Gertrude Ann Daniel Claimant v (1) The Saint Lucia National Housing Corporation (2) Zeby Howell trading as Zeby Howell Construction and Equipment Rental Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 12 September 2005 |
| Judgment citation (vLex) | [2005] ECSC J0912-2 |
| Docket Number | Claim No. SLUHCV2003/0240 |
| Court | High Court (Saint Lucia) |
| Date | 12 September 2005 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. SLUHCV2003/0240
NEGLIGENCE… BREACH OF CONTRACT…WHETHER FIRST DEFENDANT WAS NEGLIGENT IN THE CONSTRUCTION OF THE CLAIMANT'S HOUSE…F NEGLIGENT, WHETHER IT CONTRIBUTED TO THE COLLAPSE OF THE HOUSE? …WHETHER SECOND DEFENDANT WAS NEGLIGENT IN CARRYING OUT WORKS….WHETHER CONSTRUCTION WAS ILLEGAL, PLANNING PERMISSION NOT BEING OBTAINED…WHETHER AGENCY AROSE…ARTICLES 985, 986, 917A AND 1137 OF CIVIL CODE REFER…WARRANTY UNDER LATENT DEFECTS… ARTICLE 1432 ET SEQ REFER TO
On 4th January 2005, I delivered an oral judgment in favour of the Claimant against the Defendants jointly and severally in the sum of $196,515.63 with 25% of the liability being apportioned to the First Defendant, the Saint Lucia National Housing Corporation ("the SLNHC") and 75% to the Second Defendant ("Zeby Howell") with interest at the rate of 6% per annum from the date of judgment thereon to the date of payment in full and costs in the sum of $12,000.00. I indicated that the reasons therefor would be reduced into a written judgment subsequently. I do so now.
The background facts can be stated reasonably shortly. By written agreement for sale dated 6th September 1996, the Claimant, Gertrude Ann Daniel agreed to purchase from the SLNHC a "starter house" erected on pillars together with the land at Monier, Quarter of Gros Islet for the sum of $155,000.00. By Deed of Sale executed on 27th November 1996, the SLNHC conveyed the property to Ms. Daniel.
At the time of the purchase of the "starter house", the servant or agent of the SLNHC informed Ms. Daniel that the house was guaranteed for 10 years and that, as a "starter house" on pillars, she could expand by building under it.
Five years went by before Ms. Daniel decided to expand. She wanted to add a garage and a laundry room under the existing structure. After all, the house was designed and structured in such a manner which allowed for further building at the foundation and below the building.1
On 30th July 2001, she entered into a written agreement with the Second Defendant, Mr. Howell for the construction of a garage and a laundry room under the house at a cost of $46,300.00. Mr. Howell was to be responsible for the supply of materials, labour, transportation and excavation costs ("Exhibit GAD 2"). The estimated time for the completion of the job was 2 months. Mr. Howell was also given 2 computer-generated drawings of what was required. The drawings were designed and provided by Mr. George Winter, now the husband of Ms. Daniel. They did not include any measurements or specifications. They were not plans ("Exhibit ZH 1"). On 21st August 2001, Mr. Winter left Saint Lucia for Barbados.
On 24th August 2001, Ms. Daniel paid to Mr. Howell the first instalment of $15,000.00 for the first phase of construction work ("addendum to Exhibit GAD 2"). Mr. Howell commenced work shortly after the receipt of the first instalment.
On 5th September 2001 at approximately 1.15 p.m. during the execution of the works by Mr. Howell's workers, the house collapsed and sustained physical damage. Mr. Winter was not around. He was still in Barbados. He returned to Saint Lucia some 2 hours after the house collapsed.
Subsequent to the unfortunate incident, Ms. Daniel with the assistance of Mr. Winter and to some extent, Mr. Howell commenced remedial works to the house which was completed some 1 1/2 years later. Ms. Daniel did not seek the professional advice of an engineer before or after the damage to the house. Neither did she obtain planning approval for the construction works which Mr. Howell undertook.
During the remedial phase, Ms. Daniel expended a considerable sum of money. Her overall losses total $181,830.34. This sum was unchallenged at trial.
Shortly after the collapse of the house, Ms. Daniel contacted Mr. Thomas R. Walcott, Civil and Structural Engineer to investigate the matter. After examining the house on 4th October 2001, Mr. Walcott reduced his findings into a written report ("Exhibit GAD 4"). Essentially, the report blamed Mr. Howell for the collapse of the house by the negligent excavation works. Ms. Daniel confronted Mr. Howell. She alleged that he never denied liability and that he was interested in finding a solution to the problem without resorting to the court.
Around the same time, Mr. Howell presented Ms. Daniel with a report from Mr. Adrian M. Dolcy, another Civil and Structural Engineer. This report indicated that the house was of poor construction, drainage was inadequate at the site and the foundation and footings were not of a standard normally specified ("Exhibit GAD 5").
Armed with these reports, Ms. Daniel instituted these proceedings against the SLNHC and Mr. Howell jointly and severally in tort for negligence and in the alternative, for breach of their individual contract with her.
Although the proceedings were protracted and lasted over a period of 6 months, the evidence adduced is relatively simple. Ms. Daniel gave evidence and called her husband, George Winter to testify on her behalf. The SLNHC called one witness, James Christopher Edward, a Civil Engineer employed by the Corporation as their Chief Technical Officer. Mr. Zeby Howell testified and called a friend and worker, Selsus St. Martin to support his account. Their accounts conflict substantially with that of Ms. Daniel and Mr. Winter.
The factual evidence as adduced by Ms. Daniel against the SLNHC is really not in dispute. Stripped to its bare essentials, Ms. Daniel bought a "starter house" on pillars from SLNHC in 1996 and shortly thereafter, she took delivery of it. Except for some initial difficulty in obtaining the plans and warranties for the property, there were no complaints of a material nature until the collapse of the house in September 2001.
Ms. Daniel's real grievance against the SLNHC is that the collapse of her house was caused or contributed to by the negligence of the SLNHC, its servants or agents as particularized at paragraph 13 of the Statement of Claim.
Further or in the alternative, she claims that the SLNHC has breached the implied terms of the Agreement for Sale of the said property as particularized in paragraph 14 of the said Statement of Claim.
I heard from Ms. Daniel and Mr. Winter. Their evidence is diametrically opposed to the evidence given by Mr. Howell and his witness, Selsus St. Martin. In her evidence, Ms. Daniel stated that she entered into a written agreement with Mr. Howell on 30th July 2001 for the construction of the garage and laundry room. Mr. Howell categorically denied that Ms. Daniel entered into a written agreement with him.2 He claimed that except for an initial meeting with Ms. Daniel, he dealt exclusively with Mr. Winter who gave him instructions and paid him the sum of $15,000.00 before he left for Barbados. Ms. Daniel's evidence is that Mr. Howell requested payment for the job in 3 instalments. On 24th August 2001, she paid him the sum of $15,000.00 as a deposit so that he could start the job as is evidenced by receipt (addendum to "Exhibit GAD 2"). According to her, the job entailed the supply of materials, labour, transportation and excavation works. It is also correct to state that Mr. Winter was not in Saint Lucia on that date.
In his defence, Mr. Howell averred that Mr. Winter and not Ms. Daniel was the person who ostensibly conducted business with him regarding the construction of the garage and the laundry room. He stated that Mr. Winter requested a "proposed" estimate for the said construction which was signed by Mr. Winter and himself. ("Exhibit ZH 2"). This estimate is the same as that produced by Ms. Daniel ("Exhibit GAD 2"). The striking difference is that the proposed estimate tendered by Mr. Howell bears the signature of one "George Winters." Mr. Winter produced his passport to verify that his name is "George Winter" and not "George Winters". Added to this, the signature of Mr. Winter on his passport and witness statement is vastly different from the signature on the proposed estimate which Mr. Howell tendered. The inescapable conclusion that can be drawn is that Mr. Howell either by himself, his servant or agent forged the signature of George Winter.
Mr. Howell next averred that Mr. Winter presented himself as a qualified engineer and indicated to him that he did not require any planning approval since he was an engineer and would supervise the work himself. Mr. Winter vehemently denied that he ever spoke to Mr. Howell about planning approval.
At paragraph 12 of his defence, Mr. Howell stated that on 24th August 2001, he was absent when Mr. Winter supervised the digging of the trenches underneath the house for the commencement of construction. Mr. Winter produced his passport to prove that he left Saint Lucia on 21st August and returned on 5th September 2001.
Mr. Howell contended that Mr. Winter was the one who assumed the responsibility for the excavation which was carried out under the house and he had nothing to do with it. Mr. Winter said that before the work had started, Mr. Howell told him that the backhoe belonged to him and that he was going to drive it himself when doing the job. When one scrutinizes the proposed estimate, one observes that the cost of excavation is reflected as $3,241.00. At paragraph 8 of his witness statement, Mr. Howell attempts an explanation and stated that the word "excavation" meant costs for the use of the excavation equipment and the labour cost payable to...
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