Wayfoong Credit Ltd and Others v. Tsui Siu Man t/a Wilson Plastics Manufactory
Read the full judgment text of CACV 8/1984 on BabelCite. This Court of Appeal judgment.
1. At about 9:40 on the evening of the 2nd of September 1982 fire was observed on the 8th floor of the Jumbo Industrial Building, Wai Yip Street, Kwun Tong. The Fire Services were called and very soon the fire was upgraded to third alarm. It was not brought under control until some time after midnight and was finally extinguished at 1:26 the following morning. The fire caused considerable damage. The 8th floor was virtually gutted and the 9th floor flooded with the water used to put out the fire
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CACV000008/1984 Headnote Fire broke out in a flatted factory, and was intensified by the presence of large quantities of dolls made of plastic (either polyvinyl chloride or polypropylene). These materials are characteristic in that, once ignited, they burn at a high temperature and are difficult to extinguish. Damage was caused to the premises above the factory by the heat and smoke from the fire and by the water used to put it out. Evidence was led in an attempt to show that the fire could not have been caused by a person not under the control of the occupier, or by an electrical fault. Held, reversing the decision of the court below:-
____________________ Coram: Hon. Cons & Fuad, JJ.A. and Kempster, J. Dates of Hearing: 17 & 18 April 1984 Date Judgment delivered: 1 May 1984 ______________ J U D G M E N T ______________ Cons, J.A. : 1. At about 9:40 on the evening of the 2nd of September 1982 fire was observed on the 8th floor of the Jumbo Industrial Building, Wai Yip Street, Kwun Tong. The Fire Services were called and very soon the fire was upgraded to third alarm. It was not brought under control until some time after midnight and was finally extinguished at 1:26 the following morning. The fire caused considerable damage. The 8th floor was virtually gutted and the 9th floor flooded with the water used to put out the fire. Machinery on that floor was damaged by heat, and there was general smoke damage. 2. The damage caused by the heat, and perhaps also by the water and the smoke, was greater than might otherwise have been expected because at the time of the fire there had been an accumulation of plastic on the 8th floor, being either polyvinyl chloride or polypropylene. These materials are characteristic in that once they have been set alight they are very difficult to extinguish and burn at a very high temperature. They are used, inter alia, for the manufacture of plastic dolls. The business of the defendant, who occupied the 8th floor, was to manufacture dolls for export. The learned judge below came to the conclusion, from what was observed after the fire, that there had been something in the neighbourhood of 4 tons of plastic on the 8th floor that evening, in the form of finished or semi-finished dolls. That conclusion has not been challenged. 3. The action from which this appeal arises was originally brought by the company which is now the fifth plaintiff and which operated a printing press on the 9th floor. The other plaintiffs were added later, being the true owners of the machines which were there damaged. The judge found in the plaintiffs' favour on three grounds :-
4. All three grounds are challenged by this appeal, but it is right to mention at this stage that the defendant appeared in person in the court below and thus the judge did not have, as we have had, the benefit of able argument on both sides. Res ipsa loquitur 5. We have no idea how the fire started. The defendant, whom the judge found to be an honest witness, said he had no knowledge of how it happened, and it is entered in the Fire Services Department's report, exhibited below by agreement, as being from a cause "unknown". 6. The judge expressed his conclusion in this respect in these words :-
7. We have had some discussion as to whether or not these words expressed a definite conclusion that the fire was in fact caused by a smouldering cigarette. For myself I do not read them in that way. I take the judge to have accepted that it was a true case of res ipsa loquitur, the smouldering cigarette being no more than a speculative possibility. 8. The classic exposition of res ipsa loquitur comes from Scott v. London & St. Katherine Docks Co.(2).
9. A fuller discussion is to be found in the judgment of Megaw L.J. in Lloyde v. West Midland Gas Co.(3), in particular where he says :-
10. Counsel for the plaintiffs concedes that he does not get that far by proving merely that the fire occurred. But he submits that, outside agencies apart, fires are highly unlikely to occur, at least in industrial buildings, without negligence on the part of some person or other, and that in the circumstances of this case all other reasonable possibilities can be excluded. 11. The submission is to some extent inconsistent with the dictum of Lord Goddard in Sochacki v. Sas and another(4), referred to with approval by the Lord Justice-Clerk in the Scottish case of Flannigan v. British Dyewood Company Limited(5) :-
12. While that is undoubtedly true with regard to open country - it was applied to logging operations in the Canadian case of Canadian Forest Products Ltd. v. Hudson Lumber Co. Ltd.(6) - circumstances may perhaps not be the same in a modern industrial building. In the event however I do not find it necessary to express any opinion. 13. The evidence showed that in all likelihood the 8th floor had been left untouched for some three hours before the fire. The workers left at 6 o'clock. Then the floor was swept and the last man to go, at 6:40 p.m., closed the windows, switched off the main switch and locked the door. It was apparently still locked when the firemen arrived. Counsel elicited from the defendant that no heaters had been left on and that he was not keeping on hand anything liable to spontaneous combustion. But further than that the possibilities that the fire had been caused by a a stranger, by an electrical fault, or even perhaps by lightning, were not canvassed at all. 14. If indeed the fire was caused by human agency, the originating act or omission must have occurred at least three hours before the fire had grown to such an extent that it was observed from outside. When it actually started, how it actually started, how long it smouldered before it really took hold, and how easily it might have been detected during that period, are all matters of pure speculation. But the addition of just one hour to the certain three would put the start at a time when others than the defendant's own staff might well have been on the premises, e.g. the friend of an employee, perhaps from another factory in the building, who called to gossip, or to join her on the way home. And for all we know the start could have been even earlier. There is no evidence as to who might then have been on the premises in the way of business. The judge was not satisfied that despite the defendant's warning notices, none of his own staff ever smoked on the premises. Even higher, one would think, would have been the chances on a casual visitor. 15. As to electricity, Counsel for the defendant has instanced four ways in which, even with the main switch turned off, the fault might in fact have lain there. Firstly, we do not know how much is controlled by that particular switch. There are premises which do in fact have more than one circuit, with separate main switches for each. Secondly, the switch may have been inside rather than outside the premises, leaving a length of cable which would still have been alive. Thirdly, the fault may have occurred earlier but the fire which it had started smouldered on after the current was later cut off. Finally, the switch itself might have been defective. 16. In the light of all these considerations, the circumstances revealed by the evidence cannot be regarded, in my view, as anything other than equivocal. Prior negligence 17. This was pleaded in the [further] Re-amended Statement of Claim as follows :-
18. The judge below does not appear to have considered the absence of a night watchman to have been important and the point has not been pressed before us. He rejected the suggested breach of statutory duty. He referred to the regulations which require notification in the case of "Polyvinyl chloride (raw material)" and "Polypropylene (raw material)", and noted that the material in the present case either was not or had not been proved to be still in its raw state. 19. The judge made no mention of the suggestion of a "special heat resistant compartment". He said this :-
20. He did not elaborate on what he had in mind by the use of the words "in such conditions". 21. The Director of Fire Services, as the Authority designated by the Regulations, has power to issue directions with regard to the storage of goods which are, or ought to be, reported to him in accordance with Part XA. However neither he, nor anyone from his department, gave evidence below and we do not know what might have been thought appropriate in circumstances similar to the present. Nevertheless the plaintiff did call a witness, an insurance loss adjuster employed by McClaren Dick & Co. (Asia) Ltd., who thought that the Director would give directions to store in a room with fire resistant walls. His own view also was that it would be "prudent to have fire resistant walls if storing plastic". At the same time he said that "in industrial buildings, the walls and floors are already concrete and fire resistant". He did not suggest any further precaution. 22. The judge seems to have accepted that the walls and floors of the Jumbo Industrial Building were in fact concrete and fire resistant and on the evidence I have just referred to the Defendant would appear to have already taken such precautions as would in the circumstances have been dictated either by authority or by prudence. 23. I do not see that the position is altered by the admission obtained from the Defendant in cross-examination :-
Most risks can be reduced, or perhaps eliminated, by more stringent precautions, but the law of negligence is based, not on the absolute, but on what can reasonably be expected. The evidence did not show that to be higher than I have just indicated. The Rule in Rylands v. Fletcher 24. The present state of the law, if I may say so with respect, is succinctly set out in the judgment of Lawton J. in British Celanese, Ltd. v. A. H. Hunt, Ltd.(7) :-
25. It is argued by Counsel for the plaintiffs that the true test is not one of "non-natural use" but only of whether the defendant has brought onto his land something "dangerous in the sense that, if it escapes, it will do damage". These are the words used by Lord Porter in Read v. J. Lyons & Co. Ltd.(8). 26. The authority on which Counsel relies is Musgrove v. Pandelis(9) where Bankes L.J. posed the question "Whether this motor-car, with its petrol tank full or partially filled with petrol, was a dangerous thing to bring into the garage within the principle of Rylands v. Fletcher?", and Warrington L.J. spoke of a man's duty to control a "potential danger". It is to be observed, however, that Lord Porter thought that non-natural use was "possibly a further requisite", while the rest of their Lordships, apart from Lord Simonds who did not touch on the topic, took that as being firmly established. It may also be noted that Counsel on both sides put their arguments on that same basis. I take it therefore that although some element of potential danger must be shown to have existed, it must also be shown that the use was in some way "special" or "non-natural". That it was naturally dangerous may of course in itself be some indication. 27. It will seldom be easy to decide what is a non-natural use of land. Basically it must be a question of fact for the individual judge in the individual circumstances. For this reason it is only after anxious consideration that I have come to the conlcusion that this Court is justified in interfering in the present circumstances. I have taken into account three matters. Firstly, that the judge was not influenced in any way by a first-hand impression of witnesses or a sight of the locus in quo. Secondly, he did not have the benefit of argument to the contrary. Thirdly, he did not have the benefit, or so it would seem, of their Lordships' comments in Read v. J. Lyons & Co. Ltd.(10). 28. In Mason v. Levy Autoparts of England Ltd.(11), MacKenna J. employed three criteria to resolve the question of what was non-natural use. They were :
29. With every respect to the learned judge below, the application of these criteria to the present situation leads in my view inevitably to the conclusion that there was no non-natural use. There was no evidence to show that the number of dolls accumulated on the 8th floor, or the plastic of which they were composed, was unnecessary or unreasonable having regard either to the size of the premises or to the volume of the defendant's business. The way in which they were stored was not shown to have been a contributing factor in any way. There was little actual evidence as to the character of the neighbourhood, but we do know that the defendant occupied a flatted factory in an industrial building, and we may take judicial notice that Kwun Tong is by no means a purely residential area. 30. For these reasons the appeal should, in my opinion, be allowed on all three grounds.
(1) (1868) L.R. 3 H.L. 330 (2) (1865) 3 H.&C. 596 at 601 (3) (1971) 1 W.L.R. 749 at 755/6 (4) (1947) 1 All E.R. 344 (5) (1970) S.L.T. 285 (6) (1960) 20 D.L.R. (2d) 712 at 723 (7) (1969) 2 All E.R. 1252 at 1256 Fuad, J.A. : 31. The issues that arise in this appeal are interesting, and important to the community. I wish to begin by recognising the additional difficulties faced by the trial judge in resolving them by the fact that the Appellant was unrepresented before him. This is not to suggest that Mr. Mumford, who appeared for the Respondents both at the trial and before us, presented his case otherwise than entirely fairly; but it must be acknowledged that the judge did not have the benefit of the able arguments addressed to us by Mr. Bell based upon the authorities he cited. 32. One essential fact was common ground and it is a fact of great significance - that no one could say how the fire started. The Respondents, therefore, founded part of their case on the doctrine of res ipsa loquitur. Both counsel accepted that the application of the principle is accurately stated in HALSBURY (4th Edition) Vol. 34 paras. 57-60. 33. As I understand the passage of the judgment which begins "The plaintiffs say..." and ends "... on the premises with his authority", already read by my Lord Cons, J.A., the judge was not expressly finding that the Appellant or someone for whom he was responsible had left a burning cigarette on the premises before they were locked up for the night, and that this was the negligence that caused the fire, but merely expressing an opinion as to the probable act of negligence, on his route to applying the res ipsa loquitur doctrine, a course commonly adopted by judges in similar situations. What he was holding, it seems to me, was that in the light of all the proven facts here was an unexplained fire; the fire occurred on premises that were under the exclusive control of the Appellant or his employees; and the fire was something that in the ordinary course of things does not happen in premises which are managed with proper care. The judge clearly had in mind the rule as stated by Erle C.J. in the leading judgment in Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, at p. 601 -
34. With due respect I think that this conclusion was to fly in the face of what I hold to be a sensible judicial view firmly held in a number of different jurisdictions. In the simple words of Lord Goddard L.C.J. in Sochacki v. Sas [1947] 1 All E.R. 344, at p.345: "Everybody knows fires occur through accidents which happen without negligence on anybody's part." That this is a truism has been acknowledged, for example, in Canada: Canadian Forest Products Ltd. v. Hudson Lumber Co. Ltd. [1960] 20 D.L.R. (2d) 712 (Whittaker J. at p.724) and in Scotland: Flannigan v. British Dyewood Company Ltd. (1970), S.L.T. 285, at p.289 (the Lord Justice Clerk). I would respectfully adopt the approach to this point of the Lord Justice Clerk in the latter case, where, at p.289, after noting what Lord Goddard had said in Sochacki v. Sas, he added –
35. I will not rehearse the possible causes of the outbreak of fire spelled out by Mr. Bell, consistent with no act of negligence on the part of the Appellant or by those for whose acts he would be liable; some of them have been mentioned by my Brothers whose judgments I have had the advantage of reading in draft. However, on the state of the evidence I will content myself by saying that there were obviously several possible causes. Unfortunately none of the fire officers who conducted the investigation after the fire were called to give evidence. All we know is that the Fire Services Incident Report which was put in evidence recorded that the "believed cause" was "unknown". It may be, I do not know, that the officer conducting the investigation might at least have been able to say where, in his opinion, the fire started and this might have thrown some light, on the known facts, on the possible cause of the fire. It seems to me to be a very dangerous approach, if I may say so, to have accepted all that the Appellant had said about the precautions taken, and by eliminating most of the likely causes somehow to draw an inference that there must, nevertheless, have been some act of negligence on the part of the Appellant or someone for whom he would be vicariously liable. 36. I am fortified in my view by what the Lord Justice Clerk had to say at the end of the passage I have cited from his judgment in Flannigan v. British Dyewood Co. Ltd. Some 15 years have passed since that case was decided and the same can be said today. 37. I have reached the conclusion that the Respondents, on the facts accepted and proved, did not successfully make out a case for the application of the maxim res ipsa loquitur so as to furnish evidence of negligence on which the judge was entitled to find for the plaintiffs. 38. I now turn to consider the judge's application of the rule in Rylands v. Fletcher. It will be recalled that he concluded, applying Mason v. Levy Auto Parts of England Ltd. [1967] 2 Q.B. 530, that keeping the plastic material in such quantity on the particular premises was, in the circumstances, a non-natural user of them. This "constituted an extraordinary danger, created by the defendant. There was a real risk of it being ignited, and the consequent fire raging with great intensity, being difficult to extinguish, and causing damage to neighbours." 39. I do not think it can be doubted, as the plaintiffs acknowledged by their pleadings and the judge recognised, that on the present state of the authorities there is a requirement of "non-natural user" which has to be satisfied before the Rylands v. Fletcher rule will apply. The precise parameters of this concept have been the subject of much learned writing and we have been referred to all the relevant leading text books. I do not propose to review what the authors have to say on the subject but, like McKenna J. in Mason v. Levy Auto Parts, I have prepared myself for expressing my views by reading what they have written. 40. Lord Cairns spoke of "natural" and "non-natural use" in Rylands v. Fletcher itself (1868) L.R. 3 H.L. 330, at p.339. It is clear that Lord Cairns was using the word "natural" in one of its principal dictionary meanings, that is to say "existing in or by nature, not artificial". But, in giving the opinion of Privy Council in Rickards v. Lothian [1913] A.C. 263, Lord Moulton pointed out, at p.280 -
41. The case concerned the escape of water from a lavatory on an upper floor to the floor below. On the same page of the report, Lord Moulton expressly approved the view expressed by Wright J. in Blake v. Woolf [1898] 2 Q.B. 426 - "that general rule is, however, qualified by some exceptions, one of which is that where a person is using his land in the ordinary way and damage happens to the adjoining property without any default or negligence on his part, no liability attaches to him." 42. Before I go any further, I consider it would be wise to bear in mind (for it is very relevant here and may be overlooked) what Lord Porter said in Read v. J. Lyons & Co. Ltd. [1947] A.C. 156, at p.176 -
43. While it is true that in Rickards v. Lothian the Privy Council held that the defendant was not liable unless he instigated the act causing damage or the jury found that he ought reasonably to have prevented it, the Judicial Committee's alternative conclusion that Rylands v. Fletcher did not apply where there had been ordinary and proper use of the defendant's house is of great authority even if it could be said (which I very much doubt) that Lord Moulton's opinion was not strictly binding on us. It should be noted that this view of the law was cited with approval (albeit in obiter passages) by several of their Lordships in Read v. Lyons (Lord Simon at p.169, Lord Porter at p.176 and Lord Uthwatt, at p.187). 44. It seems to me to be self-evident that what McKenna J. in Mason v. Levy Auto Parts referred to us the "character of the neighbourhood" is a vital consideration, Lawton J.'s remarks in British Celanese v. Hunt [1969] 1 W.L.R. 959 at p.963 are also worth recalling -
45. To keep several tins of petrol in a private garage under a block of flats is one thing, to store petrol in far greater bulk in properly constructed tanks beneath the forecourt of a petrol station (exercising all reasonable care) quite another. To take another example, it is difficult to imagine that nowadays one would bring oneself within the rule in Rylands v. Fletcher if the L.P.G gas cylinder which lighted one's cooker caught fire and caused damage to one's neighbour. It is equally difficult to imagine that a householder would escape liability under the rule if he chose to store a considerable number of such cylinders in a storeroom in his flat. The decision, surely, would not turn on the danger of explosion and resulting damage by using L.P.G. The former use in the 1980's would be entirely ordinary and proper - the latter use would be, recalling the words of Lord Moulton in Rickards v. Lothian a "special use bringing with it increased danger to others and... not... ordinary use of the land...". I do not think it can now be right to consider the important element of increased danger in isolation, even though the words of Lord Cairns might appear to justify such an approach. 46. Nearer home, if a person chose to fill one of his bedrooms in a block of residential flats with easily combustible plastic toys because he assembled or stored them there, and they caught fire, in my view he would be likely to be held liable, whether an act of negligence could be established or not, because his user of his flat was not ordinary use, but a special use bringing increased danger to others. 47. As the judge found, the Appellant's premises were on 8th floor of a 13 storey industrial building. They were used "for the final production work on plastic dolls and to store them for a short period between production and shipping". So far it could not be said that this was a non-natural use of the land, and the judge did not so hold. I respectfully agree with McKenna J. in Mason v. Levy Auto Parts that prima facie natural user can become non-natural user in particular circumstances. It would be impossible and undesirable to make any attempt to lay down what such circumstances might be. On the facts of that case he concluded that the defendants' use of their land was non-natural having regard to -
48. In so far as the rule in Rylands v. Fletcher is concerned, it seems that the trial judge considered that it was the mere keeping of such a large quantity of plastic dolls in the factory that rendered its use non-natural. Although he mentioned Mason v. Levy Auto Parts, if I may say so with respect, he did not analyse McKenna J.'s decision. 49. In an earlier passage, to which I will presently return, the judge does refer to the conditions in which the dolls were kept. But I can find no evidence that there was anything significant about these conditions. The judge accepted that this was an industrial building with walls and floors that were concrete and fire resistant. No statute or regulation was breached. In the particulars of negligence it is pleaded that the Appellant failed to keep the goods in a special heat-resistant compartment. I do not know quite what is meant by that, but there was no evidence as to what extent the damage to the Respondent's premises would have been reduced by compliance with this somewhat vague and arbitrary requirement. 50. Nor do I know upon what criteria the judge decided that the rumber of plastic dolls was such as to render the quantity a nonnatural user of the premises. It must be remarked that the factory was quite large (6,000 sq. ft.) and that the judge found that one-third of the area was covered by the residue of the dolls after the fire. Accepting the judge's finding "that the volume of plastic before the fire would be greater, as when plastic melts its volume decreases", the evidence seems to me to fall far short of establishing that there was present an unusual or excessive quantity of dolls having regard to the available space. A manufacturer must be allowed to make the maximum use of his premises within reasonable limits. There would be little point in acquiring premises of 6,000 sq. feet in area, if profitable use could not reasonably be made of them. Indeed one of the Appellant's witnesses, a Miss Yip Lim, told the court that the dolls were stacked to less than a man's height and the piles of dolls did not cover half the floor area. In my view there was insufficient evidence before the judge to justify the conclusion he reached on the point of non-natural user, based simply on the quantity of dolls kept on the premises. 51. McKenna J. in Mason v. Levy Auto Parts, after answering the questions he had posed at p.542 went on to say, at p.543 -
52. In our case, the judge went further, and held -
53. In this context, the precautions taken by the Appellant seem to me to be very relevant, and must surely negative any finding of negligence. As we have seen, the premises had fire resistant floors and walls. The judge found the appellant to be an honest witness and accepted that when the factory was shut down for the day all the windows were shut and the electricity was switched off at the mains. There were "No Smoking" signs and none of his employees smoked, although he himself did so in his office. The Appellant had also said in evidence that the man who locked up and the woman who swept up did not smoke, and had asserted that they were always very careful about fire precautions. No heaters were left on. 54. In another passage the judge remarked that no watchman was left on the premises when the factory closed down for the day. One of the particulars of negligence pleaded was that the appellant did not employ a night watchman. I will only say that if, as Mr. Mumford suggested, this was indeed a factor to be weighed in the scales, I respectfully disagree. 55. In conclusion, in my judgment, there was no evidence of negligence fit to be left to a notional jury. Taking all the circumstances into account, the Appellant was using his premises in the exercise of his ordinary rights, in a way that was for the general benefit of the community. Speaking of the year in which this cause of action arose, the official publication "Hong Kong 1983" states, at p.20: "Hong Kong continues to be the world's largest supplier of toys, which represented the bulk of the plastic industry's output." 56. The Respondents were, of course, entirely blameless and suffered damage but the law does not permit a decision to be based on notions of upon whom, in fairness, the loss should fall. 57. I would therefore allow the appeal.
Kempster, J.: 58. By the provisions of the Application of English Law Ordinance (Cap.88) the Fire Prevention (Metropolis) Act 1774 is incorporated in the Law of Hong Kong. It follows that there is no absolute liability on an occupier to make good damage caused by the spread of fire from his premises as such. But a neighbouring occupier can recover damages if he establishes negligence. This the plaintiffs here sought to do by invoking the maxim "res ipsa loquitur".
"The relevant time" for the purposes of the case under appeal was the time the evidence, including that of the defendant, was concluded. 59. From the terms of his judgment it appears that the learned trial judge felt able to do more than find that the plaintiffs were entitled to succeed although the precise cause of the fire could not be established. In effect he found that the fire was caused by a smouldering cigarette left burning by one of the defendant's employees. The evidence, I am satisfied, in no way supported so precise a finding. As to the fall-back situation it was at one stage conceded by Mr. Mumford, who appeared for the plaintiffs, that the mere occurrence of a fire in industrial premises is not of itself evidence of negligence against the occupier. Subsequently he resiled from this concession submitting:
Whilst I find the latter robust contention attractive I am persuaded to find that an outbreak of fire does not of itself call for explanation by the occupier of the premises in question, albeit the operations there carried on were under his exclusive control, so as to render the maxim applicable. In so concluding I am particularly indebted to the decisions of the Scottish Courts in Flannigan v. British Dyewood Co. Ltd.(2) That case, like the present, concerned industrial premises where the cause of the outbreak of a fire was unknown. 60. Mr. Mumford went on to submit that in the absence of evidence of any electrical storm; of the presence of a third party; of available electric current to actuate any lighting, heating, refrigeration, ventilation or other machinery or appliances on the premises or of any suggestion that the partly completed dolls were liable to spontaneous combustion the state of the evidence was such as to entitle the learned judge to find, on a balance of probabilities, that the outbreak of the fire, whatever its cause, pointed to a failure by the defendant to take due care for the plaintiffs' safety. Although in the most favourable position to assess the effect of the evidence I think that O'Connor J. was much influenced by his conclusion as to the actual cause of the fire. It seems to me he failed to take into account that there was no evidence either way as to the existence of an electrical storm on the relevant night or of the presence of a third party; that there may have been more than one electrical system so that the operation of one main switch may not have been conclusive as to the supply of current to the premises as a whole; that there was probably a length of live-wire leading from outside the premises to such switch within the curtilage and that heating or smouldering from an electrical fault, as from a discarded cigarette, could have commenced before the premises were secured at 6.40 p.m. on the night of 2nd September 1982 and have continued and increased. It is possible even that the switch itself was defective. In these circumstances I find that the evidence at the close of the hearing was insufficient to support the finding "res ipsa loquitur". 61. The learned judge also found that the defendant was negligent in keeping four tons of plastic dolls on the premises "in such conditions". The relevant allegations in the Re-Amended Statement of Claim were to the effect that the defendant had failed either to provide a night watchman, which was conceded, or to keep the goods in a special heat-resistant compartment. However, the relevant evidence showed that in industrial buildings the walls and floors are in any event concrete and fire-resistant and that few companies in Hong Kong make a practice of storing goods of this nature in separate compartments. Taking into account the evidence as to the danger involved, to which I shall shortly refer, I do not consider that the alternative finding of negligence in relation to storage can be supported either. 62. In the further alternative the learned judge found the defendant liable, regardless of fault, by analogy with the principles formulated in Rylands v. Fletcher.(3)
That case involved a claim for damages by an adjacent occupier resulting from the overflow of water from a lavatory basin in premises occupied by the defendant in circumstances where the water tap had been turned on full and the waste-pipe plugged by the malicious act of a third party. The user was held ordinary and proper and the occupier was absolved from liability. 63. On September 14th, 1916, a disastrous explosion took place at a munitions factory in Rainham, Essex. It resulted from an outbreak of fire causing barrels of Di/nitro/phenol to explode. Owners of adjacent property who suffered damage claimed to recover their loss from the occupiers of the factory and others. The trial was conducted by Scrutton L.J. sitting as an additional judge of the Queen's Bench Division. As appears from the report of the hearing in the Court of Appeal Belvedere Fish Guano Co. v. Rainham Chemical Works(5) Scrutton L.J., referring to Rylands v. Fletcher,(3) said:
The qualities of Di/nitro/phenol as an explosive were not accurately known at the time. In the Court of Appeal Atkin L.J. said:
Lord Sumner in his speech referred to an obligation
64. In Read v. Lyons & Co. Ltd.(9) Lord Macmillan, referring to Rainham Chemical Works v. Belvedere Fish Guano Co.,(5) said:
In the same case, Viscount Simon referred to
he said
65. In the meanwhile, in Musgrove v. Pandelis,(13) Bankes L.J. had posed the material question in that case as:
66. He as well as the other members of the Court found that the motor car was dangerous within that principle and that the defendant, who had brought it upon his premises, was responsible for damage suffered by the plaintiff as a result of the fire ignited by the attempt of the defendant's servant to start its engine. No mention was made of natural or non-natural user of land. A Court might well come to a different conclusion about a car manufactured within the last few years! 67. Lawton J., as he then was, considered many of the passages to which I have just referred in British Celanese Ltd. v. A.H. Hunt Ltd.(14) and held that:
68. In Mason v. Levy Auto Parts of England Ltd.(15) which, although decided some two years earlier, was not, apparently, cited in British Celanese Ltd. v. A.H. Hunt Ltd.(14) MacKenna J. had held that a defendant would be held liable to an adjacent occupier if
In relation to his own test of non-natural use the learned judge said:
I share the feelings of MacKenna J. as to the difficulty of the natural user test. To some extent the Court may be accused of making a value judgment in applying it.
69. The damage suffered by the plaintiffs was water damage from the firemen's hoses and heat damage to their machines. The fire itself had not escaped but, having regard to what was said by Scrutton L.J. in Belvedere Fish Guano Co. v. Rainham Chemical Works(5) I do not think this affects the issue of liability. 70. The evidence of unusual danger available at trial was that of a Mr. Yeung Thio-thou, an insurance loss adjuster, who said that "plastic material once alight is difficult to extinguish" and that
When he said "more heat" and "more fire" he was obviously speaking in relative terms but very many materials used in processes of manufacture may produce more heat and cause more fire than others. The dolls were stored in circumstances already described. Again I feel unable, on the evidence, to agree with the learned trial judge who found as a fact that
and it appears to me that common type plastic dolls are not dangerous materials and that their storage involved no special danger in an industrial building in an industrial area of Hong Kong. In such context, in the year 1982, both their manufacture and storage constituted a proper and natural user of the relevant premises and tended to the general benefit of the community. 71. I too would allow the appeal and in so doing adopt the observations of my Lords Cons and Fuad, JJ.A. as to our relative advantage in having heard argument from Counsel on both sides.
(1) (1971) 1 W.L.R. 749 at p.775. (2) (1969) Scots Law Times 223 at p.227 and (1970) Scots Law Times 285 at pp.288 to 289. (3) L.R. 3 H.L. 330 (4) (1913) A.C. 263 at pp.275, 276 and 280. (5) (1920) 2 K.B. 487 at p.500 (6) (1920) 2 K.B. 487 at p.502 (7) (1921) 2 A.C. 465 at p.471 (8) (1921) 2 A.C. 465 at p.480 (9) (1947) A.C. 156 at p.174 (4) (1913) A.C. 263 (5) (1921) 2 A.C. 465 at p.471 (10) (1947) A.C. 156 at p.169 (11) (1947) A.C. 156 at p.176 (12) (1947) A.C. 156 at p.187 (13) (1919) 2 K.B. 43 at p.47 (14) (1969) 2 All E.R. 1252 at pp.1256/7 (15) (1967) 2 Q.B. 530 at p.542 (16) Smeaton v. Ilford Corporation (1954) Ch. 450 at p.471 per Upjohn J. Representation: Mr. Mumford (Susan Liang & Co.) for Plaintiffs/Respondents Mr. Bell (Hampton, Winter & Glynn) for Defendant/Appellant. |