Ronald Claud Hardwick and Another v. Spence Robinson (A Firm)

HCA001918/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1918 OF 1973

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Coram: Cons, J.

Date of Judgment: 13 June 1975

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JUDGMENT

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1. Captain Hardwick, the 1st plaintiff in this action, has for many many years been a pilot for Cathay Pacific Airways. He is married with three teenage daughters and a son. His wife is the 2nd plaintiff.

2. Until five years ago they lived in a flat along Clear Water Bay Road. Then they decided to have their own house built. This was partly to accommodate their growing family, and partly because they hoped to spend their retirement here. The site they chose was in Silver Strand Beach Road, approximately 200 feet above the sea. There was already a house to one side, but the other side was vacant land. Behind the site the hillside was undisturbed. It rose very steeply to a height of little over 600 feet. As architects to design and supervise the construction of their house they engaged Spence Robinson, the defendant firm. The actual person who took charge was one of the partners, a Mr. Haffner. He produced a very attractive house, but it had one disadvantage. When the very heavy rain came it flooded. All told this happened four times.

3. The first was in August 1971, when Typhoon Rose came. The house was still in the course of construction although it was nearly completed. Marks seen on the walls the following day indicated that the water had reached a level of about four feet in relation to what might be termed the ground floor. It is in fact a single storeyed house but it is built on split or separate levels. The children's bedrooms are higher than the master bedroom and living accommodation. The architect was not unduly worried by the flooding. In his experience it frequently occurs on building sites. Moreover at that time, according to his evidence, the drainage system had not been completed and was functioning only slightly if at all. He suggested leaving open the side door in wet weather or cutting 6 inches off the bottom or replacing it with a grill. This side door gives access to the backyard and then the patio area where the water had probably accumulated before breaking through the window into the house. The plaintiffs do not necessarily accept Mr. Haffner's evidence on this point, but I am satisfied it is accurate. Captain Hardwick is a very practical-minded man. He took a detailed personal interest in the construction of the house, and would have been aware, at any given moment, of the exact state of each part of the work. If the drains were fully functional when Typhoon Rose came it would mean that Captain Hardwick acquiesced in a drainage system in which he believed that the leaving open of a side door was an integral and vital feature. I cannot accept that. I do not think the open door was ever intended or accepted as more than a comment that it would assist in the disposal of the surface water that tends to collect in many backyards or kitchen areas during very heavy rain. It is put forward as a distinct and separate ground of negligence in the statement of claim. In this particular respect the claim has no merit.

4. The second flooding occurred during the night of the 2nd and 3rd May 1972. By then the house had been long completed and the family moved in. On that occasion only Mrs. Hardwick and the children were at home. Captain Hardwick was on duty in Jakarta. When Mrs. Hardwick went to bed that night she had no expectation of heavy rain, it was only drizzling slightly. But when she was awakened in the middle of the night it was to find her bed floating and the house full of water. She tried to open the front and kitchen doors to let the water out but neither would budge. She started to open the livingroom window and it came away with the force of the water immediately that she touched it. That livingroom window is very large. It can be seen in photographs 5, 6 and 11 of document 3, and measures 3 feet 9 inches by 5 feet 4 inches. Even so the waters did not abate. On the contrary they rose and before long Mrs. Hardwick had to escape through the bathroom window at the end of the house and seek outside assistance from the police and from a friend who lived not far away. When the friend, a Mr. Lane, arrived he managed to prize open the front and side doors. There was nothing more that could be done that night. The children were taken in by the neighbours and Mrs. Hardwick remained in the house alone. The friend returned the following morning and took photographs of the damage. These appear in document 1. Other photographs are appended to the surveyor's report (document 3). The marks again showed that the water had risen to almost four feet at the back of the house and to about three feet in some rooms inside.

5. The third flooding took place soon afterwards, during the night of the 10th and the 11th May. This time Captain Hardwick was at home. The heavy rain came after midnight. Captain Hardwick described it as a terrible deluge. He immediately checked to see if the side door was open. It was. Even so the water started piling up in the patio area and Captain Hardwick took the view that the wisest way was to open the patio door and the front door so that the water could flow straight through the door and down the front steps. In this way there was no danger, but a great deal of mud and dirt was brought inside. Like the previous occasion, the water fused the electricity and it was pitch black everywhere.

6. The final flooding was on the 18th June. It was day time and for the first time it was possible to see really what was happening. Captain Hardwick saw that the water came down the hillside in such great quantities that the drain at the top of the garden just could not cope. By this I mean the drain on the south side. Both parties are agreed that no complaints can be made with regard to the drainage system on the northern boundary.

7. The situation on the southern side is that there is a natural water course down the hillside leading to the top of Captain Hardwick's boundary. When he purchased the land there had been a rough concrete nullah 2 feet 6 inches wide running from there down the whole length of the boundary. Originally the architect had intended to retain and rely upon that nullah with some improvements. But later he had agreed to Captain Hardwick's suggestion to use buried-pipes instead. Captain Hardwick thought this would be aesthetically more pleasing. What was finally designed and installed was a short length of open stepped channel, 2 feet 6 inches wide, running from the very top of the boundary down to a single-chambered catchpit. From that catchpit a 15-inch "spuncrete" pipe led down to another catchpit which should have been on roughly the same level as the house itself. And from that second catchpit an eighteen-inch "spuncrete" pipe led to another catchpit level with the road in front of the house. From there a culvert took the water beneath the road and on to the sea. "Spuncrete" pipes are concrete pipes made in a particular way that leaves them with a very smooth inner surface. On the uphill side of the topmost catchpit was a grill made from upright iron bars spaced about 3 inches apart. This section of the system can be seen in photographs 2 and 10 of document 3. And it was here that Captain Hardwick saw the trouble lay. The force of the water was such that it washed quantities of stone and other rubble down from the hillside above and these blocked the grill leading to the catchpit. The water surged over the catchpit instead of flowing through the grill into the pipe. For three hours during that storm Captain Hardwick sat on the catchpit cover and removed the stones as they came down. Finally exhaustion claimed its toll and he returned to the house. By then the water was already a few inches deep over the patio, so he adopted the same procedure as before, that is he opened the back and front doors and let the water flow through the house. At the same time he took the photographs that appear in document 2.

8. In December of the same year, i.e. 1972, Captain Hardwick hired a firm of consultant engineers to design and install a new system of drainage for that side of his land. The new system consisted of an open stepped channel 27 inches wide running the whole length of that boundary, with a double-chambered catchpit at the very top and an enlarged catchpit at the very bottom. The lower half of the channel was covered. There was also a small earth berm or wall and another small channel at the top designed to help feed the water into the system. Furthermore a large retaining wall was built behind the house and across the entire width of the garden. These works were started in April 1973 and completed in about June. There has been no flooding since. But for reasons which it is not necessary to set out, and which were mentioned by counsel, it would be quite wrong to attempt any conclusion from a direct comparison of the two systems.

9. Captain and Mrs. Hardwick now sue the architects for negligent discharge of their duties. To some extent this is admitted. No calculations were made in advance of the amount of water that had to be dealt with. Such calculations are based either upon a survey made especially for that purpose or upon contour maps prepared generally by the Crown Lands and Survey Office of Government. A survey is not usually made. It is expensive. In general it is the contour maps that are relied upon. When on this occasion Mr. Haffner tried to obtain the appropriate map he was told it was not available, so he proceeded to use his own judgment based on what he had observed on his inspection of the area and on the state of the existing rough nullahs. In some cases this might be sufficient. But he himself admitted in evidence that this was not one of those cases. Calculations should have been made.

10. Mr. Chang, for the plaintiffs, submits that this admission entitles him to judgment; that his cause of action is grounded in contract, not in tort, and that proof of breach even without damage is sufficient to complete that cause. Technically he is correct. But practically it is of little use to his clients. It would only entitle them to recover nominal damages. To recover compensatory damages it must be shown that the breach was the cause of the loss. In the present circumstances this means that the plaintiffs must show that there was negligence in the design or the construction of the drainage system, not just in the matters that should have gone before.

11. There is some evidence of such negligence. The system quite obviously did not work. There is no suggestion that the rains in 1972 were so intense that no reasonable system would have coped. There is no suggestion that the site was in any way so unusual that it presented dangers which would not have been apparent to the ordinarily competent architect. There is no suggestion that the architect was required to design works of an untried or experimental nature. The system should have worked. Its failure is on the face of it evidence of negligence and throws on to the defendants the burden of showing that there was in fact no negligence. In this respect several matters must be considered.

12. First there is a question of blockage. I have already mentioned Captain Hardwick's evidence as to the stones and rubble that blocked the grill at the topmost catchpit on the fourth flooding. He gave further evidence that on the morning after the third flooding he found the grill blocked to about one-third of its area. The evidence as to the state of the grill after the second flooding was not satisfactory. Captain Hughes - from the surveyors firm of Wood & Browne - was at the house the following afternoon. He reported that all water ways and drains were completely free from blockage. I accept that report. Even though the primary purpose of his visit was to assess and report on the actual damage rather than its cause he did consider the possibilities and he went round the entire system. I am sure that if that catchpit grill had been blocked on that occasion he would have noticed it and would not have reported as he did. Yet on the other hand the evidence of Captain Hardwick is that he found the grill completely blocked the day after the inspection of Captain Hughes. It is possible that Captain Hardwick has mistaken his days and that he did in fact get there before Captain Hughes. He must have been under great stress at that time. Or it may be that he is mistaking the incident altogether and that someone else got there before Captain Hughes. Mrs. Hardwick thinks she may have asked Mr. Lane to have a look the following morning. We also know the police came during that night. In any event I think it very probable that the grill did become blocked at least to some extent, during the night of the 2nd and 3rd May. It is reasonable to assume this from the fact that it did so on the two subsequent occasions. At the same time I do not accept that the blockage was due to lack of routine maintenance. I accept the evidence of Captain Hardwick that even before May he had made periodical checks upon his drains. I think that would be in his nature. I also see no reason to doubt his evidence about the amount of stones washed down during the fourth flooding. The land above the house is unformed scrub land. Mr. Fu described it as likely to produce falling rocks and rubble. Some of the photographs confirm that evidence. In Mr. Fu's opinion a careful architect would have made provision for those rocks and rubble. He did so himself by installing the double-chambered catchpit instead of the single-chambered one installed by the defendant and which became so easily blocked. I appreciate that in answer to one question in cross-examination he said that he would not have been anxious about loose stones being washed down, but at that stage he was dealing with the question of the stability of the slope and not the possible blocking of the drains. In my view some blockage during heavy rain should have been foreseen.

13. The second matter to be considered is whether the system, even when not blocked in any way, was able to deal with the amount of water that came down. It was said for the defence that it must have been for the records of the Royal Observatory show that there were many days when there was heavy rainfall and yet no flooding occurred and also that while Captain Hardwick was able to keep pace with the stones on the fourth occasion the water did not back up in the pipes. There is some force in these observations but they cannot take the matter very far, for it is not the amount of rainfall that matters but its intensity. And there is another piece of evidence which to my mind is important in this respect. Captain Hardwick said that even while he was removing the stones the water in the open channel was at times overflowing and running down the sides. This would indicate that that channel was not sufficiently large. Unfortunately this point was not taken in the technical discussions nor were any calculations made about it. Yet it was the main collecting point for the whole system. If that failed it would not matter how good was the system below it.

14. I was presented with calculations as to the capacity of the pipes. It is not necessary to go into details. It is correct I think to say that eventually the calculations of Mr. Fu still showed that the pipes actually put in were not large enough, while those of Mr. Haffner showed that pipes should have been adequate. The difference lies in the choice of table or graph by which the final pipe size is selected once the other factors have been established. Mr. Fu relies upon a photostat copy of a graph that he found in the office of his previous employers in Hong Kong, a well known firm of Civil Engineers. Mr. Haffner relies upon a table taken from a text book in his possession. If I had to choose I think I would prefer the photostat method. The text book table had to be arithmetically extended to cover the actual conditions on the site. It may have been written for lands somewhat different from Hong Kong. On the other hand the photostat physically came from a local firm even if there was no evidence that any one else in the firm ever used it. However, for two more practical reasons I tend to think the system was not adequate. Firstly I find it difficult to believe that an amount of water that still rises to a height of 12 inches when flowing through two open doorways at the same time could ever be satisfactorily contained in a 15-inch pipe, however smooth its interior. Secondly I was told that details of the system had been submitted for expert analysis and that a report had been received back. If that report had been favourable it would surely have been produced.

15. The other matters that remain to be considered can conveniently be taken together under the heading of "interference by Captain Hardwick". First it is said that contrary to the express instructions of the architect Captain Hardwick caused the floor level of parts of the kitchen yard to be raised to the level of the surrounding yard. This is admitted but there is no evidence to show how this caused or aggravated the flooding and I am unable to see for myself how it did. Similarly Captain Hardwick caused the lowest catchpit to be covered with earth and then turfed over. This is not a wise course and is apparently not sanctioned by the Building Authority. But the objection to it is that it makes inspection and cleaning difficult, not that it impairs efficiency. Finally, it is pleaded that Captain Hardwick caused the middle catchpit to be moved some 10 feet from its designed position, thereby increasing its depth and decreasing the gradient of the pipe that led into it. There is no evidence that Captain Hardwick did order that change to be made. He denies it and thinks it may have been done on the contractors' own initiative when the contractor found difficult rock formation at the proper position. The contractor was not called as a witness. Furthermore it was argued that in any event the architect should have discovered the move upon inspection and at least drawn attention to the danger if any that it presented It is not always easy to decide the extent of the architect's duty of inspection vis-a-vis the building owner. But in the absence of independent evidence I would tend to the view that it would cover the correct positioning of an item on the plans if incorrect positioning could materially impair the efficiency or safety of that item. But I express no considered opinion for it seems to me that this was not the case here. The difference between the gradient of that particular pipe as it was designed and the gradient as it was eventually constructed is so small that in the circumstances that followed it had no appreciable effect.

16. These are the matters I have considered with regard to the efficacy of the drainage. I have applied my mind to them as best I can I would have welcomed further expert assistance, somebody perhaps from the University or from the Public Works Department. I have come to the conclusion that the defendant has not shown that there was no negligence has not rebutted the presumption that was raised by the failure.

17. Many items of damage have been agreed. For reinstating the inside and outside of the house, for cleaning or repairing or replacing various items of furniture and such like, the figure is $87,270. There is also no dispute as to the cost of the remedial work that has been done or that those costs have been settled by Captain Hardwick. It is however disputed as to how much should be recovered. To start with, the cost of the new channel and catchpit must be reduced by 15% because they were built to a larger specification than was necessary following an error in the calculation made by Mr. Fu. Assuming Mr. Litton's arithmetic to be correct the proper amount for that part of the remedial work is $7,243. To this must be added the $8,844 thrown away on the original work.

18. The bone of contention, however is the retaining wall that was constructed right across the garden at a total cost of almost $56,000. Mr. Fu said this work was necessary as a second line of defence against the water and the stones that would be brought down with it. With respect to Mr. Fu I find this difficult to follow. I would have thought myself the object of a retaining wall is as the name implies, to retain the hillside itself and not just to deflect water and rubble that come off it. I would also have thought in the absence of independent evidence as to the general practice that where adequate and suitable drainage is constructed a second line of defence as such is not necessary. It was suggested for the defendant that the retaining wall was deliberately built with the ulterior motive of supporting the swimming pool that has since been built above it. I do not think that this is so. I accept Mr. Fu's evidence that no swimming pool was mentioned to him at any stage. But I do venture to think that he was over cautious. The defendant should not be responsible for the cost of constructing that wall. After making this decision I was in some doubt as to whether or not some reduction should therefore be made in the amount awarded to cover the fees paid to Mr. Fu. These were $4,860. How this figure is reached I do not know. If such fees are like those of an architect, based on the cost of the work finally carried out then it would not be fair to lay the whole amount at the door of the defendant. On the other hand they may be calculated in some completely different fashion and reflect the consultancy angle. The matter was not canvassed before me and in those circumstances I think it proper that the whole amount should be allowed.

19. Finally I was asked to include in the damages something to compensate for the mental distress of the plaintiffs, i.e. the shock occasioned at the time of the floodings, particularly that of the 2nd May, and for the fear and natural apprehension at having to live for some time in a house liable to be flooded in heavy rain. The claim is based on the recent case of Jarvis v. Swans Tours Ltd.⁽¹⁾. There damages for disappointment were awarded when the actual conditions found on a packaged holiday houseparty in Switzerland bore little or no relation to the glowing promises of the brochure. It is clear from the judgment given that what might be termed the mental element may be a relevant consideration in future assessment of damages for breach of contract. That possibility had already been envisaged in McGregor on Damages 13th Edition, para 68, and followed in a Scottish case there quoted. I have not found this an easy matter to decide but have eventually come to the conclusion that the circumstances do justify an award under this head It was not a purely commercial contract like for example a contract to design a block of flats. It as a contract with a very personal flavour. Therein I think is the distinction upon which those cases are based.

20. The amount to be awarded is equally difficult. There is hardly anything to guide me. I make an award of $2,500 to each plaintiff. I should add that in this respect as indeed in the case as a whole, I assume that Mrs. Hardwick was a party to the contract and that the use of the word "plaintiff" in the singular in para. 5 of the statement of claim is only a typographical error. Throughout the entire proceedings Mr. Chang stressed the contractual nature of the claims and no objection to the inclusion of Mrs. Hardwick has been taken.

21. Judgment is therefore entered in favour of both plaintiffs in the total sum of $113 217 and interest thereon at the customary rate of 8% from 20th July 1973 up to today.

Representation:

Denis Chang (Helen A. Lo & Co.) for both plaintiffs.

Henry Litton, Q.C. and Ching Wong (Johnson, Stokes & Master) for defendant.

(1) [1973] 1 All E.R. 73