Ryan Singh and Chandra Matthew v Water and Sewage Authority and the Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Margaret Y. Mohammed |
| Judgment Date | 20 September 2018 |
| Neutral Citation | TT 2018 HC 192 |
| Docket Number | Claim No. CV2015-00229 |
| Court | High Court (Trinidad and Tobago) |
| Date | 20 September 2018 |
IN THE HIGH COURT OF JUSTICE
Before the Honourable Madame Justice Margaret Y. Mohammed
Claim No. CV2015-00229
Mr. Riad Ramsaran Attorney at law for the Claimant.
Mr. Rajiv Rickhi Attorney at law for the First Defendant.
Civil Practice and Procedure - Pleadings — Application to strike out the claim under Rule 26.2 of the Civil Proceedings Rules — Whether the claimants were able to demonstrate reasonable grounds for the claim — Whether the claim was statute barred — Whether the claim ought to have been brought by way of arbitration proceedings — Particulars of negligence — Application for an order for summary judgment pursuant to Part 15 of the Civil Proceedings Rules — Whether the Defendant had a realistic as opposed to fanciful prospect of success.
The First Defendant filed an application (“the application”) seeking the Court to strike out the Claim against it pursuant to Rule 26. 2(1)(b) Civil Proceedings Rules (“CPR”) or alternatively for an order for summary judgment pursuant to Part 15 of the CPR against the Claimant. The application was filed at the Pre-Trial Review after witness statements were filed and evidential objections concluded. The next step is to schedule the trial in the matter.
To place the application in context it is necessary to set out the respective pleaded case of the Claimant and the First Defendant.
The Claimants claim against the First Defendant is for damages caused by the negligence of the First Defendant, its servants and agents which they suffered when their house (“the house”) situated on a parcel of land comprising six thousand square feet (6,000 sq feet) at 413 Mundo Nuevo Talparo (“the Subject Property”) collapsed. They also claim interest and costs. The Second Claimant is the First Claimant's mother.
The First Defendant is a body corporate under the Water and Sewerage Act 1 and it was responsible for the installation, maintenance and repair of the subterranean water pipeline (“the pipeline”) on the roadway north of the Subject Lands. The Second Defendant, was sued pursuant to the provisions of the State Liability and Civil Proceedings Act 2 in its capacity as the owner of lands adjoining the Subject Lands to the West, upon and under which the First Defendant's water pipeline was installed. The State through the Ministry of Works and Infrastructure is also responsible for the repair and maintenance of all public highways and or roadways within the jurisdiction and particularly the Mundo Nuevo Road, Talparo abutting the Subject Lands.
The Claimants state that they are the statutory tenants of the Subject Lands since the First Claimant's great grandfather, the late Edward Matthew, first constructed a house upon the Subject Lands after he arrived in Trinidad as an indentured Indian labourer and that the rights, interests and estate to the house and the tenancy of the Subject Lands were passed down over time and eventually to the Claimants.
In or about the 1983 and then subsequently in 2003, the Claimants rebuilt the house at their own expense. The house consisted of an upper floor made of tapana hard wood, marine construction ply and pitch pine with french doors, galvanize steel and porcelain fixtures supported on concrete and steel reinforced pillars. There were four rooms on the upper floor: two (2) bedrooms, a kitchen and a living/dining room whereas the lower levels consists of one (1) bedroom and indoor porcelain toilet and bath. The house was wired for electricity and internet. There was running water and there were two parallel drains along the Northern and Southern boundaries.
On or about January 2007, the First Defendant installed the pipeline along the Mundo Nuevo Road, Talparo (“the Mundo Nuevo Road”) abutting the Subject Lands to the West. The said road was serviced by a drain parallel to it on its Western side. It was repaired and paved by an agent of the Ministry of Works and Infrastructure. The drain was condemned causing the excess wastewater and or rainfall runoff to seep or flow unto the Subject Lands.
In January 2008, the Claimants first observed two (2) small streams of water emerging from the Mundo Nuevo Road and flowing onto the Subject Lands. The first was directly west of the house on the Subject Lands (next to a fire hydrant) and the other was about twenty five (25) feet to the North of the first and on the North Western boundary of the Subject Lands. The First Claimant reported the two streams of water to the First Defendant's head office and he was promised that it would be investigated.
For the next six (6) years, the leaks increased in size and volume and the water flow created natural trails or drainages. The water caused the concrete to the front and under the house on the Subject Lands and the soil to the North and rear of the yard to be damp. The Claimants made several more reports/complaints to the First Defendant.
On more than fifteen (15) occasions between 2008 and to 2015, the First and/or Second Defendants through their agents and/or servants excavated the pipeline and unsuccessfully attempted to repair it. Each time, the leaks returned and gradually increased in intensity. The water caused the soil, block work and concrete floor of the house to remain perpetually moist. Water collected as puddles at the supporting pillars and ground floor rooms before draining underneath the concrete foundation of the house. The leak at the North-Western boundary kept the soil of the Northern and Eastern portions of the Subject Land damp.
Sometime in 2008, the First Defendant condemned a nearby fire hydrant along the Mundo Nuevo Road and shortly thereafter the leaks re-emerged and the front wall on the Western boundary of the Subject Lands collapsed. In 2009, the First Defendant replaced the said wall with a retaining wall. However, the leaks again re-emerged and cracks appeared along the foundation of the house. The Claimants again brought it to the First Defendant's attention.
On or about May 2009, some of the pillars including the North Eastern post of the house sunk while others moved off their alignment causing the entire house to shift. This caused the main electrical connection to the house to be adversely affected. The Claimants incurred additional expense to have the house rewired and repaired before it could be inspected by the Electrical Inspectorate and electricity reconnected. Additionally, cracks emerged in the concrete foundation of the house whilst the entire concrete driveway and foundation of the garage became loose and were swept under the house.
On or about September 2009, the water erosion caused a landslide on the Northern and Southern portions of the Subject Lands wherein various trees including mango, lemon, bamboo and cedar tree over thirty (30) years of age were swept down to a ravine east of the Subject Lands. The First Claimant's personal garden on the Northern side and fruit trees of banana and coconut on the Eastern side of the house including a two (2) storey tank stand all collapsed due to the continuous leaks.
The Defendants continued to repair the pipeline and to stop the water flow onto the Subject Lands but all proved futile as the leaks re-emerged shortly after the repairs.
In 2010 while the First Claimant and his family were asleep the house again shifted, causing the electrical supply to be disconnected. Upon inspection, the Claimant and his family discovered that the entire upper floor of the house shifted since some of its supporting pillars had sunk and leaned. The Claimants and their family were forced to abandon the Subject Lands in January 2010. The Claimants reported the matter to the First Defendant and sometime thereafter its servants and/or agents excavated the pipeline on the lands abutting the Subject Lands and relocated it to the opposite side of the Mundo Nuevo Road. At the time of filing of the instant action, a slow but consistent stream of water continued to escape from the adjacent Mundo Nuevo Road, through the retaining wall and onto the Subject Lands and continued to cause landslides/movements and damage to the house. The retaining wall constructed by the First Defendant and/or Second Defendant has continued to lean.
The Claimants contended that despite their continued complaints and the ongoing damage to the Subject Lands and the house, from January 2011 they have received no further assistance or communication from either the First or Second Defendants. As a result of the First and/or Second Defendant, their agents and/or servants' negligence the Claimants were made to incur substantial loss and damage.
The Claimants contended that the First Defendant was negligent by:
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a) Failing to properly maintain and or monitor and/or conduct routine preventative maintenance of the pipeline;
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b) Failing to install a pipeline that is suitably durable and fit for purpose in the lands adjacent to the house;
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c) Failing to replace the pipeline and or adequately repair same after the leaks were reported;
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d) Failing to adequately investigate and or repair and or replace the pipeline after subsequent reports of continued leakage were made;
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e) Failing to provide competent workmen to conduct and or supervise the said repairs.
The Claimants contended that as a result of the Second Defendant's negligence and/or nuisance and/or the doctrine of Rylands and Fletcher, the Claimants were made to incur substantial loss and damage. The Claimants contended that the Second Defendant, as owner of the adjacent lands, was negligent by:
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a) Permitting the First Defendant to...
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