Tortola Investment Trust, Ltd v Onions Bouchard & Mc Culloch

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Clement A. Arrindell,Puisne
• Judgment Date: 01 January 1976
• Docket Number: Suit No. 50 of 1976:
• Date: 01 January 1976

IN THE HIGH COURT OF JUSTICE

Suit No. 50 of 1976:

Tortola Investment Trust, Ltd.

Plaintiffs

and

Onions Bouchard & Mc Culloch

Defendants

Mr. J.S. Archiblad with Mr. G. Farara for Plaintiffs.

Mr. McW. Todman for Defendants.

JUDGMENT:

1 This is an action for negligence, breach of duty and breach of agreement brought against the defendants in respect of their drawing of certain architectural plans for, and their supervision of, certain construction work at Pasea, in the town of Road Town, Tortola, British Virgin Islands.

2 The plaintiffs allege that in or about the month of June, 1973, they employed the defendant firm of architects to prepare plans, specifications, and other related drawings for the erection, under supervision of the defendants, of a building comprising eight apartments to be leased to tenants or for use as additional hotel bedrooms, on the plaintiffs' land at Pasea aforesaid. Towards this end the defendants were also to make all necessary examinations of the site, subsoil and surroundings, and to prepare the plans, contracts and drawings accordingly. On the advice of the defendants, contractors were entered into between the plaintiffs and a firm of contractors named Penrose—Simmonds, Ltd., on 29th June, 1973 and on 21st August, 1973, for the supply of building materials and for the execution of the work under the supervision of the defendants.

3 The plaintiffs allege that it was an express term of the agreement and an implied term of the employment, that the defendants would render professional services, and supply for use of the said contractors copies of all plans, drawings and specifications for the proper carrying out of the works. It is further alleged that the defendants represented that a reasonable date for completion of works was December, 1973, and that on or about 17th December, 1973, the works were certified by the defendants as having been duly completed.

4 A lengty and detailed recital of the alleged negligence and or breach of duty contains the following, of which I cannot manage any adequate abbreviation or precis:-

1

Defendants negligently failed to examine the subsoil and surroundings, or negligently failed to observe any unfitness therein or to bring to the notice of plaintiff any unfitness thereof. 2. Defendants negligently failed to provide the contractors with adequate drawings, specifications and instructions, and that if they did so provide, they negligently allowed the contractors to disregard them. 3. Defendants so negligently designed the building and superintended its laying—out and or erection that its external and party walls on the ground floor cracked wide open in several places within 6 months of completion of the building. 4. Defendants so negligently designed and superintended the laying out of the block work of the said walls that the blocks were badly laid; blocks were inadequate in dimensions and strength, and in quality of materials and workmanship; blockwork lacked any provisions for ordinary contracting and expanding according to the weather; the blockwork was liable to be damaged or were damaged by the superincumbent weight of the structure, or by ordinary movement of the subsoil. 5. Defendants negligently allowed the external and party walls to be inadequately placed on their foundations and/or no foundations at all and to be of defective materials and workmanship, and not plumb and not to even courses and levels, and inadequately bonded. 6. Defendants negligently failed and/or were in breach of their duty to design and superintend the erection of the building so that it would be fit for its intended purpose and/or be structually sound.

5 In a somewhat overlapping list of defects the plaintiffs allege unsightly walls; a diagonal crack completely penetrating the block work to the rear of building; multiple vertical cracks completely penetrating the blockwork at rear of building; at regular intervals; vertical cracks at the face of building enclosing utility room; sundry other cracks several of which permitted easy visibility into a bedroom from the outside; and the deflection of a cantilever.

6 Particulars of loss and damage claimed include the sum of $760.00 allegedly paid to a firm of architects engineers in the U.S. Virgin Islands for investigating and advising on the defects, and the sum of $1,350.00 paid to another firm of contractors for remedying the said defects.

7 In keeping with the amplitude of the plaintiffs' statement of claim, and in response thereto, the defence is a meticulously crafted denial of the alleged or any negligence or breach of duty. The defendants state that the contracting firm of Penrose—Simmonds Ltd. was chosen by the plaintiffs, the defendants merely agreeing with this choice.

8 More generally, the defendants state, inter alia, that no unfitness of the substrata was observed at any time during the various stages of construction, that complete and detailed drawings and instructions were supplied by them to the said contractors Penrose—Simmonds Ltd., with adequate supervision of the work; that such inspection revealed full compliance by the said contractors with the said drawings and instructions.

9 In paragraph 4,...