Water and Sewerage Authority of Trinidad and Tobago v Darwin Azad Sahadath and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Leggatt,Lord Lloyd-Jones,Lord Kitchin,Lord Burrows,Lady Rose |
| Judgment Date | 22 December 2022 |
| Neutral Citation | [2022] UKPC 56 |
| Docket Number | Privy Council Appeal No 0123 of 2019 |
| Court | Privy Council |
[2022] UKPC 56
Lord Lloyd-Jones
Lord Kitchin
Lord Leggatt
Lord Burrows
Lady Rose
Privy Council Appeal No 0123 of 2019
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Keston McQuilkin
Alivia Mootoo
(Instructed by Charles Russell Speechlys LLP (London))
Respondent
Larry Lalla
Vikash Indar Lal
(Instructed by Alisa Khan (Trinidad))
Heard on 25 October 2022
Lord Leggatt ( with whom Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lady Rose agree):
The claimants in this case (and respondents to this appeal) are the owners of a four-storey house on Iere Village Branch Road near Princes Town in Trinidad that was damaged beyond repair by a landslide of the sloping ground on which it was built. The trial judge found that the landslide, and ensuing damage, was caused by the negligent failure of the appellant, over many months, to repair a leaking water main under the road. That finding was affirmed by the Court of Appeal.
This second appeal has been brought without heeding the settled practice of the Board that it will not, save in special circumstances, review concurrent findings of fact made by two lower courts. It is an appeal which should not have been brought, as it was bound to fail.
In around June 2012 the claimants noticed that the road in front of their house had begun to crack and sink holes were appearing. They saw water flowing up from the cracks and collecting in the sink holes. Between June 2012 and January 2013 the cracks and sink holes widened and the slipper drain running along the road began to separate from the road. Water began to pool on the road. In January 2013 the claimants observed that cracks were now beginning to appear in the concrete posts and walls of their house and that the basement floor had started to rise.
The only potential source of water under the road was the main water pipeline for the area. The statutory authority responsible for the pipeline is the appellant, whom we will refer to as “the Authority”. Between January 2013 and March 2014 the claimants made numerous complaints to the Authority that the pipeline was leaking. On several occasions the Authority carried out repairs to the claimants' water connection, but the problem continued. Finally, on 27 February 2014 the Authority replaced the old pipeline under the road with a new steel pipeline located on the opposite side of the road from the claimants' house.
No repairs, however, were made at that time to the road and drains (for which the Authority is not the body with statutory responsibility). So when it rained, water continued to pool where the road had sunk and flowed through the cracks to the soil below. Between March 2014 and November 2015 the road and land in front of the claimants' house continued to sink and slide down the slope. By November 2015 the claimants' house had moved approximately 20 feet down the slope and had sunk by approximately 12 feet. The house was at risk of imminent collapse and had become unfit for occupancy.
The claimants brought this action against the Authority in the High Court claiming damages for negligence (alternatively, nuisance and/or breach of statutory duty). They alleged that the landslide and consequent damage to their home was caused by a leak in the main pipeline which the Authority, despite being aware of the leak, had failed to repair in a proper or timely manner.
The Authority resisted the claim and denied that a leak from its pipeline had caused the landslide. Admittedly, the Authority advanced no positive case and adduced no evidence to suggest that the landslide had any other cause. But, as it was entitled to do, the Authority put the claimants to proof of their case.
At the trial the claimants relied on a substantial body of evidence for this purpose. This included the claimants' own testimony about what they had observed and the complaints they had made to the Authority's regional office about the leaking pipeline; contemporaneous photographs showing the damage to the road and to the claimants' home; and a report, in March 2013, of an investigation by the Regional Corporation in response to a complaint about the condition of the road which concluded that the damage was caused by the Authority's “damaged main lines”. The claimants also relied on the Authority's own internal records of site visits. These contained no details of work actually done but included comments such as (in a “job card” for 6 October 2013):
“Customers … homes are caving in due to water causing landslip. Leak was repaired recently and water is coming from beneath the road and causing slippage.”
In addition, the claimants led evidence about the extent and cause of the structural damage to their home from two expert witnesses, a geophysicist and a civil engineer. The geophysicist, Mr Wharton of Geoengineering Consultants Ltd, expressed the opinion that the landslide was probably not caused by rainfall and was much more likely to have been caused by human activity such as a supply leak. The civil engineer, Mr Salandy of APR Associates Ltd, said it was reasonable to assume that a leaking pipeline was the initial source of the water and explained the mechanism by which initial subsidence and cracking of the road resulting from saturation of the subsoil from such a leak would have progressed to a larger landslide which led to the movement of the house.
The Authority adduced no evidence about the condition of its pipeline, about any actions taken in response to the claimants' complaints or about the likely cause of the landslide. Its only witnesses were two employees who had tested water samples taken “on or about 2013” from a hole in the floor of the claimants' basement and from the water supply to the house and found that there were differences in the pH and other qualities of the two samples. The trial judge did not consider that this evidence assisted the Authority for the reasons, amongst others, that no sample had been taken from the ground closer to the main pipeline and that finding rainwater that could not drain away beneath the claimants' house was consistent with their case about the cause of the damage.
In his judgment the trial judge made clearly reasoned findings that the damage to the road, land slippage and consequent damage to the claimants' home were caused by a leak or leaks from the pipeline for which the Authority was responsible and which it failed to repair in a proper or timely manner. The judge awarded damages based on the cost of rebuilding the claimants' house, along with other consequential losses, in a total sum of $2,218,954 (plus interest).
The Authority appealed from this decision to the Court of Appeal. At the hearing of the appeal, the Authority did not challenge the judge's findings that its pipeline was the only pipeline in front of the claimants' home, that the pipeline was leaking from June 2012 to the end of February 2014 and that the Authority was either unresponsive or unreasonably slow in responding to the claimants' complaints. Nor did the Authority seek to argue that the judge was wrong to reject as providing no support for its case the evidence of its employees who had tested the two water samples. The Authority nevertheless contended that the judge did not have sufficient evidence to find that its leaking pipeline had caused the landslide. Counsel for the Authority focused, in particular, on the evidence of the two expert witnesses called by the claimants. Admittedly, the Authority had adduced no expert evidence of its own to contradict their opinions. But its counsel submitted that the judge had been wrong to attribute any weight to the evidence of the claimants' experts.
The Court of Appeal dismissed the appeal for reasons given in a thorough judgment delivered by Mendonça JA (with whom Smith and Moosai JJA agreed). The judgment addressed in turn each of six criticisms made of the claimants' expert evidence and found them to be mostly without merit. Mendonça JA further noted that, even apart from the expert evidence, there was other evidence on which the trial judge was entitled to find that the damage to the claimants' home was caused by leaks from the Authority's pipeline. The Court of Appeal concluded that there was no sufficient basis for interfering with the judge's finding that, as a matter of fact, the leaking pipeline caused the damage.
On this second appeal the Authority raises two issues. First, in its written case the Authority makes a bare assertion that the Court of Appeal was wrong to conclude that the Authority was negligent. That assertion is untenable in view of the absence of any reasons given to support it and the finding of the trial judge (which the Authority did not challenge in the Court of Appeal: see para 12 above) that the Authority was either unresponsive or unreasonably slow in responding to the claimants' complaints.
The second issue raised is whether the trial judge “had sufficient evidence before him” to conclude that the Authority's leaking pipeline caused the damage to the claimants' home. To succeed on this issue the Authority would need to persuade the Board to depart from its settled practice of declining to review concurrent findings of fact made by two lower courts, unless there are some special circumstances which would justify a departure from the practice.
This practice, which can be traced back to 1849, was authoritatively stated in Devi v Roy [1946] AC 508, 521, and has been reaffirmed in many subsequent cases. As this consistent line of authority also makes clear, as a general...
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