Ray Cheddie v National Infrastructure Development Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Robin N. Mohammed |
| Judgment Date | 27 June 2022 |
| Neutral Citation | TT 2022 HC 155 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2015-03381 |
Before the Honourable Mr. Justice Robin N. Mohammed
Claim No. CV2015-03381
IN THE HIGH COURT OF JUSTICE
PORT OF SPAIN
Ms. Lauren S. Ramtahal instructed by Ms. Sasha P. Singh for the Claimants
Mr. Gregory Delzin instructed by Ms. Margaret Hinds for the First Defendant
Ms. Keisha Prosper instructed by Ms. Nisa Simmons and Mr. Nairob Smart for the Second Defendant
No appearance of the Third Defendant - Unrepresented
The Claimants have brought the instant action against the Defendants for damage occasioned to their house. They have claimed that the damage was due to construction works undertaken by the Defendants in the construction of a new highway close to their house.
The Claimants filed their Claim Form and Statement of Case on 12 October 2015. The First Defendant filed its Defence on 17 February 2016. The Second Defendant filed its Defence on 31 March 2016. The Claimants filed Replies to both Defences on 3 June 2016.
The Court granted permission to the Claimants on 22 June 2016, to amend their Claim Form and Statement of Case to include the Third Defendant. On 23 January 2018, this Court ordered that the Third Defendant be debarred from defending this Amended Claim pursuant to Part 26.1(w) of the Civil Proceedings Rules 1998 (“the CPR”) on the basis that the Third Defendant failed to respond to the Amended Claim and Statement of Case either by entering an appearance or filing a Defence.
The trial was held on 21 November 2018, 30 January 2019 and 13 June 2019 whereupon the Court ordered closing addresses to be by way of written submissions to be filed and exchanged on or before 30 September 2019. Each party was permitted to file and serve reply submissions on or before 30 October 2019. The Claimants' submissions were actually filed on 31 October 2019 while the First Defendant filed on 11 November 2019. No closing submissions were filed on behalf of the Second Defendant within the time directed by the Court but a bundle of authorities was filed on 9 October 2019.
The COVID-19 pandemic having affected the Court's operations and timetabling of matters, judgment was fixed to be delivered on the 27 October 2021. Upon the Court's enquiry on the 25 October 2021 as to the reason why written submissions were not filed by the Second Defendant, the Court's Judicial Support Officer was informed by the instructing attorney-at-law for the Second Defendant, Mr Nairob Smart, that submissions were in fact prepared along with its bundle of authorities but by virtue of some inadvertence only the bundle of authorities was filed and not the submissions. Consequently, the Second Defendant's attorneys filed the submissions on the 26 October 2021 and filed a Notice of Application supported by affidavit of Nairob Smart on 27 October 2021 seeking an extension of time to put in the submissions for the Court's consideration before delivery of the judgment. This course was objected to by the Claimants' attorneys on the basis that much time had elapsed and to consider such submissions at this stage would be unfair to the Claimants since they have not had the opportunity to reply. The delivery of the judgment fixed for the 27 October 2021 was therefore put off to give further consideration to the Second Defendant's application. In the meantime I have considered the affidavit evidence of Mr Nairob Smart and I do order that the submissions filed on 26 October 2021 do stand. As submissions are filed to assist the Court in arriving at its decision I have also determined that there is no need for the Claimants to reply to these submissions as their substantive submissions have sufficiently addressed the relevant issues. Accordingly, the Second Defendant's submissions are to be and have been considered in arriving at my judgment.
The Claimants reside at No. 224 Grants Road, Rousillac. Their dwelling house is situate on the subject lands which comprises two floors with the ground floor containing one bedroom, kitchen, living/dining room, one water closet/bath and the first floor containing three bedrooms, a living room and a front porch. There also exists two sheds.
The subject land and dwelling house are situate in close proximity to the route, which is designated by the State to be vacated.
The Claimants aver that in or about 2013, they were approached by Mr Om Lalla, the servant and/or agent of the First Defendant and were informed by him that they may have to vacate the said property in order to facilitate the construction of the new highway. However, they were subsequently informed by a representative of the First Defendant that they did not have to relocate their home as the width of the new highway had been reduced and shifted further north of the subject property thereby taking the parcel of land outside of the area demanded for compulsory acquisition.
In or about early 2014, tributary roads in close proximity to the subject property were constructed by the First Defendant and/or Third Defendant. In or about mid-2014, heavy construction works commenced by the Third Defendant, acting in accordance with or under the instructions of the First Defendant. This involved several pieces of heavy equipment machinery, including a sheep foot roller compacting the ground, which resulted in earthquake-like tremors, which directly affected and damaged the Claimants' property.
The Claimants contend that due to the construction works done by the First Defendant and/or the Third Defendant, they noticed several structural damage to their property, in the first instance with the appearance of hairline cracks, which began to appear through the walls and floors of the said property. These cracks expanded as the construction continued which has resulted in the Claimants' house shifting.
Since 2014, the vibrations from the work of the First Defendant and/or Third Defendant have resulted in structural damage to both house and land, thereby causing a nuisance at law.
The actions of the First Defendant in failing to relocate the Claimants from the said property was unreasonable in the circumstances, given the extent of the construction works and the close proximity of the said property to the new highway.
Between the period 1 October 2014 and February 2015, the Claimants pleaded with the First Defendant and the Third Defendant, which resulted in the First Defendant sending their servants and/or agents to investigate the damage caused to the said property. Valuators and structural engineers were sent to the said property on behalf of the First Defendant.
As a result of the damage, the Claimants commissioned a Valuation Report prepared by Mr Baldeo Ramoutar. Based on the said Report the Claimants were to immediately vacate the said property due to existing damages and the shift in the gradient of the land and vibration from the nearby construction works.
To date the First Defendant has failed to compensate the Claimants for the damage caused.
The Claimants set out the following:
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a. To the value of the Claimants house $965,000.00
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b. To the value of the Claimants land TBD
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c. To rental relocation costs for one year $84,000.00
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d. Alternatively to (b) repair to the said lands TBD
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e. To demolition of the existing structure $100,000.00
A Pre-Action Protocol Letter dated 15 April 2015, was sent to the First Defendant but no response was forthcoming.
The Claimants therefore claim:
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i. Damages in the sum of one million, one hundred and forty nine thousand dollars ($1,149,000.00) representing the cost of the restorative works to the said property;
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ii. Damages for trespass;
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iii. Damages for nuisance;
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iv. A declaration that the Defendant take all steps that are necessary in restoring the Claimants lands to its previous condition;
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v. Alternatively to (iv), the value of the said lands;
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vi. Interest pursuant to the Supreme Court of Judicature Act, at such rate and for such a period as the Court deems fit;
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vii. Costs;
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viii. Such further and/or other reliefs.
The First Defendant avers that it is a special purpose company wholly owned by the Government of the Republic of Trinidad and Tobago (“GORTT”) and falls under the jurisdiction of the Ministry of Works and Infrastructure (“MOWI”). It serves as the executing agency for MOWI and provides project management services on assigned projects. One such project, which was assigned by MOWI in 2005, is the Sir Solomon Hochoy Highway Extension to Point Fortin Project (“SHHEP Project”).
The First Defendant further states that in 2010, GORTT awarded a contract to the Third Defendant for the design and construction of the SHHEP Project.
The Second Defendant represents MOWI under the State Liability and Proceedings Act Chap. 8:02.
The acquisition of the Claimants' property was not required by the First Defendant for the SHHEP project.
The SHHEP Project consisted of several phases. One of the first phases was the carrying out of extensive investigation and testing of engineering properties of the land, soil and so on. It was found that the area has very poor ground conditions, namely expansive soil and very soft. This type of soil is known to be very porous and worsens in our particular wet and dry seasonal climate. The soils are also prone to shifting and cracking over a prolonged period of time and affect light structures such as residential buildings, light poles and pavements. Buildings on this expansive soil have foundational issues, which lead to cracks in the upper surface of the walls leading downward. Construction in these...
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