Alcoa Minerals of Jamaica Incorporated v Broderick
| Jurisdiction | Jamaica |
| Judge | Carey, J.A.,Downer, J A,Patterson, J.A. |
| Judgment Date | 11 November 1996 |
| Neutral Citation | JM 1996 CA 56 |
| Docket Number | Civil Appeal No: 15/95 |
| Court | Court of Appeal (Jamaica) |
| Date | 11 November 1996 |
Court of Appeal
Carey, J.A.; Downer, J.A.; Patterson, J.A.
Civil Appeal No: 15/95
Erol George, Q.C., John Vassell & Lance Cowan for appellant
Mrs. Margaret Forte, Q.C., Maurice Frankson & Miss Alayne Frankson
Tort - Nuisance — Respondent claimed that emission and stench from appellant's smoke stacks and mud lakes affected his health and comfort and applied for a mandatory injunction — Evidence that appellants took steps to minimise the effect of their operations on the community — Personal discomfort suffered by respondent not life threatening or enough to interfere with his health — Trial judge's order of a mandatory injunction did not instruct the appellants what “necessary structural adjustments” they were to make — Order could not be complied with — Order for mandatory injunction set aside.
Mr. Broderick who is a carpenter, mason and Pastor of his Church, lives in Haves, Clarendon, within a 1 1/2 mile radius of the appellant's Alumina plant. Since 1975 he has been living at that site, where, in 1973, he built a home, the roof of which was constructed of galvanized zinc sheets. Shortly before this, in 1972, the plant had gone into operation and Mr. Broderick worked there until 1982. In that same year he had to effect repairs to the entire root and ceiling because the zinc sheets developed rust holes, through which the rain descended onto the plyboard ceiling and the lathes to which the ceiling was attached. He was also forced to repair the walls to hide discolouration caused by the action of rainwater. He attributed this damage to his home to emissions from the plant's smoke stacks. His health and comfort, he claimed, were affected by a malodorous stench from the appellant's mudlakes but he did not suggest in what respect he suffered in health. He brought an action against the appellant claiming damages for nuisance and sought a mandatory injunction restraining the appellant from maintaining the nuisance.
The appellant at trial, put the plaintiff to proof and called a sole witness, Dr. Carlton Davis chairman of the Board of Clarendon Alumina Partners and chairman of the Jamaica Bauxite Institute. He spoke to the efforts of the appellant to reduce pollution whether by dust, noise or odours and its concern for the environment, manifested by the vast sums of money expended to improve it.
Theobalds J entered judgment in favour of Mr. Broderick in the sum of $938,400 with costs and granted a mandatory injunction allowing the appellant six months in which “to complete the necessary structural adjustments in order to eliminate the nuisance.”
Before us, as indeed before the trial judge, the appellant argued that there was no causal connection between the damage the respondent claimed he had suffered and the appellant's operations at its alumina plant. He put his argument in this way - the respondent could have no ground for complaint of premature corrosion of his zinc roofing when that roofing lasted between 7 - 9 years. The evidence of the life span of 0.7 Galvan zinc is approximately 7 years. Among the substances found on the roof were sulphate deposits which it was shown, was the result of the burning of bunker C oil which was used by the appellant but was also used by other factories in the area and by diesel vehicles operating on. the roads around. The sulphate deposits also could be caused by the burning of cane during the reaping process. If it was being suggested that the sulphates emanated from a number of sources, then all the damage caused to the respondent could not be placed at the door of the appellant: each party would be responsible for his own damage. On this point reliance was placed on the views of the learned editors of Clerk & Lindsell on Torts (16th editions at p. 179 paragraph 2-53 and on Bank View Mill v. Nelson Corp [1942] 2 All E.R. 477.
On the issue of liability, Mrs. Forte, Q.C., on behalf of the respondent submitted that the respondent had discharged the onus of proving that the appellant's emissions caused or materially contributed to the damage to the respondent's roof. She found support in Bonnlngton Castings Ltd v. Wardlaw [1956] A.C. 613 and McGhee v. National Coal Board [1972] 3 All E.R. 1008. She pointed to the evidence of Mr. Tewari, a retired Chief Plant Quarantine Inspector in the Ministry of Agriculture who owns premises in proximity to the appellant's plant. He said that the premises were there from 1941 when zinc roofing was in place. In 1971 he extended the premises by some 1200 square feet. Ten years later, he made further additions. At that time, in raising the height of the roof, he removed zinc sheets but saw no defects with regard to the zinc save for nail holes in them. That evidence would tend to show that the other elements suggested as other sources of pollutants were having no effect on roofs in the area of the plant. After 1988, Mr. Tewari said, he experienced leaks which were never a problem prior to that time. Learned Queen's Counsel further pointed to the evidence of the whereabouts of other factories in the area There was the Jamaica Public Service Plant at Old Harbour some 13 miles from Haves, the Monymusk Sugar Factory some 5 miles away, the New Yarmouth Sugar Factory, about 3-4 miles away. The sugar factories had been in existence since 1948 for the latter, white the former started up in 1950. Another factory include, was the West Indies Pulp and Paper Factory which was situated a distance of between 10 to 11 miles from Hayes.
In effect, Learned Queen's Counsel for the respondent contended that the occupants of houses who lived in close proximity and gave evidence on his behalf all testified to the same effect. The point of their evidence was that the damage to their roofs occurred subsequent to the commencement of operations by the appellant's plant in 1975. It was plain that the learned judge accepted these persons as witnesses of truth. It was also clear that the appellant's counsel did not challenge in his arguments the veracity or credit of these witnesses but argued that the evidence adduced on behalf of the respondent did not establish a causal connection between emissions from the appellant's factory and the damage suffered by the respondent. That presents a point of law, not a question of fact for decision. In other words the question for this court is whether the plaintiff proved actionable nuisance.
The respondent, it was agreed on all sides, had the burden of showing that the appellant so operated its alumina plant, that it caused damage to the respondent's roof. The essence of nuisance is an activity which unduly interferes with the use or enjoyment of land and it is no answer for the appellant to say that he conducted his operations using the most modern methods available and could do no more. As Bone v. Seale [1975] 1 All E R 787 illustrates, that riposte is not enough to acquit the appellant of liability where he has created and continued the nuisance. In the instant case, the main thrust of the appellant's submission was that liability depended on the efficacy of the expert evidence seeing that this was a scientific case and the commonsense test of causation adumbrated by Lord Salmon in Alphacell Ltd v. Woodward [1972] 2 All E.R. 475 at 498, 490 was not applicable to a case of this nature. The learned Law Lord put it this way:
“The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”
With all respect to the submissions forcefully made both by Mr. George, Q. G. and Mr. Vassell on behalf of the appellant, and bearing in mind the above dictum the test of causation remains the same whatever the nature of the claim. The dictum is both good sense and good law. The factors causing damage do not call for theoretical analysis but for the application of commonsense informed by accurate information. The tribunal of fact which is obliged to make the decision is hardly ever an expert in the particular field. At one time, it was a jury which decided the matter, a jury of lay persons, not experts. So long as the tribunal understands and can appreciate the evidence of the several experts, it then becomes a question of the application of commonsense by the tribunal to the facts provided to it.
I have previously ventured what I understood was the effect of the evidence of the witnesses for the respondent, I turn then to examine the expert evidence adduced in support of the respondent's case. Noel Gaunlett, a civil engineer who was called, did provide some evidence which perhaps could assist in demonstrating any causal link between the damage and the operations of the appellant's plant. He said he visited the respondent's home in 1989 and observed that the roof was extensively corroded. Four years later when he paid another visit he was alarmed by the deterioration in the condition of the zinc sheets which previously had been in good condition. Mr. Gauntlett never himself carried out any tests nor did he identify the white residue florescence he observed on the zinc sheets. Lena Whyte, a metallurgist at the Bureau of Standards also visited the respondent's house where she examined the root and took samples of a sheet of zinc. She also saw white rust on the zinc sheets. That material was doubtless what Mr. Gauntlett also noticed on the zinc sheets. The samples of zinc which were of the respondent's roof, were corroded. Bunker C oil which is burnt in the appellant's plant is also used by Jamaica Public Service Company in generating electricity. This oil contains sulphur which is transformed into sulphur dioxide...
To continue reading
Request your trial