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The reasonable foreseeability test

AWARE15/11/2013
Property Insurance Aware 1

It is well known that claimants seeking to establish liability for property damage are required to prove that the damage sustained was reasonably foreseeable by the defendant. The law relating to reasonable foreseeability requires the court to apply an objective test to determine what ought to have been known by a reasonable person in the defendant’s position.

The Technology and Construction Court recently considered the test of reasonable foreseeability in relation to domestic tree root subsidence claims in Khan v (1) London Borough of Harrow; and (2) Helen Sheila Kane 2013. The claimants owned a property in Stanmore, Middlesex which contained a well-established oak tree. The second defendant owned the neighbouring property which contained a large Lawson Cypress hedge half a metre from the claimants’ property and a substantial oak tree (“the trees”).

The claimants first noticed damage to their property in September 2006. Their insurers instructed loss adjusters who began a number of investigations. In 2007 and 2008 the loss adjusters tried to notify the second defendant of the damage but the correspondence was incorrectly addressed and they did not receive notice until June 2009. The second defendant accepted that the trees had caused or contributed to subsidence damage to the claimants’ property. However, she denied that the damage was reasonably foreseeable to her as an ordinary private owner of an individual residential property.

The key issue before the court was to decide if the damage was reasonably foreseeable and in particular whether Mrs Kane, as an individual residential owner, knew or ought to have known about the risk of damage. The judge considered the evidence and the issue of foreseeability. He found that the correct test was an objective test of what the second defendant ought to have known as a reasonably prudent landowner with trees on her property, rather that what she actually knew.

Although the second defendant did not have actual knowledge about the risk of damage which the trees posed to the claimants’ property, the relevant person was a reasonably prudent landowner who would have been aware of the real risk of damage from the hedge due to its height and proximity to the claimants’ property. However, the judge also found that it would have been reasonable for the claimants to have communicated the risk of damage and actual damage to the second defendant. On this basis the claim was reduced by 15% for contributory negligence.

Implications for insurers

This case highlights a greater potential risk of litigation to insurers in respect of defending domestic homeowner claims where the offending trees are large and in close proximity to the property suffering damage. This decision reinforces that the test to be adopted in respect of foresseablity for private domestic owners is an objective one i.e. what a prudent landowner in the position of the defendant ought to have known under the circumstances rather than a subjective test of what the defendant actually knew in the circumstances. The judge noted that domestic homeowners ought to know of the general risk of subsidence, but not necessarily of particular trees being at risk of causing subsidence. Whilst no specific guidance was given, the decision suggests that for a claim to succeed a tree needs to be large and close to the property suffering the damage.

Whilst each case must of course be considered on its own merits, the recent judgment in Khan has opened the door for subsidence claims against domestic homeowners which were previously generally considered as unlikely to succeed before this case due to a lack of forseeability. Conversely, when pursuing subrogated recoveries, insurers and insureds should be mindful of the need for notice to be given at an early a stage as possible to avoid arguments of contributory negligence when pursuing subsidence claims.