The majority of Susan’s practice is focused on building related matters. She has experience of a wide spectrum of construction and engineering disputes, and of professional negligence and fee recovery of engineers, architects and surveyors. Susan is a chartered arbitrator and has undertaken appointments to act as adjudicator. She also has experience of acting as party representative in adjudication and mediation. Before coming to the Bar Susan practised as an architect. She has practical experience of design and build procurement and acting as a certifying architect in traditional contracting arrangements.

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 in its judgment to apportionment.

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.

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 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,


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 take 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 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 23 October 2004 the Daily Telegraph reported that: ‘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 interpretation of this aspect of the judgment.


Paterson v Humberside County Council (1996) Const.L.J. 64


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


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.


raised or argued by the defendant, the claimant will succeed in full as in the Bonnington case and McGhee’s case.”8

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 established against him.

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 damage he has been proved to have caused. :

“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 impossibility of making a precise apportionment of impairment and disability in terms of


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].


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 known to be involved in any apportionment”.10

“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 to the claimant but the defendant, among defendants.”11

“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 nonnegligent 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 11

Thomson v. Smiths Shiprepairers (North Shields) [1984] QB 405 per Mustill J. on pages 443D to 444A. Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 AER 421 [CA] per Stuart-Smith LJ at paragraph 20.


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 done by the first”.13

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. The reference to “apportionment” being referred to is to legal apportionment of 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 contribution as per the statutes.

12 13

Allen v. British Rail Engineering Ltd [2001] QCR 942 [CA] paragraph 31. 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]


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 mechanisms of causation, blameworthiness and duty.

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 chance of recovery through delayed medical diagnosis was rejected by a majority.

Hatton v. Sutherland [2002] 2 AER 1, [CA]. 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 postFairchild 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.



Accordingly, the authors are of the view that the effect of the Court of Appeal’s decision in LoftusBrigham v Ealing is that while the “the material contribution” test now applies as to causation, the already established methodology of apportionment applicable to divisible damage remains

applicable. In short, the Claimant bears the burden of proving that the damage claimed has been caused by the Defendant.

Simon Brown QC Susan Lindsey. (The authors appeared for the Defendant in the Court of Appeal and at trial respectively.)


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