Tree Legal

[Gary Prentice]

19 hours ago, Jon Heuch said:

Khan v Harrow Council and Kane is not a case that sets a "precedent". It was a case determined on the evidence put before the court. It does show that it is possible to successfully argue the case for negligence against a tree owner......but that may not be possible in all cases.

Please remember that there is an ABI Domestic Tree Root Agreement between many of (but not all) the insurers of domestic property. 

 https://www.abi.org.uk/globalassets/files/subject/public/home-insurance/2017/abi-domestic-subsidence-claims-agreement-and-guidelines-december-2017.pdf

Google "abi domestic tree root agreement" & you will see various commentaries.

In a large proportion of domestic tree root claims (domestic tree owner; domestic property damaged) the issue of liability will never be pursued because people comply with the agreement; it is only when they don't (i.e. they refuse to abate the nuisance) that the legal implications need to be considered.

I get a bit of a sinking feeling every time that I'm notified that you have replied to one of my posts!  My ignorance, lack of knowledge or misunderstanding is going to be revealed.  

 

But thank you Jon. I'd forgotten or wasn't aware previously of the Tree Root Agreement. Back to the books!

[daltontrees]

Jon/Gary and anyone else sti;l keeping up.

 

The term 'precedent' is not precise. Certainly Khan/Kane was not a ground-shifting decision, but I saw an element of precedent in it. Before Berent, cases were akin to strict liability, but Berent said no liability without knowledge. Khan/Kane modified this by analysing a marginal case and has created a separate set of actionable circumstances, namely liability without knowledge when the tree owner 'ought to have realised' or words to that effect. It's a logical progression, and one that I am sure the industry will find useful.

 

It's important to relaise the circumstances of Khan/Kane. The hedge was 10m high and less than a metre from the Khan property, and damage ougt to have been foreseen. The oak was farther away and the court said damge need not have been foreseen. As such, Gary, I don't think it's a worrying decision for anyone, and I don't think it's going to be reversed in another case. Instead, it has reduced the number of shades of grey that have yet to be tested in courts. 

 

All of the aforegoing applicable to England only. We have a more civilised law up here that has never recognised the harsh law of strict liability, and our cases have always been decided on the evidence. Plus we rarely have tree-related subsidence. Just often enough to keep me on my toes and following your case law.