This is the second part of our article in respect of tree related subsidence claims and covers recovery of insurers outlay. Our first article was a general introduction to subsidence and discussed mitigation.
Recovery of insurer’s outlay
When seeking recovery for the cost of repairs it is necessary to consider the cause of action. For tree related subsidence claims this will usually be a claim in nuisance and/or negligence and proceedings must be issued within six years of the cause of action, usually from the date of damage.
The main things to consider will be the tree owners’ duty of care, breach of that duty, causation and foreseeability.
The causation evidence is that contained in the reports from engineers, site investigations, monitoring and arborist reports. Ideally you would want all this to be favourable. However, it is not fatal to a successful recovery action not to have all the evidence being supportive. The evidence should be considered together and collectively.
Having good monitoring evidence that shows cyclical movement is usually key evidence because it identifies the damage is caused by vegetation rather than other factors. Having said that, the lack of cyclical movement isn’t fatal because there may have been a particularly wet summer and the soil moisture deficit may not be as pronounced as it would be in a hot dry summer. Accordingly, little movement doesn’t necessarily mean the trees haven’t previously affected the property or that they won’t do so again.
If there are no roots identified in the site investigation report then, again, that isn’t fatal because the boreholes are in a relatively narrow area. It just means roots were not found in that area, at that time, it doesn’t mean they haven’t spread beneath the foundations and you may need an arborist to comment on that, if they haven’t in their report. There may be no desiccation but if the soil samples were taken in January/February that is likely to account for that because the soils may have rehydrated.
Causation and breach of duty must be proved to make a successful recovery. However, if you can’t show that the tree owner could reasonably foresee the risk that their tree posed to a property in the first place then the recovery action is likely to fail. A tree owner is only required to take reasonable steps to avoid their tree causing damage if they know there is a risk of it doing so.
If the tree owner is a domestic third party the starting point is that they won’t have foreseeability because they don’t have the required expertise. That said, it is important to look to see if their tree has been involved in damage previously. If it has that would provide them with the knowledge and foreseeability of risk. However, it would be necessary to show they had been provided with good causation evidence at the time of the first incident.
The same applies to most commercial third party tree owners. However, some may have the expertise that demonstrate foreseeability, for example, housing developers. They should know about the risks that trees present. They have a greater expertise and arguably greater foresight.
Local Authorities are slightly different because they have the expertise and knowledge in relation to tree root subsidence issues, that is, they have engineering and arborist experts and are aware of the underlying geology in their areas. They know of the various risks that trees pose, including the subsidence risks. On the face of it, in areas where the underlying geology consists of clay soils, their expertise used to mean that they had the required foreseeability to support a successful recovery action. However, the courts have made it far more difficult than it used to be for claimant’s to prove foreseeability. It is now necessary to show there is a ‘real’ risk.
Unfortunately, the courts have not, in earlier decided cases, provided any guidance on what a constitutes a ‘real’ risk other than it is necessary to show that the property is situated in a ‘hotspot’ area. Accordingly, it is necessary to consider how many other claims are in the area and at what distance. Certainly, if previous damage has been caused at that particular property and the tree owner was made aware of it, with relevant causation evidence, it is likely they have foreseeability for any subsequent damage. Failing that, identifying previous claims in the same street, perhaps involving the same species of tree and/or within a limited area, of say ¼ mile, may assist. It is very case specific and it is difficult to know what a Judge would consider sufficient to decide that foreseeability has been proven, should the matter proceed to trial.
Loss adjusters may be able to assist with foreseeability by providing insurers with details of other claims they have dealt with and it would be useful to ask them to carry out a search using the first part of the postcode, so as to limit the search. The defendant would also have to provide disclosure identifying previous claims they are aware of, if a letter of claim is presented to them.
If you can show that the tree owner has foreseeability and the causation evidence is strong there could still be a defence to the recovery action if the tree owner can show there is no breach. The defendant would have to show that, with foresight and in anticipation of the risk, they have a system of inspection and maintenance in place to manage that risk. They only have to do what is reasonable and that is balanced against the level of risk and the costs of maintaining the tree as well as its amenity value. Generally, a system of maintenance every three to five years is likely to be sufficient to show they have acted reasonably. It won’t be a defence for them to have systems in place if they haven’t carried them out. If they fail to reduce a tree at the three year stage, in line with their agreed maintenance schedule, it is likely that breach of duty will be established and they would be liable. Evidence should be gathered from the defendant to show what they have in place and what actions they took.
Always bear in mind the possibility of a previous insurer’s obligation to contribute under the ABI Domestic Subsidence ‘Change of Insurer’ Agreement and the ABI Domestic Subsidence Tree Root Claims Agreement Third Party Liability.
