THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ANTIGUA AND BARBUDA
CLAIM NO. ANUHCV2015/0775

BETWEEN:

FRANKLYN A. CLARKE

CLAIMANT

AND

COLIN JOHN PLUMMER

DEFENDANT

Appearances:
Ms. Eleanor R. Solomon of Clarke & Clarke for the Claimant
Ms. Wattisa Rose of the Legal Aid & Advice Centre for the Defendant

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2022: December 12th
2023: February 10th
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JUDGMENT

[1] ROBERTSON, J.: The Claimant initiated this claim for damages in private nuisance. The Claimant alleges that tree roots from the Defendant’s Ficus tree invaded his underground cistern causing damage to the cistern and the foundation of the Claimant’s home. The Claimant further contends that unless the cistern was relocated the Claimant’s house would be extensively damaged.

[2] The Claimant seeks damages in private nuisance and injunctive orders requiring the Defendant to destroy the existing Ficus tree and be restrained from allowing the roots of the Ficus tree from going onto the Claimant’s property. The Claimant also seeks special damages in the sum of EC$61, 846.50 representing the cost of excavation to find roots of the Ficus trees and the cost for the relocation of the cistern.

[3] The Defendant refutes that he is liable in private nuisance and denies that the damage to the Claimant’s cistern or any other structure on the Claimant’s property was caused by the Defendant’s Ficus tree while the Defendant was in occupation of the property. Alternatively, the Defendant contends that any damage done to the Claimant’s cistern arose from the cistern being in a state of disrepair and that relocation of the cistern was not necessary or, if the relocation was required, it was required because the original cistern was poorly constructed and/or in a state of disrepair. The Defendant counterclaimed and sought damages for trespass.

Relevant Background

[4] The Claimant, Mr. Franklyn Clarke, and the Defendant, Colin Plummer, are neighbours. The parties share a boundary on the western side of the Claimant’s property. The Claimant’s house was built with an underground cistern which the Claimant contends was damaged as result of roots of a Ficus tree which tree was located on the Defendant’s property.

[5] The damage to the cistern was detected when it was observed, sometime in December 2014, that the water level in the cistern was inexplicably low. The Claimant investigated the matter and roots were discovered in the cistern. The roots were sent to the Department of Agriculture, Ministry of Agriculture, Lands, Fisheries and Barbuda Affairs and it was determined that the roots were Ficus tree roots.

[6] The Claimant received advice that the best action that the Claimant should adopt is to have the cistern relocated. The original cistern was decommissioned, and a new cistern was built.

[7] The Defendant disputes that the Ficus tree on his property resulted in damage or loss to the Claimant and noted that any damage proven could have been caused by vegetation in the area, including a Ficus hedge on the Claimant’s property. Additionally, the Defendant denies that the removal of the cistern was reasonable or necessary. The Defendant further contends that the cost claimed by the Claimant for the construction of the new cistern was excessive and unreasonable. He also notes that the original cistern was in a state of disrepair and that the Claimant was negligent in failing to maintain, repair and inspect the original cistern.

[8] The Defendant has also raised the matter of loss and damage caused to the Defendant by the Claimant cutting down a Ficus tree which was on the Defendant’s property without the Defendant’s knowledge and consent. The Defendant disputes the Claimant’s position that the Claimant obtained permission to cut down the Ficus tree which was on the Defendant’s property. The Defendant seeks damages in trespass.

The Evidence.

[9] The Claimant gave evidence, and his case was supported by the evidence of Robert Bascus Jr. and Reginald Clarke. The Defendant gave evidence, and his case was supported by the evidence of his wife, Sonia Plummer. Expert reports of Johan Davis Ormond and Trevor Gonsalves were placed before the Court. Trevor Gonsalves was available for cross-examination.

The Expert Evidence

[10] The experts, Trevor Gonsalves and Johan Davis Ormond provided extensive reports to the Court. The reports were supplemented by responses to questions posed to the experts by the Counsel for the Claimant and the Defendant. Relevant parts of the respective reports and the responses to questions are detailed hereunder. The report of Trevor Gonsalves is dated July 27, 2020, and the report of Johan Davis Ormand is dated October 22, 2019.

Trevor Gonsalves

[11] Mr. Trevor B. Gonsalves, a Civil/Structural Engineer and Project Manager, inspected the Claimant’s property on July 10, 2020, and July 20, 2020. The inspection focused on the two cisterns located on the Claimant’s property. The first being the newly constructed partially underground cistern located to the south-eastern corner of the house and east of the patio and the original cistern under the family room located on the north-western corner of the house. The investigation was of a non-destructive form utilizing general visual inspection of the structure of the cistern, its concrete walls and floor slabs and the exterior walls of the house in the area of the original cistern.
[12] In observing the original cistern, it was noted that the plastered wall sections ended a few inches above the high-water line. Additionally, the wall above the existing water level had no major visible defects such as cracks or spalling mortar. There was one small brown stain on the northern wall which Mr. Gonsalves indicated could be corroding metal but the usual spalling, swelling and/ or cracking of the plaster was not visible as would happen with long term corrosion of the steel in a moist environment.

[13] Mr. Gonsalves indicated that generally, cisterns should be inspected and cleaned at least once a year to remove sludge and sediment build-up and that there would be need for more frequent inspections if the water looks, smells, or tastes ‘different’. Mr. Gonsalves referenced the Environmental Public Health, Alberta Health Services as an authority for this proposition.

[14] As it relates to the original cistern and the complaint raised by the Claimant, Mr. Gonsalves indicated that tree roots do not normally penetrate well compacted concrete. This expert noted that roots of trees are attracted to water and/or moisture in the soil and that such moisture may arise if there are flaws or cracks in the concrete of the cistern and the flaws, cracks or porous parts of the concrete become a source of moisture which attract roots of trees. The roots contributed to the damage of the cistern by making the flaws wider as the roots grew.

[15] Mr. Gonsalves also stated that generally concrete gets stronger as it ages, but the reinforcing steel would degrade over time and that this is particularly the case with the concrete which was used in Antigua where the concrete is made using beach sand which can cause corrosion of the steel under the right conditions. Such conditions include the presence of moisture and air. Mr. Gonsalves noted that there appeared to be rust stains on the northern wall of the cistern.

[16] In the report Mr. Gonsalves noted that there were roots in the original cistern of the Claimant and indicated that the number and the length of roots (over twenty feet) which were found in the cistern suggested that the cistern was not being regularly inspected and/or cleaned. Mr. Gonsalves, referring to a USDA report, noted that Ficus roots can grow between 12 to 24 inches per year.

[17] Mr. Gonsalves’ opined that before the roots started to enter the Claimant’s cistern the cistern very likely had some minor cracks through which there was water seepage. The practice of not plastering the exterior of the cistern meant that the roots would be able to penetrate the un-plastered concrete block exterior through the many joints around the blocks into the inner surface of the cistern.

[18] Mr. Gonsalves further stated that he did not see any signs that the foundation of the Claimant’s house was being undermined. Mr. Gonsalves stated that the roots of a tree would cause damage by uplifting the foundation of the house, but it would not cause damage by undermining the foundation. He said that roots would only be capable of doing major damage by uplift if the trunk of the tree and the largest roots are located close to the building.

[19] In responding to an inquiry whether any harm/damage was likely to have been reasonably foreseeable Mr. Gonsalves indicated that he “did not see how any person could reasonably foresee the damage caused to the property by any tree unless that person knows and understands plant roots growing methods and circumstances”.

[20] Mr. Gonsalves stated that the Claimant could have trimmed the branches of the tree that hung over his property or use physical root barriers or a chemical barrier in the soil along his boundary line in order to minimise or avoid any possible damage to his property. Mr. Gonsalves also stated he saw signs of a chemical barrier at the north-western corner of the property. Specifically, Mr. Gonsalves indicated that he noticed PVC pipes in the soil west of the original cistern.

[21] In relation to the decommissioning of the original cistern Mr. Gonsalves stated that he did not think it was reasonable to decommission the original cistern and to construct a new one. He went on to state that after the inspection on July 10, 2020, he formed the opinion that the original cistern could have been repaired since he visited the Claimant’s property some five years after the original cistern was abandoned and the original cistern still held water. Mr. Gonsalves noted that the water level in the original cistern was 4 feet 6 inches although there were no spouts connected to this cistern. Mr. Gonsalves also noted that the repairs executed to the cavity of the original cistern appeared to have been successful since there was water in the cistern when the inspection was conducted.

[22] Mr. Gonsalves stated that he can confirm that the cistern was not leaking below the water level found in the cistern and noted that there was no visible evidence to suggest that there were cracks or other defects above the water level. The pathway around the cistern had cracks but those cracks were as a result of “subsidence caused by the undermining of the walkway slabs by surface water from uphill”.

[23] On the matter of the location of the original cistern and the new cistern Mr. Gonsalves indicated that the location of the original cistern “was not appropriate in the first place, if the neighbour’s house was already built and the Ficus tree was already planted and in place when the Clarke’s were constructing their house. The location of the new cistern is also questionable since the Clarke’s existing Ficus hedge is approximately the same distance from the new cistern.”

[24] Mr. Gonsalves stated that the possibility existed that roots of the remaining Ficus tree could invade the cistern if the conditions are right, that is, if the cistern starts to leak.

[25] Mr. Gonsalves provided an opinion on the new cistern. He indicated that there were several horizontal cracks on the visible external walls of the cistern which may be attributed to substandard plastering work on the exterior walls. There were no signs of roots encroaching the new cistern. He also indicated that the location of the new cistern suggests that there was no approval from the appropriate authority to construct the new cistern since according to the regulations a cistern is required to be constructed a minimum of 8 feet from the sceptic tank and a minimum of 15 feet from the soakaway and that these regulations do not appear to have been observed.

[26] As it relates to the house Mr. Gonsalves noted that the exterior walls of the house above and next to the cistern were inspected in detail and there were no signs of distress in the walls. There were no horizontal or diagonal cracks seen in the walls but there was one vertical hairline crack on the wall between the family room and the room east of the family room. This crack maintained the same thickness from top to bottom and this indicated that it was not as a result of differential settlement from wet soil under one section of the building’s foundation.

[27] This witness indicated that he did not observe any signs of the foundation being undermined but did see signs of water undermining the walkway slabs and the resulting crack in the slabs on the northern side of the house.

[28] Mr. Gonsalves indicated that the estimated cost to clear the Claimant’s yard of roots from the nearby trees and to repair the cistern would have been approximately EC$12,300.00.

Jonah Davis Ormond

[29] The second expert was Mr. Jonah Davis Ormond, an Agricultural Engineer. Mr. Ormond visited the Claimant’s property on October 22, 2019, and visited the Defendant’s property on November 8, 2019.

[30] In his report Mr. Ormond stated that it is probable or likely that the roots of the Ficus trees on the Defendants’ property caused damage to the Claimant’s cistern. He also stated that based on a visual inspection of the cistern, the surrounding vicinity and a review of the case documents, it was his opinion that it was unlikely that the Ficus roots caused the initial damage to the structure of the cistern, but rather that the roots took advantage of an already existing fault in the structure making it worse resulting in excessive leakage and the contamination of the cistern. This expert was unable to confirm that the Ficus root was responsible for the initial damage caused to the cistern since the original cistern was constructed with reinforced steel and concrete filled blocks.

[31] Mr. Ormond stated that he was unable to identify any other structural damage to the foundation of the Claimant’s property other than the damage to the original cistern.

[32] It was also indicated that the root of a Ficus plant generally extends past the canopy of the plant and is found within 1.5 – 3 feet of the surface of the ground. The Ficus plant root under tropical conditions in well-drained soil will grow an average of 4-6 feet per year. Plant roots could reach maturity within five years. Mr. Ormond also indicated that it was not probable or likely that the alleged damage to the Claimant’s cistern was caused by any other vegetation in the area.

[33] Mr. Ormond also stated that it would not have been reasonable for anyone to have foreseen possible damage to the Claimant’s property without that person having knowledge of the growth patterns of Ficus plants and the potential invasive nature of their roots. Mr. Ormond further stated that as a matter of speculation, he was unable to determine whether someone with knowledge about trees and tree roots and who studied Agriculture at University level, would have reasonably foreseen the growth pattern of Ficus plants and the ‘potential nature’ of the roots. He recognised that the study of agriculture is a very wide field.

[34] Mr. Ormond stated that the only practicable measures that could have been taken to minimize or avoid damage to the property is to request the removal of, or at minimum, to trim the Ficus plant in its earlier growing stages. Another measure could have been the installation of root barriers around the structure of concern.

[35] Upon inspection, Mr. Ormand indicated that he was not able to enter the original cistern due to the water in the cistern but indicated that roots were noticed on the northern and north-western side of the cistern. As it related to the new cistern Mr. Ormand indicated that there were no roots in the new cistern and that he did not consider root encroachment to be an issue in the near future provided that the Ficus hedge on the Claimant’s property is maintained as a hedge and not allowed to grow out and the other plants are kept at a relatively safe distance from the cistern.

[36] Mr. Ormand indicated that the estimated costs for the ‘removed Ficus tree’ is EC$10,508.00.

Issues for Determination.

[37] The primary issues for the Court’s consideration are whether the Defendant is liable in private nuisance by reason of the management of the Ficus trees on his property and whether the Claimant is liable in trespass.

The Law, The Analysis and The Finding of the Court

[38] At common law, the tort of private nuisance permits a person to sue if that person’s use and enjoyment of his property is adversely affected by the actions or omissions of another person. In considering the matter of private nuisance a Court is concerned with balancing a person’s right to undisturbed enjoyment of his/her property against another person’s right to lawfully enjoy his/her property. Accordingly, in order for the interference to be actionable the complained action must be a substantial interference with the enjoyment of the land and the conduct of the Defendant must be unreasonable in the circumstances of the case.

[39] The case of Davey v Harrow Corporation is authority for the proposition that the spreading of the roots or branches of trees constitutes physical invasion which can be the subject of a claim in private nuisance.

[40] The initial matter for this Court’s consideration is whether the Defendant’s Ficus tree roots caused damage to the Claimant’s property. The evidence before this Court is that the low water levels in the cistern led the Claimant to have arrangements made to further inspect the cistern. Upon inspection, Robert Bacus discovered roots in the cistern and communicated to Reginald Clarke who was on site. The evidence is that the roots were emanating primarily from the north-western corner of the original cistern. A sample of the root was sent to the Ministry of Agriculture and the Claimant was informed that the root was from a Ficus tree root. This is reflected in the correspondence dated March 17, 2015, from the Director of Agriculture, Ministry of Agriculture, Lands, Fisheries and Barbuda Affairs in which it was stated that the specimen of the root was verified to be from a Ficus tree.

[41] It is noted that Mr. Ormond reported that “it is probable or likely that the tree roots of the Ficus trees on the defendant’s property caused damage to the Claimant’s cistern…. The characteristics of the Ficus plant allows the plant roots to extend further than the boundaries of the canopy and the emergence of adventurous roots.”

[42] Mr. Ormand also noted that “it is not probable or likely, that the alleged damage to the claimant’s cistern was caused by any other vegetation in the area.” In his conclusion, the Mr. Ormond made the following statements: “Based on the evidence provided and a visit to the Claimant’s property, I can visually conclude that the root found in the damaged cistern is that of a Ficus tree. The Court documents indicate that there was a Ficus plant in close proximity to the damaged cistern and at one point in time the plant branches had extended to the point where it was encroaching on to the roof of the Claimant’s property, directly above the location of the damaged cistern and the water storage. If the branches had extended to the above indicated distance, it is highly likely that the roots extended further than the plant’s canopy, as it is characteristic of plants that their roots extend further than its canopy. Mr. Ormand also indicated that, “It is highly unlikely, if not impossible that the roots found in the cistern were that of the Ficus plants located in the Ficus hedge on the Claimant’s property. The location of the hedge is not consistent with the location of the roots found in the cistern and the size of the plants would not produce roots that would be able to travel the distance between the hedge and the cistern.”

[43] This Court accepts the evidence that the roots found in the Claimant’s cistern were roots from the Ficus tree. The Court also accepts the evidence of the expert that the most likely source of the roots is the Ficus tree which was located on the Defendant’s property and that the roots of the Ficus hedge on the Claimant’s property would not have extended to the Claimant’s original cistern.

[44] It is important to note, however, that both experts confirm that in order for the Ficus roots to have entered the original cistern it is more likely than not that there would have been a leak or some flaw in the cistern which would have created a source of water which would have caused the Ficus root to grow in the direction of the leaking cistern. Jonah Ormand’s report stated that “it is unlikely that the Ficus roots caused the initial damage to the structure of the cistern, but rather took advantage of an already existing fault in the structure and made it worse resulting in excessive leakage and contamination of the cistern.” Similarly, Trevor Gonsalves indicated that “tree roots do not normally penetrate well compacted concrete unless there is a flaw or crack in the concrete and there is a source of moisture in the flaw or crack to attract the roots”. This expert also noted that the roots could contribute to the damage to the cistern by making the existing flaws to the cistern wider as the roots grow.

[45] Thus, while the roots from the Ficus tree were found in the Claimant’s cistern the roots themselves did not cause the initial damage to the original cistern. The original cistern was flawed prior to the roots penetrating the cistern.

Reasonableness of the Conduct of the Defendant.

[46] The general principle is that the landowner is expected to act in a manner that is ‘to be expected from a reasonable and prudent landowner’ . When discussing the duty of the owner and occupier of land, the Court of Appeal in Leakey v National Trust stated that “The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimize the known risk of damage or injury to one’s neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and if so, what that breach is and whether it is causative of the damage in respect of which the claim is made”. The Court of Appeal further added the proviso: ” …the duty arising from a nuisance which is not brought about by a human agency does not arise unless and until the defendant has, or ought to have had knowledge of the existence of the defect and the danger thereby created”.

[47] In the case of Solloway v Hampshire CC , the Court of Appeal stated that “the duty in respect of the nuisance created by roots arises if the encroachment of the roots is known or ought to be known, to the owner, occupier or other the person responsible for the tree and its maintenance, if the encroachment is such as to give rise to a reasonably foreseeable risk that such encroachment will cause damage.” The Court further noted that “in considering whether there is a breach of duty, the extent of the risk and the foreseeable consequences of it have to be balanced against the practicable measures to be taken to minimize the damage and its consequences.” The court also stated that “to say a risk of damage is reasonably foreseeable means it is foreseeable not merely as a theoretical possibility but as something the chance of which occurring is such that a reasonable man would consider it necessary to take account of it”.

[48] As it relates to nuisances which existed before the occupier acquired the property the court in St. Anne’s Well Brewery Co v Roberts noted that “an owner not in occupation of land on which is created a nuisance which causes damage to an adjoining property owner is not liable in respect of that damage unless it can be shown that at the time he let the premises there was then a nuisance on them and that he knew, or ought to have known, of it. A tenant occupier is not liable for such damage if he did not create the nuisance on the land he occupies unless, perhaps, knowing of it or being in such a position that he ought with reasonable care to have known of it, he allowed it to continue.”

[49] The case law demonstrates that for a claim of nuisance to succeed the Defendant must be shown to have actual or constructive knowledge of the nuisance and the danger thereby created.

[50] In the circumstances of this case the Defendant acquired the property in 2004 with mature trees on the property. When the property was acquired the Ficus trees were among the mature trees which were on the property. The evidence of the expert is that if a property owner wanted to restrict the growth of the roots of a Ficus tree on the property that property owner would have had to have the tree trimmed before the tree matured. The expert also indicated the roots of a Ficus plant mature in well-drained soil after approximately five years.

[51] The evidence before the Court is that sometime in or about December 2014 the Claimant’s son informed the Defendant that the Ficus roots were found in the Claimant’s cistern. The evidence of parties is that when this information was communicated the Defendant granted permission to the Claimant to have the tree cut. While the specifics of the instruction are disputed it was agreed that the Defendant permitted the Claimant to cut the tree seemingly to address the concerns of the Claimant. It is however accepted that, based upon the experts’ evidence before this Court, the cutting of the tree to 8 feet would not have resolved the Claimant’s concerns. Nevertheless, it is noted that the Defendant attempted to address the concerns raised by the Claimant.
[52] This Court finds favour with the submissions of the counsel for the Defendant that prior to December 2014/January 2015 the Defendant was not able to foresee a risk of the roots penetrating the Claimant’s cistern. Firstly, the Claimant’s original cistern is subterranean. Secondly, the fact that the Defendant studied agriculture does not fix the Defendant with knowledge of foreseeable risk since the evidence of both experts is that generally the roots do not penetrate reinforced concrete. The experts also indicated that the damage from the roots was more likely to have arisen because there were faults in the cistern which created moisture and that the moisture affected the growth paths of the roots. The situation is exacerbated where the external walls of the subterranean cistern are not plastered, and the roots are able to find possible spaces to penetrate the cistern. These matters indicate that the Defendant could not have foreseen that if the roots from his Ficus tree entered onto the Claimant’s property that damage to the cistern would have occurred. Thirdly, as confirmed by one of the experts, agriculture is a very wide field of study, and it cannot be assumed that a person having studied agriculture at the university level would be fixed with the knowledge of the growth patterns of the roots of Ficus trees. Fourthly, the Defendant’s articulated understanding of the growth patterns of roots was confirmed by the opinions offered by the experts.

[53] As a result of the foregoing the Claimant’s claim for private nuisance fails. The Claimant has not shown that the Defendant has acted unreasonably to a foreseeable harm/damage to the Claimant’s property .

[54] Additionally, there is also no evidence before the Court that further damage has been caused to the Claimant’s property since January 2015 by the presence of the other Ficus tree which remains on the Defendant’s property. Finally, there is action which can be adopted by the Claimant, such as the introduction of chemical and physical barriers on the Claimant’s property, which would offer protection to the Claimant if there are further concerns about damage to the Claimant’s property.

[55] Finally, the Court notes the evidence of Mr. Gonsalves that the original cistern could have been repaired. Mr. Gonsalves noted that the cistern continued to hold water and that there was no significant evidence of damage to the cistern walls above the water level. Mr. Gonsalves noted that the work done to repair the original cistern appeared to have met the requisite standard. Accordingly, the Defendant is not liable to the Claimant for costs incurred to build the new cistern. It is also noted that once the Ficus tree in question had been killed and the cistern repaired the matters of concern would have been resolved and therefore there was no need for a new cistern to be built.

The Claimant’s Trespass

[56] The Defendant contends that on or about January 10, 2015, the Defendant granted permission to the Claimant, his servants, or agents to reduce the height of a Ficus tree which was on the Defendant’s property to about 8 feet. The Defendant further contends that without the Defendant’s knowledge or consent the Claimant’s agents entered the Defendant’s property and lopped the tree down leaving only a stump and they also ring barked the tree which resulted in the death of the tree. The evidence of the Defendant is that on the day when the Claimant’s agent cut down the Ficus tree the Defendant was not at home and did not give specific access to his property.

[57] The evidence before the Court as presented by the Claimant and the Defendant is that permission was granted to the Claimant to cut down the Ficus tree which was on the Defendant’s property. Implicit in this would have been permission to access the Defendant’s property to cut down the tree.

[58] It is noted that although the Defendant pleads loss arising from the death of the Ficus tree the Defendant only seeks damages in trespass. The claim of the Defendant in trespass to the Defendant’s land has not been proven on a balance of probabilities.

The Second Ficus Tree and Injunction to Restrain the Defendant

[59] The Clamant has also sought an order that the Defendant remove the second Ficus tree and has sought an injunction to restrain the Defendant from allowing the roots of any tree from encroaching on the Claimant’s property and so create a further nuisance. These matters have been addressed by this Court in the foregoing. The Claimant’s claim in private nuisance has failed and the Claimant’s application for injunctive relief premised on private nuisance must also fail.

[60] Accordingly, this Court dismisses the claim and the counterclaim. Each party to bear their own costs.

Marissa Robertson
High Court Judge

By The Court

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