Harry et Al v Texaco Trinidad Incorporated et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Bernard, J. |
| Judgment Date | 30 April 1982 |
| Neutral Citation | TT 1982 HC 35 |
| Docket Number | No. 572 of 1971; No. 875 of 1971 |
| Court | High Court (Trinidad and Tobago) |
| Date | 30 April 1982 |
High Court
Bernard, J.
No. 572 of 1971; No. 875 of 1971
R.L. Maharaj and. P. Maharaj for the plaintiffs.
M. De la Bastide Q. C. and B. Ramlogan for the first defendant.
E. Thorne Q.C. and N. Mohammed for the second defendant.
Tort - Assessment of damages.
This case lasted for some forty-one (41) days. It has its sequel from an unfortunate incident which occurred on the 12th February, 1970. Because of certain developments which took place, during the course of the trial I will, in consequence of these developments record at this stage what I consider to be certain relevant and basic data: I do so for a number of reasons. Firstly, because of course, it is, I think, a convenient stage to do so. Secondly, because the facts so recorded are now no longer in dispute. Thirdly and most importantly, because I hope that in putting them at the forefront of this judgment they will serve to remind so many that we must be as much concerned for the safety and welfare of our neighbour as we are for our own safety, I now do so:
On the morning of the 12th February, 1970, a fire of some considerable density raged on New Haven Avenue in Marabella. It left in its wake a death, much destruction, calamity and grief. It would appear from the evidence that the first defendant, Texaco, (hereinafter called “the first defendant”) was in the habit of disgorging from its refinery inflammable material (no doubt waste but inflammable all the same) into the nearby Guaracara River — a public watercourse. This, of course, without more, that is to say the taking of necessary corrective and/or protective measures in the public interest, is fraught with danger to life, limb and property as the events of the 12 th February later showed.
The Guracara River (hereafter called “the river”) flows from East to West and on its way to the sea, namely the Gulf of Paria, from its source flows at a certain point behind or to put it in proper perspective at the back of a number of private dwelling houses. But before doing so it also passes near to the then premises of the second defendant, Chen hereinafter called the “second defendant”), where, among other things, the latter at the time wee operating a bakery establishment. It is common knowledge that ovens are in almost daily use therein and materials for use herein are in constant supply on those premises.
The first defendant is an oil company. It operates an oil refinery at Point-a-Pierre. Its compound, or a part of it at any rate, is on the other side of the river and on the material date in relation to the plaintiff's homes faced the back of them.
On the particular morning in question, the second defendant lit some refuse on the bank of the river on his side. Sometime before this, however, the first defendant also emptied a not inconsiderable amount of untreated inflammable material into the river. The river is not known for its speed of flow except, of course in times of flood caused by rains as is the case with so many rivers in this country. The second defendant was in the habit of doing just this in the past. On some occasions when he did so, some rather disturbing signs if not omens were manifested in that small fires would occur. It would seem that he was warned about his acts of indiscretion and more particularly so by agents of the first defendant. He ignored the warnings both of nature and of man
Things continued to be the same. The first defendant, it would seem, continued to pollute the river with inflammable material. At any rate it did so as I said some time before the 12th February, the river was a potential powder keg! Indeed, it was in that dangerous state just before the second defendant that morning lit the refuse on the bank of the river, and, more particularly, close to the edge of it. And, moreover, he did so against the advice of his employee, one Sonny Vishnu, whom he had sent to do the deed but who flatly refused to do so and, rightly so in my view, because of the dangers present. Vishnu had in fact warned him of the dangers before-hand, Yet again he took no heed.
As fate would have it, these conjoint acts of the first and second defendants to which I have earlier adverted with particular reference to the events of the 12th February had had disastrous and unfortunate consequences for many people in the area and particularly the plaintiffs. A fire of considerable ferocity and severity erupted from the combined acts of both defendants. The rubbish that the second defendant had lit spread to the river. Naturally the river caught fire. The fire spread on the river. In the end the houses of the first and second plaintiff together with their belongings were completely destroyed. The third plaintiff was slightly more fortunate. Her home was only partially damaged. She lost some of her belongings as well. But what is even sadder and more regrettable is that an old woman of the age of eighty.-five (85) by the name of Caroline Brown Cobbler died in the wake of the fire. She was the mother of the first plaintiff Clarence Harry. So the latter suffered two unfortunate and heartrending calamities.
The death of this old woman was not only horrifying but a matter in my view, for considerable regret and concern. I will only say this however, and I make no apologies for it. Those who must, of necessity, bear responsibility for the calamity must, in my view, indeed hang their heads in shame! I protest and I protest most strongly at what to my mind was and, it would appear from evidence, still is a blatant disregard for the law abiding residents of New Haven Avenue. They are entitled to the peaceful enjoyment of their property: They are entitled to live in contentment. They cannot do so in the knowledge that the river continues to be polluted by the belching into it from the premises of the first defendant of inflammable material, If what this court has been told is corrects then it follows that any mischievous person, aided by the state into which the river is put from time to time, can do an act which can have frightening consequences for a great many. The matter seems to call for urgent attention by all concerned with a view to immediate corrective measures being taken if this is still necessary. We do not want another disaster to occur!
In 1971 the plaintiffs Clarence Harry (“Harry”), Mary Taylor(Taylor) and Violet Joseph (“Joseph”) sued both defendants for damages by reason of their respective acts. Rita Cobbler, the administratrix of the estate of the deceased woman, Caroline Brown Cobbler, sued them too for loss of expectation of life and funeral expenses.
Like the late lamented Caroline Brown Cobbler, Harry, Taylor and Joseph quite advanced in age. They are, therefore, in the sunset of their lives. So old are they (the youngest of the three, Taylor being sixty-five(65) and the oldest Joseph being seventy-eight (78)) that they had to be allowed to sit while giving their evidence. Besides, there is no doubt from the evidence that the events of the 12 th February have left their lives, particularly that of Harry and Taylor in almost complete shambles. Harry, in particular, had a good thing going for him up to the time of the fire. Before this, apart from living in his building, he had three (3) tenants in its remaining apartments and was receiving rents from them. The rents from the apartments were used obviously to see him through his day to day existence. Now he has nothing to come by except of course, the little pension that he gets at the end of the month. Since the fire he, like Taylor, had to make do largely through the generosity of a number of benefactors. At present he is residing in a shack which he put up on the site where his property previously stood. Fate has dealt this unfortunate widower (his wife died before the disaster) a hard blow indeed, for he like Taylor was stricken down by the occurrence of an event in which he had no hand. He is now destitute and, from what I could make of him in the witness box he struck me as being a person who was still suffering from the shock of the unfortunate events that engulfed him that day.
By their pleadings the defendants stoutly denied liability. Each one threw the blame on the other. Each persisted with this stand for many days at the trial. Each cross-examined the plaintiffs (save and except the administratrix of the deceased, Rita Cobbler) and their witnesses strenuously and at great length on the issue of liability among other things. Eventually, however, wisdom prevailed for, on the tenth day, the defendants made a clean break of it and Athrew in the sponge.” In this connection they admitted liability to the extent of sixty per cent (60%) as to the first defendant on the one hand and forty per cent (40%) as to the second defendant on the other, but not as to the damages claimed. In the light of the facts it is a great pity that the defendants, failed to take this obviously wise course earlier or before, for, between the happening of the fire and/or the issue of the writ in these proceedings and now, inflationary trends in this country have had a marked influence on the value of money in this country today. So this is where my problems in arriving at the extent of the damages to be awarded necessarily lie.
To resolve my problem and, more particularly, having regard to the submissions made before me, four questions must, in my view, necessarily arise for my consideration. They are these:–
What should be, in the case of Harry and Taylor, the basis of assessment of the damages in each case?
As at what date or period should such damages be assessed or computed?
Is there any right to a betterment allowance if reinstatement is, in the circumstances, to be the true measure of the damages to be awarded?
Is this, in all the circumstances of this case, a good...
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