Toussaint and Toussaint v Cul-de-sac Industrial Zone Ltd B&d Construction Ltd

• Jurisdiction: St Lucia
• Judge: Saunders, J.
• Judgment Date: 08 August 2002
• Neutral Citation: LC 2002 HC 26
• Docket Number: 470 of 1994
• Court: High Court (Saint Lucia)
• Date: 08 August 2002

High Court

Saunders, J.

470 of 1994

Toussaint and Toussaint

and

Cul-De-Sac Industrial Zone Limited B&D Construction Limited

Appearances:

Mr. D. Theodore for the claimants.

Mrs. V. Barnard for the first defendant.

Mr. P. Foster for the second defendant.

Damages - Negligence — Developers hired firm to perform certain earth works on their land — Firm engaged in land filling activity which caused the claimants' land to flood — Whether developers responsible for the negligence of the firm which it contracted — Court held that the damage to the claimants' farm resulted from the negligent manner in which the firm carried out the work entrusted to them and that the developers could not be held responsible — Firm to pay damages to claimants and costs of both claimants and developers.

Saunders, J.

1 Hector Toussaint (now deceased) and his wife Virginia Toussaint purchased 11 acres of land at Cul-de-Sac in 1984. They cultivated bananas on this land. Banana farming then was a very profitable and attractive enterprise and the Toussaints made good money. Since the mid 1990's or so, for a variety of reasons, farmers throughout the entire Windward Islands have been turning away from bananas. Mr. and Mrs. Toussaint may or may not have become part of that trend. We won't know. They experienced peculiar problems of their own. From about 1991, considerable deposits of water came onto and remained on their land ruining much of their banana crop. Their income plummeted. They feel that someone's negligence is responsible. They have sued the defendants for the losses they have sustained.

2 The first defendant (“the developers”) at all material times owned the land at Cul-de-Sac adjacent to and downstream, so to speak, the Toussaints' farm. The developers retained the services of the second defendant (“B&D”) to perform certain earth works on the land. Both defendants resist the claims of Mr. and Mrs. Toussaint. Neither admits to any negligence. The developers say further that if anyone was negligent it was B&D as the latter was an independent contractor.

3 B&D has defended this case in a half-hearted and spasmodic manner. It never entered an Appearance until some four months after being served with the claim. A default judgment was entered against it but it was subsequently set aside for irregularity. B&D eventually filed a Defence but a trial fixed for 14th March, 2002 did not come off. Instead, B&D was granted leave to file and serve a witness statement and the case was adjourned to 15th April, 2002. On that date no one appeared for B&D. Their counsel had apparently indicated that as a result of a family emergency he had to travel to London. Counsel's associate later appeared, profusely apologetic, and seeking further indulgences. The court made a costs order against B&D and the matter was finally adjourned to 31st May, 2002. The costs were to be paid by 28th May, 2002 failing which B&D's Defence was to be struck out. The costs were never paid. On the day for trial the court therefore declared a judgment against B&D and the trial proceeded against the developers. With the concurrence of the claimants, the court permitted the developers to adopt the witness statements filed by B&D and to call those witnesses as their own.

4 No one really disputes the fact that the Toussaints' property has been adversely affected by water logging. Nor can it be denied that the couple has lost considerable income because of that problem. The question to be determined is whether the developers bear any responsibility in negligence.

5 The Cul-de-Sac valley plain has always been prone to flooding. The area is located at or near sea level and the general drainage is poor. Mrs. Toussaint testified that a network of no fewer than 144 internal drains took surface water away from their land. These drains connected with a culvert, known as the Incommode crossing, that passed under the main road. The Incommode culvert carried the accumulated flow of water onto an open channel I on the developers' land from where it was taken down to a river channel, This river channel itself had inadequate capacity.

6 The Incommode crossing consisted of a 24-inch box culvert. In a report prepared as early as 1984 by Hunting Technical Services Limited, it was noted that the size of this culvert was...