Month: January 2022

Can I be sued if they damage a vehicle or person? And if I decide to cut them down, do I need a licence?

by Deirdre Flynn for independent.ie

September 29 2020

Dear Deirdre,

I’m a small beef farmer in the midlands and I have an outfarm that’s about 10km from my main farm, so I’m not there that often.

There’s not much land in it, only about 20 acres as I’ve sold a few sites over the years. The land has lovely old trees behind a stone wall and is quite close to the local town, which made it quite popular with people looking to build.

In total there’s around 15 houses on the road, not all on my land, but within about a four-mile stretch, so it’s become fairly busy with traffic.

The trees are now becoming a bit of a problem and over the past number of years some of them have fallen on the road. Storm Ellen the other week brought down a couple of the trees, and one fell onto the road and I’m worried about something worse happening with the rest of them.

Can I just get someone to cut them down? They’re quite big and old but not near enough any of the houses that if they fell they’d land on them.

I’m more concerned about my liability and if they fall on the road. Am I liable to be sued if they fell and did damage to a passing car or person?

And, do I have to apply for a licence to cut them down, as they are on my land?

The issue of trees and overhanging branches is unfortunately a common one, particularly during storms.

There are few issues arising in your query but we will deal with your biggest concern first: liability.

If one of the trees on your land were to fall and either cause damage to property or a person, then the rules of negligence would apply.

This means that in determining whether or not you would be liable, the courts would adopt the approach of reasonableness – what would a reasonable, prudent landowner have done or be expected to have known and done about the dangerous trees that have fallen?

You say the land is quite close to a local town and built-up area, the road is busy with traffic and the trees are “old”; so in this instance, the law requires that you exercise greater degree of care in checking the trees for defects.

Accordingly, you should check the trees and have a system of regularly checking them for any defects. If in doubt about their condition, engage an expert to advise you.

If you fail to exercise this degree of reasonable care, and damages result from your failure, then you could be sued.

A plaintiff (person taking the case) would have to prove that you should have been aware of the dangerous condition of the tree and would have been, had you carried out reasonable inspections.

You would need to show that you exercised the degree of care that would be reasonable and prudent in the circumstances by satisfying yourself that the tree was not a danger.

As the trees are beside the road, you should also be aware of overhanging branches that may interfere with cyclists and walkers or any nearby electricity wires, or obstruct the view of drivers.

If the trees obstruct views of road users or interfere with power lines, the local authority or the ESB may serve you with a notice directing you to cut them back and if you fail to do so, they may do it and charge you.

You should also be mindful of loose branches of these trees that may fall on someone. If tree branches are overhanging or loose, then you may need to cut them back, but you should get an expert to do so – do not cut them back yourself.

The reason for this is firstly, you may need a licence and secondly, if you interfere with the trees and they subsequently fall or cause damage, then you could be held responsible.

With regard to licences, the Forestry Act 2014 sets out the requirements for tree felling licences but also provides a list of trees that can be felled without a licence.

For example, you may fell a tree in an urban area (within a certain definition), but not if it is over 150 years old or within a landscape conservation area.

The Felling section of the Department of Agriculture website provides further details on the list of exemptions and you should consult this and/or the Department prior to taking any action.

Before you cut/fell the trees, you may also need to check if the tree is subject to a Tree Preservation Order. Certain trees may add character to a town, and you say these are located behind a stone wall close to the local town, so you would need to check this out.

If the trees on your land are falling onto the road, then you should act quickly to have them checked to protect your position.

Deirdre Flynn is from a farming background and practices as a solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee, Co Kerry

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.

https://www.independent.ie/business/farming/legal-advice/am-i-liable-if-my-trees-fall-on-a-road-39569712.html

A man who ended up blind and unable to walk after he went to Cork University Hospital with a brain shunt problem as a teenager has settled a High Court action for €25 million.

Conor McCormack’s counsel told the High Court that nothing was done in the hospital for three weeks and, as a result, the teenager suffered a devastating brain injury that left him blind.

Liam Reidy SC, instructed by Ernest Cantillon solicitors, said Mr McCormack’s mother, Sandra McCormack, was “dancing up and down” looking for help.

Ms McCormack told Mr Justice Paul Coffey how her pleas for help in the hospital went unanswered after her son, who had a brain shunt, was brought to Cork University Hospital after collapsing at his home in Douglas, Co Cork, in October 2014.

“Our lives were shattered after the events of 2014. Conor was in so much pain and it was so devastating to watch him lose his sight, hearing and mobility,” she said.

The award is bittersweet, but it will allow the family to give Mr McCormack, now aged 23, the life he deserves, she told the judge.

“He has experienced so much pain and loss in his young life, but he just accepts it… We are in awe of him,” she said.

Mr Reidy told the court that the problem with the brain shunt remained undiagnosed and a diagnosis of abdominal issues was made. The McCormacks had been told of the warning signs and symptoms in relation to shunt blockage when their son had to have a shunt inserted in his skull when he was one year old, he said.

Mr Reidy said his treatment in the hospital was “nothing short of appalling.”

Counsel said Mr McCormack remained without consultant cover for three weeks despite the pleas of his mother.

Seizure
He said the HSE had, in November this year, in a limited admission accepted the management of Mr McCormack when he was admitted to the hospital in 2014 fell below the acceptable standards of care.

Mr McCormack, of Frankfield, Douglas, Cork, had through his mother Sandra McCormack sued the HSE over the care and treatment he received at Cork University Hospital.

On October 7th, 2014, Mr McCormack had a seizure at home and was admitted to Cork University Hospital. A CT scan showed the shunt tubing had disconnected and did not extend through the skull.

Among the claims was an alleged failure to act promptly to warning signs and symptoms of intracranial pressure, while an alleged failure to carry out surgery to correct the shunt caused over and above brain damage in the form of cortical blindness consistent with an acquired brain injury.

The standard of care he received from the HSE in Cork University Hospital at that time fell below the acceptable standard and he sustained irreversible over and above damage, it was alleged.

There was also an alleged failure for three weeks to appreciate that a constellation of symptoms including rising blood pressure, increasing headache, drowsiness and seizure-like episodes were consistent with raised intracranial pressure due to shunt failure, it was claimed.

Approving the settlement Mr Justice Paul Coffey conveyed his best wishes to Mr McCormack “and his remarkable parents.”

https://www.irishtimes.com/news/crime-and-law/courts/high-court/man-left-blind-and-unable-to-walk-settles-case-against-hospital-for-25m-1.4739750

The opening of a malicious Microsoft Excel file attached to a phishing email led to the cyber attack that crippled the national health service earlier this year, according to a report on the incident published on Friday.

The file was opened at a HSE workstation on March 18th, with the email having been sent to the “patient zero workstation” two days earlier.

Over the coming eight weeks, a number of “alerts” were raised within the health service that the IT system might be compromised, but the significance of the alerts was not identified at the time.

The ransomware that was introduced into the system was “detonated” on May 14th, leading to an immediate crisis across the health service.

At a press briefing prior to the publication of the report, HSE chief executive Paul Reid said a high proportion of the organisations that are subjected to a cyber attack are “re-hit” and that actions have and are being taken to mitigate the risk to the service.

The response to the alerts that were raised did not involve the response that should have occurred, he said.

The Department of Health, and an unidentified hospital, took steps prior to May 14th that mitigated the effect of the attack on their systems, the briefing was told.

‘Frail’ IT system
The report, commissioned by the HSE from PwC, identified the “frail” nature of the dispersed IT system used by the health service as a key weakness and recommends a multi-year programme of investment in IT and cybersecurity.

There was a “known low level of cybersecurity maturity” within the HSE and the connected national health network, and this weakness had “persisted”, the report said.

An extra €100 million is to be spent on this issue next year, Mr Reid said, and a business case for an as-yet-uncosted multi-year investment programme is being worked on.

A subcommittee of the HSE board should be set up and should ensure requests for funding to the Government for an IT upgrade “are clearly articulated and the risks associated with the lack of investment are communicated and understood,” the report said.

The report is to be shared with other State and non-State organisations to inform their future preparedness against cybercrime, which is “increasing in frequency, magnitude and sophistication, with cybercriminals operating across jurisdictions and country borders”.

Ransom
The report does not deal with the issues of a ransom or the location of the criminals behind the attack, but the Government said at the time no ransom would be paid, and a number of observers have said the criminal gang responsible is mostly likely based in Russia.

The report noted the staff in the health service showed “dedication and effort” in response to the crisis with individuals across the HSE and elsewhere in the health system responding in a way that illustrated they are “resilient, respond quickly, and have an ability to implement actions and workarounds” in times of emergency.

It noted the HSE is the largest employer in the State and uses more than 70,000 devices, such as personal computers and laptops.

When the Conti ransomware attack was launched early on Friday, May 14th, it resulted in healthcare professionals losing access to all HSE-provided IT systems.

“Healthcare services across the country were severely disrupted with real and immediate consequences for the thousands of people who require health services every day.”

At the press briefing Mr Reid said there was no indication that any patient had died as a result of the cyber attack, and that “great credit” was due to those in the health service for the way they had responded.

The report details how cybercriminals have been targeting healthcare providers and healthcare organisations in the United States, Australia and New Zealand, though Ireland was the first jurisdiction to suffer an attack on its national health service.

Last month much of the provincial healthcare system in Newfoundland was attacked.

The report said it appeared that the criminals used “relatively well-known techniques and software to execute their attack”.

Personal data
The report details how once the criminals had gained access to the health service system, they compromised and abused a significant number of accounts with high levels of privileges, compromised a significant number of servers, exfiltrated data, and moved their operation to statutory and voluntary hospitals.

At the press briefing, the HSE’s interim chief information officer, Fran Thompson, said the normal and the “dark” web were being monitored to ensure people’s data was not published.

The seriousness of the attack on the health service could have been greater, the report noted, “if there had been an intent by the attacker to target specific devices within the HSE environment, eg medical devices”; if the criminals had tried to destroy data at scale; or if they had interfered with the system used by the Covid-19 vaccination scheme.

It is likely that the time it took to recover from the attack would have been “considerably longer” if the criminals had not, on May 20th, posted a link to a key that decrypted files encrypted by the Conti ransomware.

The report noted the areas of the health service that were best equipped to maintain clinical services during the prolonged IT outage were those that rely on paper records for patient services.

It said the seriousness of the deficiencies in the health network system persist and require “transformational change”.

It is clear that very significant investment “on an immediate and sustained basis” will be required to improve the HSE’s IT system and its security.

Improving the system – which “evolved” rather than having been designed, and which involves a cybersecurity risk that is common to all organisations connected to the national health network – will be a “complex programme”, the report said.

The vulnerabilities that are highlighted in the report are not unique to the HSE, the PwC report said, and all organisations therefore need to consider the extent to which they are protected from a major cyber incident.

“The HSE, the State, and non-State organisations, now have an opportunity to build a more robust and resilient cyber frontier nationally.”

https://www.irishtimes.com/news/crime-and-law/opening-of-email-attachment-led-to-hse-cyber-attack-report-finds-1.4752043