UK Tree Care - http://www.oak-wood.co.uk/uktc/
Well this seems to have stirred up some debate.
A few points of law to think about, With the new Wolf reforms firmly embedded
in the English system now, it is possible that this case would not even get
past a first hearing, and to be honest I think to have got that far would be
too far.
With reference to the other points that people have raised, the good old
Rylands v. Fletcher, is now so diluted that it is rarely used, to start one
of the important lines from the case judgement is "bring onto, collects or
keeps" this links to the land, the Modern Duty of care in this case would tie
into 'keeps' thus he would need to know of his potential involvement.
Also in defining nuisance in Attn. Gen. v. PYA quarries " Materially
affecting the reasonable comfort and convenience of the life of a class of
her majesties subjects" So the question, is the sump owner doing this or is
the fungus that is a natural organism doing it of it's own accord?.
And lets not forget the three pre-requisites before we even consider an
action in nuisance
Causation, reasonable care not exercised, Forseeability, if you cant show all
of these it is difficult to win a case.
The second point there may be one of negligence, the old reasonable person,
reasonable manner etc, etc.
The plot just keeps getting thicker and thicker, Lets hope that we can avoid
falling foul of the colonial trend of suing for everything, and act like
'reasonable' people.
and a final word, who is to say that the person with the dying shrubs did not
introduce the Am.spp if he bought some plants from an unhygienic source, and
then they have passed over and started to decay the stump, and are now
re-encroaching with renewed vigour.
my advice get the neighbours down the pub, couple of pints of adnams and
broadside, and talk about it, come to a mutually agreeable remedy then
invoice both of them!!
kev. M
-----Original Message-----
From: phawksford2000@xxxxxx.co.uk
Sent: 13 December 1999 08:18
To: Moore, Kevin; uktc@xxxxxxxx.com
Subject: Re: Armillaria -Reply
----------------------------------------------------------------------
UK Tree Care - http://www.oak-wood.co.uk/uktc/
Not sure what you mean, though 'allows' may tend to
mean 'allows to occur' and therefore liability may
attach for allowing a potential nuisance to occur or
become exacerbated from limiting it's potential to
occur. How does law define 'prudence, common sense and
logic' and that ignorance cannot be a lawful defence
to the obvious potentially harmful actions to persons
or property?
Paul H.
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