Benjamin et Al v Mansoor

• Jurisdiction: Antigua and Barbuda
• Judge: Mitchell, J.
• Judgment Date: 08 July 2002
• Neutral Citation: AG 2002 HC 9
• Docket Number: Civil Suit No. ANUHCV 0015 of 1996
• Court: High Court (Antigua)
• Date: 08 July 2002

High Court

Mitchell, J.

Civil Suit No. ANUHCV 0015 of 1996

Benjamin et al

and

Mansoor

Appearances:

Clare Roberts for the claimants.

Gerald Watt QC, Alex Fearon with him, for the defendant.

Negligence - Breach of duty of care — Defendant's retaining wall collapsed on claimant's property — Defence — Act of God — Hurricane — Default of independent contractor — Finding that there was no evidence that the wall collapsed because of an Act of God — Finding that the collapse was the consequence of faulty human construction — Finding that the contractor had not been party of the instant action and having had no opportunity to defend himself, the court would make no finding of liability against him even if only as a defence for the defendants to rely on — Damages for the claimant.

Mitchell, J.

1 This was a claim in negligence brought by one landowner, the claimants, against their neighbour, the defendant, for loss and damage caused by the defendant's retaining wall collapsing on the claimants' property during Hurricane Luis. The defence is that the damage was due either to Act of God, or to the default of the independent contractor who built the wall.

2 The case began by the issuing on 23 January 1996 out of the Registry of the Supreme Court of a generally endorsed writ of summons. The Statement of Claim was filed on 2 April. The claim was that on 4 September 1995 at approximately 6 p.m. the retaining wall at the southern boundary of the defendant's property collapsed onto the property of the claimants causing extensive damage. The claim was that this loss and damage was caused by the negligence of the defendant in that he caused the concrete wall to be built with the foundation base of insufficient width and depth and with the weep holes not located in the correct position. The Defence filed on 22 January 1997 denied that the defendant was guilty of any negligence; that the builder of the wall was on Keith Hamilton who was an independent contractor engaged by the defendant to construct his dwelling house and the retaining wall; and that the wall collapsed not as a result of a flaw in its construction but because of the drastic and horrendous effects of Hurricane Luis which lashed the island of Antigua for upwards of 48 hours continually and which brought with it torrential rains which caused water to undermine the centre of the wall and washed it onto the claimant's land, this accident being an Act of God. On 5 February 1997, the order on the summons for directions was filed, and, on 9 December 1997, the request for hearing was filed. The matter has been ready for hearing ever since.

3 As a result of the coming into effect of the new rules CPR 2000, on 22 March 2002, directions were given by consent that the only issue at trial would be liability, the question of quantum if any to be dealt with at a later stage and for witness statements and expert reports to be exchanged. The witness statements and experts report were duly lodged and the matter came up for trial on 24 June 2002 at which time the witnesses were offered for cross-examination.

4 Giving evidence for the claimants were Gerard Benjamin, Patrick Jeremiah the director of meteorology of Antigua and Barbuda, Trevor Gonsalves a civil engineer who put in an engineering report, and Glendora Vanbrooks, the live-in maid of the claimants, who had been the only person present in the claimants' home at the time of the passing of the Hurricane. The claimants were out of Antigua during the passage of the Hurricane and could give no direct evidence of the circumstances surrounding the collapse of the defendant's wall. The defendant gave evidence on his own behalf.

5 The facts as I find them are as follows. The claimants and the defendant are neighbours. The parties live adjoining each other on sloping land at Tamarind Heights at Crosbies in Antigua. The claimants' home is built below the level of and to the north of the defendant's home. The claimants built first, in 1987. They erected a fence around their property. They had excavated into the hillside to level the land when they were constructing their house. The defendant came to build above them at a later stage, in 1989. The defendant had a retaining wall erected at the time that his house was being built. This retaining wall is on the north of his property a few feet away from the fence and building of the claimants. The defendant filled in behind the retaining wall for his convenience and to make his property more convenient and usable for him. The same contractor who built his house, an experienced well-known contractor named Keith Hamilton, built the retaining wall. No evidence was produced that any architect or engineer prepared any engineering or other plans for either the house or the wall. At the time that the wall was built no hurricane of any significance had hit Antigua in some 30 years. The defendant relied on the contractor to use his experience as a builder to build the house and the wall that the defendant required. It was a labour-only contract, with the defendant providing the materials and the contractor being paid on the basis of periodic labour bills. The house and the wall were built in the year 1989, just months before Hurricane Hugo hit. The house has by now withstood some 5 hurricanes, including Hugo, which was a category 5 Hurricane, and Luis, which was a category 4 Hurricane.

6 Hurricane Luis was a powerful hurricane. The evidence of Patrick Benjamin on his measurements regarding the hurricane was not challenged. On the night in question he took his measurements at the VC Bird International Airport, which like Crosbies is to the north of the island. He testified that between 6:00 pm and midnight on 4th September 1995 rainfall was measured only at 8 pm, and some 0.6 mm of rain was recorded. Rainfall was moderate by midnight. Maximum gusts between 11:00 pm and midnight was 53 knots, one knot being 1.157 mph. The really heavy rain fell after midnight, but it was not measured because no one could go outside to take the measurement. It was heavy and continuous with winds gusting to 98 knots between 5:00 and 6:00 am. A total of 3.4 inches fell between 2 pm on 4th and 12 noon on 5th September.

7 The evidence of Glendora Vanbrooks was important for the...