WASA loses Privy Council appeal –Couple to get $2.2m for losing dream home

A DECADE after their dream home in Iere Village, Princes Town began slipping because of a leaking pipeline, homeowners Darwin and Kamlar Sahadath will receive the $2.2 million compensation ordered by the court.

On Thursday, the Privy Council dismissed the second appeal of the Water and Sewerage Authority's (WASA) challenge of a judge’s finding that the couple's house was damaged, beyond repair, by a landslide caused by the authority’s negligent failure to repair a leaking water main under the road.

In their ruling, Lords Lloyd-Jones, Kitchin, Leggatt, Burrows and Lady Rose said WASA’s second appeal (the first was at the Court of Appeal in 2018 which it lost) was one which should not have been brought as it was bound to fail.

The law lords said it was settled practice that unless there were exceptional circumstances, they did not review concurrent findings of fact made by two lower courts.

Representing WASA were attorneys Keston McQuilkin and Alivia Mootoo while Larry Lalla, Vikash Indar Lal and Alisa Khan represented the couple.

In 2017, Justice Vasheist Kokaram (now an Appeal Court judge) held that the damage done to the road, the land slippage and the Sahadaths' home was caused by a leak from a WASA main for which it failed to repair in a proper or timely manner.

He awarded the couple $2,218,954, plus interest, based on the cost of rebuilding their house and other losses. The Privy Council described Kokaram's findings as “clearly reasoned.”

The Sahadaths took legal action after their house dropped ten feet below road level and shifted 20 feet from where it was built, because of the leak which began in 2012.

The pipeline was eventually repaired and WASA relocated its main and pipelines above ground.

In late 2014, engineers determined the house was unfit for occupancy and at risk of further movement and imminent collapse. The couple and their children had to move out and are still renting.

Kokaram said he was satisfied by the couple’s evidence – which included reports by geotechnical and engineering experts – that the land slippage was triggered by the leaking pipeline.

He also said there was no evidence from the authority to suggest the land slippage and damage to the house were caused by another source or heavy rainfall.

The judge also added that it was “reasonably foreseeable” that the leak from the WASA line, if not repaired within a reasonable time, would damage the road and make the subsoil vulnerable.

According to an expert’s report, the soil in the area around the couple’s house and the WASA pipeline was Talparo clay, which was prone to swelling when exposed to water.

Kokaram also found “clearly WASA was either unresponsive or unreasonably slow” to respond to the Sahadaths’ complaints.

In their appeal, WASA did not challenge Kokaram’s findings nor did it argue that he was wrong to reject the evidence of its employees, the Privy Council ruling said.

The authority’s attorney maintained the judge was wrong to attribute any weight to the couple’s expert witnesses.

At the Appeal Court, Justices Allan Mendonca, Gregory Smith and Prakash Moosai dismissed WASA’s appeal, finding all of the authority’s criticisms to be “mostly without merit.”

At the Privy Council, WASA’s attorneys contended the Appeal Court was wrong to conclude the authority was negligent.

In dismissing the appeal, WASA was ordered to pay the Sahadaths’ costs on an indemnity basis – a higher cost contribution – unless it shows a good reason why such an order should not be made.