Damage to property caused by compression of clay soil beneath it — Whether compression of soil caused by abstraction of water by tree roots — Whether other factors diminished liability — Action in nuisance and breach of statutory duty — Whether damage foreseeable — High Court holding that plaintiff entitled to injunction for tree removal
In 1966 the plaintiffs purchased 44 Park Avenue, Hull — a tree lined street. Some 9-10m from the frontage of their house were two lime trees, they were over 100 years old. The house had been built in 1882 on a clay soil site. It was recognised that clay was prone to compression when built on. By present day standards the house’s foundations were shallow. The plaintiffs first noticed cracks and bricks dropping on the left frontage in 1982. From late 1988 onwards they noticed their front room had cracks on its internal walls. The external bricks around its front bay window had sunk.
In March 1990, a construction engineer examined the house and identified differential settlement in its foundations as the cause. The lime tree roots were identified as possible underlying causes. In May 1992 a structural engineer, appointed by the plaintiffs’ insurers, noted 20 additional cracks. Cracks continued to appear and in December 1993 the house was reinforced by timber supports. An action was brought against the local authority seeking damages for nuisance and breach of statutory control under section 96 of the Highways Act 1980.
Held The plaintiffs’ claim succeeded.
1. On the evidence, the tree roots were an effective and substantial cause of the damage to the house from late 1988, although not the sole cause. To establish liability it was significant that the roots were a substantial cause rather than the only cause: see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] EGCS 31.
2. The shallow foundations did not make the damage inevitable, but made it more likely. However, that did not diminish the liability of the defendants in any way — the roots took their victim as they found it: see Smith v Leach Brain & Co Ltd [1962] 2 QB 405.
3. To recover damages at common law in nuisance for damage by tree roots, foreseeability of harm had to be established: see Russell v London Borough of Barnet (1984) 271 EG 699.
4. The test for foreseeability was essentially the same in contract and tort — whether the risk was one which a reasonable person in the defendant’s position would have regarded as a real risk. That test was satisfied here by a letter from the defendants’ technical services department to the plaintiffs’ loss adjusters. In addition, the council had published a guide to householders advising on safe tree planting distances in the area.
5. The plaintiffs were therefore entitled to succeed in negligence, the risk could have been removed or reduced by pruning the trees.
6. However, the plaintiffs had no claim for breach of statutory duty under the provisions of section 96 of the Highways Act 1980. A duty under that section only arose in relation to trees planted by a highway authority pursuant to the powers created by the section. In this case, the trees had been planted 100 years ago.
7. The plaintiffs were entitled to apply for an injunction to remove the trees since they were a continuing threat to their house.
Rupert Jackson QC and Geoffrey Brown (instructed by Badhams Thompson) appeared for the plaintiffs; Colin Reese QC and Neil Cameron (instructed by Hammond Suddards) appeared for the defendants.
