The 2013 case of Khan & Kane v Harrow Council the Court addressed the issue of foreseeability.
The Claimants, Mr & Mrs Khan owned a house in the London Borough of Harrow. They alleged that tree roots from a neighbour’s tree had caused subsidence damage to their property. The first defendants, Harrow Council, was responsible for maintaining certain trees, the second defendant, Ms Kane, owned the next door property.
The Claimants argued that roots from the Defendants’ land encroached onto their land and caused damage. They sought damages to compensate them for this damage.
Harrow Council argued that there was an appropriate tree maintenance policy in place and that they were not negligent. Ms Kane contended that she was not responsible for the alleged damage as the trees in question did not belong to her or were not under her control.
The issue of foreseability was a key point in dispute. An issue was whether Ms Kane was liable for the damage caused by her Cypress hedge. Foreseeability of the damage placed a crucial role in establishing liability and the Court found that the risk of the Cypress tree causing damage to the Claimants’ property would have been foreseeable to Ms Kane.
Whilst the Judge agreed that the general risk of tree root subsidence is not sufficient to make all damage reasonably foreseeability, a tree’s position, height or condition would need to be present to indicate a risk of subsidence in a particular scenario. Due to the sheer size and location of the implicated Cypress tree, it was found to pose a ‘real risk’ of damage making the risk of damage foreseeable by Ms Kane.
The argument by Ms Kane that she did not actually foresee the risk and that it was unfair to hold her to the higher standard of a reasonably prudent landowner did not succeed.
So in that case, the dominance of the Cypress tree made the damage reasonably foreseeable regardless of whether the tree owner did actually subjectively foresee that risk of damage.
Foreseeability continues to be a hot topic some 12 years on.
