In 2008, a fuel station operator, Mr Ramendra Prasad, noticed that fuel was leaking from the ground. The fuel was spilling into a roadside drain leading to the Rewa River. Located on the Viti Levu Island, the Rewa River is the “longest and most important stream of Fiji”. It’s an important source of vegetable, rice, and dairy production on the island. The fuel tanks underneath the fuel station were owned, maintained, and supplied by TOTAL (Fiji) Limited (‘Total’), a subsidiary of the French fossil fuel giant TotalEnergies.
Upon discovering the fuel leakage, Mr. Prasad immediately contacted Total. However, Total did not fix the leak, which continued to go on for months after Mr Prasad had first notified Total. It wasn’t until November 2008 that the leak was fixed by the Fiji Department of Environment by stopping the supply of fuel. Mr. Prasad, supported by counsel from Siwatibau & Sloan, filed a lawsuit against Total, in which Total denied responsibility and instead filed a counterclaim for damages. In the first instance, the High Court had sided with Total and ordered Mr Prasad to pay Total $15,000 to compensate for the costs of the legal action.
The Polluter Pays Proceedings in Ramendra Prasad v. Total (Fiji) Limited
On appeal, the High Court decision was set aside. One among the multiple grounds on which Mr. Prasad appealed was that the High Court judge had not taken into account the provided expert evidence regarding the “illegal and dangerous installation” of one of the fuel tanks below Mr. Prasad’s fuel station. In turn, Total maintained that the leak was “negligible”. However, the Court of Appeal stated that this was not a “tenable position”, especially in light of the expert evidence regarding the extent of the leak. The Court of Appeal proceeded by referring to the ‘polluter pays’ principle, which is enshrined in Section 50 of the Fiji Environment Management Act. As per the ruling, Section 50 “is meant to act as a deterrent and ensure all-round concern for the human life, as well as the environment”.
Section 50 of the Environment Management Act reads as follows: “(1) A person who has suffered loss which includes contracting health-related problems as a result of any pollution incident may institute a civil claim for damages in a court, which may include a claim for- (a) economic loss resulting from the pollution incident or from activities undertaken to prevent, mitigate, manage, clean up or remedy any pollution incident; (b) loss of earnings arising from damage to any natural resource; (c) loss to or of any natural environment or resource; (d) costs incurred in any inspection, audit or investigation undertaken to determine the nature of any pollution incident or to investigate remediation options.”
According to the Court of Appeal, Mr Prasad collected 10,000 litres of leaking fuel within a few months, which to the Court means it is a ‘pollution incident’, as per the Environment Management Act 2005.
Formerly part of the British Empire, Fiji gained its independence in October 1970. Fiji’s legal system continues to follow the English Common Law system. Standards of liability in tort law in Fiji remain similar to that of the English common law. The judgment therefore also reflects that the Court of Appeal relied on the English leading tort case of Donoghue v. Stevenson [1932] UKHL 100. In this case, the House of Lords had established the ‘neighbour principle’, which holds that “one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour”. Combined with other English precedents (Re Polemis & Furness, Withy & Co Ltd and The Wagon Mound no 1), the Court of Appeal here deduces that Total has been negligent. Hence, by determining Total to be negligent, the company is responsible for the pollution and the Court of Appeal upholds the ‘polluter pays’ principle.
On 28 October 2022, the Fiji Supreme Court confirmed that Total is indeed liable under the polluter pays principle as determined by the Court of Appeal. Total again challenged this decision, but on 5 April 2024, the Supreme Court handed down its final judgment, rejecting Total’s challenge and confirming its earlier judgment.
What is the ‘Polluter Pays’ Principle?
Under the Polluter Pays Principle (PPP), polluters (whether states or companies), are required to pay for the pollution caused by them. The Organisation for Economic Co-Operation and Development adopted the PPP in 1972 as an economic principle, with the purpose of allocating costs to control pollution. The mere existence of the PPP in a country’s legislation can help incentivise polluters to avoid environmental damage since the potential increase in costs can make less polluting alternatives more attractive. In other words, the PPP has both moral and legal power.
The PPP is also recognised in international law, under the Rio Declaration on Environment and Development of 1992 as principle 16: “National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution […]”.
Across the globe, numerous states have adopted the PPP, albeit each giving it its own definitions. As such, the application of the PPP to specific incidents or legal cases is open to interpretation. Bringing such cases is not without difficulty either. As James Sloan, lead counsel for Mr. Ramendra Prasad points out, it takes a lot of time to bring environmental litigation cases in Fiji. From the discovery of the fuel leak in 2008, it took 16 years for the final judgment by the Supreme Court. It requires high levels of (financial) resources for applicants to bring these cases to a conclusion.
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