Orinthia Hanson v Alcoa Mineral of Jamaica Inc.
| Jurisdiction | Jamaica |
| Judge | Campbell, Q.C., J. |
| Judgment Date | 18 October 2012 |
| Neutral Citation | [2012] JMSC Civ 150 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2008 HCV 02550 |
| Date | 18 October 2012 |
[2012] JMSC Civ 150
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
CLAIM NO. 2008 HCV 02550
Ms. Symone Mayhew and Mr. Vaughn Bignall instructed by Bignall Law for the Claimant.
Mr. William Panton and Miss Maria Burke instructed by DunnCox for the Defendant.
Negligence — Proximity or Neighbourhood — Duty of Care — General Duty on Occupiers in Relation to Hazard on Their Land — Extent of Duty — Expert Evidence — Nuisance — Substantial or Trifling
The Claimant, Orinthia Hanson, has for over thirty years, operated a poultry farm in Toll Gate, in the parish of Clarendon. The farm consists of over five acres of land, and has three large chicken houses, each capable of housing ten thousand birds. In addition to the birds, she raises milk and beef cattle, pigs and goats. There are accommodations for the farm hands. Mrs. Hanson lives on the farm in a six bedroom structure. The Claimant says that prior to 2005, her farming operations were a tremendous success. She had a contract with Jamaica Broilers to supply that company with broiler chickens.
The Defendant is a bauxite mining company and occupies land on over 37 acres, known as McGilchrist Palms, adjoining the Claimant's farm. In 2000, the Defendant obtained approval to subdivide a portion of this area into a mix of 104 farm and residential lots. In early 2002, the Defendant carried out work on the said property and constructed a housing development, mainly for relocating persons. The Defendant has constructed two detention ponds on the property as a part of the drainage system.
Of the two detention ponds, the western pond is the closer to the Claimant's property; these ponds were designed to capture the flow from the sub-division in a ring drain. Outside of rainfall events, it was envisaged it could be used as a football field. The pond is approximately six feet deep and covers three acres and is raised about ‘seven feet from ground level’.
On the 14 th May 2008, Mrs. Hanson filed a claim to recover damages for negligence and/or nuisance and/or under the Rule in Rylands vs Fletcher , for that on or about the 23 rd day of May 2002, October 2002 and October 2005 and on diverse days, the Defendant, whether by itself, its servants and or agents caused damage to the Claimant's premises as a result of flooding, dust and smoke occasioned by activities carried on by the Defendant on adjacent property owned and controlled by the Defendant.
The essence of her complaint, in respect to the floodings, is that the Defendant failed to construct a proper and adequate drainage facility or dam to prevent water escaping from its premises to the Claimant's property. That since the construction of the ponds, the Claimant has been subjected to floodings of her property such as she has not seen in the thirty years preceding their construction. The first of these incidents of flooding was on the 23 rd May 2002; the said catchment overflowed and flooded the Claimant's property including her home and, as a result, she lost 30,000 chickens, 11 goats and 3 cows.
The Claimant's case as to the damage that occurred on the dates in question came through the testimony of the Claimant and her neighbours, Mr. and Mrs. Edwards. The Defendant criticized the written statements of Mr. and Mrs. Edwards as being ‘almost identical. Most of the paragraphs are exactly the same. ‘In paragraph 11 of their witness statement, both Mr. and Mrs. Edwards, state:
This was the first time in all the years I have known the properties, Mrs. Hanson's and mine, to have experienced great flooding even in times of major hurricanes like Gilbert in 1988, other major rainy seasons in which many areas in Clarendon experienced flooding but we did not experience any flooding.
12 I can recall that Mr. Hanson, Mrs. Hanson's late husband used the said premises as a shelter for persons nearby who experienced flooding in times of heavy rainfall. My premises, especially the church building, was also used as a shelter and a central point for assistance provided by Red Cross of Jamaica.
13 This all changed when Alcoa did some development work on the adjoining premises in 2002, in which they cleared the land which was covered in trees and other vegetation. Mrs. Hanson's paragraph 19 was similarly worded.
Mrs. Hanson's written statement at page 16 & 17 states:
‘During the time I have lived and operated my chicken farm on the said premises, I have never experienced any flooding of any kind until in May 2002 and in October 2002 and again in October 2005.
This was the first time in all the years I have lived there that I experienced flooding, not even in times of major hurricanes like Gilbert in 1988 when my poultry houses blew down but there was no flooding or other rainy seasons in which many areas in Clarendon experienced flooding but I did not experience any flooding.’
In cross-examination on this point, there was some variation by all three witnesses. Mr. Edwards said that he had other memories of flooding other than the dates alleged in the claim. He recalled 1986, that bridges were washed away and people died. He recalls flooding in Osborne Store before 2002. Mrs. Edwards did not recall any flood in 1986, as she was then living permanently in the United States. She said that Toll Gate is an area prone to flooding. She said it was wrong to say there was no flooding before May 2002; the witness said any flooding before 2002 would not rise above her ankle.
Mrs. Hanson recalls extensive flooding in 1986; she said it was by St. Jago Road. She recalls floodings in the 1960s. She says she lives ‘not quite a half mile’ from Toll Gate. When there is flooding at Toll Gate, it does not affect her. She was not aware that bridges were washed away in 1986 and persons died.
As to the source of the water, Mrs. Edwards says that water would come off the parochial road; ‘when it rained extensively it would gather onto the parochial road, then onto my property, it would run straight through my property to the Alcoa lands.’ The witness had earlier denied that the main source of the water was from the parochial road. She stated that there was nothing on the road creating any problems. She said that the water from the parochial road was not big enough to give flooding that took place in May 2002.
Mr. Edwards' testimony on the source of the water is consistent with that of his wife; he says in cross-examination, ‘There was a lot of water on the parochial road. The water would wash over to my property to some extent. When the parochial drain overflows, it would wash over.’ The witness gave evidence of a drain running under the roadway of the parochial road. There were times when the water ‘backs up’ in that area, and that the level of the roadway is above the level of his property. Mrs. Hanson, while admitting that water tends to settle on the old main road, denies that any water from the parochial road comes via the old main road onto her property.
Both sides produced experts' testimony. Mr Basil Poorman, Consulting Engineer, submitted an Expert Witness Report entitled ‘Investigative Report of Flooding done to Mrs. Orinthia Hanson's Property, Toll Gate—Clarendon’ on the 23 rd May 2002, 1 st October 2002 & the 25 th October 2005. In an Introduction it is stated, ‘Report the events leading up to the flooding to the property, the factors causing the flooding.’ It traces the sequence of events leading to the flooding, indicates the extent of the damage and outlines the mitigative activities required. The report notes that before construction started, the area was heavily wooded. This vegetative growth resulted in slow movement of storm water over the land with a considerable amount percolating into the soil as well as draining into three undisturbed sinkholes on the property, thus reducing the amount of actual runoff.
Of the four rainfall stations in the general area, Osborne Store was the closest, but there was deficiency in the data, in that the records dated to only 1996. Mr. Poorman was of the view that the data from the remaining stations ‘are patchie and so is not suitable’. He held consultations with bodies concerned with the subdivision approval process. The Clarendon Parish Council, the National Environmental Protection Agency, National Works Agency. The Report expressed that none of the approval agencies can produce a copy of the relevant original drainage drawings.
The Poorman Report, in its conclusion on the integrity of the construction, noted inter alia; ‘The drainage system is not complete and the portion which is complete is in such a state that it creates serious drainage problems. That the West Pond is unkept and very irregular. ‘There is no overflow facilities from the pond, so if and when the pond is full, it is going to overflow and will result in flooding of the surrounding area and the adjacent properties in its vicinity.’ There are six sections in which drainage channels are to be constructed. The drainage systems found on the ground cannot function as an integrated system unless it is rectified and completed. The design is also deficient.
The Report found that there were two well-defined drainage features. The Milk River to the west and Jacks or St. Annes Gully to the south east. The Toll Gate area lies approximately mid way these two features. According to Mr. Poorman, any development in the general area has to rely on the sink holes, percolation into the soil and the holding capacity of vegetative cover, unless a drainage path is created that will discharge the storm water into one of the two rivers or their tributaries.
He identified the lack of a proper...
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