Rhona Henry Eric Henry Claimants v Tropic Builders Ltd Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas J (Ag.) |
| Judgment Date | 24 February 2010 |
| Judgment citation (vLex) | [2010] ECSC J0224-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO: ANUHCV 2000/330 |
| Date | 24 February 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV 2000/330
Ms. Stacy Andrews-Anjo for the Claimants
Mr. John Fuller for the Defendant
The matter before the Court is the assessment of damages payable to the Claimants consequent on a determination by this Court that the Defendant was liable in negligence and breach of contract. The damages relate to the construction of a dwelling house at Friars Hill, St. John's by the Defendant under a fixed price contract of $684,500.00 with the Claimants.
On 5th October, 2000, the Claimants, Rona Henry and Eric Henry, filed proceedings against Tropic Builders Limited and Oliver Davis, T/A Davis Engineering Services. At the trial of the matter both defendants were held to be liable both in contract and in the tort of negligence. However, Oliver Davis successfully appealed1 against the finding of liability against him.
At the time of the judgment, in the matter 11th November, 2004, directions for the filing affidavits and exhibits by the parties within a specified time. Leave was also granted to any party to file an expert report under Part 32 of CPR 2000. Further, directions were given on 16th February, 2007, and 20th April, 2009.
Pursuant to these orders, Mrs. Rona Henry filed two2 affidavits while Bengt Berntsson filed one affidavit on behalf of the Defendant, Tropic Builders Limited.3 An expert report was also filed pursuant to an order of this Court.4
In her affidavit filed on 27th June, 2009, Mrs. Rhona Henry deposes that since 18th November, 1995, she has lived in a house that is now "barely habitable". In this regard the deponent identifies two basic problems: (1) hugh cracks in the floors, walls up to roof level, which cracks continue to widen; (2) the leaking of the house in the area of the cistern and the basement level making the basement smelly, moldy, wet and unusuable for a number of years since construction up to today. Mrs. Henry goes on to detail valuables5 lost over the years as a result of the condition of the subject house.
The affidavit also addresses the matter of hot and cold water facilities which were not provided by the Defendant as required by the contract executed. Also addressed, is the issue of the retention of $34,225.00 as detailed at section 9(e) of the said agreement.
On matter of the rebuilding of her home, the deponent contends that based on the expert report this appears to be likely and that in this regard she obtained an estimate from a local contractor, The estimate according to her is "at least $1,141,705.00 to demolish and rebuild my house".
It is also Mrs. Henry's contention that while her house is being rebuilt, she would be in need of a place to live and has been advised that the rental will be in the vicinity of $7,000.00 per month over the rebuilding period of 12 months.
In a supplemental affidavit filed on 8th October, 2009, Mrs. Henry says that her purpose is "to place on record several documents6 and matters which were presented a part of the Trial Bundle and discussed in the substantive matter." In this context paragraphs 4 to 9, Mrs. Henry details the nature of the correspondence sent to Mr. Berntsson in connection with the problems that were being experienced at the house, and also of various meetings proposed in this regard.
Mrs. Henry contends that as a consequence of one such meeting, involving Mr, Berntsson, it was sought to agree on a time frame for the completion of the works that were necessary to complete the problems with the house. But according to Mrs. Henry no suggestions or any other answer came from Mr. Berntsson. And at paragraph 10 Mr. Henry deposes as follows;
"We therefore proceeded to ask for an independent assessment of the cause of the continuing damage from Mr, Cedric Henry, a structural engineer. This is the report attached to the Affidavit in Reply of Mr, Berntsson. Unfortunately, Mr. Henry would not say definitely what was causing the damage to the house and recommended soil testing to further assist in the identification of the problem. He also recommended remedial work such as disconnecting downpipes from the cistern which was done."
And at paragraph 14 of her said affidavit, the deponent says in part that: "I was prepared, however, to work with Mr, Workman and the Defendant but after the release of Mr. Workman's
report the Defendant did nothing and proposed nothing. At that time, the Defendant knew that it would not be as simple as cutting a few walls and clipping floors based on Mr. Workman's report".In cross-examination by learned counsel for the Defendant, Mr. John Fuller, Mrs. Henry restated the fact that the problems with the house surfaced in 1995, at which time there were multiple cracks which resulted in water coming into the house —walls, living room, passageway, and stairway. He added that she knew from the beginning that the house was leaking both upstairs and downstairs and that it was rainwater that was coming in. She also said that she gave the Defendant a chance to fix the house. With respect to the court proceedings, Mrs. Henry testified that they were instituted in 2000 and by this time several items were lost due to the water.
It is Mrs. Henry's testimony that in 1999 the main problem was the cistern, some four and a half years after the house was first occupied, She said that during this time the Defendant did several repairs and that Mr. Berntsson went into the device seven times. It is her further evidence that she did not recall telling Mr. Berntsson that she did not want him to come to the house any longer. Mrs. Henry went on to testify that in August 1999, she met with Mr. Berntsson at her home at which time Mrs. Anjo present. According to her, the matter of the cistern was discussed and it was agreed that another cistern would be built within the existing cistern. Further, that during this time tanks would be provided by Mr. Berntsson which was never done as agreed. The witness, in this connection, denied that she refused to let Mr. Berntsson do the agreed work.
Continuing her cross-examination, Mrs. Henry testified thus: "I had several engineers look at the property, Cedric Henry, Barrymore Davis and Addison Workman. They looked at the house after I had filed the case. Nobody looked at it before. I do not agree that Cedric Henry looked at it in July 2000. None of these persons recommended the house being torn down."
Mrs. Henry's evidence in re-examination is that she did not get a reason from anyone regarding the state of her house and repeated earlier testimony that Mr. Berntsson went into the cistern seven times. It is also her further evidence that he did repairs to the ceiling and walls.
Finally, the witness testified that she was not aware of any engineer looking at the house on behalf of the Defendant.
In his affidavit in reply, filed on 29th July, 2009, the affiant deposes that, for the purposes of the assessment, he places reliance on their reports produced at the trial. He deposes further that none of these reports contain a recommendation for the destruction of the Claimant's home. And in this regard, too, he places reliance on an estimate of $252,700.00 contained in the report of Charlesworth Barry Davis dated 28th November, 2000.
At paragraphs 6 and 7 of his affidavit, Mr, Berntsson addresses the questions of mitigation on the part of the Claimant and the losses complained of by the Claimant at paragraph 3 of her first affidavit.
Finally, at paragraph 8, the affiant contends that the Defendant offered to effect the necessary repairs and renovations under the guidance and instruction of the Claimants' experts but all such offers were rejected until the action commenced in 2000.
In cross-examination, Mr. Berntsson said that it is his recollection that the property was not damaged as a result of hurricane Luis. He went on to testify that he was not aware of any leaks at the time of Luis and did not remember a letter in October 1995 relating to a number of problems.
As far as the cistern is concerned, Mr. Berntsson said that he could not recall exactly, but conceded that the water leaking out might have happened. And as far as the other problems are concerned, he said that he took care of them based on a list he carried to the job.
Mr. Berntsson continued his testimony in this way;
"I am aware that I was negligent. At the time of the ruling there were still problems some of which were not solved, but I tried to fix them. I sought advice from an engineer, Mr. Davis. He gave me recommendations. They were both verbal and written and we proceeded on that basis. At one time I did require Mrs. Henry to move out of the house to effect repairs. Mrs. Henry told me she did not want me to commence the work."
It is Mr. Berntsson's testimony that he recalls receiving a letter from the Claimant's attorneys, Hill and Hill, on 28th January, 1999. He said that in that letter it was suggested that two engineers should give reasons for the problems. The witness went on to say that he was sure that there was no written response.
Mr. Berntsson also acknowledged that there were several attempts to meet to estimate the problems and there were meetings for this purpose. He said that on 11th July, 2000, a letter was sent by the Claimants' attorneys at which time no court proceedings had commenced.
With respect to Mr. Henry's report the witness said that he recalls seeing it and recalls further that none of the recommendations were implemented. He went on to say that he did not agree with Mr. Henry's conclusions.
Mr. Berntsson, on being crossed-examined on specific...
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