Lessey v Gellineau

JurisdictionGrenada
JudgePrice-Findlay, J.
Judgment Date07 October 2010
Neutral CitationGD 2010 HC 9
Docket NumberGDAHCV No. 413 of 2007
CourtHigh Court (Grenada)
Date07 October 2010

High Court

Price-Findlay, J.

GDAHCV No. 413 of 2007

Lessey
and
Gellineau
Appearances:

Mrs. C. Edwards, Q.C. with Mrs. C. Johnson for the claimant

Mr. T. St. Bernard with Ms. A. Ventour de Vega for the defendant

Tort - Nuisance — Discharge of waste water from defendant's property — Damages to claimant's property — Whether there was a natural flow of water.

Damages - Special damages — No pleadings and no accompanying documentation provided — Whether claim can be sustained.

Price-Findlay, J.
1

This is a claim in nuisance where the claimant claimed the following:

  • (a) An injunction to restrain the defendant whether by himself his servants and or agents from doing the following acts, that is to say, directing or permitting waste water onto the claimant's property so as to cause a nuisance to the claimant by structural damage to the claimant's premises at Woodlands aforesaid;

  • (b) An order that the defendant take such steps as this court thinks fit to alleviate the nuisance;

  • (c) Damages for nuisance;

  • (d) Interest pursuant to section 27 of the West Indies Associated States Supreme Court (Grenada) Act, Cap 336 of the 1990 Revised Laws of Grenada;

  • (e) Further or other relief; and

  • (f) Costs

2

The defendant in his defence denies the allegations and puts the claimant to proof on the allegations made in the claim.

3

The claimant's evidence is that he bought his property situated at Woodlands in the parish of St. George.

4

The claimant's property slopes away from the road and levels off at the back of the lot. He testified that his house is on the flat portion of the land.

5

The defendant's property is on the claimant's northern boundary and the defendant's property is used for both residential and commercial purposes.

6

The defendant's property is on a higher elevation than the claimant's, and the claimant testified that the defendant has no proper drainage for the disposal of his waste water.

7

He further testified that because the defendant has no proper drainage the defendant's waste water flows onto the claimant's property and has undermined the foundation of his building.

8

He testified that this undermining had led his house to crack toward the northwestern corner of the house. He also testified that due to the defendant's waste water, the tiles of the floor of his building were damaged.

9

The cracks and the damage to the tiles occur only in the northwest corner of the house where there is direct flow of waste water from the defendant's land. Such water comes into contact with his land and building.

10

He testified that he had repaired the cracks in his building and had replaced the tiles.

11

For the first time in his witness statement he gave evidence as to the cost of these repairs. No documentation of these alleged costs was provided to the court and there was no pleading for special damages in either the Claim Form or the Statement of Case. I will deal with this aspect of matter later in the judgment.

12

In cross-examination the claimant stated that he built his home between the years 1988–1989, some two years after he purchased the land.

13

He stated that when rain falls there is no accumulation of water on his property, only the flat portion had water. He testified that the distance between the ravine at the back of the house and the house itself is about 200 feet.

14

He dug out under the house sometime after the original building was erected. The digging took place some 35 feet away from the defendant's boundary. The length he dug under his house was approximately 10 feet and the width about 4 feet. He also said that he barred u the area below his house about 10 years after he built the house. At the time he dug out under the house there were no cracks in his house. He denied the cracks appeared after he blocked off the area beneath his house.

15

He also said that the last time he saw the defendant's waste water on his land was about two years aback.

16

He admitted that part of the roof of his house came off in Hurricane Ivan in 2004. He testified that water entered the house and that the floor swelled up. He also changed the tiles inside the house.

17

He also testified that he changed the galvanize on the roof to red shingle tiles. This too happened after Hurricane Ivan. Two years later he testified that he cut the eaves of the roof shorter and covered it with galvanize. He did no further repairs to the house.

18

He testified that he first noticed cracks in the building when the defendant covered his roof and the water from the defendant emptied the boundary. He repeated that he saw waste water coming from the defendant's house. He said he saw the water coming onto his land from the defendant's land.

19

Joseph John also testified on behalf of the claimant. He is a qualified civil engineer, and his company Joseph John & Associates is in the business of inspecting and assessing properties to ascertain engineering problems.

20

He carried out an inspection of the claimant's property in March 2007. He visited the property to determine whether waste water from the defendant's property was affecting the claimant's property.

21

He testified that among other things:–

  • “(a) The claimant's property and building is on land which slopes away from the road and levels off at the real of the lot;

  • (b) The claimant's building is towards the flatter area and is set back from the road;

  • (c) The claimant's building is on three levels and is constructed in contemporary style of reinforced concrete and concrete block work with a roof of timber covered with metal sheet;

  • (d) The defendant's property is to the claimant's north boundary and is used for both residential and commercial purposes and is on land with a slightly higher elevation that the claimant's land;

  • (e) Whilst inspecting the claimant's property I observed that there was waste water from the defendant's land to the north was discharging at the southwest corner of the defendant's land which is directly on the northern boundary of the claimant's land;

  • (f) The waste water from the defendant's land that I observed being discharged onto the claimant's land is near the northwestern corner of the claimant's building;

  • (g) I observed evidence of cracking to the walls at the northwestern corner of the claimant's building and the claimant explained there were also cracks to the floor;

  • (h) Based on my observation the cracking to the claimant's house and floor only developed at the corner of the building where there is discharge of waste water from the defendant's property;

  • (i) I measured the building setbacks to determine whether statutory requirements were met and observed the following:

    • (i) The defendant's soakaway and septic tank were set back only 3 feet 9 inches and 6 feet respectively;

    • (ii) The minimal setback according to statute is 10 feet and the defendant's on site sewerage treatment facilities was not done in accordance with the statutory provisions.”

22

He further stated that the Physical Planning requirements for waste water, and found that on inspection that the defendant did not comply with these requirements along the northern boundary of his property. (The northern boundary is the shared boundary of the claimant and defendant.)

23

He found that there was no proper chamber set up for waste water and as a result the water would percolate into the ground and may cause the foundation soils under the claimant's building to soften and consolidate under the claimant's building load.

24

He concluded that the defendant's soakaway was closer to the boundary than permitted by statute and the effluent may affect the claimant's building foundation.

25

He formed the conclusion from his inspection of the claimant's property and from his observation that there was a discharge of waste water from the defendant's property to the north of the claimant's property that may be the probable cause of the cracking to the northwest corner of the claimant's building.

26

In cross-examination Mr. John stated that the claimant's building had three levels and that he was of the opinion that all the levels had not been constructed at the same time (something confirmed by the claimant himself).

27

He also opined that it was possible that the cracks could appear along the joints, that is, the areas which were joined where the blocks joined the reinforced concrete pillars.

28

He stated that the cracks the claimant referred to had been repaired and he did not see any cracks in the floor of the building. He was clear that he did not see any portion of the northwest corner of the building beneath the ground. He said the building was resting on the ground.

29

He made no assessment of the soil type in the area, but testified that the flow of water would be affected by the type of soil. Different soil types would affect the rate at which water percolated into the soil.

30

He also indicated that mold or mildew would indicate dampness in the walls rather than the foundation, but it depended on how porous the wall was. Mold on the wall of a building was not indicative of the undermining of the property by water. Mold, he said, cannot signify that there is settlement in any foundation.

31

There was no foul smell along the northern boundary of the claimant's building and he did not observe any black water along the boundary.

32

He testified that when foundation soil becomes saturated it is likely to become weak and consolidated. He stated that the northwest corner of the claimant's building is situated at the end of the slope.

33

He was of the view that inadequacies in construction could also cause cracks. He also stated that it was possible for cracks to occur...

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