IN the last two decades or so, I can’t say I have seen our road network in a more deplorable state than it is now. Manoeuvring the depressions, potholes and uneven surfaces is making driving incredibly stressful and even dangerous.
A huge part of the problem is that we have failed to follow the lead of United Kingdom, (being the country from whom most of our laws are copied from) to pass legislation ridding us a law that actually protects the government from paying for you damages for loss caused by their non-repair of the roads.
There are obligations on the State to maintain our road networks. For example, sections 2 and 19(1) of the Highways Act, Chap. 48:01 imposes a statutory duty on the Ministry of Works & Transport to maintain the highways.
The offensive piece of legislation, which protects the State from failure to repair the road networks, is found in section 150 of the said Highways Act. It states:
Nothing in this Act with respect to the duty of a highway authority to maintain highways maintainable at the public expense shall be construed as affecting any exemption from liability for non-repair available under the common law to a highway authority immediately before the commencement of this act.
That section 150 of the Highways Act preserves a common law exemption we inherited from the United Kingdom. The State is protected from liability arising from non-repair of our roads, i.e. from nonfeasance, as opposed to misfeasance. Failure to repair is non-feasance. Carrying out repair work negligently is misfeasance.
What is ironic is that the UK has long since legislated against this common law exception, meaning that defence/protection for non-repair is no longer available to the relevant authorities in that country.
But in Trinidad and Tobago, that defence for non-repair holds true. It is massively offensive and unfair, but it is the law.
At present, the only circumstance the State cannot claim this exemption is if they carried out repair work negligently (“misfeasance”). For example, if the State did something to the road or omitted to take a precaution that would have made the road safe instead of dangerous, the State could be held liable to compensate you for your loss.
This article just scratches the surface on the principles of misfeasance and nonfeasance as it relates to damage caused by the state of our roads. If you have suffered such damage, it may be prudent to have a discussion with an attorney at law specialising in these matters to determine if you may be able to recover your loss under the principle of misfeasance.
On the hand, would it be wishful thinking to hope the Attorney General is actively considering revoking section 150 of the Highways Act and otherwise removing the State’s protection for non-repair of our roads? Be safe T&T.
Civil Litigation Attorney at Law & Certified Mediator.
Disclaimer:The contents of this article are for general informational purposes only. It does not provide legal advice and does not create an attorney-client relationship with any reader. For legal advice on your specific situation, please contact an Attorney-at-Law of your choosing directly. Liability for any loss or damage of any kind whatsoever allegedly incurred as a consequence of using content in this article is thus hereby excluded to the fullest extent permitted by law.
Make the State Liable for Non-Repair of Roads
IN the last two decades or so, I can’t say I have seen our road network in a more deplorable state than it is now. Manoeuvring the depressions, potholes and uneven surfaces is making driving incredibly stressful and even dangerous.
A huge part of the problem is that we have failed to follow the lead of United Kingdom, (being the country from whom most of our laws are copied from) to pass legislation ridding us a law that actually protects the government from paying for you damages for loss caused by their non-repair of the roads.
There are obligations on the State to maintain our road networks. For example, sections 2 and 19(1) of the Highways Act, Chap. 48:01 imposes a statutory duty on the Ministry of Works & Transport to maintain the highways.
The offensive piece of legislation, which protects the State from failure to repair the road networks, is found in section 150 of the said Highways Act. It states:
Nothing in this Act with respect to the duty of a highway authority to maintain highways maintainable at the public expense shall be construed as affecting any exemption from liability for non-repair available under the common law to a highway authority immediately before the commencement of this act.
That section 150 of the Highways Act preserves a common law exemption we inherited from the United Kingdom. The State is protected from liability arising from non-repair of our roads, i.e. from nonfeasance, as opposed to misfeasance. Failure to repair is non-feasance. Carrying out repair work negligently is misfeasance.
What is ironic is that the UK has long since legislated against this common law exception, meaning that defence/protection for non-repair is no longer available to the relevant authorities in that country.
But in Trinidad and Tobago, that defence for non-repair holds true. It is massively offensive and unfair, but it is the law.
At present, the only circumstance the State cannot claim this exemption is if they carried out repair work negligently (“misfeasance”). For example, if the State did something to the road or omitted to take a precaution that would have made the road safe instead of dangerous, the State could be held liable to compensate you for your loss.
This article just scratches the surface on the principles of misfeasance and nonfeasance as it relates to damage caused by the state of our roads. If you have suffered such damage, it may be prudent to have a discussion with an attorney at law specialising in these matters to determine if you may be able to recover your loss under the principle of misfeasance.
On the hand, would it be wishful thinking to hope the Attorney General is actively considering revoking section 150 of the Highways Act and otherwise removing the State’s protection for non-repair of our roads? Be safe T&T.
Copyright © 2020 Neela Ramsundar, LL.B (HONS), L.E.C
Civil Litigation Attorney at Law & Certified Mediator.
Disclaimer: The contents of this article are for general informational purposes only. It does not provide legal advice and does not create an attorney-client relationship with any reader. For legal advice on your specific situation, please contact an Attorney-at-Law of your choosing directly. Liability for any loss or damage of any kind whatsoever allegedly incurred as a consequence of using content in this article is thus hereby excluded to the fullest extent permitted by law.