By Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit)
I have just finished reading a fascinating article “Low Frequency Noise-Induced Pathology: Contributions Provided by the Portuguese Wind Turbine Case” written by Nuno A. A. Castelo Branco, MD, Senior Surgical Pathologist; Mariana Alves-Pereira, PhD, Biomedical Engineer; Augusto Martinho Pimenta, MD, Senior Neurologist; and José Reis Ferreira, MD, Senior Pneumologist; all resident and practising in Lisbon, Portugal. The authors were involved in giving evidence to the Portuguese courts culminating in a Supreme Court action.
Their findings were presented and accepted as expert evidence to Portuguese courts which eventually resulted in the wind farm developer being ordered by the Supreme Court of Justice of Portugal to remove the wind turbines from the vicinity of the applicant’s property (Supreme Court of Justice of Portugal. Decision No. 2209/08.oTBTVD.L1.S1, 30 May 2013).
These legal proceedings involved four wind turbines (although more were built subsequent to the commencement of the legal proceedings).
The four wind turbines were located adjacent to the family farm as follows:
- No. 1: 321.83m from the house and 182.36m from the stables,
- No. 2: 539.92m from the house and 439.64m from the stables,
- No. 3: 579.86m from the house and 565.50m from the stables,
- No. 4: 642.08m from the house and 503m from the stables.
The distances are important to Irish readers as our current guidelines suggest a clearance of 500m from residential homes (which wind developers routinely ignore in any event). Therefore, three of the listed turbines would be in a permissible position in Ireland.
What are expert witnesses?
As a general rule, witnesses can only testify about facts. It is the task of the jury, or the judge if there is no jury, to draw inferences from the facts presented in court, and witnesses must not be allowed to usurp this central function.
There are two notable exceptions to this general rule. First, expert witnesses may give opinion evidence, which is their primary function. Secondly, non-experts are sometimes allowed to give opinion evidence in defined circumstances, usually where their evidence would not make any sense if it were not accompanied by opinion.
Generally, a witness is considered an expert on the basis of their experience, training and knowledge. An expert witness is there to assist the court in coming to a conclusion in areas where the trial judge or jury might not have considerable expertise.
The expert witness is called for his or her expertise and as such should regard themselves as ‘neutral’ witnesses, there to help the court rather than to help one of the litigating parties. Indeed, the authors point this out very clearly at the end of their paper, saying that they are only interpreting the evidence, and in fact support the push towards renewable energy.
A famous decision setting out what is expected of expert witnesses is National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd (“The Ikarian Reefer”)  2 Lloyd’s Rep. 68 Where the court held:
- Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.
- An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.
- If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s report or for any other reason, such change of view should be communicated to the other side.
What is also important to remember is that an expert witness must be recognised as such by the court. The party who wants to lead expert evidence has to prove to the court that their witness is indeed an expert in their field. The opposition (in this case the wind industry) is entitled to attack the qualifications of the expert witness and attempt to convince the court that the witness should not be allowed to give his or her expert evidence. They can also call an opposing expert witness.
In this case the Portuguese Supreme Court not only accepted the expertise of the authors of this article and allowed them to give evidence, but the Court also preferred their evidence to that of the expert witnesses used by the wind industry, whose evidence was rejected.
So what was that evidence?
The family in question consisted of a father, a mother, and two children. Before the wind farm was built, the eldest son was a high achiever and regularly came top of his class at school. The authors take up the story:
“The Industrial Wind Turbines were installed at a distance of 321-642 m from the residential home. Complaints of sleep disturbances were first reported in December 2006. In mid-March, Mr. and Mrs. R received a letter from their 12-year-old son’s schoolteacher, expressing concern for the growing difficulties in an otherwise outstanding student, “particularly in English, Humanities and Physical Education. He progressed in Mathematics, which is a field that naturally attracts his type of intelligence. However, in the above mentioned coursework, it seems that [the child] has lost interest, makes a lesser effort, as if he were permanently tired. In Physical Education, an abnormal amount of tiredness is also observed. Is [the child] leading a healthy life? Does he sleep sufficient hours during the night?”
This immediately prompted the parents to begin legal proceedings and seek medical assistance, and thus, this team’s first contact with Family R.”
The family hired an accredited acoustical firm to conduct continuous acoustical monitoring both inside and outside their home, for a period of 2 weeks, and that included real time wind speed data. Numerical data regarding acoustical and wind speed information, independently collected by the accredited firm, was then provided to these experts (the abovementioned authors) for analysis and these experts deemed the turbine noise to be dangerous to the health of this family.
On that basis the family were sent for medical examination. The authors summarise the findings of the examinations (my emphasis):
“The 12-yearold child received a neurological test assessing cortical nerve conduction times: P300 Event Related Evoked Potentials (ERP). P300 ERP disclosed nerve conduction time to be 352 ms, when expected value should be closer to 300 ms. Brainstem Auditory Evoked Potentials (BAEP) disclosed asymmetries in the right and left nerve conduction times, and the right I-V interval interlatency value was at the threshold of normal (4.44 ms). Mr. and Mrs. R. disclosed slight to moderate pericardial thickening: between 1.7 mm and 2.0 mm (normal for the equipment in use: <1.2mm) . Respiratory drive was below normalized values in both adults (46%-53%, normal: >60%), suggesting the existence of brain lesions in the areas responsible for the neurological control of breathing.
Observations made by the family included animal behavioural changes: Horses were seen to lie down and sleep during the day; Dogs were lethargic, and no longer jumped up requesting attention from their owners. Ants simply disappeared.”
Remember that these examinations are carried out in 2007, just a few months after the wind turbines are erected, and already the effects are dramatic.
Alarmed by these symptoms, the mother and children moved into an apartment in the city in 2007. The boy’s health improved immediately and dramatically:
“After the summer vacation in 2007, spent away from the farm, the 12-year-old child had again received the P300 ERP examination that, this time, disclosed nerve conduction times much closer to normal: 302 ms. In 2010, this child was again an outstanding student, top of his class.”
The father, Mr. R, did not have the option of moving into town, as he had to stay with the family business on the farm. In contrast to his son, his health continued to deteriorate rapidly in those three years between 2007 and 2010:
“Over these 3 years, Mr. R’s health and wellbeing had continuously and visibly deteriorated: intolerance to (any) noise had become more severe; situations compatible with an unregulated sympathetic nervous system increased in frequency; and cognitive impairment became more pronounced.”
I would like a medical person to comment on this but to me this sounds like the father became seriously noise-sensitive, nervous and jumpy, and confused in his thinking.
The family’s business was also threatened:
“Between 2000 and 2006, 13 healthy thoroughbred Lusitanian horses were born and raised on Mr. R’s property. All horses born after 2007 (after the wind farm was erected) on his farm developed asymmetric flexural limb deformities. Besides the IWT (Industrial Wind Turbines) installed in November 2006, no other changes (constructions, industries, etc) were introduced into the area during this time.”
This echoes the findings of another study detailing limb deformities in horses caused by industrial wind turbines.
In 2015 the following alarming observations were made on the father’s health:
“Mr. R continues to live away from Mrs. R and the children, and his health has further deteriorated. The respiratory drive value that in 2007 was 46% (normal: >60%) is now at 28%. The development of balance disturbances associated with loss of consciousness has apparently caused several falls, requiring medical treatment for facial and rib fractures. This situation is still under clinical study, as late-onset epilepsy is one of the most severe outcomes of excessive ILFN (Infrasound & Low Frequency Noise) exposure.”
In May 2013 the Supreme Court of Justice of Portugal decided that the remaining 3 turbines had to be removed from the vicinity of Mr. R’s property. The lower court had ordered the removal of the closest turbine but allowed the other three to stay, hence the appeal to the Supreme Court. The developer is apparently appealing the decision to the European Court.
In addition to ordering the removal of the wind turbines, the court also granted damages to the family in the amount of € 30,000.00, plus legal costs.
A bittersweet victory given that Mr R’s health is ruined and the family’s way of life destroyed. Money cannot fix that sort of damage. Further turbines have also been built in the area as these legal proceedings concerned only the first four that were built (adjoining the family farm) and therefore the battle is not over yet.
From a legal point of view what is important is that the courts, including the Supreme Court, accepted the expert evidence of the authors of this paper concerning the terrible toll that infrasound and low-frequency noise has on both humans and animals, whilst it rejected the opposing evidence led by the wind industry lawyers.
A court is clearly neutral in this matter and has no hidden interests in a decision going one way or the other. A civil court must decide the evidence on a balance of probabilities. This means that before it accepts evidence, the court must be satisfied that the evidence is probable (capable of belief) and that it is more probable than the evidence given by the other side. In this case the Supreme Court accepted the evidence of the independent and neutral expert witnesses concerning the destructive effect of infrasound and low-frequency sound on the health of this family, whilst rejecting the evidence of the wind farm developer’s expert witnesses who claimed that the noise was within acceptable limits.
As the authors conclude:
“An effort toward developing and implementing appropriate construction techniques that would minimize the deleterious effects of in-home ILFN could be, perhaps, an excellent beginning. The hindrance to this apparently viable beginning is the sine qua non prior recognition that ILFN is, de facto, a physical agent of disease.”
Again, I am not a medical person but I take that to mean: Wind farms are a danger to our health. Period.