Barbados Diocesan Trustees v Barbados Water Authority et Al
| Jurisdiction | Barbados |
| Judge | Roacheford, J.,Rocheford |
| Judgment Date | 04 November 1988 |
| Neutral Citation | BB 1988 HC 75 |
| Docket Number | No. 18 of 1983 |
| Court | High Court (Barbados) |
| Date | 04 November 1988 |
High Court. (Civil Jurisdiction)
Rocheford, J.
No. 18 of 1983
Mr. H. deB. Forde, Q.C., Miss S. Osborne and Mr. R. Forde for the plaintiff.
Mr. E.E. Alleyne and Miss M. Reifer for the first defendant.
Mr. C.A. Phillips, Q. C., and Mrs. B. Walrond for the second defendant.
Tort - Damages — Negligence — Duty to take care — Damage to Diocesan House — Sewer works done — Cracks in building — Whether damage due to excessive vibration, thus weakening foundation, or due to highly organic silty clay underlying building — Evidence of civil engineers taken — Held defendants not negligent for damages in carrying out sewer works.
The plaintiff Barbados Diocesan Trustees, is a body corporate incorporated under the Anglican Church Act Chapter 375 of the Laws of Barbados and was at all material times the owner of the freehold property known as Diocesan House. The first defendant, Barbados Water Authority, is a Statutory Corporation incorporated under the Barbados Water Authority Act, 274 A of the Laws of Barbados with power by itself or its agents to open and break up the surface soil of any road and to open and break up any sewer, drain or tunnel in or over any road. By section 33 of the said Barbados Water Authority Act the rights and obligations which were, prior to the 8th day of October, 1980 vested in the crown and related to the functions to be performed by the said first defendant were as and from the said 8th day of October, 1980 transferred to the said first defendant and all liabilities incurred by or on behalf of the crown in respect of the said functions were and are to have effect as if incurred by or on behalf of the said first defendant as from the said date. At all material times the crown and the said first defendant as its successor under the said Barbados Water Authority Act was and were the sewer authority in relation to the laying of sewers and for the opening and breaking up of the soil, sewers, drains and tunnels in, over or on the roads at or near the plaintiff ‘s said property Diocesan House. The second defendant Sintra Inc. is a limited company incorporated under the Law of the Province of Quebec in the Dominion Canada and was at all material tines a road contractor and under a contract carried out works in relation to the laying of the Bridgetown Sewerage Scheme for and/or on behalf of and/or as servant or agent of the crown and of the first defendant as successor to the crown ‘s rights, contracts and obligations under and by virtue of the said Barbados Water Authority Act.
The following is not in dispute. In 1965 and 1966 the plaintiff constructed the said Diocesan House on lands abutting on the South on North River Road. The structure is on a reinforced concrete raft and is a light super structure accommodating primarily an office block. The plaintiff rented out offices in this building up to October 1982. The building was also used by various bodies and organisations of the Anglican Church. Between the 6th day of May, 1980 and the 11th day of May, 1980 the second defendant acting as agent of the crown and its successor the first defendant under the abovementioned contract, carried out works on the said North River Road 20 feet away from the said building.
The plaintiff contends that the said works had a series of dramatic effect on the said building in that it became cracked, damaged and unsafe for use, causing the plaintiff and its tenants to vacate it and to cease to use it. The plaintiff further contends that the building has to be demolished, that with its reconstruction, it will lose revenue from its use and rental and that it has suffered and will continue to suffer inconvenience, loss, damage and expense. In consequence of this the plaintiff claims that the second defendant acting as agent or servant of the first defendant wrongfully caused or permitted excessive vibration to come into or about the plaintiff ‘s property weakening its foundation and/or occasioning excessive cracks and damage thereto, further or alternatively that the defendants their servants or agents were guilty of negligence in carrying out the said works and further or alternatively that the first defendant and/or the second defendant is and/or are liable to make reasonable compensation to the plaintiff for the damage caused to the plaintiff's property by the said works under the provision of the Barbados Water Authority Act. The plaintiff claims damages, alternatively reasonable compensation in accordance with the provisions of the said Barbados Water Authority Act, interest at such rate and for such period as to the court may seem fit, further and other relief and costs.
The first defendant denies that the second defendant was the servant or agent of the crown or its servant or agent as successor to the crown ‘s rights, contracts and obligations under and by virtue of the Barbados Water Authority Act, it denies that it or its servants or agents wrongfully or at all caused or permitted excessive vibration to come into or about the plaintiff's property and it denies that it or its servants or agents were guilty of negligence as alleged. The first defendant pleaded further or alternatively that the crown as its predecessor enjoyed the benefit of an indemnity set out in the Agreement and that it by virtue of Part VIII of the Barbados Water Authority Act has succeeded to the said benefit. The first defendant pleaded further, that it is entitled to contribution from the second defendant pursuant to the provisions of the Civil Liability Contribution Act Cap. 61 and that if negligence is found, the said negligence is that of the second defendant, independent contractors engaged by its predecessors.
The second defendant denies that it opened up any sewers, or that it caused or permitted any or any excessive vibration to come into or about the plaintiff's property, that it was guilty of the alleged or any negligence or that the alleged damage was caused by the operations carried out by it or that it caused the said property to become cracked, damaged or unsafe for use. It further contends that the property in its present state is not beyond repair and it therefore does not admit that it has to be demolished. It pleads further contends that the alternatively that if the plaintiff suffered the alleged or any damage, that damage was caused solely by the abnormally unstable character of the building and fundamental structural weaknesses therein and the nature and/or composition of the soil and the unsuitability of the foundations of the building for that site and/or the soil.
The plaintiff denies that the damaged suffered by it was caused solely or at all by any abnormal or unstable character of the building or and fundamental weakness therein.
Evidence was given for the plaintiff by Rev. Frank Anthony Cayless, Rex Edward Wason, Harold Griffith and six expert witnesses, namely, Miles Christian Anderson, Barry Walton, David Arnot Lashley, John Martin Thrift, Miles Alan Rothwell and Dr. Roderick Allan Nicholls. In addition a visit was made to Diocesan House and the area of land on which it stands and inspection was made of the River Wall to the south on North River Road. Mr. Lashley and Mr. Thrift pointed to certain areas of the building, the surrounding land and the River Wall and made comments.
The oral evidence in chief and the 35 exhibits revealed the following. Diocesan House was constructed as an investment. It was handed over to the trustees in 1966. It was never in perfect condition visually. There were problems with the building almost from the date of the handing over. It was tenanted from very early in 1967. Almost immediately most of the tenants complained of defects. Some ground floor windows got out of alignment. The Rev. Cayless first visited the building in 1968. He saw a horizontal crack in the north side. This crack was repaired subsequently. There were other cracks. Between 1968 and 1969 there was a problem of water leaking into one of the offices. In 1971 the cracks became a cause of some concern to the Trustees. They retained the firm of Miles Rothwell Associates, consulting engineers, to monitor the building. During the following years this firm carried out a number of inspections and monitored the movement of the building's foundations by taking levels.
In 1972 the Trustees decided to add to the building by converting the hall upstairs into offices using light partitions. Miles Rothwell Associates advised that this could be done satisfactorily. The firm continued to take levels of the building; at that time about twice a year on three lines running north to south, one on each of the 2 longer sides and one in the centre of the building. Mr. Rothwell was responsible for this work. In 1977 Mr. Anderson, not yet a fully qualified engineer became an employee of the firm. From the levels were taken more often.
In 1978 there was the possibility of a sale of the building. The trustee by letter dated the 15th day of December, 1978 requested from the said Miles Rothwell Associates a structural report on the building. In consequence of this Mr. Anderson carried out visual inspections and took at the building under the direction of Mr. Miles Rothwell, senior partner of the firm. The results of these surveys were communicated to the Trustees in a report dated the 3rd day of January, 1979. It states among other things–
“Levels taken by us at the main entrance level of this building 7 years ago showed a slight slope towards he river, figures taken today show an increase of only one third of that amount which goes to confirm that the rate of movement has greatly reduced with time.”
It also gave the professional opinion of Mr. Rothwell, being –
“Although not structurally perfect, Diocesan House is in our opinion a basically...
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