Blandina Francis Negga Claimant v The Registered Proprietor(s) of Lands Contained in Registration Section Hodges Bay & Thibou's Block 43 2197 B Parcel 157 Jeff Hadeed Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Thomas J
• Judgment Date: 28 June 2007
• Judgment citation (vLex): [2007] ECSC J0628-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV 372/1999
• Date: 28 June 2007

[2007] ECSC J0628-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. ANUHCV 372/1999

Between:

Blandina Francis Negga

Claimant

and

The Registered Proprietor(s) of Lands Contained In Registration Section Hodges Bay & Thibou's Block 43 2197 B Parcel 157

Jeff Hadeed

Defendant

Appearances:

Mr. Ralph Francis for the Claimant

Mr. John Fuller for the Defendant

Thomas J

1 This action was commenced on 6^th December 1999 by writ of summons under the Rules of the Supreme Court 1970 and completed under CPR 2000.

2 The Claimant's claim is against the Defendant for the following:

• 1. Damages for damage done to the Claimant's property comprising land and dwelling house at No. 8 Sandy Lane, Hodges Bay in the Parish of Saint John in the island of Antigua and Barbuda, by the escape of water from the Defendant's premises at Hodges Bay, Antigua caused by the nuisance of the Defendant, his servants or agents.

• 2. Damages for damage to the Claimant's property comprising land and dwelling house at No. 8 Sandy Lane, Hodges Bay, Antigua by the escape of water from the Defendant's premises at Hodges Bay, Antigua caused by the negligence of the Defendant by his servants or agents.

• 3. Such further and/or other relief.

• 4. Costs.

STATEMENT OF CLAIM

3 In the Statement of Claim the Claimant says that at all material times she was the owner and occupier of property known as No. 8 Sandy Lane, Hodges Bay, St. John's Antigua and described in the Land Register as Registration Section: Hodges Bay & Thibous; Block: 42 2197 B Parcel 58 ("Parcel 58"). On the other hand, the Defendant was at all material times the owner and occupier of the adjacent property described on the Land Register as Registration Section: Hodges Bay & Thibous; Block: 43 2197 B; Parcel 57 ("Parcel 57").

4 In terms of location the Claimant says that her property, consisting of approximately 0.5 acres lies at the foot of a slope on which slope the Defendant's property of similar size is situated.

5 It is the Claimant's contention that the Defendant by himself, his agent, servants or otherwise caused his property to be stripped of all trees shrubs and other vegetation. It is contended further that the Defendant at all times maintained an open septic pit upon his property which measured approximately sixty square feet and which if it overflowed the water collected in it could escape and cause damage.

6 At paragraph 5 of the Statement of Claim it is pleaded that despite many complaints and requests to the Defendant and the relevant authorities no steps were taken to avert the nuisance and the consequential damage to the Claimant's property prior to 20^th November 1999. It is further pleaded that on or about 20^th November 1999 the septic pit on the Defendant's property overflowed and as a consequence water escaped therefrom on to the Claimant's property resulting in the erosion of the base of the retaining walls of the Claimant's property thus causing them to give way and slam into the Claimant's house.

7 It is the Claimant's contention that the stripping of the Defendant's land and the presence of an open septic pit thereon constitute a non-natural user by the Defendant of his land and further the Defendant failed to prevent the escape of water unto her property. Accordingly, it is pleaded that further and or alternatively the water constituted a nuisance caused or permitted by the Defendant and further and or alternatively the said matters explained of were caused by the negligence of the Defendant his servants or agents.

8 The particulars of negligence pleaded are as follows:

• 1. Completely clearing their land of trees, shrubs and other vegetation on Parcel 57 which allowed for erosion of the land and improper drainage of the hillside.

• 2. Construction of 2 stone walls on the Defendant's land and the digging of a septic tank which materially altered the topography of the hillside of Parcel 57 and interfered with the natural flow of the water directing more above ground instead of naturally below the ground.

9 It is the Claimant's pleading that by reason the particulars of negligence her property was damaged and she suffered loss and damage.

10 The following particulars of special damage are pleaded:

1.	Farhan Consultants Architects and Engineers to prepare report on damage to property	$ 2,500.00
2.	Caribbean Testing and Engineering Laboratory report on failure analysis for retaining wall	$ 1,266.00
3.	Cost of repairing retaining wall	$48,000.00
4.	Cost of repairing masonry wall of house	$14,000.00

11 The Claimant's claim is for damages, interest, such further and other relief as the Court thinks fit and costs.

DEFENCE

12 In his defence, the matter of septic pit/tank is denied. In this regard it is the Defendant's contention that the said tank was never connected to his building and that in any event when finished it could not overflow in that the excess effluent would be adequately discharged in a drainage field on the Defendant's land.

13 The Claimant's contention that requests were made of the Defendant to avert the nuisance is denied by the Defendant. Also denied is the further contention that the septic tank overflowed on or after 20^th November 1999. In this regard the Defendant pleads that over 24 inches of rain fell causing the unsupported decorative wall on the Claimant's land to collapse.

14 At paragraph 6 of his defence the Defendant denies non-natural user of the land and nuisance as alleged by the Claimant. Instead the Defendant contends that the water which came onto the Claimant's land was as a result of an Act of God.

15 The Defendant further denies the negligence damage and loss as alleged by the Claimant. In this regard the following is pleaded: The damage suffered by the Claimant was as a result of the said excessive rain which in fact caused similar damage throughout the Eastern Caribbean. And further that the damage suffered by the Claimant was caused by the said excessive rain and by virtue of the fact that the Claimant's wall was structurally unsound and unreinforced by any steel and an unsound foundation.

16 The issues for determination are:

• 1. Whether the Defendant was negligent in relation to the Claimant on her property.

• 2. Whether the Defendant caused a nuisance on his property which affected the Claimant on her property.

• 3. Whether there was non-natural user of the land by the Defendant.

ISSUE NO. 1

WHETHER THE DEFENDANT WAS NEGLIGENT IN RELATION TO THE CLAIMANT ON HER PROPERTY

ISSUE NO. 1

SUBMISSIONS

17 The following submissions were filed on behalf of the Claimant:

• "1.The Claimants seeks damages for loss and damages suffered as a result of work undertaken by the Defendant on his property. The Claimant contends that the Defendant:

  • 1. Cleared the hill of its vegetation.

  • 2. Terraced the hill and in the process changed the contours of the land.

  • 3. Blocked a hole which provided a natural escape route for water which flowed down the hillside over the Defendants property and in the direction of the Claimants property.

• 2. The Defendant began the above described work prior to the 19^th November, 1999. The date of the passage of hurricane Lenny. The evidence led is that this Hurricane deposited twenty-five inches (25") of rain on Antigua during the period 19^th and 20^th November, 1999. As a result, water cascaded down the hill and over unto the Claimant's Parcel. In the process, it penetrated the space between a cliff and a wall constructed on the Claimant's Parcel. The wall fell, crashed into the Claimant's house causing significant damage.

• 3. The Claimant asserts that the damage to the wall and consequential damage was caused by the Defendants work on his parcel which altered the contours of the land. The Defendant on the other hand contends that it was the unusual heavy amount that coupled with the prior construction of the wall caused its collapse. The Defendant denies any liability for damage suffered.

• 4. There is no doubt that the Claimant cleared the hillside of vegetation. Photograph's #73 attests to this clearly. The witness for the Defendant, J. Mario Bento, in cross examination reacted to photo 73 by stating that the area did not look like that seen in the photograph when he visited the site and further stated that the water coming down the hill would have caused the soil to be dislodged; that the soil would have settled against the low wall and flow over the wall unto the Claimant's Property.

• 5. The Defendant Jeff Hadeed testified that planning permission for the work undertaken had been received. Pages 15–19 of the trial bundle shows the application, permit and approval for the project. Page 19 shows that the application was submitted, processed and approved all on the 7^th day of February, 2000. The work undertaken in 1999 by the Defendant was not done subject to the approval of the Development Control Authority. Therefore, it is not open to the Defendant to suggest that planning permission was an endorsement of the work undertaken.

• 6. The Defendant further suggests that the wall was poorly constructed. The evidence as led for the Defendant would suggest that the wall was not constructed to bear load; that its purpose was more decorative in that the face of the hillside in front of which it was constructed was stable and did not exert pressure on the wall; that the wall was not built with steel reinforcement; that water flowed between the cliff (face of the hillside) and the wall and caused it to collapse.

• 7. All of this evidence it is suggested, supports the Claimants contention that it was the work of the Defendant on his parcel which resulted in the flow of water being directed to the wall.

• 8. While the Defendant pleads the unusually heavy downfall of rain, the evidence as led particularly that Mr. Hart the structural engineer...