Nuisance – Negligence – Damages – Appellant seeking damages for subsidence allegedly caused to property by neighbouring tree roots – Judge concluding that respondents not in breach of common law duty to appellant – Judge awarding damages for distress , inconvenience, loss of amenity etc – Whether judge erring in law – Appeal dismissed – Cross-appeal allowed in part
The appellant was the freeholder of a Victorian house in a mature tree–lined street. Its garden backed onto a deep railway cutting, beyond which were two tunnels constructed in 2003. The neighbouring property, which was owned by the first respondent housing association, had a mature tree in its front garden. The second respondent local authority was responsible for two mature trees on the pavement outside the appellant’s property.
The appellant’s property had shallow foundations and damage to drains had led to significant leaks in 2003, which, according to experts, were likely to have affected the weight–bearing capacity of the underlying made–up soil above the London clay. Following repairs in 2005, the drains no longer had any deleterious effect on the soil. However, the appellant’s property continued to suffer cracks to external and internal walls resulting in widespread damage to the building.
The appellant brought proceedings for damages in nuisance and negligence against the respondents. She argued that they had wrongfully caused or permitted the roots of their trees to encroach onto her premises and/or to extend under those premises from 2003, and thereafter on a continuing basis until 2011, thereby undermining the foundations of her property. The appellant contended that the respondents were in breach of the common law duty of care to take the necessary steps to minimise or prevent damage resulting from the close proximity of the trees to her property.
The judge concluded that the respondents had not been in breach of duty in failing to remove the trees before Autumn 2010. However he upheld the appellant’s claim for distress, inconvenience and loss of amenity on the basis that the trees ought to have been removed by then and awarded her £5,000: [2011] EWHC 1353 (TCC), [2011] PLSCS 115.
The appellant appealed contending that the judge had erred in law in holding that the damage to her property was not reasonably foreseeable; the second respondent had followed a prudent regime of tree management by pruning; and the respondents were not liable for the 2003-2004 damage until they were given notice of that damage. The respondents’ cross-appealed against the award of £5,000.
Held: The appeal was dismissed. The cross-appeal was allowed in part.
Disputes involving damage allegedly caused by tree roots called for the application of the general law of negligence and nuisance. The test was whether the trees were an effective and substantial cause of the damage. It was necessary to consider whether there was a real and substantial risk or chance that something like the event that happened might occur and whether the reasonable man would have taken the steps necessary to eliminate that risk.
One could not separate the enquiry as to reasonable foreseeability of damage from the related enquiry as to what it was reasonable to do in light of the reasonably foreseeable risk. It might be reasonable to take no steps to eliminate a risk which was unlikely to eventuate and which would be of small consequence if it did. One had to balance the risk of damage against the social utility of the activity which gave rise to that risk: Tomlinson v Congleton Borough Council [2004] 1 AC 46 applied; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 and Solloway v Hampshire County Council [1981] 1 EGLR 129, [1981] 258 EG 858 considered.
The evidence in the present case came nowhere near to suggesting that the respondents should before 2003/2004 have identified the three relevant trees as posing a risk to the appellant’s property of a nature and extent which imposed upon them a duty to take some preventative or remedial action over and above whatever regime of tree management was already in place. The judge’s conclusion represented the outcome of the required balancing exercise and he was right to dismiss the appellant’s claim in respect of the damage to her property in 2003/2004.
The judge’s award of £5,000 for distress, inconvenience, loss of amenity etc was excessive and could not be sustained. Damages awarded under that head were intended to provide modest, not generous compensation. In order that litigants might properly be advised, it was important that there was consistency in such awards and the case of Eiles v Southwark London Borough Council [2006] EWHC 1411 (TCC) had established a benchmark for such damages calculated at £200 per annum from which it would be unwise to depart in a case where the appellant had formulated her claim by reference thereto.
Howard Palmer QC and Daniel Crowley (instructed by Plexus Law) appeared for the appellant; Rebecca Taylor (instructed by Weightmans LLP) appeared for the first respondent; Andrew Bartlett QC and Muhammed Haque (instructed by Clyde & Co) appeared for the second respondents.
Eileen O’Grady, barrister
