Woman who tripped and fell on footpath in a housing estate awarded €110k
High Court Reporter
A woman who tripped and fell on a footpath in a housing estate fracturing her shoulder has been awarded €110,000 by the High Court.
Healthcare assistant Carol Loua, Judge Denise Brettt said has suffered significantly and continues to do so after a fall as she walked from her home through a housing estate on the way to the hairdressers eight years ago.
The judge accepted that the accident in April 2018 at Broadfield Court, Rathcoole, Dublin where Loua said her foot caught on concrete projecting upwards from the ground causing her to fall occurred in the manner described.
The judge said she was satisfied that the differential in the pavement slabs was caused by root action form an original lime tree planted within the adjacent verge.
The judge said the evidence established that the root uplift which ultimately caused the accident arose from the growth of a tree selected and planted by Cavan Developments in the narrow grass verge.
Loua won her case against the estate developers Cavan Developments Ltd, which built the Broadfield estate where she was walking and also planted the original lime tree.
A case against the local authority, South Dublin County Council (SDCC) was dismissed.
Judge Brett found that the dangerous condition in the footpath was caused by the roots of a lime tree, that the tree was selected and planted by Cavan Developments.
She noted that the developer had arranged for the removal of the tree in October 2017 but no remedial work was undertaken to the adjoining footpath and that no notification of the condition of the footpath or the tree was given to SDCC.
“What is striking about the evidence is that the developer remains sufficiently involved to arrange for the removal of the very tree which the court has found caused the damage.
"By that point the defect already existed. Yet neither remediation nor notification followed.
"Had evidence existed that the condition had been reported to the council when the tree was removed, different considerations might potentially have arisen. No such evidence was adduced,” the judge said
However, Judge Brett stressed that it was not a case about whether trees ought to be planted in residential developments and was not a case about discouraging roadside planting or concerning the ordinary maintenance of mature trees.
“The issue in this case is much narrower. It concerns the consequence of planting a particular species of tree in a particular physical environment and the damage which subsequently occurred as that tree foreseeably developed,” the judge said.
The judge said the developer relied heavily upon lime trees being among the species recommended by the local authority for street planting.
A tree expert, she said had described the lime tree as one more commonly associated with broad avenues, parks and expansive streetscapes and the issue was whether this lime tree was suitable for this location,
Judge Brett said she accepted a tree expert’s evidence that this particular lime tree had been planted in an environment which did not adequately accommodate its foreseeable future growth with no appropriate ameliorating measures applied.
The provision by a planning authority of a list of species considered potentially suitable for street planning she said cannot relieve a developer from the obligation of selecting an appropriate species.
She added: “I am satisfied that the selection and planting of a lime tree within this narrow verge created a foreseeable risk of root encroachment beneath the adjoining footpath.
"I reach that conclusion having regard to the species selected, its proximity to the footpath and expansion joint, and the absence of a root barrier, the absence of any other identified root management measure and the evidence of a tree expert that such root ingress was a known and predictable phenomenon.”
