Nuisance – Negligence – Damages – Claimant seeking damages for subsidence allegedly caused to property by neighbouring tree roots – Whether defendants breaching common law duty to claimant – Whether defendants liable for continuing damage – Whether claimant suffering loss entitling her to damages from defendants – Claim allowed in part
The claimant was the freeholder of a Victorian house in a mature tree-lined street. Its rear garden backed onto a deep railway cutting, beyond which were two tunnels that had been constructed in 2003 in connection with the Channel Tunnel railway. The property had been converted into eight flats, one of which was occupied by the claimant. The neighbouring property, which was owned by the first defendant housing association, had a mature tree in its front garden. The second defendant local authority were responsible for two mature trees on the pavement outside the claimant’s property.
The claimant’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 repair at the end of 2005, the drains no longer had any deleterious effect on the soil. However, the claimant’s property continued to suffer cracks to external and internal walls and, in 2009, loss adjusters reported widespread damage to the building.
The claimant brought proceedings claiming damages in nuisance and negligence against the defendants. 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 leading to progressive subsidence. The claimant contended that the defendants were in breach of the common law duty of care to take the necessary steps to minimise or prevent such damage as might occur to premises resulting from the close proximity of the trees to her property.
Issues arose as to, inter alia,: (i) the cause of the damage to the claimant’s property in 2003; (ii) whether and, if so, the extent to which the defendants were liable for the continuing damage after 2003; and (iii) whether the claimant was entitled to damages.
Held: The claim was allowed in part.
(1) The test for establishing liability for tree damage was whether the trees were an effective and substantial cause of the damage. It was clear that they need not be the sole cause: Loftus-Brigham v Ealing London Borough Council [2003] EWCA Civ 1490; 103 Con LR 102 applied.
The damage to the claimant’s property was related, directly or indirectly, to tunnelling operations that had taken place in September and October 2003. No evidence had been produced with regard to tree root-induced subsidence. Although the contribution to the damaged soil structure from each of the defendants’ trees was both effective and material it was not, in 2003, likely to have been the predominant cause.
(2) As to the extent to which the defendants were liable for continuing damage, the question was whether they had acted reasonably. When bringing a case in nuisance or negligence, the claimant had to prove that a duty was owed and that it had been breached. The test of foreseeability was whether the risk was one that a reasonable party in the defendants’ position would have regarded as a real risk as distinct from a risk which he would have been justified in disregarding and taking no steps to eliminate: Solloway v Hampshire County Council [1981] 1 EGLR 129, [1981] 258 EG 858; Paterson v Humberside County Council [1995] EGCS 39; and Delaware Mansions Ltd v Westminster City Council [1998] PLSCS 89, [1998] EGCS 48 considered.
In the instant case, the second defendants had followed a prudent regime of tree management. By April 2009, it was clear that their trees were implicated and that felling was the only way in which the nuisance could be abated, but it was not until 9 February 2011 that they gave notice of intention to remove the trees. It would have been reasonable to remove them in the autumn of 2010, and the failure to do so gave rise to breach. There was no reason to distinguish between the position of the first and second defendants so far as abatement and tree felling was concerned. By failing to abate by autumn 2010, both defendants were in breach of their duty.
There was no cogent evidence to show that the degree of physical damage to the structure and fabric of the claimant’s property has increased during the years of abortive investigations, intermittent monitoring and the inconvenience suffered by the claimant. The consequential damage had not been caused by the breach. The gravamen of the instant case was that the claimant had been forced to endure damage to her home and her investment properties and has suffered anxiety between 2003 and 2011. She was entitled to damages for gross inconvenience and loss of amenity in the sum of £5,000. The responsibility for the loss of amenity and gross inconvenience for the intervening years lay elsewhere.
Daniel Crowley (instructed by Plexus Law) appeared for the claimant; Miss Taylor (instructed by Weightmans LLP) appeared for the first defendant; Muhammed Haque (instructed by Barlow Lyde & Gilbert LLP) appeared for the second defendants.
Eileen O’Grady, barrister