St. James Coast Estates Ltd v Sunset Crest Rentals Ltd et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Douglas, C.J.
• Judgment Date: 14 March 1977
• Neutral Citation: BB 1977 HC 10
• Docket Number: No. 747 of 1975
• Date: 14 March 1977

High Court

Douglas, C.J.

No. 747 of 1975

St. James Coast Estates Ltd.

and

Sunset Crest Rentals Ltd. et al

L.E. Whitehead for the plaintiff.

J.S.B. Dear, Q.C. and C.E. Lashley for the defendants.

Nuisance - Noise — Liability

Tort - Nuisance — Not proved that plaintiff in occupation of premises in respect of which discomfort and inconvenience suffered — No claim of damages to reversion — Failure of action.

Tort - Nuisance — Plaintiff was a company

Facts: Whether the defendants who were owners and occupiers of adjoining premises were liable in nuisance to the plaintiff — The plaintiff was a corporation registered under the Companies Act

Held: The noise which escaped from the neighbouring premises was excessive and constituted a nuisance to the persons who occupied the adjoining premises — However the plaintiff's action failed because it did not plead that it was in occupation of the property, and the tenants who actually suffered the discomfort were not made parties to the action — A company was not capable of suffering such discomfort — Judgment for the defendants.

Held: Company cannot suffer discomfort or disturbance which are matters of human sensation.

Douglas, C.J.

1 This is an action for nuisance brought by the owner of the property known as ‘Balmore’, situate on the seaward side of Highway 1 in the Holetown area of St. James, against the owner and the occupier of the adjoining premises.

2 The plaintiff is a corporation incorporated by Letters Patent under the laws of Ontario, Canada, and registered under the Companies Act of this Island. Mrs. Eva McCutcheon is the president and sole director of the company and indeed she is the sole shareholder.

3 The first defendant operates a private club known as the Sunset Crest Club on premises which are adjacent to the plaintiff's and which are owned by the second defendant.

4 The plaintiff company alleges that the first defendant, with the knowledge, consent and approval of the second defendant, causes or permits loud and excessive noise to escape on to the plaintiff's premises. At paragraph 9 of the Statement of Claim, the plaintiff pleads –

“In consequence of the said nuisance, the plaintiff has suffered much loss, damage and inconvenience, and the plaintiff's tenants and persons authorized by the plaintiff to occupy the said premises have been and are being caused to suffer nuisance in the occupation of the said premises.”

5 The first defendant denies the allegations of nuisance and pleads that such noise as may be caused on the premises is not excessive but is a reasonable exercise of its duty to provide entertainment for its members. The second defendant admits that it permits the first defendant lawfully to operate the Sunset Crest Club on its property, but denies that with its knowledge, consent or approval, the first defendant permitted loud and excessive noise to escape on to the plaintiff's premises.

6 The evidence is that the area where Balmore is situated to the west of Highway 1 is a residential area of high amenity. According to Mr. Bourne, the Chief Town Planner, the second defendant's property adjoining Balmore was approved as a beach facility, a term which normally includes the provision of changing facilities, very often a swimming pool and a snack bar. In the circumstances of this approval, there was no requirement that any application had to be made to cover the provision of dance entertainment.

7 Mrs. Eva McCutcheon first occupied Balmore in late March, 1971. She did so, she states in evidence, in order to make up her mind whether it was the house she wanted as a winter home. She found it peaceful and quiet. There was a entertainment next door one or two nights a week, but it was not obtrusive. The house was purchased by the plaintiff company. Mrs. McCutcheon intended to occupy the house from the beginning of November until mid-March, and that her children – James McCutcheon, Susan Davis, Frederick McCutcheon, Douglas McCutcheon and Barbara Sweetland – should occupy on a regular basis.

8 Mrs. McCutcheon was in residence at Balmore during the first week in 1973. Unfortunately, as a result of an accident, she was hospitalised in Barbados and had to return to Canada. She again took up residence at Balmore towards the end of November, 1973. She had recovered after the accident but she was in the process of learning to walk again.

9 She found changes at Balmore. There was entertainment next door every night of the week. She describes the noise as incredible. At this period she had to lie in bed with her foot elevated and she found it increasingly difficulty to read. The use of her radio to block out the noise from next door was ineffectual and the witness describes the situation as “totally impossible.”

10 Mrs. McCutcheon had intended to spend the Christmas of 1973 in Canada and to return to Balmore in early January for the rest of the winter. As matters turned out, she was so frustrated by the situation and apprehension of the noise, that she did not return to Balmore, as she had planned. In 1974 and in 1975 she did not spend the winters in Barbados for the reason, as she put it, that she couldn't face the noise. She went to Florida instead.

11 In 1976, November, she was again at Balmore. She says that all was well during the day but she had come to dread 7o'clock when the noise started next door. The witness is in the habit of having friends in but she describes how gradually she had to do much of her entertaining at luncheon because of the difficulty of carrying on a conversation between 7:00 p.m. and 11:00, when the entertainment at the Club was in progress. She and her family had to devise methods of passing the evening without having to rely on conversation. Mrs. McCutcheon is an active person who likes gardening and sea-bathing. She says quite candidly that were it not for the noise she would be ready to go to bed by ten o'clock. It is clear from her evidence that her life-style has been grossly affected by noise coming from the Beach Club next door.

12 The witness James McCutcheon normally occupies Balmore along with his family for a little over two weeks each year in March or early April. In his evidence he describes the setting at Balmore, and how the sounds of the activities next door have over the years increased in intensity. Referring to conditions in 1975, he avers –

“……at 7 o'clock, band or entertainment of evening begins. Sound is clearly audible to me. There is no place in which one can escape. It penetrates to every room in the house, even in living room nearest northern boundary. Ordinary conversation is impossible…Music increases in tempo and intensity as the evening goes on. Last 20 minutes is frenetic.”

13 The witness Susan Davis states in evidence that when she visited Balmore in...