The importance of tree maintenance

Local Authorities that don’t diligently implement a reasonable tree maintenance programme shouldn’t expect any sympathy from the courts. The London Borough of Bexley was left counting the cost when tree works that it had ordered were not implemented.
Case Study - Robbins v London Borough of Bexley
This case study is a useful reminder on the link between breach of duty and causation of the loss complained of.
Tree root related damage occurred to the Claimant’s property. She (Robbins) succeeded at first instance in demonstrating that Bexley’s poplar trees had caused the loss. The High Court also accepted that the risk of such damage was foreseeable to Bexley, in circumstances where there had been previous claims for tree root subsidence damage to properties in the same Avenue, which ought to have been enough to alert Bexley to the risk posed by its poplars. The Claimant was awarded substantial damages for the repair costs. Bexley appealed the decision.
Relevant facts in the matter were that Bexley maintained its trees in 1998, and again in 2006. In the intervening period it provided works orders to its contractors in 2004 and 2005 but, for whatever reason, no tree works were carried out. Damage to the Claimant’s property ensued.
In taking the matter to the Court of Appeal Bexley argued that for the Claimant to succeed in her claim it would have to be that its breach of duty caused her loss. It argued that its breach did not in fact cause the loss as, in line with accepted practice at that time, it would only have performed a 25% reduction, which would not have been sufficient to prevent the loss.
The Court of Appeal examined this concise issue of whether the loss would have occurred in event regardless of the breach of duty. They were referred to the two leading cases of Bolitho v City and Hackney Health Authority 1998 AC and Beary v Pall Mall Investments 2005 EWCA. Both of these were professional negligence cases. The former concerned whether a doctor’s failure to attend would have made any difference to the injuries suffered, as even if she had attended she would not have intubated the patient. The latter concerned whether a financial advisor’s failure to advise on the possibility of taking out an annuity would have made any difference to the loss that the Claimant suffered in failing to do so, as the Claimant would not then have taken out an annuity unless he had been positively advised that he should. Both of these cases concerned arguments that whilst there had been breach this did not necessarily cause the loss. 
In Robbins the Court of Appeal noted that when Bexley (finally) dealt with the trees, in late 2006, it reduced them by substantially more than 25%, which may also have been the case regarding the 1998 reduction.
In dismissing Bexley’s appeal Lord Justices Moore-Bick, Aikens and Vos took the view that had Bexley dealt with the trees in the intervening period it would have done substantially more than a 25% reduction, and that this would have been enough to prevent the loss. Moore-Bick LJ added that “...whatever the Council might otherwise have done or not done, it had been negligent in failing to ensure that the works order ... was carried out.”
The decision is a cautionary tale that where a party is in breach it will be quite a challenge for it to try and escape liability by saying that its breach didn’t matter. Being in breach is not an attractive premise to the judiciary and here, for whatever reason, in breach of its duty to take reasonable steps to prevent damage Bexley had not done any tree works at all in the eight years between 1998 and 2006, which left it very exposed.
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