Understanding the negligence issues

By Richard Smellie
Paper given to the IBC Conference
March 2002

Introduction

Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages

Winfield: Province of the Law of Tort (1931)

The word "tort" originates from fourteenth century old French, which in turn comes from the Medieval Latin "tortum" which meant, literally, something twisted. It is a civil (as opposed to criminal) wrong or injury arising out of an act or failure to act, for which an action for damages maybe brought. The act or failure to act, which causes the injury, is independent of any contract.

To neglect, is to fail to give due care, attention or concern.

Negligence, in law, is a breach of a legal duty. The legal duty is imposed and fixed by law (as opposed to being fixed by contract).
Negligence, as a tort, is therefore in simple terms, a careless act (or failure to act). It is based on conduct, rather than agreement (i.e. contract) or the protection of an interest (as other torts, like nuisance or defamation are). The duty is fixed by law as opposed to being fixed by agreement. But there is overlap between negligence and other torts, and negligence and contract. An interest, or agreement can be damaged by conduct. Interference with the enjoyment of land can give rise to liability in the tort of nuisance (the protection of an interest) and the tort of negligence. Building work which offends contractual obligations (agreement) may be the result of negligent conduct.

Where land subsides, therefore, causing damage to property, and there is no contract fixing duties between the person who suffers the damage and the person responsible for the damage, the tort of negligence is one possible basis upon which to establish liability and recover damages.

Ingredients of a negligence claim

The tort of negligence is committed when actionable damage is sustained. As such the concern is not simply with carelessness, but with inflicting damage carelessly in circumstances where the law recognises a duty to be careful. The first essential ingredient of a negligence claim is therefore the duty:

It is essential in English law that the duty should be established: the mere fact that a man is injured by anothers act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the injury is intentional so long as the other party is merely exercising a legal right: if the act involves a lack of due care, again no cause of actionable damage will arise unless the duty to be careful exists

(Grant v Australian Knitting Mills Limited [1936] AC 85 at 102)

Thereafter the ingredients needed are:

(a) careless conduct (a breach of the duty of care)
(b) a causal connection between that conduct and the damage and
(c) that it was foreseeable that such conduct would inflict that kind of damage on the person harmed.

If the duty and these three elements are established, then the negligence is established. Thereafter, consideration must be given to the extent of the defendant's responsibility (e.g. where there are others involved) and a monetary estimate of the extent of the damage.

Not surprisingly, these matters often overlap. The present approach for establishing the duty is a three stage approach which was summarised as follows by Lord Keith in Caparo Industries Plc v Dickman⁽¹⁾

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity' or ‘neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.

There is no set test for determining these three elements. Proximity may be physical, circumstantial, causal or assumed. Fairness, justice and reasonableness are essentially a test of ordinary reason and common sense. Questions of "policy" can arise, depending on the effect the Court's decision may have upon what is acceptable to and expected by society at large and "floodgates" considerations. It is important to note however that the concern is with a duty which applies to a general class of relationship and damage in relation to all factual situations within that class (as opposed to whether a factual duty exists in a particular case).

These three stages are not always in dispute and overlap. As Lord Oliver said in Caparo:

… it is difficult to resist the conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, or in some cases the degree of foreseeability is such that it is from that alone the requisite proximity can be deduced, whilst in others the absence of the essential relationship can most rationally be attributed simply to the Court's view that it would not be fair and reasonable to hold the defendant responsible.

Duty of care - Occupiers of land

It is a well established law that the occupier of land may be liable to neighbouring occupiers for failing to control a natural danger on his land. This comes from the case of Goldman v Hargrave [1967] 1AC 645. There a tree on the defendant's land caught fire. The defendant cut it down but failed to extinguish the fire and a wind revived the fire which spread to the plaintiff's property. A claim was brought in, amongst other causes of action, negligence. The judgment of Lord Wilberforce made it clear that the law recognised an occupier's duty as one of "… a more positive character than merely to abstain from creating, or adding to, a source of danger", and it was held that there was "… a general duty on occupiers in relation to hazards occurring on their land, whether natural or man made".

Goldman v Hargrave was a decision of the Privy Council. The principle therein that the occupier of land owes a positive duty to act to protect neighbours from natural dangers was expressly excepted by the Court of Appeal in Leakey v National Trust [1980] 2 WLR 65. Leakey was a case brought in nuisance, but in Goldman the case itself primarily concerned liability in negligence. It is the Goldman principle which is applicable to subsidence caused by root encroachment. It is quoted in a number of the nuisance cases in this area of law. In particular, in Solloway v Hampshire CC (see below) it was mentioned with approval in the context of the Leakey case, and from the Leakey case it was made clear that the nature of the duty is "… a duty to do that which is reasonable in all the circumstances and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property".

It is further important to note that the cost and practicability of overcoming a risk are matters which should be taken into consideration when deciding whether reasonable care has been used or not. Again this principle of law in negligence has been expressly applied in the sphere of subsidence due to tree root activity in the Solloway case.

Two types of loss - physical damage and economic

In round terms, the law of negligence recognises two different types of loss. The first concerns damage caused to persons or property. The second concerns financial damage only. Both can be relevant in subsidence claims. Two primary cases in this regard are Donoghue v Stevenson [1932] AC 562 and Hedley Byrne & Co Limited v Heller Partners Limited [1964] AC 456.

(a) Donoghue v Stevenson

Mrs Donoghue (neé McAllister) went to Minchella's café in Paisley with a friend, who ordered her a "ginger beer float". She poured some of the ginger beer over ice cream and consumed the same. Her friend then emptied the balance of the ginger beer into her tumbler and the remains of a snail floated out. Mrs Donoghue was ill (either poisoned by the drink or sickened by the thought of it). Mrs Donoghue claimed that Stevenson, who had bottled the ginger beer and sold it to café, was under a legal duty of care to her to keep snails out of the bottles and to inspect the bottles before they were filled. She said his breach of this duty had caused her illness. The House of Lords agreed that a duty of care exists between "neighbours". Lord Atkin said:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers' question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are closely and directly affected by my act and that I ought reasonably to have them in contemplation as being so effected when I am directing my mind to the acts or omissions which are called in question.

This case therefore is the beginning of the foreseeability and proximity tests in negligence. An important ingredient however in the equation is physical damage to other property - i.e. property other than the property which itself causes the damage.

It is immediately apparent how this might apply to subsidence claims. Where a substantial tree is growing next to a building and the building suffered subsidence, the owner of the tree may well be liable in negligence if the tree is causing damage to the foundations of the building. The two primary requirements to establish liability are proximity and the foreseeability of harm. The physical damage must have been foreseeable as a sufficiently proximate direct result of the negligence conduct.

(b) Hedley Byrne

This case established the principle for claiming economic loss in the absence of physical damage to other property and without contract.

This is known as the "special relationship" principal, and it requires:
(a) a negligent misrepresentation/mis-statement, or some other active form of advice or conduct amounting to a representation, and
(b) that the representation be made in circumstances where there is a high degree of proximity. The proximity must include:-

(i) reliance upon the representation by the party to whom it was made, and
(ii) an inferred assumption of responsibility by the party making the representation, and
(iii) the foreseeability of financial damage if the representation made is inaccurate and is relied on.

The proximity - the special relationship- is therefore the key. The misrepresentation is often a mis-statement. The party making it must be possessed of a particular skill and must know, or ought to have known, that reliance was being placed on his skill and judgment. The special relationship (proximity) gives rise to the duty on the representor to take care. Clearly this is different to the Donoghue v Stevenson principle where the proximity arises from "circumstance", rather than the exercise of a skill where that skill is being relied upon, and the exerciser of the skill assumes responsibility for his representations.

More recent cases have made it clear that the voluntary assumption of responsibility by the Defendant is an essential element of the degree of close proximity or reliance which is needed between the Plaintiff and the Defendant. In the words of Lord Keith of Kinkeln Yuen Cun Yeu v A-G of Hong Kong [1988] 1AC 175:

A duty of care arises when a party is asked for and gives gratuitous advice upon a matter within his skill or knowledge and knows or ought to have known that the person asking for the advice would rely upon it and act accordingly

Following Hedley Byrne, during the ‘70s and almost all of the ‘80s, the recovery of pure economic loss and the tort of negligence expanded dramatically. In the United Kingdom, whilst there was some check on this, the tide was primarily turned by the House of Lords first in 1989 and again finally in 1990. I will look only briefly at what happened.

In 1972, the House of Lords decided Dutton v Bognor Regis UDC [1972] and then in 1977, the House of Lords decided Anns v Merton London Borough Council [1978] AC 728.

The liability established by these two cases, and followed by many decisions in the UK and elsewhere in the Commonwealth, did not require the Donoghue v Stevenson "physical damage to other property", or the Hedley Byrne "special relationship".

The tide was, in part, held back by several decisions during the 1980s until the House of Lords gave two decisions of considerable importance, namely D&F Estates v Church Commissioners for England [1989] AC 177 and Murphy v Brentwood District Council [1990] 2 All ER 908. For the latter, a special panel of seven Law Lords was convened, and the Anns was formally overruled. As such:

(a) neither public authorities, nor private participants, owe an "economic loss" duty of care to any class of the public.

(b) the liability does remain when a Plaintiff can bring himself within a Hedley Byrne situation: there must be positive actions or representations amounting to a voluntary assumption of responsibility by the Defendant.

With regard to tree roots and subsidence claims therefore, the spectre of negligent mis-statement is important with regard to any professional report commissioned to ascertain whether damage has or may occur, and what might be done about it.

Negligence and nuisance

Many of the reported decisions on subsidence due to proximity of trees to buildings, have proceeded on the basis of a claim in both negligence and nuisance. An understanding of the difference between the two is therefore relevant.

Nuisance is concerned with the protection of the use and enjoyment of land. Negligence however is not limited to the protection of any particular interest. Rather liability is based on the defendant's conduct, and may be imposed in respect of a wide range of interests damaged by that conduct.

But the two do overlap in that a claim in nuisance concerning damage to property or land, certainly with regard to the encroachment of tree roots, now includes investigation as to:-

(a) whether the damage was foreseeable, and
(b) whether there is some relationship akin to the duty of care between the person responsible for the nuisance and the damage.

The tort of nuisance is covered in a separate paper at this conference. What is important however is that essentially following the Solloway v Hampshire County Council decision in 1981 (see below) where it used to be the law that if subsidence occurred due to tree roots liability for the damage fell strictly on the tree owner, now that liability has been qualified by the introduction of the requirement of a duty of care and foreseeability, which has been "imported" from the tort of negligence.

Tree root encroachment and negligence

From reported cases, it is apparent that causation and the foreseeability of damage are the most contentious issues in tree root subsidence claims brought in negligence. They are likewise often the most contentious issues where such claims are based in nuisance.
The following cases provide guidance as to causation and foreseeability in negligence.

(a) In Solloway v Hampshire County Council [1981] 79 LGR 449, the claim was brought in nuisance only, but this decision is recognised and confirming the need for foreseeability of damage in such a nuisance claim, a requirement which has always existed for claims in negligence and which has been effectively "imported" into such nuisance claims from the negligence principles first established by Donoghue v Stevenson. Indeed in Low v Haddock (see below) His Honour Judge Newey said:-

Nuisance, when knowledge and foresight of consequences are required for it, bears a strong resemblance to negligence …

The Court of Appeal's considerations in the Solloway case are therefore relevant.

The salient facts on the issue of foreseeability were that a horse chestnut tree, probably planted in 1874, stood accused of being the cause of subsidence to the plaintiff's property following the drought conditions of the summer of 1976. The geological survey map for the area showed that the sub-soil was almost entirely gravel, with no indication of even pockets of clay. The Experts in the case were surprised by the existence of clay pockets, and the defendant council did not know of their presence. Dunn LJ said:

In my view in considering the question of foreseeability the judge was right to concentrate on the likelihood of pockets of clay under the house and so on the proximity of the tree to the house in the light of the evidence that the roots of chestnut trees grow as far as their height.

and continued:

So the vital question is whether the defendants should reasonable have foreseen that there might be pockets of clay under this house. If there were, and the foundations were resting partly on plateau gravel and partly on clay, as was the case, there would be a greater risk of subsidence than if the foundations were resting wholly on clay. If the foundations were resting wholly on gravel there would be no substantial risk of subsidence, even though the tree roots were extruding under the foundations.

He went on to hold:

I think that the possibility of an intrusion of clay under No 72, which is the real question, was unlikely. I would hold that it was no more than a vague possibility, not a real risk in the words of Lord Reid in Overseas Tankship (UK) Ltd v Miller Steamship Co.Pty. (Wagon Mound) (No 2) [1967] 1 AC 617, but assuming that there was a real risk or chance, I would say that it was an outside chance and that outside chance has to be balanced against the practical steps which could reasonably have been taken by the defendants to minimise the damage.

Likewise, Sir David Cairns said:

Since the subsoil at Shirley was almost entirely gravel, since there was no indication on the geological map even of pockets of clay, and since there was no experience of damage caused to the structure of any of the houses in Shirley Avenue by the roots of trees since the houses were built in 1922, it appears to me not surprising that the defendants clearly never directed their minds to the question of whether any particular house in that road was liable to be damaged by such roots. If they had considered the matter I am of the opinion that they could have reasonably taken the view that any risk of such damage was so remote that it could be disregarded. To say that a risk of damage is reasonably foreseeable means that it is foreseeable not merely as a theoretical possibility but as something, the chance of which occurring, is such that a reasonable man would consider it necessary to take account of it. The risk of being struck by lightning when one goes for a walk is not a reasonably foreseeable risk. I should be prepared to hold that the risk in this case was not a reasonably foreseeable risk.

If, however, it could be said to be a reasonably foreseeable risk, I am satisfied that it was a risk such that the cost and inconvenience of taking any effective steps to remove it or reduce it would be quite out of proportion to that risk.

So, with tree roots and foreseeability, there must be a real risk, which is not outweighed by that which would need to be done to reduce or remove it. Further, the defendants knowledge is important.

(b) In Low v RJ Haddock and Royal County of Berkshire [1995] 6 Con LR 122, the facts were that in the early 1950's Haddock developed a housing estate. In due course the estate's roads were dedicated as highways and adopted as such by the local authority. In one such road was an oak tree which was included in the dedication of the highway. 1976 was a particularly dry summer, following which certain residents noticed subsidence to their properties. The plaintiffs sued Haddocks and the local authority in both negligence and nuisance.
His Honour Judge Newey QC, after establishing that the tree was the responsibility of the local authority (as it was dedicated by Haddock as a part of the highway) and that when Haddocks built the houses, desiccation of clay sub-soil by the extraction of water by tree roots was not a matter of general knowledge, made the following important findings.

Firstly he held that:

… provided that the party foresaw the likelihood of some damage occurring, it was not necessary that he should have foreseen the precise type.

Secondly, he found that:

The county plainly knew that the underlying soil was clay and since they knew when the development took place, they could infer that the foundations were not as deep as they could have been expected to be after 1965. They could see the size of the tree for themselves. Up to 1975 there had not been any prolonged drought.

On balance I think that up to 1975 the county could not have been expected to foresee that the tree in its then state was likely to cause damage to either 57 or 59.

In my opinion, Mr Carrick's concern about his step in 1975 leading to consideration of roots, the county's undertaking to check the tree regularly with the Carrick's interests in mind and the dry summers of 1976 and 1976 created a new situation. From then onwards the county should have foreseen that unless the tree was reduced in size the houses were likely to be damaged. In fact the only pruning carried out was in 1978 and was directed to ensuring that branches of the tree did not interfere with vehicles on the carriageways. In my opinion, after about 1976 the oak and its roots constituted a nuisance for which the county are liable.

HHJ Newey QC then confirmed that he found that the Royal County of Berkshire owed a duty of care to the plaintiffs from 1975 not to let the tree damage the plaintiffs' houses, and "… had failed to exercise reasonable care to prevent that damage …". In short, therefore, the damage became foreseeable when, having actual knowledge of the potential problem, it failed to take reasonable care to contain the risk.

(c) The case of Butcher v Perkins [1994] 10 Constr LJ 67 concerned a willow tree in the defendant's driveway, a root from which went so far as to protrude through an air brick in the plaintiff's house. This case is of particular interest in the present context as the defendant was a householder rather than a local authority. As a decision of the County Court, the Judge's intolerant views of decisions such as the Solloway case importing foreseeability into the tort of nuisance are not authoritative. (The case was decided in 1991 and the Judge said "Only in very recent times have the court's introduced foreseeability into the tort of nuisance … I would not for myself introduce an element of foreseeability into the tort"). It is of interest however that in 1991 he said:

I have absolutely no hesitation in saying that the damage was reasonably foreseeable. The test is whether it was foreseeable to a reasonably prudent landowner. A prudent landowner should know that a willow tree or a poplar tree in particular are often responsible for such damage. For a very long time it has been known to the public that such trees can cause damage to buildings by their roots. This tree was 4 metres from the plaintiff's house and I have seen various publications showing that this was at the very limit of safety. It is clear that the tree was close enough to put the house at risk. Anybody should have known that. Secondly, it is extremely well known that in the whole of this area there was a stratum of clay … In my judgment the defendant knew or should have known there was clay in the soil and that there was potential for disaster.

This decision also confirms the well recognised position in the tort of negligence that what an individual defendant knows or ought to know is an objective test - the concern is not with whether the particular defendant does or does not know but whether objectively the defendant should have known.

Given that there are a number of decisions where the courts have struggled with causation and foreseeability (for example the recent Delaware v City of Westminster decision - see below, where Mr Recorder Wood QC specifically acknowledge that desiccation as a result of the activities of tree roots is a difficult technical area), it seems doubtful that without very clear facts anybody without some particular knowledge of the soil stratum in their area and what tree roots can get up to could objectively be said to know of the dangers of subsidence that a tree on their land might cause to neighbouring property.

(d) On the specific question of causation, Paterson v Humberside County Council (1996) 12 Constr 64 is important. Again this case was brought in nuisance and not negligence, but Mr Toulson QC (sitting at Deputy Judge in the High Court - now Mr Justice Toulson) had to consider whether lime trees, over 100 years old, some 9 to 10 metres from a house built in 1882 on a clay soil site, were the cause of subsidence to this house. In line with established principles in the tort of negligence, he found:

(a) That to establish liability it was significant that the tree roots were an effective and substantial cause of the damage to the house although not the sole cause, and
(b) Whilst the shallow foundations made the damage more likely, that did not diminish responsibility of the defendants as "the roots took their victim as they found it."

Further he expressly confirmed again that the test for foreseeability was whether the risk was one which a reasonable person in the defendant's position would have regarded as a real risk. The Council's own guide to householders advising on safe tree planting distances in the area was an important factor in his finding that the damage was foreseeable to the Humberside County Council.

(e) The recent decision of Delaware Mansions Limited and Flecksun Limited v The Lord Mayor and Citizens of the City of Westminster [1998] CILL 1370 is a recent reminder that the standard of proof required for causation is proof on the balance of probabilities.

The judgment does not record when the flats suffering from subsidence were built, but it records that the plane tree in question was probably planted at the time when Delaware Mansions were built, and Mr Recorder Derek Wood QC accepted expert evidence that tree owners, especially local authorities, would be well informed on the topic of soil desiccation by tree roots and the relationship between leaf growth and root activity this having been fully covered in technical literature since at least the early 1980s.

It appears that certain salient facts were not in dispute, namely that certainly since the 1950s through to the mid 1970s the tree had been heavily pruned, after which it had been allowed to develop a large crown, and that the soil on which Delaware Mansions are built is London clay which is known to be highly shrinkable. The judgment further records Westminster's policy towards the care of trees which recorded a reduction in the thinning of the crown of this plane tree from 1983 through to 1989. The recorder concluded that almost all of the structural damage the subject matter of the claim had occurred as a result of the 1989 drought.

The judgment recites at length the expert evidence on desiccation of the relevant soil. Mr Recorder Wood then found:

This is acknowledged to be a difficult technical area. In my judgment the plaintiffs have established on the balance of probabilities that the ground … became desiccated as a result of the activities of tree roots belonging to the plane tree …

It is not surprising, but it is important to remember, that in the event of conflicting evidence it is the balance of probabilities which concerns the Court.

Mr Recorder Wood went on to find that in nuisance, the test laid down in Solloway was satisfied and that "… the facts also point to the conclusion that Westminster were guilty of a failure to take reasonable care to protect Delaware Mansions from a foreseeable danger and that the damage to the foundations resulted from a breach of that duty. In principle, therefore, it seems to me that the physical damage was also incurred as a result of Westminster's negligence.

(f) In another recent decision this time from the County Court, delivered in January of this year, namely McCaffety v London Borough of Croydon again the Court struggled with reaching a decision in the face of conflicting expert evidence. Firstly, it is worth noting that the County Court appeared to prefer the evidence of expert engineers over expert arboriculturalists on the issue of whether the damage was caused by heave or subsidence, and found on the balance of probabilities that the cracking was probably caused by subsidence. The Court then went on to find, again on the balance of probabilities in the face of conflicting evidence, that subsidence had been caused by desiccation of the clay soil.

In considering the issue of foreseeability, the Judge said:

I accept the evidence that a regular programme of pruning should have been undertaken at least since the Kew survey became common knowledge among arboriculturalists. This would have had the effect of controlling the uptake of water by the trees and thus prevented the desiccation of soil under the building.

What conclusions can be drawn

The proceeding trawl through various tree foot cases allows the following conclusions to be drawn:

Whilst in my view it must still be open to doubt whether a householder without some particular knowledge or a particular factual situation could be said objectively to reasonably foresee the damage the roots of a tree might cause, local authorities are by and large expected to have this knowledge. The Judge in the McCaffety case might be criticised for placing too much reliance on the Kew survey, and the more general comments of Mr Recorder Wood QC in the Delaware Mansions case on the information available to local authorities on such matters, coupled with local authorities' own tree care policies are a preferable basis upon which to say that a local authority "knew or ought to have known". But certainly prima facie local authorities these days would have difficulty establishing that subsidence caused by desiccation of soil by tree roots was not foreseeable to them.
Foreseeability is established if the risk is one which a reasonable person in the defendant's position would have regarded as a real risk.
Causation is perhaps not so readily established, particularly in the face of conflicting expert evidence, and in these circumstances it is important to remember that the Court will make its decision on the basis of the balance of probabilities. The tree roots do not have to be the sole cause of the damage and contributing causes will not necessarily relieve the defendant of liability as "the defendant takes his victim as he finds him".
Findings of causation and foreseeability in the tort of nuisance will most probably also establish like findings in the tort of negligence certainly in the area of subsidence where tree roots are involved.

Contributory negligence

It is worth mentioning a principle applied in Low v Haddock, namely that a defendant might allege in the right circumstances the plaintiffs were particularly negligent. In Low v Haddock, HHJ Newey QC said "… it does seem to me that a purchaser who commits most of his life savings and undertakes to repay a large loan in order to buy a house which he has not surveyed is taking a terrible chance. Time had passed between the building of the houses and the date of purchase and, therefore, … I think that … [the plaintiffs] … were both contributorily negligent".

He did however go on to find that the failure to obtain a survey by the plaintiffs did not matter as there would have been no cracks or sticking doors or the like for the surveyor to have discovered and further the surveyor would probably have considered that the local authority could be relied upon not to allow the tree to cause damage to the houses.

Negligent misstatement - Surveyors and other professional reports
The other type of damage found in the law of negligence, namely economic loss, has some bearing on subsidence claims. If you are a professional engaged to prepare a report, perhaps for the purposes of valuation and/or purchase of property or for the purposes of determining what actions, if any, should be taken where a property which appears to be at risk from subsidence, then you are in a position where you are exercising a special skill and reliance is being placed upon what you say. You should bear the following in mind:

(a) In Roberts v Hampson & Co [1989] 2 All ER 504, the Court found that a surveyor is under a duty to follow a line of suspicion, and therefore to devote "as much time as it took" in carrying out his survey.

(b) It is no defence to say that the person who carried out the inspection and prepared the report or survey was unqualified (see Freeman v Marshall & Co [1966] 200 EG 777). Equally, inexperience cannot be used to claim that you are subject to a less stringent standard (see Kenney v Hall, Payne & Foster [1976] 239 EG 355).

(c) If you are in contract with one party for the production of your report, then that party will have a claim against you in contract, but is not, by virtue of the contract, precluded from bringing a claim in the tort of negligence (see Henderson v Merrett [1994] 69 BLR 34).

(d) Although your report may have been procured by one party, if you know that it is likely that a third party will rely upon it you can be found liable with regard to it in the tort of negligence. An example is where a building society procures a report and the maker of the report knows that the purchaser of the property will rely on it. (See Smith v Bush Eric S [1987] 3 All ER 179 and Harris v Wyre Forest District Council [1989] 2 All ER 514).

(e) By virtue of the Unfair Contract Terms Act 1997, a standard disclaimer to the effect that any third parties may not rely upon the report may fail.

Limitation considerations

In tort, under Section 2 of the Limitation Act 1980, the cause of action becomes statute barred six years from the date on which the cause of action accrued. The question of when the cause of action accrued was answered by the House of Lords in Pirelli General Paper Works v Oscar Faber & Partners [1982] 21 BLR 99. The cause of action accrues when the physical damage occurs to the building. It is important to note that the limitation time is not postponed until the defect appears or can be discovered with reasonable diligence.

However the Latent Damage Act 1986 extends the limitation period for negligence in certain important circumstances. It says that negligence claims are statute barred either:

(a) Six years from the date on which the cause of action accrued (that being the date established in accordance with Pirelli) or

(b) Three years from the date the plaintiff knew he had an action, whichever is the later, but subject always to a 15 year long stop from the date of the negligence complained of.

The Latent Damage Act 1986 has therefore modified to some extent the potential harshness of Pirelli. Under the Act, the plaintiff must know the material facts about the damage itself (i.e. facts that would lead a reasonable person to commence proceedings for the negligence) and that the damage is due to the negligence. "Knowledge" in this context includes knowledge that the defendant might reasonably be expected to acquire with the benefit of expert advice.

The relevant provisions of the Limitation Act 1980 and the Latent Damage Act 1986 set out detailed and complicated provisions for this extended limitation period. A useful questionnaire guide through this legislation is to be found in "Building Contract Disputes; Practice and Precedence" by Robert Fenwick Elliott (Ft Law and Tax).

In the area of subsidence through the encroachment of tree roots, it is important to note the potential benefits at suing in nuisance rather than negligence, if there are limitation problems. This was stated by His Honour Judge Newey QC in Low v Haddock:

Nuisance, when knowledge and foresight of consequences are required for it, bears a strong resemblance to negligence, but because it is a continuing wrong, it is much more difficult to establish a limitation defence to it.

1. Caparo Industries Plc v Dickman [1940] 2AC 605

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