Salim Bodhania v Aiyub Soyab Badat

• Jurisdiction: Barbados
• Judge: Weekes, J.
• Judgment Date: 10 April 2025
• Neutral Citation: BB 2025 HC 19
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: CV 1042 of 2018

Salim Bodhania

and

Aiyub Soyab Badat

Weekes, J.

CV 1042 of 2018

High Court

Appearances:

Mrs. Sally Commissiong, Attorney-at-Law for the Claimant

Ms. Susanna Thompson, Attorney-at-Law for the Defendant

REASONS FOR DECISION

INTRODUCTION

Weekes, J.

1 This is a dispute between the owners of two adjoining properties situate at Bellville in the parish of Saint Michael, with the Claimant's property being identified as No. 24, 10th Avenue and the Defendant's property being No. 22, 10th Avenue, Bellville.

2 On the 28th of September 2016 a large mahogany tree on the Defendant's property collapsed and fell unto the Claimant's dwelling house next door, causing substantial damage.

3 The Claimant alleges that the Defendant was aware of the danger posed by the possibility of the tree falling onto his property as the tree had been visibly termite-ridden and rotten for several years prior to its collapse.

4 The Claimant alleges that as the owner of an adjoining property the Defendant owed him a duty of care to maintain any large trees on his property in a state which did not pose a danger to the Claimant's property and that the Defendant breached that duty of care and was negligent in allowing the tree to stand in a state which posed a danger.

5 The collapse of the Defendant's mahogany tree, says the Claimant, was foreseeable in the circumstances as was the resulting damage to his dwelling house.

6 The Claimant alleges that the Defendant was negligent in that he:

• a. Failed to institute and/or to ensure the operation of a system of periodic inspection of the mahogany tree;

• b. Failed to detect that the tree was termite-infested and rotten;

• c. Failed to pay any or any sufficient heed to complaints about the state of the tree;

• d. Failed to cut down or remove the tree; and

• e. Failed to inspect or to adequately and properly inspect the tree.

7 The Claimant alleges that damage was caused to a 5 feet by 9 feet area of the patio, consisting of damage to the siding, floor, ceiling and roof of the patio; to an approximate 10 feet by 16 feet area of the living room, and consisting of damage to the roof, ceiling, partitions, siding and two windows with hoods.

8 The Claimant alleges that he suffered special damage in the sum of $54,507.45.

9 The Defendant Defends the claim and alleges that the mahogany tree in question was barren and predated the purchase of his property.

10 The Defendant alleges that he did not reside on the property until 2021, living instead at Lot 33 George Street, Saint Michael. He maintained the grounds with a gardener and asserts that the tree was never seen as a danger, being long-standing and barren.

11 The Defendant alleges that the Claimant never raised any concerns about the tree. He asserts that the tree showed no visible issues, and was not termite infested.

12 The Defendant further denies the allegations contained in the particulars of negligence and damages on the basis that:

• a. The Defendant maintained the land since purchasing it in 2014, even hiring a gardener. The tree was not infested with pests. The Claimant never complained about the tree, despite seeing the Defendant on the property. The Defendant's mother-in-law was never an occupier of Lot 22, 10th Avenue, Belleville, as there was no structure until 2021. The Defendant was aware the tree was stable until Tropical Storm Matthew caused damage, resulting in high winds that knocked down the tree and others in Belleville.

• b. The Defendant contends that the tree fell due to Tropical Storm Matthew's violent winds on September 28, 2016.

• c. The fallen tree is considered an “Act of God,” and any damage should be covered by the Defendant's Homeowners' Insurance policy.

• d. The Defendant also refutes claims that the damage affected the living room or roof; the Claimant's property was already in a state of disrepair before the storm.

• e. The Defendant asserts that repairs claimed by the Claimant are more about restoring the property than addressing damage from the storm. Therefore, the Defendant denies any liability and contends that the storm, not negligence, caused the damage.

THE ISSUES

13 The issues in this case are:

• a. Whether the Claimant has proven on a balance of probabilities that the Defendant as the owner of a large tree on an adjoining property has breached the duty of care owed to him by unreasonably failing to observe that the tree in question posed a danger to him as the owner of an adjoining property with a dwelling house close to the tree.

• b. Whether, assuming the Claimant proves a breach of the duty of care, he has proven the loss and damage which he has claimed.

• c. Whether the Defence pleaded of an act of God is applicable on the facts of the case.

THE EVIDENCE

14 The Claimant gave his evidence by way of video call as he was at the time in England, having gone there for medical treatment.

15 The Claimant's evidence is that he is the owner of a property located at #24, 10th Avenue Bellville, St. Michael. He is now 71 one years old. He has lived there for the last 38 years.

16 On the property next door owned by the Defendant there at one time stood an old mahogany tree, which, on the 28th of September, 2016 fell onto his house causing significant damage to the structure.

17 The tree was about 20 feet tall and was rotten.

18 In support of his case, the Claimant adduced an undated letter addressed “to whom it may concern”, signed by a Mr. David J Binks, the Secretary of the Roving Response Team, a Charity registered as Charity # 387 under the provisions of the Charities Act. In this letter Mr. Binks confirmed that on the 29th of September 2016, the Roving Response Team was asked by the Department of Emergency Management to go to 10th Avenue, Bellville to assist with a tree that had fallen onto the property. An assessment was carried out. The tree had fallen and damaged the front right side of the house. The tree was lodged into the property and the room was open to the elements. The tree looked old and appeared to be rotten. The tree was cut up and removed to the vacant lot next door.

19 On the day in question he was watching television with his wife when they heard a loud bang and the tree fell into the house damaging the front part.

20 The house is made up of wood and plaster.

21 The Claimant received the sum of about $16,000.00 from the insurance company when he claimed on his insurance policy.

22 The Claimant instructed Mr. Tennyson Vaughn Attorney-at-Law to write a letter of demand to the Defendant on his behalf. This letter was dated the 27th day of February, 2016.

23 The Defendant through his lawyer Mr. Corey Beckles responded by way of a letter dated the 9th of March, 2017. The Defendant denied liability.

24 The Claimant's evidence is that after the tree fell on his property he called the Nation Newspaper to come and take pictures of the tree and his house. People came from the Nation Newspaper and took pictures. These pictures were published in the Nation Newspaper on the 29th of September, 2017.

25 The Claimant confirmed that no one was injured when the tree fell on the house.

26 The Claimant claims the sum of $54,507.45 in damages, being what he says was how much it cost him to repair the damage done to the premises. The Claimant has produced as estimate dated the 24th of October, 2016 from Cee Double Gee Enterprise of #34 Woodbourne Park, St. Philip. The estimate is signed by a Mr. Michael Applewhaite, Project Manager. This estimate was entered into evidence as “SB3”.

27 In cross examination the Claimant admitted that the tree had fallen during the passage of a storm although he could not remember the name of the storm.

THE EVIDENCE OF MRS. RASHIDA BODHANIA

28 The Claimant's wife Rashida gave evidence in the matter.

29 In large measure her evidence was the same as her husband's. She confirmed that they owned the property at No. 24, 10th Avenue, Bellville, St. Michael. She confirmed that the lot owned at the time by the Defendant was a vacant Lot with a mahogany tree standing on it. She confirmed that the tree looked rotten and that she had on one occasion spoken to a Mrs. Patel who is the mother-in-law of the Defendant about the tree and told her that something needed to be done about the tree, that it should be cut down or something.

30 Mrs. Bodhania confirms the events of the 28th of September, 2016 when the tree fell onto the house.

31 On cross examination she admitted that the tree fell during a storm and that it was raining at the time.

THE EVIDENCE OF MR. SULEMAN BODHANIA

32 Mr. Suleman Bodhania is the son of the Claimant and his wife.

33 He has lived at No. 24, 10th Avenue Bellville his entire life.

34 He was born on the 3rd of September, 1990 and would have been 26 years old on the 28th of September, 2016.

35 On the evening that the tree fell onto his parents' house he was at home in his bedroom.

36 This witness confirmed that the lot next door owned by the Defendant was vacant but thereon stood an old mahogany tree. It is his evidence that the tree was rotten. It did not have leaves and appeared lifeless.

37 Mr. Suleman's evidence is that the tree was approximately one foot from the boundary line.

38 His evidence was that he heard a loud bang and ran out to the front of the house to find that the tree had fallen onto the house causing damage.

39 On cross examination, this witness when shown the picture which had been taken and published in the Nation Newspaper indicated that what was shown there was actually a young tree growing out of the large dead mahogany tree.

THE EVIDENCE OF MAJOR DAVID RINKS

40 Major David Binks was called to give evidence.

41 Major Binks indicated to the Court that he is currently a reservist in the Barbados Defence Force having retired from active duty.

42 In September 2016, he was the secretary of the Roving Response Unit and a member...