the republic of trinidad and tobago in the high court of...

THE REPUBLIC OF TRINIDAD AND TOBAGO

In the High Court of Justice

Claim No. CV2013-03429

JOE-ANN GLANVILLE

DAVID WALCOTT

Claimants

AND

HELLER SECURITY SERVICES 1996 LIMITED

Defendant

Appearances:

Claimant: Mr. David Walcott (in person)

Defendant: Mr. Martin George instructed by Ms. Shalini Sankar

Before The Honorable Mr. Justice Devindra Rampersad

Dated 6 April 2016

JUDGMENT

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Contents

Introduction ..................................................................................................................................... 3

Background ...................................................................................................................................... 3

The Injunction Granted – The Interim Order ...................................................................... 4

The Procedural Appeal:....................................................................................................... 5

Issues ................................................................................................................................................ 5

Whether this court was required to adjourn the trial in light of the claimants’ procedural appeal?

......................................................................................................................................................... 6

Evidence ........................................................................................................................................... 8

Evidence of the first claimant – Ms. Joe-Ann Glanville....................................................... 9

Evidence on behalf of the defendant – Mr. Dwight Williams ........................................... 12

Court’s observations at the site visit ............................................................................................. 14

Whether the claimants have the requisite locus standi to pursue this claim for nuisance? ......... 15

The law on Nuisance........................................................................................................ 15

Analysis & Conclusion .................................................................................................................... 19

Order .............................................................................................................................................. 20

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Introduction

1. The first claimant resides on Third Street Barataria with her extended family on

premises owned by the first claimant’s 80 year old mother who still resides there.

2. The second claimant is not a resident of the Barataria community but asserted that

he was appointed to represent the interests of the Barataria Action K9 Removal

Committee. It should be noted however that there was no application, and

consequently no order, to appoint the claimant as a representative pursuant to

Part 21 of the CPR.

3. The defendant occupies the premises to the west of the property in which the first

named claimant resides where it conducts a privately owned security company.

The building it occupies is located along the Eastern Main Road, Barataria and

extends from that road, to the North of the property, on to Third Street, to the

South of the property. The defendant’s building adjoins the residence of the first

named claimant on Third Street.

4. The defendant has a canine division and houses dogs on its premises along with

its administrative office. As a result of the presence of those dogs, the claimants

have initiated this claim for nuisance and allege that the first claimant, members

of her family and other residents in the community have had to endure extreme

discomfort because of:

4.1. Noise pollution from the barking dogs;

4.2. An obnoxious stench emanating from the defendant’s premises;

4.3. Insanitary conditions which has resulted in an influx of flies and rats; and

4.4. A fear for their personal safety because guard dogs have escaped

previously.

Background

5. The action was commenced on 23 August 2013. The claimants pleaded that the

members of the Barataria community are in need of protection from what they

deem a wrongful invasion of their right to the enjoyment of their property.

According to the claimants, numerous complaints to the defendant, public

authorities, the police and the media have failed to bring relief. In their pleadings

the claimants described the defendant’s premises as forming part of a community

which was designed for residential premises and prays that the court will grant

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them an order for the removal of the dogs or alternatively cause the defendant to

engage in remedial exercises. The claimants also sought an order for damages.

6. By its defence, the defendant denied each and every allegation of fact contained

in the claimants’ statement of case and maintained that the community of Barataria

has long been a residential-commercial hybrid community. In addition, the

defendant pleaded that the first claimant has gone to great lengths to discredit its

name but has failed at every occasion as evidenced by the County Health

Administration which investigated the complaints of the first claimant and

concluded that the complaints did not constitute a public health nuisance. Further,

the defendant asserted that neither claimant had locus standi to bring a claim of

nuisance as they are not the owners of the adjoining property.

7. During the course of this matter interim relief was granted to the claimants by way

of an interim injunction and on 14 May 2015 the claimants initiated contempt

proceedings against the defendant. Those contempt proceedings will however be

the subject of another judgment.

8. The trial was conducted on 14 July 2015. The second claimant objected to the trial

proceeding that day and sought an adjournment because there was a procedural

appeal pending in relation to the matter. Relying upon the fact of the appeal having

been filed, the second named claimant indicated that he was not prepared to

proceed as all of his witnesses were not present.

9. The claimants’ application for an adjournment of the matter was refused and the

court proceeded with the trial as the trial date had been set since 15 April 2015

and was confirmed again on 30 June 2015. The first claimant and the defendant

gave evidence and were cross-examined. No other witnesses for the claimant were

present.

10. On 20 November 2015 the court conducted a site visit and ordered that a further

hearing take place to deal with matters which arose as a result of the site visit.

That hearing took place on 02 December 2015 at which time the same witnesses

were further cross examined.

The Injunction Granted – The Interim Order

11. On the 21st of October 2014, this court made the following order on an interim

application which was not appealed:

11.1. It is ordered that the defendant secure all air vents and holes, if any, on

the walls and roofing on the Eastern, Southern and Western sides of the

defendant’s building adjoining the premises of the first named claimant by

17 November 2014;

11.2. It is further ordered that the defendant render the area in which its dogs

are kept soundproof by 17 November 2014;

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11.3. With immediate effect, the defendant is ordered to clean the public drain

on Third Street, Barataria and keep the same free from its animals’ waste

on a daily basis.

11.4. The defendant shall place large caution signs in prominent positions on the

defendant’s property notifying the public that dangerous dogs are kept on

the premises by 17 November 2014.

11.5. The costs of this application are reserved to be dealt with at the end of the

trial.

The Procedural Appeal:

12. By Notice of Application dated 14 May 2015, the claimants applied for an order to

enforce the terms of the interim order. That application was supported by an

affidavit of the second named claimant which was not deposed to and filed until

29 May 2015.

13. At the pretrial review fixed for 30 June 2015, the claimants indicated to the court

that they would like to have the contempt proceedings application heard that very

day and, in that regard, the defendant’s attorney at law requested an opportunity

to file an affidavit in response.

14. The court did not accede to the claimants’ request and gave the defendant the

opportunity to respond to the claimants’ application and the parties were then

directed to file their respective notices of cross examination, if any, so that there

would be a hearing of the claimants’ notice of application. The court permitted the

defendant to file and serve an affidavit in response by 6th of July 2015 and

permission was granted to the claimants to file and serve an affidavit in reply if

necessary by 10 July 2015. The hearing of the claimants’ notice of application for

contempt was then fixed for 14 July 2015 - at the same date and time as the trial.

The trial was then confirmed for 14 July 2015.

15. At that pretrial review, the second named claimant orally indicated an intention to

file further witness statements but the court reminded him of the deadline for the

filing of witness statements and pretrial applications and the court noted at the

same time that no application for relief from sanctions had been filed.

16. Following on from that, on 7 July 2015, the claimants appealed this court’s decision

set out above based on this court’s failure and or refusal to hear the application

for contempt.

17. That appeal was dismissed on 19 August 2015 along with an oral application made

at the Court of Appeal for a stay of the proceedings.

Issues

18. The issues for the court’s determination are:

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18.1. Whether this court was required to adjourn the trial in light of the claimants’

procedural appeal;

18.2. Whether the claimants have the requisite locus standi to pursue this claim

for nuisance;

18.3. If yes, whether the interference complained of in this matter amounts to

actionable nuisance?

Whether this court was required to adjourn the trial in light of the claimants’

procedural appeal?

19. Rule 64.16(a) of the CPR stipulates that an appeal does not operate as a stay of

execution or of any proceedings under the decision of the court below.

Notwithstanding this provision the court is at times minded to adjourn or stay

proceedings where there is a procedural appeal in relation to matters which will

influence the resolution of the issues in the matter. Any such decision to adjourn

or stay the matter is however a discretion exercised by the court pursuant to it

powers under Part 40.4 of the CPR.

20. Blackstone Civil Practice 2005 advises at paragraph 59.8 that the power to grant

an adjournment is discretionary and should be exercised in accordance with the

overriding objective. At paragraph 59.9 the learned authors warn that litigants and

lawyers must be in no doubt that the court will regard the postponement of a trial

as an order of last resort. The text goes on further to suggest that it is not easy

for an appeal court to interfere with the wide discretion of a judge to determine

whether to adjourn a trial as demonstrated in the case of Roshdi Thames Trains

Ltd [2002] EWCA Civ 284.

21. The Ontario Court of Appeal recently outlined the applicable principles in relation

to a court’s discretion to adjourn a matter which this court wishes to adopt as it is

on all fours with the court’s overriding objective outlined in Part 1.1 of the CPR. In

the case of Graham v Vandersloot 2012 ONCA 60 that court expressed:

“Adjournment decisions are highly discretionary and appellate courts are rightly

reluctant to interfere with them. Laskin J.A. succinctly summarized the operative

legal principles in Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (Ont. C.A.).

Although he was in dissent, the majority accepted his articulation of the statement

of principles. At paras. 14 and 18 he said:

14. A trial judge enjoys wide latitude in deciding whether to grant or refuse the

adjournment of a scheduled civil trial. The decision is discretionary and the scope

for appellate intervention is correspondingly limited. In exercising this discretion,

however, the trial judge should balance the interests of the plaintiff, the interests

of the defendant and the interests of the administration of justice in the orderly

processing of civil trials on their merits. In any particular case several

considerations may bear on these interests. A trial judge who fails to take account

of relevant considerations may exercise his or her discretion unreasonably and if,

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as a result, the decision is contrary to the interests of justice, an appellate court is

justified in intervening. In my opinion, that is the case here. [Emphasis added]

22. In that case the court held that the judge had erred by refusing an adjournment

which ultimately led to the dismissal of the action because the appellant was not

in a position to produce evidence. The interests of justice favoured the appellant

because there had been an admission of liability by the respondents and there was

nothing to suggest that an adjournment would have resulted in prejudice to the

respondents that could not be compensated in costs.

23. The paramount consideration that must be maintained in the exercise of this

discretion is to ensure that there will remain a fair trial on the merits of the

action.1 The Ontario Court of Appeal has noted that the speedy and expeditious

resolution of a matter is a proper consideration for a court to factor on an

adjournment application.2 Further, in the case of Strata Plan VR No. 2000 v

Shaw [1999] B.C.J. No. 28, Levine J. (as she then was) stated at paragraph 26:

“Further, an adjournment of any trial, but particularly a long trial, is prejudicial

to the judicial system. Other litigants have been denied trial dates during the time

that this trial has been scheduled for all of the months of March through June

1999. This inherent prejudice that results from an adjournment must be considered

and weighed in balancing the interests of the defendants and the prejudice they

claim if the trial proceeds.”

24. In this case, the claimants impressed the court from day one the need to deal with

this matter expeditiously as it was adversely affecting the health of the first named

claimant and her family and their use and enjoyment of their adjoining premises.

The trial was initially scheduled for 21 April 2015. That date was vacated because

of the need to extend timelines set by the court as a result of the matter having

been stayed to facilitate a Judicial Settlement Conference [JSC] which both parties

agreed to but from which the second named claimant deliberately excluded himself

and then refused to entertain an agreement reached between the first named

claimant and the defendant arising out of the JSC. It should be noted that the

second claimant expressed the opinion ex post facto that the JSC would not be

fruitful after considerable effort was made to secure the services of a High Court

judge to conduct the conference and after the conference was in fact held involving

the defendant, its attorney at law and the first named claimant. To my mind, this

was a most unreasonable position to adopt after having agreed to it and it

bordered on a gross deliberate disrespect of the process which he himself had

agreed to initiate.

25. A new trial date of 14 July 2015 was set on 15 April 2015 and confirmed on 30

June 2015. The procedural appeal in relation to the court’s dismissal of the

claimant’s application was filed 7 July 2015. On the date for trial the second

claimant indicated that he was under the impression that the trial would be

adjourned, pending the procedural appeal, as was the practice of the court and as

1 See Cal-Wood Door v. Olma [1984] B.C.J. No. 1953 (C.A.). 2 See Sidoroff v. Joe (1992) 76 B.C.L.R. (2d) 82 (B.C. C.A.), at paras. 9-10,

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such most of his witnesses were not present in court. This position was however

not communicated to the court or the defendant prior to the date for trial.

26. The court proceeded with the trial as there is no general right to an adjournment

or a stay of proceedings where there is a procedural appeal. The court felt justified

in its decision based on the following considerations:

26.1. The claimants had a sufficient period of time to prepare for trial;

26.2. The potential hardship to the defendant of having to continue having an

injunction having over its head while the proceedings are adjourned;

26.3. That the claimants were pro se litigants and were unlikely to be in a position

to compensate the defendant in costs for the delay;

26.4. The case was one for private nuisance and the first named claimant, who

was the actual party being affected was present and able to give evidence;

26.5. The claimants had been clamoring for early trial of this matter to resolve

the issue of the unbearable nuisance. The claimants had, in the past,

impressed upon the court the urgent need for this matter to be resolved

by trial since the onset of the rainy season brought with it added

discomfort. The court, therefore, was mindful that the trial fixed for that

date, 14 July, preceded the long vacation break which would have

progressed during the rainy season and it was unlikely that the court would

have had time to fix a new trial date prior to the end of the rainy season

for that year.

26.6. This was not a representative action and so the absence of the evidence

of the other witnesses which sought to attest to their own distress was

not fatal to the claimant’s case or a resolution of the issues in the case.

27. When weighed, the considerations above suggested that the balance of interests

favoured the hearing of the trial as scheduled.

Evidence

28. The case for the claimant was supported solely by the evidence of the first

claimant. The second claimant did not file a witness statement and does not live

in the vicinity. Further, the claimants would have filed five other witness

statements from three other members of the first claimant’s household and two

members of the Barataria Community. However, these witnesses were not called

to give evidence at the trial nor were any notice of such provided to the court

pursuant to Part 29.11 of the CPR. As such, those witness statements are not

admissible in accordance with Part 29 of the CPR3. Further the combination of

3 See rule 29.2(1) – The general rule is that any fact which needs to be proved at trial by the evidence of

witnesses is to be proved by their oral evidence given in public.

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those witness statements not having contained a statement that the witnesses

believed the contents to have been truthful in accordance with rule 29.5(g)

requirements and the failure to have these statements sworn to on oath before

this court confirmed in the courts’ mind that the evidence contained therein was

not, in any event, admissible in this matter.

29. The case for the defendant was supported solely by the evidence of its CEO, Mr.

Dwight Williams

Evidence of the first claimant – Ms. Joe-Ann Glanville

30. In her witness statement Ms. Glanville stated that the defendant commenced

operations at the building in question sometime in 2011 but it was not until 29

March 2012 that it offloaded over two dozen dogs unto its compound. It was her

evidence that from that day to present herself, her family and residents would be

bombarded by the barking and howling of a dozen dogs, workers shouting at the

dogs, cages slamming and a foul stench from as early as 4 am everyday, morning,

noon and night. She deposed that elders in her community, including her mother,

could no longer sit in their galleries to enjoy the ambiance of their homes or enjoy

quiet naps or have restful uninterrupted sleeps at nights because of the continuous

barking.

31. Ms. Glanville indicated that she had written to the Public Health Administration St.

George Central, the Environmental Management Authority, the Parliamentary

Representative for San Juan/Barataria, the Ombudsman, San Juan Regional

Corporation and the Division of Aging. She also made reports to the Barataria and

Morvant Police Stations and to the television station TV6. She was advised to go

to the Mediation Centre to see if Mr. Williams would be willing to talk with the

residents and come to an amicable solution but was advised by the mediator that

Mr. Williams indicated he was not interested. She was then advised to go to a

Justice of the Peace and have the matter heard in court which led to her filing an

action against the defendant’s CEO at the Magistrate Court. According to Ms.

Glanville’s evidence she was advised by an attorney to withdraw the case and

instead commence a High Court action at a fee of approximately $35,000.00 which

was beyond her physical ability.

32. In relation to the conditions leading to this claim, Ms. Glanville further asserted

that the problems escalate with the rainy season as the thunder and lighten

terrifies the dogs which causes impromptu and persistent barking and howling.

According to Ms. Glanville the stench usually worsens during those periods and the

foul stench combined with the smell of disinfectant gives a nauseating odor.

Further, it was her evidence that during the process of cleaning flies migrate

through the vents of the compound into the homes causing her to worry for the

Also rule 29.9(1) – Except where rule 29.11 applies if -

(a) a party has served a witness statement; and (b) he wishes to rely on the evidence of the witness who made the statement,

he must call the witness to give evidence unless the court orders otherwise.

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babies and young children. Also, Ms. Glanville deposed that she had a fear of

having about 30 dogs next door in light of the horror and danger residents may

have to endure if there was a natural disaster and a dog escaped or a worker

abandoned duty.

33. Ms. Glanville recalled having cause to speak to a Mr. Charles employed with the

defendant at about 2 am because of the persistent barking. Because of the

nuisance it is Ms. Glanville’s evidence that she saw it fit to suspend a NGO she

established at her home with the second claimant. She then accepted the second

claimant’s help with the present action as he advised that the defendant was in

breach of both criminal and civil laws.

34. In relation to the Health Inspector’s report relied on by the defendant Ms. Glanville

deposed that the report was incomplete in that the inspectors refused her offer

for them to come into her home to experience how the foul air affects her when

the kennels are cleaned. Further, her statement in that report, she averred, was

made at a time when the defendant had just cleaned the kennels.

35. In relation to compliance with the court’s injunction, it was her evidence that as at

the date of preparing the statement dated 18 November 2014 the defendant had

placed two signs warning of the dogs but otherwise the condition had not changed.

According to her there were still gaping holes in the walls and the vents were not

blocked up; her family continues to hear loud aggressive barking day and night

seven days a week and as such she was of the opinion that the building was not

soundproofed; they still smelled the foul stench and they still experienced flies and

filthy drains.

36. Ms. Glanville was a bit nervous upon being called to testify but slowly calmed

herself and appeared, for the most part, to answer frankly when cross examined

by counsel for the defendant. Generally, there were no major inconsistencies in

her evidence.

37. Ms. Glanville maintained that the community was a residential area. She admitted

that other residents have dogs but under reexamination averred that there is no

other neighbor that has in excess of five dogs or even two dogs. There was a long

suspicious pause when asked whether she withdrew the matter at the Magistrate

court but later accepted that she did. She accepted that there was no report from

any of the authorities she allegedly sought help from to substantiate her

complaints. She also accepted that she had no evidence as concerns the decibel

level despite being aware that measurement of sound levels can be done. She also

accepted that there was no testing conducted at her home in relation to air quality

such as from CARIRI despite knowing that there was a requirement for her to

prove her claim.

38. Ms. Glanville also accepted that the Health Inspector’s report attached to the

defendant’s witness statement was a true copy of that report. She indicated that

she would leave home for work around 7:30am and return around 4:30pm and

accepted that she could not give evidence as to what happens when she was not

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there. She accepted that she provided nothing to distinguish between the noise of

the defendant and that from neighborhood dogs and further failed to provide any

undisputed evidence that the odors complained of were from the defendant’s

premises.

39. Ms. Glanville accepted that what someone finds noisy or smelly is subjective as

what one person may find aggravating another may not. She however did not

accept that she would not know how the noise affected others in her household

as she would be informed by her mother and daughter and other neighbors. She

also accepted that she did not put forward any medical report.

40. Under cross examination Ms. Glanville admitted that she had not sought an order

which speaks to a reduction of noise levels or elimination of the noxious order but

in re-examination she recalled that paragraph 13 of the re-amended statement of

case sought the removal of the impediment or alternatively that the defendant be

made to engage in remedial exercises. In relation to the other remedy sought,

$5000.00 for each resident affected, Ms. Glanville indicated that the figure was

determined based on the discomfort each person was feeling. Later in re-

examination Ms. Glanville asserted that she would be able to distinguish between

the defendant’s dogs and that of her neighbors and further that there were no

obnoxious scents before the defendant came to the community.

41. Ms. Glanville was further cross examined after the site visit and she admitted that

she had two dogs which were barking on the day of the site visit and that they

were closer to her home than the defendant’s dogs. She indicated that she did not

mind dogs barking but has a problem with the defendant’s dog barking. She

admitted that despite her neighbors having dogs nearby she had not brought any

action against other any neighbor other than the defendant. She indicated that

due to the defendant having cleaned its premises the scent complained of was not

high but there was a nauseating scent from the disinfectant. She accepted that

people often use disinfectant but not the industrial strength disinfectant that the

defendant uses. She did not accept that the filth from the dogs were washed down

the pipe which led to the sewer as it was the defendant’s evidence that only the

liquid waste was washed down the pipe with the solid waste being put into garbage

bags and taken to the dump.

42. Ms. Glanville admitted that her dogs bark but only when strangers approach. She

did not accept that the Eastern Main Road was generally smelly, noisy and

congested. She did not accept that the claim was brought because the defendant

could and ought to pay as the claim was brought, according to her, to get the

defendant to soundproof the premises. She did admit though that there was an

apartment building adjoining her premises containing 6 units and none of the

occupants therein had made any complaints about the defendant’s operations.

43. Under re-examination it was highlighted that a petition was signed by 58 persons

who complained about the conditions at the defendant’s premises. It was also

noted that there was a vast contrast with what she saw on the day of the site visit

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and what she observed previously. She indicated that the drain was white when it

used to be green with moss.

Evidence on behalf of the defendant – Mr. Dwight Williams

44. Mr. Williams presented with a calm demeanor but was a bit evasive when cross

examined. Overall there were some inconsistencies in the evidence tendered in

chief and that which came out in cross examination.

45. In his witness statement Mr. Williams stated that the air vents and holes in the

wall, as complained of by Ms. Glanville, were sealed in or about 2010. However it

was his evidence that those same vents were covered as a result of the court order

in 2014.

46. Mr. Williams further deposed that there are two layers of protection in the form of

two gates which ensure that the dogs do not leave the facility and that these gates

were kept closed at all times. However, under cross examination the defendant

boasted of having three gates to ensure that the dogs were kept on the compound.

When asked whether any of these gates were kept opened Mr. Williams did not

answer the question but instead replied that there is never an instance where all

three gates are kept ajar at the same point.

47. Mr. Williams’ evidence is chief was to the effect that the occupancy of the kennels

decreases significantly between 6pm to 6am. However, under cross examination

the he indicated that the dogs leave at around 4:30/5:00 pm to take up duties and

return at about 7:00/7:30 am.

48. In his witness statement Mr. Williams further stated that liquid waste from the

dogs is channeled via PVC pipes into the sewage system, while solid waste is

collected and disposed in sealed garbage bags which are directly transported to

the Beetham Landfill. Further, it was asserted that the defendant had employed

someone to clean the public drains once per week and that such cleaning was

sufficient as there was no buildup of debris or odor. In addition, the defendant

company cleaned the public drain on Third Street and kept same from waste daily

as a result of the interim injunction. When questioned as to why he would clean

his neighbors’ drains before the injunction if the waste was disposed of as alleged,

Mr. Williams was evasive and did not, to the court’s recollection, answer the same.

49. Mr. Williams maintained that the company cleans the kennels three times per day

using industrial strength disinfectant and described the complaints of the first

named claimant as baseless. To support this, reference was made to the letter

dated 19 July 2012 from the County Health Administration for St. George Central.

By that letter the County Medical Officer of Health advised that the complaints of

the first claimant were investigated but found not to have constituted a public

health nuisance as defined by the Public Health Ordinance Chap. 12 No. 4 s

70(1)(d). That conclusion was made after investigations were done at the

defendant’s premises and interviews with nearby residents.

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50. Mr. Williams went on to state that the community of Barataria had long been a

residential-commercial hybrid community. Further, he asserted that the defendant

has had the canine division and its dogs on the premises from inception. However,

under cross examination Mr. Williams confirmed that the dogs were not yet present

when the first claimant complained about the defendant’s guttering which took

place shortly after the defendant had moved into the premises.

51. Mr. Williams went on to say that the dogs remain clean and healthy as they have

to be that way to take up duty when sent out to clients. It was his evidence that

the first named claimant has gone to great lengths to discredit the defendant’s

name but has failed in every instance as evidenced by the letter from the County

Health Administration and the allegedly dismissed magisterial proceedings. No

proof was provided to confirm the magisterial proceedings initiated against him

were dismissed.

52. Mr. Williams’ evidence was that the premises have always been kept clean with no

offensive odours emanating therefrom and the unabated and unsuccessful

attempts of the first named claimant constitute a flagrant interference with the

defendant’s constitutional right to use and enjoyment of its property.

53. Under cross examination Mr. Williams denied that there were any flies on the

premises and stated adamantly that there were no flies on the premises. He also

denied that there were any obnoxious scents. When asked of Mr. Walcott of

measures to keep the dogs quiet when they are brought outside of the premises

to be loaded he indicated that the dogs are muzzled when being loaded.

54. Mr. Williams denied that the first named claimant was negatively impacted by the

dogs as he did not think it was a problem since he often sees them enjoying parties

at their homes regularly. When asked whether there was a possibility that more

than one dog would bark at a time Mr. Williams refused to accept that sometimes

more than one dog will bark at a time and claimed that he would not be aware of

same. He also indicated that he was not aware of any of the dogs escaping.

55. Upon being cross examined after the site visit Mr. Williams indicated that he had

a total of approximately 20 dogs now due to the passing of the Dog Control Act

2013. However, at the site visit only 7 dogs were present because he said that the

others were out on duty. Mr. Williams admitted to having obedience training with

the dogs but indicated that training would take place in the open once every three

months and noted that Ms. Glanville did not mention it.

56. In relation to compliance with the court’s injunction Mr. Williams indicated that

some sound proofing was done in addition to putting up the signs and covering

the holes. Mr. Williams however has not supplied evidence to confirm the

installation of any sound proofing material/equipment.

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Court’s observations at the site visit

57. The parties attended the site visit, with the exception of the second claimant who

it was later indicated was before another court. This court expressed to the second

named claimant on a later date that it viewed his decision to absent himself without

any prior explanation to be an affront to the court especially when it was

determined that the proceedings before the other court were finished by the time

the site visit took place.

58. It was noted that the property owned by the defendant in fact extends from the

Eastern Main Road in the north – which is the entrance to which the court and all

the parties entered – all the way to the road at the back which is Third Street.

Third Street is occupied by residential looking homes with no businesses visible

along that street other than the defendant’s business.

59. The court went in to the defendant’s premises with Ms. Glanville present. Ms.

Glanville pointed out some space at the top of the wall in between the wall and

the roof to the extreme left of the area in which the dogs were housed to indicate

that this was where flies and a scent emanate into her bedroom, which is just on

the other side of that wall. No flies were present at the time. The court noted that

there were 6 dogs present – all small looking dogs – almost puppies. Some of

them looked like common dogs but Mr. Williams indicated to the court at a

subsequent hearing that those dogs were in fact full grown big breed dogs –

Rottweilers and German Shepherds. The court then went across next-door to Ms.

Glanville’s property and walked on the area to the left of the house between the

defendant’s wall and the claimant’s house. There was no obvious smell of filth

coming from the defendant’s property but the court noted that the defendant’s

area in which the dogs were kept was clean and had a strong smell of disinfectant.

That strong smell of disinfectant was not obvious from the 1st named claimant’s

home. The court went to the rear portion of the claimant’s property. The latter

half of the lot on the left hand side of the property is blocked off by a gate and

behind that gate there were 2 small breed dogs being kept who barked when they

saw the persons involved in the site visit.

60. The court then went into a bedroom of the house with the first claimant together

with Mr. George and Mr. Williams. The court then asked Mr. Williams to have

someone cause the dogs in his property to bark and noted a resonating and

echoing sound which obviously came from the fact that the defendant’s property

was a large cavernous property blocked on all sides which would obviously

resonate and echo the sound. There was no obvious smell coming but the fact of

these smaller dogs being on the site at the time suggested that if all of the dogs

were on the property at any particular time, the noise could be quite pronounced.

61. The court then went to the left (western) side of the defendant’s property and

noticed an empty lot to the forefront and a 6 apartment property towards the back

which seems to front on to the Eastern Main Road.

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62. The court then returned inside the defendant’s property where the defendant

attempted to show that he had euthanized 9 dogs after the passing of the Dog

Control Act which seemed to suggest that he had less dogs on the premises right

now. The court again noted the strong smell of disinfectant which, after leaving

the premises, lingered and caused the court to feel a little nauseated. Mr. Williams

indicated that he had 6 dogs out – they comprised German Shepherds and

Rottweilers. It would have been more helpful having these bigger dogs present.

Mr. Williams showed the trap area which takes water and filth out from the area

where he keeps the dogs, which he says is washed 3 times a day, and it flows into

a six-inch PVC pipe which goes towards the cesspit/sewer directly. The entire area

was sealed off, except for the small space at the top of the wall which Ms. Glanville

had referred to before. She indicated that on her side of the backspace, there is a

guttering and she has noticed an accumulation of flies there whenever the place

is being washed. Mr. George questioned whether it could in fact be pointed out

that those flies emanated from the defendant’s property. In any event, Mr.

Williams indicated that the Local Health sent officers to his place unannounced at

least 4 times per week as a direct result of complaints from the claimant and an

ongoing matter in the magistrate’s court. This information did not form a part of

his witness statement, however and was not corroborated in any manner.

Whether the claimants have the requisite locus standi to pursue this claim for

nuisance?

The law on Nuisance

63. This case concerns allegations of private nuisance. Private nuisance is understood

as any ongoing or recurrent activity or state of affairs that causes a substantial

and unreasonable interference with a claimant’s land or with his use or enjoyment

of that land. Every occupier is entitled to the reasonable enjoyment of his land and

it is well established that an occupier of land may protect himself by action against

anyone who allows filth or any other noxious thing produced by him to interfere

with this enjoyment.4

64. The law of private nuisance insists that the claimant should possess a proprietary

interest in the land affected. The Common Law Series Chapter 22 at paragraph

22.59 explains:

“Two principles underlie the standing rules of private nuisance. The first is that

the claimant must have an interest in the land affected. The second is that the

protection the law affords is determined by the interest the claimant has. The first

principle follows from the fact that private nuisance is a tort against land. In

Malone v Laskey the claimant was living in a house that had been sub-let to a

4 See Hurdman v The North Eastern Railway Co (18780 3 CPD 186)

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company for which her husband worked. A water tank in the property came loose

as a result of vibrations caused by machinery in the defendants' premises next

door, and landed on the claimant's head. Her claim for damages in nuisance was

unsuccessful, because she was in the premises as a mere licensee, and so had no

interest in the property - 'no right of occupation in the proper sense of the term'.

The requirement of an interest in the affected land was swept away in

Khorasandjian v Bush, where the Court of Appeal (Peter Gibson J dissenting) held

that the claimant, who was seeking an injunction against a former boyfriend

plaguing her with phone calls, could rely on private nuisance, even though she

lived in a house owned by her mother6. However the House of Lords (Lord Cooke

of Thorndon dissenting) reinstated the traditional rule in Hunter v Canary Wharf

Ltd. The construction of the 250-metre Canary Wharf tower in London's

Docklands adversely affected the television reception of a large number of local

residents. The residents sought damages from the developer in private nuisance,

and the standing issue arose because, while some of the claimants were owners or

tenants of the houses affected, many were licensees in properties owned or leased

by others, such as spouses and parents. The Court of Appeal followed

Khorasandjian v Bush and held that there need only be a 'substantial link' between

the claimant and the property, and that its occupation as a home would suffice.

However, the majority in the House of Lords firmly rejected this relaxation of the

standing rules. The long-standing restriction on the right to sue was not an

anachronistic technicality, but went 'to the whole basis of the cause of action'. Lord

Hoffmann summed up their Lordships' reasoning as follows: 'Nuisance is a tort

against land ... A claimant must therefore have an interest in the land affected by

the nuisance'.”

65. As indicated above, the significance of a proprietary interest was affirmed by a

majority of the House of Lords in the case Hunter v Canary Wharf Ltd where

Lord Goff examined the relevant authorities and said:

“….an action in private nuisance will only lie at the suit of a person who has a

right to the land affected. Ordinarily, such a person can only sue if he has the right

to exclusive possession of the land, such as a freeholder or tenant in possession,

or even a licensee with exclusive possession. Exceptionally however, as Foster v.

Warblington Urban District Council shows, this category may include a person in

actual possession who has no right to be there; and in any event a reversioner can

sue in so far his reversionary interest is affected. But a mere licensee on the land

has no right to sue.”

[Emphasis added]

66. In that case the House of Lords reversed the Court of Appeal decision and held

that the wife of a tenant of land had no right to sue for damages in nuisance. Lord

Goff rejected the liberal approach of the Court of Appeal which had held that

residence in a home without any legally protected interest was sufficient to confer

a right to sue and said:

“The Court of Appeal adopted the not easily identifiable category of those who

have a "substantial link" with the land, regarding a person who occupied the

premises "as a home" as having a sufficient link for this purpose. But who is to be

included in this category? It was plainly intended to include husbands and wives,

or partners, and their children, and even other relatives living with them. But is

the category also to include the lodger upstairs, or the au pair girl or resident

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nurse caring for an invalid who makes her home in the house while she works

there? If the latter, it seems strange that the category should not extend to include

places where people work as well as places where they live, where nuisances such

as noise can be just as unpleasant or distracting. In any event, the extension of the

tort in this way would transform it from a tort to land into a tort to the person, in

which damages could be recovered in respect of something less serious than

personal injury and the criteria for liability were founded not upon negligence but

upon striking a balance between the interests of neighbours in the use of their land.

This is, in my opinion, not an acceptable way in which to develop the law.”

[Emphasis added]

67. Lord Hoffman at pages 706 and 707 further explained:

“But inconvenience, annoyance or even illness suffered by persons on land as a

result of smells or dust are not damage consequential upon the injury to the land.

It is rather the other way about: the injury to the amenity of the land consists in

the fact that the persons upon it are liable to suffer inconvenience, annoyance or

illness……

Once it is understood that nuisances "productive of sensible personal discomfort"

(St. Helen's Smelting Co. v. Tipping, 11 H.L.Cas. 642, 650) do not constitute a

separate tort of causing discomfort to people but are merely part of a single tort

of causing injury to land, the rule that the plaintiff must have an interest in the land

falls into place as logical and, indeed, inevitable.”

68. As such, those with an established right to bring an action of nuisance has been

identified as including freeholders, those in exclusive possession of the land

affected and reversioners.5 A mere licensee on the property has no right to sue

neither would a husband who occupied premises which was owned by his wife.6

At paragraph 22.60 of the Common Law Series the learned authors explained what

constitutes an interest in land:

“To sue in private nuisance the claimant must have a right to the land, for example

as owner or reversioner, or be in exclusive occupation of it as a tenant or under a

licence to occupy. ….. Finally, no distinction is drawn between legal and equitable

proprietary interests, and it follows that, if a spouse is held to have a beneficial

interest in the matrimonial home, then he or she will be entitled to sue in nuisance

for damage to that interest. However, since the test is whether the claimant is in

exclusive occupation of the land, licensees - such as lodgers and nannies - will

usually not be able to bring claims in private nuisance. The same is true of

children living in their parents' home, and even of spouses living in a matrimonial

home solely owned by their husband or wife. An action will however lie if

(exceptionally) a licensee is in exclusive occupation of the property affected.

……….It follows that if a licensee living in a self-contained part of a house - such

as a so-called 'granny flat' - were considered to have exclusive possession of that

part, she would have standing to sue in nuisance.

[Emphasis added]

5 See The Law of Nuisance, Murphy J Chapter 4 – ‘Parties to a private nuisance action’ 6 See John Hernandez v Ashana Civil & mechanical Contractors Limited CV2007-02600 per Boodoosingh J

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69. Not every inconvenience will suffice for the purposes of nuisance law as a balance

has to be maintained between the right of the occupier to do what he likes with

his own land and the right of his neighbor not to be interfered with. 7 The

interference complained of must be both substantial and unreasonable.

70. In the text, The Law of Nuisance, Murphy J, helpfully summarizes factors which

the courts have determined in an attempt to balance the competing interests of

neighbors. The learned author outlined at Chapter 2 - ‘Essentials and nature of

liability in private nuisance’ - the four main factors which help determine whether

any given interference is sufficiently substantial to ground an action in private

nuisance:

70.1. The sensitivity of the claimant – concerned with the question of whether

the interference is, in objective terms, of sufficient magnitude to warrant a

remedy as a claimant who has an exceptional sensitivity to interferences

will not be able to rely upon this abnormal sensitivity in order to convert

an ordinarily innocuous interference into one that is regarded as sufficiently

substantial to ground an action in nuisance;

70.2. The duration of the harm – the more persistent an interference the more

likely the courts will consider it to be substantial;

70.3. The extent of the harm – the claimant must show an objectively grave

interference but also that she has personally suffered a substantial

interference;

70.4. The character of the harm – courts seem markedly more prepared to

protect the physical integrity of property than minor personal discomforts

and annoyances falling short of physical damage8

71. Once it has been established that the interference is substantial, the burden of

proof rests with the defendant to show the reasonableness of his user.9 which

takes into consideration:

71.1. The defendant’s motive;

71.2. The location of the defendant’s premises which asks whether the defendant

is putting his land to a use which is compatible with the main use to which

land in that area is usually put bearing in mind that the character of a

locality is susceptible to change over time.10

71.3. The kind of user - extremely dangerous enterprises are unreasonable users

of land;

71.4. The practicality of preventing or avoiding the interference – whether the

defendant, by taking reasonable and practicable steps to prevent the

7 See Sedleigh-denfield v O’callaghan [1940] AC 880 at 903 8 See the observations fo Lord Hoffman in Hunter v Canary Wharf Ltd 9 See Hiscox Syndicates ltd v The Pinnacle Ltd [2008] EWHC 145 10 See Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] BQ 343

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inference could still have achieved his purpose without substantially

interfering with the claimant’s use of her land;

71.5. The location of the claimant’s premises – the claimant’s expectations in

terms of comfort, peace and quiet will vary according to the location of his

house or business;11 and

71.6. The social value of the claimant’s use of land as where the claimant uses

his land in a socially useful manner, it is seemingly more probable that the

court will regard the interference cause by the defendant as unreasonable.

72. Clerk & Lindsell on Torts puts it like this:

”Whether such an act does constitute a nuisance must be determined not merely

by an abstract consideration of the act itself, but by reference to all the

circumstances of the particular case, including, for example, the time of the

commission of the act complained of; the place of its commission; the manner of

committing it, that is, whether it is done wantonly or in the reasonable exercise of

rights; and the effect of its commission, that is, whether those effects are transitory

or permanent, occasional or continuous; so that the question of nuisance or no

nuisance is one of fact.

Standard of comfort A nuisance of this kind, to be actionable, must be such as to

be a real interference with the comfort or convenience of living according to the

standards of the average man. An interference which alone causes harm to

something of abnormal sensitiveness does not of itself constitute a nuisance. A man

cannot increase the liabilities of his neighbour by applying his own property to

special uses, whether for business or pleasure.”12

[Emphasis theirs]

Analysis & Conclusion

73. The claimant’s statement of case pleaded that the house adjoining the defendant’s

premises is owned by the first claimant’s 80 year old mother who still resides there.

Further, by their reply it is stated at paragraph 3 that:

“The First Claimant further submits that at no point in the said Statement of Case,

did either Claimant submit, indicate, implied or in any manner, claim paper or any

type of ownership to the said property.”

74. The claimants therefore have no standing to bring this claim. Quite obviously, the

second named claimant has no standing whatsoever as he does not even live in

the area. On the other hand, the first named claimant has not established anything

11 See Sturges v Bridgman (1879) 11 Ch D 852 12 See Clerk & Lindsell on Torts, 21st Edn, at paras 20-10 and 20-11

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beyond being a mere licensee and therefore cannot satisfy the necessary standing

imposed by law13.

75. This is an unfortunate resolution of this matter but it is inevitable having regard to

the fact that it was raised from day one in the defence and was not addressed by

the claimants.

76. Therefore, there is therefore no need to consider whether the nuisance complained

of was/is actionable. In any event, even if the court were to have gone forward to

deal with that issue, it is of the respectful view that the claimants would have been

in great difficulty as they did not provide any independent evidence or testing in

the form of decibel ratings, odour samples, scientific analysis, etc. to corroborate

the allegations made. Further, no analysis was presented from the authorities

responsible for such matters such as the Environmental Management Authority or

the Local Health Authority or any other private or governmental authority in the

business of assessing and or maintaining the environment or surroundings. On the

other hand, however, the defendant provided correspondence from the County

Health Administration, St. George Central dated 19 July 2012 and exhibited as

H.S.S.L.3 to his witness statement confirming that an inspection of the premises

revealed that complaints made against the defendant did not constitute a public

health nuisance. Mr. Williams, on behalf of the defendant, also produced a

summons taken out against him by the first named claimant before the Port Of

Spain Magistrates Court for causing a nuisance by permitting a canine unit to be

placed next to the complainant’s home which, according to him, was dismissed.

All in all, on a balance of probabilities, and with the evidence which the court has

before it, if even the claimants had crossed the first hurdle of establishing the locus

standi to bring these proceedings, may have been quite difficult for them to

establish liability against the defendant.

Order

77. In the circumstances the claim is dismissed.

78. The claimants shall compensate the defendant for the losses suffered as a result

of the interim injunction as per their undertaking and an inquiry will be conducted

into the extent of the same before a Master in Chambers on a date to be fixed.

79. The claimants shall pay the costs of the application for the interim injunction, such

costs to be quantified before the master in chambers at the hearing for the inquiry

into the damages.

13 The claimants were given an opportunity to comment on and provide supplemental submissions if necessary on the point of locus but the second named claimant, who is the driving force of the proceedings on behalf of the claimants, refused that invitation.

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80. The claimants have sought damages in their claim in the amount of $150,000 as

being monetary compensation for all affected parties at the rate of $5000 per

person. Obviously, there is only one affected party before the court namely the

first named claimant. The main thrust of the claimants’ case was for the abatement

of the nuisance and, in that regard, the court will apply the prescribed rate for

costs as provided at Part 67.5 (2) (b) (iii) of the CPR and shall award costs to be

paid to the defendant by the claimants in the sum of $14,000.

/s/ Devindra Rampersad Devindra Rampersad

Judge

Assisted by

Charlene Williams Attorney-At-Law

Judicial Research Counsel

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