Royford Padmore v Popular Discounts Inc.
| Jurisdiction | Barbados |
| Judge | Mr. Justice Cecil N. McCarthy |
| Judgment Date | 08 May 2023 |
| Neutral Citation | BB 2023 HC 13 |
| Docket Number | Claim No. CV 1600 of 2015 |
| Court | High Court (Barbados) |
the Honourable Mr. Justice Cecil N. McCarthy, Judge of the High Court
Claim No. CV 1600 of 2015
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Clement E Lashley KC and Ms. Jennifer King for the First and Second Claimants
Mr. Randall D Belgrave KC for the First Defendant
Ms. Marsha Lougheed for the Second and Third Defendant
This is an application by the claimants, Royford Padmore and Alison Smith-Padmore to re-amend their pleadings in this matter, commenced on 11 November 2015, when the claimants filed a claim seeking relief principally for nuisance. In 2019, the claimants were given permission to amend their statement of case, among other things, to add the second and third defendants as parties to the proceedings. In the application before the Court; the claimants now seek to claim damages for ‘stress’ which they allege to be caused by noise and foul odours associated with the operation of a supermarket by the first defendant. This matter first came before the court in November 2015. The early case management was done by other judges of the High Court. I first heard the matter in January 2019.
It is convenient at the outset to set out verbatim the proposed amendments, which read as follows:
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10 (h) “Consequent upon the exposure of the claimants to the vibration emanating from the commercial generator on the first defendant's premises and the stench from the sewage when cleaned. All this having the effect of leading to cardiovascular dysfunctions, diabetes, cancer, autoimmune syndromes and mental illnesses. The claimants continue to suffer anxiety, chronic stress, depression and phobic disorders. Further particulars of the claimants' medical condition are contained in a report of Dr. Harvey, MB BS; MRCPsych (UK) dated the 14th June 2022 attached.
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11 (l) Special Damages
Interest is claimed upon special damages at the full special account rate prescribed from time to time under the provisions of the Court Funds Rules 1987 namely from the date of filing until judgment.
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11 (2) General Damages
Further the Claimant claims interest on general damages at the rate of 6% from the date of service of the Claim Form herein until the date of judgment”
The claimants, who are married to each other, are the owners and occupiers of a residential property located at No. 6 Briar Hall, Kendal Hill in the parish of Christ Church.
The claimants having purchased the land at No. 6 Briar Hall in or around 2008, constructed and later occupied their home on the said property from 2011 up to present
The first defendant is a company incorporated under the Companies Act, Cap. 308, and currently carries on the business of a supermarket in the vicinity of the premises occupied by the claimants.
The second defendant and third defendant were not parties to the initial suit filed by the claimants on 11 November 2015. The second defendant is the chief planning officer of the State and is a public officer. The third defendant is the chief legal representative of the State. They were both subsequently added to the proceedings pursuant to an application filed on 1 December 2017 by the claimants.
The claimants at that time sought leave of the Court to amend their statement of claim to add the second and third defendants. The application was resisted by the State up until 9 July 2019, but they have now joined the proceedings and have filed a defence to the amended claim in the substantive proceedings.
The claimants' complaint originated when the first defendant commenced construction of a supermarket at Kendal Hill in June 2015, in the immediate environs of the claimants' residence.
The supermarket is one of a chain of supermarkets owned and/or operated by the first defendant. It was officially opened for business to the public in November 2016, approximately some eighteen (18) months after the start of construction.
The claimants had made certain complaints due to the (then) ongoing construction of the said supermarket, which were communicated to a representative of the first defendant with a view to an amicable resolution of the matter.
The situation was not resolved to their satisfaction and they requested the following relief by claim of 11 November 2015, which seeks an injunction restraining the first defendant, whether by its servants, workmen or agents, from:
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“1. Making use of heavy duty equipment so as to cause tremors and/or vibrations causing damage to the claimants' premises.
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2. Using equipment so as to cause such noise as to interfere with the quiet enjoyment of the claimants' premises.
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3. Causing the escape of dust from the construction site onto the claimants' premises thus affecting the health of the claimants' family.
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4. Generally, not to carry out such construction work so as to cause a nuisance to the claimants or members of their family by noise, vibration or the escape of dust to the claimants' premises at Kendall Hill, Christ Church
The claimants sought damages for nuisance, together with interest and costs.
Worrell J made the following Order, pursuant to the said application heard on 6 August 2016. It was ordered that:
“The Defendant by its Counsel undertaking that until after judgment in this action or until further order in the meantime the Defendant will whether by itself or its servants or any of them or otherwise howsoever do the following acts or any of them that is to say
1. Refrain from using any heavy duty equipment on its premises on Saturdays or Sundays.
2. Use its best efforts to ensure discontinuance of any profane conduct and the use of abusive language by its workmen so as to disturb the peace and quiet of the Claimants' household
3. Wet the carpark and that part of the road leading to the Claimant's property at least three times per day so as to control the dust emanating there, from causing a nuisance to the Claimants.
4. Use its best efforts to have the Barbados Water Authority repair that section of the road leading to the Claimants' property which portion was excavated by the (Barbados) Water Authority.
5. Further, that the Defendant use it best efforts to ensure works are completed on or before 12th September, 2016.
6. Give to the Claimants one day's prior notice of the date wherefrom the Defendant intends to use jackhammers for the creation of kerbs on the construction site and the road leading to the Claimant's property.
7. Supply the Claimants at all times with information of any steps it intends to take which in any way would likely to interfere with the Claimants peace and quiet of their premises.
8. The Costs of the said application are to be the costs in the cause.”
[14] The claimants some thirteen (13) months after the entry of the said Order, and two (2) years post the initial claim filed on 11 November 2015, successfully sought an amendment to their initial pleadings pursuant to an application filed 1 December 2017.
[15] The amended statement of claim was filed on 14 March 2018. By the claim, the claimants allege that consequent upon the negligence of the second defendant, they suffered loss and damage. In the claim, the claimants seek the following relief:
“1. An injunction restraining the first defendant whether by itself servants, workmen, and or agents or any of them or otherwise howsoever from continuing the said nuisance.
2. Damages payable by the first, second and third defendants for the loss suffered by the claimants.
3. Interest
4. Costs.
5. Such further and/or other relief as this Honourable Court deems fit and just.”
On 11 July 2022 or approximately seven (7) years post the claimants' initial pleadings, which were filed 11 November 2015, the claimants seek leave of the Court to further amend their pleadings. This matter is now before this Court.
The proposed amended statement of claim complains of continuous vibration emanating from a commercial generator on the first defendant's premises and the stench from the sewage when cleaned.
The claimants' proposed amended pleadings seek to introduce certain medical and psychiatric evidence, allegedly caused by the new complaint for which redress is sought. They also seek to introduce claims for special damage and general damage relating to the new complaint.
Counsel for the claimants, Mr. Clement Lashley KC, avers that the defendants cannot illustrate any substantial grounds for objecting to the amendment and refers to commentary from the text ‘A Practical Approach to Civil Procedure’ where the author Stuart Sime stated:
“Not every minor development needs to be reflected in an amendment to the pleadings. So for example as in the instant case, in personal injury cases it is not necessary to amend the pleadings each time the plaintiffs medical condition changes or updated medical reports are obtained…. See Owen v Grimsby and Cleethorpes Transport [1992] P1QR 027, CA at Para 28.1” Any pleading can be amended at any stage of the proceedings with the written consent of all the parties (RSC and 2011 2 cc R ord 15 r 2(1) “… Generally consent should be given for any amendments sought by the other side in order to save costs unless there are substantial grounds for objecting”.
Mr. Lashley KC submits that the amendment sought by the claimants does not constitute a new cause of action, as it simply illustrates the extent of the loss and damage the claimants have suffered. Counsel contends that an amendment ought to be permitted under Rule 20 of the Supreme Court ( Civil Procedure) Rules 2008 (“the CPR”), notwithstanding that the...
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