Read the full judgment text of CACV 000229/1995 on BabelCite. This Court of Appeal judgment was delivered on 10 April 1996 before Nazareth, V.-P., Liu and Ching, JJ.A..
Tort law – nuisance – negligence – flooding – Act of God – duty of care – foreseeability – quantum of damages – nominal damages. The defendants were owners of Flat C on the 3rd floor of Lising Court in Tsim Sha Tsui, with the flat opening onto a flat roof shared with the adjoining Flat B for drainage. The plaintiff operated the Beijing Restaurant on the upper ground, 1st and 2nd floors of the same building. On the night of 14-15 October 1991, a heavy downpour of 93.4 mm was recorded in the first seven hours of 15 October, more than six times the previous day's rainfall and over half the total monthly rainfall for October 1991. The defendants had left the sliding door of Flat C open 12 inches to allow access for their watch dog. Water accumulated on the flat roof above the 4-inch floor level of Flat C, flowed into the flat, and seeped under the main entrance door down to the plaintiff's restaurant premises, causing flooding damage. Whether the rainfall constituted an Act of God – held no, applying Lord Westbury's definition in Tennent v. Earl of Glasgow, the rainfall was not such that no human foresight could provide against. Whether the defendants were liable in nuisance – held yes, on the basis that foreseeability of harm to neighbours imposed a duty to keep the sliding door shut, applying Sedleigh-Denfield v. O'Callaghan and the test of 'ordinary usages of mankind living in society'. Whether the hole in the canopy was a cause of the nuisance – held no, as flooding of the flat roof was above 4 inches and the water would have found its way into Flat C regardless. Whether the defendants were negligent – held yes, as the possibility of flooding in heavy rainfall must reasonably have been within the knowledge of anyone living in Hong Kong. Whether the plaintiff was entitled to more than nominal damages – held no; the plaintiff had failed to call evidence linking disclosed documents of loss to the flooding damage at trial and was entitled only to nominal damages of HK$10. Whether the judge was right to order an inquiry by a master – held no, as it was not proper to provide the plaintiff a second opportunity to prove damages when it had failed to do so at trial. Appeal dismissed on liability; appeal allowed to the extent of substituting nominal damages of HK$10 for the order of inquiry; order nisi that there be no order as to costs in the court below and in this appeal.
Legal issues: Whether the flooding constituted an Act of God · Whether the defendants were liable in nuisance for the flooding · Whether the defendants were liable in negligence · Whether the plaintiff was entitled to more than nominal damages
Outcome: Appeal dismissed on liability; appeal allowed to the extent of substituting nominal damages of $10 for the order of inquiry by a master