IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 219 of 2010

BETWEEN 

1. FRANK SCHAPER
2. GABY SCHAPER
Plaintiffs

AND

1. LONI KAHO
2. SIOSIFA KAFALAVA
Defendants

L.M Niu SC for the Plaintiffs
First Defendant in person
No appearance by the Second Defendant

JUDGMENT

[1] The Plaintiffs, husband and wife, are German citizens. The First Plaintiff arrived in Tonga in 2003 and, since 2007 has been employed as the CEO of Homegas Ltd. The Second Plaintiff arrived in 2007.

[2] Since 1 April 2008 the Plaintiffs have been renting a place at Mata ki 'Eua, a small community of about 20 properties between Tofoa and Pea close to the Royal Villa. The First Defendant's town allotment adjoins the Plaintiffs.

[3] The writ was issued in November 2010. The Plaintiffs claimed that the Defendants had, since July 2009, persistently and deliberately caused or permitted the emission of unreasonable noise, smoke and other toxic fumes resulting in disturbance to the Plaintiffs quiet enjoyment of their home. The Plaintiffs also stated that their property had been damaged by the Defendants. The Plaintiffs sought general and exemplary damages and injunctive relief.

[4] The application for an injunction was filed on 24 November 2010. The Plaintiffs sought orders, inter alia: -

i. to close or remove the Defendants workshop from their premises;

ii. to refrain from emitting noise and or pollution at levels injurious to the Plaintiff's health;

iii. to restrict business activities to stated hours;

iv. to restrict performance of work to the inside of the Defendants' structure; and

v. not to work closer than 20 meters from the Plaintiffs' property.

[5] In his supporting affidavit sworn on 4 November 2010 the First Plaintiff explained that during the first year that he and his wife were the First Defendant's neighbors, they lived there peacefully without disturbance or noise. He explained that there is a fence between the two properties and the houses are about 10 meters apart.

[6] In April 2009 there were a number of very unfortunate developments. The First Defendant's wife was arrested, charged and convicted for killing her sister in law. The First Defendant was left with the task of looking after their young children. The Second Defendant came to stay with his brother in law, the First Defendant. It appears that for some time the First Defendant had used his allotment as a place to repair motor vehicles. This operation was now considerably expanded. He and his brother in law began operating a motor vehicle repair workshop just a few meters from the Plaintiffs house and garden. The First Plaintiff averred that he and his wife began to be subjected to "emissions from car fumes, solvents from spray painting, smoke and stench from burning of inorganic waste" which began to waft heavily into their compound.

[7] The First Plaintiff averred that the noise and work carried on by the Defendants was not restricted to the workshop, a partly open shed, but "all kinds of noisy and polluting work were also performed outside on the property and in direct proximity to our fence, about 5 meters from our living room window. Customers of the Defendants began to arrive at all hours. Music playing and general loud raucous meetings began to be the norm, often until late at night" on weekdays as well on Sundays and public holidays.

[8] The First Plaintiff deposed that from July to December 2009 numerous and repeated complaints were made to the police about the Defendants' behaviour. In November, the Second Defendant was convicted, fined and reprimanded for his behavior. In January 2010 the two Defendants were again convicted in the Magistrates Court of offences under the Order in Public Places Act. Despite these convictions, the First Plaintiff averred that the situation did not improve.

[9] The First Plaintiff deposed that as a result of the Defendant's behavior, both he and his wife had suffered physical and mental distress. Both had suffered headaches, skin allergies and abscesses. The Plaintiffs said that they had been unable to sleep properly and suffered from nausea and constant nervousness.

[10] The First Plaintiff deposed that, as a result of the Defendants' actions, the Plaintiffs had been forced to incur additional and substantial medical expenses, including the cost of importing specialist medicaments from overseas "we feel the pressure and stress is beginning to take its toll on our personal relationship and marriage when ventilating our daily stress, pain, anger, frustration, lack of sleep, fear and resignation".

[11] On 11 February 2011 the Defendants filed a statement of defence. It was accepted that a "small mechanical workshop" was being operated on the First Defendant's town allotment and it was claimed that the workshop had been operating since 2001, well before the Plaintiffs moved into their compound. The Defendants denied being responsible for unreasonable emissions of noise or fumes. They accepted that some of their customers might have been noisy. They agreed that they had both been convicted in the Magistrates Court after customers caused altercations. They denied breaching any duty of care to the Plaintiffs and denied causing them any harm. The Defendants pleaded that the Plaintiffs, the Second Plaintiff in particular, had already been sickly when they moved into the neighborhood. The Defendants pointed out that Mata ki 'Eua is a mixed area with commercial farming involving the use of insecticides and is close to EM Jones Industries where brick works, welding and other similar activities are carried out.

[12] The First Defendant answered the Plaintiffs affidavit on 11 April 2011. He accepted that there had been excessive noise from his compound but substantially blamed his customers and his children. Since appearing in court, he had made every effort to reduce the noise. He stated that he was dependent on the income from the workshop and accepted that sometimes he had worked late at night. He referred to the chemicals used by the adjoining squash farms and suggested that it was these that had drifted into the Plaintiffs' property. He again suggested that the Second Plaintiff was already sickly when she and the First Plaintiff first moved into the area. He repeated the claim, included in his statement of defence, that the Plaintiffs were bent on forcing him into redundancy without compensation.

[13] On 14 April 2011, after hearing both counsel and considering the affidavit evidence before me I ordered:

(i) that the Defendants refrain from emitting noise and pollution at unreasonable levels so as to disturb the Plaintiff's quiet enjoyment of their property; and

(ii) that the Defendants restrict their business activity to the hours of 8:00am to 5:00pm from Monday to Friday and from 8:00am to 12:00pm to Saturdays.

[14] On 2 June 2011 the Plaintiff applied for leave to move for the committal of the Defendants for contempt by reason of their failure to comply with the order of 14 April. The Plaintiffs filed a substantial affidavit in support containing detailed descriptions of alleged breaches by the Defendants of the order during the period 15 April to 20 May, which included Easter weekend. In paragraph 21 the Plaintiffs deposed that:

"we have suffered violation of the quiet enjoyment of our home 18 days out of a total of 36 days. The incidents described in the affidavit describe a total time of disturbance of approximately 70 hours of noise, loud music, smoke and fumes".

The affidavit exhibited a usb stick said to contain sound recordings of noise emitted by the Defendants while a number of photographs taken by the First Plaintiff depicted vehicles under repair, rubbish scattered about in a yard and smoke apparently arising from the Defendants' premises. Also exhibited to the affidavit was a medical certificate issued by a family doctor who stated that Second Defendant's health "has been badly affected by the neighbors actions".

[15] On 27 July 2011 I heard the Plaintiffs' application. The First Defendant appeared and was represented but the Second Defendant had not been located. Counsel for the First Defendant told me that the breaches of the order of 14 April were admitted. An apology was offered. Counsel told me that the First Defendant's wife was in prison and that he was looking after their six children aged from 9 to 14 months. I ordered that a social enquiry report be prepared and adjourned the matter to 12 August for disposal.

[16] On 15 August, after the Second Defendant was served but failed to appear, after considering a report prepared by Crown Law Office and a social enquiry report filed on 10 August 2011 and after reading a third affidavit by the Plaintiffs containing yet more allegations of breaches of the order of 14 April, I found the First Defendant guilty of contempt of court and sentenced him to an immediate of term of 14 days imprisonment, which he served.

[17] On 18 November 2011 Mr. Niu indicated that the Plaintiffs wished to proceed with their action claiming damages and costs. On 12 April 2012 an affidavit was filed by the First Defendant. He suggested that having met the Plaintiffs' demands, having ceased to operate his business, and having served a term of imprisonment the matter should be treated as closed. The Plaintiffs did not agree.

[18] It is accepted by the Plaintiffs that since the First Defendant's release from prison, the nuisance complained of has ceased. The First Defendant told me that he has given up the car repair business and drives a taxi. It appears that after First Defendant's wife's conviction was reduced from murder to manslaughter, she served her sentence of imprisonment and was then released and has returned to the First Defendant and her children. I was told that the Second Defendant's location was not known.

[19] On 13 September 2012 counsel for the First Defendant withdrew. On 23 April 2013, the Plaintiff gave evidence after the action was set down for assessment of damages. Both Plaintiffs gave evidence. The First Plaintiff referred to a very substantial affidavit sworn by himself and his wife and filed on 17 February 2012. This 7 page affidavit has annexed to it 137 pages of exhibits consisting of medical certificates, receipts, emails to and from Tonga to Germany, about 92 photographs, a usb memory stick containing 177 videos, 16 pages of dates and times of payments to security guards, approximately 30 further photographs, 17 pages of spreadsheets, and other documents and concludes with claims for $23,352 general damages, $11,000 exemplary damages and $7285 for costs plus interest.

[20] The First Defendant who was now appearing in person questioned both Plaintiffs. He suggested that the smoke of which the Plaintiffs complained came from compounds other than his own and that the other fumes were the result of crop spraying by neighboring farmers. The First Defendant disagreed and illustrated his contentions by reference to the photographs. The First Plaintiff agreed that the First Defendant's workshop was already there when they moved into their property but insisted that it caused no nuisance at that time. The First Defendant denied being over sensitive or unreasonable. He accepted that Tonga does not have planning laws and also accepted that there is an EM Jones manufacturing plant half a mile away. In answer to questions from the Court, the First Plaintiff explained that the relationship with his neighbors deteriorated after the conviction of the First Defendants wife and the arrival of the Second Defendant. He suggested that the fence between the two properties was deliberately damaged. He accepted that he and his wife only had a tenancy of their house and this could have been terminated on two months notice. When asked why the Plaintiffs did not simply move out of the area after the trouble started, the First Plaintiff explained that he and his wife had become fond of the house to which they had made a number of improvements and they liked their garden. They did not see why they should be forced to move.

[21] The Second Plaintiff's evidence was quite brief. She verified the contents of the Plaintiffs' joint affidavit. In cross-examination she conceded that she was already suffering from a medical condition when she arrived in Tonga. It was only after the trouble started however that her health began to deteriorate. She told the court that the fence between the two compounds had been damaged and a window in the house had been smashed but accepted that she did not see who was responsible for this damage. She denied that her dogs barked at the First Defendant's children. She agreed that smoke might be emitted from an 'umu (earth oven) but explained that she had no problem with such emissions which were quite different from the emissions and constant noise of which she complained. In answer to further questioning, the Second Defendant admitted that she had been receiving a German disability pension since 2007 and that she was "not a well person" when the trouble started.

[22] The First Defendant elected not to give evidence but called one witness, Foni Sitani. The First Defendant explained to the court that his defence was that he was merely making normal use of his allotment and that any noise or smells emitted were quite usual in Tonga. He suggested that the Plaintiffs were guilty of exaggeration.

[23] Foni Sitani, who told the court that he lives in the same road as the parties, looked at a number of photographs and expressed the opinion that the smoke was not coming from the Defendant's compound. He agreed that Mata ki 'Eua is a mixed area with residences, fields of crops and mechanical workshops. He told the court that there were several such workshops in the area.

[24] At the conclusion of the evidence it was agreed that written submissions would be filed. Mr. Niu's helpful submissions were filed on 13 March 2013. The First Defendant filed his own submissions on 20 May.

[25] In his submissions Mr. Niu conceded that no claim for special damages had been pleaded but suggested that the Plaintiffs were still entitled to recover in respect of items covered in their evidence. Those included loss of wages caused by ill health, additional medical expenses, damage to the fence between the properties, damage to the window and the cost of obtaining security lighting and security guards. All these additional expenditures were, it was submitted, the natural consequences of the Defendants' misbehavior.

[26] Mr. Niu conceded that exemplary damages were not available but, after referring to an amount of $10,000 general damages awarded for noise nuisance by this court in 2012 (Latu & Anor v Palu & Anor  CV 64/2012) Mr. Niu suggested:

"the Plaintiffs have suffered for a period nearly five times longer in the present case".

These words suggest to me that an award of general damage in the region of $50,000 was sought plus special damages (items 1.1, 1.2, 1.4 of exhibit V to the affidavit of the Plaintiffs dated 17-2-2012) amounting to $13,192 plus costs. It will be noted that the total damages claimed by Mr. Niu substantially exceed the total sum claimed by the Plaintiffs in exhibit V, already referred to, while the general damages claim in the unamended statement of claim was only $20,000. It must be said that such variations to the amounts claimed do not assist the court to determine the correct figure. It should also again be repeated that general damages should not be quantified when claiming since these are at large, while special damages should always be claimed, if sought, and should also be particularized.

[27] In his own written submissions the First Defendant reminded the Court that he had expressed his regrets and apology for what had occurred. He pointed out that he served a fourteen day period of imprisonment. He suggested that it was principally the Second Defendant who had caused all the trouble after the conviction of the First Defendant's wife on the murder charge. He suggested that he had learned his lesson and that the situation had now returned to normal after his wife's release from prison. The First Defendant told the court that he had taken up taxi driving and had closed the workshop.

[28] While preparing my judgment I was concerned to note upon reading the First Defendant's submissions more carefully that he suggested that the "main action" was yet to be tried. The first Defendant stated that he would want to raise his defence "as zoning and so on" at the trial. He also suggested that clause 1 of the Constitution gave him the right to possess property and to dispose of his labor and the fruits of his hands and to use his property as he willed.

[29] On reading these submissions I reviewed the file and established that while the Second Defendant had never filed a defence, the First Defendant's statement of defence still awaited disposal. The First Defendant was correct, the impression held by the court that all that remained was for damages to be assessed, was incorrect. The action was commenced in November 2010 and since then there had been several changes of counsel and numerous applications, including the contempt proceedings. It was in these circumstances that this procedural error occurred, which is regretted.

[30] When this error came to my attention, the parties were called back for the position to be explained. The First Defendant then advised the court that he had nothing to add to his previous submissions "I just now want the matter concluded". He confirmed that his principal submissions were that he had a right to use his allotment as he wished, and in particular for repairing vehicles, that the Plaintiffs had exaggerated their claim, that he had already paid a penalty for what had occurred by serving a term of imprisonment and that the main responsibility for all that had occurred lay not with him, but with the Second Defendant. In the circumstances, the First Defendant agreed that the matter could proceed to judgment without any further evidence being heard.

[31] Taking into account the mass of evidence before me (not including the memory stick which Mr. Niu did not invite me to listen to) I am in no doubt at all that the Plaintiffs suffered noise and smoke persistently, if not continuously, emitted from the Defendants' compound over a lengthy period of time from about August 2009 to about November 2011. I find that the Plaintiffs have proved that the noise and smoke exceeded reasonably acceptable levels and amounted to a serious nuisance to them. I find that this nuisance substantially interfered with the enjoyment of the Plaintiffs property and with their health. I reject the suggestion that clause 1 of the Constitution grants one an unfettered right to enjoy ones property at the expense of others. It is at this point, however, that evaluation of the Plaintiffs' claim presents considerable difficulties and a number of questions are raised which I have not found it at all easy to answer.

[32] I was at first attracted to the view that the Plaintiffs, who could have left the area with no greater liability then to pay two month's rent had somehow failed to mitigate their situation. After considering Elliot Steam Tug Co v Shipping Controller [1922] 1 KB 127, however, I took the view that the Plaintiffs were in fact under no obligation to sacrifice their right to continue to occupy the property adjacent to that of the First Defendant.

[33] The fact that the Plaintiffs had moved into the area and next to the First Defendant's allotment on which he was already running a small repair workshop and that the area of Mata ki 'Eua is not exclusively residential must, in my view, be taken into account. As acknowledged by Mr. Niu, it was open to the court to allocate responsibility for the nuisance as between the two Defendants. The pre-existing medical condition of the Second Plaintiff and the consequences of that condition for the Defendants as well as the effect of that conduct on the First Plaintiff cannot be overlooked. The fact that the Plaintiffs are Europeans, used to living in a more developed and regulated society, and have not long lived in Tonga, a society very different from that to which they are used, has, in my opinion also to be borne in mind. As has been noted, the First Defendant takes the view that he has already paid the penalty for the nuisance caused and apologized. It is accepted by both sides that the nuisance has now stopped. The First Defendant has a wife and six children to support and would be unable to satisfy any substantial award of damages.

[34] While it is very difficult objectively to assess the quality and effect of nuisance such as noise and fumes, I am of the opinion that the nuisance endured by the Plaintiffs in this case was somewhat less intense than the late night amplified music, clapping and screaming which so oppressed the Plaintiffs in Latu's case (above). I accept the First Defendant's argument that he was entitled to use his land to house a repair workshop and I also accept that in Tonga's circumstances it is necessary to be able to tolerate emissions of noise and smoke to a degree that would not be expected in a more developed country. I formed the impression that the Plaintiffs reaction to the disturbances was more confrontational than is desirable and that their discomfort became something of an obsession to them. I also accept that the Second Plaintiffs medical condition aggravated the effect of the nuisance caused by her neighbors. Although they had no legal duty to do so, a move might have been a sensible step for the Plaintiffs to take.

[35] Doing the best I can, I assess the damages suffered by the Plaintiffs at TOP $30,000. There is nothing to contradict the First Defendant's claim that the Second Defendant was the principal cause of matters complained of and the fact that the trouble began after he came onto the First Defendant’s allotment and that it came to an end after he left, supports the First Defendant’s assertion. Mr Niu accepted that it would be proper to apportion damages as between the two Defendants and I do so on the basis of one fifth to the First Defendant and four fifths to the Second. I therefore award the Plaintiffs together the sum of $6000 general damages against the First Defendant and $24,000 general damages against the Second Defendant.

[36] So far as special damages are concerned, I am able to accept the unchallenged evidence that the First Plaintiff lost income of TOP$1620 and that both Plaintiffs incurred medical consultant expenses of TOP$1296. I am not, however, persuaded that it was medically necessary (as opposed to comforting) that recourse be had to German medicines to treat the Second Defendant's symptoms. Although a window was broken and the boundary fence was damaged, there is nothing to show that this was the fault of either Defendant. While the Plaintiffs' may have felt mere secure with security services and outdoor lighting, I am not satisfied that the noise and smells and general disturbance coming from the Defendant's compound justified expenditure on these items. The claim for exemplary damages was conceded by Mr. Niu not to be arguable.

[37] In the result:

1. I award the Plaintiffs general damages of $6000 against the First Defendant and $24,000 against the Second Defendant.

2. I award a total of $2916 by way of special damages against the Defendants in the same proportions resulting in an award of $583 against the First Defendant and $2332 against the Second Defendant.

The total amounts payable in damages by the Defendants are:

First Defendant $6583
Second Defendant $26,332

These sums will bear interest at a rate of 10% until satisfaction.

Plaintiffs costs to be taxed if not agreed.

CHIEF JUSTICE

Dated: 13 August 2013.