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The Hon Mr Justice Ramsey handed down judgment last week finding that damage caused to a domestic property from a hedge of Cypresses situated on a neighbouring domestic property can be reasonably foreseeable.
In the case of Khan v Harrow Council (1) and Kane (2)  EWHC 2687 (TCC) (proceedings against Harrow Council were settled prior to trial) the court considered the general and more specific requirements to be established in assessing the foreseeability of the damage caused. Additionally, it found the claimant’s failure to engage with the defendant property owner and to disclose details of the damage caused amounted to contributory negligence, thereby reducing the quantum awarded.
This decision confirms the threshold to be applied by the court in determining the foreseeability of damage in cases of nuisance in tree root damage cases. Of interest was the submission by the claimants that the level of knowledge about tree root damage among the public generally, through news reports, should be considered in establishing liability. This was rejected by the judge, as it would tend towards ascribing strict liability to the tort of nuisance.
In addition, practitioners should note the judge's finding of contributory negligence against the claimants for failing to communicate with the second defendant regarding the damage, despite conducting extensive surveys of the damage over a significant period of time. In the conduct of disputes, it is clear that the courts will always favour co-operation and engagement between parties in seeking to resolve disputes.
The claimants brought proceedings in respect of damage to their house (the Property) allegedly caused by tree roots from the second defendant's property. The claimants sought damages for the cost of remedial work, fees, and general damages for distress and inconvenience. In her defence, the second defendant admitted that subsidence to the right-hand side of the Property was caused in whole or part by a Cypresses hedge, and/or contributed to by an oak tree on her property. However, she denied that the damage was reasonably foreseeable and contended that the claimants were contributorily negligent for failing to alert her to the damage being caused.
The issues for determination were:
It is settled law that foreseeability is an essential element in determining liability in nuisance. It is not sufficient that the injury that has been suffered was the direct result of the nuisance, if that injury had been in some relevant sense unforeseeable (Lord Reid in The Wagon Mound No 2).
The general principle is that a person was liable:
'if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it' (Lord Reid, The Wagon Mound No 2)
Thus Ramsay J considered that to determine whether the damage was foreseeable, the question was whether or not the second defendant knew or ought to have known about the risk of damage to the property. This required the claimant to establish the necessary actual or imputed knowledge and also to identify what the risk was. The risk must 'occur to the mind of a reasonable man in the position of the relevant person' (The Wagon Mound No 2). The 'relevant person' here being the second defendant (in other words, a private owner of domestic property)
As regards knowledge, Ramsay J's view was that lack of actual knowledge could not lower the standard or exclude liability, which would be imposed based on the standard generally imposed; but that actual, subjective knowledge could raise the standard imposed.
The claimants submitted that media articles and matters of common knowledge regarding tree root damage should be considered in assessing the foreseeability of damage in establishing liability.
Ramsay J rejected this argument. Whilst the expert and media evidence may establish the general risk of subsidence damage caused by trees, this was insufficient on its own to establish foreseeability of the risk in particular instances. The judge warned that to accept the argument that 'everyone knows' the risk would be tantamount to strict liability. The central issue is whether the particular risk posed by the trees and hedge in question was reasonably foreseeable. Matters of public awareness regarding the general risk could form the background to consideration of the more particular risk but more is required to meet the threshold for liability on property owners.
Ramsay J specifically rejected the argument that if it was reasonably foreseeable, say, that there was a risk of the tree on the second defendant's property shedding its limbs, falling over or being blown over and pressing up against the property then this would suffice, i.e. the precise accident need not be foreseeable provided that the accident falls within the foreseeable risk. The foreseeable risk of damage to property caused by falling trees or damage caused by contact to a building did not make damage caused by desiccation of the soil by encroaching tree roots foreseeable.
On the facts, Ramsay J concluded that the second defendant did not have actual knowledge about the risk of damage to the property caused by the hedge and tree on her property.
However, she did have imputed knowledge as regards the hedge. The hedge dominated the property and with the knowledge of the general risk and the location, size and condition of the hedge, he considered this meant that a reasonably prudent landowner would be put on notice of the particular risk, which the hedge posed to the property. It would 'cause the reasonably prudent landowner to appreciate that there was a real risk, not just a mere possibility, of subsidence damage caused by this tree [in the hedge]'.
Thus the damage being caused by the hedge could not be described as small and a reasonably prudent landowner would not think it right to neglect it. In those circumstances, the second defendant had failed to take the appropriate steps to eliminate the risk of subsidence damage caused by the roots of the hedge. Therefore she was liable in nuisance for the damage caused by her failure to eliminate that risk.
However, as regards the damage caused by the oak tree roots, there was a difference. There were no particular features of the oak tree, such as its position or height, which would put a reasonably prudent landowner on notice of any real risk of subsidence damage because caused. Thus he found the risk of damage being caused by the oak tree not sufficiently foreseeable as to establish liability on the part of the second defendant.
Yes. Whilst the majority of the responsibility for the damage to the Property had to fall on the second defendant, Ramsay J considered that it would have been reasonable for the claimants to have communicated with the second defendant and to have informed her of the risks of damage and of the actual damage to the property.
Accordingly, the judge found the appropriate apportionment was 15% to reflect the responsibility of the claimants towards the overall damage to the property that had been caused by their failure to communicate.
This was first published in LexisPSL Dispute Resolution and is available to subscribers of LexisPSL. If you are not a subscriber, please click here to find out more and to access a free trial.
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