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Property damage: Tree root subsidence damage - reasonable foreseeability

Khan and Khan v Harrow London Borough Council and Kane
3 September 2013
High Court (TCC)

Facts

The Claimants and the Defendant owned neighbouring houses. There was a Lawson Cypress hedge on the Defendant's property about 10m high and 0.5m away from the Claimants' house.

In 2006, the Claimants noticed cracks in their property and notified their insurers, who appointed a structural consulting firm to investigate. In June 2009, following the consultants’ report of increased and new damage to the property, the Claimants‟ solicitors informed the Defendant that her Cypress hedge was the most likely cause of damage to the Claimants‟ property and on their request, she immediately cut the hedge down.

The Defendant admitted that her hedge caused and/or contributed to the damage to the Claimants’ house but she argued that the damage was not reasonably foreseeable to her as an ordinary private individual owner of a domestic property. The Court accepted that the Defendant did not know of the real risk that her hedge could damage the Claimants‟ house. The question for the Court to decide was whether the Defendant should have appreciated such risk.

The claim against Harrow Council who owned land to the other side of the Claimants' property was settled before trial.

The Law

Mr Justice Ramsey stated that:

  • the starting point was Lord Reid’s statement in The Wagon Mound No2 (1967) that a person is liable “if he does not take steps to eliminate a risk where he knows or ought to know is a real risk and not a mere possibility”;

  • the issue of reasonable foreseeability is an objective test as to what ought to have been known to a reasonable person in the position of the Defendant, which in this case was “a reasonably prudent landowner"; and

  • a Defendant's lack of actual knowledge of the risk cannot lower this objective standard.

Findings

Mr Justice Ramsey giving judgment for the Claimants for the damage caused by the Defendant’s hedge found that:

  • a reasonably prudent landowner in the Defendant’s position would have been aware of the real risk of the Defendant’s hedge causing tree root subsidence damage to the Claimants‟ property;

  • the Defendant was accordingly under a duty to take steps to eliminate that risk and her failure to do so meant that she was liable for the damage caused by that failure; and

  • the Defendant’s lack of knowledge about the risk of damage to the Claimants' property from her hedge was not a defence to the claim.

Comment

  • Prior to this decision there was an element of doubt as to whether private homeowners could be liable for the damage caused by the roots from trees on their property because they lacked the necessary awareness of the risk of such damage.

  • This case has made clear that private homeowners are judged objectively against the standard of the reasonably prudent landowner.

  • The fact that the problem of tree-related subsidence on clay sub-soils had widespread coverage in the media led the Court to find that a reasonably prudent landowner with trees on their land ought to have been aware of the general risk of subsidence damage to property caused by tree roots, particularly on clay sub-soils.

  • The Defendant’s hedge was 10 m high and 0.5 m from the Claimants‟ house. It dominated that side of the property. The Court found that with knowledge of the above general risk, that the location, size and condition of the Defendant’s hedge was such that the reasonably prudent landowner would have appreciated that there was a real risk of it causing subsidence damage.

  • The issue for Insurers when handling subsidence claims against private homeowners is the extent to which such persons ought to have appreciated that there was a real risk of damage being caused by their trees. The risk of damage from the Defendant’s hedge in this case was clear. Inevitably there will be cases where the position is unclear and there will be uncertainty as to whether the private homeowner will be liable.

For further information please contact Nicole Downey, Associate, on 0161 603 5065

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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