Tree roots: causation in natural nuisance cases What is the correct approach to causation in cases concerning natural nuisances where a landowner does nothing at all to abate such a nuisance on his land? That was the question for the Court of Appeal in Robbins v London Borough of Bexley [2013] EWCA 1233. Facts This case concerned damage to property caused by tree roots. The Claimant (Mrs Robbins) purchased a house in Kent in 1969. In 1996 a homeowner in the same street as the Claimant made a claim against the Defendant (the Council) in respect of damage caused by tree roots emanating from the Council s land. In spite of the damage and claim by the Claimant s neighbour, the Council implemented no scheme of crown reduction of the offending trees from 1998 to 2006. In the Summer of 2003 the roots of the offending trees from the Council s land caused damage to Mrs Robbins house. In 2004 and 2005 the Council ordered work to be carried out on its offending trees. That work was to comprise a 25% crown reduction in the trees. However, that work was not carried out. In the Summer of 2006 the Council s tree roots caused further damage to Mrs Robbins house. Subsequently, in September 2006 the Council s contractors carried out very significant crown reductions to the offending trees, in amounts exceeding their instructions from the Council. First instance The judge at first instance held the Council liable in negligence for the damage to the Claimant s property caused by the tree roots emanating from the Council s land. The salient findings of fact were: (1) From early 1998 the Council knew that the offending trees were capable of causing damage to any rear extension along Mrs Robbins road within 35m of the trees and that Mrs Robbins home was at real risk of subsidence. The articles and papers published by Barristers from are for the purpose of raising general awareness of
(2) From 1998 onwards the Council could reasonably have been expected to embark on a programme of cyclical crown reductions and should have done so. The prevailing expert advice was a cycle of 3 to 4 years with not more than 30% of tree canopy being removed in each cycle. (3) In May 2004 the Building Research Establishment's Horticulture LINK project 212, entitled "Controlling water use of trees to alleviate subsidence risk" ( Hortlink ) was published by the Building Research Establishment. (4) Hortlink concluded that it was necessary to reduce crown volume by 70-90% to reduce soil desiccation. (5) D did nothing between 1998 and 2006. (6) Crown reduction of 25% would have had no effect on soil desiccation. (7) If the Council had put in place a cyclical pruning programme in 1998, the trees would have received the type of treatment received in 2006, namely a significant reduction by the Council s contractors in excess of that in fact instructed by the Council. (8) Had the Council implemented any form of cyclical pruning programme in 1998, this would in fact have reduced the crowns of the poplars by an amount necessary to avoid the damage to Mrs Robbins property. The appeal The Council appealed the judgment. The Council s principal ground of appeal was: (1) that the expert evidence showed: (a) that the Council should have reduced crowns by 25% every 3-4 years from 1998; but (b) that 25% would have had no effect in any event. Thus any breach of duty by the Council did not in fact cause the damage to Mrs Robbins property; and so (2) the true cause of the damage was a failure by the Council to take steps which were never its duty to take before 2006, namely very significant crown reductions in excess of those in fact instructed subsequently. The Council argued: (1) The judge was wrong to ask what would the Council have done if it had taken steps to prevent damage. The articles and papers published by Barristers from are for the purpose of raising general awareness of
The law of causation (2) Instead, the judge should have asked what should the Council have done. (3) If the judge had asked what should the Council have done, that factual enquiry would have been answered by reference to content of the accepted duty at the time, namely a 30% crown reduction only (which would not have been sufficient to prevent the damage to Mrs Robbins property). (4) In any event, the judge was wrong to make factual finding that between 1998 to 2006 the crown reductions on the offending trees which the Council s contractors would have carried out would have been so extensive as those 2006. The following points of principle can be extracted from the case law: (1) In cases where the breach of duty consists of an omission, a failure to act at all, to do something which ought to be done (for example, in Robbins, of implementing any form of crown reduction from 1998 onwards) with a continuing duty to act, there must be a further factual enquiry. What would the party in breach have done if it had complied with its duty, namely, what would the Council (and its contractors) have done if the Council had taken steps to prevent the damage to Mrs Robbins property by the encroachment of tree roots. (2) In cases where the breach of duty consists of an omission to do an act which ought to be done, but where there is no continuing duty to do anything further or where the duty gives rise to no further action on the Defendant s part, there is no need for any further factual enquiry. The Court of Appeal applied Bolitho v City and Hackney Health Authority [1998] AC 232 to the facts of the case. It was an example of type-(1). The Court of Appeal rejected the Council s attempted application of Beary v Pall Mall Investments [2005] EWCA Civ 415, which concerned type-(2) only. In Bolitho, a doctor was summoned but failed to attend a child suffering breathing difficulties. The judge (upheld by the Court of Appeal and House of Lords) held that the doctor was in breach of duty in failing to attend, and that intubation would have avoided the damage, but that the doctor (non-negligently) would not in fact have intubated had she attended. Accordingly, the Health Authority was held not to have caused the damage the child suffered. The articles and papers published by Barristers from are for the purpose of raising general awareness of
The point of practice to note from Bolitho is that the claim would have succeeded either if the judge had found that: (1) the doctor who negligently failed to attend, would as a matter of fact have intubated if she had attended. The evidence was that the doctor would not. Therefore, the negligent failure to attend, of itself, did not cause the damage; or (2) if it would have been negligent not to intubate. On the facts, there were a range of non-negligent options available to the doctor, had she attended. It would not have been negligent for the doctor not to intubate. The evidence was that she would not have intubated. Therefore, neither the failure to attend nor the hypothetical actions of the doctor, had she attended, caused the damage. In contrast, in Beary, an independent financial advisor ( IFA ) negligently failed to advise his client of the possibility of taking out an annuity. The evidence was that the client would not in fact have taken out the annuity, unless positively advised that he should. The IFA owed no duty to the client on the facts to advise him further as to whether or not the client should take out the annuity. The IFA s negligence in failing to advice of the possibility of taking out an annuity caused no loss, as the client would not have done so, even if he had received that advice. The Court of Appeal s application of the law of causation The Court of Appeal unanimously dismissed the Council s appeal and upheld the judge s finding in favour of Mrs Robbins claim. (1) The Council s failure to put in place any programme of cyclical pruning caused the damage in 2003 and 2006. (2) The Council s breach of duty was in not doing anything at all. That compares to doctor not attending in Bolitho, which the Court applied. (3) Therefore, the facts demanded a further causal enquiry: what would have happened if the Council had done something rather than nothing. (4) The factual answer to that (as found by the judge on the evidence) was that the Council s contractors would in fact have executed crown reductions significantly in excess of the amount instructed by the Council, such that the damage to Mrs Robbins property would not have occurred. The articles and papers published by Barristers from are for the purpose of raising general awareness of
Points of practice The headline points for practitioners are: (1) In tree roots cases and in cases of other natural nuisances: (a) if the Defendant has done nothing at all, always consider not only what the Defendant should have done, but moreover the further factual enquiry of what it would in fact have done; and (b) if the Defendant has taken (at least some) action to reduce risk of damage, consider by reference to expert evidence whether D s actions were reasonable. (2) Consider carefully all of the factual evidence as to what the Defendant would have done, before and after alleged period of breach. (3) Unsuccessful litigants in cases of natural nuisances will face great difficulty in successfully appealing questions of fact, especially from TCC decisions. Although not cited by the Court of Appeal in Robbins, the Court of Appeal s comments in Skanska v Egger [2002] EWCA Civ 1914 at [7] are directly applicable: decisions of the Technology and Construction Court have special characteristics which affect the readiness of the Court of Appeal to reconsider them on appeal. Difficult legal and factual issues of causation can often arise in cases involving natural nuisances. It is important at the outset of a dispute to have a clear understanding of the merits of such a claim. Each case is different and each will turn on its own particular facts. Tom Owen If you require advice, please contact Tom s Clerks in the first instance on 020 7544 2600. Tom s CV is available at: www.keatingchambers.co.uk/profiles/barristers/tom_owen.aspx. The articles and papers published by Barristers from are for the purpose of raising general awareness of