Le Pichon “Plainly Wrong”
Le Pichon said to be “plainly wrong” in BORN CHIEF CO t/a BEIJING RESTAURANT v. TSAI, GEORGE AND ANOTHER; Reported in: [1996] 2 HKLRD 188
IN THE COURT OF APPEAL
1995, No. 229 (Civil)
BETWEEN
BORN CHIEF COMPANY trading as BEIJING RESTAURANT Plaintiff (Respondent)
AND
TSAI, GEORGE and TSAI, MARY Defendants (Appellants)
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Coram: Nazareth, V.-P., Liu and Ching, JJ.A. in Court
Date of Hearing: 12 March 1996
Date of Judgment: 10 April 1996
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J U D G M E N T
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Liu, J.A.:
1. It is common knowledge that October is a dry month. From 1 to 13 October 1991, there were traces of rain in Hong Kong. On 14 October, 30.1 mm of rainfall was recorded. On 15 October 1991, the rainfall recorded was over six times that of the previous day and most fell between mid-night and early morning. The defendants were owners and users of Flat C on 3rd floor of Lising Court in Granville Road, Tsim Sha Tsui. The plaintiff company operated the Beijing Restaurant on the upper ground, 1st and 2nd floors of the same building. The defendants’ flat was 300 – 400 sq. ft. which opened into as big a flat roof. The flat roof is bounded on both sides by a 4-41/2-foot wall and, in front, by a water tank of similar height. Below the water tank on the flat roof was a gutter which ran through an opening on the right-hand-side wall all the way to the adjoining Flat B. In other words, the gutter served Flat B and Flat C for draining water through a pipe situated at the far end of the flat roof of Flat C. The flat roof of the defendants’ premises was installed with a canopy covering most but not all of it and the canopy stretched over the near-side edge of the water tank. The floor of the defendants’ premises was at a level higher than that of the flat roof by about 4 inches. On 15 October 1991, a heavy downpour began around mid-night. At about 3 a.m., the restaurant premises of the plaintiff were discovered to be flooded ankle-deep. The Managing Director of the Beijing Restaurant returned at about 6.30 a.m. and at about 8 a.m. Mr Tsai, one of the defendants, also returned. Flat C was used by the defendants for storage purposes but left unattended except for a watch dog. When the entrance door of Flat C was opened, water accumulated inside was at a higher level. Water was also seen “pouring into the defendants’ premises through” a hole in the canopy. The sliding door was left about 12 inches ajar, a space wide enough for the passage of the watch dog. There was sufficient evidence for the judge to conclude that the hole was in such “juxtaposition” to the 12-inch opening as to allow the water to pour in. Mr Tsai recalled that on previous occasions, rain water came down through the hole in the canopy onto the flat roof and the hole had never “caused flooding to the flat roof and (his) premises like it occurred on 15 October”. Mr Tsai added that “in (his) experience the drains effectively carried away rain water prior to 15 October 1991”, but on the morning in question, water accumulated on the flat roof rose above the elevated floor level of Flat C and ran into it, seeping out under the main entrance door all the way down to the 3-floor restaurant premises of the plaintiff’s.
2. It is unnecessary to refer specifically to the Grounds of Appeal. The hole in the canopy and the open sliding door were the two features on which Mrs Justice Le Pichon found negligence and implicitly nuisance against the defendants for causing flooding damage to the property and restaurant premises of the plaintiff. This is the defendants’ appeal.
3. On behalf of the defendants, the flooding was submitted to be an Act of God. In Tennent v. Earl of Glasgow (1864) 2M (H.L.) 22, at pp. 26 & 27 Lord Westbury defined an Act of God in the context of flooding as an escape caused directly by natural causes without human intervention in “circumstances no human foresight can provide against and of which human prudence is not bound to recognise the possibility”. From the Royal Observatory statistics available to the judge, the total monthly rainfall for October 1991 was more than double the average monthly rainfall for October. The rainfall recorded for 15 October 1991 was over half of the total rainfall recorded for that month. From 1 to 13 October, only traces of rainfall were noted and on the following day we had 30.1 mm of rain. The rainfall recorded for the day in question, 15 October 1991, was over six times as much and a considerable quantity of that recorded rainfall fell between mid-night to 7 a.m. It is reasonably clear that on these available statistics without more, the heavy rainfall on 15 October 1991 could not be accepted as a possibility that human prudence was not bound to recognise. There is no evidence that the rainfall was so exceptional as to constitute an Act of God. The plea of Act of God fails.
4. For the purpose of this case, nuisance may be defined as “an act of omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of his occupation of land or of some right used or enjoyed in connection with land”. See Clerk & Lindsell on Torts 17th edn. pp. 889 & 890. The nuisance complained of in this case was the consequence of the defendants’ omission or neglect in not repairing the hole in the canopy and not shutting the sliding door, allegedly causing physical damage to their neighbour’s property below. Examples for nuisance caused by flooding may be found in Sedleigh-Denfield v. O’Callaghan [1940] AC 880 and Pemberton v. Bright [1960] 1 WR 436. In Sedleight-Denfield, supra at p. 896 & 897, Lord Atkin spoke of nuisance as “a wrongful interference with another’s enjoyment by the use of land or premises either occupied or in some cases owned by oneself”. The Law Lord continued: “The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word ‘use'”. In the same case, Lord Wright suggested the following test:
“A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a usual test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which had been held to be nuisances. But where, as here, a plaintiff is damaged by his land being flooded, the facts bring it well within a sphere of nuisance”.
There is much to be said for the view that once water overflows to a neighbour’s premises, the person responsible for the overflow “will prima facie be liable”. See Viscount Maugham at p. 888 of the same case.
5. Focusing on nuisance for the time being, of the two matters under complaint, I can disregard the hole in the canopy for the reason I am about to give. On the day in question, the flooding of the flat roof was above four inches. Water was running into flat C and seeping underneath the main entrance door down to the plaintiff’s restaurant premises. It is true that some rain water was pouring through the hole directly into Flat C. In this way, the rate of input of rain water into the flat was evidently higher, but would that make any difference? The answer must be in the negative if only for the reason that water overflowing from the flat roof into the flat was well above the 4-inch level. If instead of directly pouring into Flat C, the extra rain water had fallen on the flat roof, it would have been only a matter of time for such extra quantity to also find its way into Flat C. The degree of flooding, though perhaps at a lower overflow rate, would not have been different. Clearly, the hole in its juxtaposition to the 12-inch opening of the sliding door cannot be the cause of the nuisance complained of. Even with its hole, the canopy must have carried away some rain water from the flat roof onto the top of the water tank. Part of the water on top of the water tank flowed back onto the flat roof. These cannot be material considerations as the canopy at least diverted some rain from the flat roof.
6. The 12-inch opening left in the sliding door was different. Anyone in Hong Kong would close windows on leaving his property unattended. Where, as here, a sliding door was left ajar, the absentee owner must have realised the possibility of flooding in heavy rainfall in Hong Kong. Such foreseeability of the potential for harm to one’s neighbours would cast a duty or responsibility upon the defendants to keep their sliding door shut. All in this territory would expect such a precaution to be taken against the possibility of flooding caused by inclement weather, particularly with a flat roof to which the rain water from the adjoining flat also flowed. The kind of harm to the restaurant premises of the plaintiff must have been the foreseeable result of the defendants’ conduct in leaving their sliding door 12 inches ajar. The cause of the flooding was unidentified. Flooding has not been shown to be an Act of God. According to “the ordinary usages of mankind living in (our) society”, the possibility of flooding of Flat C and consequential water damage to other premises in the same building should reasonably have been foreseen. Nuisance was, in my view, established before the judge.
7. In addition, were the defendants negligent by leaving their sliding door open by 12 inches? The defendants were responsible for opening and keeping open that sliding door. For the reasons I have given, there was reasonable foreseeability of harm to the plaintiff as an occupier of premises below in the same building. Clearly, the defendants owed a duty of care to their neighbour, the plaintiff. The defendants must have foreseen that for a variety of reasons, flooding might be caused with an open door to their flat roof. The possibility of flooding in heavy rainfall must be or should reasonably have been within the knowledge, as the judge rightly put it, of “anyone living in Hong Kong”. They were negligent.
8. Having found negligence, it would matter little to the judge whether the defendants could also be held liable for nuisance. But in this case, the defendants were, in my judgment, guilty of as well nuisance as negligence. Once this conclusion is reached, it would be unnecessary to go further to the other peripheral matters in this appeal.
9. Damage was caused in 1991, the action was commenced in 1994 and particulars of the damages claimed were furnished as early as July 1995. The case came before Le Pichon J in October 1995. Documents of alleged loss and expenses were disclosed and thereafter admitted at the trial, but no separate trial was sought or ordered. At the conclusion of the proceedings, counsel for the defendants invited the judge to award only nominal damages on found liability. After the judge decided in favour of the plaintiff on liability, the invitation to award nominal damages was renewed. Without any application for assessment of damages elsewhere, of her own motion the judge ordered damages to be assessed by a master. The plaintiff had had a protracted period to prepare and prosecute its claims against the defendants. At the trial, no attempt was made to link these documents of alleged loss and expenses to the flooding damage of the restaurant. The plaintiff was not entitled to anything other than nominal damages. It was not right for the judge to take upon herself to order damages to be assessed by the master, thus providing a further opportunity for proving damages to the plaintiff at the expense and to the prejudice of the defendants. It was incumbent upon the plaintiff to establish its claim at the trial and it must bear the consequences of its failure to do so. I would dismiss the appeal on the conclusion I have reached but set aside the order of the judge and substitute therefor an award of ten dollars as nominal damages to the plaintiff.
10. Time in the proceedings below was predominantly taken up by the contention advanced on the hole in the canopy and the plaintiff has failed to obtain substantial damages from the defendants. I would make an order nisi that there would be no order as to costs in the court below and in this appeal.
Ching, J.A.:
11. I agree that this appeal by the Defendants be dismissed except to the extent indicated by Liu, J.A.
12. The Defendants were the owners of premises which included a flat roof. The flat roof was four inches lower than the rest of the premises from which it was divided by a glass sliding door. They used the premises as an office and store room. They kept a dog there, no doubt to protect against intruders. On 14th October, 1991, they left the sliding door open by about 12 inches presumably to allow the dog access to the flat roof. In the early hours of the next day there was exceptionally heavy rainfall to the extent that the flat roof flooded to a depth of more than four inches. The water overflowed into the premises and flowed down the staircases causing damage to the Plaintiff’s restaurant which was immediately below.
13. The Defendants had erected a large canvas canopy which covered most of the flat roof. It ran from above the sliding doors down to and slightly over a large water tank which formed the outer edge of the flat roof. It was erected in place of a zinc canopy which had been in place when the Defendants purchased the premises and which they had been required to remove. It was erected because the occupants of the floors above were in the habit of throwing rubbish out of their windows and the rubbish would litter the flat roof. At the material time there was a large hole in the canopy near the sliding doors. After the flooding was discovered and access had been obtained to the premises debris was seen floating on the water both in the flat roof and inside the premises but there was no evidence that the drainage holes in the flat roof were clogged or obstructed.
14. The Plaintiff’s case was based on both nuisance and negligence. The claim for nuisance was based on the water collecting in the Defendant’s premises and running down to those of the Plaintiff. It was agreed among the parties that foreseeability of damage was a necessary ingredient of this type of nuisance. The plea as to negligence concentrated largely upon the Defendants’ alleged negligence in failing to keep the canopy in good repair and in particular failing to mend the hole. However, sub-paragraph (c) of paragraph 8 of the Re-amended Statement of Claim alleged a failure to prevent the water escaping from the Defendants’ premises and sub-paragraph (d) reads,
“Permitting or allowing or failing to prevent water to come into and accumulate in the Defendants’ premises from the hole in the canopy or otherwise from outside the Defendants’ premises, thereby permitting or allowing or failing to prevent water so accumulated to escape from the Defendants’ premises.”
The Defence was first that the gutters and drains were the responsibility of the management of the building. Secondly, it was alleged that the flooding was an Act of God. Thirdly, it denied the alleged negligence. Finally, it denied the relevance of the canopy and the hole.
15. The canopy and the hole were indeed irrelevant. It was not alleged that the Defendants had a duty to erect the canopy. Having erected it, it is not clear upon what grounds it could be said that they had a relevant duty to maintain it. The hole in it would of course allow rain to pass through onto the flat roof but the same quantity, if not more, would have landed on the flat roof if there had been no canopy at all. It was not alleged that the canopy retained the rainwater which then passed through the hole with a force greater than otherwise would have been the case, thereby causing or contributing to the flooding. In my view the Judge below fell into error when she found that the hole caused the water to fall with force onto that part of the flat roof. Such a finding was in any event irrelevant. The Judge also found that the rain landing on the canopy would have run onto the top of the water tank. That cannot be gainsaid, but she then found that the rain landing on the water tank would have run back onto the flat roof. There was no evidence which could support such a finding.
16. October is known to be a dry month in Hong Kong. It was not in 1991. In the first 13 days of that month there were only traces of rain. On 14th October, 1991, the Royal Observatory recorded 30.1 mm. On 15th October 1991, 93.4 mm were recorded in the first seven hours. The total rainfall that day was more than six times that of the previous day and was more than the average rainfall for the entire month. The Defendants therefore say that the flooding was an Act of God. I disagree. With respect, it seems to me that the words “Act of God” are too frequently used without a sufficient analysis of what they mean. Assuming that lightning striking a tree and setting it alight is an Act of god it is true that no human foresight could have predicted it and that no human ingenuity could have prevented its happening. However, the same cannot always be said of its further consequences. If the fire was or should have been noticed, surely questions of negligence might thereafter arise in the failure to contain it. In the present case the rainfall was exceptional but I am not persuaded that it can properly be described as an Act of God. Even if it could be so described, the rain was falling heavily for hours. It could have been foreseen that it would build up on the flat roof and, with the sliding doors open to the extent of 12 inches, it could have been foreseen that it would flood the premises, make its way down to the lower floors and cause damage. The Defendants had ample time to prevent this and by failing to do so were guilty of negligence or nuisance.
17. Nothing needs to be said of the plea that the gutters and drains were the responsibility of the management of the building. The fact is that the water accumulated and was then allowed to run into the Plaintiff’s premises. There was no evidence that the gutters and drains were in any need of cleaning or other maintenance.
18. I would therefore dismiss the appeal on liability. The next question is the damages. The Judge below ordered that there should be an inquiry by a Master. Neither Mr. Erik Shum, who appeared for the Defendants before us nor Mr. Joe Fok, who appeared for the Plaintiff before us, were present in the Court below. Mr. Shum was able to tell us that his instructions were that counsel for the Defendants had taken the point that no evidence at all had been called as to quantum and had therefore submitted that if the Court should go against the Defendants the damages should be nominal. The Judge below found on liability and counsel then renewed his submission. After a short adjournment the Judge returned and made her order. Mr. Fok was unable to confirm or deny this. A number of things are quite clear. This matter came on for trial about four years after the event. The Plaintiff had had that time to prepare its case. The only thing that it had done in relation to damages was to have certain documents agreed as being accurate and authentic, but neither in the witness statements nor in the evidence was any attempt made to relate those documents to the damage. The only document which came close to that was an estimate by a professional firm which was said to relate to damage caused by water. In my view it is clear that there was damage caused by the rain water but the Defendants were entitled to expect the Plaintiff to call all of its evidence at trial. There are no grounds upon which a split trial could have been ordered at any time and it would appear that the Judge below ordered the inquiry simply because the Plaintiff had not called its evidence so that she was unable to arrive at a figure. That is not a proper reason for ordering an inquiry. I am content with the figure of $10 mentioned by Liu, J.A., and would allow the appeal to the extent of substituting an order for damages in that sum in lieu of the order for an inquiry.
19. I agree also with the order nisi for costs proposed by Liu, J.A.
Nazareth, V.-P.:
20. I gratefully adopt the outline of facts and background given by Liu and Ching, JJ.A.
21. The judge expressed her conclusion in the following way:
“Counsel for the defendants submitted that but for the existence of the canopy, very heavy rain would have fallen on the flat roof and the canopy helped to divert the water. That may well be true, particularly had the canopy been intact and the rain not of the intensity as that on 15th October. But much of the water landing on the water tank would have flowed back onto the flat roof. Counsel for the defendants also submitted that expert evidence as to the intensity of the rainfall, its impact on the drainage system and the amount of rain that flowed through the hole is necessary before I could reach any conclusion. I do not agree. To me it is a question of common-sense that when you have rain of the intensity and volume that there was on 15th October, falling as it did on a sloping canopy in which there was a hole, under the laws of gravity, water falling down in the vicinity of the hole would have gravitated towards it, causing a concentration of water to fall with force onto that part of the flat roof.
I am satisfied that, on the evidence, rainwater had accumulated on the flat roof because of the intensity, duration and volume of rain that fell during the early hours of 15th October. Once it had accumulated to the level of the floor of Unit C, i.e. a depth of 4″ or so, it could and did flow, unimpeded, into Unit C, through the opening at floor level of at least 12″. The existence of the hole through which rainwater poured and its juxtaposition to the opening, exacerbated the seepage of water into Unit C and down the staircase to the Restaurant.”
22. It is unfortunate that the hole in the canopy attracted so much time and attention below and in this Court, for it is of very little relevance. The “flat roof” was on the evidence enclosed on all sides and had only one drainage outlet. The immediate cause of the accumulation of water was never determined, whether it was a blockage caused by the litter, or whether the outlet was too small to cope with the rainfall matters not, for the clear and unchallenged finding of the judge herself, which must be right, is that the accumulation was due to the intensity, duration and volume of rain.
23. While one witness stated that water was “pouring into the defendants’ premises through” the hole in the canopy, it is significant that the judge did not expressly accept that statement, which was in any case ambiguous as to whether the water was pouring onto the roof area or into Unit C through open sliding door. The exacerbated seepage into Unit C, that the judge referred to, might have been attributed to the concentration of water falling with force onto the flat roof near the sliding door to Unit C. Even so, there was no evidence to support the conclusion that the hole exacerbated the seepage into Unit C.
24. I turn then to the matter of “foreseeability” which is a necessary ingredient of nuisance of the sort here. It emerged as the major matter in contention. Notwithstanding that October may be a relatively dry month, as the Royal Observatory records revealed, it nonetheless receives a significant amount of normal rainfall. And as the judge observed, anyone living in Hong Kong knows that heavy rain which could cause flooding does occur from time to time; that was not disputed before us. When that is coupled with the knowledge the defendants must have had of all the litter that was dropped from the premises above, it seems to me that rainfall of the sort that occurred, of accumulation in the flat roof area rising above the level of the floor of Unit C, the consequent entry of water into Unit C (a fortiori if the sliding door was left open) and thence to the premises downstairs and that damage would be caused, were all foreseeable.
25. The defendants sought also to rely upon the defence of Act of God, i.e. the operation of natural forces “which no human foresight can provide against, and of which human pretence is not bound to recognise the possibility” (per Lord Westbury in Tenant v Earl of Glasgow (1864) 2 M 22). Given the conclusion that the rainfall was foreseeable that defence must fail; moreover measures to provide against such rainfall and the harm it may cause readily spring to mind, e.g. keeping the sliding door closed, to start with.
26. It does not seem to me to be necessary to say any more on the appeal against liability; it clearly fails.
Proceeding to the matter of damages, it is plain from the evidence, that there was significant physical damage. But of the quantum of damages, there was a conspicuous lack of actual evidence. The plaintiff did not apply for a split trial and so in the ordinary way the trial would be expected to proceed from start to finish. Counsel for the defendants rightly submitted that in the absence of evidence establishing the quantum of damages, the appropriate award was one of nominal damages. Such a result would obviously mean that the significant damage that the evidence revealed would not be compensated and must have offended the judge’s sense of justice. But the good, efficient and increasingly, the affordable administration of justice requires that parties present their entire cases and cannot expect a second bite at the cherry simply because they failed to apply for a split trial or to produce their requisite evidence. The judge was plainly wrong in directing an inquiry to be made by a Master as to damages, and that order cannot be permitted to stand. Like Ching JA I am content with the sum of $10 proposed by Liu JA as nominal damages. I would accordingly allow the appeal to that extent, set aside the order for an inquiry, substitute an order for damages in that sum and make the costs order nisi proposed by Liu JA, with which I also agree.
27. The appeal is accordingly allowed to the extent and with the orders indicated.
(G P Nazareth) (B Liu) (Charles Ching)
Vice President Justice of Appeal Justice of Appeal
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