Read the full judgment text of CACV 000033/1987 on BabelCite. This Court of Appeal judgment was delivered on 14 December 1987 before Silke VP, Kempster JA, Hunter JA.
Civil law – negligence – non-occupier creating hazard – duty of care – occupiers' liability – contribution between tortfeasors – costs of trial and appeal – typhoon-related road accident. On 29 July 1973, during Typhoon Agnes with the No. 8 signal hoisted, the deceased husband and wife passengers drowned when their taxi left the edge of a flooded temporary construction road and slid into a concealed pond. The temporary road ran alongside a natural catchment area that had been bounded on a third side by an artificial spur of land dumped by Express, transforming it into a deeper pond that overflowed across the road in heavy rain. The principal facts were that the temporary road was built by Sang Lee for access to Pat Tze Wo Village; the road was closed on 23 July 1973 with barriers and a Road Closed sign, but a gap was left for village traffic; the taxi passengers were unaware the road was closed and were directed along it; the taxi turned around after finding the road flooded, and on the return journey the left edge of the road was concealed by water extending from the pond. The writ was issued on 3 July 1981, the original 1st Defendant (taxi owner) was replaced after his death by Success Insurance Limited, and third-party proceedings were brought. At trial, claims against the 1st Defendant were abandoned; Deputy Judge Cruden found for the Plaintiff against the 2nd Defendant (taxi driver) but dismissed the claim against Express, holding that Express were not in occupation and had not created a hazard. The first legal issue was whether Express created a hazard by building the spur. The court held that by building the spur where it was, Express effectively created a triangle that inevitably filled with water both from downward flow and rainfall, converting the natural catchment area into a quarry pit and causing the temporary road to flood; the diversion trench relied on by the trial judge would have had little effect on the filling of the pond. The second legal issue was whether Express discharged any duty of care owed. Applying the principle from Charlesworth & Percy paragraph 7/52 that a non-occupier doing something on the land which he knows or ought to know will be a source of danger is under a duty to take reasonable precautions, the court held that Express failed to discharge their duty. Although the road edge had previously been marked by a makeshift fence and lighting put up by Sang Lee, this was removed when the road was closed, and Express took no steps to fence, light, or otherwise mark the edge, despite knowing the road was not wholly dead, knowing of site instructions to make the temporary road safe, and knowing the spur had created a hazard. Fencing, lamps, or some form of marking would have helped avoid the vehicle going over the concealed edge. The third legal issue concerned the apportionment of contribution between the negligent taxi driver and Express. The court assessed contribution at 50% each, holding that even a prudent driver would have been placed in considerable danger once a vehicle even slightly left the road surface on the pond side, as there was then a steep muddy slope down which the vehicle would inevitably slide without hope of recovery. On costs, the Plaintiff had costs of the action against both the 2nd Defendant and Express; contribution to the Plaintiff's costs between the defendants was directed to be in proportion to the costs incurred in establishing liability against each (taking into account that Express had succeeded on the occupier point at trial). The Plaintiff had his costs of the appeal against Express, and Express paid the 2nd Defendant's costs of the appeal, as the 2nd Defendant had been a properly interested party whose interests were determined in their favour as against Express. The appeal was therefore allowed; the trial judge's finding that Express had not created a hazard was reversed; the Plaintiff's claim against Express was reinstated; and the cross-appeal of the 2nd Defendant was determined with 50/50 contribution.
Legal issues: Whether Express created a hazard by building the artificial spur · Whether Express discharged the duty of care owed to road users · Apportionment of contribution between the taxi driver and Express · Costs orders following reversal of trial judge's finding on Express's liability
Outcome: Appeal allowed; trial judge's findings against Express reversed. Plaintiff's claim against Express reinstated. Cross-appeal of the 2nd Defendant determined. Apportionment of contribution between the 2nd Defendant and Express fixed at 50% each.