Chan Kwok on, Peter and Another v. Roger Thomas and Others

HCA010237/1983

Action No. 10237 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Hunter.

Dates of Hearing: 1st to 4th May, 1984 and 24th to 26th September 1984.

Date of Delivery of Judgment: 27th September 1984.

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JUDGMENT

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1. This unfortunate dispute arises between former neighbours at a housing development known as The Riviera, Silver Strand, Clearwater Bay. The 1st plaintiff sues as occupier and the 2nd plaintiff as owner of House No. 30 at that development. The 1st defendant is sued as occupier and the 2nd defendant as owner of House No. 29. The principal dispute arises between the plaintiffs and the 1st defendant, because on the 8th April 1983 a drainage channel at the rear of No. 30 became blocked, and water cascaded through the house starting at the first floor level and then running down the stairs to the ground floor level. It was somewhat evil smelling flood water, which, did not inconsiderable damage to the premises and the furnishings.

2. The plaintiffs in this action claim that it was the 1st defendant's fault. They say that he inserted a grille or grid in the line of this drainage channel not long before the incident which caused the blockage and the flooding. The 1st defendant admits that he erected this grille; but he says he was justified in so doing, that it was not a potential nuisance, and did not cause the flood. That is the main issue which arises in this litigation.

3. It is necessary by way of history to go back to August 1981 when in anticipation of this development, a Deed of Mutual Covenant was entered into, which was intended to regulate the rights of the owners of the properties that were thereafter to be erected. It is only necessary to notice two things about this Deed which was entered into between a company described as 1st owner, a gentleman described as second owner and the 3rd defendants as managers.

4. The first point is that by clause 2 of the Deed the intention was that all future owners were to have the benefit of certain easements and privileges set out in the second schedule. One of those easements or privileges recorded in the second schedule (it is paragraph A3) was "the free and uninterrupted passage and running of water .... through the drains and water-courses." The water-course in question was one which was covered by that provision in the document and intended for use by all the owners.

5. The second point to note is that this agreement gave wide powers and imposed wide obligations upon the managers. It also contained an exclusion clause which says that the managers were not to be liable in respect of any act, matter or thing done or omitted to be done that was not an act of "wilful negligence".

6. Now at the same time there were plans deposited showing what form the development was to take. These plans showed that there was to be constructed at the rear of the particular line of houses with which I am concerned, what was described by Mr. Sit, the plaintiff's expert, in his report as a "12 inch cement concrete service channel with precast concrete cover situated between the slope and the backyard which is on the first floor level of the house". The slope, he describes as a "50 degree cutting slope" protected by stone pitching. There was a steep slope, in other words behind the houses. Rain and other water was going to drain down that slope and also into this drainage channel at some point above these houses. I should add, that if one stands at the back of No. 30 and faces this drainage channel, the flow of water in the channel is from right to left. In other words, the water come into the drainage channel at No. 31 which is on one's right hand; flows from there into No. 30; and from No.30 down to No. 29.

7. Now the deposited plans to which I have already referred showed an intention to erect catch-pits in the line of this drainage channel. The plans appear to suggest that one catch-pit was going to be erected in each property, at the lower end of the channel on that property. In fact two catch-pits were constructed in each property; one at the upper and one at the lower end of the channel. Now those catch-pits were likewise meant to comply with another plan which is to be found at page 70A of the correspondence under the heading section A-A. In summary what was intended was this: (and I have taken these measurements very roughly for myself off the plan) The catch-pit was to be some 3-foot 9 inches deep. There were two channels, an inlet channel and an outlet channel, each of the order of 10 inches across. The inlet channel was intended to enter the catch-pit some 6 inches from the top; whereas the outlet channel left the catch-pit below this some 12 inches from the bottom. Protecting the exit to the outlet channel the plan shows what is described as an "MS grating" which I take to mean "mild steel grating".

8. The purpose of this is plain. It is obvious that the designer anticipated that debris would be washed down a surface water channel of this type. The purpose of these gratings was to make sure that this debris was not allowed to travel freely down the channel. It would be caught (this was the intent) by the gratings in each of these catch-pits, would then fall to the bottom of the catch-pit from whence it could readily be removed. The plans also provided for steps to be put into the catch-pit to aid such removal. In this way the design intention was that each householder would have to deal with such debris as was created on his property and no more. He would receive no debris from upstream; that would be caught by the grilles or gratings in his neighbour's catch-pit. Likewise he would pass nothing down, because that would be caught by the grilles or gratings in his catch-pit. So that one of the objects of these catch-pits was to prevent rubbish coming down this drainage channel. The other object of the catch-pits was to slow the flow of water coming down the channel.

9. Unfortunately, for reasons which have not been explained certainly to me, this design seems to have been torn up in the course of construction. Not a single grating was fitted to any of the catch-pits. How that happened, and how this came to be passed I know not. It is also an unfortunate occurrence that the managers of the property do not seem to have become aware of this. They do not seem to have investigated it. They do not seem to have put forward any proposals to the owners as to how this obvious hazard created by this change of design could be met. The failure to fit gratings to any of these catch-pits is in my judgment the single main cause of this dispute. It meant that there is no impediment to rubbish anywhere along this channel. All sorts of muck and rubbish can be washed into it and can be washed along it; and this has caused the troubles which have been debated in this litigation.

10. Now the first trouble occurred on the night of 28th and 29th May 1982. The sufferer on this occasion was the 1st defendant. He found his home being flooded, and upon investigation discovered that the outlet to the upper catch-pit on his property (by upper catch-pit I mean the catch-pit closest to No. 30) had become jammed with debris. The principal cause of the jamming seems to have been an old plimsole which in some way got across this outlet pipe. Other debris accumulated behind it, with the result that the whole channel became blocked. Once the channel is blocked, the design of these houses is such that the water can then rise in the backyard and enter the kitchen and thereafter the rest of the living rooms.

11. As a result of this accident the 1st defendant got in touch with the managers and put certain proposals to them. Unfortunately he was told by them that there was nothing wrong with the drainage system at all. Their letter said this: "We can only hope that the weather would not be so 'mischievous' as to defeat all the installed drainage, defence system which complies fully with governmental regulations." Nothing could have been further from the truth. It did hot comply with the regulations at all. To suggest that these very heavy rainfalls are not something which has to be guarded against in Hong Kong ignores reality.

12. In the absence of any assistance from this quarter the 1st defendant then devised his own remedy. The nature of that remedy is plainly shown in the photographs which are before me particularly photographs 8, 9, 10 and 11. What he did was this: As I have said there is a catch-pit on the lower side of No. 30, and the outlet pipe from that becomes the inlet pipe to the catch-pit on the upper side of No. 29. That pipe runs through the connecting wall and the measurement I have been given is 12 inches by 12 inches. From that point the water falls into the upper catch-pit of No. 29 and via the outlet pipe from that is then taken into the drainage channel passing through No. 29. This is plainly shown on these photographs. What the 1st defendant did  was to put in a grille at the extremity of the tunnel between the two catch-pits.

13. He recognised the problem about rubbish. He recognised that if he put that grille in the design location, it would not have been put in where he put it in, but it would have been put in on the outlet pipe to that catch-pit. That was the very point that became blocked on the occasion of his flooding. If he put it in at that point then he would have been in complete control of the situation. Any obstruction or any debris which was caught by that  grille would have fallen into his catch-pit, and could have been removed by him, and controlled by him. Instead he chose to put it at the inlet pipe in the position showed on the photograph. That meant that it was almost inevitable, that the rubbish which was bound to come down this pipe (in everybody's contemplation) would be obstructed by this grille, and would accumulate in the tunnel between the two catch-pits in a very inaccessible place.

14. This was precisely the 1st defendant's intention. He said that the purpose of the grille was to stop the rubbish reaching his property and to protect his property from such rubbish. It inevitably followed that this rubbish had to find some other place to stop, and that was going to be on the plaintiff's premises in an exceedingly inaccessible place. It was almost certain to cause trouble sooner or later. Even if the plaintiffs cleaned that area assiduously day after day, there was nothing they could do to protect themselves if when the flood water came down on any one occasion, it brought with it at the outset one of those pieces of typical Hong Kong rubbish, a plastic sheet or a plastic bag. A plastic sheet or a plastic bag could lodge comfortably against this grille; in no time at all there would be a flood; and the first warning that anything was amiss would be when the flood water poured through the house.

15. The plain consequences of this behaviour, and the plain intention of the 1st defendant in putting up this grille, was to move the risk of flood off his property and upstream and onto the plaintiff is property. Now the first question is: Is that an act of potential nuisance. The way in which the matter was put in one of the leading cases by no less an authority than Lord Atkin is this, and I read from his speech in Sedleigh-Denfield v. O'Callaghan (1940) A. C. 880 at page 895:

"It created a state of things from which when the ditch was flowing in full stream, an obstruction might reasonably be expected in the pipe, from which obstruction flooding of the plaintiff's ground might reasonably be expected to result."

That definition by him of a potential nuisance applies directly to the facts here except that the facts here are very much stronger. It was not so much a reasonable expectation; it was almost inevitable. It was simply a question of time before the flood came. That that is the true principle of law I have no doubt at all. It was applied and followed by the Court of Appeal in England in a case called Pemberton v. Bright (1960) 1 All E. R. 792.

16. It seems to me also quite impossible to justify that upon the basis that it was not an unreasonable act. Reliance was here placed upon the decision in Neill v. London North Western Railway Company L. R. 10 Exch. 4. This and other cases emphasise that a defendant cannot by way of self-protection or otherwise justify interferring with or obstructing the free flow of water  in a defined channel, be it natural or artificial. This is made crystal clear if one looks at either of the relevant text books of the subject where  these cases were collected. The first is paragraph 374 of Vol. 34 of Halsburys Laws, 4th edition; and the other is paragraph 8-9 at page 303, of the 15th edition of Clark and Lindsell on Torts. What the cases show is that a person can protect himself against flood water, but he  must not interfere with the flow. You can translate that into the facts of this case by saying that the defendant would have been perfectly justified in putting up something like sandbags along the line of his channel but not to do what in fact did. The decision itself made this quite clear, Bramwell B. in the closing paragraph of his judgment, page 8, when finding that the defendants were not liable says: "they in no sense have brought the water, or caused it to come to the place where the damage happened." If this grille obstructed the flow of this water and caused the flooding upstream that is precisely what the defendant here did. Pigott B is to the same effect: "they have not interferred with any natural flow of water nor with the stream of the river".

17. In my judgment what the 1st defendant did in this case was as obvious an act of potential nuisance as could he imagined. This necessarily and naturally brought about the events which occurred on the 8th April. I accept what Mr. Chan Ping Wah told me about his discoveries on that day when he answered a distress call from the 1st plaintiff's mother. He said that although the worst was over when he got there, and that some of the rubbish had already been removed, he personally found and extracted from the lower of the two catch-pits on No. 30 or in its immediate vicinity, foliage, grass, paper and plastic bags. I am quite satisfied that this accumulation was caused by the presence of this grille, and that this was simply the grille fulfilling its design purpose.

18. The only question that remains on the issue of liability therefore is the allegation of contributory negligence. In the light of the facts which I have recited, these allegations are about as unattractive as they could be. The principal allegation relates to an alleged failure to clean out this debris, which amounts to saying this: "You failed to clean up the debris I made sure accumulated on your property". There is in fact no evidence to support the allegation on any view. The plaintiffs were operating what I am satisfied was a perfectly sufficient system, and there is simply nothing to discharge the onus upon the defendant in respect of causation. There  is nothing to suggest that any of the debris which Mr. Chan removed in the early afternoon of 8th April was not brought down by the flood that day, but in fact had been there for some days because it had been overlooked by the plaintiff's cleaner. So that charge of contributory negligence totally fails.

19. There were other allegations. Two were abandoned, numbers 1 and 6 in the Defence, and 5 is meaningless. It only leaves, as far as the pleading is concerned, the allegation that it was contributory negligence to construct the wall. This is an unbelievable assertion. It never had any substance in it at all as pleaded because the wall would have acted as protection if it had not been properly drained; and because it was properly drained the water was able to back up through that drain into the yard and into house. The most remarkable assertion of all in my judgment was that that was being advanced both by the 1st and 3rd defendant's counsel in their closing speeches. This was that it was contributorily negligent of the plaintiffs not to act upon an alleged warning by the 1st defendant and in substance retaliate by erecting a  like grille at the upper end of their property. This allegation, of course, was never pleaded and was never properly investigated. It  was never put to the brother who has said to have been given the warning and therefore I cannot possibly find it to have  been established. But in fact that self-same brother considered that possibility because he told me that it was suggested to him by some workmen,a decorating person, be called in for advice. In my judgment it is to his credit that he rejected it. To suggest that it was contributory negligence of the plaintiff and not themselves to commit a like act of potential nuisance to their next door neighbour in No. 31 is as unattractive an allegation as I have ever heard.

20. In their circumstances I am quite satisfied that the 1st defendant is liable in damages for nuisance to both plaintiffs, and  is liable for the consequences of the flooding on the 8th April 1983.

21. At an early stage in this hearing, in an attempt to conclude it within the then allotted time (which wholly failed) and with the concurrence of all parties, I said I would not deal with quantum, and if an issue of quantum arose it would be referred to another court. I will therefore go no further than say that in my judgment the 1st defendant is liable in damages for such damages as may be agreed and in default of agreement will have to be assessed by a Master.

22. That deals with the main claim in this action. I can now deal much more shortly with certain subsidiary matters. Another claim is made by the plaintiff against the 1st defendant in respect of a rain water pipe. The 1st defendant was apparently unhappy with the sufficiency of the drainage on the roof of his property, and wanted to provide a new drainage pipe at the front. His fears were understandable and may possibly have been justified: I know not. But the method he chose to alleviate the problem was singularly unfortunate. It was to drive a hole through the wall of  that particular point and insert a pipe. That drainage pipe was directed at the area immediately outside the front entrance to the plaintiffs property, so that if this emergency pipe came into use the water was directed at them. This was, in my judgment, plainly objectionable and a potential nuisance, as a result of which the plaintiff suffered just sufficient damage to found a cause of action in nuisance.

23. When complaint was made, the first thing the 1st defendant did was to cut the pipe off at the building. That mitigated  the matter to some extent but did not eliminate it. The elimination came when he left the property and his successor in title blocked up the pipe, as well as removing the offending grille. The claims for specific relief go. But I think there is just sufficient here for the plaintiffs to say they have a cause of action for nuisance, for a very modest sum by way of damages, which I assess at $50.

24. As far as the 2nd defendant is concerned there is great doubt whether it is still in existence or whether it has not been wound up. That those doubts have not been resolved does not really matter. The 2nd defendant is sued in two capacities. The first is as a person who may have been responsible for erecting either the pipe or the grille. There is no evidence that he knew anything about it. The second is in negligence, which allegation does not leave the ground unless likewise he knew  about  these two offending articles. There is no evidence that he did. So no claim is made out against the 2nd defendant at all.

25. The 3rd defendants, the managers, faced two claims. The first is a claim in negligence on the narrow basis of permitting the construction or continuance of the grille and the water pipe. Again there is no evidence that they were aware of the existence of this grille until after the flood on the 8th April. So that claim in negligence must fail. Secondly, there was a later amendment which substituted a claim  for declaration that these defendant managers were in breach in not taking steps or proceedings to have the grille removed. It is impossible for the plaintiffs to start to show in respect of that decision that these managers were wilfully negligent. So it is unnecessary to go any further into that matter except to say it must fail.

26. Before leaving that aspect of the case I feel constrained to add this. I am told that this Deed of Mutual Covenant is in a common form frequently used in Hong Kong. It is also submitted on behalf of the  managers that this exclusion clause and the reference to wilful negligence is a great encouragement to managers to do nothing, because if they did nothing they could successfully avoid a finding of wilful negligence. I am bound to observe that as at present advised I am very far from sure that that proposition is well founded. It does not seem to be by any means  impossible for a court to find wilful negligence upon the basis of  total  inactivity; upon the  basis of the shutting of eyes to an obvious problem with the managers area of responsibility. If managers under Deeds of this nature feel they only have to do nothing when faced with any problem to avoid any liability then in my judgment someone in the future may be in for a shock, I will put it in no higher than that.

27. In the result there must be judgment for the plaintiffs against the 1st defendant for $50 and for damages to be assessed in respect of the flooding (if not agreed). Whereas both the 2nd and 3rd defendants are entitled to judgment against the plaintiffs.

Representation:

Miss Jane Fong instructed by M/s S. K. Wong & Co. for Plaintiffs.

Miss Selina Lau instructed by M/s Deacons for 1st Defendant.

Mr. Francis Eddis instructed by M/s Kwan & Kwan for 3rd Defendant.