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Loss Prevention Alert 54

Homeownerheld liable for reasonably foreseeable tree root damage

Khan & Khan v (1)London Borough of Harrow; and (2) Helen Sheila Kane [2013] EWHC 2697 (TCC)

Introduction

In thiscase, the Court addressed the liability of private individual owners ofdomestic property for damage caused by the roots of their trees.  In a surprising decision, the Court held thata “reasonably prudent” landowner would have foreseen the risk of damage in thiscase, and therefore Mrs Kane was liable even though she herself did not foreseethe risk.

Background

Mr and MrsKhan owned a house in Stanmore, Middlesex, next door to Mrs Kane.   On the boundary of the two properties was aten metre tall hedge consisting of Lawson Cypress trees, only half a metre awayfrom the Khans’ property.  There was alsoan Oak tree on Mrs Kane’s property, five metres away from her neighbours’house.

In 2006,the Khans noticed cracks to their property. They contacted their insurers who arranged for monitoring to be carriedout.  In January 2007, an initial reportidentified the hedge as a potentially significant factor.   The report recommended that the hedge be cutback.  This report was not seen by MrsKane, who was not aware that the hedge might be causing damage until June 2009when she received a letter from the Khans’ solicitors.  The letter recommended that the hedge beremoved and Mrs Kane did this without delay.

Afterfurther monitoring, the Khans’ solicitors wrote to Mrs Kane again saying theybelieved that the Oak tree was also a cause of damage.    After obtaining the necessary permissionfrom the Local Authority (it was a protected tree), Mrs Kane removed the tree.

The Khanssubsequently sued Mrs Kane for the damage to their house which had occurred beforeMrs Kane was informed that any damage was being caused.  The Khans argued that the risk of damage fromthe hedge and the tree was reasonably foreseeable to Mrs Kane before 2006, andthat therefore she should have taken pre-emptive measures.

Mrs Kaneadmitted that the hedge and the tree had caused and/or contributed to thedamage to the Khans’ house.  However, shedenied that she knew there was any risk of damage, and asserted that the damagewas not reasonably foreseeable to her as an ordinary private individual ownerof a domestic property.

ReasonableForeseeability: the Decision

The Judgefound on the facts that Mrs Kane did not know about the risk of damage to theKhans’ property posed by her hedge and her tree.    However, he found that a “reasonably prudent land owner” wouldhave been aware that there was a real risk (as opposed to a mere possibility)of damage from the hedge and that the particular Defendant’s (i.e. Mrs Kane’s)lack of knowledge could not lower the standard of care expected.  (Note, however, that a Defendant’s actualknowledge of risk (e.g. gained through his profession or previous disputes) canimpose a higher standard of care).

He reachedthis conclusion not only on the basis that the general risk of subsidencecaused by trees was considered to be well known (this alone was not enough toimpose liability) but also because of the particular characteristics of the hedge,including its height, its proximity to the Khans’ house, and its dominance ofthat side of the property.  By contrast,the oak tree was considered not to have any particular characteristics thatwould have alerted reasonably prudent land owner to a real risk of damage.  The Judge therefore found that Mrs Kane wasin breach of her duty in failing to remove the hedge prior to 2006, but not thetree.

It was notnecessary for Mrs Kane to have been put on notice of the damage or risk ofdamage by her neighbours.   However, theJudge held that it would have been reasonable for Mr and Mrs Khan to havecommunicated with Mrs Kane and informed her of the risks of damage and theactual damage to their property sooner than they did.   He therefore reduced the damages awarded tothem by 15% to reflect their responsibility for the overall damage to theirproperty.

Commentary

ThisJudgment makes clear that liability for tree root subsidence damage can beestablished against a private individual owner on a domestic property despitethat individual’s lack of actual subjective knowledge of the risk posed by thevegetation on their land but that each case will turn on its particular factsand the particular characteristics of the trees in question.  It is by no means clear whether the Judgewould have reached the same decision if the trees were slightly less imposingor slightly further away from the Khans’ property.  It may therefore be difficult to anticipateprecisely when the duty to take action would be triggered. 

Inpractice, cases against private individual owners of domestic properties rarelycome before the courts due to the ABI Domestic Subsidence Tree Root ClaimsAgreement which provides thatinsurers will not pursue recovery actions against the domestic owners oftrees.  This judgment highlights, morethan ever, the need for private individual land owners to obtain appropriateinsurance cover. 

Whereappropriate, AGS members may wish to warn clients of this new judgment(although they should be careful not to give legal advice if not qualified todo so) with its emphasis on the particular characteristics of each case.

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This LossPrevention Alert is, of necessity, generic and is not intended to be a completeor comprehensive statement of the law, nor does it constitute legal orspecialist advice.  It is intended onlyto highlight issues that may be of interest to AGS members.  Neither the writer, nor AGS, assumes anyresponsibility for any loss which may arise from accessing, or reliance on thematerial and disclaims all liability accordingly.  Professional advice should be taken beforeapplying the content of the alert to particular circumstances.

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