Bruce Mouttet and Erika Mouttet v Arcanum Ltd and Bonvista Investments Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Peterson, J.
• Judgment Date: 19 May 2025
• Neutral Citation: TT 2025 HC 143
• Court: High Court (Trinidad and Tobago)
• Year: 2025
• Docket Number: Suit No.: CV2018-03415

Bruce Mouttet and Erika Mouttet

and

Arcanum Limited and Bonvista Investments Limited

Peterson, J.

Suit No.: CV2018-03415

High Court

Appearances:

Renise Antoine, instructed by Gabriel Hernandez, Attorneys at Law for the Claimants.

Kerwyn Garcia SC leading Hillary Muddeen, instructed by Radha Carrie Maharaj, Attorneys at Law of the Defendants.

Peterson, J.

1 This is a claim advanced in nuisance. The parties are the owners and occupiers of neighbouring properties at Ascot Road, Goodwood Park, Diego Martin.

2 The relief sought included:

• i. A declaration that the Defendants do forthwith pull down and remove the Gate;

• ii. An injunction restraining the Defendants by themselves, their servants or agents or otherwise howsoever, from erecting and keeping the Gate or other structure in such a manner as to be a nuisance to the Claimants;

• iii. Special damages in the sum of $28,740.00

3 The Claimants are husband and wife and own the property at No. 100 Ascot Road, Goodwood Park, Diego Martin. The First Defendant is a company owning the property situate at No. 96 Ascot Road, Goodwood Park. The Second Defendant is the owner of the property at No. 97 Ascot Road, Goodwood Park. 96 and 97 Ascot Road are occupied by the Patel family. Mr. Patrick Patel is a Director of the First Defendant.

4 There is a Slipper Drain running from east to west along the northern edge of Ascot Road.

5 The Claimants allege that there were certain works carried out by the Defendants in 2006, including the construction and installation of a gate across Ascot Road (hereinafter referred to as “the Gate”), and the alteration of the roadway. They assert that these works have diverted the natural flow of water from the roadway into the Slipper Drain. During rainfall, the Claimants allege that water, leaves and other debris deposited upstream of their home flow toward the Gate constructed by the Defendants and become trapped by the Gate. The water then overflows the roadway onto the Claimants' property, thereby creating a nuisance.

6 The Defendants' representatives deny that the Gate impedes the free flow of water. They assert that when it rains heavily, garbage in the neighbourhood is washed down Ascot Road and tends to accumulate at the Gate. Any flooding experienced by the Claimants has been caused by these events. The Defendants' case is that they are not responsible for the presence and accumulation of debris at the Gate.

ISSUES

7 On 10 August 2020, the parties filed an Agreed List of Issues for the Court's determination, which the Court had reference to. The Court has found that the following issues fall to be determined:

• i. What is the cause of the flooding of the Claimants' property?

• ii. Is the flooding caused by the Gate installed by the Defendants and/or the elevation of the roadway by the laying of concrete and brick tiles?

• iii. Do the Defendants owe a duty to the Claimants to utilise their property so as to prevent flooding of the Claimants' property?

• iv. If so, have the Defendants discharged that duty?

• v. Are the Defendants liable for the flooding on the Claimants' property?

• vi. If so, did the Claimants suffer damage? and

• vii. If so, to what relief(s) are the Claimants entitled?

• viii. Did the First Claimant unlawfully unhinge the Defendants' gate in July 2018? If so, are the Claimants liable for damages?

ORDER

8. The Court makes the following Order:

It is hereby ordered that

• i. The Claimants' claim is dismissed.

• ii. There be judgment for the Defendants against the First Claimant on the Counterclaim.

• iii. The First Claimant to pay to the Defendants:

  • a. special damages in the sum of $5,000.00 for gate repair; and nominal damages in the sum of 5,000.00 for trespass.

CLAIMANTS' CASE

9 By Claim Form and Statement of Case filed on 21 September 2018, the Claimants sought the following:

• i. A declaration that the Defendants do forthwith pull down and remove the Gate;

• ii. An injunction restraining the Defendants by themselves, their servants or agents or otherwise howsoever from erecting and keeping the said Gate or other structure in such a manner so as to be a nuisance to the Claimants;

• iii. Special damages in the sum of $28,740.00;

• iv. Interest;

• v. Costs;

• vi. Such further and/or other relief as the Court deems fit.

10 The Claimants' case is that the First and Second Defendants have caused the nuisance claimed, particularly:

• i. The Defendants caused a gate to be built across the entire width of Ascot Road, the west side of which is obliquely parallel to the eastern boundary of the Claimants' property. The Claimants' case is that the Gate intersects the Slipper Drain, which runs parallel to the northern boundaries of the properties.

• ii. The part of the Slipper Drain which runs parallel to the northern boundaries of 96 Ascot Road and 100 Ascot Road is deeper than its continuation to the west of those properties.

• iii. In 2006, the Defendants caused the deepest part of the drain to be narrowed by depositing concrete therein so that a metal grill could be installed above the drain. This metal grill traps debris during heavy rainfall, preventing the free flow of water into the Slipper Drain.

• iv. The Defendants caused the roadway between the Gate and No. 96 Ascot Road to be raised by depositing concrete thereon and causing brick tiles to be installed on the roadway. This causes water to flow downward to the west of the Gate and unto the portion of land immediately abutting 100 Ascot Road and percolates onto 100 Ascot Road.

• v. During times of heavy rainfall, water is obstructed from accessing the deepest part of the Slipper Drain by the accumulation of leaves and debris at the Gate. The iron bars of the Gate trap the leaves and debris. As a result, water flows onto the Claimants' land.

11 As a result of the works carried out by the Defendants, the Claimant contends that their property was flooded on several occasions during September 2014, October 2016, October 2017 and July 2018.

12 The Claimants claim special damages for the remedial work undertaken on damage to their swimming pool, and for the damage to their second and third-floor carpets, skirting boards and the second-floor ceiling.

13 In their Defence to Counterclaim filed on 27 February 2019, the First Claimant admits to unhinging the Gate. He states that it was done to allow water to recede into the drain to the east of the Gate since that accumulated water constituted an imminent danger to the Claimants' premises.

CLAIMANTS' WITNESSES

BRUCE MOUTTET – THE FIRST CLAIMANT

14 When cross-examined, Mr. Mouttet accepted that before the construction of the box drain by the Defendants in 2006, the drain running opposite his premises on Ascot Road was a kerb slipper drain that was not as deep as the box drain.

15 Mr. Mouttet stated that at some points, the Defendants raised the roadway by at least 1.5 feet. He asserts that bricks were laid on top of this roadway, “which had been extended higher vertically”. When cross-examined, he explained that the laying of brick tiles on top of the road was one of the works that narrowed the width of the drain.

16 Mr. Mouttet's evidence was that after a meeting between the parties, the Defendants relocated the Gate by 9–10 feet, but that did not abate the flooding issue. Water continues to overflow where the Gate bisects the drain. When cross-examined, he accepted that

• a. no part of the Gate was physically in the drain;

• b. water actually pools on the surface of the road in front of the Gate; and

• c. water from both the roof of his house and the roof of the carport flows through the same drainpipe and exits immediately in front of his home.

17 The First Claimant testified that the four instances of flooding referenced in his witness statement all occurred after the carport was constructed at 100 Ascot Road. In all instances, the floodwaters included debris.

18 Under cross-examination, the First Claimant admitted that the Gate in dispute had iron bars at the bottom that were spaced about five and a half inches away from each other.

19 In his testimony, the First Claimant confirmed paragraph 20 of his witness statement that, “Almost every time it rains heavily, I am summoned from work to ensure that all hands are on deck to clear debris should the floodwater penetrate our home again.” He testified that he had cause to clear debris to prevent it from clogging the spaces between the iron bars of the Gate, and causing water to dam at the gate.

20 When it was suggested to the First Claimant that the problem of the flooding on Ascot Road is due to the blockage caused by rubbish trapped by the Gate. He responded, “I will concede that”. He also accepted that if there is no debris, water can and does flow through the iron bars in the gate.

ERIKA MOUTTET – THE SECOND CLAIMANT

21 The evidence of the Second Claimant largely mirrored that of her husband. She testified, at various points during her cross-examination, that it was the presence of trapped debris which prevented water from flowing freely into the drain, and that it was the debris that caused water to dam at the Gate.

22 This is further reflected in her email dated 9 July 2018 to the Chairman of the Diego Martin Regional Corporation, which states, “…leaves, sticks and debris of all kinds collect at the gate, blocking the natural exit of the water to the box drain, forcing water to back up…”

23 When cross-examined, she acknowledged that the debris that collected at the Gate during heavy rain came down Ascot Road from higher up Ascot Road. The Second Claimant agreed that the debris was not brought by the Patels to the Gate.

WILLIAM AGARD

24 Mr. Agard was one of the expert witnesses. He is the Civil Engineer who prepared a Flood Analysis Report dated 18 March 2019. In his report, he stated that at the end of a shallow box drain, there was a concrete step leading...