Les Soeure Missionarries De Notre-dame Des Anges De Lennoxville a Foreign Corporation Which Has Established a Place of Business in Hong Kong v. Arthur Samy and Others
Read the full judgment text of HCA 671/1966 on BabelCite. This High Court CFI judgment was delivered on 23 July 1968.
1. Sometime in 1966 the plaintiff issued a writ against the defendants claiming damages for wrongfully taking away the support of the plaintiff's land and for injury caused to the said land by their negligence. By an order dated December 16, 1967 certain issues which were agreed between the parties were referred to a special referee, Professor Sean Mackay, for trial and report to the Court.
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HCA000671/1966 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO.671 OF 1966 -----------------
----------------- Coram: Briggs, J. Date of Judgment: 23 July 1968 ----------------- JUDGMENT ----------------- 1. Sometime in 1966 the plaintiff issued a writ against the defendants claiming damages for wrongfully taking away the support of the plaintiff's land and for injury caused to the said land by their negligence. By an order dated December 16, 1967 certain issues which were agreed between the parties were referred to a special referee, Professor Sean Mackay, for trial and report to the Court. 2. The central fact of the litigation is that a retaining wall which was in existence between the land of the parties collapsed with serious consequences. The issues agreed to be triedhave been set out in a document of some 25 paragraphs. They are all concerned with technical matters requiring expert knowledge of engineering. They deal with such matters as the causes of the collapse of the retaining wall, whether and if so, what measures should have been taken to prevent this and if so by whom, the cost of rebuilding the wall or repairing the damage caused, the amount of such sum and the responsibility for the sum assessed. 3. It was for this reason that the parties chose as their special referee Professor Sean Mackay who is the professor of engineering at the University of Hong Kong. 4. The parties duly appeared before the special referee and expert evidence was called by both sides. Differences having arisen two matters have been referred to the Court for decision as follows:-
5. As to the first question it is obvious I think that the parties chose Professor Mackay because he is a professor of civil engineering. They intended that he should make use of his expert skill and knowledge and experience. 6. The case for the defendant at least in part is that the collapse of the retaining wall was the result of a bearing failure and not of a slip circule failure. While addressing the special referee and after all the evidence had been called it seems that counsel for the plaintiff suggested that if the theory of the defendant was correct i.e. if there had been a bearing failure, more of the retaining wall towards the University side of the site would have fallen. And he wanted the special referee to make use of his expert knowledge when considering this matter. The question had not been canvassed by the witnesses called nor had the plaintiff given an opportunity to the experts called by the defendant to answer the point. 7. I can see nothing wrong with this. If either party had wanted to call expert evidence on the point I am sure the special referee would have given permission to do so though it was very late in the proceedings. 8. The true position is clearly set out in Russell on Arbitration (17th edition) at page 183. 9. A special referee must of course decide upon the evidence put before him by the parties and not upon materials obtained elsewhere. He himself is not a witness as to the facts and he must not make use of knowledge of facts which he has obtained elsewhere. However he may make use of his expert knowledge when assessing the evidence and indeed the parties here must have been presumed to have meant that Professor Mackay should do this or else he would not have been appointed. 10. In my view the special referee will have to make use of his expert knowledge as an engineer to deal with the specific point raised by counsel for the plaintiff. All that the question seems to suggest is that the evidence called does not support the theory that there was a bearing failure. This can only be answered by an expert making the fullest use of his knowledge and experience. 11. As to the second question. There is no evidence of the value of the land before and after the damage was done. The correct principle to apply is the cost of restoring the land to its condition previous to the fall of the retaining wall. 12. It appears that certain remedial work was done and one question for the decision of the special referee is whether the method used and the expenses incurred were reasonable. 13. In reaching a conclusion regard must be had to all the circumstances. The element of time was of considerable importance to the plaintiff, for they were erecting a school which was due to open in 1966, an exclusion order applied to the land, and there was the danger of the site and of any remedial work being affected by rain. But these are not the only circumstances which must be considered. What the common practice in Hong Kong is important. And the position of the defendant must not be ignored and it is for consideration that alternative schemes to that undertaker were suggested by the defendants. Further the matter seems to have been complicated by a clash of personalities between persons representing the two sides. 14. Counsel for the plaintiff urged that if the plaintiff acted reasonably and on proper advice he could recover the cost of the remedial work. In Lodge Holes Colliery Co. v. Wednesbury Corporation(1) Lord Loreburn said:
In Banco de Portugal v. Waterlow(2) Lord Macmillan had this to say:
15. I think that these two extracts accurately state the law. What the special referee has to decide is first which party was to blame, and then whether the remedial measures which were taken were reasonable and taken on proper advice: not whether other remedial measures could have been undertaken. In reaching his decision as to the reasonability of the measures taken he must as I have said take all the circumstances of the case into consideration. 16. The defendant drew my attention to Durbirshire v. Warner(3). In that case the plaintiff owned a Vintage motor car which was damaged. He had it repaired and this cost more than a replacement of the car would have cost. It was held that he could not recover this sum as he had not acted reasonably vis a vis the defendant. With respect I do not think that this case is relevant to the present position before me. That case dealt with the repair or the replacement of a chattel. The plaintiff was entitled to recover such a sum as would place him in as good a position as if the damage to the vehicle had not occurred. This could have been effected by replacing the vehicle by another similar second-hand car. He chose to have the car repaired though he was warned that this would be uneconomic by the garage which effected the repairs. Of course we are not dealing with a chattel in this case. There is no question here of replacement. The plaintiff could not have bought land to replace that which had suffered injury. 17. The defendant also relied on Ford v. White(4). That was a case of damages being awarded against a solicitor for his negligence and all that it decides is that where no damages flow from the breach none can be recovered. 18. To sum up the answer to the first question is that the special referee may use his expert knowledge and experience to determine the issues referred to him. And the answer to the second question is that the correct principle to apply in assessing damages is that of restitutio in integrum. Both answers being qualified in the manner set out in this judgment.
Representation: O.V. Cheung Q.C. & A. Zimmern (Lo & Lo) for Plaintiff. B. Liu (Woo & Kwan) for Defendants. (1) (1908) A.C. 325. (2) (1932) A.C. 506. (3) (1963) 1 W.L.R. (4) (1964) 2 All E.R. 755. |