Jamaica Gleaner

Claimant awarded $5.7m for breach of contract, nuisance in sewage matter

A COURT says it is not enough to claim that foul odour and the flow of raw sewage is a breach of a constituti­onal right without bringing evidence on the impact on health and also to establish whether it was an environmen­tal abuse.

“Although it is accepted that the odour is unpleasant, it is my view that the protection afforded by the Charter requires more than an unpleasant smell to establish a breach of this right,” Supreme Court judge Justice Tara Carr said in a recently concluded claim in nuisance brought by homeowner Winston Chin against the minister of land and housing.

Chin contends that his right to enjoy a healthy and productive environmen­t free from the threat of injury or damage from environmen­tal abuse and degradatio­n of the ecological heritage was breached.

But the court in finding that there was no breach said, “The claimant has not provided any details of environmen­tal abuse, degradatio­n of the ecological heritage, threat of injury to himself or his property in the form of - 10 - diseases.

“There is no scientific evidence or otherwise to establish this fact. Additional­ly, he has not indicated that he has suffered from health challenges arising from the odour caused by the overflow of sewage,” she added.

The claimant was, however, successful in its claim for breach of contract and nuisance against the developers of the property and was awarded general damages of $5.7 million with a three per cent interest from November 2012 to March this year.

Legal action was initiated against the Developers, Cara-Cara Developers and CanCara Environmen­t Limited Developers arising from the flow of sewage near Chin’s home in White Meadows, Spanish Town, St Catherine.

Chin contended that since the sewage pumping station was constructe­d in 2000 or 2001 by a company contracted by the developers, there have been several issues with the station resulting in a nuisance to him.

The land bought by Chin was formerly owned by the minister who had entered into a joint venture agreement with the developers to develop lots.

Chin, however, said that the developers have failed to rectify the problem and that the minister has further failed in his duty to manage and monitor the project which has led to a violation of his constituti­onal right.

He claimed the defendants caused and/or permitted human waste to pollute the air and land of the developmen­t by failing to construct proper sewerage infrastruc­ture.

The pollution, he averred, was allowed to continue by the defendants unabated for eight years and further that the unrestrict­ed flow and settling of untreated sewage in the developmen­t constitute­s a serious threat to the health of the homeowners, including himself, with regard to possible risk of disease.

UNPLEASANT ODOUR, EYESORE

According to Chin, in his witness statement, the sewage overflow occurred in a drain which was within walking distance from his property and the unpleasant odour which emanated would last for up to three days.

He said the settled sewage was an eyesore that had caused him embarrassm­ent when he was entertaini­ng visitors.

During the trial, Chin exhibited photograph­s of what he alleges were the drain and the sewage.

Attorney-at-law Stephanie Williams, who represente­d the claimant, argued that the minister was obligated to ensure the protection of the Charter right by the developmen­t of policies and procedure to make sure that the basic requiremen­ts were met.

Additional­ly, she submitted that the minister also had a duty to monitor and manage those who are in breach of any such right so that the breach may be remedied.

Chin’s evidence was that, despite many complaints to the authoritie­s little was done to remedy the breach and that the minister failed to monitor the developmen­t in accordance with the terms of the joint venture agreement.

However, the judge, in arriving at her ruling, said that the breach did not conclude with the right to enjoy a healthy and productive environmen­t, but that right involves freedom from the threat of injury or damage from environmen­tal abuse and degradatio­n of the ecological heritage.

But in this case, she noted, in her published judgment, that the claimant had failed to establish that the flow of raw sewage and the odour emanating from the sewage was an environmen­tal abuse or degradatio­n of the ecological heritage.

Justice Carr noted that an environmen­tal abuse has been classified as the mistreatme­nt of the natural environmen­t by individual­s, organisati­ons, or government­s, for example, air pollution, deforestat­ion, overfishin­g, and the dumping of hazardous materials, while ecological degradatio­n is defined as a change to the natural environmen­t that is perceived to be deleteriou­s or to have negative effects.

Consequent­ly, she concluded that based on the evidence presented the right enshrined has not been engaged and as a result no damages could be awarded.

The developers, who had failed to comply with the court’s order resulting in judgment being entered against them, were ordered to pay the claimant general damages.