Scott (Lionel) and Norma Pottinger v Syndicated Developers Ltd, Mutual Security Merchant Bank & Trust Company Ltd and Proprietors Strata Plan No. 39

• Jurisdiction: Jamaica
• Judge: Cooke, J.
• Judgment Date: 26 November 1999
• Judgment citation (vLex): [1999] 11 JJC 2602
• Court: Supreme Court (Jamaica)
• Date: 26 November 1999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

LIONEL SCOTT

AND

NORMA POTTINGER

PLAINTIFFS

AND

SYNDICATED DEVELOPERS LIMITED

1 ^ST DEFENDANT

AND

MUTUAL SECURITY MERCHANT BANK & TRUST COMPANY LTD.

2 ^ND DEFENDANT

AND

THE PROPRIETORS STRATA PLAN NO. 39

3 ^RD DEFENDANT

Mr. Maurice Manning of Nunes, Scholefield & DeLeon for Plaintiffs.

Mr. Garth McBean of Dunn, Cox, Orrett & Ashenheim for 2 ^nd Defendant.

NUISANCE - Apartment building - Water seepage during rain - Special damages for discomfort and annoyance

Cooke, J

1 There are two outstanding issues in this case, which fall for determination.

• (i) In the circumstances (which will be outlined below) Can the plaintiffs succeed in their claim that "they have been and being caused annoyance and discomfort and have suffered loss and damage."

• (ii) Is the 2 ^nd plaintiff entitled to the sum of $ 150,000 as part of her special damages

2 In 1988 the 2 ^nd defendant began to exercise control of a penthouse at Hampshire House Apartments at 4 Recadam Avenue Kingston 10. This penthouse had a pool and open patio area. Immediately below this penthouse were apartments 25 and 26 owned by the 2 ^nd and 1 ^st plaintiff respectively. Both these apartments were similar in design. The areas immediately below the penthouse were bedrooms and bathrooms. The 1 ^st plaintiff acquired his apartment in 1978 and sold it in 1995. The 2 ^nd plaintiff who still lives there purchased her apartment in 1982. These were not happy purchases by plaintiff's for when it rained there was seepage of water from the penthouse above. Generally the popcorn ceiling peeled off; the wall suffered and containers had to be set as receptacles. Photographs tendered by the 1 ^st plaintiff displayed the unsightly consequence of a downpour. Alas, as it would appear when the 2 ^nd defendant took control of the penthouse it was oblivious to the past and ensuing problems. Since 1988 genuine efforts have been made by the 2 ^nd defendant to correct the faults - as yet to no avail.

3 The court has been told that the services of a Consultant Structural Engineer have been engaged and a solution is imminent - this December 1999. As for the 1 ^st plaintiff he found the situation frustrating and embarrassing and when he had visitors he felt "degraded". He felt down at times. Each time he effected repairs to the ceiling and walls only to have the work undone by seepage. Frustration and a feeling of hopelessness beset the 2nd plaintiff. It was beyond her comprehension that the fixing could not yield results. For both, cleaning up and drying up was a constant companion to the rains. For the 1 ^st plaintiff the relevant period in 1988 to 1995. For the 2 ^nd plaintiff Apartment 25 is still her place of abode. With this background I now address the 1 ^st issue.

4 It is agreed that the seepage from the penthouse constituted a nuisance. Sums expended by both plaintiffs for repairs (except for 150,000 the subject of the 2 ^nd issue) have not been subject to any discord. However the 2 ^nd defendant contends that in law there can be no award for "annoyance and discomfort." Great reliance is placed on a sentence in the headnote of:-

5 Hunter and Others v Canary Wharf Ltd

6 Hunter and Others v London Docklands Development Corp. [1977] 2 AER p. 246.

7 This is a decision of House of Lords. The sentence is at p. 427-letter d and it reads:

"Moreover it was wrong to treat actions in respect of discomfort, interference with personal enjoyment or personal injury suffered by plaintiff as actions in nuisance."

8 It is now incumbent on the court to determine if this sentence is warranted and if so what is the scope of the proposition in law that it seeks on the face of it to establish?

9 It is of critical importance to appreciate that their Lordships were dealing in the Hunter case with two central issues.

• a. Who is in law entitled to bring an action in nuisance? and

• b. Whether interference with television reception should be actionable in nuisance?

10 Accordingly, the respective opinions of their Lordships must be read and understood within the context of the issues which were under deliberation. Reference to damages in...