the republic of trinidad & tobago in the high...

of 55

THE REPUBLIC OF TRINIDAD & TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2013-0632

Between

AFZAL AZIZ

Claimant

AND

THE WATER AND SEWERAGE AUTHORITY OF TRINIDAD AND TOBAGO

Defendant

BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR

APPEARANCES:

Ms. Linda Green instructed by Mr. R. Taylor for the Claimant

Mr. Robin Otway instructed by Mr. Brent Hallpike for the Defendant

of 55

TABLE OF CONTENTS PAGE

Background 3

Issues of Fact 3

Possible Sources 4

Issues of Law 4

Findings and Conclusion 4

False positives 5

Absence of Aluminium 5

Gray water 6

Pipe past the point of the main connection 7

Conclusion 8

Disposition and Orders 9

Analysis and Reasoning 9

Chronology 9

Evidence of Witnesses 13

Mr. Azad Aziz 13

Mr. Desmond Joseph 16

Mr. Frederick Harris 17

Mr. Bill Ramrattan 21

Mr. Randolph Sankar 25

Mr. Nyvil Marin 28

Mr. Mashach Julien 31

Water – Causation 32

Ms. Satie Siewah 33

Ms. Norla Louisy-Ferreira 36

Mr. Raymond Gittens 38

Ms. Arlene Joseph-Josiah 43

Interpreting the evidence of chlorine levels 46

Findings and Conclusion 51

Absence of Aluminium 51

Gray Water 51

Pipeline past point of the mains connection 54

Conclusion 55

Disposition and Orders 55

of 55

JUDGMENT

Background

1. The claimant claims against the defendant in respect of damage to his property at No. 386

St. Croix Road, Princes Town, (‘the property”). He claims that water, under the control of the

defendant, was permitted to escape over a sufficient period onto his property as a result of which

the land began slipping, causing serious cracks to the structure, and placing his home in

jeopardy.

2. He claims that he detected water from an alleged leak from the defendant’s supply

accumulating in a hole at the northwestern corner of his house. He commissioned tests to analyse

that water and compare it with water from the defendant’s mains. An implicit assumption was

made that the water accumulating at the North West pile was from a source of water causing or

contributing to slippage on the claimant’s property.

3. The defendant denies that any water from its mains or under its control, for which it was

responsible, escaped onto the claimant’s property, and denies that the water that the claimant was

sampling from that hole was from its supply. It contends that it was not therefore responsible for

any slippage of his land.

Issues of fact

4. The primary issues in this case are those of fact, namely:

i. Whether water was the cause of the damage observed on the claimant’s premises;

ii. If so, whether water, then emanating from a supply or source under the defendant’s

control, was the cause of the damage observed on the claimant’s premises.

5. There is evidence of land slipping and structural cracking on the claimant’s property.

There is evidence that it is the effect of water on the soil of the claimant’s property that would,

on a balance of probabilities, give rise to such slipping, and consequential cracking. What is in

dispute is the source of that water.

of 55

Possible sources

6. The possibilities as to the source of that water include:-

a. a natural source, such as

(i) a spring, not under the control of the defendant, or

(ii) runoff from the roadway onto the claimant’s property, or

(iii) rainwater

b. water escaping from a pipe under the control of the defendant, not repaired in time to

prevent its flow onto the soil of the claimant’s property, causing consequent slippage and

damage to the claimant’s structure.

c. water escaping from the pipes or drains under the control of the claimant.

d. water escaping from pipes under the control of a third party.

Issues of law

7. The Claimant contends that on a balance of probabilities the Defendant was:-

i. in breach of its Statutory Duty,

ii. was negligent,

iii. committed a nuisance,

iv. trespassed against the claimant,

v. interfered with the claimant’s use and enjoyment of his property, and

vi. that the principle in Rylands v. Fletcher [1861-73] All ER Rep 1 applies in favour of

the claimant, as does the principle of res ipsa loquitur.

8. Once the source of the water is identified then the issues of law as to whether the cause of

action is based on negligence, nuisance, or the rule in Rylands v Fletcher can then be addressed.

Findings and conclusion

9. The evidence of several witnesses was that the land in the vicinity of the property was

prone to slippage. The evidence of Mr. Ramrattan, which I accept, is that the propensity of the

soil to slip or subside would be triggered or aggravated by the presence of water. The source of

any unusual water, including in particular that which was observed to be pooling at one point on

the claimant’s property, must therefore be considered.

of 55

10. Despite the evidence of chemists, a hydrologist, a structural engineer, a geologist, and

other technical witnesses it has simply not been established, far less proved on a balance of

probabilities, that water escaping in any manner from a source or supply under the control of the

defendant, was the cause of the claimant’s property damage.

11. The presence of chlorine in the water would point to its original source being the

defendant’s supply, and not a completely natural source such as a spring, or runoff from rainfall.

However, the relatively low levels of chlorine in the water tested from the alleged leak

accumulating in a hole on the north western side of the claimant’s property, (the alleged leak

sample), point to either:

a. a false positive reading, affected by the presence of other ions such as those of Iron, or,

b. that water not having escaped directly from the defendant’s main pipes, as minimum levels of

chlorine from the defendant’s pipes are at levels of at least 0.5 ppm – (the minimum level

recommended by the World Health Organisation).

12. The levels of chlorine in the samples collected are significantly lower at 0.11ppm in

December 2011, though a reading of 0.3 ppm was obtained when tested by Analytical on May

23rd 2013.

13. No leaks from the defendant’s mains were detected by the defendant’s agent when these

were tested for on October 12th 2011. The possibility of a leak from the defendant’s mains,

percolating onto the claimant’s property, (permitting the level of free chlorine to have diminished

by the time it collected at the sample site), can therefore be excluded.

False positives

14. Despite the low level chlorine readings from samples from the alleged leak site, water

from a natural source cannot be so easily eliminated, as there is evidence that false positive

results can be obtained with a Hach test for chlorine if certain ions, including those of Iron are

present.

of 55

Absence of Aluminium

15. The further possibility remains that the water accumulating is not even from a WASA

supply as the absence of Aluminium is inconsistent with its originating from a WASA supply. In

this scenario the low levels of chlorine would be accounted for as being a false positive reading

caused by ions, for example from Iron, interfering with the HACH test results.

Gray water

16. On a balance of probabilities, if other sources of that water, (leaking mains, rainfall,

natural spring,) can be excluded on the evidence, the most likely source of the water collecting,

and collected on the claimant’s premises would be “grey water”, that is water which originated

from the defendant’s supply, but, after being utilized by the claimant and passing through his

household systems, pipes or drains, escaped into the soil, most likely via cracked drains. Such

escape into the soil, in addition to accumulating at the North Western pile sample site, could also

cause the observed slipping of land, (shown in close proximity to the cracked drains in the

photographs in evidence), and consequential cracking. According to Mr. Ramrattan, water from

any source could account for this.

17. If the accumulating water, while originating from a WASA supply, is in fact gray water,

its presence at the sample site could be accounted for on the evidence as follows: - Though

originally from a WASA supply, having passed through the household systems of the claimant,

and under his control, it could escape via cracked drains caused by subsidence, and percolate into

the soil, accumulating in the hole dug at the North West pile. In this scenario, the accumulation

of water would be an effect of land slippage, such slippage having caused cracking of drains, not

a symptom of the original cause of the land slippage. This could explain the presence of low

levels of chlorine detected by Harris on his second visit.

18. The Harris sampling and the CARIRI sampling were both conducted in the rainy season.

This scenario may even explain the complete absence of chlorine on the first visit by Harris, if

water from natural sources, most likely rainfall from the claimant’s roof, discharging or escaping

from guttering into drains on the North West side of the house, also escaped into the soil via

those compromised, cracked drains.

of 55

19. It may even explain the absence of aluminium in the second sample taken by Harris in

December 2011, in which chlorine was found at very low levels, if the minimal levels of

aluminium in water originating from a WASA source, (but being discharged as gray water

through compromised drains), were diluted with water from a natural source – rainfall from the

roof, (also discharging or escaping into compromised drains), being diluted beyond the point of

sensitivity of the aluminium detection test.

20. There is evidence that drains were compromised and cracked at the time of the visit of

Mr. Ramrattan. There is therefore evidence that drains were cracked at the date of the CARIRI

sampling at which he was present.

21. There is photographic evidence that drains were cracked in the area of the alleged leak

sample site. There is evidence that rain water from the claimant’s roof discharges via guttering

into drains on the North West side of the house in close proximity to the alleged leak site.

22. The presence of aluminium in the WASA supply, and its absence from the test sample of

the alleged leak supply, has not been addressed or explained by the claimant. The unexplained

absence of aluminium in that alleged leak supply could indicate that it does not emanate from the

defendant’s supply.

23. While there are several parameters also that differ, including the levels of calcium, iron,

chlorides and magnesium, these differences are equally consistent with the water emanating

initially from a WASA supply and being transformed in its passage through or along soil.

However, the absence of aluminium in the alleged leak sample cannot be so explained.

Pipeline past the point of the mains connection

24. The possibility also remains, on the evidence, of a leak from a pipeline past the point of

the connection to the WASA main for which the defendant was not responsible. This is

especially so when the evidence of Mr Joseph is taken into account and the unexplained yet

curious assertions that:-

of 55

a. the water in the middle of his roadway became a “gusher” (approximately 125 feet) along the

length of that roadway, (and therefore at least 125 feet from the WASA mains running along the

main road),

b that his white supply/ service pipe shown in the photographs was a temporary one while he

awaited a permanent blue connection from the defendant.

c. that the defendant disconnected the supply to his house .

25. It is however on the evidence, less likely than other causes that any such leak, even if it

continued unrepaired over the period complained of, could directly cause water to accumulate

on the claimant’s land at the alleged leak sample site on the north western corner of the

claimant’s house.

26. The various scenarios, all consistent with the evidence, demonstrate that the evidence is

simply insufficient to conclusively determine on a balance of probabilities that the water which

accumulated at the North West pile of the claimant’s property, emanated from a supply under the

control of the defendant.

27. This is without even exploring and determining whether that water, or the effect of

naturally occurring water, given the inherent nature of the topography in the vicinity, is the direct

cause of land slippage and subsidence, and the damage to the claimant’s property of which he

complains.

Conclusion

28. Assuming that the water accumulating by the North West pile of the claimant’s property

is an indication of a wider incursion of water onto the claimant’s premises, and further assuming

that that water is the direct cause of land slippage and subsidence and the damage to the

claimant’s property of which he complains, the relationship between the accumulation of that

water and the defendant’s supply has not been established on a balance of probabilities.

29. I find that it has not been established on a balance of probabilities that the water pooling /

collecting on the claimant’s property emanates from the defendant’s supply. The claimant has

of 55

not proved his claim on a balance of probabilities on the evidence and his claim must, in the

circumstances, be dismissed.

Disposition and Orders

30.

(a) The claimant’s claim is dismissed.

(b) I will hear the parties on costs.

Analysis and reasoning

31. I am prepared to assume at this stage, expressly without yet deciding, that if water,

escaping from the pipes under the control of the claimant, from a leak which it failed to repair or

to detect as a result of negligence, was the cause of the observed damage to the claimant’s

property, then the defendant would prima facie be liable for consequential damage.

32. It was agreed in the course of trial that chlorine would not be found in any natural source

of water. I am prepared to assume that the presence of chlorine in water is an indication that that

water had its genesis in a supply from the defendant, if the possibility of a false positive result

for chlorine can be eliminated.

33. That would leave options (b), (c), and (d), set out at paragraph 6 supra, if chlorine were in

fact found in those samples. If the test for chlorine were inconclusive, all 5 possibilities must be

considered. The focus can turn to the evidence of the various experts as to the possible or

probable source of samples of water collected from the claimant’s premises at the alleged leak

sample site.

34. The issue of whether the water collecting in the hole from which samples were taken was

the effect of damage to the claimant’s drains caused by subsidence, (whether resulting naturally

or otherwise), or whether it was related to water and came from the same source as water which

caused the subsidence, is deferred for the time being.

of 55

Chronology

35. In the Witness Statement of Afzal Aziz filed 9th October 2013 he states, (all emphasis

added), at paragraph (4) that “constructed my family’s home on this property sometime in or

about 1996.

36. He continues at paragraph (8):“My home is situated atop a hill with the front portion,

that is; the Eastern side, directly abutting the St. Croix Main Road........”

37. At paragraph (9): -“My family and I had been living comfortably in our home up until

January 2010 when l noticed the walkway on the western side of my house shifting...... l began

construction of a concrete platform on the Western side of the house (back) to stabilize the area

(auger piling, mats, and ground beams). Between April 2010 - September 2010 l observed the

shifting becoming more pronounced..... I did carry out ‘mortar’ repairs to fill in the open spaces

that appeared as they appeared. I further observed that my land was becoming water logged and

the soil where my fruit trees were on the western side was quite soggy.”

38. At paragraph (10) he states: “I began seeing cracks appearing on the walls of my

house.......and in a relatively very short space of time the cracks became more conspicuous and

more severe, such that it looked to me, like the house was in danger of falling.”

39. Paragraph (12): -“In or about late August 2010, l (for the first time) then observed that

there was water actually flowing from the St. Croix Main Road onto my property.”

40. This is the first time that he refers to water as a suspected cause of land slippage. He

does not identify this first time observation as from a WASA source.

41. Paragraph (13): - “Sometime in or about September, 2010, I recognised that there was a

continuous flow of water on the Western side of the St. Croix Main Road, near light pole 74,

which I observed was flowing down to the northern side of my neighbour’s property, that is;

No. 382 St Croix Road. It was then that I began to suspect that there must have been a

continuous leak from the Defendant’s water mains. I reported this continuous leak to the

of 55

(Defendant), that is; Water and Sewerage Authority, telling them that there was a

broken/leaking water main on St. Croix Road…. which was seeping unto my land and causing

severe damage. I believed (because of what I observed) that this broken/leaking water main was

causing water to seep unto my property.”

42. This alleged flow was on to his neighbour’s property. He inferred from that alleged flow

that there was a “broken/leaking water main” on the St Croix Road, which was affecting his

neighbour’s property and further inferred that the same or a similar leak was affecting his own

property.

43. At paragraph (14): “Sometime in or about October 2010 the Defendant’s employees came

and did work, but the water leak persisted. Several calls were made to the Defendant to report

that the leak was not repaired and the Defendants agents came and repaired the said leak.

During this period the shifting of my property did not stop but slowed considerably.”

44. Paragraph (15): “Sometime in or about 8th

April 2011 I observed a new leak which I

reported to the Defendant’s officials. This time this leak was off the St. Croix Main Road on the

northern side of my property on the side road leading to the property known as 382 St. Croix

Road. The Defendant disconnected the supply of water going to the said property at No. 382 St.

Croix Road. Several reports were made to the Defendants officials who eventually told me that

the water doing the damage (by that time) to both properties (Nos. 386 and 382) was not

emanating from the Defendant’s transmission lines.”

45. Paragraph (25):-“On 25th July 2011and again on 8th August 2011, 5th and 7th

September 2011 l reported to WASA the continuous water leak off the Northern side of the side

road (near light pole) leading down to house No. 382 (North side of house No.386 St. Croix

Road Princes Town). WASA visited and stated that the leak at the top of roadway was repaired

and that water running continuously on the Northern side of the side road (near light pole)

leading down to house No. 382 (North side of house No.386 St Croix Road Princes Town) was

not emanating from WASA’s line.......”

of 55

46. Paragraph (33) of his Witness Statement: -“Sometime in or about 16th

January 2013, one

Dr. Lee Young visited my property and introduced himself as a person commissioned by the

Defendant Authority to conduct soil samples and other tests from my property with a view to

having the matter resolved.......”

47. He agreed that when the defendant’s leakage inspector, Mr. Nyvil Marin visited the

property on 11th and 12

th October, 2011, he dug in front of his house and there were no wet spots.

48. Photographs tendered in evidence show pipes discharging, quite near to the hole where

the water was seen pooling, into an open and shallow concrete drain, directly in the vicinity of

the slippage (page 393 of the trial bundle). They also show very cracked drains at the alleged

leak sample site (page 385 trial bundle).

49. He accepted that the WASA main in the road, to the front of the claimant’s property is

about 50 to 60 feet from the point where the water pooled.

50. The claimant admitted that a ravine existed about 300 feet from his house at the bottom

of the slope on which it is located, in which water would flow at times when the rain was very

heavy.

51. He accepted that many of the properties along the St. Croix Road were affected by

landslip, and that some houses have collapsed, one situated about 100 metres from his property.

He also agreed that parts of the roadway had given way. He also accepted that the Ministry of

Works had built retaining walls and that he sought assistance from that Ministry shortly after his

home was built to ensure the water was drained away from it, though he claimed that would have

been to deal with water from the road, not leaks. This response accepts the possibility that water

from the road was considered a potential issue.

52. This evidence as to the source of the alleged leak, or any leak, being the defendant’s

supply is vague at best. It is based on his starting assumption that that is the case. It may be noted

of 55

that the damage that the claimant first observed was not related to an observable or observed

leak.

53. The evidence is therefore equivocal, being consistent with either:-

i. damage to his property by land slippage not caused by water.

ii. damage to his property by land slippage in turn caused by water, though not caused by

water leaking from a supply under the control of the defendant, or

iii. damage to his property by land slippage, in turn caused by water leaking from the

defendant’s supply, which leak was not detected or fully repaired.

54. After the evidence of Mr. Ramrattan it is clear that the subsidence of the soil on the

claimant’s property could have been caused by water which increased its weight and lubricated

its particles, and caused it to slip under the influence of gravity. The evidence therefore needs to

be considered with the second and third alternatives kept in focus.

55. On a balance of probabilities the ultimate cause of the damage to the claimant’s house

was subsidence of the soil/land caused by water. The source of that water remains a key issue.

(The defendant denies that it was water under its control that was leaking onto the claimant’s

property, or causing the damage that he was observing).

Evidence of claimant’s witnesses

Azard Aziz

56. The claimant’s son Azard Aziz testified. He was commendably forthright in his evidence,

yet careful to be as accurate as possible, notwithstanding that he was testifying about significant

damage being caused to the house in which he lived. I find him to have been a straightforward

and honest witness. When was asked about the guttering around the roof of his home he said that

some of the down spouts would come out at both the north-western and north sides of the house.

57. As to the lines which run water out of the house he confirmed that they come out on the

north western side of house. He confirmed that the ravine was about 15 to 20 feet from the

western boundary of his father’s property going lower down the slope.

of 55

Desmond Joseph

58. In the Witness Statement of Desmond Christopher Joseph filed 9th

October 2013 he states

at paragraph (1): - “I am the… owner of the property situated at No. 382 St. Croix Road, Princes

Town. I have been living at this address for the past two years ....”

59. At paragraph (3): “I am the neighbour of the Claimant whose home is situated at the top

of the hill which abuts St. Croix Road. My home is situated at the bottom of the said hill, and on

the north western side of the Claimant’s home......”

60. Paragraph (4) of that Witness Statement: - “......to gain vehicular access and egress to my

property I had to construct a road approximately 250 feet in length and 33 feet in width from

the St. Croix Main Road (hereinafter called ‘the access road’)........The land is laid out at a

somewhat steep gradient and my home is at the lower end of this gradient. Construction of the

said roadway began sometime in or about June 2011 when the road building contractor brought

certain issues to my attention. I observed that there was a continuous flow of water trickling

down from the northern side of the said access road from the main road and accumulating at

various points on the access road. At that point there was no indication as to the source of the

water present on the access road which only showed while grading was being done.”

61. So in or around June 2011 while water was observed there was no indication of its

source.

62. At paragraph (5): “Sometime in or about August 2011 when the access road was

completed I observed that the water had not abated and even though it was a steady trickle, it

began to slowly erode the access road in quite a short space of time as water then began to

percolate from beneath the surface of the newly constructed access road in a number of places

and had later become more than a trickle. The road would be wet on mornings from about the

centre point of the downward slope to the bottom of the road. As the day progressed, if there

was sunshine, it would dry off most of the wet spots on the road.

of 55

63. Paragraph (6): “I began to do daily inspections and examination of the access road to

ascertain where the water was coming from. It was on one of my inspections (he does not state

when) that I observed for the first time that the soil at the western end (of the neighbouring

property which is owned by the Claimant was water logged and quite soggy. I would even

describe it as swampy......”

64. Paragraph (7) of that Witness Statement: “After my observations on the Claimant’s

property, I had a conversation with the Claimant and we both reported this situation to the

Defendant, that there is a continuous flow of water from a broken main seeping onto the

properties and causing damage. This was sometime in or about October 2011.

65. There is no reason provided as to why they believed that the source was a “broken main”

other than an assumption that it was.

66. At Paragraph (8) “In the said month of October 2011, I decided that I must take some

remedial action in order to save the access road. I invested a further $18,000.00 on those

repairs which was done to portions of the access road. The wet spots were excavated, filled with

boulders, crusher run, then heavy rolled oiI sand and then pitched and rolled again. This fix did

not last long. By November 2011 I was again forced to repair the access road in different spots.

Again by December I again had to repair as the roadway was now almost impassable. At this

time the leak was now a gusher in the middle of the length of the access road. The Defendant

was called and came and did repairs and the gushing stopped, but the continuous leak did not

stop.........”

67. The evidence is that the WASA main was along the main road, not the access road. As

the access road was 250 feet in length, the middle of that length would be around 125 feet from

the main road.

68. Mr. Joseph conceded that he installed above ground a white service pipeline shown in

some of the photographs tendered in evidence, intended to be temporary until he received a

of 55

permanent blue service connection. Mr. Joseph’s own evidence suggests that the alleged leak,

which manifested midway along his side road, did not come from a WASA main.

69. In summary Desmond Joseph’s evidence was as follows:-

His home is at the bottom of a hill. The claimant’s house is at the top of that hill. To get access to

his house he had to construct a road from St. Croix Road – the main road – to his house. His

property is to the northwest of the claimant’s house. In the course of constructing his road -

around June 2011 he began to observe the flow of water trickling down to the northern side of

the access road from the main road, and accumulating at various points along it. This continued

in August 2011 after the roadway was completed. He observed that the flow of water had not

abated and the steady trickle of water undermined and eroded his roadway. If there was sunshine

it would dry off most of the wet spots on the road.

70. He subsequently observed that the western end of the claimant’s property was soggy,

waterlogged and swampy. When he observed this he spoke to the claimant and they both

reported to the defendant – in October 2011 that there was seepage of water onto their

properties.

71. They believed this to be from a broken WASA main. In October 2011 he observed damage

to the walkway of the claimant’s house and observed cracks there which were widening. By

October 2011 he had to effect repairs to the roadway, and as these did not last long he had to

effect repairs again in November and again in December 2011.

72. He claims that by this time, December 2011, the leak had become a gusher in the middle of

the length of the access road. The reason why 3 sets of expensive repairs – costing in excess of

$40,000.00 - would be carried out if this witness believed the damage to be caused by a leak,

when that leak had not yet been repaired, is unexplained.

73. The presence of a gusher – whatever that may be exactly - in the middle of an access

roadway, 125 feet away from the claimant’s mains, (which run along the main road), is also not

adequately explained. It may be inferred that what this witness means but does not say, is that

of 55

there was seepage emanating from the mains of the defendant which, flowing from a leak in the

main, and possibly trickling through the soil, emerged at a lower point somewhere along the

length of the access road. It is assumed that this is what is meant to be conveyed.

74. The defendant allegedly did repairs at this point and the gushing stopped, but not the

trickling. He does not say where these repairs were done, or if they were done to the defendant’s

mains. What he does say is that in 2012 the defendant cut off the supply to his house. The road

was eventually rendered unusable by the effects of that water.

75. The possibility remains, on the evidence, of a leak from a pipeline past the point of the

connection to the WASA main for which the defendant was not responsible. This is especially so

when the evidence of Mr Joseph is taken into account including:-

a. that the water in the middle of his access roadway became a “gusher” (approximately 125 feet)

along the length of that roadway, (and therefore from the WASA main running along the main

road) ,

b. that his white supply/ service pipe shown in the photographs was a temporary one while he

awaited a permanent blue connection from the defendant, and that the defendant disconnected

the supply to his house in 2012.

c. that, (though the accumulation of water at the claimant’s North West pile appeared to have

abated by January 2013), he still sees moisture on his land though he cannot say from where it

emanates.

Mr. Frederick Harris

76. Mr Harris was sent by the defendant to collect samples of water from the claimant’s

property for testing. His evidence from his witness statement is as follows:

Paragraph 4:- I visited the property of the claimant for the first time on the 11th

November 2011

after receiving a report about 2 days prior to that from WASA’s South Regional Office which had

received a complaint of water leakage at the claimant’s property situated at 386 St. Croix Road,

Princestown (“the claimant’s property”). When I arrived at the claimant’s property I met with

Mr. Afzal Aziz who showed me water in a hole in the ground. He also pointed out the water on

the surface of the vacant property next to his property on the same side of the main road as his

of 55

property, to the north of it. The water on the vacant lot was a slow flow on the surface of the

land into a drain alongside the road. This could have been caused by a high water table as this

was in the rainy season. He then showed me the WASA supply on his property, namely a yard tap

on the southern side of his home. He wanted me to take a sample from the tank supply on the

claimant’s property but I refused as this would not represent water from any WASA supply. I

took a water sample, 500ml from the said hole which was about 3 feet deep, which had been dug

prior to my visit presumably by the owner of the premises, in the ground on the claimant’s

property on the north-western side, immediately adjacent to the north side of the claimant’s

house, about 40 to 50 feet away from the WASA supply or main, and about 40 feet away from

the line run by the claimant to connect the main to his house, for which he and not WASA is

responsible for its condition and upkeep. When I took the sample from the hole in the ground I

did not notice the hole filling back up with any water which suggested to me that there was not

any real problem with a leak. I did a residual chlorine test of this sample on site in which the

result established the presence in that sample of NIL parts per million (“ppm”) of residual free

chlorine. I also did a residual free chlorine test on the southern side of the house from a WASA

supply, namely a yard tap which revealed a result of 1.2ppm residual free chlorine which is a

normal reading for a WASA supply. Whilst there I also took samples, 500ml, from the hole in the

ground and from the WASA supply to be tested at the WASA laboratory.

6. I again visited the claimant’s property on the 9th

December 2011 after receiving a second

report about 2 days prior to that from WASA’s South Regional Office which had received

another complaint of water leakage at the claimant’s property. I again took a water sample,

500ml, from a hole about 3 feet deep, which had been dug prior to my visit which I again assume

was done by the owner of the premises, in the ground on the claimant’s property on the north-

western side, immediately adjacent to the north side of the claimant’s house, the same position

from which I took a sample on 11th

November 2011. I again did a residual free chlorine test of

this sample on site in which the result established the presence in that sample of 0.1 parts per

million (“ppm”) of residual free chlorine. This is a very insignificant amount and could have

been the caused by the presence of minerals such as, iron, manganese and chromium in the

water. I also did again a residual free chlorine test on the southern side of the house from a

WASA supply, namely the same yard tap as on 11th

November 2011 which revealed a result of

0.6ppm residual free chlorine which is a normal reading for a WASA supply. In order to do the

of 55

test I used a DPD (Diphylene Phenylene Diamine) indicator where a reagent which comes in a

powder pillow (packet) 2cm by 2cm by 42mm is added to the sample wherein a reddish colour is

formed as a result of chlorine which is then colorimetrically determined. Whilst there I also took

2 samples, 500ml each, from the hole in the ground and from the WASA supply to be tested at the

WASA laboratory.

7. On my both visits I also walked around the area to investigate if there were any visible leaks

from the WASA mains or any leaks from neighbouring properties and I did not notice any leaks

or water flowing onto the claimant’s land. I checked to see if there were any broken drains but

did not find any. I noticed from walking around the claimant’s property that besides water in the

hole in the ground from which I took samples as above-mentioned there was water visible at the

back property on the western side. The claimant’s land looked like the soil had shifted as there

were clear signs of earth movements, including cracks. This was also observed on the said

vacant property next to the claimant’s property on the northern side. The same can be said about

the access road between the claimant’s property and the said vacant property for about 200 feet

which also had shifted and numerous small cracks appeared in the road.

77. He testified that he saw water flowing next to the claimant’s property. He did not take a

sample of that water. He could not identify the source of that leak. His instructions were to test

the water that he found on the claimant’s land in the hole that the claimant had dug.

78. It was submitted that Mr. Harris did not think it important to test the water he saw coming

from an active leak on the property on which he came to investigate a leak. That however is not

his evidence. He did not observe an “active leak”, far less a “leak on the premises” of the

claimant.

79. He observed a slow flow of water on the surface of the vacant property next to the

claimant’s property, and he was not in a position to identify the source of that flow. To speak of

these two as being identical is to misread the evidence.

of 55

80. To assume that its source was a leak from the defendant’s supply is also to

misunderstand his evidence. A test of this water would of course have been helpful. A test as to

whether it contained chlorine would have gone a long way to ascertaining whether its source was

rainfall, or a leak from the defendant’s supply, although the other possibility is that it was a leak

from a pipeline past the point of the connection to the WASA main for which the defendant was

not responsible.

81. Mr. Harris did not perform such a test on this water. He had come to test water that was

collecting on the claimant’s premises and that is what he did. To infer, from the absence of

testing by Mr. Harris, of this separate water observed adjacent to his property, is to seek to

compensate for an absence of necessary positive evidence that:-

a. the source of the flow adjacent to the claimant’s property, and

b. the accumulation of water in the hole on his property,

was the same.

It also fails to establish any link between either of these and the defendant’s supply.

82. The claimant suggested that “Mr. Harris’ process for taking samples seem to be at odds with

recognised testing methods. He testified that he dipped out the samples with a “sanitary” cup he

got from the Claimant. He did not indicate in his explanation about his procedure that anything

was done or not done to determine that this receptacle was properly sterilized so as to avoid

contamination of the sample.” He did say though that the bottle he poured the sample into

was a “specially designed bottle” (for water sampling).

83. This is a misunderstanding of the evidence, the effect of which is as follows:-

All the experts agreed that the preferred place of testing for chlorine, given its highly reactive

nature, was on site before it had time to oxidize, react, or dissipate. According to Mr. Gittens the

need for sterilization – in an autoclave - applied only to glass containers for samples that were to

be taken for bacteriological analysis. The samples taken were for chemical analysis. Their

bacteriological content was not relevant, and the need to avoid biological contamination did not

apply in this case

of 55

84. Mr. Harris cannot therefore be faulted if he did not say he used, or even if he did not

actually use, non sterilized receptacles to extract the sample that he was chemically testing on

site for chlorine. It is clear that the sample from the hole by the NW piling had to be extracted

somehow in order to be placed into the sample bottle, in order to be tested. There is no

suggestion that the sample bottle, into which the sample was placed by Harris, (prior to being

tested by adding the reagent and using the colorimeter), was deficient in any way, or that his

methodology was fatally flawed as to render unreliable his reading for free chlorine so obtained

on site.

85. It was submitted that as Mr. Harris added distilled water to his sample which he collected

in less than sterile conditions as is prescribed his findings would be skewed. The suggestion, that

because he added “distilled water” to top up his sample, or because he used a sanitary cup to

extract the sample, his methodology was flawed, and cannot stand up to scrutiny. There is no

evidence that the alternative of extracting the sample with a clean beaker as opposed to dipping it

out with a Styrofoam cup would have produced a different result, or if so, the extent of such

difference. Norla Ferreira was asked this specifically but her answer was not helpful. It is not

open to the court to read into the evidence and speculate as to whether the walls of the cup in the

brief period between when the water was extracted from the hole and then placed in the sample

bottle could have had a sufficient chlorine demand to reduce the effective reading for free

chlorine when the HACH reagent was applied, especially as he tested on 2 occasions, and on the

second occasion his reading was comparable to the reading by CARIRI, the claimant’s expert,

two days later.

Evidence of Mr. Ramrattan

86. He is a Civil Engineer with 39 years experience. He is an expert witness and accepted as

such. (In fact I am satisfied that all of the expert witnesses did endeavour to bring their individual

expertise to bear on the issues before the court. Of course each had his own opinion and to some

extent, biases. Despite urgings by counsel on both sides to disregard or minimise the weight of

particular witnesses, I find that any biases evident in the opinions expressed were not to the

extent that the professional integrity of any witness can be impugned. It is for the court to assess

of 55

carefully the methodology and the soundness in logic of the conclusion expressed by each expert

witness within his area of expertise and accord it the appropriate weight).

87. Mr. Ramrattan was cross examined on the issue of a retaining wall on the property of the

Claimant. The contention of the Defendant that the Claimant should have put a retaining wall on

his property to stabilize his property carries the matter no further. The evidence is that there was

a retaining structure for the original part of the building. There was an addition subsequently but

whether that addition had an adequate foundation is not known one way or the other. The

evidence of Mr. Ramrattan in effect was that he could not tell without having interviewed the

builder, but he assumed that that addition would have had its own support, and would not have

increased the load on the soil. The onus of establishing that the foundation for the addition was

not adequate would have been on the defendant. While it was not for the claimant to rebut every

possible theory as to why his house was sustaining damage, the onus was on him to prove that

the cause was attributable to the defendant’s water.

88. In the witness statement of Bill Ramrattan at paragraph (2) he states that he is a graduate

of the University of the West Indies St. Augustine, (UWI) since1974 with an Upper Second Class

Honours in Civil Engineering. My practice for the past thirty nine (39) years has been in

Foundation Analysis and Design; Buildings, General Civil Engineering and Project

Management. This practice has afforded me a reasonable understanding of the behaviour of

the soil mechanics of soil types in Trinidad and Tobago upon which structures are to be

built.”

89. Paragraph (4): “I was commissioned by the Claimant to conduct an investigation of his

property known as and situate at No. 386 St. Croix Road, Princess Town I attended this property

for those purposes on 13th December 2011. I conducted an investigation to determine the cause

of the movement of the land which was in turn causing movement of the house thereon.”

Paragraph (7):- “Movement in the land came as a result of excessive moisture or a drastic

change in the moisture content below the structure.”

At paragraph (9): - “The soil profile of this area shows that it is The Nariva Clay which is highly

expansive and highly fissured. During the dry season these soils shrink and large cracks appear

of 55

at the surface together with the highly fissured nature of the soil will allow water in the rainy

season or from whatever other source to enter these cracks and reduce the shear strength of

these soils.”

90. It is clear from the evidence of Mr. Ramrattan that water could lead to the damage

complained of by the Claimant. Water from whatever source enters cracks in the soil. The

saturated soil becomes heavier. It may then overcome friction and slide/ subside. The key point

in this mechanism is that the water which is the initial triggering event for a landslide may come

from any source. Water in the soil could therefore percolate through cracks, leading to

lubrication of the soil and slipping.

91. Mr. Ramrattan accepted that the St. Croix Road area, generally, is prone to subsidence

with landslips, with homes there being affected by subsidence and landslips. The claimant’s

home was built upon a slope. It ends with a ravine at the bottom. This ravine is a seasonal

watercourse. Though the presence of a seasonal watercourse in a valley/ ravine at the bottom of

the claimant’s land may be noted, Mr. Ramrattan’s opinion was weighted in favour of

suggesting:-

i. that the age of the claimant’s house suggested that his foundation was adequate,

ii. that the construction of an addition would not have placed extra loading on the soil as he

assumed it would have had its own foundation, and any additional weight/ load would be

transmitted through the soil.

iii. that the slope was at a gradient of 1 in 9, shallower than the one in 4 gradient up to which the

soil of that type would be stable and at rest.

iv. that the presence of the seasonal water course appeared not to have impacted his opinion as to

the possible cause of the slippage at the claimant’s property, as water would travel downwards

through the soil and drain/percolate slowly.

He did not therefore embrace the suggestion that the presence of the water course at the bottom

of the claimant’s property was somehow a contributing factor to the slippage above it.

of 55

92. The evidence, particularly that of Mr. Ramrattan, establishes that the presence of water in

the soil is on a balance of probabilities, likely to lead to its increased weight and to its reduced

shear strength, making it more likely to slip or subside, and causing structures on it to also slip.

93. The mechanism that he describes for this, given the soil type in the vicinity, is plausible

and is accepted. That mechanism would permit slippage to be caused by any form of water,

although if water, additional to that introduced by natural sources, primarily rainfall, was proved

to be emanating accidentally and in an uncontrolled manner, from a supply under the control of

the defendant, that would be a significant matter.

94. However Mr. Ramrattan accepted that at the time of his visit he saw compromised drains,

and that water from those drains could have entered the soil, continued along the drain, or

remained in the area where the drain was cracked.

95. While he was quick to point out that the root of the landslide was above the point of the

drains, this evidence was suggestive of the collection of water being the effect of land slippage,

rather than the cause. That is, land slippage – from whatever cause, having compromised the

drainage and caused cracks, the drains were no longer performing their function of permitting all

water in them to be carried away from the house, but instead permitting some to escape into the

soil. This mechanism could explain the presence of gray water in the hole at the north west pile

of the claimant’s premises, that is water which, though originally from a WASA supply, passed

through the claimant’s pipes and, after being used, for example, for washing, passed down his

compromised drainage systems.

96. It could also account for the very curious fact that Mr. Harris did not detect Chlorine on his

test on his first visit to the premises on November 11th 2011, yet did detect low levels of

chlorine on his second visit on December 9th 2011. If water from compromised drains was

accumulating at the north west pile after trickling through the soil, that water could have been

from rainfall or from gray water, or both, with the relative ratios varying depending on rainfall

and house usage, and water tank usage.

of 55

97. Given that it is for the claimant to prove on a balance of probabilities, that the

accumulating water was from a leak, the source of which was under the control of the defendant,

the significance of the fact that the drains were cracked and compromised at the time of Mr.

Ramrattan’s visit cannot be ignored.

98. One of the photographs clearly shows a down pipe leading to a shallow drain. Mr.

Ramrattan accepted that during times of heavy rainfall that drain may not have been adequate but

questioned how often would there be such heavy rainfall. This answer ignores his own earlier

evidence however, that water percolating into the soil made it heavier. The house was on a slope.

His own advice was that persons in that area should build “to support the road,” which he

eventually explained as meaning to ensure that the house was level with the road and the area

between it and the road kept covered so as to minimise the chance of water entering the soil

between the house and the road causing landslips.

99. He made it clear that water was the cause of landslips. Therefore in houses on slopes on

that type of soil, drainage was critical. To have any point where rainwater could be allowed to

overflow from inadequate drains causing water to enter the soil and make it heavier, was

therefore to increase the risk of land slippage. The shallowness of the drain in that photograph

could not therefore, even on his own evidence, be so lightly dismissed, as that and similar points

of weakness in drainage would contribute to land slippage. Land slippage in turn could lead to

compromised drains, and a vicious cycle of water percolating into soil, making it heavier,

overcoming its shear strength, and furthering the slippage, further compromising the drains.

100. The evidence of Mr Ramrattan makes it clear that while the cause of landslips may in

most cases be water, whether water found at the north west pile of the claimant’s house after the

drainage had been compromised, (however that initial compromise had occurred,) was the cause

of the slippage or the result of land slippage, was not a straightforward one.

Mr. Randolph Sankar (Senior Hydrologist / Hydro Geologist)

101. Mr Sankar testified as an expert called by the defendant.

of 55

At Paragraph (4): …I therefore carried out a field investigation on 18th

September 2013 to obtain

available information and determine in greater detail the local hydrology and hydrogeology,

with the aim of identifying the ground and surface water resources of the area and its impact, if

any, on the claimant’s property. During that field investigation, which lasted about an hour and

a half I made observations of the claimant’s property from the adjacent roadway, as I stood on

the boundary line of the claimant’s property and I also went onto the neighbouring property

immediately across that road and I saw no sign of any water collecting in the area of either of

these 2 properties then. That day was dry. I saw no sign of the leakage or escape of any water

from any WASA main, fixture, connection or pipe.”

Paragraph (6): “This assessment (hydrological and hydrogeological) identified that the

claimant’s property lies in an area where there is limited or no groundwater resources...A water

table can exist in this area in the topsoil which lies above the clay sub-soil. This topsoil varies

in depth and can be anywhere between about 5 to 15 feet. The depth of the topsoil could not be

determined in this area during that field investigation.”

Paragraph (7): -

(a) The property lies on a steep ridge, with the front of the property along the main road,

sloping down a distance of about 68 metres to the back or western boundary, with a change in

elevation or drop from the front of the property to the western or back boundary being some 18

metres;

(b) During a rainfall event surface water would run off in both an easterly and westerly

direction from the top of the ridge into small ravines at the bottom of the ridge which is

approximately 260 metres downslope from the road;

(c) These ravines only sustain flows in the rainy season and dry up in the dry season;

(d) …

of 55

(e) On the day of the said visit antecedent conditions and those existing at the time of that

field investigation were dry and no seepage of water from the soil was seen in or around the

claimant’s property;

(f) Due to the steep gradient and the soil type, the area is highly susceptible to land

slippages which are quite evident at several locations,…

(This is however outside of his expertise.)

(g) There was no evidence of any spring in the area but… ( the rest is hearsay)

130. He expresses a guarded opinion at paragraph (8): -“I am not an expert in land slippage or

movement but in my opinion… (the rest of that sentence must be disregarded as he again goes on

to express an opinion on a matter outside of his expertise). No retaining walls were seen in or

around the claimant’s property. ..

131. Paragraph (10): -“Groundwater storage and movement is confined to the soil layer only

in this area and not the underlying clays, which act as a barrier. This storage and movement

only occurs during and after periods of rainfall. After a rainfall event, water that infiltrated

the soil will drain slowly and antecedent conditions will be restored over a longer period as

compared to a soil that is composed of sand or gravel. There will be noticeable locations from

the top to the bottom of the ridge where the groundwater will seep to the surface and flow as

surface water after periods of rainfall.”

132. However none of these noticeable locations appear to have been noticed or observed by

him. He could not say that. He did not observe any of these locations where groundwater would

seep to the surface and flow as surface water. Nor could he say that there would be an

emanation of water at any point as he did not know the depth of the topsoil at any point in the

vicinity, or the depth of the water table, if any. Much of this opinion evidence was generalized or

simply speculation. The attempt to suggest that the source of water could have been a seasonal

(rainy season) event caused by the water table having risen after rainfall has not been established

on evidence as generalized as this.

of 55

133. However his evidence was clarified after cross examination. His expertise was related to

drainage and the flow of water. In this regard his evidence was:-

a. water after rainfall would flow off the main road to the east and to the west,

b. he noticed relatively deep rills in the soil to the east of the main road which suggested heavy

runoff from the road .

c. while he did not observe this, the nature of the permeable soil layer, with its impermeable

underlying clay, meant that water percolating/trickling through the soil could emerge at the

surface, if the clay layer was at the surface at any point, as the clay acted as a barrier to

downward ,or any, water movement. This emergence of water would not be confined to periods

of active rainfall, as the soil would act as a reservoir.

134. His evidence explained a theoretical mechanism for the occasional emergence of natural

water where the soil layer was thin, or had become thinner by removal, and the clay layer was

close to the surface, or exposed.

Nyvil Marin

135. In the Witness Statement of Nyvil Marin filed 9th

October 2013 at paragraph

Paragraph (3) he states his duties as “as Leakage Inspector involved in leak detection……

Mr. Marin states at paragraph (4): “On or about 10th

October 2011 my Network Supervisor

South, Mr. Marlon Daniel, informed me that I would need to report to 386 Croix Road, Princes

Town to perform a leak investigation with Mr. Bertram Ramsundar, System Supervisor. When I

arrived outside the property of the claimant on the 11th

October 2011 I did a visual inspection

and I did not observe any signs of the escape or leakage of water anywhere........”

Mr. Marin states at paragraph (5): “On the 12th

October 2011 I did a leak detection test of the

WASA main water supply and service connections around the property. The 2 methods used to

test to see if there is any leak from a WASA main involved the use of an aquascope and then a

leak noise correlator. With the aquascope, which is a listening device used to detect noises

created by leaks, I tried to find the sound of any leak by using a microphone and headphones on

the roadway above the WASA mains located on St. Croix Road by checking every 2 feet for the

of 55

entire length first of the WASA main over a total distance of 253.28 feet but no leaks were

detected with this method. The aquascope can detect a leak in the water supply main up to 12

feet in depth. Each of the mains in question was about 6 feet deep located below St. Croix

Road.”

136. Mr. Marin continues at paragraph (6): “In order to use the leak noise correlator,...the

systems crew dug in my presence 6 excavations at 15 foot intervals each to a depth of about 6

feet, where we came into contact with the main, over a distance of 126.64 feet, first along the

main running along the eastern boundary of the claimant’s property, at its closest being about 3

feet from that boundary and 12 feet from the house, and then I did the same over the very same

distance along the main running on the other side of the same roadway, where the main is about

20 feet from the claimant’s boundary. The leak noise correlator has 3 parts, 2 radio transmitters

and a display. Radio frequencies are sent from one transmitter to another and the results are

displayed on a graph. If there is a leak more than one spike touching the top of the graph would

occur. However, the spikes shown on the graph (the tallest of which is just over half of its

height), in respect of the excavations and soundings done on that date by me on the main closer

to the claimant’s property indicate only the noise from the flow of the water in the main and do

not show that there was any leak at any point tested along the 2 said mains and thus

confirming the previous finding with the aquascope....”

At paragraph (7) - as follows: “In my said report the findings were normal at the WASA water

supply with the mains pressure being between 22 psi and 30 psi. The leak detection exercise was

carried out in front of the property at its the eastern side about 3 feet therefrom and no leaks

were found on the main and at the service connections, or pipes, located about 6 feet away from

the house. I also checked 2 other service connections opposite the claimant’s property across the

road on the eastern side of the property. I did not detect any leaks from either of the 2 service

connections. In order to determine if there were any leaks at these 2 service connections I used

the aquascope as the connections were above the ground..........”

of 55

137. Mr. Marin states at paragraph (8): “Whilst there I did not notice any surface water or

that the area around the house was water logged. The soil appeared dry and there was no sign

of any water or leak on the property.”

138. He produced one of the noise correlator graphs for the 6 inch main. The evidence is that

this was the closer of the two mains which ran along the main road in front of the claimant’s

property.

139. Although all the graph results of the leak noise correlation test were not exhibited, his

explanation for that is accepted. Moreover he did produce his report. That report summarised the

results of his leak detection exercise, which, according to his report, was not contradicted by the

graphs. These are referred to as being annexed, though they are not exhibited.

140. I am satisfied that non production of all of the graphs was not deliberate or an attempt to

conceal any material information. The graphs themselves were useful only in so far as they

completed the source material for the report.

141. One of the tests that he carried out was for the detection of leaks by sound. This was a

critical exercise. He was not provided with the location of the bell joints, but that information

was not necessary based on what he was testing for. His role on that day was to detect leaks if

present, wherever they were, not to assume that there may have been leaks at the bell joints and

to pay particular attention to those areas.

142. The methodology of the exercise that he was conducting simply did not depend on having

knowledge of where the bell joints in particular were. The submission in effect that it did and

that absence of such knowledge by him somehow led to a flaw in his methodology and therefore

renders his findings suspect is therefore without foundation.

143. Furthermore he tested using two methods, an aquascope and then a leak noise correlator.

Each corroborated the other’s finding that there were no leaks on October 12th 2011.

of 55

144. In the final analysis the court had to be convinced that the report represented accurate

findings, based on work that was actually performed, and that was suitable for detection of leaks

as claimed. Having heard the evidence of the witness and his responses in cross examination the

court was so satisfied, both as to the content of the report and the veracity of his testimony. Even

though employed at the Defendant, his testimony, like all the expert or technical witnesses in this

matter, was balanced and not skewed in favour of any party.

145. I accept his evidence that on October 12th

2011 the extensive exercise that he conducted

for the detection of hidden leaks proved negative, that he obtained the results that he recorded in

his report, and that he interpreted them accurately. There is no basis on the evidence for

suggesting otherwise.

Mr. Meshach Julien - Geologist

146. Paragraph (6) is as follows: - “I also carried out a field investigation on or about 18th

September 2013 to obtain available information and determine in greater detail the geology and

soil type in the area and their impact, if any, on the stability of the claimant’s property. During

that field investigation, I too stood on the boundary line of the claimant’s property and I also

went onto the neighbouring property immediately across that road and I saw no sign of any

water collecting in the area of either of these 2 properties then. That day was dry. I saw no sign

of the leakage or escape of any water from any WASA main, fixture, connection or pipe.”

At paragraph (8): “My geological assessment identified that the claimant’s property was located

on clay which restricted the drainage, there was poor drainage and the soil was prone to move

due to water logging, and I also noticed that the property immediately adjacent to and north of

the claimant’s property was inaccessible by any vehicle because of land slippage. ……. The soil

in the area is of Tarouba clay which lies conformably on top of the Middle Cipero Formation

which restricts drainage and generally there is a high occurrence of land slippage in the area

where most properties are located on ridges.”

147. Apart from the evidence of soil type, (and the witness did not conduct any soil analysis),

the evidence of this witness was general in nature directed to establishing that the area in the

of 55

vicinity of the claimant’s property was susceptible to land slippages which affected the roadway

and other properties. The cause of land slippage on the claimant’s property needs to be

ascertained. The fact of land slippage elsewhere is at most suggestive that, with or without the

involvement of a leak from the water supply of the defendant, slippage may occur. However this

does not assist in the factual determination specific to the instant case.

Water – Causation

148. A critical issue is whether the water collected from the alleged leak sample site,

implicated in the damage to the Claimant’s property, contained chlorine. The Claimant had to

prove, on a balance of probabilities, that the water that did the damage to the Claimant’s property

had its genesis in the pipelines belonging to the Defendant, and under its control, passing in front

of or adjacent to the Claimant’s property.

149. The Defendant suggested that the water doing the damage could be from (inter alia):

i. rain water, (including from inappropriate discharge from the guttering, or from broken or

cracked drains),

ii. underground seasonal spring/high water table, (not established on the evidence), or

iii. grey water, (by which is meant water emanating from the defendant but having been utilised

by the claimant, and, having been passed through the claimant’s pipes or house, discharged,

whether through drains or waste pipes. The control and maintenance of these would have been

the claimant’s responsibility).

iv. the pipelines on the claimant’s property serving his home past the point of his service

connection, and under his control,

v. pipelines under the control of a neighbour past the point of the service connection.

vi. the pipelines under the control of the defendant.

150. The only possibilities out of these that would contain chlorine would be:-

a. grey water (as previously defined), – (by which is meant water emanating from the

defendant but having been utilised by the claimant and having been passed through the

claimant’s pipes or house, discharged, whether through drains or waste pipes. The control and

maintenance of these would have been the claimant’s responsibility).

of 55

b. the pipelines under the control of the defendant.

c. the pipelines on the claimant’s property serving his home past the point of his service

connection, and under his control.

d. pipelines under the control of a neighbour past the point of the service connection.

(There is no real evidence in relation to the latter two alternatives)

This leaves alternatives (a) and (b), if chlorine is established to have been present, although there

also exists the possibility that the chlorine readings of CARIRI and of Harris could have been

false positives. The evidence as to the presence of chlorine must therefore be considered.

Ms. Satie Siewah

151. The Claimant commissioned CARIRI (Caribbean Industrial Research Institute). to do

onsite testing for chlorine.

152. Ms. Satie Siewah, Chemist, gave evidence in accordance with the findings of the report

dated 13th December 2011 - “SS1”. Ms Siewah’s evidence was that samples were taken by one

Mr. Beharry (based on her instructions to him), from the property of the Claimant and a

neighbouring property. One sample of water was taken from the “north-west pile area” on the

Claimant’s property using the HACH Method.

153. The location of the sample was based apparently on the allegation that water was welling

up in that area. The location of that sampling was corroborated by Mr. Ramrattan. The claimant

was clearly attempting to link the upwelling water with the damage that he had begun to observe

to his property.

154. The presence and quantity of chlorine in that water would be critical in any exercise which

had as its goal a determination of its source. The values for Residual Chlorine and Total Chlorine

in water collected from that site on December 13th 2011 were both 0.11 mg/L - CARIRI Report.

155. In paragraph 7 of her witness statement, Ms Siewah stated:

of 55

“I got the results of the analysis which indicated that the sample contained “Residual Chlorine”

in the amount 0.11 mg/L. This value indicates that the water sample taken and tested and

found to contain the residual chlorine came from the Defendant’s supply.

This opinion is based on the fact that Chlorine is not a substance found freely in nature.

This last statement Chlorine is not a substance found freely in nature, is accepted by all parties.

156. However her conclusion that “This value indicates that the water sample taken and tested

and found to contain the residual chlorine came from the Defendant’s supply,” cannot be

accepted without qualification. She did not perform tests for gray water. She was not asked to do

so. Testing for grey water – as defined above, would have been significantly more helpful in

determining whether water with chlorine, accepted by all as initially emanating from the

Defendant, in fact was emanating directly from its pipes, or was first passing through the

claimant’s house and then escaping after use through broken drainage or pipes.

157. Further its presence would not have assisted with distinguishing between:-

a. whether water was escaping from main lines of the defendant under its control, or

b. escaping from the claimant’s pipes past his service connection for which he was responsible.

158. She further says at paragraph (4) that: “about December 13, 2011 Mr. Neilakash Beharry,

Chemist, was dispatched by me to do a site visit at the home/property of the Claimant and a

neighbouring property to secure samples of water to conduct a test of the water that was

flowing/percolating….

159. Her evidence at paragraph (6) is that: “The sample of water was taken on December 13

2011 for analysis. The samples were collected by Mr. Beharry. Samples were analysed on-site

in duplicates (sic) (two reading taken per sample)..........”

160. At paragraph (7) she states: “I got the results of the analysis which indicated that the

sample contained ‘Residual Chlorine’ in the amount 0.11 mg/L."

of 55

161. Although strictly speaking her evidence was hearsay in so far as it relates to from where

the samples were taken, the sampling location was corroborated by another witness Mr

Ramrattan.

162. She accepts that if she had known that it had been alleged that there was a long standing

and continuous leak she would have recommended:-

i. repeat tests,

ii. additional tests on the water to establish a broader profile of constituents,

iii. additional sampling points,

163. She agreed that, like Analytical, she would also have recommended a trace analysis, (or

marker test). She did not test for gray water and no tests for phosphates or ammonia, or, (less

importantly in this case, for faecal coliform – microorganisms) were requested or performed.

164. She agreed that aluminium is added at the source of the claimant’s water supply, namely

Navet Dam. She suggested that this was not of great importance because the added aluminium

was minimal. However

(a). the amounts were detectable – as they were detected and regularly tested for by WASA, and

(b) being a substance added to water, which was not found naturally in rain water, it was a

candidate for the trace analysis that she suggested would have been more determinative of

whether the source of water from the sample area was the defendant’s supply.

165. She agreed that iron can cause a “false positive” finding using the HACH method which

both she and WASA utilised. She disagreed that the profile of water tested by Analytical could

have been that of gray water as she contended that its Ph would have been higher.

166. Norla Louise Ferreira testified that this would not be necessarily so as it depended on the

level of dilution and a ph of 7 – 7.2 was not inconsistent with gray water.

of 55

Norla Louisy-Ferreira - Chemist

167. Expert Witness, Norla Louisy-Ferreira of Analytical Technologies Limited, was the joint

expert retained by the parties to do an independent assessment of the water. This sample was

taken on May 23rd

2013.

168. The onsite test revealed as follows:

Free chlorine 0.3 mg/l – May 23rd

2013

Further analysis revealed:-

Calcium ions 415 mg/l

Magnesium ions 85 mg/l

Iron ions .88 mg/l

Chlorides – 179 mg/l

169. This witness states at paragraph (6) that: “Upon receiving a request for an analytical

report on such a test an experienced technician is assigned to collect samples at the site if the

client has so requested, which was the case in this instance. Prior to collecting samples the

technician ….would prepare the sample bottle by ensuring that the quality of sample is

maintained. At the site the Technician collected the sample to be tested. At the property of Mr.

Afzal Aziz the Technician, who works under my supervision, collected a water sample of about

500ml from a hole in the ground. On doing so, the potential Hydrogen (“pH”) ion concentration

which is the potential hydrogen perchlorate (sic- an admitted error ) concentration and the free

chlorine concentration in the water sample were tested on site............The Technician recorded

a reading, in writing and gave it to me, on the calibrated pH meter which showed 7.1pH..........a

neutral range in liquids. This indicates that the concentration of hydrogen ion in the sample he

took was miniscule. The said Technician also recorded a reading of 0.3 milligrams per litre

(“mg/L”) of free chlorine concentration in the sample which shows that there is free chlorine in

the water.”

170. At paragraph (7): “The Technician assigned to do the analyses would also analyse the

parameters requested by the client. In this case 10 parameters namely conductivity, pH, total

of 55

hardness, calcium, magnesium, total iron, chlorides, turbidity, free chlorine and colour were

set to be analysed for the report...........”

171. Paragraph (8): “After testing at the site the Technician brought a sample of the water in

the amount of 500 millimetres to be tested at the laboratory. Whilst at the laboratory the other

parameters were analysed by the Technician and other technicians under my supervision and in

my presence, excepting the analyses for colour due to an insufficient amount of the water sample

for this purpose. The conductivity reading was done on a calibrated conductivity meter [Reading

– 4.16Ms]......This indicates the water has ions present such as calcium and magnesium. The

total hardness reading was done by the Technician, under my supervision and in my presence

[calculation –result]....

The reading of 1391.312 magnesium and calcium carbonate per litre (“mgCaCo3/L”) shows the

water sample is very hard which means that calcium and magnesium ions are present

The reading of 415.7 mg/L of calcium in the water sample means that there is calcium present in

the water sample.

The reading of 85.19 mg/L of magnesium means that there is magnesium in the water sample.

The reading of 0.8839 mg/L of iron means that there is iron in the water sample..........

The reading of 86 Nephelometric Turbidity Unit (“NTU”) means the water sample had

suspended particles present.”

172. Paragraph (9) she states: “My analytical report which is dated 25th

June 2013 and is

based on the tests and readings done as above-mentioned under my active supervision concluded

as stated that the water sample from the pool of water in the ground at the site alone cannot

yield conclusive analytical evidence as to the source of the water, and recommended that a

marker test be carried out to determine the source of the water”.

173. (Mr. Raymond Gittens explains why given the need to add thousands of pounds of

chemical markers to the supply, these marker tests could not be realistically carried out).

174. She accepted that hardness in water could be caused by many different factors. It could

be grey water from someone’s kitchen waste or laundry waste.

of 55

Raymond Gittens- Chemist

175. In the Witness Statement of Raymond Gittens at paragraph (4): “My department received

the 2 water samples collected by Mr. Frederick. Harris, WASA’s Senior Quality Control

Inspector, as he so informed me and I verily believe, on 11th

November 2011 at LP# 74/75, St.

Croix Street, Princes Town..........I produced a report dated 11th

November 2011 after the

samples were tested by the staff of the QCD under my supervision........”

176. At paragraph (5): “In my said report a comparison was made of the WASA water supply

taken from the yard tap providing a WASA supply to the water tank on the claimant’s property

and water from the source of the alleged leak located on the property on the north western side,

which sample was in the amount of approximately 500 millilitres..........The significant

differences in the parameters measured between the WASA water supply and the water from

the source of the alleged leak suggest that they are not one and the same, thus not from the

same supply or source, specifically colour 10 Cu (the unit used to measure colour in water) at

the WASA supply as compared to 70 Cu in the leak sample, one NTU (Nephelometric Turbidity

Unit which is the unit used for measuring turbidity (clarity) in water at the WASA supply)

compared to 27 NTU in the leak sample, and most significantly 210 umhos (umhos is the

measure of conductivity in the water to which the ions contribute) at the WASA supply compared

to 3910 umhos at the leak sample, similarly for total dissolved solids (the amount of ions

dissolved in the water) of 136 mg/L at the WASA supply compared to 2915 mg/L at the leak

sample, similarly total hardness of 8.8 mg/L at the WASA supply compared to 1401 mg/L in the

leak sample, similarly calcium 21 mg/L at the WASA supply compared to 389 mg/L in the leak

sample, magnesium 8 mg/L at the WASA supply compared to 103 mg/L in the leak sample,

chlorides 14 mg/L at the WASA supply compared to 150 mg/L in the leak sample and total iron

0.14 mg/L at the WASA supply as compared to 0.42 mg/L in the leak sample, all suggest that the

water from the WASA supply sample and the leak sample were not from the same source as they

are significantly different in those respects. Further, the absence of any aluminium in the leak

sample as compared to 0.06 mg/L in the WASA supply sample suggest again that it is not from

the same source.....The absence of residual free chlorine in the leak sample as compared to 1.2

mg/L in the WASA supply sample lends further credence to the notion that the leak is not from

the WASA supply. In conclusion, reviewing the results of the tests which led to the preparation of

of 55

my report dated 11th

November 2011 the fact that the aluminium reading 0.00 mg/L in the leak

sample is lower than the reading of 0.06 mg/L in the WASA supply strongly suggests that the

leak is not from the WASA supply as aluminium is added in the treatment of WASA’s water at

source which is the Navet Water Treatment Plant. Further, the high conductivity reading of

3910 umhos in the leak sample strongly suggests that the leak is from a spring or underground

water source, as normally a spring water source would typically have a high conductivity.” (all

emphasis added)

177. In paragraph (6) he states: “I have also provided an analytical report dated 26th

September 2013 on the quality of the water from the Navet Water Treatment Plant situated at

Tabaquite which is the source of the water supply to the St. Croix Road, Princes Town area......A

comparison of the Navet Analytical Report also confirms that the leak sample is not from the

Navet supply, due to the differences in the parameters measured as above-mentioned for the

same reasons as stated in paragraph (5) above........”

178. At paragraph (9): “looked at the report from CARIRI dated December 15, 2011....noted

that the low level of total chlorine and residual chlorine was 0.11 mg/L. I can draw no

conclusions as to the source of the water there from the low levels of total chlorine and free

chlorine and I am not certain where the samples were taken.”

179. He attaches a report of the water parameters from the Navet Dam – the source of the

WASA supply to the Claimant which reveals his reasons for stating that the water taken by

Mr.Harris at the sample site is probably not from a WASA supply are based on the difference

between the parameters, properties, and constituents between water from the WASA supply and

water sampled from the claimant’s property, which allegedly had as its source, an alleged leak. It

is therefore necessary to consider the basis in detail, of those alleged differences.

180. Colour - “specifically colour 10 Cu (the unit used to measure colour in water) at the

WASA supply as compared to 70 Cu in the leak sample” I find that not much can be read into

this alleged difference bearing in mind that the sample taken from the claimant’s property was

of 55

from a hole in the ground and not from a pristine source such as a tap connected to the WASA

supply.

181. Turbidity (clarity) - “One NTU (Nephelometric Turbidity Unit which is the unit used for

measuring turbidity (clarity) in water at the WASA supply) compared to 27 NTU in the leak

sample” Again I find that not much can be read into this alleged difference bearing in mind that

the sample taken from the claimant’s property was from a hole in the ground, possibly in contact

with the ground, and possibly in contact with soil at some point, and not from a pristine source

such as a tap connected to the WASA supply. The context in which the sampled water was found

must be kept in view.

182. Conductivity - “and most significantly 210 umhos (umhos is the measure of conductivity

in the water to which the ions contribute) at the WASA supply compared to 3910 umhos at the

leak sample”. If water from a WASA source had come into contact with a source of soluble ions

its conductivity could readily have been increased. This factor likewise cannot be considered to

be sufficient to differentiate sources of water, as water from the same source in contact with

different substances in the course of different histories may eventually have different

conductivities.

183. Total dissolved solids -“similarly for total dissolved solids (the amount of ions dissolved

in the water) of 136 mg/L at the WASA supply compared to 2915 mg/L at the leak sample”.

Again this may be readily accounted for by water from a WASA supply which passes over

soluble solids, and therefore this parameter cannot be used to differentiate between water from

different sources, or to eliminate a WASA source.

184. Total hardness - “similarly total hardness of 8.8 mg/L at the WASA supply compared to

1401 mg/L in the leak sample, similarly calcium 21 mg/L at the WASA supply compared to 389

mg/L in the leak sample, magnesium 8 mg/L at the WASA supply compared to 103 mg/L in the

leak sample”.

All these parameters are increased in the sample from the claimant’s property and are equally

consistent therefore with:-

of 55

a. WASA supply subsequently coming into contact with these substances before arriving at the

sample site, as with

b. the sample water emanating from an entirely different source from the WASA supply.

185. Chlorides - chlorides 14 mg/L at the WASA supply compared to 150 mg/L in the leak

sample

This parameter is increased in the sample from the claimant’s property and is equally consistent

therefore with:

a. WASA supply subsequently coming into contact with this substance before arriving at the



186. Total iron - Total iron 0.14 mg/L at the WASA supply as compared to 0.42 mg/L in the

leak sample,

This parameter is increased in the sample from the claimant’s property and is equally consistent

therefore with:-

a. the WASA supply subsequently coming into contact with this substance before arriving at the



187. High conductivity - Further, the high conductivity reading of 3910 umhos in the leak

sample strongly suggests that the leak is from a spring or underground water source, as

normally a spring water source would typically have a high conductivity.

His conclusion that “these all suggest that the water from the WASA supply sample and the leak

sample were not from the same source as they are significantly different in those respects,”

cannot be accepted. It fails to take into account, without any adequate explanation for so doing,

the fact that those differences are logically equally consistent with the same source of water, a

WASA source, coming into contact with a different environment and acquiring/ dissolving other

constituents, which then give it a different chemical profile from water at its original source.

Even if all spring water exhibited high conductivity, this cannot mean that all water with high

conductivity must be spring water.

of 55

No one tested the soil at the premises of the claimant, and there is therefore no evidence as to

what changes water from a WASA supply would undergo if it passed through soil, or if it came

into contact with cement, if any, in the vicinity of the pilings at the claimant’s home.

This conclusion is rejected, as this is equally consistent with:-

a. its emanating from a WASA supply, and subsequently acquiring and dissolving these

constituents in its passage from the leak site, as with

b. having a source entirely different from the WASA supply.

188. Aluminium - The fact that the aluminium reading 0.00 mg/L in the leak sample is

lower than the reading of 0.06 mg/L in the WASA supply strongly suggests that the leak is not

from the WASA supply as aluminium is added in the treatment of WASA’s water at source

which is the Navet Water Treatment Plant. This is of significance as in this case the sample

does not contain a constituent that it would be expected to contain if its original source were a

WASA supply. The absence of any aluminium in the leak sample as compared to 0.06 mg/L in

the WASA supply sample suggests again that it is not from the same source.

189. There is no dispute that aluminium is added to the defendant’s water supply. The

attachment RG 2 shows that out of approximately 48 days tested from January to November

2011, on only 4 was there no reading of the level of Aluminium, confirming that on most days

Aluminium could be expected to be detected in the WASA supply, as in fact it was on the day

that Mr. Harris collected his sample.

190. Surprisingly it does not appear that Analytical tested for the presence of Aluminium. It is

all the more surprising that the claimant did not ask Analytical to test for the presence of

Aluminium as this chemical, being already added to the WASA supply, appears to have been a

candidate for the suggested “Marker test” suggested by Analytical, if it was a substance not

normally found in nature but only in a supply emanating from WASA.

191. No one has suggested however, even in cross examination, that there can be any reason

why aluminium, added to the WASA supply, should be absent if it leaks from a WASA supply,

of 55

and is then tested at a leak site where it collects. The content of the other parameters - calcium,

magnesium, chlorides, and iron – are all increased in the claimant’s alleged leak sample – and

this is equally consistent with:-

a. its emanating from a WASA supply, and subsequently acquiring and dissolving these

constituents in its passage from the leak site, as with

b .having a source entirely different from the WASA supply.

192. However the absence of Aluminium from the claimant’s alleged leak sample cannot be

similarly explained, unless some mechanism can be suggested for the removal of Aluminium

ions from the WASA supply. Unlike chlorine for example, where the mechanisms of reacting

with material that it comes into contact with, and dissipation into the atmosphere, have been

suggested on the evidence to explain differing levels of chlorine between WASA supplied water

and sampled water, no such mechanism has been suggested in the case of Aluminium.

193. One possible mechanism, dilution, was not explored in cross examination, although

suggested in the evidence on cross examination of Ms. Siewah, when she focussed upon what

she referred to as minimal levels of aluminium, even in WASA water supplied from the main,

when asked if she would have considered testing for Aluminium. It was also adverted to by Ms.

Fererira when she was asked to comment on Ph in relation to gray water. Her explanation was

that dilution could account for an almost neutral Ph reading in gray water. As a matter of logic it

can readily be inferred that it can also account for reduction in levels of aluminium. If WASA

water, at 0.06 mg/l, is, by some mechanism, mixed with water from a natural source, for example

rain water, its already minimal concentration of 0.06 milligrams per litre of water, by dilution

with more water, could be rendered significantly less detectable, depending on the sensitivity of

the test method.

194. Residual free chlorine - ...The absence of residual free chlorine in the leak sample as

compared to 1.2 mg/L in the WASA supply sample lends further credence to the notion that the

leak is not from the WASA supply. By itself such a chlorine reading would have supported his

conclusion. However the chlorine readings taken by different parties on different days were all

different.

of 55

Arlene Joseph-Josiah

195. She is a Chemist and Senior Quality Control Assistant Manager employed at the

Defendant. Her department received the 2 samples collected by Frederick Harris on December

9th

2011. Her evidence at paragraph (4) is that her “department received the 2 water samples

collected by Mr. Frederick Harris, … on 9th

December 2011 at LP# 74/75, St. Croix Street,

Princes Town, which were taken from Lot 386, St. Croix Road, Princes Town. I produced a

report dated 15th

December 2011 after the samples were tested by the staff of the Quality Control

Department highlighting the test results, which is contained in the document headed

“ANALYTICAL REPORT” which is attached to my said report,...”

5. In the said report a comparison was made of the WASA water supply taken from the yard

tap providing a WASA supply to the water tank on the claimant’s property and water from the

source of the alleged leak located on the property on the north western side, which sample was

in the amount of approximately 500 millilitres. Both samples were taken by Mr. Harris on

December 9, 2011. The significant differences in the readings between the WASA water supply

and the water from the source of the leak using the parameters for testing suggest that they

are not one and the same, thus not from the same supply or source. For instance, the high level

of the conductivity which indicates the levels of dissolved salts and the total hardness of the

water in the source of the leak sample are typical of a spring supply. Also the residual free

chlorine, which is normally present in the WASA water supply, reading of 0.1milligrams per

litre (“mg/L”) from the source of the leak as shown in the said Analytical Report in the second

column from the right, is insignificant compared to the level from the WASA supply of

0.6mg/L. This could possibly suggest a false positive (not attributed to residual free chlorine)

due to an interference in the test method (for example the presence of iron, manganese or

chromium in the leak sample could have given rise to the false residual free chlorine reading). I

concluded based on the data in this report that the leak did not originate from the WASA supply.

Further, the chlorides, magnesium, calcium, pH and total iron comparisons are significantly

different between levels found at the WASA supply. This indicates that the water supply at the

source of the leak and the WASA water supply are not one and the same. Chlorides are anions

(which are negatively charged ions found in water) that give rise to the salty taste. The reading

of 79 is significantly different to the WASA supply reading of 19 which is typical for that area

indicates that the source of the leak is not from the WASA supply.

of 55

6. I looked at the report from KL Chem Services dated 14 November 2011 which is part of

Attachment “C” to the claimant’s Statement of Case filed in this action. I have noted that the

road area sample (which there is no indication of a precise location where it was taken) reading

of residual free chlorine in the amount of 0.51ppm which would suggest that this water is from a

WASA supply. The second reading of the sample taken from the house pile area in the amount of

0.14ppm shows an insignificant level of free chlorine which could possibly suggest a false

positive (not attributed to residual free chlorine) due to an interference in the test method (for

example the presence of iron, manganese or chromium in the leak sample could have given rise

to the residual free chlorine reading) and which could also suggest a possibility of dissipation of

the residual free chlorine which normally occurs during storage such as in a tank and due to the

effects of atmospheric temperature. The third reading of the tank area of 0.04ppm is again

indicative of a stored water supply where the residual free chlorine is extremely low due to being

kept in storage and atmospheric temperature.

7. I also looked at the report from CARIRI dated December 15, 2011 which is also part of

Exhibit “C” to the claimant’s Statement of Case. The Hach method used as referred to in that

report is a colorimetric determination of residual free chlorine by the use of DPD reagent which

gives rise to a coloured complex which is then photometrically determined (measured via the

intensity of light via a colorimeter). The total chlorine reading is the amount of combined

residual free chlorine plus residual free chlorine (which is normally used in waste water

testing) and therefore not attributed to residual free chlorine solely and therefore cannot be

used to determine the source of the leak. WASA’s parameter to monitor the effectiveness of the

disinfection (to destroy disease causing organisms) process of water via chlorination is residual

free chlorine. Therefore only the residual free chlorine reading can be commented on. The

residual free chlorine reading of 0.11ppm is insignificant and can be indicative of a false

positive reading due to an interference in the test method as indicated at paragraphs (5) and

(6) above which means it is inconclusive as to whether the water originates from a WASA

source. The CARIRI report does not state the identity or source of the water supply from which

the sample was taken. (All emphasis added)

of 55

196. The suggestion was made by the claimant in submissions that Ms. Joseph-Josiah’s memo

was misleading in that it omitted reference to a finding of chlorine in the sample and spoke of

only the 9 other parameters, comparing these in WASA water with the levels in the alleged leak

sample, but deliberately omitting the presence of chlorine. In fact this is not the case. The memo

was making the point that putting aside the chlorine reading, 9 other readings were also different.

Hence the source of both samples of water – one being WASA water, could not be the same.

197. However, the more important point is that the possibility that the additional values for

inter alia calcium, magnesium and iron were acquired by the passage of WASA water through

soil has not been eliminated by this comparison.

Interpreting the evidence of chlorine levels

198.

Samples by Harris - November 11th

2011 -nil

December 9th

2011 0.1ppm

Sample by Cariri December 13th

2011- 0.11 mg/l (milligrams per litre) (works out to be the

same as ppm- parts per million )

Sample by Analytical – May 23rd

2013 – 0.3 mg/ l (works out to be the same as ppm)

199. It is only in the first sample by Harris that no reading for chlorine is found at all. All

parties agreed that the HACH method of testing for chlorine on site was appropriate and that is

what each used. On site testing was used because the reactive nature of chlorine meant that the

longer the period that elapsed before sampling, the greater the likelihood that the chlorine would

react, whether with the walls of the container or otherwise, or dissipate.

200. What is significant is that Analytical detected readings of chlorine – 0.3 mg/l, that

CARIRI detected low readings also – 0.11 mg /l, and that this reading was similar to that

obtained by Harris, around the same date. The WASA supply was calibrated to provide a

minimum reading at the consumer’s tap of 0.5 ppm, and Harris got readings from the WASA

supply of 0.6 ppm and 1.2 ppm which were normal for a WASA supply. The CARIRI reading

was taken in 2011 at the time that the alleged leak was supposed to be more active than when

of 55

Analytical took their sample in 2013. Yet the Analytical reading is a fraction of that to be

expected from an active WASA supply, and the CARIRI and Harris readings are even lower.

Reaction with the soil, and dissipation into the environment are two possible explanations for

these lower chlorine readings.

201. However there are others. Ms. Joseph suggests that false positive readings can be

obtained for chlorine in the presence of high levels of Iron, and certain other ions. She attested to

observing this effect in samples of water from other places. The presence of low levels of

chlorine therefore may or may not be the result of high levels of iron which cause the HACH test

to produce false positive readings for chlorine.

202. The absence of aluminium, if Mr. Gittens’ evidence is accepted, also needs to be

explained. There is no reason to not accept his evidence. All the experts testified with

competence and clarity. The only entity to test for Aluminium however was the defendant. The

likely presence of aluminium in the water of the defendant was no secret. Certainly CARIRI was

aware of this.

203. CARIRI’S test was simply for chlorine. They tested for what they were asked to test.

They were not asked to test for grey water, or for aluminium, or even to design a test for any

other water parameters that they may have considered relevant. ANALYTICAL made clear that

chemical testing by itself could not differentiate between alleged sources of water or eliminate or

confirm WASA as the source of the alleged leak sample. The presence of aluminium as a

possible readymade marker was not adverted to.

204. Mr. Gittens conclusion that the absence of aluminium in the water from the alleged leak

site, as well as his suggestion that false positive low level readings for chlorine caused by the

presence of high levels of iron for example, means that the water from the alleged leak site is not

from a WASA source, but from a spring or underground source. This may explain the findings

from the chemical analysis of the water from the alleged leak site, that it contains Iron, which

may have led to a false positive for chlorine on the HACH test, and that it does not contain

Aluminium, as would be expected if from a WASA source. However it would require ignoring

of 55

the fact that both CARIRI and Harris got similar allegedly false positive readings for chlorine,

and that ANALYTICAL, almost 18 months later, got a non trivial reading for chlorine, that

could not be so readily dismissed.

205. An equally likely explanation, if all the chlorine readings are accepted, and the nil

aluminium reading of the defendant is also accepted, is that water from an original WASA

source was subject to dilution by non WASA water, to the point where Aluminium, already in

low levels, was below the threshold of sensitivity of the test used to detect its presence. This is

not simply speculation. There is ample evidence, including very explicit photographs, of the

seriously cracked drains in extremely close proximity to the sample site, and of down spouts

from guttering emptying into very shallow, and clearly inadequate drains to contain runoff from

a roof after heavy rainfall, and even evidence that at least some water from within the house,

(washroom), is discharged directly into drains on the northwest side of the house. In those

circumstances to postulate the existence of an underground spring toward the top of a slope is

simply to add an unnecessary layer of complexity.

206. The defendant cited the case of Harvey Nichols & Co Ltd v Thames Water Utilities

Ltd [1999] All ER (D) 1272, as an illustration of the approach adopted when water is implicated

in property damage but its source is unknown. In that case the several possibilities as to the

source of the water were narrowed by agreement to just two. Even so, the evidence of several

experts, from a variety of scientific disciplines was required, and the process was by no means

straightforward.

207. The case summary reads as follows: -

“H owned a well-known large department store in London. During renovations the

basement of the store suffered severe water ingress, causing damage which in turn lead

to delays and lost store revenue. H alleged that the damage was substantially or

entirely caused by leaking water mains vested in the defendant utility company, T, and

brought an action against T under s 209(1) of the Water Act 1991.

of 55

The court ruled: On the balance of probabilities, the water was from water pipes vested

in T and, in consequence, T was liable under s 209(1) of the 1991 Act for the damage H

suffered.

The claim for damages was made pursuant to section 209 (1) of the Water Act 1991 and

arose out of an escape of water into the basement of the claimant's department store in

Knightsbridge, London, S.W.1.. The claimant succeeded in establishing, on the balance

of probabilities, that the escape was from mains water pipes vested in the defendant

and, in consequence the defendant was liable for the loss and damage that resulted. The

claimant was entitled to judgment for £103,175, VAT of £18,055 and interest.”

It is agreed by the parties that there are only two possible sources of the water ingress

that occurred. These are water from leaking water mains and ground water from the

surrounding area supplemented by water from the water table in the vicinity of the

store. Three further potential sources of the water, being leakage from water pipes in

private individual ownership, known as supply pipes; or from the store; or other water

such as surface water, rainwater or sewage effluent were accepted by both parties not to

have contributed to the ingress in this particular case. It is also accepted that the

claimant must, to succeed, satisfy the court on the balance of probabilities that the

cause of the ingress was substantially or entirely water that had leaked from water

mains vested in the defendant.”

“For a case of the relatively small size of this one, the parties called an unusually large

volume of expert evidence from a surprisingly large number of experts. In all, 6 experts

gave evidence. The claimant called a Chemist (Mr Pickering of Sandberg, who are

consulting engineers) ; a Hydrologist (Dr Miller of Churchill College Cambridge) ; and

a Geophysicist (Mr Balllard of G B Geotechnics who specialise in the testing and

investigation of geophysical investigations such as water flow monitoring). The defendant

called a Hydrogeologist (Mr George of Dames & Moore who specialise in investigating

soil and ground water conditions; an Environmental Scientist specialising in water

(Professor Colbourne who is both the Operations Consultant to the defendant's

managing director and a Visiting Professor in the School of Civil and Process

of 55

Engineering at the University of Surrey); and a Structural Engineer (Mr Askew of WS

Atkins who are structural engineers).........”

The reason that so much expert evidence was adduced was that the parties, lacking any

significant amount of direct evidence as to the origins of the water that had leaked into

the sub-basement, had to rely on secondary evidence of its origins. The relevant water

source was sought to be established by inferences drawn from four separate sources of

evidence. These were as follows.”

Paragraphs (55) to (58) are sub-headed “The Chemical and Bacteriological Evidence”: -

“Water samples were taken and analysed in detail. These samples were taken from the

sump and from the mains. The principal purpose of analysing these two sources of

water was to see whether a discernable similarity or dissimilarity could be found which

would point to the sump water as being either mains-originating or not being mains-

originating.

The analysis was undertaken using a Piper Diagram. This plots the incidence and

relative quantities of the chemicals found in a sample in a pattern and enables a ready

comparison to be made with a similar plot of other samples being used for comparison.

This evidence was inconclusive. There was a dispute as to whether the distortion of the

scales, adopted by Mr George who argued that the distortion used was a valid means of

analysing the analytical results, led to a consequent distortion of the apparent difference

in the pattern of results. I am not able to resolve that dispute since, whether the scale was

or was not distorted, the resulting Diagrams were not, of themselves, able to answer the

question of whether the sump water originated from the ground or from the mains.

What can be concluded is that the chemical evidence did not in anyway undermine the

quality of the other evidence which pointed to the water originating from the mains.

208. Somewhat surprisingly, the chemical evidence was not relied upon to any significant

extent, although the choice was between a mains source and a natural source. Also, in the instant

of 55

case there has been no elimination of some of the possibilities by agreement and all the

possibilities set out at paragraph 6 above needed to be considered in light of the evidence.

Findings and Conclusion

209. The evidence of several witnesses was that the land in the vicinity of the property was

prone to slippage. The evidence of Mr. Ramrattan, which I accept, is that the propensity of the

soil to slip or subside would be triggered or aggravated by the presence of water. The source of

any unusual water, including in particular that which was observed to be pooling at one point on

the claimant’s property, must therefore be considered.

210. Despite the evidence of chemists, a hydrologist, a structural engineer, a geologist, and

other technical witnesses it has simply not been established, far less proved on a balance of

probabilities, that water escaping in any manner from a source or supply under the control of the

defendant, was the cause of the claimant’s property damage.

211. The presence of chlorine in the water would point to its original source being the

defendant’s supply, and not a completely natural source such as a spring, or runoff from rainfall.

However, the relatively low levels of chlorine in the water tested from the alleged leak

accumulating in a hole on the north western side of the claimant’s property, (the alleged leak

sample), point to either:

a. a false positive reading, affected by the presence of other ions such as those of Iron, or,

b. that water not having escaped directly from the defendant’s main pipes ,as minimum levels of

chlorine from the defendant’s pipes are at levels of at least 0.5 ppm – (the minimum level

recommended by the World Health Organisation).

212. The levels of chlorine in the samples collected are significantly lower at 0.11ppm in

December 2011, though a reading of 0.3 ppm was obtained when tested by Analytical on May

23rd 2013.

213. No leaks were detected by the defendant’s agent when these were tested for on October

12th 2011. The possibility of a leak from the defendant’s main, percolating onto the claimant’s

of 55

property, (permitting the level of free chlorine to have diminished by the time it collected at the

sample site), can therefore be excluded.

False positives

214. Despite the low level chlorine readings from samples from the alleged leak site, water

from a natural source cannot be so easily eliminated, as there is evidence that false positive

results can be obtained with a Hach test for chlorine if certain ions, including those of Iron are

present.

Absence of Aluminium

215. The further possibility remains that the water accumulating is not even from a WASA

supply as the absence of Aluminium is inconsistent with its originating from a WASA supply. In

this scenario the low levels of chlorine would be accounted for as being a false positive reading

caused by ions, for example from Iron, interfering with the HACH test results.

Gray water

216. On a balance of probabilities, if other sources of that water, (leaking mains, rainfall,

natural spring,) can be excluded on the evidence, the most likely source of the water collecting,

and collected on the claimant’s premises would be “grey water”, that is water which originated

from the defendant’s supply, but, after being utilized by the claimant and passing through his

household systems, pipes or drains, escaped into the soil, most likely via cracked drains. Such

escape into the soil, in addition to accumulating at the North Western pile sample site, could also

cause the observed slipping of land, (shown in close proximity to the cracked drains in the

photographs in evidence), and consequential cracking. According to Mr. Ramrattan, water from

any source could account for this.

217. If the accumulating water, while originating from a WASA supply, is in fact gray water,

its presence at the sample site could be accounted for on the evidence as follows: - Though

originally from a WASA supply, having passed through the household systems of the claimant,

and under his control, it could escape via cracked drains caused by subsidence, and percolate into

the soil, accumulating in the hole dug at the North West pile. In this scenario, the accumulation

of 55

of water would be an effect of land slippage, such slippage having caused cracking of drains, not

a symptom of the original cause of the land slippage. This could explain the presence of low

levels of chlorine detected by Harris on his second visit.

218. The Harris sampling and the CARIRI sampling were both conducted in the rainy season.

This scenario may even explain the complete absence of chlorine on the first visit by Harris, if

water from natural sources, most likely rainfall from the claimant’s roof, discharging or escaping

from guttering into drains on the North West side of the house, also escaped into the soil via

those compromised, cracked drains.

219. It may even explain the absence of aluminium in the second sample taken by Harris in

December 2011, in which chlorine was found at very low levels, if the minimal levels of

Aluminium in water originating from a WASA source, (but being discharged as gray water

through compromised drains), were diluted with water from a natural source – (rainfall from the

roof), also discharging or escaping into compromised drains, being diluted beyond the point of

sensitivity of the aluminium detection test.

220. There is evidence that drains were compromised and cracked at the time of the visit of

Mr. Ramrattan. There is therefore evidence that drains were cracked at the date of the CARIRI

sampling at which he was present.

221. There is photographic evidence that drains were cracked in the area of the alleged leak

sample site. There is evidence that rain water from the claimant’s roof discharges via guttering

into drains on the North West side of the house in close proximity to the alleged leak site.

222. The presence of aluminum in the WASA supply, and its absence from the test sample of

the alleged leak supply has not been addressed or explained by the claimant. The unexplained

absence of aluminum in that alleged leak supply could indicate that it does not emanate from the

defendant’s supply.

of 55

223. While there are several parameters also that differ, including the levels of calcium, iron,

chlorides and magnesium, these differences are equally consistent with the water emanating

initially from a WASA supply and being transformed in its passage through or along soil.

However, the absence of aluminium in the alleged leak sample cannot be so explained.

Pipeline past the point of the mains connection

224. The possibility also remains, on the evidence, of a leak from a pipeline past the point of

the connection to the WASA main for which the defendant was not responsible. This is

especially so when the evidence of Mr Joseph is taken into account and the unexplained yet

curious assertions that:-

a. the water in the middle of his roadway became a “gusher” (approximately 125 feet) along the

length of that roadway, (and therefore at least 125 feet from the WASA mains running along the

main road),

b that his white supply/service pipe shown in the photographs was a temporary one while he

awaited a permanent blue connection from the defendant,

c. that the defendant disconnected the supply to his house .

225. It is however, on the evidence, less likely than other causes, and less likely that any such

leak, even if it continued unrepaired over the period complained of, could directly cause water

to accumulate on the claimant’s land at the alleged leak sample site on the north western corner

of the claimant’s house.

226. The various scenarios, all consistent with the evidence, demonstrate that the evidence is

simply insufficient to conclusively determine on a balance of probabilities that the water which

accumulated at the North West pile of the claimant’s property, emanated from a supply under the

control of the defendant.

227. This is without even exploring and determining whether that water, or the effect of

naturally occurring water, given the inherent nature of the topography in the vicinity, is the direct

cause of land slippage and subsidence, and the damage to the claimant’s property of which he

complains.

of 55

Conclusion

228. Assuming that the water accumulating by the North West pile of the claimant’s property

is an indication of a wider incursion of water onto the claimant’s premises, and further assuming

that that water is the direct cause of land slippage and subsidence and the damage to the

claimant’s property of which he complains, the relationship between the accumulation of that

water and the defendant’s supply has not been established on a balance of probabilities.

229. I find that it has not been established on a balance of probabilities that the water

pooling/collecting on the claimant’s property emanates from the defendant’s supply. The

claimant has not proved his claim on a balance of probabilities on the evidence and his claim

must, in the circumstances, be dismissed.

Disposition and Orders

230.

(a) The claimant’s claim is dismissed.

(b) I will hear the parties on costs.

Dated this 27th

day of June, 2014

Peter A. Rajkumar

Judge

the republic of trinidad & tobago in the high...

Documents