Hinsey et Al v Bahamas Electricity Corporation
| Jurisdiction | Bahamas |
| Judge | Small, J. |
| Judgment Date | 26 November 2001 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 1146 of 1996 |
| Date | 26 November 2001 |
Supreme Court
Small, J.
1146 of 1996
Mr. Anthony McKinney and Mr. Edward Turner for the plaintiffs.
Mr. Oscar Johnson, Miss Tara Archer and Mr. Donald Saunders for the defendant.
Damages - Nuisance — Plaintiffs claimed against defendants for contamination of their soil and well water and personal injuries caused by the escape of diesel fuel from pipelines laid by the defendant — Claims framed in negligence, nuisance, breach of statutory duty and under Rylands v. Fletcher — Defendant claimed the Electricity Act authorized it to supply energy to its customers and the pipeline was reasonably and necessarily incidental to that authority — Whether defendant exempt from liability under sec. 48 of Electricity Act — Finding that sec. 48 had nothing to do with liability for leakage of oil into the earth from a pressurized pipe conveying it from one point to another — Defendant found liable in nuisance and under Rylands v. Fletcher — Judgment for plaintiffs for damages to be assessed plus costs.
In 1969, the defendant, a corporation created by the Electricity Act, constructed pipelines along Carmichael Road that transmitted diesel oil from Clifton Pier to its Blue Hill Road generating station. The plaintiffs, husband and wife, purchased a lot of land in 1986 on Carmichael Road in New Providence on which they built a residence that was completed in 1989. The pipeline runs underground along Carmichael Road in the vicinity of the plaintiffs' residence. In 1996 they discovered that diesel fuel escaped from the pipelines, contaminated the soil and well water of their land and caused personal injuries to the second plaintiff. Their claims were framed in negligence, nuisance, breach of statutory duty and under the Rylands v. Fletcher Rule. The defendant denies liability and claims that the Electricity Act authorised it to supply energy to its customers and that the pipeline was reasonably and necessarily incidental to that authority.
The first plaintiff gave evidence that a 15 feet deep well was established to the western side of the house. Water pumped from it to a tank, met the domestic requirements, except cooking, of the home. The plaintiffs were unaware of any problem with the well water till early 1995 when Mr. Hinsey noticed that there was an odour when the sprinkler system irrigated the garden and when water was in the sinks in the house. There was also a shiny film on water in the washtubs and sinks.
Mr. Hinsey conducted a rudimentary test and found there was water 4 feet below the top of the well. He attached a sponge at the end of a pipe and lowered it in the well. When the sponge was retrieved it had a stronger odour, and so, he attached a bottle to the pipe and lowered it in the well. It had dark substance on top of the water when it was raised. The water was pumped from the well on to the lawn. The grass died. Mr. Hinsey, whose work brings him into contact with diesel, concluded that the well water was polluted by diesel oil. Tests done by a chemist confirmed this.
Inquiries were made of the defendant. They suggested that Mr. Hinsey should direct his questions to a petrol station that was a quarter mile away. The matter was reported to the Ministry of Health and tests on a water sample verified that the dark substance in the well was diesel fuel. The defendant was contacted again.
When the Hinseys experienced difficulty getting a response from the defendant, they engaged Mr. Patrick Bain, an environmental consultant. He measured the thickness of the diesel in the well. It was between one and a half and two inches. Shortly after he contacted Mr. Everett Rolle, the defendant's safety manager, the defendant commenced action to clean the spill.
They excavated land on Carmichael Road, opposite to the Hinsey residence and unearthed a shut-off valve that was leaking diesel. The shut-off valve was a part of the defendant's system that pumped diesel oil at a pressure of one hundred pounds per square inch (100 psi) from Clifton Pier to the Blue Hill Road electricity generating plant. Mr. Everett Rolle told Mr. Hinsey that the oil on his property came from their pipeline.
The defendant started a salvage operation to recover the oil that was lost through the leak. Dames and Moore, environmental consultants from the United States of America, supervised the salvage.
They opened trenches in the ground at several spots in the vicinity of the plaintiffs' home. The trenches emitted strong unpleasant fumes and odours that permeated the Hinsey home. Members of the family experienced nausea, vomiting, burning eyes and headaches. Mrs. Hinsey suffered more than anyone else did. Mr. Rolle made suggestions, and, at the defendant's expense, special air-conditioning filters were fitted to the air condition units at the plaintiffs' house. The filters made no difference, nor did placing plastic covering or plywood over the open trenches.
Life in the home became unbearable and, in late September, Mr. Hinsey moved the family to live elsewhere while he remained there.
In December, a meeting took place between the general manager and Mr. Hinsey that Mr. Rolle also attended. Mr. Hinsey suggested, and the defendant agreed, that the family be relocated from Carmichael Road. On 9 December, the defendant called a community meeting at the Golden Gates Assembly Hall on Carmichael Road to advise the public of the steps that they were taking to address the problems created by the oil spill.
The defendant rented a furnished house on Trafalgar Street in Blair and the Hinseys moved there on Christmas Eve 1996. They still live there. The defendant continues to be responsible for the security of their Carmichael Road residence. Testing for oil in the soil is still taking place. As recently as the end of August 2001, an employee of the defendant, Mr. Brown discussed these tests with Mr. Hinsey.
Mrs. Debra Rose, an attorney-at-law retained by the Hinseys, also gave evidence. She testified about the community meeting in August 1996. She stated that Mr. Freeman Duncanson and Mr. Everett Rolle represented the defendant and other persons represented Dames and Moore, the Department of Health and Environmental Services and Esso. Mr. Duncanson told the meeting that the defendant discovered that the spill was caused by a leak in their pipeline and that between 95,000 and 100,000 gallons diesel oil was lost. He said that the spill was accidental and made an appeal for co-operation by those persons who suffered illness or other damage. He offered medical care for persons with health complaints associated with the spill and proposed that alternate water supplies would be provided for the affected properties.
In the course of the meeting references were made to the oil being trapped between the subterranean rocks and that it was estimated that it would take between two and three years to recover the oil although 100 % would be recovered.
The plaintiff's expert witness was Mr. Neil Eric Sealey. He holds a Masters degree in Geography from the University of Oxford and was at one time a senior lecturer in Geography at the College of The Bahamas. His publications include ‘Bahamian Landscapes’, a book published in 1986 that deals with the geology and physical geography of the Bahamas: ‘Caribbean World, a geography text published by Cambridge University Press in 1992 and an atlas on the Caribbean recently published this year by Macmillan Press. His expertise in the geology and geography of The Bahamas is beyond dispute. His evidence was, to all intents and purposes, unchallenged.
His inspection of the site of the oil spill took place two weeks before the trial and he submitted a report that became Exhibit 2. He explained that because of relatively flat land and a water table close to its surface when there is a spill of a non-aqueous base fluid like diesel, it remains in its original form and is washed through the soil to the top of the water table. It spreads in a radial pattern. Diesel contains soluble hydrocarbon ingredients that dissolve and this causes three contaminations, (a) the diesel itself, (b) the ground water that is contaminated by soluble components and (c) the rocks and soil above the water table that came in contact with the diesel. He also said that, because the limestone subsoil is porous and has an ability to transmit fluids, the oil residue is likely to remain there indefinitely. An additional factor is that, since the water table rises and falls by about two feet each day, there will be a two-foot layer of soil above water table that that will be saturated with diesel that will cause vegetation with roots that deep to die.
Shauvaughn Cambridge, an engineer employed to the defendant gave evidence about the pipeline. He has only recently been in charge of a project that has responsibility for all of the fuel and had no responsibility for the pipeline at the relevant time.
The pipe is 1/4 inch thick and No. 2 automotive diesel is pumped through it at 100 psi from Clifton Pier to the Blue Hill generating station. Some parts of the pipe are above ground and others are buried in a sand bed in the earth. The sand bed protects it from things that could cause a puncture.
The defendant kept records of the volume of diesel pumped at Clifton Pier and the volume received at Blue Hill. Evidence was given of the records for 1996 and the variances were within the industry standards of 3%. No records were produced for 1995, the year when the plaintiffs made their original complaint to the defendant.
Cambridge testified that documents he read, recommended that the pipes should be re certified at 30-year intervals. At the time of the trial, 32 years after the pipes were laid, they had not been...
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