Oon the eve of the hurricane season, a man has been awarded more than $50 000 against his neighbour after a tree – uprooted in the violent winds of Tropical Storm Matthew in September 2016 – damaged his home.
Seventy-one-year-old Salim Bodhania of No. 24, 10th Avenue Belleville, St Michael, had sued Aiyub Soyab Badat of the adjoining lot No. 22 saying the collapse of the tree was foreseeable and that Badat was aware of the danger posed by the termite-infested mahogany tree.
However, Badat insisted that he should not be held responsible for an act of God in relation to the tree which predated his purchasing of the property. He also challenged the amount Bodhania was claiming, stating his neighbour’s property was already in a state of disrepair.
Earlier last month Justice Bryan L. Weekes resolved the matter in favour of Bodhania after hearing the case
in March and April and ruling that Badat owed a duty of care as a neighbour to behave as a prudent and reasonable owner.
That meant assessing whether there was anything which posed a risk and a large tree located close to his neighbour’s house, said the court, is such a potential hazard “in a country which faces the prospect of tropical storms and hurricanes every year”.
The court heard from Bodhania, who was represented by attorney Sally Comissiong, that he lived in the location for 38 years and the day the 20-foot tree fell he was watching television with his wife, Rashida. No one was injured but the front right side of the wood and plaster house was damaged as the tree from the vacant lot became lodged in it and left an area opened to the elements, Bodhania told the court.
The Roving Response Team was called in to assist and eventually the NATION newspaper was contacted leading to an article as well as photographs appearing in its September 29, 2017 edition.
Bodhania said he received $16 000 from the insurance company and instructed his attorney at that time to write a letter of demand dated February 27, 2017 to which the defendant’s lawyer responded the next month denying liability.
He sued for $54 507.45 in damages which, he said, is the cost of repairs in an estimate from Cee Double Gee Enterprise produced in court.
The repairs were to the patio and living room inclusive of demolition work and removal of debris with the estimate also making provision for a $5 000 contingency based on the age of the house. In that, it was explained that the house was built using the system known as “laughing plaster” and once damaged it had to be replaced, therefore money needed to be available as work could not be halted for any length of time since moisture getting into areas could lead to mould.
Michael Applewhaite, the damage assessor with the Department of Emergency Planning then and who prepared the estimate, said he declined the repair job since the insurance money was too little.
Badat, who was represented by attorney Susanna Thompson, said that he and his wife brought the vacant lot in 2014 and moved to the property in 2021.
On the land that they cleaned every three months were bush and trees, including one about 15 feet tall and three feet wide in good condition.
Nothing said
His landscaper never told him about the tree and he would see the Bodhanias when he visited but nothing was said about the tree.
The defendant recalled the tree being uprooted during Matthew and asking his mother-in-law to contact Mrs Bodhania, which she did, but the woman refused any help. He offered the help because they were from the same community, Badat said.
He told the court that he did not know about trees so he could not say whether the tree was dead and while he knew the hurricane season was between May and November and there could be heavy winds, he could not know a tree would fall. He thought Bodhania’s claim was excessive so he did not make any payment towards it, Badat said.
Justice Weekes stated that the damage was foreseeable and therefore the defence of an act of God could not be applied.
“The passing of tropical depressions, storms and hurricanes is an almost yearly event in the Caribbean. So that the winds associated with a tropical storm cannot fall into the category of an act of God, this defence fails,” he said.
The court also pointed out that while Badat’s claim that the quotation was excessive given the state of Bodhania’s house, he did not provide any assessment.
The award has an interest of six per cent per annum until paid. The sum of $15 126.87 was awarded in costs. (AC)
