JAMAICA IN THE COURT OF APPEAL SUPREME COURT CIVIL APPEAL NO: 15/95 BEFORE: THE HON MR JUSTICE CAREY, JA THE HON MR JUSTICE DOWNER, J A. THE HON MR JUSTICE PATTERSON, J A BETWEEN ALCOA MINERALS OF APPELLANT JAMAICA INCORPORATED AND HERBERT BRODERICK RESPONDENT 22th, 23rd, 24th, 25th January 18th, 19th, 20th, 21st, March & 11th November, 1996 Emil George, Q.C., John Vassell & Lance Cowan for Appellant Mrs. Margaret Forte, Q.C., Maurice Frankson & Miss Alayne Frankson for Respondent CAREY, JA Mr. Broderick who is a carpenter, mason and Pastor of his Church, lives in Hayes, Clarendon, within a 11/2 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 roof and ceilingDecause 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 plainti to proof and called a sole witness, Dr. Cariton 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 & Lindsall on Torts (16th edition) 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 Bonnington 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 zine 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 Hayes, 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, while the former started up in 1950. Another factory included, 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 Jaw, not a question of fact for decision. In other words the question for this court is whether the plainti 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 ER. 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. | 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. C. 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. | have previously ventured what | understood was the effect of the evidence of the witnesses for the respondent, | 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 cartied 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 roof 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 and sulphur trioxide and these react to form sulphuric acid, a highly corrosive agent especially in liquid form. She expressed the view that the environment in which the respondent's house was situated, was an industrial environment giving off chemical fumes. She said this, which is, | think, most relevant: “If Broderick had to change his zinc so frequently it implies some compound or elements in the surrounding atmosphere causing the zinc to deteriorate. Given the environment that is proximity of plant and mudiakes it is likely that there would be an appreciable concentration of sulphate ions chloride ions and a caustic environment that would be able to react corrosively with the zinc in ‘solution. These ions would react on the galvanize coating on steel sheet better known as zinc.” It would be remiss if | did not remark on the fact that she also said that she did not discover metallurgical factors in the exhibits which could identify the corrosive agents. Another metallurgist Mr. Dorr Campbell found that the sample of zinc taken from the respondent's roof showed areas where the zinc coatinghad been depleted and the exposed steel had started to rust. He theorized that assuming bunker C ail was used and gases emitted into the atmosphere and condensed, the resulting rain with its acid content would fall on roofs and accelerate the degradation of the zinc. Other significant evidence from this expert was that the zinc sheets of the respondent showed they had been used in an aggressive environment, i.e. an industrial or marine environment and he would not expect leaking in 7 years under normal non-aggressive conditions. A Senior Standards Scientific Officer at the Jamaica Bureau Miss Arella MoFarlane tested for sulphate. She found sulphate on the respondent's zinc sample. The sur of all that evidence suggests to me that the burden on the respondent to prove the causal connection between the damage to his house and the emission from the appellant's plant, has been discharged, The nearest plant to the respondent's home was the appellant's, Prior to the arrival of the appellant's plant, no evidence was had to show that there was any cause for complaint by adjoining land owners. It is not without significance that the other plants which the evidence shows use bunker C oll, are some distance away from Hayes. It would seem to me that the evidence was overwhelming that the appellant's plant is responsible for the damage to the respondent's roof. It was argued by the appellant that this was not a “commonsense case” but a “technological case.” Pollution does involve technological or some scientific ‘knowledge but the level of that knowledge | am inclined to think is not beyondthe ken of the ordinary reasonable person who can then apply the knowledge with commonsense. ‘The mattet can be looked at in this way. The appellant's plant generates pollutants via its smoke stacks. These pollutants fall on the roofs of houses in the vicinity and cause corrosion. So much for scientific knowledge. | was not impressed by that submission. | do not for a moment suggest that the case is as simplistic as this but it illustrates the point | wish to make that really there is nothing so scientific about the case that it requires only a scientist to understand and to decide it. Nothing could be further from the reality of it al. Because there was evidence that other plants, albeit further distant from the respondent's house also emitted sulphates, it was said that the respondent had to show what damage was caused by each of those sources of pollution. Since it was not scientifically possible to prove this, therefore the respondent had failed to prove his case which, accordingly, should be dismissed, There really was no evidence before the court that sulphates from other sources than the appellant's caused the damage to the respondent's roof. What the evidence showed was that sulphates were found on the roof. Sulphates are derived from factories or plants using bunker C oil. Plants, other than the appellant's, use bunker C oil. Ergo, these other sources caused damage as, did the appellant's. In reality, the evidence only showed that other plants could have contributed not must have contributed. The onus on the respondent was to show that on a balance of probabilities, the appellant's plant caused or10 contributed to the damage to the roof. From the fact of the distance of the other plants and from the fact that complaints began to be voiced after the coming into operation of the appellant's plant, | am satisfied that the burden on the respondent was discharged. The evidence as | see it, does not show separate tortfeasors producing different damage or for that matter the same damage. Nor is there any evidence that the harm was caused by the independent acts of several plants. The law seems to be that the court will attempt to ascertain the respective contributions to the harm made by each, and failing that, the court would apportion the loss equally between them. Bank View Mills Ltd v Nelson Corporation [1942] 2 All E R477. For the reasons earlier adumbrated the evidence showed a causal connection between the appellant's plant and the damage to the respondent's roof. It is not therefore necessary to examine these considerations further in order to make a determination as to lability in the instant appeal. The appellant also challenged the judge's assessment of damages in the following ground of appeal. “4, That the learned trial judge failed to apply proper principles or to have regard to all the evidence and came to an erroneous assessment of the Piaintif’s loss in the sum of $938,400.00.” A curious argument was advanced by Mr. George, Q.C. in this ground. He said that since there was evidence that the sulphate deposits which was the cause of the damage could have emanated from a number of sources, it was wrong tou put all the damage on the appellant. There was nothing to prevent the appellant if he thought that other parties had contributed to the respondent's loss to apply to join such parties and claim contribution from them. The only party before the court was the appellant. It is its liability in respect of which an adjudication was required. Apportionment of’ blame could not possibly be considered in the absence of parties and evidence in that regard. 1 do not think | need say further with regard to that plea ad misericordiam. | can therefore turn to consider the submissions of substance advanced on this ground of appeal. Learned Queen's Counsel referred us to the evidence of Mr. Arnold Whyte, a building surveyor employed to the KSAC. He had some 37 years of experience in the building industry. He inspected the respondent's premises in 1989 which he found had a floor area of 1564 square feet. With respect to the roofing his examination revealed: all zinc rusty holes and white spots from the ridge of the root to the end of the sheets at the eve sheets rusty and disintegrated. Rusty holes on outside of sheets. The top half of outside walls had a light rust colour in portions tauised from storm water.” Mr. George Q.C., was very critical of Mr. Whyte. He pointed out that the witness measured the floor area, he did not count the number of sheets of zinc which would be required to effect the repairs. The costing he arrived at, covered repairs to the entire house. He complained that the surveyor had not taken account of damage caused by storm water from hurricane Gilbert's passage12 which had ravaged the island the year before his visit, and further he had taken into account factors other than corrosion in his estimate of cost. The learned judge, he said, had assessed damages on the basis of prices prevailing at the trial rather than at the time the loss occurred. The reason for the delay in repairing the damage given by the respondent was impecuniosity. Pinning his flag to the mast of Liesbosch, Dredger (Owners) v. Owners of Steamship Edison [1933] A.C. 449 Queen’s Counsel reminded us that impecuniosity was a misfortune not a privilege and the appellant should not be asked to pay higher damages for his misfortune. I think this argument about impecuniosity is founded upon a misconception of what Liesbosch decided. In that case, what the owners were seeking to recover was the added cost of hiring another dredger after much delay because of their straitened circumstances. But for their financial embarrassment, they could have replaced the Liesbosch at a moderate price and within a comparatively short time. Lord Wright in whose opinion all the other Law Lords concurred, pointed out at page 460 that : “.. the appellants’ actual loss in so far as it was due to their impecuniosity arose from that impecuniosity as a separate and concurrent — cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the respondent's act, and in my opinion was outside the legal purview of the consequences of these acts.”13 The learned Law Lord also made it clear that there was a decided difference between remoteness of damage which was the principle at issue in the case and the duty on a plaintiff to mitigate his loss. Mr. George Q.C. was not by any manner or means suggesting that the claim for replacing the roof or other damage caused to his house was too remote. In my opinion, the time at which damages are to be assessed is not at all concerned with the victim's ability to minimize \oss. The plaintiff is entitled to have his house restored to the condition it was, prior to the damage. The date at which such assessmentis to take place will depend on all the circumstances but against a compensatory grund norm. In this regard Dodd Properties (Kent) Ltd v. Canterbury City Council [1980] 1 All E.R, 928 is helpful. Megaw L J observed at page 935: “The general principle, referred to in many authorities, has recently been recognized by Lord Wilberforce in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801-813 [1976] AC at 468, namely that ‘as a general rule in English law damages for tort or for ‘breach of contract are assessed as at the date of the breach’. But in the very passage in which this ‘general rule’ is there stated, it is stressed that it is not a universal rule. That it is subject to many exceptions and qualifications is clear. Cantley J in the present case rightly recognized that that was so, in the passage from his judgment which | have recently read. Indeed, where as in the present case, there is serious structural damage to a building, it would be patently absurd, and contrary ta the general principle on which damages fall to be assessed, that14 a plaintiff, in a time of rising prices, should be limited to recovery on the basis of the prices of repair at the time of the wrongdoing, on the facts here, being two years, at least, before the time when, acting with all reasonable speed, he could first have been able to put the repairs in hand. Once that is accepted, as it must be, little of practical reality remains in postulating that, in a tort such as this, the ‘general rule’ is applicable. The damages are not required by English law to be assessed as at the date of breach. The true rule is that, where there is a material difference between the cost of Tepair at the date of the wrongful act and the cost of repair when the repairs can, having regard to all the relevant circumstances, first reasonably be undertaken, it is the latter time by reference to which the cost of repairs is to be taken in assessing the damages.” The law then is that in the present state of our economic malaise, the time at which the cost of repairs is to be assessed is when the repairs can reasonably be undertaken having regard to all the facts of the case which might well include financial embarrassment. In my view, it is this approach which in all fairness should be adopted. In this case, impecuniosity was not the only reason for the delay in carrying out the repairs. There was nothing imprudent in delaying effecting repairs. The appellant was offering to repair roofs within a 21/2 mile radius of its operations and the respondent was within that range. The respondent was not to know that the appellant would ultimately deny liabitty.15 The learned judge in the present case assessed damages based on prices prevailing at trial. The argument by the appellant in the court below was confined to a criticism of Mr. Whyte’s evidence and a claim that the cost should be assessed on the figures originally pleaded and not on late amendments granted. No argument seemed to be addressed to the judge that assessment should be made at the date of the loss. Indeed, it appears that the time at which the cost was fixed was at the time the witness gave evidence. On the evidence before the judge, that date was the only relevant point in time for it would have been quite unfair to take the time when the damage was effected, that rule no longer being applied as a universal rule of general and infiexible application. The date of action was in all the circumstances, the only other date which fell to be considered as applicable. In that respect, | do not think the judge can be faulted, nor should he be, with respect to the figures given by Mr. Whyte which he used to arrive at the total cost. For my part, | can see nothing unreasonable about an expert in the building industry using the square footage of the area to be covered to determine the cost of roofing it. The appellant called no expert of his own to demonstrate that the costing of Mr. Whyte was skewed. The final assault on the judgment, sought to impugn the order for mandatory injunction which the judge granted. The ground of appeal filed and argued was expressed in these terms: “2. The order for injunction was manifestly inappropriate and unnecessary in the circumstances of this case and in granting it the learned trial Judge erred in law and/or16 misdirected himself. Further, the order is too vague to be capable of ‘compliance and the six month period is arbitrary and unreasonable.” Itis convenient to begin this part of the judgment by reciting the order granted: “2, The Defendant is restrained by itself, its servants or agents, or otherwise from maintaining nuisance. The Defendant allowed until 30th June, 1995, to complete the necessary structural adjustments in order to eliminate the nuisance to the Plaintift Mr, Frankson who responded to this ground, did not attempt to support the learned judge's order and requested that this court vary his order. With respect to a mandatory injunction, it has long been said that “except in very exceptional circumstances, it ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.” per Maugham, LJ in Fishenden v Higgs and Hill, Ltd [1935] All E R Rep 435 at p. 450. The same requirement was emphasized by Lord Upjohn in Morris v. Redland Bricks Ltd [1970] A. C. 652 at page 666: "4. if in the exercise of its discretion the court decides that itis a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions." ln making the mandatory order, it is plain that the trial judge was. wholly unmindful of this necessity. The order as worded to use the words of Lord7 Upjohn - “imposed on the appellant an absolutely unqualified obligation upon them” to complete necessary structural adjustments in order to eliminate the nuisance “without giving them any indication of what was to be done.” No evidence was led as to the necessary structural adjustments that would be required to eliminate the nuisance nor at what cost. itis enough to say that that order cannot stand nor can it be varied as requested for the reason that no evidence was led in this regard. | would therefore set aside that part of the judgment. {n the result, | would dismiss the appeal in part confirming the order entering judgment for the plaintiff in $968,000, but as already stated, | would set aside the order for mandatory injunction. The appellant has succeeded in relation to one of three issues raised on the appeal, and | would order it to pay two thirds of the costs of appeal of the respondent to be taxed if not agreed.18 DOWNER JA The respondent in this appeal Herbert Broderick instituted proceedings against the appellant Alcoa Minerals of Jamaica Incorporated and Clarendon Alumina Production Limited. The writ of summons was dated 9th April 1990. It was endorsed as follows: “The Plaintif’s claim is against the Defendants to recover damages for nuisance caused and maintained by the Defendants as a result of their processing bauxite ore in their plant at Halse Hall in the Parish of Clarendon. The Plaintiff also claims an Injunction to restrain the Defendants from maintaining the said nuisance." Be jit noted that the second defendant below, Clarendon Alumina Production Ltd., did not take part in this appeal. There was an amended statement of claim dated 26th July 1993 while August 4 1993, was the date of the amended defence. As for the Order under appeal, it disclosed that the action was heard over seventeen days commencing on 7th October 1991 while the final hearing was 30th September, 1994. The reserved judgment of Theobalds J was delivered orally on 19th December 1994. The text was less than one half pages and the gist of the judgment was as follows:19 “There is evidence of persons who resided in the area for many years and who testified as to area in which they existed. There is a mass of expert evidence - scientific evidence by which sodium and its by-products could .. It is my view that on an overwhelming preponderance of evidence, the Plaintiff has discharged the burden of proof. 1 will not embark on an analysis of evidence of witnesses. In both categories case has been proved as to existence of the nuisance and the source of the nuisance being Defendant's plant and mud lake.” These features have been rehearsed to indicate the difficulties which arise when an attempt is made to determine the outcome of the appeal. Our legal system requires judges of the Supreme Court in adjudicating in all cases and even more so in complex ones to evaluate the evidence as regards credibility and reliability and apply the relevant law before coming to a decision. This is demonstrated in the reasons for their decisions. These reasons are essential to the parties as well as for this court, if there is a further appeal. The judge's reasons are also Tequired for Their Lordships’ Board. It ought not to be the function of appellate courts to carry out an assessment of evidence and interpret the law for the first time. The failure to perform this fundamental judicial task puts an extra burden on appellate courts. We rehear cases on the record and the learned judge's reasons are essential if this court is to discharge20 its duties effectively. Moreover, right reasoning is the basis for the growth of the common law. In stating the obvious, | am mindful of the heavy case load of Supreme Court judges, but the purpose of reserving decisions is to produce a considered judgment. This passage is not meant to be a stricture, but a guideline to judges of first instance for the future. That the proceedings appeared somewhat haphazard is surprising, as the subject matter was of general public importance and both the hearing below and on appeal was keenly contested. The pleading point The ground of appeal relating to pleadings is important. It reads as follows: "3. Thet the learned trial Judge wrongfully exercised his discretion in granting the Respondent's application for amendment to the Statement of Claim made on the 21st June, 1993, in terms of the amendments shown at paragraphs 9 to 13, inclusive, of the Statement of Claim.” Having regard to this ground it is necessary to examine the amendments to determine whether they could qualify as proper averments and if so, what purpose they could serve. Paragraph 9 of the statement of claim reads: "9. In about January, 1981 Mr. Rowe Hill, Managing Director of Defendants’ plant at Hayes in the parish of Clarendon admitted that it is a fact that (SO2) was emitted from Defendants’ plant at Hayes.”at Even if there were a proper plea, the date January 1981 was outside the limitation period for contract or tort so to that extent paragraph 9 ought not to have been suggested or allowed. Then followed paragraphs 10, 11, 12, 13. Paragraphs 10 and 11 read: “10. On or about the 25th day of February, 1987, Dr. Carlton Davis, servant or agent of Defendants including Mr. Gerry Dudley and Mr. Robert Stevens and others at a meeting called by Defendants with the citizens of Hayes and other surrounding districts admitted that Defendants’ were responsible for the damage caused to the galvanized zine roofs of the houses of the said citizens and that Defendants had agreed to repair the said houses at the expense of the Defendants and replace their roofs with aluminum sheeting as a consequence of which the Defendants would cause personnel from National Housing Trust to measure the said damage and prepare estimates of same. 11. As a further consequence, complaint forms were issued by Defendants to the said citizens including Plaintif.” ‘These summaries of alleged evidence are of no value or averments in tort. They ought not have been proposed, let alone accepted. They also fall outside the limitation period. However, it ought to be noted that Dr. Davis gave evidence for the defendants in the court below. Paragraphs 12 and 13 are of a similar pattern, They read: “12.On a later date in 1987, Mr. Robert Stevens, servant or agent of Defendants admitted that Defendants had set aside a large sum of money to repair the said22 damaged roofs including that of the Plaintiff. 13. On or about the 2nd day of May, 1988 Mr. Gerry Dudley, servant or agent of Defendants admitted at a meeting called by Defendants that Defendants would repair all the damaged houses with galvanized zinc roots of citizens in Hayes and other surrounding districts and that re-roofing of the damaged houses would commence in about six (6) weeks time.” Be it noted Gerry Dudley was ill and so could not give evidence for the defendants. These averments also were inappropriate for an action in tort. They cannot qualify as pleas. Again it should be noted that Mr. Robert Stevens gave evidence for the defendants in the court below. It could be that paragraph 13 could have been the basis of the plea of equitable estoppel as it was within the limitation period but the case was not conducted on that basis. In spite of the nature of these “pleadings”, the learned judge ruled: ... Leave granted to amend Statement of Claim as prayed.” These allegations might have established a case in contract if they were within the {imitation period. There was a hint of this when the application was made to amend when Mrs. Forte was recorded as saying this: “Mrs. Forte - when | open case complaints and promises made to others. Deals with real controversy between the parties.”23 But neither Mrs. Forte nor Theobalds J were thinking that way. Here is how Mrs. Forte was recorded on the issue in her closing address: On admissions - Refers to opening in which I referred to admissions and Court ruled they had to be pleaded. Statement of Claim supported by Dr. Davis.” Understandably, there is no mention of contract in the reasoning of the learned judge. Also there was a suggestion of admission, but admissions would have to arise on the appellants’ pleadings and there was none. Furthermore, the judge failed to detect the error of his ruling although the objection below was properly taken. In his reasons he said: “After trial had proceeded for some days substantial amendments were made to Statement of Claim and as a result to Defence.” This confirms that he had intimated and granted the amendments as admissions. Ground 3 of the notice of appeal outlined above therefore was successful. Did the respondent Broderick prove nuisance against the appellant Alcoa Minerals? (1) Theol The gist of the respondent's Broderick claim is outlined in paragraphs 5 to 7 of the amended statement of claim. There is a notable absence of dates in these averments so the evidence had to be closely examined to see where it was relevant. These paragraphs read: “5, The Defendants have introduced and employ the Bayer Process in its24 operations which involves inter alia, grinding the dry ore, mixing the same with limestone, dissolving the alumina in a solution of caustic soda adding flocculants treating the resultant liquor with sodium sulphate, heat, pressure and the release of gases, impurities and chemical by- products into the atmosphere, 6. The said process —_ generates pollutants, noxious gases, caustic. aerosols and other corrosive dusts and acids for free and uncontrolled dispersion into the atmosphere. 7. By reason of the activities of the Defendants as aforesaid the atmosphere is polluted, the buildings and appliances of the residents including the Plaintiff's are severely eroded and the health comfort and the property of the said residents including the Plaintiff are severely affected as a consequence whereof the Plaintiff's dwelling house was destroyed and the Plaintiff has suffered injury to his health and property and has sustained damages.” Additionally, the respondent pleaded public nuisance thus: “8. Further or in the alternative the Defendants failed so to construct its plant and mud lakes and/or to apply some other process to win alumina from its mining operations as to cause dangerous noxious gases poliutants acids corrosive dusts caustic aerosols to escape into the atmosphere and thereby maintain a public nuisance as a consequence whereot the Plaintiff has suffered loss and damages.” That the appellant recognised the importance of dates was evidenced from paragraph 8 of their amended defence which states:25 “8. The Defendants further say that if, which is denied, their operations caused the alleged or any damage to the Piainti's property, the said damage would have occurred prior ta or during the year 1982 and the Plaintiff's action in respect thereof is now statute barred.” ‘Then the merits of the respondent's case was traversed thus: “6. The Defendants say that if, which is not admitted, sulphur dioxide falls in the region of the Plaintiff's property, such sulphur dioxide would be mere traces which would be unharmful to persons or buildings and the emissions are reasonable in the circumstances and not excessive.” There were particulars and as they are of importance; they must be quoted. They read: “ PARTICULARS (i) Sulphur dioxide is a by product of all plants and engines that use fuel oil encompassing most plants and numerous makes of motor vehicles and is a feature of industries worldwide; (ii) In the control of pollution, there exists a maximum standard for emission of concentration into the atmosphere which has worldwide acceptance and the Defendants have always fallen well within the maximum standard at the said plant; (iii) The most modern and efficient contro! equipment are in use, (iv) Powerhouse stacks are 250 feet high and were designed for the control of pollution and emissions of sulphur dioxide26 are at a level into the atmosphere higher than in any existing plant in Jamaica; (v) The production of alumina is amongst the most vital requirements for the economic survival of Jamaica and is and has been actively encouraged by successive governments for over thirty (80) years; and (vi) The Bayer Process is one of the well accepted processes for the production of alumina worldwide.” The appellant further averred that their operations were authorised by the Mining Act. That traverse states: “40. Further or in the alternative, the matters complained of are natural and/or normal result of the Defendants’ operations which are authorised under the provisions of the Mining Act and the special mining lease granted thereunder.” The purpose of this averment is not clear. There are special statutory provisions for compensation pursuant to section 12 of the Mining Act. It was not however contended that these provisions deptived the respondent from seeking redress in the Supreme Court. As for paragraph 8 of the statement of claim, the plea of public nuisance, here is the defence: "9. As to paragraph 8 of the Statement of Claim the Defendants deny that they maintain a nuisance and repeat paragraphs 6 and 7 above and further say: (a) that efficiency for the control of Pollution compares with the(11) What did the scientific evidence of the appellant establish? a7 highest level of efficiency at any plant; and (b) that they recently designed and constructed new mud lakes with the latest and best technology available.” It is pertinent to commence with the analysis of the expert evidence. That for the appellant was given by Dr. Carlton Davis. indicating his academic discipline, he said: *.. 1am a Doctor of Philosophy in soil chemistry and clay mineralogy. | take interest in dusting, ground and surface water pollutions, noise. | examine reports carefully either myself or some officer and one would be alerted to any emergency situation. There are standards to indicate problems.” As for his relevant experience, he states it thus: “Chairman of Jamaica Bauxite Institute since April '89 and 1976 to ‘89. I was the Executive Director, Jamaica Bauxite Institute tries to play a constructive role as an honest broker between the plants as there are important activities for the economy but have impacts on. environment. Have received reports from Alcoa on sulphur emissions. | have copies of these reports - one such is here, sent to me by defendant (hearsay and self serving). These records are sent as a matter of course, | was then at Jamaica Bauxite Institute who monitors the economics, technical aspects (of) (sic) Jamaica In28 Bauxite Institute acts as a matter of public responsibilty.” The learned judge treated the opinion Dr. Davis gave of the reports as (hearsay and self serving). That seems to have been incorrect. As an expert, he was entitled to give an opinion on the reports. Further, his evidence suggests that the Jamaica Bauxite Institute is a public body which monitors the bauxite industry on behalf of the government. His evidence was continued thus: “.. Between 1979 and ‘94 | am familiar with defendant plant. | have never had reason to be worried about sulphur dioxide in atmosphere based on the standard .024 on the basis of the Data and on the basis of the standard .02 parts per million, the data over the years have been at or under that standard. As Chairman of Clarendon Alumina Partners | am satisfied that no problem exists - Measuring those values against the standard.” Despite the standard, he admitted there is a problem thus: “Jamaica Bauxite Institute for last fifteen years have been trying to come to terms with the many complaints from communities, dust, odours and corrosion of galvanized roof and agricultural community - accelerated since 1987. We have not been able to establish link although severe corrosion has been seen by me. Isolating variables such as gauge, marine environment, other factories - Jamaica Public Service Company, Sugar factories, West Indies Pulp and Paper. | have been perturbed by these corrosions and the specific cause thereof.”29 Dr. Davis outlined the response to the problem thus: “Several efforts by Alcoa (1) try to consume as little oil as possible as the more oil used the more sulphur. This plant is the most efficient user of fuel oil. This has a positive environmental effect and costs less. Some Ten Million US dollars have been spent to improve environment. New precipitate which reduces dust and lift height of 275 feet. Plant has tried to improve engineering practices - dust, pollutants and disposal of mud - Twenty five million US dollars for a lake and to relocate two hundred families.” That the government was involved emerged thus: “... Government of Jamaica is fifty percent owners so we try to encourage the best practices in our environment. We are in business together for taxes levies etc. No interest in any issue.” The final paragraph of his evidence in chief reads: “.. We had already determined that it is not possible to make causal link so what do you do? We adopt techniques or using aluminum linked with iron or copper 80 as to determine causes and arrive at a perimeter for which you take esponsibility. | would be less than honest to say so but this has been a basis which you must have a basis. | do not know that this basis is perfect. w.5 miles was set as a basis from the clyber tests in area. 1.5 miles was area chosen for a powerful cause of corrosion.” Despite Dr. Davis’ disclaimer of a causal link between the appellant's plant and the corrosion of the respondent's house, it was for the court30 below and this court on appeal to determine the issue of causation on the basis of a balance of probabilities. Dr. Davis was tested and under cross-examination, the following was revealed: * | familiar with Clyber Test and with paper by Vivian Blake at Bauxite ‘Symposium in 1986. Proximity to Bayer Alumina Plant - this test uses data to define geographical jimits around the plant. There is a mandate requiring compensation for demonstrable damage caused by the plant. | agree with statement that our Alumina plants generate substance that are potentially corrosive. | agree that potentially corrosive emissions come from plant at Hayes - sulphur dioxide.” The reference to mandate requiring compensation is a reference to the Mining Act mentioned previously. Further he said: “Also soot from the boiler stacks if on the surface of the roof. Also dust from alumina if it absorbs corrosive compounds it could have corrosive effects. Also * fugitive alumina dust blown by the wind. In the Bayer process when bunker C oil is burst entire corrosive substance is expelled through the stacks - would be ‘over 90% water saturated air and droplets of liquid from liquid cooling stacks. Caustic soda is corrosive for most metals. Chemical reactions are speeded up by heat. 1.5 M. is a convenient cut off point. i agree there is need to extend the conduct of climate testing. Man made and naturally occurring pollutants. always a slight trace of sulphur in air for example31 from rotting eggs. | agree pullutants in atmosphere depend on height of stacks as well as rate of which pollutants are produced also on topography of area.” Then under re-examination, Dr. Davis said: The Ciyber test does not tell source only probable cause of corrosion.” The significance of this evidence is the admission that Alcoa's plant produces sulphur dioxide. It also supports the respondent's statement of claim especially paragraphs 5 and 6 which speaks of the release of gases, impurities and chemical by-product into the atmosphere. The other witness for the appellant was Robert Stephens who was the general manager of Alumina Production Limited during the relevant period. The pertinent part of his evidence was as follows: “In July ‘87 | address Citizens Association at Hayes. Alcoa had decided that roofs within a radius of 1.5 mile from Plant would be repaired based on results of survey by National Housing Trust (incomplete) that was there the. concentration of damage was seen. The estimate was 2.4 million dollars which had been allocated for repairs to roofs. All the results of the tests undertaken by Alcoa and by Jamaica Bauxite Institute had been inconclusive separate and independent tests.” This was a significant admission. The admission relates to the inconclusive nature of the tests done by National Housing Trust, Alcoa and Jamaica Bauxite Institute. Then as to the general evidence of32 corrosion, after a meeting on 25th Februaty 1989 he made an inspection and reported thus: “... | went and looked at 3 houses in area. Members of Press were there. | saw corroded roofs - don't know if normal or abnormal. all 3 were corroded in a similar fashion. shown document -” The witness visited three houses and there was a dispute on this, issue as well as others as to whether similar fact evidence was relevant and admissible in civil proceedings. Mrs. Forte helpfully cited a relevant authority to show that it was. See Mood Music Publishing Co. Ltd. v. De Wolfe Ltd. [1976] 1 All ER 763. Lord Denning said at p. 766: “The admissibility of evidence as to similar facts has been much considered in the criminal law. Some of them have reached the highest tribunal, the latest of them being Boardman v Director ot Public Prosecutions (1974] 3 All ER 887, [1975] AC 421. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is \agically probative that is if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it. Instances are: Brown v Eastern Midlands Rallway Co. [1889] 22 QBD 391, Moore v Ransome’s dock33 Committee [1898] 14 TLR 539, Hayles v Kerr [1908] 2 KB 601.” (11B) What did the scientific evidence of the respondent prove Lena Whyte, a Metallurgist of the Bureau of Standards since 1978 stated her qualifications and experience thus: “M.S.C. in Metallurgic Engineering from Cranfield in U.K. B.Sc in Natural Science with Materials Options from U.W.I. - Mona. | work on metals in general - steel, copper | draft Jamaican standards for metallurgical process and practices. | offer technical assistance in area of metallurgy as well as administrative tasks. Ihave worked on zine coated steel sheets for G.I. Industries Quality dealers Limited - Pre-specification work in drafting a Jamaican Standard - for zinc coated for Insurance purposes.” Then she recounted her involvement with the respondent's case thus: “I received request, went to Hayes in Clarendon on 29.9.91 with Mr. Rajah Tewari and to Broderick’s house and deRois' residence. At Broderick’s house | examined the zinc roof and sampled a sheet of zinc with the help of a young man. I select sheet and young man raise it from roof in my presence and cut in 3 pieces and labelled and put in trunk of Tewari's car and we drove to deRois residence and sampled another sheet. | ‘examined roof from below and point at a sheet to be taken. It was cut in 3, tagged and labelled in my presence and put in trunk. Mr. Tewari and I drove to Bureau of Standard (sic) office where | hand samples (both sheets) to Annella McFarlane from Chemistry Department.” Her findings were reported thus:34 Sheets from Broderick's house were corroded in some areas and had a white deposit on the surface. The corrosion was reddish in colour which is indicative ‘of removal of zinc coating to expose the sheet base. The white deposit is also a corrosion product referred to as white rust. When | said it was corroded it could have been to the extent that there were holes in it - if completely corroded material will be removed or it will change its physical appearance. It is in a similar condition now to what it was when taken from Broderick's premises.” She continued thus: “Without any hostile environment its life expectancy is about 20 years. | saw Alcoa Plant in area. This was an industrial environment giving off chemical fumes. lf Broderick had to change his zine so frequently it implies some compound or elements in the surrounding atmosphere causing the zinc to deteriorate. Given the environment that is proximity of plant and mud lakes it is likely that there would be an appreciable concentration of sulphate irons chloride ions and a caustic environment that would be able to react corrosively with the zinc in solution. These ions would react on the galvanize coating on steel sheet better known as zinc.” In explaining the cause of corrosion, she said “ [have had experience with Bunker C- Oil. | have done failure analyses for JPS Company and in order to generate electricity JPS Company is a user of Bunker C-Oil. (sic) Bunker C-Oil (sic) contains some amount of sulphur. The major contributor where you have35 environment embrittlement in boiler or super heater tubes. | cannot say amount of sulphur Bunker C Oil contains. On burning this oil sulphur is transformed into sulphur dioxide and sulphur trioxide - gases which react to form sulphuric and sulphurous acid, Hydrogen ions in water or liquid environment. itis the sulphur in the Bunker C Oil which forms the gases and in solution becomes sulphuric and sulphorous acid. sulphuric acid is highly corrosive especially in liquid form. Sulphuric acid would react with zinc and with most metals. It would break down zine and decrease its protective action on the steel base and also it would react with the steel once the steel is exposed. It would reduce the iron to its oxide-ferrie and ferrous oxide (a mixture) equa! rust. Depending on degree and rate of corrosion it would lead to fall out or holes in zine sheets.” When she was tested under cross-examination her response was: “ [would not say scientist more precise than metallurgist. 1 trying to indicate elements that contribute 10 corrosion - most important one is sulphurate ion. If you measure it you can a certain (sic) of sulphur chloride ions in the atmosphere. | never measure it at Hayes. All these have teactions on zinc. You don't have to carry out test. Zinc is zinc (metal). Areas of corrosion affected by wind and height of stack from which they come. My studies did not infer that one way or the other. sulphuric (acid) rain can have degrees of acidity. Normal rain does have acid not from clouds but from atmosphere.” The corrosion was evident to the layman. Here is how she put it: “A visual inspection could only give you an idea. Anyone could see the corrosion36 but not necessarily infer loss of zinc coating. Zine coating not in its original state. Not so main purpose of taking weight was to determine loss in its original state. There are standards which tell you which part to cut off, how far from edge and what dimensions.” Another metallurgist who gave evidence was Dorr Campbell. He stated his qualification and experience thus: “Bureau of Standards - 6 Winchester Road, Kingston 10 - Head of Metallurgy Department since August ‘87 - ‘88 and in Metallurgy Department since August ‘81 B.Sc. Natural Science from University of the West Indies and M.Sc. in Mettallurgy Manufacturing Process and Management Burmingham University - United Kingdom. For B.Sc. | specialize in Chemistry and applied Physics (Material Science) option at Bureau. | involved in testing Metallic materials and products in all forms, shapes and times. Also consultant to local industrial sectors in metallurgy and quality assurance. From time to time | visit sites to collect samples for testing, to inspect areas of metallurgical failures and in work related to monitoring of products under Jamaican standard eg. B.R.C. Jamaica Limited, Caribbean Stee! Company.” He tested galvanized sheets taken from the respondent's roof in 1993. Although there was objection to the admissibility of this evidence, the objection was rightly overruled by the learned judge. This nuisance is a continuing tort and that is why the respondent sought an injunction The witness then indicated the method of testing thus:37 | saw samples which Dixon tested. Before he tested | indicated to him the test method to be used - American Standard ASTM A90 which covers the deterioration of zinc coating weight on galvanized steel articles. 1 am myself familiar with the procedure. ASTM A90 is used in USA and | believe Canada and we used it for the development of our own Jamaican standards.” As to specifics, he said: “. The metal sheet coating - steel corrodes relatively rapidly so it is necessary to coat steel articles with a protective coating. Zinc is one such coating. It shields the steel base from exposure to atmosphere which may cause rusting or corrosion, Rust also has an aesthetically unattractive colour.” Here is how he explains the corrosion: *.. | know bunker C oil is used a lot in Jamaica for energy for power plants. | am not familiar with its components. Sulphuric acid would dissolve zinc coating and rate of dissolution would depend on the strength of the acid. In its most diluted state sulphuric acid would have above affect on buildings close to Alcoa Plant at Hayes. Assuming bunker C oil used and gases emitted into atmosphere and condense and fall on roof as rain (with acid content) it would accelerate the degradation of the zinc. Significance of the gauge is to impart mechanical strength - a thicker gauge would be stronger than a thinner gauge. Life span starts at point of installation and ends - different criteria - for some on first rusting and for sometime when perforation and leakage commences. The sample(s) | saw had a significant areas where the zinc38 coating had been depleted and the exposed steel had started to rust. Generally the surface was tarnished not with bright lustre of new sheets.” Then he concluded his evidence in chief thus: ".. | would not expect leaking in 7 years under normal non-aggressive conditions.” A significant part of the cross-exarrination was directed to the existence of the Jamaica Public Service plant in Old Harbour. And that in Hayes there are sugar estates - Monymusk and New Yarmouth which also use bunker C-oil, This requires a legal answer pertaining to joint or ‘concurrent torts. This is important as it was admitted that Hayes area is an aggressive environment. Furthermore, Dorr Campbell stated: “| agree if emissions from Alcoa influence area it would be by way of mixing with other influences in area. | have done no tests to indicate the degree of any influence from Alcoa. | have seen Alcoa stacks - very high travel Jamaica extensively. The highest stacks | have seen are at Frome. Can't say it Alcoa stacks are higher - 250 feet stack is a high stack. The high stacks are used to minimize the amount that falls back. When breeze catch it goes far away. Don't know if Pittsburgh emissions go far afield life expectancy 18 years for 8 coating. | got this from tables based on tests. One table is based on weight loss per annum fot highly industrialized environment .405 per square foot per annum. On that weight loss life expectancy would be two years (in Sheffield England). | agree | can't slot Hayes in any of these categories. Hayes is a rural area with heavy industries.”39 Annella McFarlane was another expert witness. She gave her training and experience thus: * Senior Standards Scientific Officer - Jamaica Bureau of Standards - Winchester Road. Specialize in chemistry at U.W.1- 1st Degree in Pure and Applied Chemistry. also Diploma in Education and Post Graduate training and several training programmes including plastics instrumentation and analysis of a number of materisos aloys, brass, aluminum, gold, silver, cement, limestone paper, cloth, water analysis and fuel and diesel oil, bunker C oil. Alloys equal any mixture of metals including galvanized zinc. Know head of Industrial section. 1 do some of the testing and standard writing. | am technical secretary soaps, detergents and cleaning agents mainly.” As for the relevant evidence she said: “| test sulphates go outside Bureau. Bunker C oil | personally test it - it is a crude oil. We distill it and the lighter portions which evaporate faster. Kerosene, gasoline and diesel, tar and crude oil (bunker C) Burning of bunker C oil gives off heat, water, soot, carbon dioxide, carbon monoxide sulphur dioxide and sulphur trioxide. These last two are gases basically colourless. Sharp pungent odour given off. Sulphur dioxide plus trioxide if dissolved in water would give an acid - sulphurous acid and sulphuric acid”. Then she continued: “Bunker C oil has 2.4 - 3.1% sulphur and diesel oil. .4 - .5% sulphur and in gasoline a maximum of .2%. | familiar40 with bauxite industry and bayer process some long years ago. Bunker C oil is used. | have done samples of galvanized sheeting. | made note (refreshes memory) 25.9.91 submitted 3 zinc sheets - submitted from James Kerr (lab head). | tested them after examine label and code them - 1 tagged control trom Farewell Avenue 1 tagged DuRoi (Clarendon) 1 tagged Broderick (Clarendon) Two sheets had holes in addition to nail holes - DuRoi and Broderick also red rust areas.” Then the following significant results were obtained: “Those from DuRoi and Broderick badly corroded. Sulphur dioxide equal SO2 S1 - Sulphur trioxide equal SO3 S1. I cut sheets in 3 portions scrape with metal brush and spatula top and bottom of all 3 pieces for Broderick, DuRoi and control. Collect scrapings and test for sulphate, chloride, aluminum and sodium. Six (6) weightings made of samples for each one two sets of tests done - put in glass beakers with strong nitrate acid dissolved and filtered sulphate (made notes) refresh memory - Broderick test - 3.65% sulphate on 1st determinati 3.60% sulphate on 2nd determination DuRoi's sample - 3.93% sulphate on 1st determination3.37% sulphate on 2nd determination On control none on 1st test 011% in 2nd determinationa Normally on 2 or 3 determinations we average the results. Sulphate is SO4 with 2 minus charges - SO4 with 2 minus charges 1 sulphur and 4 atoms. The tests confirm that Broderick material badly corroded other on control was not.” The following significant extract gives a convincing explanation of the process of corrosion on the respondent's zine roofing: “ On samples red rust on both surfaces - white rust on both surfaces but none on underside. This white rust indicated to me that what was on top could have been washed off or through the nail holes or More corrosive material could have entered through the nail holes. Sulphate on B's sample indicated to me presence of sulphuric acid and that zinc was corroded by sulphuric acid. The reading on Broderick’s sample as opposed to control - this is an enormous amount of sulphate if calculated as acid it would be a bigger figure. Sulphate (as sulphuric acid) would have an acidic reaction on zinc - it produces a salt (zinc sulphate which is white) and hydrogen gas. The zinc would be replaced by white powdery substance (zinc sulphate). The other products (hydrogen) would be released into the atmosphere. You would not see the reaction but you would see the result (white powder on the zinc and after a while you would have no zine for the reaction to continue when the zinc is finished there would be just the steel exposed and for iron to rust you need oxygen and moisture.” Continuing the narrative an explanation was given as to how rust was formed and the consequences which probably occurred:42 “When iron rust you get iron oxide - when No more iron it breaks into holes. From my knowledge the bauxite industry uses high stacks for the removal of gases from the burning of crude oil. The gas coming off from the stacks soot, carbon dioxide and non-oxide sulphus dioxide matured are either wet or dry. If dry it would fall on plants in small specks or dry ash. If lot of moisture in the air then you would get some amount of acid - sulphurous or sulphuric mainly. If it rains some can be washed away or seep thru holes and mixed with the dry ash. The conversion to sulphuric acid takes place in the atmosphere and comes down as acid are both corrosive sulphuric more so can burn hole in skin - on paper would end up as carbon that's how corrosive it can be. Broderick is very near to the factory and it is possible that some deposits are reaching his house - the results from testing of zinc sheets show pressure of sulphuric acid so some sulphuric acid or some sulphur dioxide must have reached to the roof.” Then to the court the following answer was given: “My opinion was that zinc sheets were being damaged by Company in area - by the nearest Plant, Although Theobalds J declined to analyse the evidence or even rehearse ithe did find: “It is my view that on an overwhelming preponderance of evidence, the Plaintiff has discharged the burden of proof.”43 An aspect of the evidence he must have considered was that of Wilmot Wallen Bryan of the Jamaica Bauxite Institute. He was employed there as Chemist since 1976. Here is how he states his relevance to this case: “I have had to visit Alcoa Plant in Hayes usually in connection with analysis of bauxite. Also to examine roof and tests samples of the corroded roofs and photographs of them. | examined roofs about 3 years ago - 2 to 3. | took scrapings from the surfaces to see if | could determine the products of corrosion to see if could be attributed to comman plant environs.” Of specific interest was his knowledge of the clyber test. He said: “I am familiar with clyber test. It is used in Alcan system to ascertain the radius of influence for corrosion activity. It can also adapted for marine corrosivity tests. | familiar with the results of clyber tests conducted by Alcan. | attempted once to apply it - about the time now - say before | went to get the scrapings (sic) - somewhere within the past four years - about the time when this litigation started. | came to no conclusion - it made me question the climate test as some amount of subjectivity was required in making these measurements.” Then he continued: “... My observation was that rate of corrosion did not bear any relationship to the distance from the Plants. My results did not coincide with Alcoa's. What | observed was that in fact the greatest rate of corrosive activity was furthest from plant. My furthest probe was 5 miles from the Plant (South of the Plant), | had probes all the way from edge of Plant44 back. All the probes had corrosion (but for the climate test to indicate) a trend of systematic reduction as you went further from the Plant did not emerge. One could not say that a specific plant effect was observed but it did indicate in vicinity of wees, trees and vegetation does contribute to the extent of corrosion. Joint corrosion but the source therect still arises. The source does not act alone - trees can assist my test. Test compounds the effect - climate test was to determine factory effect. Other effects were to be eliminated - such as from trees if possible, Burning of bunker C oil throws sulphur dioxide and nitrogen gases into the air trees and so forth. (plant life) would not emit same quality of ...” The learned judge must have accepted this evidence in the light of his findings. In concluding his examination in chief, he said: Sulphur dioxide is an acidic substance. Assisted by moisture it forms sulphurous acid and can be oxidized to sulphuric acid which is stronger. Rain or anything which enhances the moisture levels will lead to formation of acid, contact between these acids and roofing material is by rain-fall and morning dew. Corrosion can be varied - contact with acid of metal will lead to dissolving of zinc coaling. Electrolytic effect - two different metals - if they become covered with water with acid in it - this electrolyte conducts electricity easily. The origin of the electrical current is the The zinc ‘could dissolve and cause zinc to be pitted. Carbonic acid is insignificant relative to sulphuric acid - carbonic acid has very little effect. 1 would expect on zine contributes very little to destruction of zine.”3B The evidence adduced by the respondent included the input of a civil engineer, Noe! Gauntlet. He had considerable experience in his protession, being employed as a senior engineer, Public Works Department, Ministry of Local Government and the Water Commission. He reinspected the respondent's roof and others in 1989. The roofs were corroded in an unusual manner. There was also evidence from a meteorologist, Roy Forrester. He holds a B.Sc. degree and had been in practice since 1958. He has worked in Jamaica, U.S.A., France and Turkey, Greenland and Spain. He is now Resident Meteorologist at Jamaica Broadcasting Corporation. With reference to Hayes he said: “tn vicinity of Hayes winds can be strong, subsidence is also created. High pressure system keeps down air. Particles in air would be trapped at lower levels. For most part rain would not follow, but sometimes you could get precipitation. In absence ot any synoptic scale winds (winds that are due to large scale weather features) - we have local winds which are the land and sea breezes. During day when land is heated the air is forced to rise and because the atmosphere is always trying to maintain a state of equilibrium air moves from the sea to replace the air that has moved aloft - called breeze.” Then he continued: “At night land cools more rapidly than sea and hence the cold air moving from the land to the sea - called land-breeze. Sea46 and land breeze do not move at same speed. Land breeze is slower." There was yet another important expert witness, Worrell Lyew Young. As for his qualifications and experience he stated them thus: “Director of Jamaica Bauxite Institute. Pilot Aluminum Plant since 1989 - ‘90 Com Piece Hayes Clarendon. Twelve years at Jamaica Bauxite Institute, Chemical Engineer of St. Augustine U.W.. A BSc in Engineering. | had assignment with Alcoa Plant at Hayes. | do work for Clarendon Alumina which is one of the partners in a joint venture between Jamaica Government and Alcoa. My work takes me to the Alcoa Plant (Hayes) most Thursday (every week). They use the Bayer process.” After explaining how bauxite is recovered and transported to Rocky Point he gave this account of how pollution occurs: “Bunker C Oil is used. Sulphur content of bunker C oil is 2.5% (about). About 1.2 million barrels of bunker C oil is used per annum. Forty-two gallons are in a barrel. 48 units at the plant use bunker at the plant use bunker C cil. 3 boilers, 3 aluminium calcerners. 1 package boiler and the lime kiln. There are four stacks presently at the plant since last year and before there were six, two with boilers are 250 feet high.” Then he continued thus: “Three with calcerners are about 130 feet high. Other three less than 130 feet high. The three calcerners stacks were replaced by a single stack 275 feet high. This decision was taken to replace them along with the electro47 static precipitators to improve the emissions of alumina dust and products from the combustion of the oil - sulphur dioxide, carbon dioxide, water oxide of nitrogen and others. When bunker C oil is used (burnt) the hot gases come out via the route provided, the ducts for hot gases to get to the stack into the atmosphere. These hot gases would contain the above substance.” That standards vary, and that he was unsure of Alcoa’s standards in Jamaica could be elicited from the following account: “There are standards for emissions set by different countries and companies. | am not sure if there are universal standards. They are National Reservation Conservation Agency are working in Jamaica to put standards in place. There are standards in the U.S.A. and Alcoa has standards before the stacks were changed from 3 to 1. It would be hard to say if Alcoa was meeting its standards. Don't know if met U.S.A. standards. The electro static precipations would collect more of the alumina dust so less of it - the dust and gases would get to the atmosphere. The gases would be disbursed over a wider area. At 130 feet stacks residents complained.” In explaining an aspect as to how pollution occurs he said: “All the sulphur in Bunker oil would be burnt but not all would go thru the stack. I cannot say what percent but most of it would go to the stacks. The bauxite is mined in the Mocho area. There are three mudlakes in area of plant to the West side and across the main Toad from May Pen to Lionel Town.48 One about 100 acres. Next about 250 actes and number 3 about 110 acres. These lakes store mud from the Process and acts as a stage for recovery of caustic. About 70,000 tons of limestone is burnt per year at the plant and about 1.8 million tons of bauxite is consumed annually at the plant.” An important aspect of his evidence emerged from cross-examination. His opinion was that mare could be done to reduce emission. Here is the evidence: “At Alcoa the lime kiln has a sunblew to take away dust. | don't agree Alcoa has done everything possible scientifically to reduce emissions. They could reduce sulphur dioxide emissions. | have not so advised ‘because they are taking steps to do all that is possible. \ believe as knowledge progresses they employ that knowledge to do better. The small package boiler was recently added. In the 1980s it was not there. | agree that by using oil with a 2.5% is more costly than 5% content, | sit on the Council. Company does show concem for the amount of sulphur going thru its stacks. | agree ‘ambient concentration is the important thing not the height of the stack.” He also said: “.. 1 could see stacks of Alcoa from plaintif's home. Home is in opposite direction - this was in the day. A sea breeze was blowing then from sea to land - South to North. At night from land to sea - south breeze would dilute and disperse particles dependent on wind speed. If49 slow - less dilution. Smoke would blow towards plaintiff's house.” (111) The effect of the scientific evidence: Although there were other industrial plants in the vicinity of Hayes which use Bunker C oil, the evidence of the experts, including that of Clinton Davis, for the appellant was so compelling that the finding of the learned judge that there was a causal connection between the emission from Alcoa's plant and the damage to the roof of the respondent's house was proved. There was also the evidence of the respondent and his neighbours which must be adverted to. (1V) Th idence of the r \t Broderick ant Herbert Broderick, the respondent told the court he lived 10,720 feet from the Alcoa plant and the distance as the crow flies is about quarter mile. He built his house in the early seventies and occupied it in 1975. He noticed white spots on the zinc in 1980 and holes appeared and there was leaking. Significantly he changed his roof in 1982 and six weeks prior to the hearing on 7th October, he had to change fifteen sheets of zinc and he noticed spots again and leaking. The fifteen sheets covered a few bedrooms and the rest of the house was at the time of hearing, still leaking. it was a four bedroom house. He had to paint out the water marks and repair the ceiling. He described the leaking water as being of brownish colour which left a light blue stain on the blue walls.50 He told the court he could see the plant from his house and that he could see the steam from the power house. It was thick and black in colour and when the wind blew southwards, the smoke came to his house. There was also unpleasant smell from the mud lake and his eyes and ostriis burnt as a result of the fumes from the lake. Rajah Tewari owns property in Hayes and he has complained about damages similar to that of the respondent. Witney Francis lives within a mile from the Alcoa plant. He is seven chains from the mud lake. He is an accountant and a Justice of the Peace. He discovered white spots on his roof in 1982 and thereafter rust appeared and leaks. He made complaints similar to that of the respondent but in more colourful language. Dalson DaSilva also gave evidence similar to the previous witnesses. He gave in greater detail his recollection of what was promised by Alcoa officers at various meetings. (Vv) Was. ellant Alcoa liable for nuisance on the basis of the foregoing evidence? It is now necessary to examine the relevant authorities to determine if, on the issue of liability, the learned judge below was correct. In Halsey v Esso Petroleum Co. Ltd. [1961] 2 All ER 145 at p. 150 Veale J cited the following passage: “.. As long ago as 1865, in St. Helen's Smelting Co. v. Tipping Lord Westbury, LC., said - (1865) 11 H.L. Cas at p. 650: ‘in matters of this description it appears to me that it is a very desirableSt thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance Produces material injury to the Property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort...” In dealing with the specifics as regard injury to property the citation continues: “.. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business is a material injury to property, then there unquestionably arises a very different consideration. | think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.” Then he further stated: “... [bear in mind the observations of Lord Loreburn, L.C., in Polsue & Alfieri, Ltd. v. Rushmer (1907) A.C. at p. 123 Lord Loreburn, L-C., said: ‘The law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury in the case of Colls v. Home & Colonial Stores, Ltd. (1904) A.C. at p. 185. He said: ‘What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure52 air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action." This is a question of fact.’* Since the complaint in this case concerns both injury to property and personal discomtort, it is appropriate to cite the relevant passage from Lord Westbury’s speech in the St Helen’s case cited by Veale J at 150 on the issue. It reads thus: “... With regard to the latter, namely, the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses of the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, itis necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, becatise to himself individually there may arise much discomfort from the trade carried on in that shop.’ *53 Useful passages are also to be found in Crump v. Lambert L.R. Vol. (III) Equity Cases 409 where Lord Romilly, M.R. said at p. 412: With respect to the question of law, | consider it to be established by numerous decisions that smoke, unaccompanied with noise or noxious vapour, that noise alone, that offensive vapours alone, although not injurious to health, may ‘severally constitute a nuisance to the owner of adjoining or neighbouring Property; that if they do so, substantial damages may be recovered at law, and that this Court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered at law. Ellictson v. Feetham 2 Bing. N.C. 134, and Soltau v. de Held 2 Sim. (N.S.) 133, are instances relating to noise alone. in the former, damages were recovered in an action at law; and in the second, an injunction was granted on account of sound alone.” Then on page 413 he said: .. in other words, whether he comes to the nuisance or the nuisance comes to him, - retains his right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water, and the doctrine suggested in Hole v. Bariow, that the spot from whence the nuisance proceeded was a fit, proper, and convenient spot for carrying on the business which produced the nuisance, is no excuse for the act, and cannot be made available as a defence either at law or in equity.”To my mind, the abundant scientific evidence and the evidence ‘rom the respondent and neighbours make it convincing that Alcoa was liable in nuisance because of the emission from their plant and mud lake. ‘There was an argument that there were other plants in the area and that they also could have contributed to the nuisance. The authorities suggest that even if that were so, Alcoa would not be exonerated. The general principle is set out with clarity by Devlin J in Dingle v Associated Newspapers Ltd. And others [1961] 1 All ER 897 at 916 thus: “This conclusion appears to me to be in accordance with and indeed to exemplify, a fundamental principle in the law of damage.(sic) Where injury has ‘been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasor for contribution but the plaintiff is not concemed with that: he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. ...” It is sufficient to cite two authorities from the House of Lords which affirm this principle. In Bonnington Castings Ltd. v. Wardlaw [1956] AC 613 at 626, Lord Keith said: