Grayson v Quinn et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Wooding, C.J.,Hyatali J.
• Judgment Date: 19 April 1963
• Neutral Citation: TT 1963 CA 26
• Docket Number: No. 10 of 1962
• Date: 19 April 1963

Court of Appeal

Wooding C.J.; Hyatali, J.A.; Phillips J.A

No. 10 of 1962

Grayson

and

Quinn et al

No appearances:

Damages - Nuisance — Nominal damages awarded on ground that respondents acted on behalf and by the authority of the Crown — Whether appropriate.

Injunction - Servants of the Crown sued personally — Injunction to restrain nuisance refused on ground that they could not stop or continue operation of machine causing nuisance

Facts: Respondents were servants of the Crown in charge of operating a Barber Green Asphalting machine on Crown lands adjacent to the eastern boundary of the appellant's property. Machine emitted fumes etc. which were a nuisance to the appellant and his property. In action brought against the respondents in their personal capacities for damages for nuisance, trial judge entered judgment for nominal damages, but refused the injunction sought against them. Appellants appealed against the damages awarded and refused to grant the inunction

Facts: Respondents were servants of the Crown in charge of operating a Barber Green asphalting machine on Crown lands adjacent to the eastern boundary of the appellant's property — Machine emitted fumes etc. which were a nuisance to the appellant and his property. In action brought against the respondents in their personal capacity for damages for nuisance, trial judge entered judgment for nominal damages, but refused the injunction sought against them. Appellants appealed against the damages award and the refusal to grant the injunction.

Held: Though the judge rightly held the respondents liable in nuisance, he erred in the assessment of the damages since it was wholly immaterial for that purpose by whose authority or on whose behalf the respondents acted when they committed the nuisance. Damages should accordingly be increased to the agreed figure of $2,000. Appeal allowed. Respondent to pay costs.

Held: The judge erred in refusing to grant the injunction sought since the appellant was entitled to seek relief against the respondents as individuals not only in respect of the nuisance which they had actually committed but also from their threatened or intended continuance thereof. It was immaterial that they were acting on behalf and by the authority of the Crown.

Wooding, C.J.

1 The appellant is the owner of a coconut plantation known as the Blenheim Estate comprising one hundred acres more or less and situate in the parish of St. Andrew in the Island of Tobago. Standing thereon are two dwelling houses one of which is occupied by the appellant and his wife and the other by a tenant, Mrs. Rosita MacDonald. Abutting Blenheim Estate on the east is a parcel of Crown land on which has been erected a Barber Green plant for mixing hot asphalt with metal and other ingredients the operation of which, the appellant alleged, causes the emission therefrom of noxious and offensive fumes, vapours, smoke, dust and noise to such an extent and/or degree as to be a nuisance to him, his estate and the homes thereon. Alleging that Ambrose Quinn, Basil Pashley and Randolph Lovell were and are the persons, actually operating the plant and thereby causing and threatening or intending to continue the nuisance he claimed against each of them damages and injunction. The action was heard by Camacho J. who in a considered judgment delivered on 23rd July 1962 exonerated Pashley from any participation in the working of the plant and accordingly ordered that he be dismissed from the suit with costs. Against Quinn and Lovell, to whom I shall hereinafter refer as “the respondents”, he found that they had been and were respectively the engineer and foreman in charge of the work that by their operation of the plant they had been and were causing a nuisance to the appellant and his property by reason of the emission therefrom of noxious and offensive fumes, vapours, dust and noise, that there had been also a nuisance by smoke which had however been greatly abated; but that, although the respondents would be the persons continuing in charge of the working of the plant, because they are servants of the Government of Trinidad and Tobago under the general direction of the Permanent Secretaries to the Ministries of Works and of Tobago Affairs they have no power either to stop or to continue the nuisance for the reason that neither of them has any authority to say that the plant must close down or continue to run. On these findings he refused to make any order for an injunction and assessed damages no higher than $500.00, a sum which he declared to be “merely nominal and not the proper measure” that he should have awarded if the respondents had not been acting on behalf and by the authority of the Government. The appellant does not contest the judgment entered in favour of Pashley, but he has appealed against the refusal of an order for an injunction and the under-assessment of the damages. On the other hand, the respondents have cross-appealed and seek to have the findings against them reversed and accordingly to have judgment entered dismissing the action with costs.

2 Hyatali J. has been good enough to state the facts in sufficient detail for the purposes of this appeal so that it is unnecessary for me to repeat them. It was not disputed by the respondents before us — indeed, their counsel expressly admitted and said it had never been disputed, that all — that noxious fumes, vapours, dust and noise emanated from the working of the plant and emitted upon the appellant's estate, but the contention was that the emission thereof was insufficient to constitute a nuisance in law. Whether the effects of any operation of which complaint is made are such as to amount to a nuisance is essentially a question of fact, and the finding of the learned trial judge that they are in this case is, in my judgment, amply supported by the evidence. The finding has been criticised for various reasons but the criticisms have left me wholly unmoved. It is manifest from his judgment that the learned trial judge was particularly impressed with the veracity and reliability of the appellant's wife and the witness Daisy Byran, that he accepted their testimony as truthful and accurate, and that he preferred to be guided by the positive experiences of those who had had to suffer and endure rather than by the negative observations of experts and other visitors who had made a comparatively brief stay. It is the respondent Lovell was on the scene whenever the plant was working, but his evidence was quite unreliable. For instance, although his counsel very frankly conceded that some smoke, dust and smell were emitted upon the lower reaches of the appellant's estate, the boundary of which is about 250' from the plant, Lovell nevertheless had sworn:–

“I am at the plant every working day for the whole day. There is no smell whatsoever around the plant. My sense of smell is normal. The stack from the drier sends up a certain amount of dust and vapour of a witish brown colour. Sometimes it goes round. Some dust falls on the plant, the rest I don't know where. Only once I saw black smoke coming out of the stack. That was the first day when the Premier came to open the plant. The engine makes no smoke”.

3 The explanation is probably that Lovell was speaking in comparative terms. He has had working experience of other plants in other places and it is perhaps significant that he ended his examination-in-chief by saying:

“This plant creates less dust than other plants I have worked on. The plant at Corinth, South Trinidad, gives a more terrible noise than the plant in Tobago”.

4 However that may be, the learned trial judge having rightly posed to himself the question “Do the facts disclose a substantial nuisance?” answered it affirmatively and, as I have said, there was ample evidence port his finding. This...