South Dublin County Council is not liable for an accident in which a retired cleaner injured herself by tripping over the roots of a tree that had erupted onto a footpath and created a hazard for pedestrians, a judge ruled today.
The decision of Judge James O’Donohue in the Circuit Civil Court means that local authorities are not legally liable for such accidents – providing they have not taken any action to repair their footpaths damaged by tree root intrusions.
Judge O’Donohue, in his ruling on a personal injury claim by 70-year-old Mary Fagan, of Arthur Griffith Park, Lucan, Co Dublin, said he agreed with the legal submissions presented to the court by barrister Paul McKeon on behalf of the county council.
Mr McKeon told Judge O’Donohue that his client’s contention that its failure to repair the footpath at the site of the accident did not confer liable for accident to Ms Fagan on the basis of the nonfeasance rule whereby a tree is considered to form part of the public road.
The duty of a road authority to maintain the tree was actionable only in respect of misfeasance, negligence caused by a repair to the footpath or the removal of branches or roots or of the tree itself.
Mr McKeon said that if a tree did not fall within the definition of a road under the Roads Act, the local council, in its capacity as the roads authority, would not have any power to attend to a tree, to lop and cut branches or to remove it in the case of tree root action. Under legislation a tree was defined as part of the road.
“It is submitted that although the definition does not specifically refer to trees it does include any structure or thing for the amenity of road users and for the protection of the environment,” Mr McKeon said. “Trees provide a considerable benefit and amenity to the public in general and road users.”
Mr McKeon told the court that street trees played a crucial role in capturing pollutants and particulates from the air which could significantly improve air quality.
He said Ms Fagan’s claim had been entirely predicated on the admitted fact that the council had omitted to carry out any works to deal with the incremental damage that had been caused to the footpath due to tree root intrusion.
Judge O’Donohue, stating that the court sympathised with Ms Fagan who had suffered a genuine and significant injury to her wrist, said South Dublin County Council was entitled to an order for its legal costs against her.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*
