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Householders may in a much better position for subsidence claims following a Court of Appeal ruling on liability for trees. Keith Gaston explains.

Last year's dry summer brought geotechnical and ground engineering issues into the living rooms of many householders as they contemplated the effect on their most valuable asset - the structural integrity and therefore the resale value of their homes.

It is now clear that 2003 was what the insurance industry would term an 'event year' The significant increase in subsidence claims compared with other years means lawyers specialising in subsidence claims for insurers against local authorities are also going to be busier. But a recent Court of Appeal judgement may have made their lives a little easier.

The decision in Loftus-Brigham v London Borough of Ealing (28 October 2003) has dealt yet another blow to the defence of subsidence liability claims.

In practical terms the decision is of great interest to local authorities, other owners of large numbers of trees, and their insurers/adjusters.

This is because the Court of Appeal has dealt head on with two of the most contentious issues which arise in almost every case: causation and the contributory effect of the householder's trees. It is clear that a tree which contributes to subsidence is as guilty as the tree which is the sole cause.

First, for a claim to succeed, what degree of certainty must exist as to whether a tree has been sufficiently 'causative' of damage?

In the 1996 case of Paterson v Humberside County Council, the judge Roger Toulson QC based his decision on well established authorities that a tree had to be shown to be 'an effective and substantial cause of damage' However, in practice much controversy arose as to exactly what this meant, although this ought not to have been the case. It was (and still is! ) argued that a tree must be 'the cause''the sole cause' or, as the county court judge at first instance in Loftus-Brigham decided, 'the dominant cause' But it is now clear that all these reformulations of the Paterson test are unsupportable.

It is also clear that the true threshold, which claimants must overcome, is far lower than has been generally supposed (or wished) by many local authorities and their liability adjusters. A substantial rethink is now needed to avoid misconceived defences being argued before proceedings start, which inevitably will result in costs and time being wasted.

Second, what is the legal position when the claimant's (usually the homeowner represented by their insurer) trees have also contributed to the damage?

It had been more or less universally accepted that this should result in a deduction from the claimant's recovery. The Court of Appeal has held this is not the case unless the defendant can also demonstrate contributory negligence on the claimant's part.

Despite the widespread knowledge that now exists, particularly in the south east of England, as to the propensity of trees to cause such damage, this can still be a difficult hurdle for a defendant to overcome.

A defendant would have to show that the claimant did, or ought to have possessed, the degree of knowledge and forseeabilty for, in effect, liability in negligence to arise.

Perhaps that is much easier than was the case 20 years ago, especially for mature deciduous trees. But in Loftus-Brigham the judge in the original trial had held that the claimants had not been negligent in failing to realise that these might cause damage; this ruling was not appealed.

From now on the defences which have typically been argued by liability adjusters are very likely to be invalid and will only assist a council in the comparatively few cases in which it can be shown on objective evidence that its tree was not causative at all, ie either that:

the tree was not even one of a number of causes and so, for example, the property is not subsiding at all and another cause entirely is operated such as heave or roof spread;

the claimants had themselves been negligent and this had also been causative;

other third parties' trees were 100% causative.

It is also clear that companies and individuals with an in-depth understanding of the complex geotechnical issues should be seen as a real asset at each stage of the process.

Keith Gaston is a partner with Gaston Whybrew specialist subsidence lawyers who acted for the successful claimants in the above appeal.

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