Bee Homes Ltd v Cregton Pollock and Maureen Pollock

• Jurisdiction: Jamaica
• Judge: PANTON, J.A. , SMITH, J.A , K. HARRISON. J.A :
• Judgment Date: 28 July 2006
• Neutral Citation: JM 2006 CA 40
• Judgment citation (vLex): [2006] 7 JJC 2803
• Court: Court of Appeal (Jamaica)
• Date: 28 July 2006

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE K. HARRISON, J.A

BETWEEN

BEE HOMES LTD.

APPELLANT

AND

CREGTON POLLOCK

1 ^ST RESPONDENT

AND

MAUREEN POLLOCK

2 ^ND RESPONDENT

Lawrence Haynes, for the appellant.

Miss Carol Davis, for the respondents.

DAMAGES - Assessment of damages - Building construction

PANTON, J.A.

1 1. On Christmas Eve, 2004, Sykes, J.(Ag.) (as he then was) entered judgment in favour of the respondents (the Pollocks) against the appellant (Bee Homes) in the sum of $16,640,300.00 with interest at 6% per annum from December 16, 2002, to November 26, 2004. Bee Homes, in its amended notice of appeal, sought the following:

• (i) the setting aside of the award; and

• (ii) the remission of the matter with directions to admit and consider the further evidence of its expert and then to make a fresh assessment.

2 2. As an alternative, Bee Homes sought an order for this Court to hear "further evidence" from their expert witness and then for this Court "to substitute its own assessment" in place of that made by Sykes, J. As a further alternative, Bee Homes sought "a specific order directing the respondents to transfer the fee simple interest (in the property) in exchange for the payment of the assessed replacement value of Fifteen Million Dollars ($15,000,000.00)". Having heard the arguments, we made an order in terms of the last stated alternative, and now give in writing our reasons for so doing.

3 3. In their amended statement of claim, the Pollocks who are Jamaicans living in London, England, asserted their proprietorship of lot 59 South Sea Park, Whitehouse, Westmoreland, whereon Bee Homes designed and built a house for them. The Pollocks contended that due to improper designing of the house and the negligent construction of drainage facilities, there has been severe flooding of the premises and the house has become uninhabitable. They claimed that they had suffered loss and damage, and listed what they described as "particulars of special damage". These particulars included the house, stated at a value of J$20,612,000.00 and household items totaling J$3,544,000.00.

4 4. In witness statements that provided a platform for cross-examination at the trial of the claim, the Pollocks complained of the traumatic experience that they had due to flooding of their house. Indeed, they stated that in 2002 the flood waters rose to about five feet inside and outside the house, and that since May 2002, the house had been flooded on thirteen separate occasions. They said:

"Under these circumstances it had become impossible for us to reside in the house as we had planned to do. We have had to abandon the house and return to England for residence which is not what we had previously intended." (see page 117 paragraph 11 and page 133 paragraph 10 of the record)

5 5. The Pollocks engaged the services of Mr. Michael Donovan Pennycooke, who holds the degree of B. Eng. (Civil) from Concordia University, Montreal, Canada. He has practised as a civil engineer in public and private sector construction in Jamaica since 1979. His work experience, as chronicled in his witness statement, is impressive. He prepared a report which was admitted as an exhibit at the hearing of the claim. He expressed the opinion that the Pollocks' residence will continue to experience flooding even from relatively minor storm events as there is no drain available to take water from their property and their house is sited in a land depression. He said that the Pollocks will never be able to:

• (a) comfortably park a vehicle in their car port; or

• (b) comfortably sleep in their house,

6 as overnight rains could lead to flooding and destruction of their vehicle, or cause them to be marooned in the upper floor as the ground floor may be flooded. He concluded that, "all factors being considered, this house is not fit for habitation and will have to be abandoned" (page 96 of the record).

7 6. The Pollocks also engaged the services of Major Victor Beek, O.D., J.P., who is a valuator, quantity surveyor and realtor. He prepared a report in which he stated that the area in which the house was located was one which comprised "ocean front lots, resort cottages, and palacious (sic) residential homes, mostly occupied by returning retired residents". He estimated the value of the "building in this sub-division" as varying between eight and twenty-five million dollars. He opined that the ground floor section of the building owned by the Pollocks will always be subject to flooding because of the lay of the land and that of the adjoining lot of land, and that repairing the damage to the existing building would be foolhardy. (see p. 107 of the record).

8 7. Sykes, J. had no difficulty in delivering judgment in favour of the Pollocks. In paragraph 72 of his reasons for judgment, he stated:

"Given the repeated history of flooding since 1998 and the severe flooding in May/June 2002 in my view it is unreasonable to expect the claimants to repair the ground floor and continue living in the house. The evidence is that because of the repeated flooding the claimants have not lived there since 2002. No one has lived there since because of the fear of flooding. The only remaining question is, what is the replacement value?" (p. 297 of the record)

9 In determining the replacement value, he relied on the evidence of Mr. Fairbourne Maxwell, an appraiser and real estate consultant.

10 8. The Pollocks were not aggrieved by the learned judge's decision as they filed no appeal. Indeed, the submissions advanced on their behalf before us specifically expressed approval of the award of the replacement value. They were happy because the learned judge had awarded to them that which they had sought - the replacement value of the property. However, Bee Homes challenged the judgment. Upon the matter coming on for hearing, Bee Homes conceded liability, and restricted its challenge to the fact that an award had been made giving the Pollocks the full replacement value yet, apparently, the Pollocks were being allowed to keep the property which had been declared unfit for habitation. This Court indicated to the Pollocks, through their attorney-at-law, that if they wished to keep the property, it would seem that they could not have the full replacement value. They were invited to enter into discussions with Bee Homes with a view to arriving at a sum that was less than the replacement value if they wished to...