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SUSAN LINDSEY
The tree root case of Loftus-Brigham v Ealing LBC (2004) Const.L.J. 82, in which the Court of
Appeal remitted the matter for re-trial, has been compromised. The Court of Appeal’s judgment
concerned the correct causation test to apply in such cases. The Defendant’s petition to House of
Lords was refused. Now that these particular facts will not be put before a court again, it is
appropriate to comment on the debate that has already ensued from the Court of Appeal’s reference
The facts of the case were unusual in their extremity. Experts agreed that the cause of the damage
to the Loftus-Brigham’s house was complex. Close to the right hand side of the house stood very
large trees under the control of the Defendant. Close to the left hand side grew creepers under the
control of the Claimants. The creepers were so large that they all but engulfed the house, covering
the roof and windows. The main area of the damage was closer to the creepers than the trees. The
Claimants’ expert arboriculturalist accepted that the creepers may have had a localised influence on
the left hand side of the house, up to 25%. There was plainly a factual argument open to the
Defendant that the damage sustained by the house was divisible as between the trees and the
creepers.
“A recurrent suggestion on the part of the claimants was that this court might cut the
gordian knot by simply apportioning the loss amongst the parties, on the basis that
since both had caused the damage both should bear some part of the cost of that
damage. Quite apart from the absence of sufficient material to undertake this task, the
Court has no power to take that step. Apportionment in law has to be based on liability,
2
not simply causation. Since the judge found that the claimants were not contributorily
negligent – a finding that has not been appealed – they were not liable in law for any
part of the damage, whether caused by them or not. Here as in Paterson1 Ealing has to
It has been canvassed that this constitutes a binding Court of Appeal authority in this and in all tree root
cases for the proposition that the Claimant may recover damages for all the damage to the property
where he can prove on the balance of probabilities that the nuisance created by a tree root materially
contributed to the damage unless the Defendant can prove contributory causative fault on the part of the
Claimant or a third party. The ripples from this interpretation of the case have spread to the press. On
‘Unless the council succeeds in the re-trial…insurers now only have to prove that local
authority trees have contributed towards subsidence damage for councils to be found
wholly liable’.
The same article asserts that local authorities are now engaged in pre-emptive tree felling. In the light of
the apparent effect of the Court of Appeal’s ruling, this article seeks to put forward a different
1
Paterson v Humberside County Council (1996) Const.L.J. 64
3
First, paragraph 29 on apportionment was plainly obiter dicta2 . Second, the adoption by the Court of
Appeal in Loftus-Brigham of the approach of the House of Lords to causation in a series of four asbestos
related disease type cases3 on the issues on causation does not necessarily extend to the issue of
apportionment.
In the four House of Lords cases, the Defendant employers were held liable for the total injury to their
employees. In the first three, there was a single employer and an exposure to asbestos dust not between
innocent and guilty on a time basis4 but between a level of exposure which was innocent and a guilty
excess5. In the fourth most recent case, there was exposure over a series of employments6. In all these
cases, the issue was causation7 and liability rather than apportionment of damage:
“A claimant will be entitled to succeed if he can prove that the defendant’s tortious
conduct made a material contribution to his disability. But strictly speaking the
defendant is liable only to the extent of that contribution. However, if the point is never
2
In paragraph 13 of the Judgment, Lord Justice Chadwick identifies two issues on appeal relating to “causation”
not “apportionment”. He was merely dealing with a “recurrent suggestion” that was raised in argument by Counsel
for the Claimants, apparently for tactical reasons.
3
Four cases concerning asbestos related disease where there are unique problems of proving when damage is
caused:” the trigger”: Bonnington Castihgs Ltd v. Wardlaw [1956] AC 613; Nicholson v. Atlas Steel Foundry and
Engineering Co Ltd [1957] 1 WLR 613; McGhee v. National Coal Board [1973] 1 WLR 1 and Fairchild v.
Glenhaven Funeral Services Ltd [2003] 1 AC 32.
4
As in Crookall v. Vickers-Armstrong Ltd [ 1955] 1 WLR 659 and Thomson v. Smiths Shiprepairers (North
Shields) [1984] QB 405.
5
As in Allen v. British Rail Engineering Ltd [2001] QCR 942 [CA].
6
As in Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 AER 421 [CA].
7
Causation and liability were established on the basis of “material contribution” to injury.
4
raised or argued by the defendant, the claimant will succeed in full as in the Bonnington
In cases of true indivisibility of damage, apportionment becomes impossible and therefore irrelevant9. A
single Defendant may become liable for the whole if fault and material contribution to damage are
Where it is possible albeit difficult to apportion damage (ie it is “divisible”), then the court should strive to
achieve justice to the Defendant, as well as the Claimant, by making him responsible only for the
“If we know, and we do know, for by the end of the case it was no longer seriously in
dispute, that a substantial part of the impairment took place before the defendants were
in breach, why in fairness should they be made to pay for it? The fact that precise
quantification is impossible should not alter the position. The whole exercise of
assessing damages is shot through with imprecision. I see no reason why the present
8
Stuart-Smith LJ at paragraph 20 in Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 AER 421 [CA]. In Fairchild v.
Glenhaven Funeral Services Ltd [2003] 1 AC 32, both Lord Bingham (paragraph 34) and Lord Rodger (paragraph
125) observed that no argument on apportionment was addressed to the House of Lords or advanced.
9
Fitzgerald v. Lane [1987] 1 QB 781 [CA].
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time, should in justice lead to a result that the defendants are adjudged to pay in full,
when it is known that only part of the damage was their fault. What justice does
demand, to my mind, is that the court should maker the best estimate it can, in the light
of the evidence, making fullest allowances in favour of the plaintiffs for the uncertainties
“The question should be whether at the end of the day and on consideration of all the
evidence, the claimant has proved that the defendants are responsible for the whole or
a quantifiable part of his disability. The question of quantification may be difficult and the
court only has to do the best it can using common sense … to achieve justice, not only
“We accept that there are difficulties but it is important to recognise that the judge was
faced with the choice between awarding nothing … doing her best to make an
attribution … or holding the defendant liable for the consequences of their non-
negligent actions. The first and last of theses courses certainly involved substantial
injustice to one party or the other. The middle course which she took involved a risk to
10
Thomson v. Smiths Shiprepairers (North Shields) [1984] QB 405 per Mustill J. on pages 443D to 444A.
11
Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 AER 421 [CA] per Stuart-Smith LJ at paragraph 20.
6
both a parties of a minor injustice. We consider she was right to choose the middle
course.”12
“It would be unjust, I think, to make the first employer pay for damage after the plaintiff
left his employment, and equally unjust to make the second employer liable for damage
In tort law, the classic tests of duty, breach, causation and damage are usefully considered as
separate sequential hurdles by lawyers in their forensic examination of a case and in terms of
allocating legal responsibility for accidents. It is appropriate to do so when the damage is indivisible
and there is no issue as to who caused what part of the damage. This is what the Court of Appeal
was referring to in paragraph 29 of the Loftus-Brigham judgment: “on the basis that since both had
caused the damage both should bear some part of the costs of that damage” ie indivisible damage.
that can only be done between two tortfeasors held legally responsible for that damage. This
involves not only consideration of causative potency [causation] but also degrees of
blameworthiness [fault]14. This would require the operation of contributory negligence or third party
12
Allen v. British Rail Engineering Ltd [2001] QCR 942 [CA] paragraph 31.
13
Crookall v. Vickers-Armstrong Ltd [ 1955] 1 WLR 659 per Glyn Jones J. on page 668.
14
Davies v. Swan Motor Co. [1949] 2 KB 291 [CA]
7
In tort law, the cause of action only arises upon the occurrence of “damage”: the legal forensic
process is in fact best truly looked at in the reverse sequence to the above by defining at the outset
the “damage” it is claimed has been caused by the fault of the Defendant. In cases of divisible
damage, legal responsibility for each part of the damage can then be traced back using the tortious
It is important that the analytical process on causation and damage is not elided with the distorted
result that the lower “material contribution test” on causation extends to an element of divisible
damage where it cannot be proved, even on the “material contribution test”, that such element of
damage was caused by the Defendant. Whilst the ramifications of Fairchild and the peculiarly difficult
“asbestos dust cases” have been extended to occupational stress related injuries15 and now tree
root cases16, the attempt by Claimant Counsel in the Court of Appeal in Gregg v.Scott17 to invoke
the “material contribution test” on causation to overcome the hurdles on damage on diminished
15
Hatton v. Sutherland [2002] 2 AER 1, [CA].
16
Wrongly in the opinion of the authors. It is arguably an incorrect use of the low threshold “material contribution
test” which amounts to a forensic fudge on causation. See Professor Jane Stapleton cogently argues in her post-
Fairchild article ‘Cause-in Fact and the scope of Liability for Consequences’ L.Q.R. Vol. 119 [July 2003] page 388,
the phrase ‘material contribution’ is in any event ambiguous, misleading and vacuous amounting to a fudge in the
context of the normal process of determination of‘cause in fact.
17
Gregg v. Scott [2003] Lloyd’s Rep. Med. 105 [CA]. Leave to appeal to the House of Lords has been granted.
8
Accordingly, the authors are of the view that the effect of the Court of Appeal’s decision in Loftus-
Brigham v Ealing is that while the “the material contribution” test now applies as to causation, the
applicable. In short, the Claimant bears the burden of proving that the damage claimed has been
Simon Brown QC
Susan Lindsey.
(The authors appeared for the Defendant in the Court of Appeal and at trial respectively.)