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because the zinc sheets had developed rust holes, through which the rain descend- ed onto the plyboard ceiling and the latch- es to which the ceiling was attached. Mr. Broderick attributed this damage to emis- sions from the defendant's plant' smoke stacks and brought an action claiming dam- ages for nuisance and a mandatory injunc- tion. At first instance Theobalds J. over- came the defendant's arguments, which noted their efforts to reduce the pollution and their concern for the environment as manifested by the vast sums of money expended to improve it. The Judge award- ed Mr. Broderick J$938, 400 with costs and granted the mandatory injunction allowing the defendant six months in which to "com- plete the necessary structural adjustments in order to eliminate the nuisance." The defendants appealed on grounds that are probably the best Caribbean advertisement for the limitations of the common law to provide genuine and comprehensive recov- ery for environmental damage and for this reason the grounds are worth setting out in full. The defendants argued that:

  • they operated within worldwide accept- able limits for emission of air pollutants.

  • they used the most modern and efficient control equipment.

  • their powerhouse stacks of 250 feet high-emitted pollutants at a level higher than any existing plant in Jamaica.

  • the production of alumina was vital to the economic survival of Jamaica and had been encouraged by successive governments for over thirty years.

  • the matters complained of flowed natu- rally from activities authorized by special mining leases granted under the Mining Act.

  • there was no scientific proof that the sul- phuric acid emissions from their plant actually caused the corrosion of the plaintiff's roof.

  • there was no scientific evidence that the plaintiff's loss had not been caused by the sulphuric emissions from other plants and factories in the vicinity or vehicles passing regularly on nearby roads.

  • the estimate of damage should have been based had not taken account of (i) storm damage caused the year earlier by passage of hurricane Gilbert, (ii) the pre- cise number of zinc sheets that required repair rather than the floor area, and (iii) the prices prevailing at the time of loss rather than at trial.

The Court of Appeal of Jamaica adopted the view that the care taken by the defendant and the legislative and econom- ic arrangements under which the industry operated were not defenses to an action in nuisance. The Court was satisfied that respondent had adduced sufficient "tech- nological" evidence of a causal link between emissions of sulphates from the appellants' operations and the sulphates which were the corrosive agents in his roof. In any event, causation was to be deter- mined on a "commonsense" basis and there was no requirement to prove to sci- entific precision to what degree the emis- sion from the appellants' plant as distinct from other sources contributed to the dam- age. It was for the appellants to join other tortfeasors through third party proceedings if that was thought appropriate. Moreover, the method of assessment of the cost of repairs was not unknown in the construc- tion industry and as the environmental damage was of a continuing nature, the general rule of assessment of damage at the date of the breach was inapplicable. The Privy Council has refused to vary this judgment.

Although a victory for the plaintiff the relevance of the decision to wider recovery for environmental injury is rather doubtful. The mandatory injunction imposed by Theobalds J. was discharged on the grounds that the appellants had

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