Legal Jargon!What does "defence of non-feasance" mean?

S

springer

Registered User
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Hi All,
A while ago I posted a thread in the `car related`section concerning smashed windsreens on my vehicle due to the state of the road I commute on.

I wrote to the council on a hunch that as they are responsible for the physical condition and upkeep of roads they may be insured to compensate me for the damage caused. I have received a letter from them saying that `the authority have available to it the defence of non-feasance`.

What does "the defence of non-feasance" mean? Anybody?
 
Hi Springer,

Try here Kieron Woods WebPage.

Nonfeasance: Not doing something that one is bound to do by law. Compare with misfeasance.
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Other definitions from Google Define: Nonfeasance

[SIZE=-1]Failure to perform some act which should have been performed.
www.edgarsnyder.com/resources/terms/n.html[/SIZE][SIZE=-1]

a failure to act when under an obligation to do so; a refusal (without sufficient excuse) to do that which it is your legal duty to do
wordnet.princeton.edu/perl/webwn[/SIZE]

and finally from a [broken link removed] in 1960. Civil Liability Bill, 1960— Second Stage.

Section 60 will abolish the defence of nonfeasance by a road authority.

As the law has stood since the famous case of Russell v. The Men of Devon, decided as long ago as 1788, a road authority are not liable for damage resulting from mere nonfeasance, that is to say, from mere neglect to perform their statutory duty to repair the road.

But a road authority are liable for negligence in the execution of their duty. In other words, they are liable for misfeasance.

Section 60 will provide certain statutory defences for a road authority; and the factors to which regard must be had in determining whether a road is adequately maintained are set out.
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aj
 
In this context, it means that there is a distinction in law between two levels of fault:

1. If the council do a repair, but do it badly, this is misfeasance or malfeasance.

2. If the council simply don't get around to doing any repair, this is nonfeasance.

For reasons which I can hardly remember, it is easier to sue for ground 1 above than it is for ground 2.
 
Time to drag this one up again.

Can a local authority still hide behind non-feasance? It was suggested last year that they will not be able to do this anymore.
The sidewall of my tyre (€320 to replace) was cut on a pothole on the road leading into Limerick from Westbury.

I got a letter from Clare Co Co saying they are claiming Non-feasance. This is insult piled upon injury. Not only is this a ridiculously untended road (especially as it is so busy) they have the cheek to hide behind non-feasance. Now, there is unlikely to be a square inch of this road not repaired - for those unfamiliar with this “road” think Mogadishu back-road - which would lead me to think misfeasance. Therefore what chance would I have if I took it to court.
Secondly, (especially if I don’t win the case) could I change my car tax to different authority if I have another residence there? Even if I don’t live there very often. Would much rather pay it to another authority who at least look after their roads.

I’ve been away all day and just picked up this letter from the council - so, can I just say :mad:!#:mad:!#:mad:!
 
BTW, I've never been to court and would be thinking of going down the small claims route...
 
smcgiff said:
Time to drag this one up again.

Can a local authority still hide behind non-feasance? It was suggested last year that they will not be able to do this anymore.
The sidewall of my tyre (€320 to replace) was cut on a pothole on the road leading into Limerick from Westbury.

I got a letter from Clare Co Co saying they are claiming Non-feasance. This is insult piled upon injury. Not only is this a ridiculously untended road (especially as it is so busy) they have the cheek to hide behind non-feasance. Now, there is unlikely to be a square inch of this road not repaired - for those unfamiliar with this “road” think Mogadishu back-road - which would lead me to think misfeasance. Therefore what chance would I have if I took it to court.
Secondly, (especially if I don’t win the case) could I change my car tax to different authority if I have another residence there? Even if I don’t live there very often. Would much rather pay it to another authority who at least look after their roads.

I’ve been away all day and just picked up this letter from the council - so, can I just say :mad:!#:mad:!#:mad:!
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Nonfeasance is still a defence to a local authority I'm afraid. There is actually law going back to 1961 (Civil Liability Act) which has a section which allows a road authority to be held liable for damage caused as a result of their failure to adequately maintain a public road but surprise surprise this hasnt been brought into operation.

As regards the tax issue I was under the assumption that motor tax was paid into a central fund out of which Local Authorities get their respective lolly. I could be wrong though.
 
I was traveling in Wicklow and buckled two wheels on a pot hole. I contacted the council who claimed non-feasance. I just continued to hassle them until they first offered me €200 then a final offer of €290 (half the cost of replacing the wheels). I reluctantly accepted it as it was their 'final offer'.

It's hard to believe we are obliged to pay road tax but the council are not obliged to maintain roads that are fit for purpose.

I did hear of a guy (can't remember where but in Ireland) who called the local paper and asked for a reporter to meet him at the council buildings, took the damaged wheel into the building and slapped in on the desk. He refused to leave until they paid for the damage.
 
smcgiff said:
BTW, I've never been to court and would be thinking of going down the small claims route...
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SCC is only for consumer to business issues. This does not sound like it would qualify.

Maybe the [broken link removed] might be an option?
 
ClubMan said:
SCC is only for consumer to business issues. This does not sound like it would qualify.

Maybe the [broken link removed] might be an option?
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Bummer I'm feeling rightly hard done by!
 
Thanks Frasier/McCrack...

I'll never complain about anyone who doesn't pay their road tax. It was just a non-feasance lapse forgeting to pay.
 
You could complain to your local councillor, especially just prior to next local election!
 
jpd said:
You could complain to your local councillor, especially just prior to next local election!
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Was thinking that... Prefer not to though. Although local FF councillor lives in my area! :)
 
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