Scatliffe and Scatliffe v Flax and Ebony and Ivory Construction Ltd

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 26 October 2017
• Neutral Citation: VG 2017 HC 12
• Docket Number: Claim No. BVIHCV 2010/0053
• Court: High Court (British Virgin Islands)
• Date: 26 October 2017

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Ellis, J.

Claim No. BVIHCV 2010/0053

Between:

Elton Scatliffe

First Claimant

Annette Scatliffe

Second Claimant

and

Dwite Flax

First Defendant

Ebony and Ivory Construction Limited

Second Defendant

Appearances:

Ms. Karen Reid, Counsel for the Claimants

Mrs. Patricia Archibald-Bowers, Counsel for the Defendants

Cases Mentioned:

St. Helens Smelting Co. v. Tipping (1865) 11 ER 1483 – Vanderpant v. Mayfair Hotel Co Ltd [1929] ALL ER 296 – Greenidge v. Barbados Light and Power Co Ltd (1975) 27 WIR 22 – Gaunt v. Fynney (1873) 37 JP 100 – De Keyser's Royal Hotel Ltd v. Spicer Bros Ltd and Minter (1914) 30 TLR 257 – Shelfer v. City of London Electrical Lighting Co. [1865] 1 Ch 287 – Wildtree Hotels Ltd v. Harrow London BC [2000] UKHL 70 (Jun), [2000] 3 All ER 289 – Hunter v. Canary Wharf Ltd [1997] AC 655 – Bone v. Seale [1975] 1 WLR 797 – Raymond v. Young [2015] All ER (D) 160 – Dobson and others v. Thames Water Utilities Limited (No.1) [2009] EWCA Civ 28 – Robert v. Roberts & AG ANUHCV 2003/0400 – Jean Matthews and Anor v. Godson Warrican Civil Suit No. 456 of 1996 – Richard James Henry v. Selsi Limited Claim No. MNHICV 2016/003 – Norris Mithcell v. Anthon Antoine Claim No. GDAHCV 2011/0603 – Anslow v. Norton Aluminium Ltd [2012] EWHC 2610 – Polivitte Ltd v. Commercial Union Assurance Co. Plc [1987] Lloyds Rep 379 – Oldham MBC v. GW and Others [2007] EWHC 136 (Fam) – National Justice Cia Naviera SA v. Prudential Assurance Co Ltd, The Ikarian Reefer 1993 2 Lloyds Rep 68

Legislation:

BVI Civil Procedure Rules Part 32. 6 (3) – BVI Civil Procedure Rules Part 32.3 – BVI Civil Procedure Rules Part 32.14 – BVI Civil Procedure Rules Part 65

Tort - Nuisance — Private nuisance — Factors which constitute nuisance — Nuisance by noise — Whether the actions of the defendants prior to the interim injunction amounted to a nuisance — Evidence of noise, smoke, odours and particulate matter emanating from their property which interfered with the comfort, enjoyment and convenience of such a standard as would qualify as a private nuisance — Whether the actions of the defendants after the interim injunction was granted amounted to a nuisance — Evidence of the claimants' expert was that the site was largely abandoned and any inconvenience and annoyance caused by the noise of the vehicles and equipment was intermittent and temporary — Relief — Whether the claimants were entitled to damages to their home — Claim had been conceded by the defendants — Whether the claimants were entitled to damages for soil contamination — Soil contamination was not specifically pleaded — Substance of the claim was not advanced in the pleadings — Evidence advanced lacked sufficient cogency to meet the requisite standard of proof — Whether the claimants could maintain a claim for injurious affection — No land was acquired or taken by the defendants — Whether the claimants could recover damages for personal injury — Action brought was a nuisance matter but there was evidence that the nuisance caused the claimants annoyance, inconvenience and discomfort — Whether the claimants were entitled to damages for loss of amenity — Whether the claimants were entitled to a decontamination or abatement order — Claimants had not provided cogent evidence of the need for the order — Actions prior to the interim injunction held to have amounted to a private nuisance — Defendants' actions after the interim injunction did not amount to a private nuisance — Claimants entitled to damages with respect to their home but not with respect to the crops or soil contamination — Claim for injurious affection could not be maintained at common law — Claimants could not recover damages for personal injury but for the annoyance, inconvenience and discomfort — Claimants entitled to damages for loss of amenity — Claimants not entitled to decontamination or abatement order.

Civil practice and procedure - Expert witness — Whether the claimants could tender and rely upon the evidence of a person as an expert witness — No evidence of the witness' qualifications — Experts report did not adhere to the specifications provided under Part 32 of the Civil Procedure Rules of the BVI which related to expert evidence and his report contradicted his oral evidence — Whether the claimants could rely on opinion evidence — Serious doubts raised as to whether the person had in fact analysed the market data to verify whether there was a correlation between the nuisance and impact on the value of the claimants' property — Guidance for expert witnesses provided — Expert evidence could not be relied upon — Opinion evidence was unreliable.

Ellis J.

1 The Claimants own and reside on a property in Virgin Gorda registered as Block 4840B Parcel 270. This property was purchased by the First Claimant in September, 2003.

2 The Defendants have been in occupation of an adjoining property registered as Block 4840B Parcel 444 (“the Property”). The Defendants allege that they have been in occupation of Parcel 444 since 1997 and they have carried on the operation of trucking, heavy equipment rental, garage and tire repairs, concrete production, storage of sand, aggregate, cement, other particulate matter and diesel.

3 The Claimants contend that since October 2004, the First Defendant and since July 2007, the Second Defendants and/or their employees and/or agents have wrongfully caused and/or permitted unreasonable volumes of noise as well as noxious and offensive fumes vapours, smoke, dust and other particulate matter, to be emitted from Parcel 444 unto Parcel 270 during the day and night, on business days and holidays with such frequency as to cause a nuisance to the Claimants.

4 The Claimants have therefore brought this claim in private nuisance against the Defendants in which they seek the following relief:

• i. A permanent injunction prohibiting the Defendants and/or their employees and/or agents from:

  • a. Operating and/or permitting the operation of an air compressor on the property at any time;

  • b. Operating and/or permitting the operation of any air tools (including, but not limited to, air drills and jackhammers) on the Property at any time;

  • c. Operating and/or permitting the operations of any high powered tools (including but not limited to jackhammers electrical saws and welding equipment) on the Property at any time;

  • d. Operating and/or permitting the operation of any heavy vehicles (including, but not limited to earth movers, cement mixers and backhoes) on the property at any time;

  • e. Operating and/or permitting the operation of vehicle horns and vehicle stereos in such a manner as to discharge loud, very loud or deafening noises from the Property;

  • f. Carrying on and/or permitting to be carried on their business in such a manner as to cause and/or permit the discharge of noxious and offensive fumes, vapours and other particulate matter (including but not limited to diesel, fumes, cement dust, paint fumes, sand, vehicle exhaust, dust) from the Property; and

  • g. Carrying on and/or permitting to be carried on their business in such a manner as to cause and/or permit the discharge of noxious and offensive odours from the Property.

• ii. Damages

• iii. Costs

• iv. Interest

• v. An order that the Defendants decontaminate the Property.

5 In their defence, the Defendants deny any nuisance and assert that any sounds made by their operations were unavoidable and reasonable noises of industry and that no construction or other materials including diesel have been stored on the property since 2009. They further state that no mixing of concrete or any other construction activity has taken place on the premises since that time.

6 On 31 ^st May 2010, Hariprashad Charles J. granted the Claimants an interim injunction relief which prohibited them from:

• a. Operating and/or permitting the operation of vehicle horns and vehicle stereos in such a manner as to discharge loud, very loud or deafening noises from the Property;

• b. Carrying on and/or permitting to be carried on their business in such a manner as to cause and/or permit the discharge of noxious and offensive fumes, vapours and other particulate matters (including but not limited to diesel, fumes, cement dust, paint fumes, sand, vehicle exhaust, dust) from the Property.

7 That Order also prohibited the Defendants from:

save during certain defined hours.

• a. Operating and/or permitting the operation of an air compressor on the property at any time;

• b. Operating and/or permitting the operation of any air tools (including, but not limited to, air drills and jackhammers) on the Property at any time;

• c. Operating and/or permitting the operations of any high powered tools (including but not limited to jackhammers electrical saws and welding equipment) on the Property at any time;

• d. Operating and/or permitting the operation of any heavy vehicles (including, but not limited to earth movers, cement mixers and backhoes) on the property at any time;

• e. Operating and/or permitting the operation of vehicle horns and vehicle stereos in such a manner as to discharge loud, very loud or deafening noises from the Property;

8 Prior to the trial, the Defendants agreed to satisfy the sum claimed in respect of special damages, that is to say the sum of $900.00 and $1800.00 representing the costs incurred in painting the Claimant's residence. The said sums are held in escrow.

9 In addition, at the commencement of the trial of this action, the Defendants formally consented to a permanent injunction in the terms set out at paragraph 4 (i) a – e. This concession was made on the basis that the Defendants no longer intend to use the Property to carry on such activities. In fact, the Defendants contend that since the interim injunction, they have essentially relocated their business operations to another location some distance...