Mangatal

A judge has pointed out that there is no law to make the Government liable when persons are injured or motor vehicles damaged due to the State's failure to maintain the roads.

Supreme Court Judge Ingrid Mangatal made the observation a few days before Government announced that a portion of the money to be collected from a new tax on petrol would go towards road repairs and maintenance.

But Mangatal, in handing down a judgement in the Supreme Court, called for legislation to be passed to make the Government liable to persons who were injured on the roads because of non-repair.

"I have looked through our Main Roads Act, and indeed, any other tangentially relevant legislation, and nowhere can I find, whether expressly, or by inference, any change in the law to make a public authority liable for non-repair," the judge disclosed.

Mangatal recommended on April 21 that the law be amended, when she handed down judgement in a case in which a woman had sued the Government's chief technical director and the attorney general to recover damages after she fell in a pothole and sustained injuries.

The woman, who was represented by attorney-at-law Lawrence Haynes, left the courtroom empty-handed because there was no provision in the law to make the Government liable for her injuries.

Fell into pothole

Mavis Smith, the claimant, filed the suit after she said she fell into a pothole while walking along Church Street, Morant Bay, St Thomas, on September 28, 2000.

Smith said workmen attached to the National Works Agency had carried out repairs or excavation work on the main road and created a deep hole, which remained unfilled up to the time of her accident. She contended in the suit that the defendants, by permitting the pothole to remain unfilled or unfenced, acted negligently or in breach of the statutory duties under the Main Roads Act.

Smith testified in the Supreme Court that on the day of the incident, it rained and she fell into the pothole, which was filled with water.

No pothole there

The defendants claimed that there was no pothole in the area, adding that on investigation, the National Works Agency revealed that there was no record of any work being done on the road immediately before September 28, 2000.

The judge explained that "highway authorities are not liable in action for an injury arising out of their failure to repair the highway". She added, however, that they are "liable for injuries to users of the highway if they themselves repair it negligently or have employed contractors who repair it negligently".

"The legislators will have to consider whether it is desirable for the law to remain in this state, exempting liability of public authorities for non-feasance," said Mangatal. "This state of affairs continues to exist in a time and climate where the citizens are demanding greater accountability from public authorities and requiring some level of accounting as to the allocation of spending of their tax dollars, " the judge added.