East Demerara Water Company Conservancy Board v Samaroo et Al
| Jurisdiction | Guyana |
| Judge | R. H. Luckhoo, J.A. |
| Judgment Date | 06 April 1976 |
| Neutral Citation | GY 1976 CA 13 |
| Docket Number | Civil Appeal No. 69 of 1973 |
| Court | Court of Appeal (Guyana) |
| Date | 06 April 1976 |
Court of Appeal
Haynes, C.; Crane, J.A.; Luckhoo, J.A.
Civil Appeal No. 69 of 1973
C. Lloyd Luckhoo, S.C., J.A. King, S.C. and Mrs. Jane Savage.
Luckhoo for the appellants.
Dr F. H. W. Ramsahoye, S.C., Z. Hosein, D. Jagan and W. M. Zephyr for the respondents.
Tort - Negligence — Escape of water from conservancy — Damage to farms and livestock of several persons — Whether Board was negligent in the performance of its duties — Whether the doctrine in Rylands v. Fletcher applied.
On the night of the 8 th May, 1968, a breach was discover in the East Demerara Water Conservancy not far from a place called Flagstaff in the Cane Grove area on the east coast of Demerara. The breach was a little over one mile west Flagstaff in the northern dam which runs east to west. When first seen it was about 6 feet wide and subsequently increased in width to about 60 feet in circumstances which will later be set out.
As a result of the considerable volume of water which escaped from the Conservancy through the breach before the breach was finally closed on the 22 nd May, 1968, damage was done to the farms, rice cultivation and livestock of several persons an the Cane Grove area. The claims, the subject matter of this appeal, were brought to recover the loss sustained by the damage done through the flooding of the lands.
It is necessary to give a description of the dam where a breach occurred, a short history of the Conservancy, and the relevant powers and duties of the appellants in relation to the East Demerara Water Conservancy as set out in the East Demerara Water Conservancy Act, Cap. 55:03 passed in the year 1935 and by which the Conservancy is administered. The Conservancy is an artificial reservoir which extends from the Demerara River to the Mahaica River covering a distance of about 42 miles and serving an area of some 90, 000 acres with the supply of water. The dams conserving the water, though originally composed mainly of pegasse, are made of a mixture of clay and pegasse and were an existence for about 90 years, being raised and strengthened from time to time. In the area of the breach the top width of the dam is 4 feet and the dam is much wider at the bottom.
The East Demerara Water Conservancy is an undertaking constituted by the several undertakings which, prior to the commencement of the East Demerara Water Conservancy Act of 1935 (hereinafter referred to as ‘the Act’), were administered under the East Demerara Water Supply Ordinance, the Lamaha Ordinance and the Shanks' Canal Ordinance. By s. 4 of the Act, a board consisting of nine Commissioners was established for the management, control and administration of the Conservancy, and was constituted a body corporate by the name of ‘The East Demerara Water Conservancy Board’, who are the appellants (defendants) in this appeal. The Board is invested with certain powers as set out in the Act, for example, the power to assess, levy, raise, collect and recover from the Georgetown City Council, local authorities and proprietors, such sums as shall be payable to the Board in pursuance of, and for the performance of its duties under, the Act. Its duties are set out an the Act, but for the purpose of this appeal we are concerned with the duties and responsibilities as set out in s. 16(1) of the Act which reads as follows:
“The Board shall have and be responsible for the control, management and regulation of the Conservancy, and shall, subject to this Act, construct such works and do all such things as may from time to time be necessary for the conservation of the waters of the Conservancy and for the proper distribution, thereof, and shall at all times maintain the Conservancy in good order and condition.”
The Chairman of the Board is given certain powers in emergency where in his opinion serious damage is caused or is likely to be caused to the Conservancy, and the Board has a power under s.13 (1) to employ such persons as may be necessary for the efficient working, of the Conservancy.
Ninety-six plaintiffs (respondents) brought claims against the defendants (appellants) for loss suffered through the flooding of lands in their possession. Their claims were framed under four distinct heads or causes of actions namely, for damage caused by escape of water under the control of the appellants, breach of statutory duty, nuisance and negligence. Some time between 9.30 p.m. and 10 p.m. on the 8 th May, 1968, the dredge operator, Clifton Stewart, employed by the appellants, received a report about a breach in the northern dam of the Conservancy about 70 rods west of where he had operated the dredge that day. The dredge is used for strengthening the dam by moving material from the Conservancy and throwing it up on the dam. He was at the time in a punt-house which was coupled to the dredge and in which he slept. On receiving the report of the breach, Stewart uncoupled the punt-house and travelled in the dredge towards the point of the breach in order to stand by for further orders. This he said was his duty when a breach was reported. The dredge had no engine to propel it and just drifted westward without power towards the area of the breach. One Welcome, who worked with Stewart, walked westward along the dam as the dredge drifted in the same direction with Stewart alone on board. According to Stewart, when the dredge had reached about 3 or 4 rods east of the breach. Welcome made fast the 20-rod stern chain of the dredge to a tree or tree stump which was on the crown of the same dam. At that point of time the stern of the dredge was about 6 rods east of the breach. Before the bow chain could be used the current or force of the water created by the breach in the dam pulled the dredge towards the breach, thereby causing the stern chain to uproot the tree or tree stump to which it was tied, with the result that the bow of the dredge was swept in a slanting position to the western end of the broach. The dredge was 40 feet in length, about 20 feet wide, 5 feet deep, and had a weight of 10 to 12 tons. The breach in the dam was at that point of time about 6 feet wide. The front of the dredge was on the western edge of the breach. This occurred during the night hours of the 8 th May, 1968, and nothing was done to remove the dredge from its position in the breach until the arrival of Mr. Ramsey, the Superintendent of the Conservancy, at about 7.30 a.m. on the 9 th May. Apart from the fact that the dredge had no engine to propel it, it had no lights. Only a lantern taken from the punt-house was in the dredge.
Ramsey said when he reached the breach which was then about 6 feet to 7 feet wide and about 4 feet to 5 feet deep, the greater portion of the dredge was east of the breach and that it was the front of the dredge which entered the western edge of the breach. He said he told Stewart that a cable could be run and tied to a tree in order to get the dredge out, but that before that could be done the portion of the dam on which the dredge was bracing broke away. The breach opened to about 12 feet and the dredge went through landing in the savannah some 12 rods from the dam.
Stewart's account of how the dredge went through the breach differed materially from Ramsey's. His version as that on arrival of Ramsey a 3/4 inch wire rope was tied to a mango tree an the said dam west of the breach, with the help of the engine, to try to get out the dredge. He worked the engine so as to pull the wire rope in order to make the dredge go forward to the tree to which the wire rope was tied. On seeing that this did not help, he stopped the engine and loosed the wire rope from the mango tree after first making fast the stern of the dredge to a tree nearer the breach. The moment the wire rope was released from the mango tree, the dredge burst through the dam and burst the 3/8-inch stern chain which had made fast the stern. The breach in the dam, said Stewart, was then about 8 foot to 10 feet wide when the dredge went through.
It is clear that with the passage of the dredge through the breach, the breach increased suddenly and substantially in size and thereafter continued rapidly to widen as the velocity of the flow of water caused further erosion. The breach was about 50 feet wide by the 10 th May and by the 13 th May it had reached the tremendous size of 60 feet in width from which the out-poring of water flooded the Cane Grove area causing immense damage to the farmers. The respondents have complained that had the sluices been opened promptly thereafter, repairs could have been effected more speedily and much of the flooding might have been avoided. The appellants say that an earlier opening of the sluices would have made no material difference because the reduction in the level of the water in the Conservancy was slight between the time of their opening and the time of the closing of the breach on the 22 nd May, 1968. There is conflict in the evidence as to when the sluices were opened. For the respondents, the evidence tended to show delay in the opening of the sluices, but the appellants contended that by the 10 th May all the sluices were opened. Mr. Wilkins, who came on the scene on the 13 th May when he took over the operations of closing the breach was positive that all the sluices were open from then until the 22 nd May when the breach was closed. He gave uncontradicted evidence that the gauge reading showing the level of the water in the Conservancy on the 8 th May was 57.95; that it was reduced to 56.6 on the 22 nd May, thus showing that the water level went down only 1.35 feet during all the time the breach remained unrepaired. There was, during that same period, 4.54 inches of rainfall. The sluices referred to in the evidence are: one at Lama, one at Madewini, and the new and old sluices at Land of...
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