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IN THE SUPREME COURT OF BELIZE A.D. 2003

Action No. 608

BETWEEN:

(JUNGLE SEA VENTURE LTD CLAIMANT ( d.b.a. Jaguar Reef Lodge ( ( AND ( ( (HAMANASI LTD DEFENDANT d.b.a. Hamanasi Dive & Adventure Resort

Before: The Honourable Madam Justice Minnet Hafiz

Appearances: Mr. Said Musa SC for the Claimant Mr. A. Marshalleck SC along with Naima Barrow for the Defendant

J U D G M E N T

Introduction

This action was commenced by Writ of Summons dated 8 th December of

2003 under the old Supreme Court Rules and completed under the Civil

Procedure Rules 2005. The Claimant’s claim against the Defendant is for

damages for damage caused by fire to it’s property located in Hopkins

Village, Stann Creek District, Belize which occurred on the 30 th day of March,

2003.

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2. Parties

Jungle Sea Venture Ltd. ( “Jaguar Reef”) owned and operated Jaguar Reef

Lodge, a tourist resort located in the village of Hopkins, Stann Creek District,

Belize.

Hamanasi Ltd. (“Hamanasi ”) is a limited liability company and owned and

operated Hamanasi, a tourist resort located in the village of Hopkins, Stann

Creek District, Belize.

3. Undisputed facts

There is a six­acre parcel of land which is an open field (“field”) that

separates Jaguar Reef from Hamanasi. A variety of vegetation including

pimento trees which are highly flammable grew on the field.

There was a fire on the morning of the 30 th day of March, 2003 and four of

Jaguar Reef structures which were built of concrete with thatched roof

were completely destroyed by fire.

Hamanasi Resort kept a burn pile on its property where it burned tree

cuttings and other garbage from vegetation (“the Burn Pile”).

4. Statement of Claim

(1) In the Amended Statement of Claim dated 7 th April, 2004, Jaguar Reef claims

at paragraph four that four structures being two cabanas 28’ x 4‘ and their

contents, one main building measuring 75’ x 63’ and its contents, and a two

storey suite measuring 39’ x 45’ and its contents, all being the property of

Jaguar Reef were destroyed by fire whereby they suffered loss and damage.

The particulars of the damage is:

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Loss of four structures and contents ­ $ 752,474.34

Loss of Profits ­ $ 194,000.00

$ 946,474.34

(2) At paragraph 5, Jaguar Reef says that their property was destroyed by fire

which emanated from the burning of refuse at Hamanasi garbage site, which

said fire escaped from the said garbage site unto the Jaguar Reef’s property.

Jaguar Reef further says that fire is a dangerous thing and Hamanasi is liable

for the damage caused by the escape of the fire.

(3) Jaguar Reef claims in the alternative that the escape of the fire was caused

by the negligence of Hamanasi, its agent or servants. The particulars of the

negligence pleaded are as follows:

(i) Hamanasi failed to prevent the fire it ignited at its garbage site

from escaping on to the property of Jaguar Reef.

(ii) Hamanasi failed to have a system of inspection which would

detect and discover that fire it ignited at the said site was totally

extinguished.

(iii) Hamanasi failed to supervise the burning of refuse at its garbage

site to ensure that fire did not escape from the said site.

(4) As such, Jaguar Reef claims Damages, interest and cost.

5. Defence

(1) Hamanasi denies that the fire which caused damage and loss to Jaguar Reef

escaped from its premises and denies that it started any fire on the day in

question. Hamanansi further says that in any event the damage and loss

occasioned by the fire was caused or contributed to by the negligence of

Jaguar Reef. The particulars of negligence are failure to:

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a) take any or any adequate steps to extinguish the fire when burning in

the property immediately adjacent to the Jaguar Reef Lodge;

b) cut or keep clean of vegetation and/or other fuel for fire an area of the

property immediately adjacent to the thatched structures comprising

Jaguar Reef Lodge.

c) provide or to have available for use on the property of Jaguar Reef

Lodge any fire fighting equipment

6. Issues for determination

(1) Jaguar Reef and Hamanasi by their Counsel agreed on the 21 st day of

February, 2007 that the issues for determination in this Claim are:

a. Whether Jaguar Reef’s property was destroyed by Fire which

emanated from the burning of refuse at Hamanasi garbage site.

b. Whether the Fire was caused by the negligence of Hamanasi, its

agents or servants.

c. Whether Jaguar Reef is entitled to damages caused by the Fire.

d. Whether the damage or loss to the Jaguar Reef property was

caused or contributed to by the negligence of Jaguar Reef.

(2) This claim against Hamansi is also brought on the basis of a cause of action

founded on the case of Rylands v Fletcher as shown in the pleadings.

Learned Counsel, Mr. Musa addressed this rule in his written submissions.

As such, another issue that arises for consideration is whether Hamanasi is

liable under the rule of Rylands v Fletcher.

7. Witnesses

The witnesses for the Claimant are Bruce Foerster, Ollie Natividad, Reva

Dark, Michael Middleton and Dennis Gonguez. The witnesses for the

Defendant are David Krauskopf, Desmond Gordon, Patricia Andrews, Victor

Aranda, Pauline Castillo and Juanita Augustine.

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8. Submissions on the law for Claimant

(1) Both parties filed written submissions which I will summarise without doing

any injustice. Learned Senior Counsel, Mr. Musa in his written

submissions relied on the rule in Rylands v Fletcher 1 where it is shown

that where the Defendant had made “a non­natural use” of his land and it

escapes causing damage, then it is unnecessary for the Claimant to prove

negligence. In this case which was affirmed in 1886 by the House of Lords

(1886) L.R.3 HL 330, Blackburn J. stated the rule thus:

We think that the true rule of law is, that the person who for his own

purposes brings on his land and collects and keeps there anything

likely to do mischief if it escapes, must keep it in at his peril, and, if

he does not do so, is prima facie answerable for all the damage

which is the natural consequences of its escape. In the House of

Lords, Lord Cairns concurred in his Jugdment, but introduced an

element of flexibility by restricting the rule to circumstances where

the Defendant had made “a non­natural use” of the land. This is

strict liability, it is thus unnecessary for a Plaintiff to prove

negligence in the Defendant or his agents.

(2) See also Clerk & Lindsell on Torts 18 th Edition at paragraph 20­1 where the rule is stated. Learned Senior Counsel also referred to paragraph 20­46

where it is stated that fire is a dangerous thing.

Danger from fire. Fire is a dangerous thing and consequently the

principle of Rylands v Fletcher applied to it. At common law if a fire

1 (1866) L.R.1 Ex 265 at 279

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started on the land of one person and spread to the land of another, the

person from whose land the fire started had to make good the damage.

His liability was not based on negligence for he was liable for accidental

fires. The only defences were the act of God, which could not have

been foreseen; the act of default of the Claimant; the consent of the

Plaintiff; the independent act of a third party such as a trespasser; and

statutory authority…

(3) Learned Senior Counsel further relied on the case of Musgrove v

Pandelis 2 where the principle in Rylands v Fletcher was applied. Mr. Musa contends that the Musgrove case is clear authority for attributing liability to the Defendant both on the principle of Rylands v Fletcher and in negligence

of the agents of the Defendant.

(4) Learned Senior Counsel, Mr. Musa submits that the fire in the present case

spread from the Defendant’s land to the Claimant’s property, travelling some

300 feet away and the resulting damage was foreseeable unlike the House

of Lords case of Cambridge Water Co. 3 where the use of a solvent at a

tannery which seeped into the water table and polluted the Plaintiff’s water

source 1.3 miles away was not in the circumstances foreseeable.

(5) Mr. Musa made further submissions on the duty of care and relied on the

Privy Council case of Goldman v Hargrove 4 where it was held that an

occupier of land was under a general duty of care in relation to hazards,

whether natural or man­made, occurring on his land to remove or reduce

such hazards to his neighbours; that the existence of such duty must be

based on knowledge of the hazard, ability to foresee the consequences of not

checking or removing it and the ability to abate it and that the standard of care

2 (1917) 2KB 43 3 (1994) 2 A.C. 264 4 (1967) A.C. 645

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required of the occupier is founded on what it was reasonable to expect of

him in the circumstances.

(6) See also the cases of Black and The Christchurch Finance Co. 5 and

the Privy Council decision of Mason v Levy Auto Parts 6 relied on by

Learned Senior Counsel.

(7) In the Mason case it was held that the principle of law to be applied, following Musgrove v Pandelis, was that a Defendant would be liable (apart

from questions of whether the fire was caused by a stranger or by an act of

God, for a fire on his land spreading to damage his neighbour’s property, if (a)

the Defendant had brought on to his land things likely to catch fire, and had

kept them there in such conditions that, if they did ignite, a fire would be likely

to spread to his neighbour’s land, (b) the Defendant did so in the course of

some non­natural use and (c) the thing ignited and the fire spread. Mackenna

J. held that the Defendant’s use of the yard was a non­natural use of the

land, having regard to the quantities of combustible material that they had

brought on it, the way in which the material was stored and the character of

the neighbourhood and accordingly the Defendants were liable.

(8) On the question of natural or non­natural use of Defendant’s property the Cambridge Water Co. case which was decided in favour of the Defendant

on the ground that the pollution caused to the Plaintiff’s water source some

1.3 miles away was too remote and not foreseeable, the House of Lords

(Lord Goff of Cheveley) however decided that the use of the solvent in the

manufacturing process by the Defendant was a “non­natural use” within the principle of Rylands v Fletcher.

5 (1894) A.C. 48 6 (1967) 2AER at 62

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(9) Learned Senior Counsel, Mr. Musa submits that in the present case the

collection of leaves and other refuse stored for burning at a burn pile or

garbage dump on the Defendant’s property was a non­natural use which

clearly posed potential damage to the Claimant’s neighbouring property and

which when the fire escaped did cause actual damage within the principle of Rylands v Fletcher.

(10) Alternatively, Mr. Musa argued that the damage was as a result of the

Defendants negligence and that of his workers agents for the following

reasons:

(i) The area where the fire occurred was a tourist resort area near the

village of Hopkins where a community dump site was available to

the Defendant company.

(ii) The Claimant’s Jaguar Reef buildings had roofs that were thatched

which were flammable. The Claimant utilized the village dump site

by regularly transporting its garbage to the village dump site. The

Defendant did not. They burnt their garbage on their land, despite

the risk of fire escaping to their neighbour’s property. And they

failed to prevent the fire from escaping to the property of the

Claimant.

(iii) There was no system of inspection which would detect and

discover that fire at the Defendant’s burnt pile was totally

extinguished and to ensure that fire did not escape from the site.

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9. Submissions on the Law for the Defendant

(1) Learned Senior Counsel, Mr. Marshalleck submits that the burden of

proving that the fire originated from Hamanasi’s property and/or resulted

from the negligence of Hamanasi’s employees rests squarely on the

Jaguar Reef, the Claimant. Further, that Jaguar Reef has manifestly

failed to discharge this burden so that the claims must fail. Learned

Senior Counsel relied on the case of Rhesa Shipping v Edmonds (The Popi N) 7 where it is established that if a claimant has not proven a

probable cause of loss, the claim must fail.

(2) Learned Senior Counsel contends that Jaguar Reed has failed to prove on

a balance of probabilities that

i) the Fire originated from the Burn Pile on Hamanasi’s property; and

ii) that the Fire at the Burn Pile was lit by the servants or agents of

Hamanasi;

(3) Further that Hamanasi has positively proven that the Fire did not originate

from its burn pile and was not lit by any of its servants or agents.

(4) Learned Senior Counsel relied on the case of Amsprop Ltd v ITW Ltd

(trading as Hobart UK) 8 where a defendant put the claimant to proof as

to the cause of the fire and disputed that its employee was negligent in

causing the fire. It was held that the claimant had not made out its case in

circumstances where there were a number of possible origins of the fire

and none was more probable than the other. In so finding it was

explained as follows:

In relation to the cause of fire, I cannot, on the evidence,

conclude that it was less likely, let alone much less likely, that

7 (1985) 1 WLY 948 8 (2009) All ER (D) 32 Nov.

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the fire was caused by a flare up of food on the grill rather

than by a flame from one of the burners being drawn into the

duct. On the evidence as presented to me, it would be

speculation to say which seems the more possible cause.

(5) Relying on this authority Mr. Marshalleck submits that on the evidence the

Court cannot conclude that it was less likely that the fire started in the field

by some unknown stranger to Hamanasi rather than by an employee or

agent of Hamanasi lighting fire on the burn pile and as such it would be

rank speculation for the Court to say which is the more possible cause.

Learned Senior Counsel contends that in such circumstances the correct

legal position is to find the Claimant has failed to prove its case and that

the claim fails.

Issue 1: Whether Jaguar Reef’s property was destroyed by fire which

emanated from the burning of refuse at Hamanasi garbage site.

10. Jaguar Reef’s submission on the evidence

(1) On this issue Learned Senior Counsel Mr. Musa submits that the photos

taken by Bruce Foerster, Managing Director of Jaguar Reef shows the

burnt area and also shows that the fire emanated from the refuse dump

or burnt pile on Hamanasi’s property, which, with “the gusty northwesterly

winds” prevailing the morning of Sunday, March 30 th 2003, spread through

an open adjoining field into Jaguar Reef’s property.

(2) Learned Senior Counsel referred to the evidence of Mr. Michael Middleton

the Operations Officer of the National Fire Service of Belize whose

evidence shows that the direction which the fire travelled shows that it

started from the Southwestern end of Hamanasi compound at or near the

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garbage pile belonging to Hamanasi Lodge and travelled in a

Southeasterly direction and burnt the entire area including four of Jaguar

Reef buildings.

(3) Learned Counsel submits that the findings of Mr. Middleton are fully

consistent with the Report of the Weather Bureau for the weather on the

day of the fire, that is, Sunday March 30 th . Mr. Musa referred to the

Report of Mr. Dennis Gonguez Meterologist/Senior Forecaster which was

admitted in evidence by agreement of both parties.

(4) Mr. Musa also referred to the evidence of Ollie Natividad and Reva Dark

who testified for the Claimant that the fire emanated from the burning of

refuse at Hamanasi’s garbage site.

11. Hamanasi’s submissions on the evidence

(1) Learned Senior Counsel, Mr. Marshalleck submits that Jaguar Reef

claims fail if either of the following allegation remain unproven: (i) that the

Fire originated from the Burn Pile; and (ii) that the Fire was lit by

employees or agents of Hamanasi.

(2) Mr. Marshalleck submits that on an assessment of the evidence adduced

at trial, Jaguar Reef has failed to prove either of these critical allegations

on a balance of probabilities. Learned Senior Counsel contends that

while Mr. Michael Middleton found in his report that the Fire was caused

by human negligence, he has always maintained that he was not able to

ascertain what open flame or heat source ignited the Fire or identify who

started the Fire. Further, that Mr. Middleton stated that the fire started at

or near the Burn Pile and so was unable to say whether the Fire was

started by Hamanasi or its employees and was equally unable to say that

the Fire started at Hamanasi’s Burn Pile. Learned Counsel submits that

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Mr. Middleton could only maintain that the fire probably started in that

general vicinity. As such, Learned contends that it is equally probable

that the Fire started at the Burn Pile or in an area in the Field next to the

Burn Pile so that it would be rank speculation for the Court to find that it

started at the Burn Pile on the basis of Mr. Middleton’s evidence alone.

(3) Mr. Marshalleck also referred to the evidence of Mr. Natividad under

cross­examination and submits that the two employees of Hamanasi,

whom Mr. Natividad claimed to have seen at the Burn Pile at 9:00 a.m.

could not have started the fire because the testimony of Victor Aranda,

Pauline Castillo, Desmond Gordon, Patricia Andrews and David

Krauskopf establishes that at or about 9:00 a.m. the fire was already in

the field.

(4) Learned Senior Counsel also referred to the evidence of Reva Dark who

testified that she did not see the employees of Hamanasi actually strike

the match and set the Fire and that she only saw them in the area of the

Burn Pile. That the fire was already lit when she got to the burn pile. Mr.

Marshalleck also referred to Ms. Dark’s evidence under cross­examination

where she said among other things that she lives less than a mile from the

Field and got to the Fire after seeing “big smoke” from her house.

(5) Learned Senior Counsel submits that Jaguar Reef has failed to establish

on a balance of probabilities that the Fire originated from the Hamanasi

Burn Pile or that the Fire was started by Hamanasi or it’s servants or

agents.

(6) Further, Learned Senior Counsel contends that Hamanasi has positively

alleged that the Fire did not originate from its Burn Pile and was not lit by

any of its employees or agents. Learned Counsel referred to the evidence

of Desmond Gordon, the Chief Gardener for Hamanasi and Victor

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Aranda. Also, Mr. Marshalleck submits that the pictures adduced into

evidence by Mr. Foerster shows that the field was open and access

thereto was unrestricted so the possibilities as to who started the fire are

endless.

(7) Learned Senior Counsel submits that on a balance of probabilities the fire

did not originate from the burn pile nor was the fire lit by Hamanasi or its

servants or agents.

12. Burden of Proof

(1) I am in agreement with Learned Senior Counsel, Mr. Marshalleck that that

the burden of proving that the fire originated from Hamanasi’s property

and resulted from the negligence of their employees rest on Jaguar Reef.

(2) I am also in agreement with Learned Senior Counsel that if a Claimant has

not proven a probable cause of loss, the claim must fail. In Rhesa

Shipping Co v Edmunds cited by Counsel the House of Lords

considered the case which involved the sinking of a ship, the Popi M

which sank in calm weather in the Mediterranean in deep water when

laden with a cargo of bagged sugar. The issue was in effect what had

caused it to sink. Lord Brandon gave the lead judgment. He said at page

951A­G as follows:

My Lords, the appeal does not raise any question of law, except possibly the question what is meant by proof of a case 'on a balance of probabilities'. Nor do underwriters challenge before your Lordships any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether on the basis of those primary findings of fact, Bingham J and the Court of Appeal were justified in drawing the inference that the ship was, on the balance of probabilities, lost by perils of the sea.

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In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they choose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

The second matter is that it is always open to a court, even after the kind of prolonged enquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.

(3) Lord Brandon went on to say at page 717 of his judgment that no judge

likes to decide cases on burden of proof if he can legitimately avoid

having to do so. There are cases however, in which, owing to the

unsatisfactory state of the evidence or otherwise, deciding on the burden

of proof is the only just course for him to take. He also went on to say

that:

….. the dictum can only apply when all relevant facts

are known, so that all possible explanations, except a

single extremely improbable one, can properly be

eliminated. The state of affairs does not exist in the

present case: to take but one example, the ship sank in

such deep water that a diver’s examination of the nature of

the aperture, which might well have thrown light on its

cause, could not be carried out.

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…the legal concept of proof of a case on a balance of

probabilities must be applied with common sense. It

requires a judge of first instance, before he finds that a

particular event occurred, to be satisfied on the evidence

that it is more likely to have occurred than not. If such a

Judge concludes, on a whole series of cogent grounds, the

occurrence of an event is extremely improbable, a finding

by him that it is nevertheless more likely to have occurred

than not, does not accord with common sense. This is

especially so when it is open to the Judge to say simply

that the evidence leaves him in doubt whether the event

occurred or not, and that the party on whom the burden of

proving that the event occurred lies has therefore failed to

discharge such burden.

(4) Lord Brandon concluded at page 718 that the only inference which could

justifiably be drawn from the primary facts found by Bingham J was that

the true reason of the ship’s loss was in doubt, and that neither

Bingham J nor the Court of Appeal were justified in drawing the

inference that there had been a loss by perils of the seas, whether in the

form of a collision with submerged submarine or any other form.

(5) The court will be guided by the principles as discussed by Lord Brandon.

13. Origin of the fire

(1) Jaguar Reef’s case is that their properties were destroyed by fire which

emanated from the burning of refuse at the Defendant’s garbage site,

which said fire escaped from the said site unto Jaguar Reef’s premises.

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Hamanasi in their Defence said that any damage or loss occasioned by

the fire was caused by the negligence or contributed by the negligence

of the Claimant.

(2) Learned Senior Counsel, Mr. Marshalleck in his written submissions

submits that on the evidence the court cannot conclude that it was less

likely that the fire started in the field by some unknown stranger rather

than by an employee by Hamanasi lighting fire on the burn pile. In the

case of Amsprop Ltd v ITW Ltd (trading as Hobart UK) relied on by

Learned Senior Counsel there were a number of possible origins of the

fire and none was more probable than the other. It could have been

that the fire was caused by a flare up of food on the grill or by a flame

from one of the burners being drawn into the duct. On the evidence it

would have been speculation for the Judge to say which seems

the more possible cause.

(3) In the case at hand, the court will analyse the evidence to determine

the origin of the fire or whether there are a number of possible

origins of the fire.

14. Analyses of the evidence as to the origin of the fire

(1) Photograph

“Exhibit BF 1” which is a photograph shows the burn patterns. Mr.

David Krauskopf in cross examination did not dispute the position of

the garbage pile as seen in the photograph. This photograph shows

the burn patterns of garbage pile, the field and Jaguar Reef’s

property.

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(2) Report of Operations Officer, National Fire Service

(i) Mr. Michael Middleton, Operations Officer of the National Fire Service

prepared a report on the fire which caused damage to the Claimant’s

property. An extract from his Report on the Investigation which is

evidence before the court shows:

INVESTIGATION

Investigation reveals that on Sunday 30 th March, 2003, an employee of Jaguar Reef Resort alerted the Dangriga branch of the National fire Service of a bush fire that is threatening the lodge. The department responded and on arrival found three structures totally engulfed and a fourth burning from its roof they got into operation thus extinguished the remains. Further investigations reveals that between Hamanasi Lodge and Jaguar Reef Lodge was an area with no construction but high bushes. The bush fire had traveled from near the boundary of Hamanasi Lodge. Also it was discovered that in the area just where the fire started is a garbage pile belonging to the said Hamanasi Lodge. This pile was found to be freshly covered with sand as if to smother a fire. The direction of the fire travel shows that this fire started from the Southwestern end of Hamanasi compound at or near the garbage pile belonging to Hamanasi Lodge and traveled in a Southeasterly direction and burnt the entire area including four Jaguar Reef buildings. (Emphasis added).

Investigating officers comment Interviews were taken from Mr. Desmond Gordon. Mr. Victor Aranda both employees of Hamanasi Lodge who confirms that there was no sun out and it was a cool and very windy day.

This prove that the fire could not have started naturally as there was no heat source present. Therefore it is my opinion that this fire had to be started by someone.

Analysis of burn patterns indicates that the fire started as a low burn in the area of the garbage pile and travelled away and towards Jaguar Reef continuing to burn both high and low

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Charred remains of trees also indicate that the fire came from the said direction. (emphasis added)

Conclusion

The fire originated at or near the garbage pile belonging to Hamanasi Lodge and spread in a southeasterly direction to Jaguar Reef causing these four structure to be destroyed as a result. The fire started as a result of an open flame or some other heat source. Cause of the fire at Jaguar Reef Lodge was a result of the bush fire. (emphasis added).

Findings on Report

(ii) I find that this Report prepared shortly after the fire by Mr. Middleton

from the National Fire Service gives an accurate account of the fire. Mr.

Middleton has no personal interest in the outcome of any dispute and as

such, I find his report reliable evidence as to the cause of the fire. The

findings by Mr. Middleton shows that the garbage pile belonging to the

said Hamanasi Lodge was found to be freshly covered with sand as if to

smother a fire. Further the direction of the fire travelled shows that the

fire started from the Southwestern end of Hamanasi compound in the

vicinity of the said garbage pile. If the report is read as a whole, it will be

seen without a doubt that the cause of the fire was as a result of the fire

which originated from the garbage pile. Mr. Middleton further stated in

the said report that burn patterns indicates that the fire started as a low

burn in the area of the garbage pile and travelled away and towards

Jaguar Reef

(3) Dennis Gonguez – Meteorologist

(i) The uncontradicted evidence of Mr. Gonguez, the Meterologist/Senior

Forecaster as shown in his report is that:

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At around 10:00 a.m. on Sunday 30 th March, 2003, cold front was crossing the country. Accompanying this system were strong and gusty northwesterly surface winds. Average wind speed with the passage of this front were near 15 knots. However, measured gusts around 10:00 a.m. at the National Meteorological Service were 25 knots. These same wind speeds and gusts would have been experienced countrywide at least within the next hour. Hopkins Village would then have also felt these same winds averaging 15 knots in speeds with gusts to 25 knots a short time later.

(ii) Findings

This evidence shows the direction and speed in which the wind was

blowing. Further, it shows that it was a cool day.

(4) Witness Statements and Oral evidence

(a) Witnesses for the Claimant

(i) Bruce Foerster

Mr. Foerster, Managing Director of Jaguar Reef was in Canada at the

time of the fire and therefore, I do not find his evidence helpful with

regards to the origin and cause of fire.

(ii) Reva Dark

Ms Dark in her witness statement said that on the morning of the fire she

saw two of Hamanasi’s employees burning trash at the site of the burn

pile. She testified that she did not actually see them strike the match

and set the fire. She said that she can remember seeing Johnny Cake

and another person at the burn pile but at the time the fire was already

lit. In cross­examination, it was made clear that when Ms. Dark saw the

two men at the burn pile the fire had already started. Ms. Dark’s

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evidence in my view is unreliable. She did not say at what time she saw

the employees burning the trash and it could have been possible that the

employees were trying to put out the fire.

(iii) Ollie Natividad

Mr. Natividad in his witness statement stated that he witnessed two of

Hamanasi’s employees burning trash at the site of the burn pile. Under

cross­examination he admitted that he did not see Hamanasi’s

employee light the fire. Natividad’s evidence is that he saw the fire

about 9:00 and thought he saw two people with Hamanasi’s uniform.

Under cross­examination he said that it was possible he saw two of

Hamanasi’s employees fight the fire. It was also put to Mr. Natividad

that the fire started at 8:00 a.m. and not 9:00 to which he replied that

he cannot remember since a long time has passed.

Mr. Natividad’s evidence is also unreliable. In my view, his evidence in

cross­examination is clearer as it seems that when he saw the men they

were trying to put out the fire.

(iv) Mr. Michael Middleton – Fireman

I dealt with Mr. Middleton Report above separately as it was prepared

shortly after the fire and at a time when he was not a witness for the

Claimant. At the time of the fire, Mr. Middleton was the Operations

Officer of the National Fire Service of Belize. He has been a fireman

since 1994 and at the time of the fire he had nine years experience. He

did a fire investigation course in January 2002 conducted by the Virginia

Fire Marshall Academy.

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Mr. Middleton who has no axe to grind, at paragraph 8 of his witness

statement states, “That the direction of the fire travel showed that the fire

started from the Southwestern end of Hamanasi compound at or near

the garbage pile belonging to Hamanasi Lodge and travelled in a

Southeasterly direction and burnt the entire area including four of Jaguar

Reef buildings.” This evidence is consistent with his Report as it clearly

shows that the fire started from the Southwestern end of Hamanasi

compound. In this area there is the burn pile. In Middleton’s evidence

he used the words “at or near” the garbage pile. In my view this does

not show two origins of the fire. It was clearly stating the origin of the fire

to be the garbage pile. Paragraph 7 of his witness statement clearly

shows that his investigation revealed that at the area where the fire

started there was a garbage pile and the pile was found to be freshly

covered with sand as if to smother a fire. In cross examination Mr.

Middleton stated that he was not able to ascertain the open flame source

or who started the fire. He came to the conclusion that it was due to

human negligence. “The weather was such that somebody had to start

it.” He also said that the fire could have been smouldering for days

before it rekindled. “The origin was the garbage pile. Both possibilities

are likely smouldering or lit that day.”

In my view, what flame source was used to start the fire is not relevant

under the circumstances of this case. It has been ruled out by the

evidence that it was not an act of God. The garbage had to be lit by

someone which resulted in the bush fire. Mr. Middleton’s evidence

shows that the fire started on Hamanasi’s property at the burn pile

which is consistent with the Report prepared shortly after the fire.

Further, Mr. Middleton’s evidence is substantiated by the Report of the

Meteorologist showing the direction of the wind.

22

(b) Witnesses for Defendant

(i) Ms. Patricia Andrews

Ms. Andrews who is a Supervisor at Hamanasi stated in her witness

statement that on Sunday March 30, 2006, sometime between 8:00

a.m. and 9:00 a.m. she was working at the front desk at Hamanasi

when she received a phone call from one of the managers at Jaguar

Reef Lodge, known to her as Russell who informed her that a fire was

coming from the direction of Hamanasi.

Ms. Andrews also gave evidence as to who was responsible for burning

on Hamanasi property. She stated that only Desmond Gordon and

Victor Aranda were ever authorized to burn and did burn anything on

Hamanasi property and that was only if the fires were supervised and

never on windy days. She did not say supervised by whom. However,

in cross­examination she said that someone by the name of Johnny

Cake was also working as a maintenance ground’s man.

Ms. Andrew’s did not see where the fire started. The evidence is

helpful with respect to the time of the fire and who are the ground

workers, and those responsible for burning garbage.

(ii) Pauline Castillo

Ms. Pauline Castillo was a waitress in the restaurant of Hamanasi. In

her witness statement she said she learned of the fire between 9:00 a.m.

and 9:30 a.m from a guest at Hamanasi. At paragraph 10 of her

witness statement she said that on her way to Jaguar Reef Lodge she

saw a clump of pimentos close to Jaguar Reef Lodge burst into flame.

The sparks from this explosion flew into the air and landed on the first

Jaguar Reef Lodge cabana and quickly caught its thatch roof on fire.

She also gave evidence that she did not see any of Jaguar Reef’s

23

employee’s help fight the fire. That it was Hamanasi’s employees who

fought the fire.

Ms. Castillo’s evidence shows how the fire spread to Hamanasi.

However, she did not see where the fire started.

(iii) Juanita Augustine

Ms. Augustine at the time of the fire was working in the laundry room of

Hamanasi. She learned of the fire around 10:00 am. In her witness

statement she said that when she learned of the fire she headed in the

direction of Hamanasi’s main building. At this time she saw Aaron

“Johnnycake” Nunez cleaning the pool in front of Hamanasi’s main

building and shouted to him that there was a fire in the field and to go get

help.

In cross­examination she said that at the time of the fire she knew

nothing of the garbage pile and also confirmed that Johnny Cake was by

the pool at 10:00. In re­examination she said that when she came out to

see the fire it was by Jaguar Reef kitchen.

Ms. Augustine’s evidence place Johnny Cake at the pool around 10:00

a.m. when the fire was already by Jaguar Reef. The evidence before

the court is that the fire started between 8:00 a.m. and 9:00 a.m which

I accept. I find Ms. Augustine’s evidence unreliable that Johnny Cake

was busy cleaning the pool at 10:00 when the fire started to rage

between 8:00 and 9:00 am. In any event, she did not see where the

fire started.

24

(iv) Desmond Gordon

Desmond Gordon was the chief gardener for Hamanasi at the time of

the fire. In his witness statement he said that at the time of the fire

Victor Aranda and himself were trimming trees in front of the Hamanasi

property. From paragraph 3, he said the following:

Around 8:00 a.m. Victor told me that he was going to take a wheelbarrow

load of cuttings to the debris pile.

It was a windy day so I reminded Victor not to burn the debris and he responded by telling me that he was a big man and wasn’t a fool and that he knew better than to burn anything on such a windy day.

Shortly after the left, Victor came running back to me shouting that there was a fire in the field.

Upon hearing this, I immediately started running through the woods to get to the field

We entered the field about half way between the road and the beach and saw a huge fire about 20 feet from Hamanasi’s border and close to the beach.

When we first saw the fire, it seemed to be heading in the direction of Jaguar Reef Lodge.

It seemed that the fire had started close to the beach as the bushes close to the beach had already burned.

Shortly after I arrived at the field I saw David Krauskopt, the owner of Hamanasi along with Peit Van Zyl, Aaron Nunez and some construction workers who had been doing work at Hamanasi.

David Krauskopt told Victor and I throw sand and water from the sea to out any fire near Hamanasi’s border and to use our spades to dig a hole and cover any old sticks and other dry stuff found close to the Hamanansi border as he was concerned of the danger the fire posed to Hamanasi.

25

David Krauskopf told Victor and I to stay and protect the Hamanasi border while he, Aaron Nunez and some of the construction workers went towards Jaguar Reef Lodge.

Shorty after I arrived at the field, I saw the thatch roof of the building closest to the beach at Jaguar Reef Lodge catch afire.

However, Victor and I stayed in the field close to the Hamanasi border until about midday when we left lunch.

When I arrived and during the course of the fire, I never saw any Jaguar Reef Lodge employees in the field.

After lunch David Krauskopf told Victor and I to clean out the fire path along the Hamanasi property.

Victor and I were using out machetes to cut the area to the ground when two policemen approached us and told us to put away the machetes and go along with them.

Victor, Aaron Nunez and I rode the back of the police truck to Dangriga when they took us one by one and questioned each of us. They asked me what I knew about the fire and I told them.

We were in Dangriga until late evening when David Krauskopf called the police and asked about us and was told that he could send for us.

The policy at Hamanasi as told by me by Dana Krauskopf was that Victor and I were to burn small piles of debris on calm days only and that only the two of us were to attend to the burning and ensure that all fires were properly extinguished.

The practice was that Victor would bring whatever debris needed burning while I stayed at the pile with water and added the debris bit by bit until the burning was through and then we would use water from the garden and ensure the burn piles were properly extinguished.

Only Victor and I were authorized to burn and as far as I know Victor and I were the only ones that ever burned anything on the property.

I know we were not burning anything on the day of the fire because it was a windy day and I remember the last burning taking place on the Thursday before the fire.

26

In cross­examination, he said that whenever they have garbage they

take it to the pile and burn it little by little. That they used water to out the

fire and do not burn on windy days. That it was five or ten minutes

when Victor came running back saying there was a fire between

Hamanasi and Jaguar Reef. He also made it clear in cross­examination

that when he saw the fire by the seaside, from where he was standing,

he could not see the garbage pile as there were lots of trees between

there and the burn pile.

I have carefully considered the evidence of Mr. Gordon and I do not

accept his evidence that “the fire had started close to the beach as the

bushes close to the beach had already burned”. When Mr. Desmond

first saw the fire, it was, as he put it a “huge fire” and further in cross­

examination he said when he saw the fire, from where he was standing

he could not see the garbage pile as there were lots of trees between

there and the burn pile. As such, I find that Mr. Gordon did not see or

cannot say where the fire started.

(v) Victor Aranda

Mr. Aranda was a gardener at Hamnasi at the time of the fire. From paragraph 2 of his witness statement he gave evidence as to what transpired on the day of the fire. He stated that :

On Sunday, March 30, 2006, at approximately 7:30 or 8:00 a.m. Desmond Gordon and I were cutting leaves and cleaning the area in front of Hamanasi.

I was on my way to dump some of the leaves we had just cut at the debris pile site when I saw a fire in the field next to Hamanasi.

I never got to the dump site but left my wheelbarrow about 100 to 200 feet from the dump site.

27

I immediately ran back to where Mr. Gordon was and shouted at him that there was a fire in the field.

Mr. Gordon and I then went to the field to fight the fire.

When I arrived at the field, the fire was already close to Jaguar Reef Lodge and expanding in all directions.

Soon after we got there, I saw David Krauskopf, the owner of Hamanasi, David’s father, Peit the hotel manager and some of the construction workers that were building a tree house room close to the dump site all fighting the fire.

Mr. Krauskopf told Victor and I to throw sand and water from the sea to out any fire near Hamanasi’s border and to use our shovels to dig a hole and cover any old sticks and other dry stuff found close to the Hamanansi border as he was concerned of the danger the fire posed to Hamanasi.

During the time we were at the field I never saw any Jaguar Reef Lodge employees in the field trying to put out the fire or at least helping.

About 10 to 15 minutes after I arrived at the field the first Jaguar Reef Lodge building caught fire.

However, Mr. Gordon and I stayed in the field close to the Hamanasi border until about midday when we left for lunch.

After lunch David Krauskopf told Mr. Gordon and I to clean the fire path along Hamanasi’s property.

Mr. Gordon and I were using our machetes to cut the area to the ground when we were approached by two policemen who told us to put away the machetes and go with them.

Mr. Gordon, Aaron Nunez and I rode in the back of the police truck to Dangriga when they took us one by one and questioned each of us. They asked me what I knew about the fire and I told them what I knew. I also told them that we had not been burning anything that day and did not know how the fire started.

We were in Dangriga until about 6:00 p.m. when Mr. Krauskopf sent someone to Dangriga for us and we went home.

28

The policy at Hamanasi as told to me by Dana Krauskopf was that Mr. Gordon and I were to burn small piles of debris on calm days only and that only the two of us were to attend to the burning and ensure that all fires were properly extinguished.

The practice was that I would take whatever debris needed burning to the burning pile while Mr. Gordon stayed at the pile with water and added the debris bit by bit until the burning was through. After that we would use water from the garden and ensure the burn piles were properly extinguished.

Only Mr. Gordon and I were authorized to burn and as far as I know Mr. Gordon and I were the only ones that ever burned anything on the property.

I remember not burning anything on the day of the fire because it was windy day.

I remember the last time we burned debris was three days before on the Thursday morning.

In cross­examination, Mr. Aranda said that at the time of the fire he was

working for Hamanasi for about two weeks. He said that he was about

200 yards from the dump site when he saw the fire. He said that he

could not tell where the fire was coming from because “I see it out deh done burn already.”

He said that since he was working with Hamanasi they burnt garbage

only once. That the burn site is a hole four feet deep and six feet wide.

Also that after burning the garbage, they wet it and then cover it with

sand. He also said that everytime they burn garbage they have to dig

the dump site again. He further said that on the Thursday before the

fire they burnt leaves.

In further cross­examination he said that Johnny Cake was with Mr.

Gordon when he went to tell him about the fire.

I have carefully considered the evidence of Mr. Aranda and it is clear

that he did not see where the fire started and he is the one who alerted

29

Mr. Gordon about the fire. I also find it believable that Johnny Cake

was with Mr. Gordon when Mr. Aranda alerted him about the fire. The

three grounds men were all present on the ground on the morning of the

fire.

Mr. Aranda was the first employee according to the evidence to see the

fire. He is the one who alerted Mr. Gordon. In his witness statement he

said “I saw the fire in the field next to Hamanasi.” However, in cross

examination he said that he could not tell where the fire was coming

from because “ I see it out deh done burn already”.

I find that Mr. Aranda could not say where the fire started because it

was already spreading. Further, he admitted he could not tell from

where the fire was coming.

(vi) David Krauskopf

Mr. Krauskopf, one of the owners of Hamanasi resort in his witness

statement said that he learnt of the fire approximately 9:15 a.m. and

arrived at the scene around 9:20 a.m. and saw that the fire was 50 feet

away from the tree line and threatening the border of the Hamanasi

property. From this evidence it can be seen that Mr. Krauskopf did not

see where the fire started.

In cross­examination, Mr. Krauskopf said that he no longer maintain the

garbage dump. That he now compost his garbage or haul it away. That

he stopped burning garbage because it is dangerous and further there

is another resort close by, Belizean Dreams. In cross­examination, Mr.

30

Krauskopf was shown Exhibit “B.F. 1” and he said that he sees the

area depicted as the burn pile on the photograph.

In re­examination Mr. Krauskofp was asked about his policy regarding burning on the burn pile and he had this to say:

Yeah, we were very strict. Desmond was really the only recognized person to be present or supervise burning but he was friends with Victor and so he worked, I guess within the previous week where you heard them describe that they burn and they were required to have water and stay with it the entire time, make sure that it was out if they ever to burn.

Mr. Krauskopf evidence also confirms that his employees were

authorised to burn garbage on Hamanasi’s property.

15. Conclusion as to origin of fire

(1) The court carefully observed the witnesses and assessed their credibility

and reliability. The court has also carefully considered the submissions on

both sides. The court finds that the Claimant has discharged its burden of

proof by proving as a matter of fact that the fire which destroyed its

property emanated from the garbage pile on Hamanasi’s property.

(2) In the case at hand, the circumstances are different in relation to the Rhesa case and the Amsprop case. In the Rheas case the ship sank in

such deep water that the diver’s examination could not be carried out to

show cause of sinking. In Amsprop case the Judge on the evidence

could not conclude whether the fire was caused by a flare up on the grill

rather than by a flame on one of the burners. The vicinity of the fire was

known but the cause of the fire was unknown so the court could not find

that Mr. Parkinson was negligent in not ordering the Hard Rock Café to

31

shut down until after the duct has been cleaned and deposits of grease

removed.

(3) In the case at hand, there is absolutely no evidence that the fire could

have started in the field by some unknown stranger. The evidence shows

only one origin of the fire and that is from the burn pile on Hamanasi’s

property. The witnesses before the court who saw the fire did not see or

could not see the origin of the fire. The evidence as to the source of the

fire really came down to (i) The evidence of Mr. Middleton, Fireman, (a

witness who did not see when the fire started) who prepared an

Investigative Report shortly after the fire; (ii) The Meteorologist Report

which shows the direction of wind and wind speed; and (iii) Photograph

labelled “Exhbit BF 1” which shows the burn patterns from the garbage

pile to Jagaur Reef’s property.

(4) Having carefully assessed the evidence, I find as a matter of fact that the

fire originated from the burn pile on Hamanasi’s property as a result of the

burning of garbage. As such, I find that Jaguar Reef’s property was

destroyed by fire which emanated from the burning of refuse at Hamanasi

garbage site.

(5) In the circumstances of this case, it is irrelevant as to what heat source

was used to start the fire at the garbage pile. What is relevant is that this

fire was not an act of God. The Meteorologist Report shows that it was a

cool day so the fire could not have started without human intervention.

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16. Summary of findings

Origin of fire

I find that Mr. Middleton’s account of the circumstances of the fire was an

accurate account. His evidence taken as a whole shows the origin of the fire

to be the garbage pile which is confirmed by the photograph and the report

of the meteorologist.

I reject the evidence of Mr. Gordon and Mr. Aranda that the that the fire

started in the field.

Causation of fire

I find that the cause of the fire was as a result of burning of garbage at the

garbage pile on Hamanasi’s property.

I reject the submission by the Defendant that the fire may have been caused

by some stranger unknown to Hamanasi.

Spread of fire

There are two reasons for the spread of the fire:

1) Heavy winds

2) Bushes in the field including pimento trees which is highly flammable in

the adjoining land.

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17. Issue 2:

Whether Hamanasi is liable under the rule in Rylands v Fletcher

This Claim was brought under two areas of the law of tort namely, the rule in Rylands v Fletcher and alternatively under the law of negligence. I will start

with the question as to whether Hamanasi is liable under the rule of Rylands v Fletcher.

18. Rylands v. Fletcher

(1) Learned Senior Counsel, Mr. Musa has correctly stated the rule in Rylands

vs Fletcher in his written submissions as a person who, for his own

purposes, brings on his land and collects and keeps there anything likely to

do mischief, if it escapes, is liable for all the damage which is a natural

consequence of its escape. The use of land must be a non­natural use. In this

context "natural use of land" means use according to nature or retired by

nature. Learned Counsel also relied on several authorities which discussed

the said rule.

(2) There are recent authorities which discussed this rule in some detail which I

find helpful. In the case of LMS International Limited et al v. Styrene

Packaging and Insulation Limited et al 9 Judge Peter Coulson QC made

some general observations in relation to several authorities which applied this

rule. Thereafter, Judge Coulson QC summarized the principles based on an

analysis of the previous cases. See page 7 of his judgment where it is stated:

Summary of Relevant Principles Although it is not a wholly easy task, I set out below the principles which I have taken from the authorities cited above:

9 (2005) EWHC 2065

34

a) In cases concerned with fire, the rule in Rylands v Fletcher requires two things. First, the defendant must have brought onto his land things which were likely to cause and/or catch fire, and kept them in such a condition that, if they ignited, the fire would be likely to spread to the claimant's land. To put it another way, those things must represent a recognisable risk to the owners of the adjoining land. Secondly, the actions on the part of the defendant must arise from a non­natural user of the defendant's land: see Mason and Transco. b) This rule, although carefully restricted in recent years, has twice avoided complete abolition: see Cambridge Water and Transco. c) A non­natural user should be considered by reference to contemporary standards. The existence of statutory regulations relating to the storage of the dangerous thing(s) may preclude the operation of the rule in a particular case: that was Lord Hoffmann's first factor in Transco. The existence, or otherwise, of insurance may be a relevant factor, although, as set out above, this was a matter on which the House of Lords emphatically disagreed. d) In the two leading cases of the last decade or so, it has been held that a pipe containing water for domestic purposes was not a non­ natural user of land (see Transco) but that the storage of chemicals for the purposes of industrial tanning was a non­natural user (see Cambridge Water). Respectfully, I do not regard either conclusion as exceptionable. In addition, it was held, in both Mason and Hobbs, that the storage of inflammable materials was sufficient to trigger the rule in Rylands v Fletcher. e) Fire is plainly dangerous. Therefore, if the escape of fire from A's land to B's land was the (foreseeable) result of the storage of dangerous things that comprised a non­natural user of land by A, then, subject to the qualifications set out above, A is prima facie liable to B under the rule in Rylands v Fletcher.

(3) In a most recent case of Farzad Harooni et al v Rustins Limited 10 , a

judgment handed down on 29 th June 2011, Mr. Justice Akenhead,

acknowledged the said principles except for the requirement of forseeability.

At page 17 of his judgement he said:

I do not see any reason to depart from these principles as put

forward other than to comment that I am unconvinced that the

10 (2011) EWHC 1632

35

requirement for foreseeability is necessary for the purposes of

Rylands v Fletcher; that is more consonant with a cause of

action in negligence.

(4) I adopt these principles as summarized by Learned Judge Coulson

Q.C. and will apply them where applicable to the facts of this case.

Did Hamanasi bring unto its land things likely to do mischief?

(5) There is no evidence that Hamnasi brought anything unto the land which is

likely to do mischief. The evidence before the court is that Hamanasi

collects leaves and other debris and place by a garbage pile. These are from

the land itself. The claim therefore fails on this first limb as nothing is brought

unto to the land. As such, the rule of Rylands v Fletcher is inapplicable to this case.

19. Negligence

(1) The alternative claim is negligence and I will look at the law on negligence

and duty of care before going to the issue of negligence. In the case of Blandina Francis Negga v Jeff Hadeed 11 , the learned Thomas J did an

outline of the law of negligence which I find helpful. At page 6­8 of his

judgment he has this to say:

In CHARLESWORTH ON NEGLIGENCE (6th ed.) at paragraph 4 the following learning is to be found:

Negligence is often used in the sense of careless conduct without reference to any duty to take care. The use of the term in this sense has introduced some confusion into the subject, and has tended to

11 Antigua and Barbuda Civil Suit No. ANUHCV 372/1999

36

obscure the true meaning of negligence. When there is a duty to take care, the standard of care frequently is that of the reasonable man, although this is not always so, and consequently, failure to take reasonable care and negligence are sometimes used as synonymous terms regardless of whether or not there is any duty. This is the sense in negligence was used in the well­known definition of Alderson B.: ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’ This definition does not recognize the necessity for any duty to take care, and therefore naturally does not recognize the necessity for any duty to take care, and therefore naturally does not go on to consider what degree of care is imposed by the duty in any given case. In so far as the definition assumes a duty of care, it also assumes that the degree of care is exactly the same in each case, namely, a degree measured by the standard of a reasonable man, and this, as appears from the following pages, is by means a complete or an accurate statement. It is clear, however, that the definition was not given with reference to any duty but was defining negligence in the abstract as meaning careless conduct.

The learning continues at paragraphs 19 and 20 as follows:

The following definition may therefore be suggested: Negligence is a tort, which is the breach of a duty to take care imposed by common or statute law, resulting in damage to the complainant.

Accordingly, the essential ingredients of actionable negligence are:

(1) the existence of a duty to take care owing to the complainant by the defendant;

(2) failure to attain that standard of care prescribed by the law; thus committing a breach of the duty of care; and

(3) damage suffered by the complainant, which is usually connected with the breach of duty to take care.”

37

20. Duty of Care

Justice Thomas relying on Winfield & Jolowicz on Torts (16 th ed) paragraphs 5.6 to 5.7 said that it is generally recognized that a duty of

care may arise in a wide variety of circumstances. In the case that was

before the learned judge, a question arose in relation to adjacent property

owners. As such Judge Thomas referred to the decision of Heaven v Pender 12 where he found the following principle is applicable

and determined that a duty of care exist between the Claimant and the

Defendant:

A duty of care did arise when the person or property of one was in such

proximity to the person or property of another that, if due care was not

taken, damage might be done by one to the other.

In the case at hand, Jaguar Reef’s properties were destroyed as a result of a

bush fire which started as a result of the burning of garbage on Hamanasi’s

property. As such, I find that a duty of care exist whenever the Defendant

is burning garbage as fire is a very dangerous thing, especially when there is

high winds and highly flammable materials in the area such as the bushes in

the adjoining field.

Issue 3:

Whether the fire was caused by the negligence of Hamanasi, its agents or servants.

21. This issue of liability is linked to the issue number one above where the

finding is that the origin of the fire is the garbage pile on Hamanasi’s property.

12 [1883] 11 QBD 503

38

Mr. Middleton testified that a heat source had to be used to start the fire

though he was unable to identify that heat source. He further testified that

there was a burn pile freshly covered with sand. In my view, it can be

inferred from this evidence that Hamanasi’s employees started the fire at

the garbage pile which escaped to the adjoining land and then unto the

property of Jaguar Reef where it destroyed four structures. The question is

whether Hamanasi was negligent under such circumstances. To determine

negligence, the court would have to make a determination as to whether there

was a breach of the duty of care owed by the Defendant to the Claimant.

Breach of duty of care

22. Justice Thomas in the Negga judgment also addressed breach of duty of care.

He said:

The generally accepted test for deciding whether there has been a

breach is contained in the dictum of Baron Alderson in Blyth v

Birmingham Water Works Co. [1856] 11 Ex 781, 784. It is in these terms: “Negligence is the omission to do something which a reasonable

man, guided upon those considerations which ordinarily regulate the

conduct of human affairs, would do, or doing something which a prudent

and reasonable man would not do.

23. He went on to say that according to Winfield & Jolowicz on Tort (6th ed.) at

paragraph 5.53:

There can be no doubt that the general standard is objective and the

question is not ‘did the defendant do his best?’ but ‘did he come up to

the standard of the reasonable man?’ Nevertheless, the law cannot be

understood unless we bear in mind it judges conduct by the particular

39

circumstances in which the defendant find himself and in some

circumstances actually modifies the objective standard.

24. The learned authors go on to say that there are three factors which are

usually considered in assessing the objective standard: magnitude of the risk,

the importance of the object to be attained and the practicability of

precautions. These three factors were also discussed by Justice Thomas in

the Negga case. See pages 19 – 20 of the said judgment.

25. There are two elements that make up the magnitude of the risk: (1) the

likelihood that injury will be incurred and (2) the seriousness of the injury that

is risked. Further, that the greater the likelihood that the Defendant’s

conduct will cause harm the greater the amount of caution required of him.

26. In the case at hand, the evidence shows that Hamansi employees lit a fire at

the garbage pile three days before the fire which destroyed Jaguar Reef’s

property. There is no evidence as to whether the employees lit the fire again

on the day of the fire or the said fire rekindled. It is not expected that any

employee would want to tell his employer he lit a fire which resulted in

destruction. What the evidence shows however is that the winds were high,

fire started on the Hamanasi property at the garbage pile and spread to the

field where there is pimento trees. There is a great risk that property could

be damaged when garbage is burnt on a windy day and there is much fuel

for the fire in the field next to the garbage pile where there are bushes.

There is also a great risk when garbage is burnt and the fire is not put out

properly as it could rekindle on a windy day. As such, it is my view that the

likelihood of damage to the Claimant’s property was considerable.

27. The second factor is the importance of the object to be attained. In the case

at hand the object was to get rid of garbage, mostly cuttings from trees and

leaves. Under this factor, the risk has to be balanced against the

40

consequences of not taking it. In this case, four structures belonging to

Jaguar Reef were destroyed as a result of the fire. The risk of damaging

Jaguar Reef’s property is so great that it should prohibit Hamanasi from

burning garbage on its property.

28. The evidence of Mr. David Krauskoff for the Defence who admitted that they

had a dump site on their property where they burnt refuse stated that after

the fire they ceased using the burn pile. They now compost the refuse and

haul it away. When he was asked ‘why’, he hesitated in answering, later

admitting that one of the reasons was indeed that if not managed properly,

burning garbage in an area that has bush, and near to a neighbouring resort

that had thatched roof, can be very dangerous. He further stated that bush

fires are common in that area. Unfortunately, the Defendant did not take this

step before the fire.

29. The third factor is the practicability of the precautions which requires a

consideration of how costly and practicable it would have been for Hamanasi

to take precautions to eliminate the risk. The great risk here is damage to

property which requires a precaution to be taken. In my view, the

practicable precaution in this case was to take the garbage to the Hopkins

garbage site.

30. As shown by the authorities mentioned above, in order for Hamanasi to be

liable in negligence there must be a breach of duty of duty of care owed to

Jaguar Reef which is measured by the standard of the reasonable man. This

standard is measured by the three factors discussed above and it was

determined that (1) the likelihood of damage to the Claimant’s property

was considerable. (2) The risk of damaging Jaguar Reef’s property is so

great that it should prohibit Hamanasi from burning garbage on its property.

(3) the practicable precaution was to take the garbage to the Hopkins

Village garbage dump.

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31. Fire is very dangerous and where a person makes fire on his property to

destroy garbage, he is bound to use the greatest diligence and care and to

take every precaution to make sure that the fire does not spread to his

neighbour’s property so as to cause damage. The wind was very strong on

the day of the fire and the fire spread quickly. Whether the fire was lit on the

day of the fire or a few days before does not help the Defendant. If it was lit a

few days before then it was not properly put out with the sand and water and

because of the heavy winds it rekindled and spread quickly because of he

heavy winds. If it was lit on the day of the fire, then it was a bad decision to

burn because of the winds. Regardless, when the fire was lit, it spread unto

the negibour’s property and as such Hamanasi is liable. I find that there was

a breach of duty of care by Hamanasi and as such they are liable in

negligence.

Issue 4: Whether Jaguar Reef is entitled to damages caused by the Fire.

32. The Claimant in the Amended Statement of Claim dated 7 th April, 2004,

claims at paragraph 4 that four structures being two cabanas 28’ x 4‘ and

their contents, one main building measuring 75’ x 63’ and its contents, and a

two storey suite measuring 39’ x 45’ and its contents, all being the property of

Jaguar Reef were destroyed by fire whereby they suffered loss and damage.

The particulars of the damage is:

Loss of four structures and contents ­ $ 752,474.34

Loss of Profits ­ $ 194,000.00

$ 946,474.34

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33. Mr. Foerster at paragraph 4 of his witness statement stated that the estimated

cost of the buildings burnt and lost to the fire is $1,032,134.00. In

amplification of his evidence he said that he arrived at the estimate for his

loss from two contractors employed to rebuild the resort, Aaron Loewen and

Ollie Natividad.

Reconstruction and loss of contents

34. In amplification of his witness statement, Mr. Foerster explained how he

arrived at the figure of $1,032,134.00 in his witness statement as opposed to

$ 946,474.34 in his claim. He stated that to reconstruct he had only

$200,000.00 in cash and the remainder he had to borrow. He testified that

there may be some interest component in the total of $1,032,134.00.

35. In support of his claim for damages Mr. Foerster put into evidence the

following documents for reconstruction and loss of contents:

(1) Letter from Aaron Loewen confirming receiving a sum of

$597,574.00. admitted and marked as Exhibit B.F. “6”. The letter is reproduced in its entirety:

Jan 19/06

TO WHOM IT MAY CONCERN

Please accept this letter as confirmation that between April 4/03 and Dec. 13/03. I received payments totaling $597, 574.00 from Jungle Sea Ventures (dba Jaguar Reef Lodge) and that these funds were used exclusively for the reconstruction of the resort due to the fire which destroyed four of the resorts buildings on March 30/03,

Sincerely,

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Sgd. Aaron Loewen President A & B Loewen Construction

Mr. Loewen was not called to give evidence and has no interest in this case.

(2) Letter from Ollie Natividad for the sum of $58,222.00 admitted and marked as Exhibit B.F “5” which states:

TO WHOM IT MAY CONCERN

Please accept this letter as confirmation that between May 5/03 and Dec. 19/03 I received payments totaling $58,222.00 from Jungle Sea Ventures (dba Jaguar Reef Lodge) for the purchase of furnishings to replace those destroyed by the fire on March 30/03,

Sincerely,

Ollie Natividad

Mr. Natividad is a shareholder of the Claimant and was called to give evidence.

(3) Letter from Hummingbird Rattan which was admitted and marked as Exhibit B.F. “7” which states:

Jan 19/06

TO WHOM IT MAY CONCERN

Please accept this letter as confirmation that between May 28/03 and Dec. 19/03 we received payments totaling $12,296.71 from Jungle Sea Ventures (dba Jaguar Reef Lodge) for the purchase of furnishings reconstruction of the resort due to the fire which destroyed four of the resorts buildings on March 30/03,

Sincerely,

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Hummingbird Rattan Ltd Belmopan, Belize

Hummingbird Rattan Ltd. was not called to give evidence and has no interest in this case.

(4) Two payment were also made to Ace Mart for the sum of $3,346.94 and $6,918.41. See Exhibits B.F. 8 and 9 respectively for the receipts. This amounts to a total of US $10,265.35 (BZ$ 20,530.70).

Ace Mart was not called to give evidence and has no interest in this case.

The letters shown above amount to a total of $667,796.00. The two

receipts amounts to BZ$20,530.70. The total being $ 688,623.41.

36. Loss of Profits

The Claimant also claims 194,000.00 for loss of profit. Mr. Foerster testified

that as a result of the fire he had to refund many persons for reservations

made and he had to relocate guests to other resorts. That guests were given

option to relocate or have a refund. Mr. Foerster produced 18 reservation

confirmation documents which discloses the amount of moneys that were

collected and had to be refunded. See Exhibit B.F. “10”. The total of these documents amount to $138,652.17.

37. The law on damages

The fundamental principle is that the Claimant in an action for negligence is

entitled to a sum of damages which will return the Claimant to the position the

Claimant would have been in had the fire not occurred, in so far as money is

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capable of doing this. This goal was expressed in the maxim restitutio in

integrum. In negligence cases it is restorative and not punitive.

38. Submissions by Claimant on Damages

Learned Senior Counsel, Mr. Musa on the claim for damages relies on the

principle of “restitutio in integrum” – the cost of putting the property damaged

in the same condition it was before the destruction by fire as well as loss of

profits resulting from the damage.

Mr. Musa submits that the Claimant has proven specific damages for funds

expended by way of repairs and reinstatement and loss of profits based on

the specific cancellations of hotel bookings and refunds made as well as

generally for loss of profits undetermined during a reasonable period it took to

reinstate the Resort to an acceptable level akin to what it was prior to the fire.

39. Submissions by Defendant on Damages

Learned Senior Counsel, Mr. Marshalleck submits that if the allegations of the

Claimant as to the origin and cause of the Fire are somehow made out, the

Claimant has in any event failed to prove the damage and loss claimed.

Learned Senior Counsel referred to the documents produced by Mr. Foerster

and submits that:

i) The letters purportedly received from Hummingbird Rattan and

Aaron Loewen cannot be treated as proof of the truth of their

contents because the authors of none of these letters were called

to testify to the facts alleged therein.

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ii) Ollie Natividad is a ten percent (10%) shareholder in Jaguar Reef

and as such would benefit from an award of damages to Jaguar

Reef. Also, that Mr. Natividad’s verification of the facts alleged in

his letter dated 19 th January, 2006 resulted from him being led by

the attorney.

iii) There was no evidence adduced that the items bought from ACE

Mart Restaurant Supply Co. Inc. were to replace anything lost in the

Fire.

Learned Senior Counsel further submits that even if the documentary

evidence are taken as proof of the truth of their content, the total amount

accounted for by the receipts and letter is BZ$688,623.41 and not the $752,474.34 claimed nor the $1,032,134.00 Mr. Foerster estimated as

damages in his witness statement.

As for the loss of profits Mr. Marshalleck submits that the eighteen (18)

reservation confirmations by Mr. Foerster’s own admission during cross­

examination represent lost income and not lost profits as claimed. Further,

that in cross examination, Mr. Foerster’s has admitted that no evidence has

been put forward as to lost profits resulting from the Fire.

40. Authenticity of Documentary Evidence

This matter was filed since 2003 and the documentary evidence in

question before the court were disclosed by the Claimants in January of

2007. The purpose for disclosing the documents is to indicate to the

Defendant and to the court the Claimant’s intention to rely on them. The

Defendant had ample time to serve notice on the Claimant to prove the

documents. A Defendant is deemed to admit the authenticity of any

document disclosed to him unless he serves notice that the document must

be proved at trial. The attack on the documents were launched on the day

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of trial when the Claimant was in no position to call the authors of the

documents.

The letter from Mr. Loewen, headed “To Whom It may Concern” seem as

though it was prepared for the purposes of the court proceedings. In my

view, it is a form of receipt showing total payments received by him from

the Claimant. It is normal in the course of business to give receipts. He

was the contractor and had personal knowledge of what is stated in the

letter. Most importantly, Mr. Loewen will not benefit from this proceeding

before the court.

Also, Hummingbird Rattan and ACE will not benefit from these

proceedings.

As for Mr. Natividad, I did not find that he was trying to benefit because

he is a shareholder from the loss suffered. The letter shows the amount

received was for the purchase of furnishings which were destroyed by the

fire. There is no dispute that furnishings were destroyed also by the fire.

41. Award on loss of structure and content

Although Mr. Foerster was fiercly attacked as to his credibility in matters not

before this court, I found him to be credible in this case and I accept the

documents put into evidence as proof of the truth. However, I find his

calculation or that of his Counsel who drafted his pleading to be incorrect.

I agree with Learned Senior Counsel Mr. Marshalleck that the total amount

accounted for by the receipts and letter is BZ$688,623.41 I award a total of

BZ$688,623.41 for loss of Jaguar Reef’s structures and contents.

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42. Evidence on Loss of Profit

As for loss of profit, I accept Mr. Marshalleck’s submission that income and

profit are not one of the same. The documents showing the reservation

confirmation shows income loss and not profit. The documents are

accepted as proof of truth as to loss of income and not loss of profit.

The profit loss is not known to the court and Mr. Foerster could not say how

much is loss of profit. The court has to bear in mind also that Mr. Foerster

had to rebuild and it is obvious that he had to take some time before he

started business again. The documents though helpful does not show

loss of profit. It gives the court some idea on how well the business was

operating in that period of time.

It is the duty of a claimant to prove his loss of profit. Further, a claimant is

allowed to recover loss of net profit and not loss of gross profit. However,

where a claimant is unable to prove the special damages claimed he may

recover nominal damages where he has suffered loss. The court in such

circumstances must award nominal damages which would be reasonable

in the circumstances having regard to the facts. In the case of Greer v.

Alstons Engineering Sales and Services Ltd (Trinidad and Tobago) 13

their Lordships in a case where nominal damages were awarded said that

though a particular loss was unquantified, it is the duty of the court to

recognise it by an award that is not out of scale. In that case, the court did

not interfere with the decision of the Court of Appeal where nominal

damages was awarded. Their Lordships said:

In the Court of Appeal Mr Justice Jones JA, with whom the Chief Justice

and Mr Justice Lucky JA agreed, explained at pages 128­129 of the

Record the decision to award $5000 by way of nominal damages.

13 [2003] UKPC 46 (19 June 2003)

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The appellant claimed damages for loss of use of the backhoe in

negligence in respect of the period from July 1982 to January 1984

and in detinue for a period of at least 6 months thereafter. A claim for

loss of use of an income­earning chattel is a species of special

damages. The onus is therefore on a claimant to prove strictly not

only his loss but also the quantum of it. The learned trial judge held

that the appellant had not given cogent evidence to support his loss.

She described his evidence as vague and generalised. Indeed his

evidence was that the daily rate for the backhoe in 1982 was $500.00

increasing in 1983 to $600.00, and by 1984 the figure was $800.00

per day or $100.00 an hour. He failed to produce any documentation

in support of these claims and furthermore these sums were all

gross.

In order for net loss to be assessed, there must be evidence about

the expenses incurred in earning that income. In this case there was

evidence that whenever the backhoe was rented out, it was rented

out with a driver. There was, however, no evidence as to what the

cost of that driver was to the appellant, nor was there evidence of the

amount spent on fuel and oil or maintenance or any other incidental

expense necessary for the operation of the backhoe.

In the light of this state of affairs, I hold that the learned trial judge

was correct in refusing to award the damages claimed. ...

When such evidence is not provided, however, it is open to the trial

judge to give consideration to an award of nominal damages. In McGregor on Damages 13th ed at para 295 it is stated:

Nominal damages may also be awarded where the fact of a loss is shown but the necessary evidence as to its amount is not given. This is only a subsidiary situation, but it is important to distinguish it from the usual case of nominal damages awarded where there is a technical liability but no loss. In the present case the problem is

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simply one of proof, not of absence of loss but of absence of evidence of the amount of loss.

In the case at hand, there is loss but there is no evidence on the amount of

the loss. Nominal damages will therefore be awarded taking into

consideration the principles in Greer case.

43. Award of damages for loss of profit

There is no evidence to prove the expenses incurred to earn the income.

The total amount of the gross income as shown by the documentary

evidence is $138,652.17 and the Clamant pleaded $194,000.00 under this

head. The court having no proof of net income but proof of loss awards

nominal damages in the sum of $40,000.00.

Issue 5:

Whether the damage or loss to the Jaguar Reef’s property was caused or contributed to by the negligence of Jaguar Reef.

44. The Defendant in their Defence said that the fire was caused or contributed

to by the negligence of Jaguar Reef. The particulars of negligence are

failure to: (a)take any or any adequate steps to extinguish the fire when

burning in the property immediately adjacent to the Jaguar Reef Lodge; (b)

cut or keep clean of vegetation and/or other fuel for fire an area of the

property immediately adjacent to the thatched structures comprising Jaguar

Reef Lodge and (c) provide or to have available for use on the property of

Jaguar Reef Lodge any fire fighting equipment

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45. In written submissions Learned Senior Counsel Mr. Marshalleck submits that

the Claimant itself by its own failures wholly caused or contributed

substantially to the damage and loss sustained as a result of the unchecked

spread of the Fire through the Field unto its property. Further, that the

award of damages should be nominal and reduced to reflect a substantial

contribution by the Claimant’s own negligence to its loss.

46. In my view, contributory negligence is not a defence in the circumstances of

this case. Jagauar Reef did not suffer damages as a result of its own fault.

Jaguar Reef had no duty to clear the field or buy fire fighting equipment

because Hamanasi burns garbage on their property. The duty is on

Hamanasi to take all reasonable precautions to prevent the fire from

spreading and their duty is much more onerous in this case because the

field next to their property had pimento trees which catches fire easily.

47. The case of Sahib Foods Ltd. v. Paskin 14 attached to the written

submissions for the Defendant can be distinguished from the case at hand.

In that case the contributory negligence exists because Sahib caused the

fire itself. As for the spread of the fire both parties were responsible

because the Defendant did not fit fire­resistant panels in the kitchen. In the

case at hand, Jaguaar Reef had nothing to do with the fire that spread to

their property.

48. I find that the damage to the Jaguar Reef property was not caused or

contributed to by the negligence of Jaguar Reef.

14 (2003) EWCA 1832

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49. Interest

The Claimant claims interest at such rate as the Court thinks fit on the whole

of the damages from the date when the cause of action arose to the date of

Judgment, in accordance with Section 166 of the Supreme Court of Judicature Act, Chapter 91 of the Laws of Belize.

Interest is awarded at the rate of 6% p.a. on the sum of BZ$728,623.41

from the date when the claim was filed which is 8 th December, 2003 to the

date of judgment.

50. Costs

The Claimant is entitled to prescribed costs in accordance with Appendix B to

Part 63 of the CPR 2005 in the sum of BZ$81,431.17.

51. Conclusion on findings

The findings of the court are:

1) Jaguar Reef’s property was destroyed by fire which emanated from the

burning of refuse at Hamanasi garbage site.

2) There was a breach of duty of care by Hamanasi and as such they are

liable in negligence.

3) The damage to the Jaguar Reef’s property was not caused or

contributed to by the negligence of Jaguar Reef.

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4) Jaguar Reef is entitled to damages as follows:

Loss of four structures and contents BZ$688,623.41

Loss of Profit BZ$ 40,000.00

Total $ 728,623.41

5) Interest at 6% p.a. from 8 th December, 2003 (date of writ) to 28 th day of

July, 2011 (date of judgment) on $728,623.41.

6) Jaguar Reef is entitled to prescribed cost in the sum of $81,431.17.

.........................................

Minnet Hafiz

Supreme Court Judge

Dated this 28 th day of July, 2011