This case deals
with the sale of a property damaged by subsidence which was caused by water abstraction by
tree roots. In 1950 the plaintiffs husband purchased a bungalow from a builder while it
was still being constructed. When they moved in they noticed cracks appearing in the
kitchen walls. A number of Poplar trees were located in a cemetery some 30-40 feet away
from the back of the bungalow and these were implicated as being the cause of the
subsidence damage. In 1953 the plaintiffs solicitors wrote to the owners of the trees who
responded by cutting down the trees and destroying the roots. In 1954 the plaintiff
pursued damages against the builder for breach of contract in which they alleged that the
bungalow was unfit for habitation.
The plaintiff claimed that the builder neglected to build the bungalow with reasonable
skill and care and failed to take any precautions against damage to the bungalow from soil
shrinkage from the adjacent Poplar trees which any competent builder should be aware of.
Judgement was awarded to the plaintiff.
In his judgement statement Jones, J, said "I think that the obligation imposed on
the defendant by the implied warranty was not confined to building the parts of the
building that are above ground but extended to the provision of proper foundations for the
bungalow, and the building of these foundations in a place where they would not settle or
collapse. The defendant assumed the responsibility of supervision of the siting and
building of the bungalow without the assistance of an architect, and failed to provide the
plaintiff's husband with a bungalow fit for habitation......". |