Extension of liability for subsidence caused by trees

Khan v Harrow Council (1) and Kane (2) [2013] CILL. TCC, Ramsey J

Facts

Mr and Mrs Khan purchased a suburban house in Stanmore.  The neighbour was Mrs Kane who had a big Cyprus hedge 1 metre from the Khans’ house, and an oak tree further away.  In 2009 the Khans notified Mrs Kane of subsidence problems caused by the hedge and the tree and within a few months she had had both removed.

Harrow Council admitted liability and settled.  The Khans proceeded against Mrs Kane for damages of £64,000 claiming a private nuisance.  Mrs Kane’s defence was that she did not realise there was a problem until she was informed of it when she acted promptly.

Held

1. Mrs Kane was liable even though she had been unaware of the problem.  Any reasonably prudent landowner would appreciate that there is a real risk that subsidence damage may be caused by trees which are as close to the property as this hedge was.  The landowner ought to see the risk and take steps to avoid it.
2. Mr and Mrs Khan ought to have acted more reasonably, and as they had known about the problem for 3 years, they should have given a warning to Mrs Kane in 2006.  Because they did not do so they lost 15% of their damages on the principle of contributory negligence.
3. The oak tree was not very big and not very close.  It was not reasonably foreseeable that it would cause the problems alleged.

Comment

1. This case was all about foreseeability. In theory, all of us who own property are now under a duty to be aware of the trees in our gardens, and consider whether it is reasonably foreseeable that subsidence damage would be caused to adjacent properties.  Mrs Kane’s barrister argued that the Judge was for all practical purposes imposing strict liability upon Mrs Kane.  He was arguably right.
2. The case is also about “private nuisance”.  This is a tort, committed where A unlawfully interferes with B’s use or enjoyment of its land or buildings.  Mrs Kane was “strictly liable” without any need to prove negligence.  The concept of foreseeability mitigates the harshness of this rule.
3. The strangest thing about this decision is that it expects the owner of the tree to have foresight about its effects which is greater than the foresight of the owner of the damaged property!  A reduction of a mere 15% for the failure to warn the owner of the trees at any earlier time may encourage property owners to ignore the risks of damage from adjacent trees, safe in the knowledge that the adjacent owners are carrying the lion’s share of the risk.

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