Eiles v London Borough of Southwark

In tree-root subsidence claims, the claimant must prove on the balance of probabilities that the defendant’s breach caused or materially contributed to the damage. Causation may be established where movement at one part of a structurally interconnected building is transferred to another part, even if the damage is remote from the tree roots. The court must assess the whole evidential picture, including soil conditions, root presence, desiccation, monitoring evidence, building construction and competing mechanisms. The cost of underpinning may be recoverable where it is reasonably necessary to prevent continuing significant damage, even if existing damage is below Category 2 in BRE Digest 251. Modest general damages may be awarded for physical inconvenience, discomfort and directly related mental suffering.

The claimant owned a Victorian mid-terrace house affected by cracking and movement. She claimed damages in nuisance and negligence, alleging that roots from a birch tree owned by the defendant caused subsidence. The defendant admitted inadequate tree management and conceded foreseeability of subsidence damage, including damage at the rear of the property.

The principal issue was whether the birch tree, rather than an ivy plant and other proposed causes at the rear, caused the recent movement and damage. Related issues concerned limitation, the recoverability of front underpinning and repair costs, alternative accommodation, and general damages for inconvenience and discomfort.

1. Causation. The court adopted the material-contribution approach identified in Loftus-Brigham v London Borough of Ealing [2003] EWCA Civ 1490, applying the balance-of-probabilities standard derived from Bonnington Castings v Wardlaw [1956] AC 613 and referred to in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32.
2. The evidence established progressive and significant damage at the front, substantial birch roots beneath the front of the property, front desiccation, and a persuasive correlation between crown-reduction work and reduced subsequent crack movement. The evidence at the rear showed moist soil and no comparable root evidence. The defendant’s late reliance on ivy was unconvincing.
3. A Victorian house constructed with interconnected walls, floors and roof could transfer movement from the front to the rear without immediate cracking at every point. Cracks could develop at structural weaknesses remote from the originating movement. The birch tree therefore caused the rotational movement represented by the principal cracks.
4. The defendant’s admitted failure to manage or control the birch tree was effective in permitting the damage. Foreseeability of rear damage was conceded, and the defendant was liable.
5. The claimant recovered the reasonable cost of front underpinning. Underpinning could be justified by the likelihood of continuing significant damage even where existing damage was below Category 2 in BRE Digest 251. Rear underpinning costs were excluded. Repair, alternative accommodation and modest general damages were awarded in the total sum of £76,005.84.
6. For general damages, the court applied the restrained approach described in Perry v Sidney Phillips [1982] 1 WLR 1297 and Watts v Morrow [1991] 1 WLR 1421.