Crevelle v Ling
| Jurisdiction | Trinidad & Tobago |
| Judge | Permanand J., |
| Judgment Date | 03 June 1985 |
| Neutral Citation | TT 1985 CA 91 |
| Docket Number | No. 1687 of 1983 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 03 June 1985 |
High Court
Permanand, J.
No. 1687 of 1983
Mr. W Gaspard for the plaintiff.
Mr. F. Solomon & Mr. A. Sinanan for the defendant.
Tort - Nuisance — Allegation by plaintiff that defendant's cutting of land by a tractor caused a nuisance to him by noise or vibration and dust — Question what in law constitutes unreasonable user — Finding that defendant was not liable in nuisance, as he had used all reasonable skill and care to avoid annoyance.
By Writ of Summons filed herein on 10th May, 1983 the plaintiff sought the following:
‘“1. An injunction to restrain the defendant by himself, his servants or agents or otherwise howsoever from doing the following acts or any of them, that is to say by cutting his land by means of a tractor upon his land at Sierra Vista Gardens, Cameron Road, Petit Valley or causing or permitting other work to be done thereat so as to cause a nuisance to the plaintiff by noise or vibrations and dust to the plaintiff's premises at No. 2 Sierra Vista Gardens Petit Valley.
2. Damages for nuisance.
3. Further or other relief as the nature of the case may require.
4. Costs.
On the said May 10, 1983, the plaintiff and one Calvin Nottingham filed affidavits and the plaintiff obtained an ex-parte injunction against the defendant granted by Warner J. restraining the defendant, his servants and agents from cutting his land by means of a tractor or causing or permitting other work to be done so as to cause a nuisance to the plaintiff by noise or vibrations and dust to the plaintiff's premises at #2 Sierra Vista Gardens, Petit Valley.
The Statement of Claim which was delivered on the defendant's Solicitors on 14th June, 1983 pleaded inter alia, that the plaintiff is the owner and together with his family i.e. his wife and an infant daughter 22 months old occupy premises known as #2 Sierra Vista Gardens Petit Valley (hereinafter referred to as the plaintiff's premises) and the defendant owns the parcel of land to the rear of the plaintiff's premises which rises some 500' or more above the level of the ground and extending in length to over 200, The entrance to the said defendant's land being a dirt pathway about 18′w x 75′l which is on the southern boundary of the plaintiff's premises. The plaintiff alleged that since May, 1983 the defendant had been engaged in cutting the sides of his land from a height of about 500' by means of a heavy tractor and that during the said cutting the defendant, his servants and agents simultaneously loaded the resulting dirt, stones and heavy boulders that fell on to trucks by means of a tractor over loader. As a result, the defendant wrongfully caused excessive noises, vibrations and dust to come into the plaintiff's premises. The plaintiff thereby suffered physical strain moreso at that time he practised his profession as a Barrister-at-Law from his home, his daughter aged 2 showed signs of fear and his premises suffered damage. The particulars of special damages are pleaded as follows: -
| Cost of repainting house | $2430.00 |
| Repairs to Sanyo Video | 650.00 |
| Cost of Living room suite | 5000.00 |
| Cost of Buffet | 1500.00 |
| 3 Counterpanes @ $50.00 each | 150.00 |
| Curtains | 1500.00 |
| 3 Baby dresses @ $45.00 each | 135.00 |
| 1 Baby suit | 25.00 |
| 11,390.00 |
The plaintiff therefore sought an injunction against the defendant and also damages.
The defendant in his defence admitted he is the owner of a parcel of land (hereinafter referred to as the “defendant's lands”) situate near to the plaintiff's premises, but denied that same rises to 500' as stated by the plaintiff. The defendant stated that since 1976 and prior to the erection of the plaintiff's promises he, the defendant was engaged in cutting the top of his land with the use of a tractor and loading operations take place when there is cutting between the hours of 7.30 a.m. and 4.00 p.m. The defendant however denied that he caused or permitted excessive noise, vibrations and dust as alleged or was guilty of any nuisance.
The plaintiff testified at the hearing and stated, that since August 1978 he has been living at the said premises which comprises 3 bedrooms, 1 living roomy 2 toilets, a bath, kitchen, front porch and carport together with a wooden structure on a concrete base attached at the southern end of the building and which is the maid's quarters. Access to the said premises is gained through Cameron Road off the Morne Coco Road. At the Southern end of his premises there is an 18' wide dirt track which leads from Cameron Road to the defendant's lands. Around September, 1982 cutting of the hill began and work took place on Sundays and weekdays and the plaintiff spoke to the defendant about the noises from stones being thrown unto tucks and the dust that was blown into his premises, and on one occasion the plaintiff lent the defendant his hose to clean in front of the plaintiff's premises and the defendant spent more than one hour cleaning same. The plaintiff testified that the defendant told him that he had approved plans to build condominiums and it will not be for long so that the plaintiff “could band his jaw for a year or so”. Also on New Year's day 1982 a tractor came unto the said lands and the plaintiff who had two cars at that time drove one and blocked the entrance to the defendant's lands. Then in May 1983 the defendant had 2 tractors - a heavy tractor which was cutting the hill and boulders, dust and dirt were thrown down the hill. The plaintiff estimated the height of the hill to be about 500' and actually measured same with one Roach and also there was another tractor which was simultaneously loading boulders on to the trays of trucks, while there were other trucks being loaded with sand and all this took place about 300' from the plaintiff's south eastern border - the plaintiff then changed his evidence and stated south western border. As a result an amendment was sought and granted with regard to paragraph 6 of the Statement of Claim. At times the plaintiff stated there were three trucks in the dirt track, in the area of loading operations three or four trucks and other trucks which were parked outside of the plaintiff's gate waiting to enter the defendant's said lands. There were noises when the engines were raving and when boulders were thrown into the trays of trucks there were vibrations felt inside of the plaintiff's house, in addition the dust from the operations covered the trees and plants in his back yard, blow into the louvres and vent blocks and into the house which is situate directly under the defendant's operations and this occurred Monday to Friday 7.00 a.m. to 4.00 p.m. The plaintiff testified that on May 9, 1983 he went to his home at approximately 11.30 a.m. and observed that dirt was falling everywhere - “it appeared as though it was raining dirt” - and he collected two pounds of dirt from the carport. He saw a P.C. Nottingham nearby and spoke with him and the Police Constable called out to the tractor driver and the cutting ceased, but resumed after the Police Constable had left the area. The plaintiff denied under cross-examination that there was any pre-arranged meeting with P.C. Nottingham and himself and he was unable to say whether on that day P.C. Nottingham was in the area to serve a summons on one Maria against whom the plaintiff had laid a complaint. He did not know the Constable personally, but knew that he worked in the Magistrate's Court as he had seen him several times before. The plaintiff claimed as a result of the defendant's operations, he suffered damage to the following extent - $1,430.00 to repaint inside and outside of the house; $1,500.00 to replace curtains; the sitting room suite which cost $5,000.00 was destroyed; a buffet valued at $1,500.00 became spotted and lost its sheen. A Sanyo video valued at $650.00 had to be repaired; 2 counter-panes on the line valued $90.00 became badly stained; 1 baby suit which cost $45.00 could not have been worn again. No receipts were tendered in evidence in support of these claims, with regard to the painting the plaintiff stated he received no receipts, as he had advanced the moneys, but was unable to state the quantum. Neither was any painter or repairer called to give evidence with respect to performing functions of painting or repairing as the plaintiff had testified. Further on June 12, 1984 the plaintiff testified that he had seen the receipt for the sitting room furniture the day before and that same had cost $4,000.00.
One Errol Leitch testified on behalf of the plaintiff. He is an Economist by profession and Business Manager and is a tenant who is living at #3 Cameron Road, Petit Valley, since February, 1980. He lives there with his wife and two children. He testified that the plaintiff lives at No. 2 Cameron Road and that is one house away from this witness's house separated only by a road which leads to an area which this witness identified as a quarry and which consists of a hill of different levels of gradient and which this witness stated is not higher than 170'. He observed in 1981 there was some activity in the quarry area, trucks entered and left, on some occasions they carried dirt and others they carried tyres and “general garbage which I find difficult to describe.”
In 1982 he observed a tractor and a machine with digging arms and on several occasions large trucks. This witness could not recall the dates in 1982, but there was activity i.e. digging of the hill and removing of dirt as a result of which dust emanated, there was noise and vibration. There was also noise from the trucks which lined up about 10' from his window and the engines of the trucks are usually running. There was a constant stream of dust into his house, but he was not sure if it was the eastern side or the western side, but it is the side which faces the quarry...
To continue reading
Request your trial