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 the injured party 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. 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.”
The occupier of shops, offices, car parks and similar places will have a far greater obligation to take such care as is reasonable in all the circumstances for the safety of visitors. For example, a station car park is a place to which drivers are “invited” as are rail passengers and leaving it un-gritted on an icy night is a breach of the duty of the station owner or controller under the Occupiers’ Liability Act 1995.