Prasad (trading as Farmers Freeway Service Station) v Total (Fiji) Ltd [2018] FJHC 782; HBC131.2011 (23 August 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 131 of 2011

BETWEEN

RAMENDRA PRASAD of Sawani, Nausori, trading as FARMERS

FREEWAY SERVICE STATION having its registered

place of Business in Sawani, Nausori.

PLAINTIFF

AND

TOTAL (FIJI) LIMITED a limited liability company having its

registered office at No. 10 Rona Street, Walu Bay, Suva.

DEFENDANT

Counsel : Mr. J. Sloan with Ms. M. Muir for the Plaintiff

Mr. H. Nagin for the Defendant

Dates of Hearing : 18^th to 22^nd June, 2018

Judgment on : 23^rd August, 2018

JUDGMENT

[1] The plaintiff’s case is that he and the defendant entered into a fuel supply agreement on 12^th November, 1997 and the defendant acted and the defendant’s negligence caused damages to him. The key terms of the agreement were:

The defendant would be the exclusive supplier of petroleum or fuel products to the plaintiff;

The defendant would provide to the plaintiff equipment for the storage and supply of fuel and petroleum products;

The equipment provided by the defendant and listed in the agreement would remain the property of the defendant at all times.

[2] In the amended statement of claim the plaintiff avers that the service station is situated on a freehold land owned by the plaintiff.

[3] In September 2007 the defendant installed a fuel tank with a capacity of 10,000 liters and on 18^th July, 2008 leaking of fuel was detected by the plaintiff and it is alleged by the plaintiff that the defendant failed to investigate adequately into the fuel leakage. The plaintiff had thereafter, obtained a report and found that the oil leak was from the underground tanks. The plaintiff also avers that after he terminated the contract with the defendant obtained the services of BP and operated the service station with products of BP.

[4] The plaintiff alleges that after the termination of the contract the defendant refused to remove its storage tanks from the land and the plaintiff had to install the new storage tanks in a less convenient location.

[5] On 14^th September, 2009 the defendant instituted proceedings before the Magistrate’s court seeking orders to remove the fuel tanks and the Magistrate’s Court made the following orders of consent of the parties and the plaintiff alleges that even after the orders the defendant did not remove the underground tanks and instead it lodged an appeal which is pending.

[6] The plaintiff also alleges that the defendant refused to remove the storage tanks and due to the defendant’s conduct the plaintiff had to install the underground tanks at a less convenient location and is unable to alter the location until such time the defendant removed its underground fuel storage tanks from the land.

[7] The plaintiff also avers that the leaking of fuel was due to the negligence of the defendant and/or its agents in installing the T10 tank.

[8] The plaintiff claims the following reliefs from the defendant:

1. Damages for contamination of land (July 2008 to January 2009) – FJD 468,675.00;
2. Damages for continued contamination of land February 2009 to date) – FJD 1,500,000.00;

100. Economic losses to the plaintiff resulting from the pollution incident including loss of business and reduction in trading capabilities – in accordance with section 50 of the Environment Management Act –(December 2008 to July 2009 – FJD 950,000.00;

4. Storage costs for the storage of the defendant’s equipment on the land from June 2009 to date – FJD 281,977.88 at the date of this action and continuing;
5. Damage for nuisance incurred due to the defendant’s refusal to remove its underground fuel tanks from the land – in accordance with section 50 of the Environment Management Act – FJD 250,000.00;
6. Costs of the plaintiff’s travel to and from Australia to deal with the contamination incident – FJD 10,000.00;
7. Exemplary and punitive damages for reckless conduct in addition to the damages set out above;
8. Costs of engaging experts and preparation of reports and associated expenses relating to the contamination – in accordance with the Environment Management Act – FJD 29,000.00;
9. $1000.00 costs ordered by the Magistrate’s Court following the consent of the defendant’s solicitor to the orders made by the Magistrate’s Court on 29^th September, 2009;
10. The continuing legal costs of the plaintiff in respect of Suva Magistrate’s Court Civil Action No. 342 of 2009 and its appeal on an indemnity basis;
11. Special damages;

50. General damages;

13. Interests on the above claims; and
14. Costs of this action on indemnity basis.

[9] The defendant denied the allegations in the amended statement claim and averred in the statement of defence that the fuel supply agreement was terminated due to the following reasons:

1. False claim of leakage by the plaintiff;
2. Breach of fuel supply agreement by the plaintiff and not properly following the storage of fuel requirement; and
3. In breach of the fuel supply agreement the plaintiff purchased fuel from alternative suppliers.

[10] The defendant alleges that on plaintiff’s advice the defendant made arrangements to remove the underground tanks on 13^th September, 2018. However, when the defendant’s team went to the plaintiff’s premises his servants and/or agents refused them to remove the tanks. The defendant claimed damages from the plaintiff on the basis that it had to incur expenses due to the false allegation of fuel leak.

[11] At the pre-trial conference the parties admitted the following facts:

1. The plaintiff is the registered proprietor of the property (land and building) comprised in CT 29781 (the land) and of the business known as “Farmers Freeway Service Station” (the service station). The service station was registered in April 1998 and commenced business operations in or around June 1998.
2. The land on which the service station is situated, is on Princess Road in Sawani at the base of Colo-i-Suva mountain rangers along the Sawani river basin, close to Nausori town in the South East of the Island of Viti Levu.
3. The defendant is a limited liablity company having its registered office at 10 Rona Street, Walu Bay, Suva and is engaged in the importation, supply and retail of petroleum products including fuels, oils and lubricants.
4. The defendant was incorporated in Fiji on 23 November 1979 as Shell Fiji Limited and had his name changed to Total (Fiji) Limited on 3 November 2006.
5. At all material times the defendant supplied the plaintiff with its fuel products for sale to the plaintiff’s customers in the Service Station business pursuant to fuel supply contract dated 12 November 1997 (“the Agreement”), the key of which were:
   1. The defendant would be the exclusive supplier of petroleum or fuel products to the plaintiff;
   2. The defendant would provide to the plaintiff equipment for the storage and supply of fuel and petroleum products on the land;
   100. The equipment provided by the defendant and listed in the fuel supply agreement would remain the property of the defendant at all times.
6. Around the end of 1997 and beginning of 1998 and pursuant to the agreement the defendant installed the following equipment on the land:
   1. 4 underground fuel tanks
   2. 5 fuel dispenser units
   100. Shell light
   4. All the support equipment needed for the operation of the Service Station including the pipes to transfer fuel from the tanks to the fuel pumps (“the defendant’s equipment”).
7. Pursuant to the agreement each time the plaintiff purchased fuel from the defendant, the defendant would deliver fuel to the plaintiff via the defendant’s fuel tankers and the defendant would then fill the four underground fuel tanks with the volume of the fuel ordered by the plaintiff. The volume of the four underground fuel tanks was distributed to the fuel pumps connected to the fuel tanks through pipes installed by the defendant.
8. The obligation for servicing and maintaining the fuel tanks, the pipes and the fuel dispensers rested with the defendant and at all material times the defendant undertook these servicing and maintenance tasks.
9. In or around September 2007 the defendant agreed to locate and install a new fuel storage tank on the land and in or about September 2007, the defendant and/or its agents installed on the land at the Service Station an additional underground fuel tank with the capacity of 10,000 liters (“T10 Tank”) for the purpose of storing diesel fuel.
10. After the installation of the T10 Tank by the defendant the Service Station had a total of 5 underground fuel tanks installed on the land by the defendant.
11. The plaintiff terminated its business dealings with the defendant on or around 10 June 2009.
12. The defendant’s equipment remained on the land after the termination of the fuel supply agreement by the plaintiff as the plaintiff did not allow the defendant to remove the same and claimed storage charges from the defendant before the equipment could be removed.
13. On 14 November 2009 the defendant instituted proceedings in the Suva Magistrate’s Court against the plaintiff for removal of the defendant’s equipment without payment of storage costs claimed by the plaintiff.
14. On 31 January 2010, by consent of the plaintiff and the defendant, all of the defendant’s equipment except the underground fuel tanks were removed by the defendant.
15. On 29 September 2010, the following orders were made by the Suva Magistrate’s Court:
    1. That Defendant was to remove its fuel tanks from the Service Station within one month of the order being made;
    2. The plaintiff’s experts were at liberty to conduct necessary tests on the fuel leakage during the removal of the fuel tanks by the defendant; and
    100. The defendant was to pay the plaintiff legal costs in the sum of FJD1000.00.
16. The defendant has appealed the orders of the Suva Magistrate’s Court made on 29 September and the appeal has remained unheard to date.
17. The plaintiff commenced the within proceedings in the Suva High Court on 6 May 2011 by way of a writ of summons.

[12] The main issue for determination in this action is whether there was an oil leakage as claimed by the plaintiff. All the other issues are arising out of this issue.

[13] Witness Rajesh Prasad testified that he worked at the Service Station from 2003 to 2008 and one day while cutting grass he felt benzene smell. While trying to locate the leak he has slipped. Thereafter, he had taken some soil and shown it to the manager. He said that the smell was there for 3 to 4 months.

[14] The plaintiff explained how he started the business and said that he initially entered into a fuel supply agreement with “Shell Fiji Limited” and subsequently the named was changed to “Total Fiji Limited”. This agreement is found in Tab 5 of the plaintiff’s bundle of documents which was tendered in evidence by the defendant marked as “D27”. The learned counsel for the referred to many documents in the course of the trial but did not formally tender a single document in evidence. In this judgment I will refer to the documents referred to by the witnesses which are relevant to the issues between the parties.

[15] This agreement was entered into between the plaintiff and the defendant for 10 years on 12^th November, 1997 which came to effect on 31^st December, 1997. The evidence of the plaintiff is that the contract expired towards the end of 2007 and he did not extend it because of the fuel leak. Referring to documents 15 and 17 of the plaintiff’s bundle of documents the plaintiff said although the defendant agreed to take action to stop the fuel leakage they did not conduct a detailed investigation. Document 18 of the plaintiff’s bundle of documents is a letter sent by the plaintiff to the defendant informing them that the fuel was still leaking and after fixing a 10,000 liter diesel tank beside the existing tanks the fuel leakage started. It is the evidence of the plaintiff they collected fifty 200 liter barrels of fuel and waste fuel was sold to a company. The documents 15 and 17 of the plaintiff’s bundle were tendered in evidence by the defendant marked as “D28” and “D29”.

[16] The plaintiff was shown Tab 107 of the plaintiff’s bundle of documents containing some photographs which show that there was a fuel leak. It is also his evidence that the leakage of fuel was from unleaded and pre-mix fuel tanks.

[17] The plaintiff in his evidence referred to the report dated 25^th September, 2008 of the University of South Pacific (Tab 101 of the Plaintiff’s Bundle of Documents) where it is stated:

The unknown liquid sample submitted was blackish in colour and smelt like gasoline/pre-mix gasoline. A layer of water sits at the bottom. The sample was analysed using High Resolution Gas Chromatograms with flame Ionisation Detector (HRGC/FID) and the chromatogram compared to standard gasoline chromatograms. Results showed that peaks obtained from sample was quite standard gasoline chromatograms. It can be concluded that the sample was gasoline. The chromatogram pattern cannot identify whether the sample was that of premix.

[18] The witness also referred to the laboratory report dated 06^th November, 2008 (Tab 102 of the plaintiff’s bundle of documents). In the said report it is stated:

Through comparison of unleaded petrol and 2-stroke standards, it appears that the samples contain unleaded petrol with small amount of 2-stroke oil.

[19] According to the plaintiff the fuel leak was detected in July 2008. There is no clear evidence as to when the leaking of fuel started. The plaintiff referring to Tab 99 of his bundle of documents said that he got the tanks tested and the report said that the tanks were leaking.

[20] It is the position of the plaintiff that the cause for the fuel leakage is the installation of T10 (10,000 liter) tank. Witness Ashok Narayan was a bowser attendant. He said he remembers the defendant installing extra underground tanks in September 2007. He said the place was dug with a digger and the soil was lose and some soil fell on the person who was working inside the pit.

[21] In this regard the defendant relied on the “Coffey report” (Tab 1 of the defendant’s bundle of documents – D24) where it is stated:

Coffey accepts that petroleum product has been released into the subsurface at the site and seeped into the open storm drain on the edge of the Princes Road....

The statement that “the oil spill commended after the construction of the new tank” is potentially misleading. The new UST was installed in 2007. The BP (2009) ESA reported that in June 2008, petroleum hydrocarbons were identified leaking into the open drain along the north western boundary of the site....... The oil spill was first identified sometime after the construction of the new UST, however it is not known when the oil spill commenced.

The EIA report draws conclusions that appear relevant to a substantial release of product from the site, however, no evidence of such release is found. Similarly the, the report describes potentially large economic losses which are based on fanciful assumptions and which are not supported by actual environmental impact even at a local scale.

Coffey concludes that the EIA report is speculative and is not reliable for its intended purpose, being to provide an environmental impact assessment arising from “oil spills” at the site.

[22] The report prepared by Entec Limited (Tab 100 of the plaintiff’s bundle of documents) was referred to by the witness in his evidence. The conclusions of the investigations conducted by Entec Limited are summarised as below:

• Entec Ltd undertook limited geotechnical engineering investigation to determine the sub-surface conditions of the existing Total Service Station site.
• The investigation comprised thirteen (13 No.) hand auger boreholes.
• Subsurface conditions are thought to comprise bedrock Suva Mari overlain by silty clay fill and a natural layer of peaty topsoil and clay.
• Factors influencing the pre-mix fuel leak may include differential settlement due to the original uncontrolled earthworks, topography of the bedrock and the disturbance due to the construction of a new diesel tank.
• The source of the fuel leak was not discovered and further investigation is required.
• Differential settlements are estimated to be apparent at this site.
• The angle of bedding in the area shall be taken into account in future foundation design.
• Issues of slope stability and angle of repose will be taken into account in future foundation design.
• The inferred faults occurring in the area shall be taken into account in the structure design.

[23] The learned counsel in examining the witness drew attention of the court to the following paragraphs of the report:

• Disturbance and poor remediation of the ground from construction of the new tank is likely to have caused enough ground movement to induce greater than ultimate stress on the ground components causing them to feel the leak.
• Tree roots can cause soil heaving and sagging depending on the moisture in the ground and the continuous wetting and drying of the soil, thus causing ground movement.
• Fuel lines, connections, tanks including the bowzers should be verified for any leaks. Equally important is to investigate the handling of spillage.

[24] On a careful reading of this report it appears the findings are not conclusive. It only gives certain possibilities that could have caused the fuel leak.

[25] The witness said that he could not get any approved plan for the site and the plan given to him was without any specifications. The witness also said that the tanks were very closely installed. In cross-examination the witness said that there was not enough compaction of soil and the compaction of the soil is the duty of the owner. He stated further that if the anchors are installed properly and if the ground is not vulnerable the tanks must remain static. The witness said that he did not do any investigations but only commented on the reports given to him.

[26] The Vice President (Sales and Marketing) of the defendant company testified that after receiving the complaint they took steps to fix the leakage and there was a slight seepage of fuel from pipelines. He denied that the leakage was from the tanks.

[27] In the cross-examination of this witness the learned counsel for the plaintiff referred to the report of ENTEC LIMITED (Tab 106 of the plaintiff’s bundle of documents). At page 10 of the report the cause for the leakage of fuel is explained as follows:

From the investigation, findings and above discussions it is very apparent that poor and unapproved drawings, improper construction methods and lack of supervision from competing professionals cause the underline ground to fail and undergone settlement. The back fill was not engineered, therefore it is settled on its own weight and the traffic. The settlement of underline ground caused the pipelines to go in tensile stress. The collapse of the northwest corner of the pit suggests the Premix and ULP tank foundations got disturbed. The two caused tensile stressed in Premix and ULP lines exceed the allowable, hence the lines failed. Failure would have most likely been joints. Leak then occurred in the ground slowly seeping towards the “V” drain.

[28] The Department of environment has also conducted an investigation into the fuel leak at the Service station. In the letter written by the Department of Environment on 17^th November, 2008 to the plaintiff (Tab 25 of the Plaintiff’s Bundle of Documents) it is stated as follows:

A dip test was carried out at 8 pm on 13^th November, 2008. The dip test results were cross checked on 14^th November, 2008 at 5.30am. It was revealed, after cross checking that on 14^th November that there was no decrease in volume of fuel in all the five tanks overnight which indicated that there is no leakage of fuel. However, after further investigation and consultation, it was revealed that leakage takes place when the fuel tanks are full.

The above findings were discussed with Mr. Roland Leong the Retail Area Manager for Total (Fiji) Ltd and a nitrogen test was also proposed as another option to ascertain underground leakage of fuel. This is more accurate test compared to the dip test.

[29] From the above it appears that the plaintiff has tendered extensive evidence in his attempt to establish that there was a fuel leakage as alleged by him. It is not disputed that that there was a fuel leakage. As I have stated earlier the position of the defendant is that the fuel leakage was in the pipes which was later fixed. As per the investigations of the Department of environment fuel leak occurred when the tank was full. When there was lot of sales as claimed by the plaintiff the fuel tanks could not have been full all the time. Therefore, the leakage could not have been extensive.

[30] For the plaintiff to collect 60 to 80 liters of fuel the leakage must be extensive. There is no evidence that the fuel storage tanks were re-filled every day. The plaintiff does not have any evidence to show that the leakage was not from the pipes or not only when the tanks are full. The burden is on the plaintiff to establish that the leakage was not from the pipes but from the tanks.

[31] Plaintiff also relied on the Hydrostatic report (Tab 99 of the plaintiff’s bundle of documents) of which the conclusions are as follows:

The T5 tank may either have holes obtained from rust or from movement of this tank due to a new tank being installed beside it. The pipeline leaving the tank to the bowser of offset and when it has been reinstalled it appears that the correct alignment was not achieved. This appears to be resulting in a very minor leak or weeping from this area as the sand was moist with hydrocarbons.

[32] Mr. Wijnand Aaldrik Sebastian Udema is a Contaminated Land scientist. He has prepared a report (tab 114 of the plaintiff’s further supplementary bundle of documents) after reviewing the other reports. It must be noted that this report has been prepared long after this action was instituted and even after the matter was first fixed for trial. It is also important to note that no investigations have been conducted by Mr. Udema before the preparation of the report.

[33] According to the findings of the various reports which I have referred to above the installation of the T10 tank has not been done properly. As a result the position of the tanks could have shifted slightly. However, there is no evidence that the installation of the T10 Tank caused damage to the other tanks which resulted in extensive leakage of unleaded and premix fuel. Without having an idea exactly where the leakage was the court is not in a position ascertain as the quantum of fuel leaked from the tanks. If the court accepts the plaintiff’s own document (Tab 25 of the plaintiff’s bundle of documents) it was not possible for the plaintiff to collect as much as 10,000 liters within a period of few months considering the fact that part of the fuel leaked would certainly have absorbed to the soil and another portion of it would have evaporated.

[34] From the evidence of the defendant’s witnesses it appears that the defendant does not totally deny that there was a fuel leak what they say is there was a leak from the pipe and it was corrected.

[35] The allegation of the plaintiff is that the cause for the damage is the negligence of the defendant. In the case of Lochgelly Iron and Coal Co. v. McMillan [1933] UKHL 4; [1934] AC 1 the tort of negligence was explained in the following words by Lord Wright:

the tort of negligence ‘properly connotes the complex of duty, breach and damage thereby suffered by the person to whom the duty was owing’

[36] The question here is whether the defendant owed a duty of care to the plaintiff. Under clause 5 of the fuel supply agreement which I will discuss in detail below responsibility of storing of fuel in compliance with the law is on the plaintiff. The plaintiff does not deny that the defendant’s employees attended to the fuel leakage detected by them. Furthermore, the plaintiff should not have purchased fuel and stored in the same tanks when he knew or at least suspected that the unleaded and premix fuel tanks were leaking. Therefore, the plaintiff cannot make any claim against the defendant based on negligence.

[37] Therefore, the finding of the court is that there was a fuel leakage but not to the extent as alleged by the plaintiff.

[38] The next issue for determination is as to who was responsible for the fuel leak and whose duty it was to repair the leak.

[39] At the time the fuel leakage was detected by the plaintiff the contract has expired. The plaintiff says that because of the fuel leak he subsequently terminated the agreement, at the time he said he terminated the fuel supply agreement, there was no valid agreement between the parties because it had already expired.

[40] As I have stated earlier in this judgment, if the plaintiff wanted to minimize the damage and to prevent any further leakage he should have closed down the two tanks in which the fuel was leaking immediately and informed the defendant about the leakage and claim damages for loss of sales in the event the defendant failed to repair the leak if it was the duty of the defendant to repair the leak. The plaintiff instead continued to buy fuel from the defendant and stored

it in the same underground tanks even after the expiration of the fuel supply agreement.

[41] The Vice president – Sales and Marketing of the defendant company said in his evidence that the Fuel Supply Agreement was one “Dealer Owned and Dealer Operated” agreement and read in evidence clauses 5 and 7 of the agreement. The agreement was tendered in evidence by the defendant marked as “D27” (Tab 5 of the plaintiff’s bundle of documents).

[42] Clauses 5 of the agreement reads as follows:

The agent shall be responsible for storing all products sold to him by shell in accordance with all laws and regulations for the time being in force applicable to such products and will at his own expense obtain and maintain in force any permit or licence required in connection with the storage and sale of petroleum products.

[43] It is common ground that “shell” changed its name subsequently to “Total”. When the fuel leakage was detected the contract was not in force. According to the plaintiff the T10 tank was installed in September, 2007 and the fuel leak was detected in July, 2008 after the expiration of the fuel supply agreement. There is no evidence on exactly what date the fuel leak started. It can be any date between September 2007 and July 2008 if the cause for the fuel leak was the installation of the T10 tank as alleged by the plaintiff.

[44] The witness testy further that another test was suggested but it was no carried out because the plaintiff imposed lot of conditions. The witness was referred to Tab 20 of the plaintiff’s bundle of documents which is a letter written by the plaintiff on 02^nd October, 2008 seeking clarifications on certain matters prior to the test was done.

[45] Under clause 5 of the agreement it is the plaintiff who is responsible for storing the products sold to the plaintiff by the defendant. However, as I have discussed above the leakage was detected after the expiration of the agreement and there is no evidence as to when the leakage commenced. All the evidence adduced in that regard leads to the suspicion that it could have commenced after the installation of the T10 tank which is not sufficient for the court to arrive at the conclusion that the installation of the T10 tank was the cause for the leak. Dr Dunbavan in his evidence said he cannot exactly say what contribute to the leakage and the installation of 5^th underground tank could not have entirely contributed to the leak. I am therefore of the view that the defendant cannot be held responsible for the fuel leakage.

[46] The next issue is the damage cause to the plaintiff’s due to the alleged refusal of the defendant to remove the underground tanks for the plaintiff’s premises.

[47] I will first discuss the issue of alleged failure of the defendant to remove the underground tanks. It is a fact admitted by the plaintiff and also established by documents that it was the defendant who went to court seeking an order to remove the underground tanks. It is common ground that the underground tanks remains in the plaintiff’s property. When the defendant sought permission to enter the property to remove the tanks the plaintiff claimed $10,000.00 per month as storage charges before removing the underground tanks. The defendant then filed an action in the Magistrate’s Court of Suva seeking an order that the plaintiff in this matter to handover the defendant’s assets which were in the control of the plaintiff to the defendant forthwith and the court ordered the defendant to remove fuel tanks from the plaintiff’s premises within a month and ordered to pay the plaintiff $1000.00 as costs. The matter is now in appeal.

[48] The plaintiff claims $281,977.88 as storage costs for the storage of the defendant’s equipment on the land from June 2009 to date and $250,000.00 as damages for nuisance incurred due to the defendant’s refusal to remove its underground fuel tanks from the land in accordance with section 50 of the Environment Management Act.

[49] Section 50(1) of the Environment Management Act 2005 provides:

A person who has suffered loss which includes contracting health-related problems as a result of any pollution incident may institute a civil claim for damages in a court, which may include a claim for-

(a) economic loss resulting from the pollution incident or from activities undertaken to prevent, mitigate, manage, clean up or remedy any pollution incident;
(b) loss of earnings arising from damage to any natural resource;
(c) loss to or of any natural environment or resource;
(d) costs incurred in any inspection, audit or investigation undertaken to determine the nature of any pollution incident or to investigate remediation options.

[50] For the plaintiff to maintain this claim successfully he must establish by evidence that allowing the underground tanks to remain in his premises caused health related problems and if so the extent of the damage. There is no evidence that there were any health related problems caused due the underground tanks being there in the defendant’s premises.

[51] The plaintiff’s position is that he wanted to construct a supermarket on the land and he could not do it because of the underground tanks. There is no evidence that he had at least made prior preparation to construct a supermarket on this land except for his bear statement which is grossly insufficient for any court conclude that his project of establishing a supermarket on the land was prevented by the underground storage tanks.

[52] It is trite law that special damages must be pleaded and proved. The plaintiff has not adduced any evidence on the quantum of damages claimed. For the reasons set out above his claim based on storage charges must necessarily fail.

[53] The plaintiff also claimed $468,675.00 as damages for contamination of land from July 2008 to January 2009 and $1,500,000.00 as continued contamination of land.

[54] Mr. Udema in his evidence said to do a further investigation on the contamination of the land would cost $50,000.00 to $60,000.00 and re-installing of the underground tanks would take from two weeks to one month. In cross-examination e admitted that because of the degradation the contamination clears after a while. The witness agreed that if there is no further leakage the degradation of contamination will come down and down and he also said that he did not do a degradation assessment. Dr. Michael Dunbavan in his evidence said that in 2013 the removal of contaminated soil was not necessary.

[55] It appears that the plaintiff’s claim for $468,675.00 is based on the findings in Environmental Impact Assessment prepared by the University of South Pacific (tab 104 of the plaintiff’s bundle of documents). The relevant paragraph of the said report reds as follows:

As can be noted from the land use map of the site (see figure 4) the Farmers Freeway Service Station is located at small centre at Sawani; which provide the following services; service station (premix, kerosene, diesel, ULP), tyre repairs, super market, police post saw mill settlements and villages and schools. Surrounding the Sawani Centre is a host of agriculture holdings for dalo, cassava, vegetables, ginger, piggeries and chicken farming. There are altogether approximately over 3,000 people who live near and around the centre. This is equivalent 600 households. The impact of the leakage to the community could be devastating;

a) In terms of toxicity, fresh water mussels could be affected more than fish in the Waimanu River. This depends on the exposure and volume of oil spill.

b) Oil spill could also affect the productivity of agriculture land nearby due to contamination of soils near the Farmers Freeway Service Station

Surface area affected 3,124 M²

Cubic area affected X3

Total cubic area 9,373.5

Rate of contamination $50/cubic meter

Value of contamination $468,675

[56] The maker of the report Mr. Dakaica had passed away. Witness Sainusi referred to this report in his evidence. In his evidence he said that he could not make any comment on the amounts given on the loss of fuel. He did not make any comment on the estimate of the contamination. As I understand Mr. Dakaica in arriving at the above estimation has taken into consideration the effect of the contamination on the neighborhood and the cultivation around the Service Station. This is not a public interest litigation. The plaintiff does not have a right to claim damages caused to the villagers and to the environment. If any damage has caused to the people who live in the vicinity of the service station they themselves must initiate proceedings to recover damages and if there is any contamination caused to the environment there are other authorities who should take actions against the person who caused damage.

[57] The plaintiff also claims $1.5 million for the continued contamination of the land from January 2009. There is no evidence whatsoever as to how he arrived at this figure. The witness Sainusi in cross-examination said that he was not involved in the preparation of this report. This report cannot, therefore, be admitted in evidence a conclusive proof of the claim based on contamination of the land and environmental contamination.

[58] It is also important to consider the valuation report (tab 111 of the plaintiff’s supplementary bundle of documents) of the Northern Property valuation & Consultant Limited. In this report the property involved in this action has been valued. This is a document disclosed by the plaintiff. According to this report the property has been valued at $1,460,000.00 in 2013. In 2016 the value of the property was $1,460.000.00. Assuming that there was contamination in the land and the defendant is responsible for the contamination still there is no reduction in the value of the property. For reasons setout above I hold that the plaintiff is not entitled to any damages for the alleged contamination of the land.

[59] The plaintiff also claims $950,000.00 for economic losses resulting from pollution incident, loss of business and reduction in trading capabilities. According to the income tax return of the plaintiff for the year ending on 31^st December, 2009 there is a reduction of sale from the year ending in December 2008. In 2008 the total amount of sales was $4,052,189.00 and in 2009 it was $3,101,545.00. The income Tax Return was tendered in evidence by the defendant Marked as “D16” (Tab 7 of the Defendant’s bundle of documents). However, when one considers the profits from trading, in 2009 it has increased from $142,787.00 to $164,129.00. The amount claimed by the plaintiff as loss of business is the difference between the sales for the years 2008 and 2009 which comes to $950,644.00. The plaintiff cannot in any event claim that amount as loss of business. If at all he only can claim the loss of profit during that period which the plaintiff has failed to prove.

[60] The plaintiff also claimed $250,000.00 as damages for the nuisance incurred due to the refusal and continued refusal to remove its underground fuel tanks. As I have discussed earlier in this judgment the defendant once proposed to remove the underground tanks but it was the plaintiff who prevented them from removing the tanks by claiming what he called storage charges. It is the defendant who initiated proceedings in the Magistrate’s Court seeking and order to remove the tanks. Therefore, if any loss has been caused the plaintiff it is due to his fault and not of the defendant. Furthermore, there is no evidence on the damage caused to the plaintiff by the undergrounds tanks being there. The only evidence is that he proposed to construct a supermarket and he could not do it because of the underground fuel tanks. There is no evidence to show that he in fact made arrangement to initiate such a project.

[61] The plaintiff claims $10,000.00 for travel to and from Australia and $29,200.00 for preparation of reports and associated expenses relating to the contamination. None of these special damages have been proved the plaintiff. There is no evidence to show that the plaintiff in fact spent these amounts of money for the purposes stated above. The court has held above that the plaintiff has not been able to establish that the defendant was negligent and fuel leakage, if any, was not due to the negligence of the defendant. Therefore, the plaintiff is not entitled to these damages.

[62] The plaintiff sought to recover $1000.00 costs ordered by the Magistrate’s Court and prayed that the appeal from the decision of the magistrate’s Court be consolidated. The decision of the Magistrate’s Court is now in appeal and the court cannot exercises original and appellate jurisdiction together in one action. The plaintiff will have to make an application to the Magistrate’s Court to recover the costs awarded once the appeal is heard and concluded by the High Court. The plaintiff cannot come the High Court to execute the orders of the Magistrate’s Court.

[63] The defendant claimed damages for false claim of leakage of fuel and for imposing unreasonable terms and conditions on the removal of the underground tanks. The defendant has not been able to show that any damage was caused to it by leaving the underground tanks on the plaintiff’s land. No evidence has been adduced to prove such damages.

[64] For the reasons aforementioned the court makes the following orders.

ORDERS

1. The action of the plaintiff is dismissed.
2. The plaintiff is ordered to pay the defendant $15,000.00 as costs (summarily assessed) of this action.
3. The counter claim of the defendant is dismissed.
   

Lyone Seneviratne,

JUDGE.

23^rd August, 2018