Rylands v Fletcher

It is common ground, as recorded in the joint statement of facts and issues before your Lordships, that this amounts to a finding that the claimants acted reasonably in executing the extent of works undertaken. It has not been contended for Westminster that the work done for the council in October 1991 was sufficient both to remedy the existing damage from the roots and to safeguard against future damage from the same source. Instead the argument has been that all the existing damage had occurred before Flecksun acquired the freehold and that only the Church Commissioners could sue for that damage (subject to any limitation defence); and that Flecksun could only sue for fresh damage if and when it occurred. That argument was accepted by the trial judge. The Court of Appeal held, however, that Flecksun could recover on the basis that there was a continuing nuisance. Their reasoning is encapsulated in the following passage in the judgment of Pill LJ [2000] BLR 1 , 4-5, paras 22-23, the reference to Hunter being to Hunter v Canary Wharf Ltd [1997] AC 655 , 695:

There are dicta in the reports to the effect that, in the law of nuisance, root encroachment into a neighbouring property is similar to bough encroachment over the property. For instance in Lemmon v Webb [1894] 3 Ch 1 , affirmed [1895] AC 1 , where it was held that a neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner's land, Lindley, Lopes and Kay LJJ all said that a similar right of abatement by cutting applied to encroaching roots (see [1894] 3 Ch 1 , 14, 16 and 24). That, though, is of no help on damages. Evidently there are only a handful of reported cases decided in England on damages for root encroachment. Counsel had found only seven before the present case. I shall refer briefly to each of them.

The first such case is as late as 1939: Butler v Standard Telephones and Cables Ltd [1940] 1 KB 399, a judgment of Lewis J. The plaintiffs' houses were damaged by the roots of trees on the defendant's adjoining land burrowing under the walls of the houses and causing the soil to shrink through abstraction of moisture. Underpinning of one of the affected houses had not prevented later settlement. The damages were agreed subject to the determination of the issue of liability, so the decision provides no help on damages. On liability the judge found for the plaintiffs, following dicta in Lemmon v Webb and an Irish decision ( Middleton v Humphries (1912) 47 IrLT 160).

The next case was McCombe v Read [1955] 2 QB 429, a judgment of Harman J. The main point decided was that an injunction will lie to restrain a continuing nuisance to property caused by encroachment of tree roots. Damages were also claimed, including the cost of a not wholly successful underpinning. The judge said that the latter cost was accepted, and that as regards later damage the plaintiff could only recover if he could prove continuing damage from the same nuisance, in which event he could claim the damage accruing up to the date of judgment. An inquiry as to damage was ordered.

In the present case the trial judge declined to follow Masters and criticised Talbot J's reasoning in principle, although accepting that the case might have been correctly decided on its own special facts. The argument for Westminster is that it was wrong. The argument for Flecksun is that it was right but that it is not necessary for the House to uphold it in order for the respondent to succeed. The Court of Appeal thought it unnecessary to hear submissions on Masters .

Whether the defendant's liability is strict had not been expressly examined in the cases up to this point. It did arise in Solloway v Hampshire County Council (1981) 79 LGR 449, another Court of Appeal decision (Stephenson and Dunn LJJ. and Sir David Cairns). This decision was much influenced by the circumstance that in the meantime a differently constituted Court of Appeal had held in Leakey v National Trust for Places of Historic Interest or National Beauty [1980] QB 485 (a case relating to falls of earth from a mound that had built up on the defendant's land) that the duty arising from a nuisance which is not brought about by human agency does not arise unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created. In turn Leakey had been influenced by the well-known authorities Sedleigh-Denfield v O'Callaghan [1940] AC 880 and Goldman v Hargrave [1967] 1 AC 645 , to which I will return a little later.

The starting point in the Solloway judgments was acceptance that since Leakey v National Trust a reasonably foreseeable risk of damage by encroachment had to be established. On that point Dunn LJ (who gave the first judgment) thought that there was no more than a vague possibility. Sir David Cairns was of the same mind. Stephenson LJ was willing to assume that there was a real risk, reasonably apparent to the defendant's engineers if they had thought about it. But all three appellate judges thought that the cost and inconvenience to the local authority of taking any effective steps to remove or reduce it would have been quite out of proportion to the risk. As Dunn LJ put it, at p 458:

The last case in the line of English decisions cited is Hurst v Hampshire County Council (1997) 96 LGR 27 . This is of no present assistance as it turned on whether a highway authority had a sufficient interest in trees growing on the verge of the highway to be liable in nuisance for root damage, a point not in dispute in the present case.

None of the roots cases in the line just reviewed was concerned with the argument that remedial expenditure is not recoverable by the current owner for pre-transfer damage, except Masters v Brent London Borough Council [1978] 1 QB 841, which is against the argument. On behalf of Westminster, however, counsel relied on other cases of nuisance, notably Whitehouse v Fellowes (1861) 10 CB (NS) 765 (negligently constructed drain causing flooding of adjoining land); Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (successive subsidences from working of coal by lessees of seams under plaintiff's land); and West Leigh Colliery Co Ltd v Tunnicliffe & Hampson Ltd. [1908] AC 27 (also a case of subsidence through working of minerals). While these are cases of longstanding authority, care is needed in identifying precisely what was decided in each.

In Whitehouse the issue was one of time limitation. A statute prescribed a limit of three months. Did time run from the negligent work or the resultant flooding? The decision was for the latter alternative, on the ground that there was a continuing nuisance giving rise to a fresh cause of action on each occasion of damage. No question of remedial expenditure arose.

In the Darley Main case the issue was again limitation. In 1868 the working of the coal had caused a subsidence of the plaintiff's cottages for which the defendants had accepted liability and made satisfaction by repairing the cottages. In 1882 further subsidence and further injury to the cottages occurred. It was brought about when the owner of adjoining land worked coal there, but the defendants admitted that if they had left sufficient support under the plaintiff's land that working would have done no harm. By a majority, Lord Blackburn dissenting, the House of Lords held that the original excavating lessees were responsible for permitting a continuing nuisance, for each incident of damage from which a fresh cause of action arose. Again the measure of damages was not discussed; they were to be assessed by an arbitrator.

In the West Leigh case the issue was somewhat different. It was whether depreciation in the value of the surface owner's property brought about by the apprehension of future damage could be recovered. The House of Lords held not, Lord James of Hereford dubitante . Lord Loreburn LC said [1908] AC 27 , 34 that to allow recovery once and for all of the entire diminution in the value of the property would be inconvenient and capricious in its results. The plaintiff was held entitled to recover the cost of repairs to his wall, plus nevertheless an allowance for the depreciation of its value as a damaged and repaired structure (see pp 32-33 per Lord Ashbourne).

Thus none of the authorities chiefly relied upon for Westminster has focussed on the content of remedial expenses, whether by distinguishing between pre- and post- proprietorship damage or between making good existing damage and safeguarding against future damage. The same is true of two authorities on which Mr Recorder Wood relied, namely Thompson v Gibson (1841) 7 M & W 456 and Sparham-Souter v Town and Country Developments (Essex) Ltd [1976] QB 858, 867-868 per Lord Denning MR

It seems to me therefore that any decision which your Lordships may give in this case must to some extent break new ground in English law. One point at least is clear. Double recovery could not be permitted. But there is no question of that in the present case, nor was there in Masters v Brent London Borough Council . The Church Commissioners here had not incurred the remedial expenditure; and on the authority of the West Leigh Colliery case, on which Westminster rely, they could apparently not have recovered depreciation in the market value of their property resulting from apprehension of future damage.

Beyond that I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart. In Sedleigh-Denfield v O'Callaghan [1940] AC 880 , the House of Lords held that an occupier of land "continues" a nuisance if, with knowledge or presumed knowledge of its existence (in that case a defective grating giving rise to flood damage), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. In Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 , the second Wagon Mound case, the Privy Council, approaching the case under the rubrics of both nuisance and negligence, said, at p 644 per Lord Reid:

Once more, in Goldman v Hargrave [1967] 1 AC 645 , the Privy Council per Lord Wilberforce, as to an occupier's duty to take reasonable steps to prevent the spreading of a fire caused by lightning striking a tree, said, at p 663, and likewise not discriminating between nuisance and negligence (see at 656-657):

In both the second Wagon Mound case and Goldman v Hargrave the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it.

Even in the field of Rylands v Fletcher strict liability ( (1868) LR 3 HL 330 ) the House of Lords in Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 has stressed the principles of reasonable user and reasonable foreseeability: see the speech of Lord Goff of Chieveley, at pp 299-301. It was the absence of reasonable foreseeability of harm of the relevant type that excluded liability in that case.

Approaching the present case in the light of those governing concepts and the judge's findings, I think that there was a continuing nuisance during Flecksun's ownership until at least the completion of the underpinning and the piling in July 1992. It matters not that further cracking of the superstructure may not have occurred after March 1990. The encroachment of the roots was causing continuing damage to the land by dehydrating the soil and inhibiting rehydration. Damage consisting of impairment of the load-bearing qualities of residential land is, in my view, itself a nuisance. This is consistent with the opinions of Talbot J in the Masters case [1978] 1 QB 841 and the Court of Appeal in the instant case, although neither Talbot J nor Pill LJ analysed specifically what they regarded as a continuing nuisance. Cracking in the building was consequential. Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster, as in effect the judge found. It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000 (joint statement of facts and issues, paragraph 23). On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred, despite the council's trench.

It is at this point that I see Solloway v Hampshire County Council, 79 LGR 449 as important as a salutary warning against imposing unreasonable and unacceptable burdens on local authorities or other tree owners. If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree. Should they elect to preserve the tree for environmental reasons, they may fairly be expected to bear the cost of underpinning or other reasonably necessary remedial works; and the party on whom the cost has fallen may recover it, even though there may be elements of hitherto unsatisfied pre-proprietorship damage or protection for the future. But, as a general proposition, I think that the defendant is entitled to notice and a reasonable opportunity of abatement before liability for remedial expenditure can arise. In this case Westminster had ample notice and time before the underpinning and piling, and is in my opinion liable.

Although counsel evidently preferred a more insular approach, it can be useful to remember that there is a common law world elsewhere which may provide some help, particularly on issues where English law is not yet settled. Without undertaking extensive research, it is not difficult to find some support for the views already expressed in Australasian and United States jurisprudence.

In Fleming, The Law of Torts 9th ed (1998), p 498 there is the following passage:

In Prosser and Keeton on Torts 5th ed (1984), p 640 there is this:

In the end, in my opinion, the law can be summed up in the proposition that, where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure may be recovered by the owner who has had to incur it. In the present case this was Flecksun. Accordingly I would dismiss the appeal with costs.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon. I agree with it and for the reasons which he has given I, too, would dismiss this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Cooke of Thorndon. I agree with it and for the reasons which he has given I, too, would dismiss this appeal.