Gore v Gore

• Jurisdiction: Jamaica
• Judge: Fraser, J.
• Judgment Date: 05 August 2016
• Court: Supreme Court (Jamaica)
• Docket Number: 2014 HCV 01370
• Date: 05 August 2016

Supreme Court

Fraser, J.

2014 HCV 01370

Gore

and

Gore

Appearances:

Ms. A. Bernard: Instructed by Forsythe and Forsythe for the claimant.

Mr. O. Nelson and Mr. Craig Carter instructed by Althea McBean & Co. for the defendant.

Tort - Negligence — Nuisance — Trespass — Remedies — Neighbour — Whether defendant owed duty of care to claimant — Whether breach of duty of care — Whether claimant established injury — Whether defendant trespassed on land — Whether inconvenience complained of by claimant constituted nuisance — Judgment for defendant.

Fraser, J.

INTRODUCTION

1 The claimant is the registered proprietor of land comprised in certificate of Title registered at Volume 1149 Folio 339 of the Register book of Titles and known by its civic address as 9 Lady Hamilton Drive, Kingston 19, St. Andrew. The claimant has been residing at this address in excess of 35 years and the defendant does not challenge her claim of right, possession of, or entitlement to the same. Neither does he dispute that she is entitled to quiet enjoyment of her property.

2 The defendant is the claimant's neighbor and the registered proprietor of lands comprised in certificate of Title registered at Volume 1048 Folio 351 of the Register Book of Title or premises known by its civic address as 3A Lady Hamilton Drive. Kingston 19, St. Andrew. The defendant came into possession of his property sometime prior to 2009 when he obtained it from the previous possessor in title; the exact date is not known to the Court. In such circumstances he came to his premises and found a boundary wall already built there.

3 The dividing fence seemingly was erected by the claimant and I say this based on her repeated references to “my fence and my column”. In or about December 2008 a motor van had collided into the then standing column erected by Mrs. Gore as also the boundary fence resulting in damage to those areas and damage was also done to the defendant's garbage bin. Accordingly claims were made to the Insurer of the said motor van and compensation was paid to Mrs. Gore and Mr. Harrison respectively.

THE CLAIM

4 The claim as brought by Mrs. Gore is one based essentially in trespass, with request for ancillary equitable relief of declarations and injunctions of both the prohibitory and mandatory kind. The claimant is also asking the court to award her damages with interest thereon and to award her legal costs.

5 This Court had requested in the aftermath of the trial that Counsel, Miss Bernard and Mr. Nelson file written submissions so as to assist the Court in narrowing the real issues for determination. Miss Bernard has provided extensive and copious written submissions in which she advocates that the claim brought by Mrs. Gore contains pleadings of nuisance and negligence. I now bring to counsel's attention the provisions of rule 8.9(1) of the Civil Procedure Rules (CPR) which requires a claimant to include all the facts on which the claimant relies.

6 The purport of the above rule was considered by the Jamaican Court of Appeal in Harley Corporation Guarantee Investment Company Ltd v Estate Rudolph Daley and Others [2010] JMCA Civ. 46, a case dealing with allegations of fraud. Harris JA said, at paragraph [57]:

“The Civil Procedure Rules however do not expressly provide that fraud must be expressly pleaded. However, rule 8.9 (1) prescribes that the facts upon which a claimant relies must be particularized. It follows that to raise fraud, the pleadings must disclose averments of fraud or the facts or conduct alleged must be consistent with fraud. Not only should the requisite allegations be made but there ought to be adequate evidentiary material to establish that the interest of a defendant which a claimant seeks to defeat was created by actual fraud.”

7 Although the issues raised by this claimant do not resound in fraud, nevertheless I would urge that the same principles should apply. This court proposes to closely examine the pleadings and evidence herein and to determine whether there is any basis laid in respect of a claim for either nuisance or negligence and to determine whether the claimant unjustifiably seeks to extend the boundaries of her claim on 19th March 2014. At this juncture therefore I wish to indicate that this Court will not stray beyond the bounds of the pleadings and evidence filed and elicited by either party.

THE DEFENCE

8 The defendant denies the allegations all the complaints levied by the claimant; whether sounding in negligence nuisance or trespass and avers that the claimant at all times had consented to his course of action; inclusive of the erection of the shared column and the housing of the 2 JPS Co. Meters within that column. He avers that the claim is vexatious, dishonest and unconscionable and that he relies on the agreement made between the claimant and himself relative to the rebuilding of the boundary fence and gate column in good faith. The defendant disputes that the claimant is entitled to any relief sought, whatsoever, and posit that if the Court deems there to be any trespass then only a nominal sum ought to be awarded. In the alternative he seeks to rely upon the provisions of the Dividing Fences Act and accordingly, he urges the Court to dismiss the claimants' case and award costs against her.

ISSUES

9 Having looked closely at the pleadings and evidence of both parties, the issues I have identified that arise and therefore for the Court's determination are as follows:

1

Whether the claimant has established a case for negligence 2. Whether the claimant has established a case for nuisance 3. Whether the claimant has established a case for trespass 4. To what remedies, if any, is the claimant entitled. 5. Whether the Dividing Fences Act is applicable in this case

THE CLAIMANT'S EVIDENCE

10 The evidence at trial was given by way of witness statements, with supporting documentation, and supplemented by further examination-in-chief and cross-examination of the witnesses on both sides.

The claimant was the sole witness called on her case and her evidence in chief was comprised of a supplemental witness statement signed and dated 15th April 2016 and a prior statement dated 1st June 2015. The 2015 statement was the subject of some preliminary objection relative to paragraphs 22, 24, 28, 34, 35 and 36; in that the defendant complained that they contained hearsay and or scandalous material. The objection was upheld in part and the offending portions of paragraphs 28, 34, 35 and 36 were stricken from the said statement. Thereafter the claimant was allowed to amplify her evidence pursuant to rule 29 of the CPR and to tender into evidence a surveyors report dated 15th February 2016; which is now Exhibit 1.

11 Mrs. Gore was cross examined by Counsel Mr. Nelson and gave answers, wherein she admitted some issues and denied other issues. The following is a summary of the witness' testimony in cross examination:

• •. She testified that she had commenced work to erect the disputed column, meaning she had, dug a foundation, erected a structure and brought the structure to 4 - 5 feet above ground. After the claimant constructed this portion of the column, the completion of it was undertaken by the defendant using boards provided by the claimant;

• •. She conceded that since she commenced the structure, meaning the column she could not therefore complain about its location or it width or breath. This Court therefore infers that it was Mrs. Gore's own actions that determined these factors and there was no departure from the common agreement in so far as these factors are concerned.

• •. She agreed that a portion of wall that the previous column had been attached to had also been damaged and was rebuilt as well.

• •. She grudgingly agreed that she and the defendant had a discussion regarding his participation in the rebuilding of the column and there was a mutual participation of the parties to repair the fence and the gate column

• •. She reluctantly conceded that in fact the cost of the construction was shared between her and the defendant and the defendant purchased materials for construction of the Column and wall.

• •. She admitted that the defendant had asked and she had agreed that he could house his two (2) JPS meters in the said column, but claimed that she did not consent to electrical wires attaching thereto.

• •. She admitted that she had not indicated any restrictions in the placement of the meters, but that her unvoiced expectation was that both would be placed on the defendant's (inner) side of the column.

• •. She agreed that while there was consent on her part for the extension of the column, there was no detailed agreement as to the finished dimensions, and neither was there any stipulations by her that the defendant was not to exceed any particular dimensions/height

• •. She denied any contemplation on her part or any consent given by her of electrical wires running to/from the meters or the installation of sockets within the column to house the said meters.

DEFENDANT'S EVIDENCE

12 The defendant relies on his witness statement dated 14th December 2015 as his testimony in chief as also exhibit 2 as tendered by him, which is the surveyors report dated 4th May 2014, supplied by Commissioned Land Surveyor, Mr. Wallace B. Smith.

13 Mr. Harrison was extensively cross examined by Miss Bernard and essentially stuck to the defence as pleaded. He reiterated that there was discussion and agreement between him and Mrs. Gore that the column would be rebuilt in the same position and location it was previously in. Mr. Harrison did concede however that in the discussions between them; no actual dimensions were agreed only that it would be higher than before. He also conceded that nowhere had he previously said that Mrs. Gore agreed to a column being built to the particular dimensions stated as 18' x 18' x 14' being constructed.

14 Mr....