Oswald France Claimant v The Attorney Genreal of Antigua and Barbuda Director of Public Works Defendants [ECSC]

JurisdictionAntigua and Barbuda
CourtHigh Court
JudgeBlenman J
Judgment Date26 May 2009
Judgment citation (vLex)[2009] ECSC J0526-2
Date26 May 2009
Docket NumberCLAIM NO. ANUHCV 2005/0416
[2009] ECSC J0526-2

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV 2005/0416

Between:
Oswald France
Claimant
and
The Attorney Genreal of Antigua And Barbuda Director of Public Works
Defendants
Appearances:

Mrs. Eleanor Clarke-Solomon for the Claimant

Ms. Bridget Nelson Senior Crown Counsel for the Defendants

Blenman J
1

This is a claim by Mr. Oswald France against the defendants for damages for personal injuries and damage to his goods and premises (property).

2

Background

Mr. France is the owner of house and land situated at York's New Extension. The property adjoins the public road. He contends that some time around January or February 2004, the Ministry of Public Works improperly constructed a drain and curb in front of his property, on the public road adjoining his house, which caused his property to be flooded. He says that the flood waters caused severe damage to his home, plants and other fruit trees. In addition, he developed skin fungus and had to receive medical treatment. His clothes and household articles were also damaged, as a consequence. He says that he has suffered loss and damage as a result of the negligent conduct of the Public Works officials who constructed the curb and drain in front of his home. Alternatively, he says that they have created a nuisance for which he is entitled to be compensated for the loss that he has suffered. He has therefore brought a claim in negligence against the defendants. Alternatively, he says that he has a claim in nuisance against them.

3

The defendants deny that the Department of Public Works negligently built the drain or curb. They also deny that the officials who constructed the curb and the drain created a nuisance. They say that they are sure that any damage that Mr. France may have suffered was of his own making. His property is constructed on low lying swamp land which has been prone to flooding and he accumulated waste water on his land which eventually flooded his land. They say that they are not liable for any loss or damage which he may have suffered.

4

Issues

The issues that arise for the Court to resolve are as follows:

  • (a) Whether the Public Works Department negligently constructed the drain and curb and thereby caused damage to Mr. France's property.

  • (b) Whether the Public Works officials created a nuisance by constructing the curb and drain.

  • (c) Whether the defendants are liable for any loss and damage which Mr. France has suffered.

  • (d) What is the measure of damages, if any, to which he is entitled?

5

Evidence

Several witnesses testified on behalf of Mr. France and the defendants, and they were cross examined. The Court has also paid regard to the agreed bundle of documents, which include reports and receipts.

6

Senior Crown Counsel Ms. Bridget Nelson's submissions

Negligence

Senior Crown Counsel Ms. Nelson said that the main issue in the claim of negligence is whether the curb and drain that were constructed by the Public Works Department were the cause of the flooding of Mr. France's land, and damage to his dwelling house with consequential loss and damage to property and personal injury, as Mr. France alleges.

7

Senior Crown Counsel Ms. Nelson said that in order to establish negligence, Mr. France must prove that the Public Works Department was in neglect of some duty of care which they were bound to exercise towards him. The primary complaint in Mr. France's claim is that the Public Works Department caused the water to run off the road onto his land which was below the level of the road, and the curb and drain acted as a dam preventing water from running off his land. Ms. Nelson said that having regard to the statutory powers conferred on the Director of Public Works even if he had done what Mr. France alleges, it would not constitute an act of negligence or nuisance.

8

Learned Senior Crown Counsel Ms. Nelson submitted that there was no duty of care owed to Mr. France not to block his access to the drain constructed by the Public Works Department for the purpose of draining the road only.

9

Further, Ms. Nelson learned Senior Crown Counsel said that there is no obligation on the Public Works Department to provide for or to facilitate drainage of Mr. France's land. The Public Works Department owed him no obligation to provide drainage for his land and owed him no duty of care in the construction of the curb and drain as he was not entitled to an unobstructed drainage into the public drain. Even if the curb and drain did act as a dam (which is denied) the construction did not amount to an act of negligence on the part of the Public Works Department and for the same reason did not constitute a nuisance. There could be no wrongful obstruction of his drain in the circumstances of the case at bar.

10

Mr. Dennis Morrison Burns, Mr. France's witness, said that in 2003, 2004 and 2005 he observed that the properties to the north, east and west of Mr. France were water logged. These properties are contiguous to Mr. France's property. This means that the water was not backing up behind the curb and drain as Mr. Trevor Gonzalves, another of Mr. France's witnesses, alleged. Senior Crown Counsel Ms. Nelson submitted that the natural inference to be drawn from the state of the neighbouring properties prior to the construction of the curb and drain is that the topography — low lying mangrove type swamp land with a high water table and the geography — impermeable clay soil together with Mr. France's irrigation/drainage system designed to trap water are the factors that lead to the accumulation and retention of waste water on his property.

11

Senior Crown Counsel Ms. Nelson said that Mr. France told the Court that he was trapping rain water on his land in order to pump it out. There is no doubt that Mr. France was accumulating water on his property by trapping it. It is highly improbable that it was rain water that he was trapping. Mr. France's property is located within the ten mile radius of the Dunbar's Meteorological Station where the rainfall statistics and the rate of evaporation for that area are recorded. These statistics are kept by the Director of Meteorology (ag.) at the V.C. Bird International Airport. The statistics indicate that more moisture evaporated into the atmosphere than fell in the form of rain. It is more probable than not that Mr. France was trapping his waste water. This inference can be drawn from his own evidence that he used the waste water to irrigate his land for the benefit of his plants.

12

From Mr. France's evidence he stored water in a drum. He tendered a photograph of the drum and the pipe running from the roof of his house into the drum. Mr. France also tendered a photograph of a pipe which was partially embedded under the ground. This pipe, Mr. France alleges, drained rain water away from his premises onto the road prior to the construction of the curb and drain. It is Mr. France's contention that the curb and drain constructed in the first quarter of 2004 blocked the flow of rain water off his land by acting as a dam and resulted in flooding of his property and the retention of water for several months. Senior Crown Counsel Ms. Nelson submitted that it was not possible for the curb and drain, which were no more than a few inches high, to act as a retaining wall, keeping several feet of water on Mr. France's land. Further, had the source of water been rain, the flooding would not have taken several months to occur. It would have occurred with the first heavy rainfall in May, followed by further heavy rainfall in July and September, 2004.

13

It is significant that Mr. France said that the water flowed naturally off his land into the hole that the government dug in the road in front of his property. The evidence of Mr. Damon Lewis, witness for the Public Works Department is that he was pumping water out of that hole from July 2005 to April 2006. This witness said that it was raining intermittently during this period but for the most part, it was dry. The natural inference to be drawn from the evidence of Mr. Lewis is that the source of the water flowing into the hole was not rain water but Mr. France's waste water.

14

There are other critical inferences to be drawn from this evidence. The water that was accumulating on Mr. France's property was his waste water and not rain water and he impeded its natural flow off his property by deliberately trapping it with concrete structures and interspersed mounds topped with tufts of grass. It follows that it was Mr. France's own deliberate act of accumulating waste water by trapping it on his land that caused the flooding and all of the consequential injury that he sustained.

15

Senior Crown Counsel Ms. Nelson said that in all of the circumstances, none of which were of the Public Works Department's making, the topography, the geography and Mr. France's own actions, the Public Works Department is not liable to Mr. France either in negligence or nuisance, since the curb and drain were not the operative cause of Mr. France's injury. In support of her contention, Senior Crown Counsel Ms. Nelson referred the Court to the Wright v Lodge [1993] 4 All ER 299 where a combination of several factors, including a series of acts and omissions and the conditions in which the events took place, lead to the accident that resulted in litigation.

16

Based on the evidence of Mr. France's witness Mr. Lowell Jarvis, Mr. France's basement was partly below ground level. Even if Mr. France built up his land as he and his witnesses state, the impermeable clay soil was never removed and this along with the contraptions that he placed on his land to trap water resulted in the flooding of his basement and other parts of his house. Ms. Nelson submitted that Mr. France was the author of his own misfortune.

17

Senior Crown Counsel Ms. Nelson was adamant that the Public Works Department had no duty...

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