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CoC - Apportionment of Damage

CoC - Apportionment of Damage

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Published by b165
Breach of Contract, Damage, Remedy
Breach of Contract, Damage, Remedy

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Published by: b165 on Mar 19, 2010
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03/27/2013

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SEEING THE WOOD FOR THE TREES
LOFTUS-BRIGHAM 
AND APPORTIONMENT OF DAMAGE
SUSAN LINDSEY
The majority of Susan’s practice is focused on building relatedmatters. She has experience of a wide spectrum of construction andengineering disputes, and of professional negligence and feerecovery of engineers, architects and surveyors. Susan is a charteredarbitrator and has undertaken appointments to act as adjudicator.She also has experience of acting as party representative inadjudication and mediation.Before coming to the Bar Susan practised as an architect. She haspractical experience of design and build procurement and acting as acertifying architect in traditional contracting arrangements.
 
The tree root case of
Loftus-Brigham v Ealing LBC 
(2004) Const.L.J. 82, in which the Court ofAppeal remitted the matter for re-trial, has been compromised. The Court of Appeal’s judgmentconcerned the correct causation test to apply in such cases. The Defendant’s petition to House ofLords was refused. Now that these particular facts will not be put before a court again, it is
 
 
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appropriate to comment on the debate that has already ensued from the Court of Appeal’s referencein its judgment to apportionment.The facts of the case were unusual in their extremity. Experts agreed that the cause of the damageto the Loftus-Brigham’s house was complex. Close to the right hand side of the house stood verylarge trees under the control of the Defendant. Close to the left hand side grew creepers under thecontrol of the Claimants. The creepers were so large that they all but engulfed the house, coveringthe roof and windows. The main area of the damage was closer to the creepers than the trees. TheClaimants’ expert arboriculturalist accepted that the creepers may have had a localised influence onthe left hand side of the house, up to 25%. There was plainly a factual argument open to theDefendant that the damage sustained by the house was divisible as between the trees and thecreepers.Debate has focussed on paragraph 29 of the Court of Appeal’s judgment:“A recurrent suggestion on the part of the claimants was that this court might cut thegordian knot by simply apportioning the loss amongst the parties, on the basis thatsince both had caused the damage both should bear some part of the cost of thatdamage. Quite apart from the absence of sufficient material to undertake this task, theCourt has no power to take that step. Apportionment in law has to be based on
liability 
,
 
 
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not simply causation. Since the judge found that the claimants were not contributorilynegligent – a finding that has not been appealed – they were not liable in law for anypart of the damage, whether caused by them or not. Here as in
Paterson 
1
 
Ealing has totake its victim as it finds it.”It has been canvassed that this constitutes a binding Court of Appeal authority in this and in all tree rootcases for the proposition that the Claimant may recover damages for all the damage to the propertywhere he can prove on the balance of probabilities that the nuisance created by a tree root materiallycontributed to the damage unless the Defendant can prove contributory causative fault on the part of theClaimant or a third party. The ripples from this interpretation of the case have spread to the press. On23 October 2004 the Daily Telegraph reported that:‘Unless the council succeeds in the re-trial…insurers now only have to prove that localauthority trees have contributed towards subsidence damage for councils to be foundwholly liable’.The same article asserts that local authorities are now engaged in pre-emptive tree felling. In the light ofthe apparent effect of the Court of Appeal’s ruling, this article seeks to put forward a differentinterpretation of this aspect of the judgment.
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Paterson v Humberside County Council (1996) Const.L.J. 64

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