Foods Pacific Ltd v Metromix Concrete Company Ltd [2005] FJHC 737; HBC470J.2002S (11 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 470J OF 2002S

BETWEEN

FOODS PACIFIC LIMITED
FIRST PLAINTIFF

AND

MARINE LIMITED
SECOND PLAINTIF

AND

METROMIX CONCRETE CO. LTD.
DEFENDANT

Counsel for the Plaintiffs: G. O’Driscoll: Driscoll & Seruvatu
Counsel for the Defendant:C. B. Young: Young & Associates

Date of Judgment: 11 May 2005

Time of Judgment: 9.30 a.m.

JUDGMENT

The 1st plaintiff in the registered proprietor of all that piece and parcel of land contained in Native Lease No. 16086 and described as Lot 30, Plan S1435, Wailada Sub-division, Lami. The second plaintiff is described as a Sister Company to the 1st plaintiff and is the registered proprietor of the piece and parcel of land contained in Crown Lease No. 5417 and described as Lot 2 on Plan S.1443, Wailada Industrial Sub-division. Both plaintiffs are engaged in the business of processing and packaging of food materials from their respective plants constructed on their property.

The defendant is the registered proprietor of all that piece and parcel fo land contained in Crown Lease No. 5407 and described as Lot 9 on Plan S.1443, Wailada Industrial Sub-division. The defendant’s property lie adjacent to the plaintiffs’. The defendant operates a factory for manufacturing concrete products, supplying ready mixed concrete as well as supplying gravel and sand.

The plaintiffs claim that because of the nature of the defendant’s business, it creates dust pollution in the form of dust clouds which are directly diffused into the atmosphere and spreading into the surrounding areas including into the plaintiffs’ properties. The basis of the plaintiffs action is set out at paragraph 12 of its Statement of Claim as follows:

"12. The continuous dust pollution over the area has meant that the food production in the plaintiffs’ factories has been contaminated. This has created a real threat for the plaintiffs in their capacity as businesses. There is also a substantial health risk associated because of the dust pollution for the Consumers of the plaintiffs’ products."

This is the plaintiffs’ Summons for injunction to restrain the defendant from further permitting or causing to permit dust which they allege emanate from the defendant’s business operation, to travel and settle in the plaintiffs’ properties.

Plaintiffs’ Argument

The affidavit by James Adeshwar Nand, the Factory Manager to the plaintiffs, in support of the Summons, says that the plaintiffs had on 30 July 2002 written a letter of complaint about the nuisance, to the Lami Town Council. Following a meeting between the parties and the Council the defendant, according to the Council’s letter to the defendant of 30 July 2002, undertook to carry out specified improvements on its plant and premises, that will reduce or eliminate the dust nuisance alleged by the plaintiffs.

Mr Nand says that up till now, the defendant has failed to carry out the works ordered by the Council. This in spite of a follow-up letter by the plaintiffs’ solicitors of 30 September 2002.

The plaintiffs had furthermore commissioned a report by the Institute of Applied Science at the University of the South Pacific. The report, is on the measurement of the dust level on the plaintiffs’ premises over a period of 7 weeks from 23 September 2002. For the first 7 weeks, the report stated, according to the plaintiffs, an average dust level of 89 ug m3 compared to the permissible mean annual dust concentration range of 80 – 90 ug m3 allowable by the World Health Organization.

The continuation of emission of high level of dust from the defendant’s property on to the plaintiffs’ has not only post a hazardous health risk to the consumers of the food products processed by the plaintiffs, but also to their employees. The plaintiffs also argue that the value of their properties have been diminished as a consequence and unless and until the defendant is restrained, they will continue to suffer damages.

Counsel for the plaintiffs rely on Ryland & Or. V. Fletcher [1868] All ER 1, the leading authority on the liability of owner of a property for the escape of nuisance from his property. Counsel argued that the facts of this case falls on all four within the principles of Ryland’s Case. The headnote to the Case states:

"If a person brings or accumulates on his land anything e.g. water, or filth, or noxious fumes – which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage."

Defendant’s Arguments

The defendant denies that its operations is responsible for the dust cloud alleged by the plaintiffs as emanating from its property. In its affidavits in reply, the defendant’s Operation Manager, John Wind refer to other possible causes of dust cloud. These include the Humes Company operating 200 to 250 yards away which also manufacture concrete and maintains a cement silo. Its operation, according to Mr Wind, is about twice the size of the defendant’s. There is also the fact that the road serving both the plaintiffs’ and defendant’s properties, are in a bad state of disrepair and its use by heavy vehicles and trucks, only adds to the amount of pollution including dust cloud, escaping into the environment.

The defendant also takes issue with the use of the University of the South Pacific report by the plaintiffs. In the first place, Counsel argues, the report merely spoke of
"dust levels in air." The report does not separate or distinguish the different sources of dust, for example, whether they originate from the defendant’s plants or from the road or from elsewhere. There is no specific mention of cement dust. In any case, even if the Court were to accept that the report was specifically on the cement dust, defendant argues that in only one of the five weeks over which the tests were carried out was the level above the WHO permissible level.

AS to whether the rule of Ryland v. Fletcher on strict liability for damage applied, the defendant Counsel referred to subsequent Court decisions that have established that ordinary or natural use of the land is a defence to claim of nuisance. Thus in Cambridge Water Co. Ltd. v. Eastern Counties Leather plc [1993] UKHL 12; [1994] 1 All ER 53, Lord Goff of Chieveley after having examined nuisance and the rule in Ryland v. Fletcher added, at p.70:

" ...... although liability for nuisance has generally been regarded as strict, at least in the case of a defendant who has been responsible for the creation of a nuisance, even so the liability has been kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which" those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action": see Bramford v. Turnley [1860] EngR 1082; (1862) 3 B & S 62 at 83, {1861 – 73} All ER Rep. 701 at 712 per Bamwell B. The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it."

The limits to the strict liability under the rule in Ryland v. Fletcher is to be found in the Privy Council decision in Rickards v.Lothian {1913} AC 263, where Lord Moulton reflecting on the rule said, at p. 280:

It is not every use to which land is put that brings into play that principle. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community."

Defendant Counsel also referred the Court to 2 Australasian decisions of Hazelwood v. Webber {1934} [1934] HCA 62; 52 CLR 268 and NZ Products v. O’Sullivan that have held that charge of nuisance could not be sustained in a situation where the use of the land is considered as ordinary or expected use.

The defendant, in response to the Lami Town Council’s concern, submits that it voluntarily had taken measures including the erection of a sprinkler systeym, the daily hosing down of the yard and construction of enclosure around the cement silo, that were all intended to abate any nuisance, including dusts.

Furthermore, the defendant points to the Inspection Report from the Director of Environment who, after inspecting the premise to determine the level and measures of controls put in place to address the problems of dust nuisance, concluded that he was satisfied with the measures put in place by the defendant.

The defendant has also produced to the Court a letter from Karo (South Pacific) Ltd., which operates its business direct opposite from the defendant’s premises. It’s Managing Director in the letter states that they had been tenant in their present premises for last 4 years and have had no major dust problem, even although their office have windows open as there is no airconditioning. According to the Company, "the dust in no more than that generated by passing traffic on the road ...."

The defendant finally argues that in any case, injunction would not normally be granted by the Courts if the nuisance complained of is of a "temporary" nature or "occasional" in character. Thus if the USP scientific report was applied, then the level of dust nuisance, presuming that it had all escaped from the defendant"s property, would have risen above the WHO acceptable level of 80 – 90 ug m3 only once in the 7 weeks the test had been carried out. Under such circumstances, defendant argued, the application for and granting of the interim relief of injunction would be wholly inappropriate.

Injunction Application

The principles governing interim injunction are set out in American Cyanamid v. Ethiccon Ltd. [1975] ac 396. It is now generally accepted that a plaintiff need only establish that a serious issue arises and that the claim is not fivilous or vexatious or that the application discloses a reasonable prospect of success. Thereafter, the Court’s primary consideration is the balance of convenience. This basically involves the Court assessing whether the plaintiff could be adequately compensated by damages if refused an injunction or whether the defendant could be adequately compensated in damages if an injunction is granted.

First, is there a serious issue raised by the plaintiffs. Their claim is premised on the allegation of nuisance generated from within the defendant’s property and escaping into the neighbouring properties belonging to the plaintiffs. They rely on the Ryland v. Fletcher doctrine of strict liability.

The uncontested facts of this case before this Court is as follows. The defendant had, on 8 February 1996 purchased the property (C.L. 5407). The property is zoned "industrial" and Clause 6 of the Lease specifically stipulates:

"6. The lessee shall use the demised land for the Industrial purposes and not for any other purpose without the prior written consent of the lessor."

Industrial purposes would certainly in my view, include activities such as manufacture of concrete products and the supply of ready mixed concrete as well as supply of gravel and sand, which the defendant is involved in. Such activities the Court notes, have additionally been approved on the property through the business licences obtained by the defendant from the Lami Town Council.

The 1st plaintiff had purchased its property (Native Lease 16086), in July 1984, whilst the 2nd plaintiff purchased Crown Lease 5417 in January 2001. Both leases are industrial, and both specifically (Cl. 9 in N.L. 16086, and Cl. 6 in C.L. 5417) stipulate that the use shall be primarily industrial. Both plaintiffs are presumed to be aware of all the permissible activities in an industrial sub-division, and in the case of the 2nd plaintiff, the presumption is that it was fully aware of its neighbour’s, the defendant’s activities, when it moved in to operate its own.

Does the Ryland v. Fletcher doctrine apply on the facts of this case? I believe that the defendant has conclusively shown why this case is different to the usual Ryland v. Fletcher situation. First the defendant is carrying on a permissible activity to which its land has been zoned. The manufacture of concrete products as well as trade in ready mixed concrete, gravel and sand are what can generally be termed as the expected or common and ordinary use of the land. In my view, the defendant cannot be deprived of the full enjoyment of land according to the reasonable standard of behaviour that is expected of those businesses that operate from industrial zones. This situation is clearly and exception to the strict liability of under Ryland v. Fletcher. As the High Court of Australia observed in Hazelwood v. Webber {1934} [1934] HCA 62; 52 CLR 268 AT P. 277:

"The principle upon which a prima facie absolute liability appears to be imposed by law is that no man should at the expense of his neighbours introduce upon his own land a potential source of harm which is considered to require continual and effective control or restraint to prevent mischief. If through or relaxation of control damage to his neighbour occurs, although without negligence on his part, he should indemnify his neighbour. But when to obtain effectual use and enjoyment of land is a reasonable manner according to its character and the uses for which it is adapted, occupiers find that the introduction of such potential source of harm is generally necessary; to insist upon the prima facie rule would be to restrict the proper enjoyment of the land or to impose a special responsibility for loss arising from a danger to which by the recognised use of the land every occupier exposed himself and other occupiers. Accordingly, when use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way."

Surely in this case, any potential source of mischief which is likely to arise from the defendant’s operations on its Crown Lease No 5407, "is an accepted incident of some ordinary purpose to which the land is reasonably applied."

Secondly, there is the question of proof of the nuisance. While it would be premature at this stage for the Court to make any conclusion on any disputes at to facts before the parties, there exists clearly at this stage of a credibility gap in the connection between the evidence submitted by the plaintiffs, including the University of the South Pacific scientific report, and the defendant’s activities. The nuisance allegedly escaping from the defendant’s premises is cement dust while the USP report to which the plaintiffs’ based their case, only refers to "dust cloud" and "dust levels in the air." The fact that there exist additional causes close by to the compilation of the dust cloud, does little to support the plaintiffs’ arguments.

I have gone into some details on the substance of the action including evidence before the Court if only to show that there is no serious issue that arises. The law including the limitations of the application of Ryland v. Fletcher doctrine is clear. Interim reliefs such as interim injunction being sought by the plaintiffs here, are intended to avoid Courts determining disputes of facts or difficult question of law at the interlocutory stage of the action. However, where as I have found, in this case, there is no serious issue raised by the plaintiffs’ then it follows that their application for injunction is bound to fail on the ground that it has no merit.

There is also the issue of the transient nature of the nuisance alleged to have come from the defendant’s property. The plaintiffs have relied heavily on the USP report to show the amount of dust levels at their premises for the period of 7 weeks between 23 September and 11 November 2002. Given that on only one out of the seven occasions the dust levels had exceeded the WHO permissible level, and on only two out of the seven, it rose above the United States’ Environmental Protection Agency Level, then the question of whether it is appropriate for this Court to grant the injunction in the circumstances of the occasional and transient nature of nuisance, becomes relevant. In my view it would be inappropriate to grant the relief sought. At the end, the plaintiffs argued that it mattered not that the level of dusts were below the internationally accepted standard, so long as there was leakage or escape of a nuisance from the defendant’s premises, liability followed. In the Court’s view, in the light of the developments of the law since Ryland v. Fletcher, the international standard and permissible level set for dust pollution should reflect how far may an occupier pursue the enjoyment of the ordinary use of his land without being made liable for any alleged harmful consequences.

But even if this Court were to hold inspite all of the above, that there are serious issues that have been raised by the plaintiffs, the balance of convenience clearly favours the defendant. The Court is persuaded, after hearing the submissions of both Counsel, that the plaintiffs would be adequately compensated by damages.

The plaintiffs’ Summons is dismissed. Costs of $400.00 to the defendant.

F. Jitoko
JUDGE

At Suva
11 May 2005