Ex-hurricane Ophelia brought severe winds and rain across the country this week, causing destruction on farms.

But what legal liability does a farmer face for fallen trees?

There are various types of legal action that can be taken arising from damage caused by fallen trees. One is nuisance, which is unreasonable interference with another person in the exercise of his rights.

The law seems fairly clear that in nuisance, the owner of a tree is not liable for damage caused by the tree provided that they did not know that the tree was dangerous or could not have discovered that it was dangerous by inspecting the tree.

Another action which may be brought against a tree owner for damage caused by a tree is negligence.

Liability for negligence depends on how foreseeable the risk was and whether proper steps had been taken to prevent the incident.

Did the tree owner fail to take reasonable care, which led to the incident, for example failing to fell a rotting tree? Or did the tree owner do something which contributed to the incident, such as cutting off large boughs and leaving secondary branches which were more susceptible to storm damage? If so, liability may attach to the owner for damage caused by a falling tree.

Court

The courts’ attitude to such cases can be illustrated by the remarks of the judge in a High Court appeal who said, in finding in favour of the tree owner, that the condition of the tree could not reasonably have been discovered by an ordinary prudent landowner even though the tree had proved rotten in some respects as shown by a black spot, fungus growth and dead bark high up on the stem.

He said not every farmer could employ an expert to examine his trees and that not as much care was needed beside a road in Co Mayo where the tree had caused an accident to a passing car as in a densely populated area.

Given that the recent storm conditions uprooted what may be regarded as many ‘healthy trees’ it would be difficult to attribute the damage caused in these instances to the tree owner.

The information in this article is intended as a general guide only.

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