Kawaja v St. Kitts Sugar Factory

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Cenac C.J.
• Judgment Date: 01 January 1970
• Neutral Citation: KN 1970 HC 3
• Docket Number: No. 17 of 1970
• Date: 01 January 1970

High Court

Cenac, J. (Ag.)

No. 17 of 1970

Kawaja

and

St. Kitts Sugar Factory

Appearances:

M.H. Davis and Dennis Byron for the plaintiff.

F.E. Kelsick for the defendant.

Tort - Negligence

Facts: Whether the defendant negligently used fire in the course of its business so that sugar cane on the plaintiff's estate was destroyed by fire. Judgment given for the plaintiff in the sum of $39,536.43.

1 Cenac C.J. (A.G.): In this action the substance of the plaintiff's allegation is that on 7th March, 1970 the defendant or its servants so negligently used fire in the course of its business that sugar cane growing on the plaintiff's estate was set on fire and destroyed causing severe loss and damage to the plaintiff.

2 By its defence, the defendant admitted that the plaintiff's allegation of negligence in the circumstances alleged in the plaintiff's statement of claim, but denied that “severe loss and damage” or any damage at all was suffered by the plaintiff as a result of the plaintiff's admitted negligence. At the trial and before any evidence was taken, learned counsel for the defendant clarified the position further when he specifically stated that the only issue which the defendant was contesting was the issue of the quantum of damages to be recovered by the plaintiff. He repeated this in his closing speech.

3 Before dealing with the issues raised, it is necessary to state the surrounding circumstances and the relevant matters alleged by the plaintiff up to the time of the fire. None of these matters is in dispute.

4 Since the year 1942 the plaintiff has been the owner of the estate in question which is known as Con Phipps and Walk Estate. It comprises about 600 acres. It is really two separate adjoining estates, but the plaintiff runs and operates the two estates as one estate primarily for the production of sugar cane. In 1969, and again in 1970, there were 426 acres under sugar cane cultivation.

5 The defendant, on the other hand, is a limited liability company registered under the laws of this State with a registered office at Basseterre in this State. It carries on the business of processing sugar cane at its factory at Basseterre. For that purpose, it purchases sugar cane from various estates, including the Con Phipps and Walk estate, and hands the sugar cane so purchased to its factory on its trucks along its own railway line. For part of its way, the railway line runs through the Con Phipps and Walk Estate.

6 In the course of its business the defendant, in words of paragraph 4 of the statement of claim “uses fire to burn reaped sugar cane at a railway siding at or near the estate of the plaintiff and to haul the same through or near the estate of the plaintiff towards the factory of the defendant on the railway trucks and line of the defendant.” The plaintiff further alleged that it was while the defendant was hauling sugar cane from the aforesaid siding and through the Con Phipps and Walk estate that sugar cane growing there was negligently set on fire with the consequences stated in the first paragraph of this judgment.

7 On the issue of damages, which is the only issue in this case, the plaintiff claims the sum of $15,723.24 and the sum of $2,001.45 by way of special damage, thus making a total of $17,724.69 under this head of damage. In addition, he claims the sum of $30,809.45 by way of consequential damage. Thus in all, he claims the sum of $48,534.14. It should be noted that this total sum is less than the sum which the plaintiff claimed in his Statement of Claim. There, his claim is for a total sum of $56,804.87.

8 I shall deal, first of all, with the claim for special damage. Under this head, as well as under the other heads of damage in this case, the tort which ought to be applied is that which was stated by Lord Blackburn in the House of Lords in Livingstone v Rawyards Coal Co (1880) 5 App. Cas. at page 39 and which has been approved of in subsequent cases. The learned Lord Justice put the test in these terms:

“Where any injury is to be compensated by damages, in settling the sum or money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation”.

9 Now, the plaintiff's claim for special damage can be subdivided under two heads. The first sub-head, and by far the more important one, relates to the claim for $15,723.24. According to the plaintiff, this represents the amount, which he estimates he would have received, after deducting the expenses of reaping, if he had reaped and sold in the normal way all the burnt canes (less 600.1750 tons which he was able to reap and sell to the defendant at its factory). With respect to the immature canes alleged to have been burnt, it has not been suggested that, apart from the expenses of reaping them, the plaintiff would have had to incur any further expenses in relation to them before they become ready for reaping.

10 It must be stated that the defendant has not disputed the correctness of the basis of assessment which the plaintiff has applied in determining the amount recoverable by him under the first sub-head of special damage. To my mind, quite apart from the elements of assessment which are contained in this subhead of special damage, the basis applied by the plaintiff is in accord with the test in Livingstone v Rawyards Coal Co. to which I have referred.

11 However, the matter does not end there. The first subhead of special damage contains elements of assessment made by the plaintiff. In particular, these elements comprise an estimate of the number of acres of sugar cane which were burnt, and an estimate of the number of tons of sugar cane which the acreage would have yielded. It was on these matters that learned counsel for the defence joined particular issue with the plaintiff's claim under this sub-head. It is for the plaintiff, therefore, to prove that he has made a reasonable and proper assessment of these matters. What was stated by Lord Clauson in Sunley & Co. v Cunard White Star Limited [1940] 2 All E.R. 97, at page 100, is here relevant. He said this:

“…as it was the business of the plaintiffs to establish, if it were disputed, that the wrong had been done, so also it was the business of the plaintiffs to prove the amount of the pecuniary loss occasioned to them”.

12 This now brings me to an examination of the elements of the plaintiff's calculation. The first question which I have to decide is the number of acres of sugar cane which were burnt by the fire. The plaintiff did not give evidence himself. Two witnesses were called on his behalf, namely, his wife Mrs. Georgina Kawaja, and Mr. Nelson Richards, the overseer of the Con Phipps and Walk estate. In a letter dated 21st August 1970 which was prepared on behalf of the plaintiff and which was referred to in the Statement of Claim and put in evidence at the trial, the plaintiff informed the defendant that 112 ¹/₂ acres of sugar cane had been burnt – 75 ¹/₄ acres of which represented mature sugar cane (i.e. sugar which was ready for reaping at the date of the fire) while the remaining 371 ¹/₄ acres represented immediate sugar cane. These figures were clearly estimated figures which had been calculated by or on behalf of the plaintiff. Mrs. Georgina Kawaja repeated these figures in her evidence. Mr. Nelson Richards stated that the mature acreage was 75 and that the immediate acreage was 37 ¹/₄.

13 The defendant called two witnesses, namely, Mr. Campbell Evelyn a manager of Sugar estates with some 25 Years experiences and Mr. Allan Charles Cole, the Chief Chemist employed by the defendant. On 19th April, 1970 at the instance of the plaintiff, Mr. Evelyn inspected the Con Phipps and Walk Estate in order to ascertain the extent of the damage which had been caused by the fire in question. As a result, on 15th April 1970, he prepared a report of his findings which he submitted to the plaintiff and which was put in evidence. In this report, Mr. Evelyn estimated that 125 acres of sugar cane had been burnt in all. He estimated the mature acreage at 64 ¹/₂ and the immature acreage at 60 ¹/₂. No successful attempt was made at the trial to reconcile Mr. Evelyn's figures on this point with the figures contained in the letter of 21st August, 1870.

14 Learned Counsel for the plaintiff stated and I agree with him, that Mr. Evelyn was an honest witness. But, yet that does not mean that he may not have made a mistake on this point, for example, there is no mention at all in his report of a field of burnt sugar cane called Hatchet. On the other hand, this field appears in the letter of 21 ^st August 1970 as a field of 6 ¹/₄ acres of burnt mature sugar...