Paterson v. Humberside County Council. 1995.
The plaintiffs purchased a house in 1966, it was built in 1882 with shallow foundations on a clay soil. Two large Lime trees were located on the roadside verge outside their house (approx 9-10m away). These belonged to the defendant (Humberside CC). Cracks appeared on the house walls during the 1980's and the trees were implicated as being the cause. The house owners brought an action against the council to claim damages and an injunction based on nuisance, negligence and a breach of statutory duty under section 96 of the Highways Act 1980.
It was noted that although the house had shallow foundations and was thus more susceptible to damage due to soil shrinkage, this had no relevance with regards to liability for damage caused by the invading tree roots.
An argument was made on behalf of the plaintiffs that there was no need to establish foreseeability of damage as damage by tree roots is considered as a nuisance. This was rejected by the judge who said foreseeability of harm had to be established and the test for such foreseeability was whether the risk was one which a reasonable person in the defendants position would have regarded as a real risk.
In this situation such foreseeability WAS deemed apparent as a letter written by the councils own technical services department had stated that the council was aware that roots could cause soil shrinkage in the Hull area. The council also supplied advice to householders and building developers concerning safe planting distances of trees to buildings.
So the council were aware of the risk but carried out no action to remove or reduce the risk in this particular situation, henceforth they were considered negligent. But they were not deemed to have breached their statutory duty under the Highways Act as the trees were not planted by the council.
Damages were awarded to the plaintiffs and an injunction to remove both trees awarded.