In this recent judgment, the Court of Appeal considered the correct test to apply when assessing whether a Local Authority should be held liable for damage caused to private property as a result of that Local Authority’s failure to adopt an effective tree maintenance programme.

Background

Mrs Josephine Robbins (“Mrs Robbins”) is the owner of a semi-detached house at 6 Radnor Avenue, Welling, Kent (the “Property”). To the rear of the Property are a row of poplar trees which are situated within land owned by the London Borough of Bexley (the “Council”) known as ‘Danson Park’.

Mrs Robbins issued a claim against the Council in respect of tree root subsidence damage to her Property, which Mrs Robbins alleged had occurred in the Summer of 2003 and the Summer of 2006 as a result of the Council’s failure to maintain the poplar trees situated on its land.

On 2nd November 2012, the High Court found that roots emanating from two of the poplar trees located within Danson Park were responsible for the damage caused to Mrs Robbins’s Property. The High Court further found that had the Council undertaken a programme of cyclical pruning in 1998, when it first became aware of the issue, the damage to the Property would not have occurred. Mrs Robbins was consequently awarded damages in the total sum of £150,081.48 plus interest for the nuisance and negligence of the Council. The Council appealed the High Court’s decision.

The Appeal

On Appeal, the Council submitted that it would have been reasonable for it to have undertaken a programme of cyclical reduction in the crowns of the poplar trees by 25% or 30% every 3 or 4 years from 1998, based on expert knowledge at the time. The Council’s submission relied on the decision in Beary v. Pall Mall Investments (a firm) [2005] EWCA Civ. 415 (“Beary”) which found that the appropriate question to ask when assessing causation is simply what the Council should have done to fulfil its duty to Mrs Robbins. The Council sought to show that had a programme of 25% or 30% pruning every 3 or 4 years been adopted, as was reasonable for the time, the damage to the Property would not have been prevented and therefore Mrs Robbins should not be entitled to damages.

Counsel for Mrs Robbins disputed this position and in reliance on Bolitho v. City and Hackney Health Authority [1998] AC 232 (“Bolitho”) submitted that the correct question to ask when assessing causation is what the Council would have in fact done had it fulfilled its duty to Mrs Robbins. It was material to Mrs Robbins’s position that the Council had in September 2006 carried out a much more extensive crown reduction of the poplar trees in question than that which the Council submitted was reasonable for it to have adopted in 1998.

The Decision

Before reaching its decision, the Court of Appeal examined in detail the professional negligence cases of Beary (relied upon by the Council) and Bolitho (relied upon by Mrs Robbins). The former case concerned a claim against the Health Authority for a doctor’s failure to attend to a child who was experiencing breathing difficulties and ultimately suffered cardiac arrest and brain damage. It was held by the House of Lords in this case that although the doctor was in breach of duty in failing to attend to the child and that inturbation would have avoided the damage, the doctor would not in fact have inturbated the child had she attended. The latter concerned an Independent Financial Advisor’s failure to advise his client on the possibility of taking out an annuity. Similarly to Bolitho, it was found in this case that there would have been no difference to the loss that the claimant sustained had the Independent Financial Advisor fulfilled his duty and advised on the annuity.

Vos LJ found Robbins to be a Bolitho “type of case” since there were a range of possible steps the Council could have taken to avoid the damage to Mrs Robbins’s Property in the same way that in Bolitho the “content of the doctor’s duty could hypothetically have included treating the patient in a number of different possible ways”. Vos LJ contrasted this position with Beary in which the only way the Independent Financial Advisor could have fulfilled his duty was limited to advising his client of the possibility of taking out an annuity – what the Independent Financial Advisor would have done and should have done were one and the same thing.

For this reason, Vos LJ considered the High Court to have been justified in asking what the Council would in fact have done had it taken reasonable steps to prevent the damage to Mrs Robbins’s Property, applying Bolitho.  In considering this question, the Court of Appeal rejected the Council’s argument that it would have adopted a cyclical reduction of the poplar trees by 25% or 30% every 3 or 4 years from 1998 (which would have proven ineffective in preventing the damage to Mrs Robbins’s Property). Instead, the Court of Appeal agreed with the High Court’s inference that had the Council put in place a cyclical pruning programme in 1998, as it should have done, the poplar trees would have received the same type of severe pruning in 1998 and similar cyclically pruning thereafter that the poplar trees did in fact receive in September 2006. The Court of Appeal found that had such a programme been adopted by the Council, the damage to Mrs Robbins’s Property would have been avoided. The Council’s appeal was therefore dismissed.

Commentary

The judgment of the Court of Appeal confirms that when assessing causation in a property damage claim the appropriate question to ask is what the Defendant would have done had it taken reasonable steps to prevent the loss. This is a question of fact which can only be answered in light of the surrounding circumstances of the claim.

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