By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
The Court of Appeal has slashed by 77 percent the damages awarded to a Bahamian homeowner after fuel leaks from a nearby Rubis gas station contaminated and polluted her property.
Sir Michael Barnett, the appeal court’s president, in an October 19 ruling that was unanimously backed by his two fellow judges cut the compensation awarded to Lillian Russell, whose property is adjacent to Rubis’ Robinson Road and Old Fire Trail Road gas station, from $692,825 to $159,450.
The near-$700,000 sum had been granted by former Supreme Court justice Keith Thompson due to the hardship and “distress” Ms Russell and her family suffered from two gasoline leaks. The first occurred in 1994, when the gas station was owned by Texaco (Bahamas) and operated by/leased to Philip Cartwright.
The second, more publicised leak, occurred in 2012-2013 just after Texaco’s Bahamas business had been acquired by Rubis. The gas station at that time was leased to, and operated by, Fiorente Management and Investment, whose principals according to this newspaper’s records were husband-and-wife team, Harcourt and Bianca Carter.
Ex-justice Thompson had broken his damages award into $250,000 as “loss of amenity value”, meaning interference with Ms Russell’s use and enjoyment of her property; $3,450 for costs associated with pollution testing and a real estate appraisal; and $439,375 to cover the cost of remediation works.
However, Sir Michael found that much of the damages award was based on the fall-out from the 1994 leak. He ruled that Ms Russell’s claim for this contamination could not be sustained as Rubis was not liable since it occurred under Texaco’s ownership, while the action was also “statute barred” since it was not initiated within the six years immediately following the leak as required by the Limitation Act.
While finding that Ms Russell was due $131,000 for her property’s loss of value due to the 2012-2013 leak, Sir Michael struck out in its entirety the $439,375 “remediation costs” because these represented an “unreasonable windfall” to the homeowner and not reflect the actual loss if she sold her home and still pocketed the compensation.
The appeal court president also slashed the $250,000 awarded for “loss of amenity value”, reducing it by 90 percent to just $25,000, on the basis that it was “manifestly too high” and neglected the fact Ms Russell was still renting the property to tenants.
This “suggests that the property was certainly habitable and could not have suffered a significant loss of amenity value given that Russell, and subsequently the tenants, were able to live there. Accordingly, by not considering all of the facts, the judge has made a wholly erroneous estimate of the loss of amenity,” Sir Michael wrote.
“In all of the circumstances, specifically because there was limited evidence provided of any loss of amenity related to the 2012-2013 spill, and the fact that Russell received rental income, in my judgment the loss of amenity was minimal. Accordingly, I would reduce the award of $250,000 to the sum of $25,000.”
Detailing the background to a verdict that was ultimately favourable to Rubis (Bahamas), since the damages it must pay were cut by over $430,000, Sir Michael wrote: “Russell, who owns property adjacent to a gas station owned by Rubis, claimed that she suffered loss as a result of leaks of oil and petroleum products which spilled from the gas station presently owned by Rubis on to Russell’s property.
“In a nutshell, there were two spills from a gas station located at Robinson and Old Trail Road. They occurred in 1994 and in or about 2012-2013. The station is adjacent to two housing subdivisions called Marathon and Highbury Park.
“Russell has lived on her property since 1979. However, in 1994, Russell’s property was owned by her mother and her brother, with whom she lived. At that time, the gas station was owned by Texaco Bahamas. It was leased by Texaco to Philip Cartwright, who operated the station under the name of ‘Texaco Star Mart’,” Sir Michael continued.
“Under that lease agreement, Texaco was responsible for the maintenance of all tanks, pumps and equipment at the gas station. Russell alleged that fuel leaked from the gas station and contaminated the water table on the property. In 2003, Russell acquired title to the land from her brother and mother and continued to live on the property....
“In 2012-2013, there was another leak of petroleum products from one of the tanks at the gas station. The fact of this leak is not in dispute. Russell claims that this 2012-2013 leak also impacted her property. What impact that 2012-2013 leak had on Russell’s property is in dispute.”
Ms Russell initiated legal action against Rubis (Bahamas) on March 13, 2015, but did not sue Texaco or the two operators. Her property, located at the junction of Haslemere Road and Old Trail Road, lies south-east of the gas station and is separated from it by Old Trail Road. Her action claimed for negligence, and “trespass and nuisance”, alleging that she had been “exposed to toxic vapours”.
Justice Thompson, finding that both leaks occurred, found Rubis liable for each - something that the Court of Appeal, in relation to the 1994 ruling, has overturned. “To the extent the judgment claims that Rubis is liable for the damages caused by the 1994 leak, that part of the judgment is, in my view, not sustainable,” Sir Michael wrote.
“In my judgment, the finding by the trial judge that Rubis was liable for the damage caused by the 1994 leak was wrong on the basis that there was no claim against Rubis and that any such claim was statute barred.”