. It does not require the Plaintiff to prove the Defendant caused it. It requires the use of land or adoption of use, detrimental to the Plaintiff’s use of his land.

The nuisance is complete if the “use” is complete; in short, the arrival of rain water is not necessary to complete the nuisance, just the conditions on the land that will and do cause the flooding. A blocked or inadequate culvert would qualify, for instance, as a nuisance.

When the Plaintiff proves the nuisance, the onus to exculpate himself falls on the Defendant.

The remedy for nuisance can extend beyond compensation to injunction. The compensation will be an amount sufficient to put the Plaintiff back in the condition he/she was before the wrongful event.