IDEAL CONSOLIDATORS LTD. v. MAEDA CORPORATION AND ANOTHER

1989 No A7752

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff's claim is for damage caused to its motorcar while being driven on the highway. Its claim is first, in negligence, reliance being mainly based upon the principle of res ipsa loquitur: second and primarily, in nuisance.

2. The car was a write-off. Damage has been quantified at HK$221,550.00 and, subject to liability, that sum has been agreed.

3. In 1988, a flyover was being constructed above Lung Cheung Road, Kowloon near Tin Ma Court. Two of the piers for the support of the flyover were placed respectively at the central divider and the near side of the westbound carriageway. The piers were surrounded by supports and scaffolding. Westbound traffic in two lanes was temporarily diverted between these two sets of supports. The practical effect was that traffic was diverted slightly to the left away from the central divider and, after passing beneath the flyover, angled back towards the central divider. For the protection of the scaffolding and workers, temporary barriers were erected on either side of the westbound carriageway where it passed beneath the flyover. These barriers consisted of two lines of steel channelling called U-channel, one above the other, running parallel to the ground and welded for support to steel beams which had been concreted into the ground. The upper length of U-channel on either side was painted red and white. At the end of the temporary barrier on the right where the flyover ended, there was a further barrier of a single U-channel, about 6 or 7 metres in length welded to three supporting beams, angled back towards the central divider.

4. The 1st defendant was the contractor responsible for the flyover and associated road works generally. It drew up a plan which provided for, inter alia, the temporary diversion to which I have referred. This plan was approved by the Highways Department and the Police. It also had designed by one of its engineers the temporary barriers which I have described. The construction of the barriers was entrusted to a steel work sub-contractor which prepared the horizontal barriers and welded them to the supporting beams. The 2nd defendant was the sub-contractor. It used licensed welders for the work. When the work had been completed, the welding was inspected by one of its gangers. Approval was then given by the 1st defendant through its project manager, Mr Masayuki Asano (DW1) who carried out a visual inspection.

5. Shortly after 1.30 am on 8th November 1988, about-six months after the temporary barriers had been put up, Mr Ip Man Man, the plaintiff's managing director, was driving the plaintiff's car along Lung Cheung Road in a westerly direction. Mr Ip was going home after playing majong. He was driving at between 60 and 70 kph, travelling upslope in the right hand lane. He came to and passed beneath the flyover and between the temporary barriers. As he came out from this restricted area, where the carriageway angled back towards the central divider, he saw about 10 feet in front of him a length of U-channel lying across his and much of the adjoining near side lane. He braked but was unable to stop in time. His car ran over the barrier extensive damage to the underpart. A taxi which had been travelling behind Mr Ip then stopped. A few minutes later, four or five men appeared and moved the barrier to the side of the road. These men then left Later, the police arrived and subsequently the car was towed away.

6. In the light of the evidence which I have heard, particularly that of Mr Wong Man Kwong (DW3), the Assistant Administrator of the 1st defendant, I am satisfied and so find that the U-channel which was lying across the road was the single U-channel on the right of the carriageway immediately after coming out from beneath the flyover. It had become detached from its supports, one of which, at the end away from the flyover, had been bent at an angle. I am also satisfied that this U-channel had been painted red and white.

7. There is no direct evidence as to how the U-channel became detached from its supports. I exclude, however, the possibility that it simply fell off because the welding was either inadequate or had rusted through. I also reject the possibility that someone had deliberately removed it and placed it across the carriageway. The most likely explanation, and one which I think is the only reasonable inference in all the circumstances, is that the U-channel had been struck a glancing blow by a passing vehicle causing it to spring off and fall across the carriageway. I also infer that the vehicle would have been a large and heavy one to have been able to withstand the impact either without the driver noticing or without receiving sufficient damage itself to cause it to stop. I also find that this must have occurred very shortly before Mr Ip came along as otherwise some other vehicle would have suffered the same fate as Mr Ip's car.

8. According to DW1, whose evidence on this I accept, he inspected the welding of the barriers on a few occasions during the period of six months before the accident. He also carried out an inspection of the site twice a day for safety purposes. This included a visual examination of the temporary barriers during which he approached them within about 40 centimeters. He was also aware that the barriers were inspected daily by staff of the Highways Department and on an irregular basis by the police. Apart from initial complaints about the positioning of the barriers, no other complaints had been received from these sources.

9. On the evening of 7th November, some remedial work was being carried out on the site immediately to the west of the flyover and to the south of the carriageway, very close in fact, to the scene of the accident. Before leaving at about mid-night, DW3 on the instructions of DWI carried out an inspection of the site, in particular the fencing, lighting, cones and road signs. He noticed that the temporary barriers, including the one in question, were in order and that the supporting beams were upright. When he returned the following morning at about 8 am, he found the offending U-channel placed on one side and one of its supports to be crooked. I accept this evidence DW3 was a straightforward witness. I see no reason to doubt his honesty or accuracy.

10. In presenting his case in nuisance, Mr Ng for the plaintiff formulated three propositions. First, that the U-channel found lying across the road was in itself an obstruction of the highway constituting a danger and was therefore a public nuisance. Because the plaintiff suffered special damage, the defendants were liable because of their responsibility for its design, erection, inspection and maintenance. The onus was therefore on the defendants to explain or justify how the U-channel came to be lying on the carriageway.

11. Second, the temporary barriers protecting the scaffolding constituted an obstruction of the highway although not dangerous in themselves. It was therefore incumbent on the defendants who created the obstruction to be alert to any changes whereby a danger-free obstruction turned into a grave traffic hazard. To this end, the defendants should exercise ordinary intelligence and, diligence to keep the obstruction danger free.

12. Third, insofar as the barriers were not an obstruction but rather a structure adjoining a highway for which the defendants were responsible, it was nonetheless incumbent on the defendants to ensure that the obstruction did not become dangerous and constitute a nuisance. Provided the defendants did everything reasonable, the detaching of the U-channel did not matter. If the barriers became a nuisance, however, for want of repair, it did not matter whether or not the defendants knew or ought to have known of the danger.

13. Whatever the position, said Mr Ng, the defendants must show that the U-channel fell without fault on their part. If the circumstances remain unexplained, the defendants are liable.

14. In my judgment, the circumstances of this case give rise to the second proposition advanced by Mr Ng. There is no doubt that the temporary barriers were on and obstructed the highway. The barriers were not in themselves dangerous, but required a high degree of care on the part of the defendants to ensure that they did not become dangerous. Prima facie, the detaching of one of the U-channels so that it fell across the carriageway and caused the damage which it did shows that the obstruction turned into a danger to traffic. The burden therefore shifted to the defendants to show that they were without fault.

15. Mr Li for the defendants accepted the burden and contended that it was discharged. First, he relied upon the degree of care taken by the defendants in the design, construction and regular inspection of the barriers. He said that the defendants, particularly the 1st defendant, had done all that a reasonable and prudent person responsible for a highway obstruction could and should have done. He said that there was no evidence to suggest that the welding of the barriers was defective, no evidence of any complaints having been made about the state of repair of the barriers and no evidence to suggest that the barriers were in a state of disrepair. On the contrary, the barriers had functioned satisfactorily for a period of about six months on a busy road during which nothing abnormal happened. Plainly, therefore, the barriers were of sound and proper construction.

16. In any event, Mr Li maintained that the nuisance was created by the act of a trepasser for which the defendants cannot be held liable unless they are shown to have allowed the nuisance to continue for an unreasonable period after they knew or should have known of its existence.

17. There is abundant authority for that proposition. For example, Barker v Herbert (1911) 2 KB 633 where at page 642 Fletcher Moulton LJ said:-

In a case where the nuisance is created by the act of a trespasser, it is done without the permission of the owner and against his will, and he cannot in any sense be said to have caused the nuisance; but the law recognizes that there may be a continuance by him of the nuisance. In that case the gravamen is the continuance of the nuisance, and not the original causing of it."

18. Superficially, at least, the defendants there have an attractive argument. With respect, however, the argument begs the question of whether the barriers should have been susceptible of the disintegration which occurred in the particular circumstances. In other words, were the barriers in some way defective. The situation, it seems to me, is more akin to that in Harrold & Another v. Watney (1898) 2 QB 320 where a small child climbed on a fence abutting a highway and was injured when the fence collapsed. The Court of Appeal found the fence to be defective and a nuisance giving a cause of action to the plaintiff. At page 324, Vaughan Williams LJ said:-

"The jury were not asked specifically the question whether the fence was in such a dangerous condition as to be a nuisance to those who used the highway. But on reading the evidence the only conclusion to be arrived at is that the fence, in the condition in which it was, constituted a danger to those using the highway - that is, it constituted a nuisance. When that has been settled, all has not been done to give a right of action to the plaintiff. It must also be proved that it was this nuisance which was the cause of the injury complained of. When it is urged that the child should not have put his foot on the fence, that amounts to a suggestion that the accident was not caused by the nuisance, but by the conduct of the child; and for this purpose it does not matter whether that conduct was negligence or trespass. In my view, looking at the facts of this case, it is not true to say that the accident was caused by the conduct of the child. The defendant caused a nuisance, and when asking one's self if the nuisance was the cause of the accident one gets a test in this way Ought what the child did to have been present to the mind of the person who created the nuisance as a probable result of his act? If he says that it was not-the consequence of his act because the fence was good enough if grown-up people who were passing did not touch it, and that they had no right to touch it, the answer is that the highway is for children also, and if he leaves such a nuisance close to a highway it is exceedingly likely to cause injury to children using the highway. If that is so, it is the nuisance which was the cause of the injury to the child, and, the defendant cannot get out of that conclusion by relying on the act of the child in touching the fence because that act was one which would probably not be done by a grown-up person. I come, therefore, to the conclusion that it has been established by the evidence that not only was the fence a nuisance, but that the injury to the child was the result of that nuisance."

19. A useful summary of the law is to be found in Southport Corporation v Esso Petroleum Co Ltd & Another (1954) 2 QB 182. An oil tanker became stranded and jettisoned some oil in order to avoid further damage. The oil, however, caused damage to a nearby beach for which the local authority sued the owners of the vessel in negligence, trespass and nuisance. On appeal, the action succeeded in negligence on the basis of res ipsa loquitur. In his judgment, however, Denning LJ (as he then was) said:

"    One of the principal differences between an action for a public nuisance and an action for negligence is the burden of proof. In an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself. If he fails to do so, he is held liable, whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff. In negligence, the plaintiff may gain much help from provisional presumptions like the doctrine of res ipsa loquitur, but, nevertheless, at the end of the case the judge must ask himself whether the legal burden is discharged. If the matter is left evenly in the balance, the plaintiff fails. But in public nuisance, as in trespass, the legal burden shifts to the  defendant, and it is not sufficient for him to leave the matter in doubt. He must plead and prove a sufficient justification or excuse."

At page 198, he continued:

" Public nuisance is, in this respect, like unto a trespass, as to which it was said by the court of King's Bench as long ago as 1616 in Weaver v Ward that no man shall be excused "except "it may be judged utterly without his fault." The court added that, as a matter of pleading, it is for the defendant to "set forth "the case with the circumstances so that it shall appear to the "court that it was inevitable and that the defendant committed "no negligence to give occasion to the hurt." To the same effect is Dickenson v Watson, where the defendant, who was a tax collector on his rounds, discharged a gun and put out the plaintiff's eye. The court held "that the defendant shall not "be excused without unavoidable necessity, which is not shown "here." To take a modern instance, if a cricketer hits a ball out of the ground and it falls on to the head of someone walking along the road - or on to someone's greenhouse - he is liable in trespass. He could not hope to show that it was an unavoidable necessity for him to hit the ball so hard.

"    Those were, it is true, cases in trespass; but the same principle applies to cases of public nuisance. That is shown by Tarry v Ashton, where a lamp which projected over the Strand fell on to a passer-by. This was described by Lord Wright as a private action for a public nuisance : see Sedleigh-Denfield v O'Callaghan. Another example is Wringe v Cohen, where the gable of a house next the highway was blown down in a storm (which was treated by this court as a public nuisance). In both cases the defendant was held liable because his premises were in a defective state. He did not know of the defect, and he was not negligent in not knowing, but, nevertheless, he was liable because he did not prove any sufficient justification or excuse. He did not prove inevitable accident.

    The question is, therefore, whether the ship has proved that it was not her fault that she got on the wall. She has given the circumstances in which she got there. Her steering gear had failed half an hour previously. She was lurching about in the channel out of control and finished up on the wall; but why did her steering gear fail? She has never attempted to explain it. The judge thinks it failed because the stern frame fractured. No one can doubt that the stern frame should not have fractured. Why did it fracture? The seas themselves were not rough enough to do it. There must have been some other cause, but what was it? Several suggestions have been made. It may be that she hit the bed of the channel. It may be that there was a latent defect in the metal. It may be that there was a patent defect which could have been discovered by reasonable examination and inspection. But whatever the cause, the defendants have not shown that it happened without their fault. They have, therefore, not discharged the burden upon them. They are liable for the nuisance which they caused."

20. In my judgment, it is wholly inadequate for the defendants simply to say that an engineer designed the barriers, that the barriers were constructed by capable welders, that the barriers were the subject of constant visual inspection, and that in any event the real danger was caused by another. It is in my view necessary for the defendants to show that what occurred could not reasonably have been anticipated. To do that, it would be necessary to show what force of impact the barriers ought to be expected to withstand, whether the barriers were designed to absorb such an impact and what sort of impact occurred which led to the detaching of the U-channel which fell across the carriageway. The only real evidence which emerged occurred in cross-examination of DW1 who was asked if he agreed that the barriers should be able to withstand an impact without falling off. DW1 made this rather inscrutable reply:-

"It is hard to tell which is right or wrong. To build a barrier which will withholdan impact or which will break at the time of collision for safety purpose. As a result of talks with the police and Highways Department, we used this barrier."

21. No witness from either the police or Highways Department was called to give evidence.

22. As I indicated earlier, DW1 also said that the barriers were to protect the supports and scaffolding around the piers. It is plain to me that if the supports or scaffolding alone were dislodged, they could cause considerable damage to passing traffic. Depending upon the stage construction had reached, dislodging the same supports or scaffolding might in turn have caused the collapse of the piers or the flyover itself. It seems elementary, therefore, that the barriers should have been capable of withstanding a considerable impact if they were to fulfill their primary function. Certainly, they should have been capable of withstanding-the casual or glancing blow which it seems probable caused the U-channel to become detached. The defendants have failed really to get to grips with any of these issues and, in my judgment, have failed to discharge the burden which rests upon them. I find, therefore, that they are liable to the plaintiff.

23. The question which next arises is whether the plaintiff, through Mr Ip, has in any way contributed to the damage. Two matters have to be considered. First, the speed at which Mr Ip was driving. Approaching the flyover, he was travelling at between 60 and 70 kph. It was upslope. Although he did not expressly say so, it is plain that he did not reduce speed at the flyover. Quite clearly, however, he should have reduced his speed upon approaching an area of considerable roadworks and where the carriageway narrowed. There was no satisfactory evidence as to the speed at which he should have negotiated the passage beneath the flyover. In my view; he should have reduced his speed to 50 kph.

24. The second issue is the degree of lighting of the area in which the accident occurred. Having regard to the evidence of DW1 and DW3 who, as I have said, I find to be truthful and accurate, I am satisfied and find that the approach to the flyover was marked by flashing orange beacons and the entrance to the passage beneath the flyover itself was marked on the left side by a revolving flashing beacon. Overhead, the flyover itself and the entrance to the passage were lit by two large square or spot lights. Underneath the flyover, there was one spotlight positioned in the top right hand corner of the passage at the exit end. This clearly gave some illumination to the area where the U-channel was lying. Additionally, there was some lighting in the area where remedial work had been taking place and which again threw some light on the accident area. Finally, there was normal street lighting both before and after the flyover.

25. It is my view, however, that Mr Ip could not have avoided hitting the U- channel even had he reduced speed to 50 kph. The U-channel, although of considerable length, had a depth according to DW1 of only 12.5 centimeters. Even with the red and paint, in conditions of artificial lighting it seems to me that the U-channel would have appeared as little more than a shadow to an approaching driver until the driver was quite close. This difficulty was compounded by the fact that the carriageway angled to the right immediately on coming out from under the flyover so that a driver's view of the carriageway was to some extent obstructed.

26. The collision being unavoidable, therefore, did the failure to reduce speed alone aggravate the degree of damage which occurred. Again, there is no evidence on this point and evidence is clearly required. Wong So China v The Official Administrator & Another, CA No. 9 of 1987 (unreported) was a seat belt case. The defendants alleged that the plaintiff was contributorily negligent because she had not been wearing a seat belt. The Court of Appeal made it clear that a mere allegation of failure to wear a seat belt is not sufficient. Evidence is required in order to show what damage was necessarily caused by such failure. Clough JA in his judgment, with which other members of the court agreed, said:-

" In the absence of any expert or other evidence connecting the plaintiff's injuries with the moments of her ejectment from the vehicle after it had rolled over twice rather than the period of time when she was still in the vehicle between the collision with the hillside and her ejectment, it seems to me that there was no evidential basis for a finding on the balance of probabilities that the plaintiff's injuries, or any of them, were caused by her failure to wear a seat belt.

27. Accordingly, I do not find that the plaintiff contributed in any way to the damage which occurred.

28. In the circumstances, it is not necessary for me to deal with the plaintiff's alternative claim in negligence based upon the principle of res ipso loquitur. Should it become necessary, however, I can indicate that I would have found that the principle is applicable. I do not consider the circumstances to be equivocal as in Wayfoong Credit Ltd & Others v Tsui Siu Man trading as Wilsons Plastic Manufactory (1984) HKLR 259. Accordingly, there was an inference of liability which it was for the defendants to rebut although, of course, the onus of proof lay at all times on the plaintiff. In my judgment, the reasoning which I have set out in relation to nuisance is of equal applicability to negligence. I would, therefore, have found that the inference had not been rebutted and that the defendants were liable.

29. Neither the plaintiff nor the defendants themselves made any attempt to distinguish between the positions of the two defendants. I do not propose, therefore, to make any distinction between them.

30. I give judgment for the plaintiff against the defendants for $221,550.00 and costs.

    I was not addressed upon the question of interest. Interest pursuant to section 48 of the Supreme Court Ordinance was claimed. I make an order nisi that the plaintiff should have interest on the judgment sum at the rate of 1096 from the date of issue of the writ to the date of judgment and thereafter at the rate prescribed by the Chief Justice.