Szabo v Esat Digiphone Ltd

• Jurisdiction: Ireland
• Judge: Justice Geoghegan
• Judgment Date: 06 February 1998
• Neutral Citation: 1998 WJSC-HC 12608
• Docket Number: No. 13090 P/1997
• Court: High Court
• Date: 06 February 1998

1998 WJSC-HC 12608

THE HIGH COURT

No. 13090 P/1997

SZABO, WALSH & GORDON v. ESAT DIGIPHONE LTD, ATTORNEY GENERAL, MIN FOR PUBLIC ENTERPRISE & EMPLOYMENT, MIN FOR HEALTH & MIN FOR THE ENVIRONMENT

BETWEEN

FRANK SZABO (A MINOR) SUING THROUGH HIS MOTHER AND NEXT FRIEND DORIS SZABO EILISH WALSH (A MINOR) SUING THROUGH HER MOTHER AND NEXT FRIEND GERALDINE WALSH SIOBHAN WALSH (A MINOR) SUING THROUGH HER MOTHER AND NEXT FRIEND GERALDINE WALSH ANDREA GORDON (A MINOR) SUING THROUGH HER MOTHER AND NEXT FRIEND TRIONA GORDON ALLISON GORDON (A MINOR) SUING THROUGH HER MOTHER AND NEXT FRIEND TRIONA GORDON

PLAINTIFFS

AND

ESAT DIGIPHONE LIMITED, IRELAND, THE ATTORENEY GENERAL THE MINISTER FOR PUBLIC ENTERPRISE AND EMPLOYMENT,THE MINISTER FOR HEALTH AND THE MINISTER FOR THE ENVIRONMENT

DEFENDANTS

Citations:

CAMPUS OIL LTD V MIN FOR INDUSTRY 1983 IR 82

AG V MANCHESTER CORPORATION 1891–4 AER 1196

BOSWELL, AG V RATHMINES & PEMBROKE JOINT HOSPITAL BOARD 1904 IR 161

SPRY ON EQUITABLE REMEDIES 4ED 459

Synopsis

Injunctions

Quia timet injunction; criteria applicable; future nuisance; proposal to erect a cellular mobile and personal communications base station near a national school; whether operation of such station injurious to health of school children; injunction sought to restrain intended development; principles applicable in regard to quia timet injunctions; whether strong probability of injury to health; whether just and reasonable to grant injunction; whether ordinary injunction principles apply Held: Injunction refused (High Court: Geoghegan J.06/02/1998)

Szabo v. Esat Digiphone Ltd.

[1998] 2 ILRM 102

1 Justice Geoghegan delivered the 6th day of February,1998

2 The first named Defendant is planning to erect an operate under licence a cellular mobile and personal communication base station at Easkey, Co. Sligo. The site of the proposed base station and mast is within the territory of the Garda Station in Easkey. Under certain planning regulations, the erection of such a mast in the grounds of a Garda Station is "exempted development".

3 The Plaintiffs are school children attending Easkey National School which is located beside the Garda Station and the grounds of which are within 60 yards of the site of the proposed base station and mast.

4 The Plaintiffs, suing through their respective next friends, claim that expert scientific evidence is available to establish that, as a matter of probability, the operation of such a base station and mast which would inevitably involve the emission of pulsed radio frequency radiation would be dangerous to their health and they rely both on the Constitution and on the ordinary law of torts to seek quia timet injunctions to restrain the erection and operation of the mast of, at the very least, to restrain the emission of radiation. There are a number of differently worded injunctions sought and it is not necessary to list them all here but the general unified purpose of them is to stop the intended development and operations.

5 What is now before this court is a Motion on Notice seeking interlocutory injunctions of the same kind as the permanent unjunctions sought in the proceedings. For the purpose of this interlocutory application, this court has been furnished with a vast amount of written scientific data in the form of learned articles and reports and a number of affidavits from persons who are or claim to be experts. It will be quit some time before this action gets a full hearing and, on the evidence before me, I would predict that the hearing will take weeks if not months. There is a consensus between the parties that it will probably be at least eighteen months before this case is finally determined given the likelihood of appeals, etc. That may well be a conservative estimate. It would not be possible or proper for this Court to attempt to evaluate the evidence at this interlocutory stage of the proceedings. Nevertheless, I must form a view whether in all the circumstances it is just and reasonable to injunct the first named Defendant with all the repercussive effects that that might have in connection with the development of its business in Ireland. Effectively, I would be closing down its business and developments in relation to the Easkey transmitter for at least eighteen months to two years and of course if injunctions were obtained in relation to Easkey there would almost certainly be no logical reason why analogous injunctions would not be obtained elsewhere in the country.

6 In the course of the hearing, I indicated that I was doubtful whether the application of the Campus Oil criteria in a case such as this was appropriate. At the very least it would seem to me that the language is inappropriate in that there is something most distasteful about balancing the convenience of the first named Defendant in being able to carry on its business against alleged dangers to the life and health of the Plaintiff children. It is, I think, well established both in England and in Ireland that the three criteria of serious issue to be tried, damages not being an adequate remedy and balance of convenience are not cast in stone like the words of a statute and indeed merely constitute standard guidelines as to how, in most cases, the Courts in practice should come to a determination as to whether to grant or refuse an interlocutory injunction pursuant to its powers under the Judicature Acts. In the first instance, therefore, I do not propose to adopt the Campus Oil language but I will be going on to say that if, contrary to my belief, I did have to consider the matter is the light of the three Campus Oil criteria, I would at any rate come to the same conclusion.

THE FACTS

7 There is no issue between the parties as to the basic facts such as the type of structure and operations intended to be developed by the Defendant. There are some legal issues which are not relevant to this interlocutory application. In the application for the interlocutory injunctions, the issue is the likelihood of danger from the operation of the base station pending the hearing of the action. The expert evidence of affidavit adduced by the Plaintiffs comes from Dr. Arthur Fristenberg who describes himself if his own affidavit as "Author, Researcher and Consultant" and who appears to have been a long time international campaigner in favour of the view that serious dangers to health result from radio frequency radiation. The second expert relied on by the Plaintiffs is Dr. Neil Cherry who describes himself in his affidavit as "B.Sc(Hons) Solid State Physics, Ph.D. Atomospheric Physics, Environmental Epidemiologist, Researcher and Author". He goes on to say in his affidavit that he has qualifications in the field of health effects of electro-magnetic radiation derived from his bachelor's degree which he says involves studies of the way in which microwaves change the structure and behaviour of physical molecules; from his Ph.D. in Atmospheric Physics through which he says he studied the radiation and propagation of microwaves through the atmosphere; from twenty five years of post graduate research into the effect of weather on plants, animals and people, to his study of Environmental Epidemiology involving the health effects of air pollutants and the physiological and psychological effects of weather and climate on people. He says he did four years of concentrated research involving the review of the published scientific literature on the potential and actual adverse health effects of electro-magnetic radiation. He apparently carried out review reports which he says were critically assessed by the scientific staff of the Australia Radiation Laboratory but who declined fully to accept his conclusions confirming, however, that there were no scientific errors therein. He goes on then to detail future research which it is not necessary to list in this judgment.

8 Dr. Firstenberg's contention, based of various alleged authorities, which he cites iifd that if the base station becomes operational, the Plaintiffs will be subjected to emissions from it and that the majority are likely to suffer from adverse mental effects such as attention and memory deficits as well as adverse health problems such as insomnia, bronchitis, sinusitis and vision problems and that is addition at least 2% and perhaps as many as 15% are likely to become, what is known in the scientific and medical world as "electrically sensitive" with serious neurologic and cardiac reactions. I do not intend to go through the details of the affidavits adduced on behalf of the Plaintiff but broadly speaking almost every conceivable illness is suggested as a possible sequela of the intended emission of radiation. I do not get the impression that there is any clear view as to the time-span within which any of these mishaps might first occur. The Original affidavits did not really deal with this matter. However, in a supplemental affidavit of Dr. Firstenberg he says that exposure of the Plaintiff children for a period of even one year to eighteen months would have harmful effects of their health and on their growth and development and that such effects would be immediately manifest even within the first few weeks after the transmitters were turned on. This is a frightening statement and if it remained unchallenged, the Plaintiffs would clearly be entitled to an...