Dalippe Lalloo

The High Court decision in Loua v South Dublin County Council; Loua v Cavan Developments Limited and Ors is important, but not because it creates a general exception to the rule of non-feasance for every footpath damaged by tree roots.

It also shows why these claims cannot be investigated by asking only who maintained the footpath on the date of the accident. The selection and planting of the tree, the physical constraints of the planting location, the use or absence of root-control measures, later work on the tree, notice of the defect and preservation of expert evidence may all be decisive.

At the same time, the broader question raised in Best v South Dublin County Council - whether a road authority’s responsibility for, and control over, roadside trees can in some circumstances displace the traditional non-feasance rule - remains unresolved.

What the High Court decided in Loua

Carol Loua fell on a footpath at Broadfield Court, Rathcoole, on 17 April 2018. Her foot caught on a raised section at an expansion joint and she suffered a serious fracture to her left shoulder. The court accepted that a height differential of approximately 10 to 15 millimetres constituted a trip hazard and caused the fall.

The defect was caused by roots from an original lime tree planted in the adjoining narrow grass verge by Cavan Developments Limited, the estate developer. The tree had been removed in October 2017, about six months before the accident. The adjoining footpath was not repaired and there was no evidence that South Dublin County Council had been notified of the defect when the tree was removed.

Ms Justice Denise Brett held the developer liable, dismissed the claim against the council and awarded Ms Loua €110,000. The decision was delivered on 16 July 2026 and is reported as [2026] IEHC 511.
The court stressed that the case was not about discouraging street trees or imposing liability whenever the roots of a mature tree affect paving. The issue was whether this species had been selected and planted in a physical environment that did not adequately accommodate its foreseeable growth, without an appropriate root barrier or other identified root-management measure.

Why the developer remained liable

The developer relied on the fact that lime trees appeared on a list of species considered potentially suitable for street planting. That did not resolve whether a lime tree was suitable for this particular verge, beside this footpath and expansion joint.

The arboricultural evidence described the lime as a tree more commonly associated with broad avenues, parks and expansive streetscapes. The court accepted that root ingress and secondary thickening were known and predictable, and that the confined verge did not adequately accommodate the tree’s future growth.

The legal significance lies in the source of the danger. This was not merely a complaint that someone failed to repair an old public footpath. The court found that the developer’s positive decisions - selecting the species, choosing the planting location and failing to provide an appropriate ameliorating measure - created the foreseeable risk that ultimately materialised.

Taking the road in charge did not retrospectively erase those acts. Nor did planning approval or a planning authority’s general species list transfer responsibility for deciding whether the tree was appropriate for the precise location in which it was planted.

The developer’s later involvement also mattered. It remained sufficiently involved to arrange the tree’s removal when the footpath defect already existed, but neither repaired the path nor notified the council. That later omission strengthened the factual picture, although the core basis of liability remained the positive creation of the danger through the original design and planting decisions.

The council and the continuing non-feasance rule

The traditional distinction between misfeasance and non-feasance remains central to Irish claims involving public roads and footpaths. A road authority may be liable where a positive act creates or worsens a danger. It is generally not liable at common law merely because it failed to inspect, maintain, repair or warn of a defect it did not create.

Section 2(3) of the Roads Act 1993 preserves the existing rule of law concerning a road authority’s liability for failure to maintain a public road. Section 60 of the Civil Liability Act 1961 would expressly impose liability for damage caused by inadequate road maintenance, subject to statutory defences, but that section has never been commenced.

In O’Riordan v Clare County Council, the Court of Appeal reaffirmed that the rule is firmly entrenched and that statutory intervention would be required to dislodge it. The council in that case had inherited a defective cattle-grid structure and had not created the danger. Its failure to inspect or remedy the defect did not become actionable misfeasance merely because the danger was serious or known.
That authority also matters when considering notice. Knowledge or notice of a road defect does not by itself convert a failure to repair or warn into actionable misfeasance where the authority did not create the danger.

In Loua, the council did not select or plant the tree, remove it, work on the footpath or otherwise worsen the condition. The claim against it was therefore characterised as a failure to discover and repair a danger created by another party. On those facts, non-feasance defeated the claim.

What happened to the question raised in Best?

In Best v South Dublin County Council, the High Court was asked to decide whether tree-root intrusion should be treated differently from an ordinary unrepaired footpath defect.

The plaintiff argued that the council’s responsibility for roadside trees, its tree-management policy and its control over both the tree and the road environment could give rise to a duty to address the developing danger. Mr Justice Micheál O’Higgins considered that the Supreme Court’s analysis in University College Cork v Electricity Supply Board might have implications beyond the dam and flooding context.
UCC v ESB recognises a general starting point of non-liability for a danger not created by the defendant, but identifies established circumstances in which a duty may arise, including assumption of responsibility and a special level of control over the source of danger.

Best did not decide whether those principles could overcome non-feasance in a tree-root case. The plaintiff failed to prove with sufficient certainty where and how she fell, and the court declined to give an advisory determination on the wider legal questions without an adequate factual foundation.

Loua presented a much stronger evidential foundation, but the court was able to decide it without resolving the precise issue left open in Best. The developer had created the foreseeable risk; the council had not. The broader special-control or assumption-of-responsibility route against a road authority therefore remains available for argument in a suitable case, but it has not yet been established.

What Loua changes

The judgment provides several useful propositions for future litigation.

•         A footpath hazard may be traced to landscaping and design decisions made years before the physical defect becomes apparent.
•         Taking an estate in charge does not necessarily provide a complete break in responsibility for the party whose positive act created a latent and foreseeable danger.
•         Planning permission or reliance on a general list of recommended species does not answer whether a particular tree was suitable for its precise planting environment.
•         A developer or other party that remains involved in removing or managing the tree may create important evidence of continuing control, knowledge and opportunity to remedy or notify.
•         Engineering evidence must establish not merely that a tree stood beside a raised slab, but the mechanism connecting the species, planting environment, root growth, pavement uplift and the       claimant’s fall.

The case also changes the practical focus of defendant identification. In an estate where roads have been taken in charge, the local authority may appear to be the obvious defendant. Loua demonstrates why the original developer, landscape designer, planting contractor, management company or another party involved in later tree works may require investigation.

What remains unresolved

Loua should not be presented as a general tree-root exception to non-feasance. Important questions remain for another case:

•         What is the position where the road authority itself selected and planted the tree?
•         Can later pruning, removal or other positive tree-management work amount to misfeasance if it creates or worsens the adjoining footpath danger?
•         Can a road authority’s combined control over a tree, verge and footpath satisfy the special-control analysis in UCC v ESB?
•         Can a published tree-management policy or a course of conduct amount to an assumption of responsibility in a sufficiently defined class of case?
•         How should the statutory definition of a public road apply to living trees situated within a verge or margin?

The observation in Loua that different considerations might have arisen had the council been notified when the tree was removed is notable, but should not be treated as a finding that notice alone defeats non-feasance. O’Riordan indicates that it does not. Notification may, however, become relevant when combined with a positive intervention, an assumption of responsibility or evidence that the authority itself created or worsened the risk.

The practical evidential lesson

Tree-root claims require a wider investigation than photographing a height differential and establishing that the local authority had taken the road in charge. Relevant material may include:

•         the original planning, engineering and landscaping documents;
•         tree schedules, planting specifications and species-selection records;
•         the dimensions of the verge and the tree’s proximity to the footpath, kerb and expansion joints;
•         drawings or specifications for root barriers and other mitigation measures;
•         taking-in-charge records and schedules identifying the roads, footpaths, verges and margins accepted;
•         ownership and maintenance arrangements after construction;
•         complaints, inspections, prior accidents and repair histories;
•         tree-pruning, removal and replacement instructions;
•         contemporaneous photographs, measurements and preserved components; and
•         coordinated engineering and arboricultural evidence addressing the mechanism and foreseeability of the uplift.

Witness evidence remains equally important. Best failed before the wider legal questions could be decided because the factual chain linking the claimant to the identified defect was incomplete. A sophisticated legal argument cannot repair a basic evidential gap as to where and how the accident occurred.

A practical guide to recording the location, preserving photographs and identifying potentially relevant footpath records is available on injured.ie.

Conclusion

Loua does not abolish non-feasance and does not impose general liability on road authorities for every public footpath displaced by tree growth.

It does demonstrate that non-feasance does not protect the party whose positive design and planting decisions created a foreseeable hazard. The judgment also confirms that responsibility may survive taking-in-charge where the complaint is directed not at later non-repair, but at the original creation of the danger.

The most useful question in a tree-root case may therefore be broader than: “Who maintained the footpath on the date of the accident?”

Dalippe Lalloo is principal of Lalloo Solicitors in Dublin