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Reasonable foreseeability and liability in nuisance for property damage: a view from the trees

Berent v Family Mosaic Housing & London Borough of Islington has clarified a property owner’s liability for property damage caused by their trees. The decision will be welcomed by local authorities, tree owners and their insurers, and includes wider guidance for property damage cases.

The facts in brief

The case was a standard claim for property damage (tree root damage) caused by subsidence to Mrs Berent’s property in Islington. Mrs Berent claimed that the subsidence was caused by three trees (one in the first defendant’s front garden next door, two in the street in front of the property under the control of the second defendant) removing water from the soil underneath her property. By the time of trial, the claim was for the cost of repairing historic damage only, the trees in question having been removed. Mrs Berent claimed damages of more than £200,000, including damages for distress and anxiety in the pleaded sum of £200 per year.

The first instance decision

At first instance, HHJ Wilcox heard the claim in the Technology and Construction Court (TCC). The key findings he made were:

  • The damage to the property occurred in 2003 and was complete by the spring of 2004.
  • Thereafter Mrs Berent’s advisors acted with culpable delay in monitoring and investigating the subsidence, with the result that a reasonable level of information was not given to either defendant for a number of years.
  • The only way of preventing the damage would have been to remove the trees in question. Pruning them would not have avoided the damage.
  • Prior to the damage occurring in 2003/2004, there was no basis upon which either defendant should have appreciated that there was a real risk that their trees would cause damage to Mrs Berent’s property.
  • It was not until autumn 2010 that the defendants should reasonably have removed the trees.

In the light of these findings, the court held the defendants jointly liable for general damages from autumn 2010 to trial (March 2011). Mrs Berent recovered £5,000. She appealed the finding on liability. The defendants cross appealed against the quantum of the award for general damages.

Court of Appeal

Tomlinson LJ gave the judgment in the Court of Appeal (with Kitchin LJ and Mummery LJ agreeing). The court dismissed the appeal and allowed the cross appeal. The main issue was whether the trial judge’s conclusions on reasonable foreseeability and breach of duty were correct. The Court of Appeal found that they were. The key points included:

  • Further acknowledgement that in this area (naturally occurring nuisances), negligence and nuisance are effectively the same (paragraph 12), and that tree roots cases are to be determined according to the general law of negligence and nuisance. There is not some specific set of principles applicable to tree roots cases alone (paragraph 19).
  • Some general guidance on reasonable foreseeability, the “real risk” test and the link between reasonable foreseeability and the question of what it is reasonable for a defendant to do in the light of that risk. The court:
    • made it clear that these questions have to be considered together (paragraph 20). So, it might be reasonable to take no steps to eliminate a risk which is unlikely to eventuate and which will be of small consequence if it does;
    • held that the relevant question was whether the defendants could not reasonably have foreseen “a real risk of damage in the sense of a risk of which they needed to take account by considering whether there were reasonable steps which could have been taken with a view to eliminating or minimising that risk”. It is then necessary to consider the reasonableness of the steps needed to eliminate or minimise the risk (paragraph 27);
    • acknowledged that, in coming to a decision on liability, a balancing exercise needs to be carried out considering the degree of risk, the seriousness of the consequences, the cost and nature of the preventative measures and the social utility of the activity in question (paragraphs 20 – 24).

Tomlinson LJ held that, on the basis of the facts and the evidence at trial, HHJ Wilcox had carried out the balancing exercise correctly. The key evidence was that of Mrs Berent’s arboriculturalist, Mr Kelly, whose evidence was that pruning would not have eliminated or minimised the risk of damage, and that he would only have removed the offending trees once notification of damage and a reasonable amount of information had been received. Tomlinson LJ held that his evidence came nowhere near suggesting that either of the defendants should in the years before 2003/2004 have identified the three relevant trees as posing a risk to the property of a nature and extent which imposed upon them a duty to take some preventative or remedial action over and above whatever regime tree management was already in place (paragraph 38).

As to the cross appeal, Mrs Berent’s damages were reduced to £150, the Court of Appeal confirming that damages for distress and inconvenience in property damage cases are meant to be modest and not generous (paragraph 40).

Practical impact

This case will come as a welcome relief to local authorities and insurers defending tree roots claims, which were often presented as almost strict liability claims. The argument is often that if a tree was large, close to an older property, and situated on shrinkable soil (like that beneath most of London) then that was sufficient to found liability on the tree owner (these factors were the only factors known to the defendants in the present case prior to notification of damage). It is now clear this is not enough. The claimant has to show that damage was reasonably foreseeable and that there were reasonable steps which should have been taken to eliminate or minimise the risk, taking into account the social utility of the allowing trees to remain in gardens and streets. In future, argument is likely to focus on which steps should have been carried out, the cost of those steps and whether and to what extent those steps would have made a difference.

If it is right that pruning and pollarding is not the solution to tree root subsidence and only removal will do, the balancing exercise referred to by the courts will result in no liability to tree owners where there is nothing specific to suggest that a particular risk is posed by a particular tree, such as a previous claims history, damage to neighbouring properties or an early notification of damage. Tree owners cannot be expected to remove all of their trees on suspicion that a small number of them might cause damage to neighbouring properties. This case emphasises that those investigating such claims for property owners should not delay in carrying out the proper investigations and providing notification to tree owners where they suspect tree-root subsidence.

2 thoughts on “Reasonable foreseeability and liability in nuisance for property damage: a view from the trees

  1. The judgment in Berent was considered by Edwards-Stuart J in Robbins v London Borough of Bexley [2012] EWHC 2257 (TCC), where he noted that “there are no special principles of law that relate to tree root cases: they are subject to the general law of negligence and nuisance”.

    In Robbins, the court held that the risk of damage to the Robbins’ property was clearly foreseeable from 1998 onwards. This gave rise to questions about what the council should have done and whether that would have prevented the damage that occurred. On the facts, it was clear that the council should have undertaken a regular programme of pruning, therefore it was liable for the damage caused to the Robbins’ property by the subsidence that occurred in both 2003 and 2006.

    The court said that it was applying “well settled principles relating to foreseeability and causation”, which was an approach that was entirely consistent with the principles in Berent.

  2. Muhammed Haque has written Blog post, Preventing the risk in tree root claims, which looks at these two judgments, and the more recent judgment in Denness and another v East Hampshire District Council [2012] EWHC 2951 (TCC).

    He explains that both property and tree owners will be affected by the decisions in Berent, Robbins and Denness. Advisors will need to consider at an early stage the evidence that will be needed to bring or defeat claims. The long-held view that liability is always established merely by the proximity of trees to building built on shrinkable soils may well be confined to history.

    Muhammed is a barrister at Crown Office Chambers and appeared for the defendants in Berent, Robbins and Denness.

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