Berenato v Attorney General iro Public Works & Utilities [2007] KIHC 142; Civil Case 103 of 2007 (31 October 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 103 of 2007

BETWEEN:

TEKAAI BERENATO
Plaintiff

AND:

ATTORNEY GENERAL
in respect of PUBLIC WORKS & UTILITIES
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 29 October 2007

JUDGMENT

The plaintiff owns land in Rawannawi village on Marakei: on the ocean side close to the channel and boat ramp. Since the ramp was constructed the land has eroded. Tekaai blames the building of the ramp and claims $16,150 damages, the estimated cost of building a seawall to protect his land plus $1,500 he has already paid out himself.

In making his case he has relied on a document (Exhibit P1). The front cover:-

"Report on Marakei Island Coastals Erosion Ministry of Public Works & Utilities
Prepared from: Civil Section	Prepared by: Engineer Trainee
Date: 14/03/2007"

The Introduction/Summary:-

This work was undertaken by the Public Works Department as part of the National Disaster reducing the vulnerability within the Kiribati Islands.

On the following page (referring to the plaintiff’s land):-

This is an area owned by one of the Islanders eroded like all other communities and villages within the Island. The coastal area of this land was seriously affected since the ramp constructed at the Cooperative coastal area by the Public Works Department. The purpose of the ramp is to accommodate all types of vehicles and plants when transferred to this island ..... he hired the KPC group which cost him $1,500.00 to help him building a temporary stone seawall to prevent his land from more erosion which was experienced since the ramp constructed ..... Looking at the status of the land coastal erosion which will be still ongoing experienced from the existing ramp. The coastal area should be protected with a permanent seawall ......

The Solicitor General would have none of my suggestion that the document has every appearance of being an official document of the Ministry so that anybody reading it should be entitled to conclude that the opinions are those of the Ministry and may be relied on. Mr Lambourne argued that one must always look to see who within the Ministry has actually written a document to come to a conclusion as to its authority. He pointed out that the writer, Taom Iabeta – his own first witness – has qualifications only in carpentry and building from the Tarawa Technical Institute and his opinions should not be relied upon. I reject the argument. As a general rule, in the absence of a disclaimer, one is entitled to assume the accuracy and authority of a document such as P1 and to act upon it.

It came out in Taom’s evidence and that of his superior officer in the Ministry, Mr Tion Kabaua, Civil Engineer, that Mr Kabaua knew nothing of the document. Taom acknowledged that "the boss should see anything before it is issued" but he had not shewn him this document. He had written and published it at the request of the plaintiff as the plaintiff’s land has not been mentioned in a more comprehensive report (Exhibit D1) which Taom had already written. Taom included the references to the ramp being the cause of the erosion even though the ramp had not been mentioned at all in the comprehensive report.

That report (D1) has identical wording on the front cover (although a different photograph) to the shorter report (P1). Inside the report the blame seems to be on "Wave Energy and the Tidal Impact" for causing the erosion:-

The Coastal area to this village should be all protected to avoid more erosion and that need a construction of a Seawall. For the stability of the Seawall from the Wave Energy and the Tidal Impact, it must be slope to an angle of 1:1.5 (45 degrees approx) towards land.

It came out that as with the report P1 Mr Kabaua had not seen the report D1 before publication.

Mr Kabaua who gained in 1981 a Diploma in Civil Engineering from the Fiji Institute of Technology said part of the ramp had been built earlier but extended in 1999. The ramp had originally been constructed when the channel was dug. He disagreed with Taom’s opinion in P1. Mr Kabaua’s opinion:-

.....cause of erosion – blasting of channel and by people digging.

Mr Kabaua said he thought he had been with the SOPAC team in 1993 when it made a report (Exhibit P2):-

According to local sources ---- there was some beach erosion before the channel was blasted, but there has been much more since then. The area of eroding beach concern extends about 400m both north and south of the channel.

Evidence of erosion is visible as a lowered beach level near the channel as compared to areas further away ..... We were also told that sand was removed from the beach on occasions and used for construction purposes. This appears to be a common practice and is not regulated.

There is no mention in P2 of the ramp being a cause of erosion.

Mr Kabaua agreed with Mr Berina in cross examination that there may have been a plan in 1999 to build a seawall 150m long on each side of the ramp. It has not been built although there are two shorter walls: on the side away from the plaintiff’s land 40m long and shorter on his side but not reaching as far as his land:-

There was a plan to build seawalls on each side of the extended boat ramp 150m long to protect against erosion as a result of the boat ramp being extended.

In re-examination Mr Lambourne persuaded me to allow him to reopen this topic. The witness went back to saying:-

Erosion is very severe in that place and erosion is common close by. Erosion is caused by drifting – with the current. Changes of current cause sand drift.

The onus is on the plaintiff to prove on the balance of probabilities that the ramp is the cause of the erosion on his land. Mr Lambourne pointed out that the plaintiff did not call independent expert evidence. Whether the plaintiff whom I assess to be a man of limited financial means could have found independent evidence in Kiribati is open to question but the fact is that he had none. He merely relied on Taom’s report (P1) but cannot be blamed for that.

Anyone who sees a report which purports to be published by a Ministry should be entitled to rely on it without further enquiry. As the plaintiff did. On the other hand, having heard all the evidence I doubt the accuracy of P1. The Solicitor General has pointed out that other causes of erosion in that area have been suggested. The erosion is along the shore, not by any means confined to the plaintiff’s land. Other causes may be the digging of the channel, the action of waves and tides. It may be due to the collapse of a groyne. I cannot come to a conclusion as to which one cause or combination of causes is or are responsible but the weight of the evidence is against the plaintiff.

I have come to the conclusion – reluctantly as I have a good deal of sympathy for the plaintiff in the light of the shorter report Taom wrote – that the Solicitor General’s argument succeeds. I cannot find even on the balance of probabilities that the ramp is the cause of the erosion of the plaintiff’s land.

There will be judgment for the defendant.

Dated the 31st day of October 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice