Foreseeability Determines Liability

Posted: 12th July 2011

Tree RootsTree roots are a frequent cause of subsidence and hence of claim. In a recent case, action was brought relating to damage claimed to have been caused to a house by tree roots. The defendants argued that the roots were not the sole cause of the subsidence damage.

The court concluded that the roots were a substantial and effective cause of the damage. The second question was whether the defendants owed the claimant a duty of care and, if so, whether the defendants’ actions could be said to be negligent or to have caused a nuisance. In determining this case the test was whether the damage from the tree was foreseeable, i.e. a risk that a reasonable person would have regarded as a real risk.
In this case, the damage had commenced as long ago as 2003 and the claimant argued that the defendants were liable to pay damages for the subsidence that occurred from that time. The defendants had operated effective tree management procedures and were only aware of the breach of their duty to the house owner from 2010. The court ruled that the damage which occurred in 2003 was not due to subsidence caused by the trees owned by the defendants. They were therefore only liable for the failure to abate the damage that had occurred after that time.