CHAN YING WAH v. BACHY SOLETANCHE GROUP LTD AND ANOTHER

HCA2266/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2266 OF 2002

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J U D G M E N T

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1. The plaintiff claims against the both defendants for damages in negligence and nuisance as a result of seawater, which was brought on to the defendants’ land by the 1^st defendant, escaping therefrom and causing damage to the plaintiff’s crops planted on the plaintiff’s land.  The plaintiff further relies on the rule in Rylands v. Fletcher in bringing this claim.

BACKGROUND

2. The plaintiff was the operator of a plantation situate at Hoi Bun Yuen, No. 13 Tsoi Yuen Ha Tsuen, Tsing Lung Tau, New Territories (“the plantation”).

3. At all material times at the plantation the plaintiff engaged in the cultivation of crops and plants between 1976 and 2002. 

4. Since 1976, the plaintiff and his workers had been collecting rainwater from a pit at the end of a rainwater gutter.  That pit, referred to as “Pit A” throughout the trial, was nearby to the plantation.  The water from Pit A was diverted into the catch pits on the plantation for the purpose of irrigation by means of underground conduits as well as a PVC pipe on the ground surface.

5. The plantation and the area immediately within its vicinity, including the site at which both defendants were the occupiers at the material time, fell within a water pollution control zone, namely, the Western Buffer Water Control Zone whereby there are statutory provisions keeping the area free from waste water disposal and other pollutants.

Plaintiff’s case on liability

6. On or about 8 January 2001, the plaintiff discovered that water in the catch pits on the plantation had become salty.  As a result, the plaintiff took steps to ascertain why the water had become salty.  Such steps taken by the plaintiff led to the defendants’ worksite uphill at which the 1^st and 2^nd defendants were respectively the subcontractor undertaking the drilling work and the contractor responsible for technical supervision and ground investigation work.

7. It is not in dispute that for some time prior to 8 January 2001, when the plaintiff first discovered salty water in the catch pits on his plantation, the 1^st defendant, for the purpose of the drilling works which it was undertaking on the worksite, had been pumping seawater from the sea nearby and storing such seawater in water tanks on the worksite.

8. It is also not in dispute that the rainwater gutter which runs past the side of the worksite continues on and leads downhill, goes under Castle Peak Road and ends up in Pit A from which the plaintiff draws the rainwater to fill his catch pits for irrigation of his crops and plants in the plantation.

9. It is the plaintiff’s case that about one week before 8 January 2001, he and others on the plantation noticed that there was something wrong with the crops and plants on the plantation which were turning yellow and beginning to wither.  Then on 8 January, the plaintiff’s brother, Mr Chan Ying Neng, while irrigating the crops on the plantation, found that by accident some of the water used for irrigation splashed on his face and lips and he then tasted the water to be salty.  A check was then made by him of the water in the catch pits on the plantation and it was also found to be salty.  Since the water was obtained from Pit A near to the plantation, he then followed the source from which the water came.  He traced the rainwater gutter uphill until he came to outside the defendants’ worksite.  There he saw a metal tube which was draining water out onto the rainwater gutter from the worksite.  He tasted the water coming out from this tube and found it to be salty.

10. He then went into the worksite and upon enquiries was given the phone number of a Mr Yu, said to be the person in charge of the worksite but who was not at the worksite at that time.

11. Upon making his own investigation at the worksite, Mr Chan Ying Neng found there was water on the ground which was being drained out via the metal tube onto the rainwater gutter outside.  Nearby this water on the ground were two water tanks, yellow in colour.  This water on the ground in the worksite also tasted salty when Mr Chan Ying Neng tasted it.

12. There was also a tiny stream of water flowing out from further in the worksite.  He went further in the worksite past the two water tanks.  The water that was flowing out from this stream further in the worksite he found not to be salty.  However, the water from this stream, when it came to near the two water tanks, mixed with the water on the ground by the water tanks.

13. That same afternoon at about 2:30 p.m., he met with Mr Yu at the Worksite, having arranged that meeting with Mr Yu earlier that day after he had discovered the salty water flowing out from the worksite.  He reiterated his complaint to Mr Yu who promised to report the matter to his superior.

14. As he did not get an immediate response from Mr Yu, he lodged a further oral complaint to Tsuen Wan Environmental Protection Department about the discharge of salt water from the worksite.

15. At about 3 p.m. the same day, he also went to the office of one Martin Choi, a District Board Councillor to make the same complaint.  As a result, Mr Choi went with him to the plantation to view the damaged crops and then to the worksite.  On the way, he explained to Mr Choi how the salt water came out from the worksite.  When they arrived at the worksite, they saw Mr S.W. Kwok of the 1^st defendant there.  In the presence of Mr Kwok, Mr Choi tasted the salty water on the ground in the vicinity of the storage tanks as well as the natural water from the stream coming out from further in the worksite.  Mr Kwok promised to take immediate remedial actions to prevent further salty water being discharged from the worksite.

16. A further meeting was arranged for 11 January 2001 attended by Mr Choi, Mr Kwok and representatives from several government departments and representatives of the 2^nd defendant when Mr Choi tasted the salty water being discharged from the tube into the rainwater gutter.  On that occasion, Mr Kwok said that he had stopped using salt water for drilling after the complaint on 8 January 2001 and had arranged for the storage tanks to be relocated the following morning.  Mr Kwok further promised to remove the storage tanks and drilling equipment from the worksite, to prevent further discharge of salty water and to cleanse the watercourses, clear the salt water from the catch pits and refill them with fresh water.

17. Between 12 and 15 January, workmen from the 1^st defendant did clear the catch pits in the plantation and refill them with fresh water.

18. On 17 January, by arrangement, a Mr Tang from the loss adjusters, Messrs Crawford Hong Kong Limited, came to the plantation to view the affected trees and crops.

19. On 13 March, Mr Tang came again to the plantation and Mr Chan Ying Neng demonstrated to Mr Tang that water from Pit A did lead into the catch pits of the plantation.

20. That evidence was given by Mr Chan Ying Neng.

21. The plaintiff also called Mr Choi who corroborated Mr Chan Ying Neng’s evidence as to the salty water which he had tasted coming out from the tube and on the ground in the vicinity of the two water tanks.  He also confirmed Mr Chan Ying Neng’s evidence that the water from the stream further in the worksite was not salty when he tasted it.

Factual Dispute on liability and Defendant’s evidence

22. There is only one main factual dispute between the parties on the issue of liability.  While the defendants do not deny that the 1^st defendant had pumped seawater onto the worksite and had stored such seawater in the two water tanks on the worksite up to the day of the complaint made by the plaintiff (i.e. 8 January 2001), it is disputed by the defendants that there was any salty water on the ground in the worksite or that any salty water had discharged into the rainwater gutter from the tube leading out from the worksite.

23. The evidence relied on by the defendants come from Kwok Sun Wing, the site agent of the 1^st defendant.

24. His evidence (as contained in his witness statement) is to the effect that the 1^st defendant commenced work at the worksite in about October 2000 and three water tanks were installed at the worksite at the end of November 2000.  In about 27 December, seawater was pumped up from the sea to the worksite for the drilling carried out by the 1^st defendant at the worksite and the seawater was stored in the water tanks from where it was diverted to the boreholes where the drilling took place.  Drilling works were completed by about 6 January 2001.

25. On or about 8 January, he came to know of the plaintiff’s complaint in this matter.

26. On 17 January, he and two representatives from the loss adjusters investigated the plaintiff’s complaint.  They were shown by the plaintiff the gutter and Pit A from where the plaintiff collected water to irrigate his crops.

27. He further states that no one from the 1^st defendant was aware that the plaintiff was irrigating his crops using water from Pit A until after the complaint by the plaintiff was made.

28. On the day he came to know of the complaint (i.e. 8 January 2001), he had checked the vicinity of the water tanks at the worksite and noted that it was dry.  He did not notice any leakage or overflow from the water tanks nor from any of the hoses connecting the water tanks to the boreholes.

29. When Mr Kwok came to the witness stand, he adopted his witness statement as his evidence and also added to it by saying that the plaintiff’s plantation site could not be seen from the defendants’ worksite, nor could Pit A be seen from the worksite.  He understood that the gutter and Pit A were constructed by the government.

30. He agreed that there was natural water coming out from a stream in the worksite.  If the volume of the water from the stream was large, it would touch the water tanks, but if the volume was small, the stream would pass by the side of the water tanks.

31. He also agreed that it was possible the seawater in the water tanks could have overflowed or there could have been some leakage when they had to dismantle the hose for maintenance, but if that was so, the volume would not be large.

32. In cross-examination, Mr Kwok said that when the 1^st defendant started work at the worksite, they had used fresh water for the drilling.  That fresh water came from a water pipe which had been used by the watchmen of the Lands Department.  Because they found that water pipe was supplying fresh water, they did not apply for a licence to the Water Authority as they should have under the contract between the 1^st and 2^nd defendants.  When the supply of fresh water was cut off from that water pipe, they then resorted, round about 27 December 2000, to pump seawater for use in the drilling.

33. When cross-examined about the afternoon of 8 January 2001 after he had met up with Mr Chan Ying Neng and Mr Choi at the worksite, he said that he did not pay attention to whether the ground near the yellow water tanks was wet or dry and he could not remember if the buoyant device shown in the photograph was there in the water tank or not on that afternoon, which operated as a safety valve to stop the pump and prevent the water from overflowing when the water level in the tank got to a certain level.

34. As for the tasting of the water, he said that he tasted the water from the same spots as Mr Choi but he could not remember whether the water he tasted was from the gutter or from the tube.  However, he did not think the water he tasted was very salty.  He added that the water was not fresh water but it was not salty.

35. He agreed that after the complaint was raised by the plaintiff, the tanks of seawater at the worksite was replaced by fresh water brought to the worksite by lorry.  He also agreed that the water tanks were then re-located to further back in the worksite, and that the catch pits on the plantation were cleansed by their workers and re-filled with fresh water by them.  The fresh water was obtained by the 1^st defendant from a fire hydrant.

36. Mr Kwok said that he did not know at the time that the worksite was within a water control zone, but that he knows of it now.

37. He also did not know before the complaint that the rainwater gutter ended with Pit A or where it led to, and that he did not know that the plaintiff obtained water for irrigation from Pit A.  It was also after the complaint that he came to know there was a tube discharging water from the worksite into the rainwater gutter.

38. He agreed that the terms of the contract between the 1^st and 2^nd defendants required the 1^st defendant to use fresh water for drilling, but said that the 1^st defendant had obtained oral consent from Daniel Fong of the 2^nd defendant to use seawater for that purpose after their source of fresh water was cut off.

39. In re-examination, he said that the 1^st defendant agreed to cleanse out the catch pits of the plaintiff and re-fill it with fresh water because the 2^nd defendant requested the 1^st defendant to assist in doing that to make all concerned feel better.

40. Apart from this one complaint, they had not received any other complaint of overflow of salty water.

Assessment of the Evidence and Finding of Fact

41. I have no hesitation in accepting the evidence of Mr Chan Ying Neng and that of Mr Choi in relation to the salty water which they discovered on the defendants’ worksite which was discharged into the rainwater gutter via the tube.  Where their evidence differs from that given by Mr Kwok with respect to the issue of the salty water, I reject the evidence of Mr Kwok.

42. Having heard his evidence and his cross-examination on that and other aspects of the case, I find Mr Kwok to be a most unreliable witness, at times evasive and sometimes even contradictory to his own evidence.

43. Accordingly, I make the following findings of fact :

(1)     Since 1976, the plantation had depended on the rainwater which collected at Pit A at the very end of the rainwater gutter.

(2)     Underground conduits linking Pit A to the catch pits in the plantation were already in existence when the plaintiff obtained a permit to occupy the plantation.

(3)     The irrigation for the plantation mainly depended on the water source from Pit A.

(4)     The fresh water supply to the worksite was cut off on 27 December 2000.

(5)     Since large amount of water was needed to cool down the drilling machinery operated by the 1^st defendant at the worksite, the 1^st defendant started to pump seawater onto the worksite for that purpose after the fresh water supply was cut off.

(6)     The seawater was stored by the 1^st defendant in three water tanks at the worksite.

(7)     The rainwater gutter which leads to Pit A from which the plaintiff collect water for irrigation in his plantation runs past the outer boundary of the worksite ending at Pit A.

(8)     A tube normally discharges natural water from a stream in the defendants’ worksite into this rainwater gutter.

(9)     The stream in the worksite runs past the area where the water tanks are located in the worksite.

(10)    Since 27 December 2000 when seawater was stored in these tanks, some of the seawater either overflowed, spilled or discharged from the tanks onto the ground nearby and in the process mixed with the natural water from the stream.

(11)    As a result, the spilled seawater was carried with the natural water and discharged into the rainwater gutter through the tube ending up in Pit A.

(12)    From Pit A, this seawater found its way into the catch pits of the plantation either through the underground conduits or via the PVC pipe laid by the plaintiff on the ground surface.

(13)    When this water from Pit A was used by the plaintiff to irrigate the plants and crops in the plantation, it adversely affected the plaintiff’s crops and plants causing them to turn yellow, wither and die off.

(14)    On 8 January 2001, Mr Chan Ying Neng discovered that the water used for irrigation on the plantation was salty and traced the source of that salty water to the defendants’ worksite whereupon complaint was made by him to the defendants and others as to that happening.

(15)    As a result of such complaint, the defendants did the following :

(a)      stopped using seawater on the worksite;

(b)     re-located the storage tanks to another part of the worksite;

(c)     cleansed out Pit A as well as the catch pits on the plaintiff’s plantation and drained them of the salt water which had accumulated there; and

(d)     re-filled the catch pits on the plantation with fresh water.

Liability

44. On the facts as I have found above, the defendants submit, on the issue of liability, that the plaintiff has failed to prove its claim in all the three causes of actions for the following reasons :

(a)      the plaintiff has not proved significant leakage of salt water and/or that such leakage caused significant damage to his crops;

(b)     the damage suffered by the plaintiff was not a reasonably foreseeable consequence of any leakage of salt water by the defendants; and

(c)     the plaintiff’s diversion of the water in Pit A was a novus actus which broke the chain of causation, alternatively it amounted to contributory negligence.

I shall deal with each of these points in turn.

         (A)     Significant leakage

45. The first point taken by the defendants is put on the basis that any salt water which escaped from the water tanks on the worksite would have been diluted by the fresh water from the stream, or by other fresh water which found its way into the rainwater gutter.

46. No expert evidence was called by the plaintiff.  In the absence of expert evidence, the plaintiff has failed to prove how much salt water was needed to cause the kind of damage the plaintiff alleges, even though it may be common knowledge that salt water has an adverse effect on plants.  Can diluted salt water cause the kind of damage the plaintiff now alleges?  How long would a short application of salt water continue to cause damage?  Would it affect the crops and plants a whole year later?

47. It was also suggested by the defendants that there could be other possible causes for the damage to the plaintiff’s crops, such as the inexperience of the plaintiff and his brother in growing these crops, or that the plantation being close to the sea the salinity in the soil may have been the cause.

48. I am not persuaded that there is any merit in this point as to the diluted salt water.  The unchallenged evidence from the plaintiff and his brother was that the crops and plants in the plaintiff’s plantation started to turn yellow or brown about a week before 8 January 2001.  That time frame puts it squarely within the time that seawater was pumped onto and stored in the defendants’ worksite.

49. Combined with the fact found by me that the seawater from the defendants’ worksite did escape with the result that it discharged into the rainwater gutter and found its way to Pit A from which the plaintiff obtained water for irrigation on his plantation proves, on a balance of probability, that the damage to the plaintiff’s crops and plants on his plantation was caused by the salt water which came from the defendants’ worksite.

50. There is also evidence from the plaintiff that firstly, such damage to his crops had never happened before, and secondly, that the family of the plaintiff has been engaged in crops and plants growing, especially lunar New Year plants, for a long time before 2001.  On such evidence I can, therefore, safely discount the suggestion by the defendants that the damage to the plaintiff’s crops and plants may have been due to the inexperience of the plaintiff and his brother, or because of the salinity of the soil since the plantation is close to the sea.

51. In the circumstances, I find that the damage to the plaintiff’s crops was due to the effect of the salt water.

         (b)     Foreseeability

52. It is submitted by the defendants that the damage to the plaintiff’s crops could not have been reasonably foreseeable by the defendants even if it is found that they had allowed seawater to escape from the worksite.  In so submitting, the defendants rely on the evidence from Mr Kwok that the plaintiff’s plantation cannot be seen from the worksite of the defendants nor for that matter can Pit A at the end of the rainwater gutter.  Therefore, the defendants had no way of knowing that the plaintiff diverted water from Pit A to the catch pits on his plantation for irrigation purposes.

53. The defendants further submitted that in the normal course of events, the defendants would not be wrong to think that water drained into the rainwater gutter would flow out to the sea.  Therefore there was nothing wrong in discharging sea water which would ultimately find its way back to the sea.

54. The defendants rely on the principle in Cambridge Water Co. Ltd v. Eastern Counties Leather [1994] 2 AC 264 in making this submission as to foreseeability.

55. I am unable to accept this submission by the defendants.

56. In my view, the fact that neither the plaintiff’s plantation nor Pit A can be seen from the worksite of the defendants is quite irrelevant to the issue of foreseeability.

57. What is relevant is the fact that the area in which both the plantation and the defendants’ worksite were situated was in the New Territories.  This alone ought to have put the defendants on notice that New Territories land are often used for agriculture, farming or crop growing and the discharge of salt water from the worksite could likely adversely affect such crops and plants being cultivated in the vicinity.

58. Secondly, while I need not go as far as to find that the discharge of seawater by the defendants from their worksite into the rainwater gutter was in contravention of any provisions of the Water Pollution Control Ordinance, Cap.358 or any of its subsidiary legislation (the plaintiff having abandoned breach of statutory duty as one of the causes of action), I do note that under Regulation 4.4.3 of the Technical Memorandum on Effluent Standards, one of the grouping for Inland water specify irrigation as a beneficial user of such Inland water.

59. Since it is not in dispute that the plantation falls within the Western Buffer Water Control Zone, then the defendants ought to have regard to the fact that the natural water from the stream which runs through the worksite and drains into the rainwater gutter outside the worksite may well be used for irrigation purposes by other land user in the vicinity for the purpose of irrigation of crops and plants.

60. However, the evidence from Mr Kwok that he, as the site agent of the 1^st defendant, was not even aware of the fact that the worksite was within the Water Control Zone, and there was no evidence to show that the defendants took any proper steps to ensure that the seawater which they stored on the worksite would not adulterate the fresh water from the stream running through the worksite.  It was only after the complaint of the plaintiff was made that any steps were taken to re-locate the water tanks to another part of the worksite away from where the stream flowed.

61. One further point which I also take into account in relation to the issue of foreseeability is the fact that the contract between the 1^st and 2^nd defendants provides for the fact that fresh water should be used for drilling by the 1^st defendant.

62. Whilst it is not necessary for me to go into whether the 1^st defendant was in breach of that contract between them, such breaches, if any, being irrelevant to the dispute between the plaintiff and the defendants, I have little doubt that the rationale behind such a term in the contract between the 1^st and 2^nd defendants is that water, other than fresh water, if used on worksite and discharged therefrom after use, may adversely affect other land users in the vicinity.

63. Whilst I note the evidence from Mr Kwok was that oral consent was given to the 1^st defendant by Mr Fong to use seawater for drilling, even if that was the case, I cannot imagine that the 2^nd defendant, as a responsible site investigator, would have simply given a blanket approval for the use of seawater without laying down conditions as to the proper discharge of the seawater after use by the 1^st defendant.

64. For the reasons given, I find that it ought to have been reasonably foreseeable to the defendants that the discharge or escape of seawater from its worksite may likely cause damage to crops or plants grown in nearby land.

         (C)     Novus actus and/or contributory negligence

65. It is submitted by the defendants that the fact that the plaintiff elected to obtain water for irrigation from Pit A is a novus actus interveniens on the part of the plaintiff, thus breaking the chain of causation.  Therefore, the defendants should not be responsible.  Alternatively, it amounts to contributory negligence on the part of the plaintiff.

66. I also do not accept this submission by the defendants.

67. The Water Pollution Control Ordinance and/or its subsidiary legislation recognise that one of the beneficial use of Inland water, whether it is rainwater or water from a stream, may be for irrigation purposes.

68. The plaintiff has been using such natural water collected at Pit A for some 26 years for irrigation purposes on the plantation, something that not only was he well entitled to do, but also recognised by legislation to be a proper user of such water.

69. On the other hand, the escape or discharge of seawater from the worksite was itself the tortuous act of the defendants and in breach of the rule in Rylands v. Fletcher.  For that tort, there is no requirement that the dangerous thing collected by the tortfeasor must escape directly onto the victim’s land or property.  It is sufficient if, as a result of its escape, damage is caused to the victim.  That is the case here.

DECISION

70. For the reasons given above, I find that the collection or storage of seawater on the defendants’ worksite was an unnatural use of the defendants’ land.  That in allowing the seawater to escape from the worksite and resulting in the damage to the plaintiff’s crops and plants, both defendants, being the occupiers of the worksite, are liable to the plaintiff for negligence, nuisance as well as being in breach of the rule in Rylands v. Fletcher.

71. In coming to this conclusion on the issue of liability, I have also taken into account the fact that the defendants saw fit to cleanse out Pit A as well as the catch pits on the plaintiff’s plantation and to refill the same with fresh water shortly after the complaint was made by the plaintiff.  There was no evidence to suggest that that work was undertaken by the defendants on a without prejudice basis.

72. I can only assume, therefore, that once the complaint was made, the defendants must have accepted responsibility for the damage caused to the plaintiff’s crops on his plantation due to the discharge of the seawater from the worksite and thereupon undertook to carry out the remedial measures for the plaintiff by undertaking such works.

Damages

73. I turn now to deal with the quantification and assessment of the damages suffered by the plaintiff.

74. The plaintiff claims three heads of damages.  The first head claimed is for HK$297,900.00, being the loss for crops and plants for the year 2001.  The second head of damage claimed in the amount of HK$601,947.00 relates to loss of crops and plants to be sold for the Lunar New Year 2002.  The third head of damage claimed is for the loss of the irrigation system in the amount of HK$25,000.00.

75. The claim for the loss of the irrigation system was, however, abandoned by counsel for the plaintiff in her final submission on the basis that the evidence given by the plaintiff cannot support that claim.

76. Accordingly, it only remains for me to deal with the first two heads of damage claimed relating to the loss of crops and plants for the years 2001 and 2002.

77. I shall deal first with the first head of damage, namely the loss of crops and plants for the year 2001.  A full break down of the amount claimed has been particularised in the Amended Statement of Claim.  I do not propose to repeat those particulars here.

78. The first four items, namely, Calamondin Orange, Tangerine, Red Orange and Mandarin are all Lunar New Year plants grown in pots intended for sale before the first day of the Lunar New Year 2001.  When sold, the entire pot of the plant is sold.  In 2001, Lunar New Year day fell on 24 January 2001.

79. As for the next four items, namely, wampei, corn, papaya and lychee, it is the fruits from these plants that are sold.  In the case of wampei, papaya and lychee the fruits are grown on trees, and it is only the fruits that are sold without selling the trees.  In the case of corn, each plant with the corn on it is sold.

80. For this head of claim, the plaintiff relies on two certificates, one given by Mountain City Plant Co. and the other given by Mui Yuen Art Garden.  These certificates were given on 16 and 17 March 2001 respectively after a survey was carried out as to the damaged crops on the plaintiff’s plantation by those who prepared the certificates.  Both certificates list out the quantity of the plants surveyed as well as the range of the retail price for those plants immediately prior to the Lunar New Year 2001.

81. The quantity of the eight types of plants and trees contained in both these certificates conform, by and large, with the quantity of the plants and trees particularised in the breakdown in the Amended Statement of Claim.  The one exception is that the number of plants of corn claimed by the plaintiff is 950 while in both certificates, it was stated to be about 650 plants of corn surveyed.

82. There is, however, evidence from the plaintiff to explain away this apparent discrepancy.  The plaintiff’s evidence was that in January 2001 he had grown 950 plants of corn on the plantation but because of the damage to the corn by the salt water, much of the corn turned yellow, withered and died.  After the survey was carried out by the defendant’s loss adjusters of the damaged crops, much of the corn was plucked away and disposed of.  It must therefore follow that when the surveys were carried out by Mountain City Plant Co. and Mui Yuen Art Garden, the number of corn plants on the plantation was different from the quantity in January 2001.

83. As for the extent of the damage, the evidence from Tang Chun Ting, the representative from the loss adjusters of the defendants, when cross-examined, was that on his visit to the plantation in mid January 2001, he saw that about 20% of the leaves of the crops had turned yellow, and some even brown colour.  He agreed that a reasonable consumer would not buy the plants that he saw on the plantation.  As for the corn, he saw that they were yellow and dry, and that the damage was worse for the corn.

84. He also gave evidence that when he visited the plantation again in mid March 2001, he noticed that the condition of the plants was worse than on his first visit.

85. Despite the fact that Mr Tang had visited the plaintiff’s plantation on two occasions in January and March 2001 to view the damaged crops, no challenge has been made by him as to the quantities of the plants and crops now claimed by the plaintiff to have been damaged.

86. In so far as the quantities are concerned, the plaintiff has given evidence of the quantities of the respective crops and plants on which he claims.  Those quantities are corroborated by the two certificates from Mountain City Plant Co. and Mui Yuen Art Garden.  I accept the evidence of the plaintiff and Tsui Lai Fan from Mui Yuen Art Garden as to the quantities of the damaged crops and plants.

87. As for the unit price, the plaintiff has relied on the retail price given in the two certificates and has taken the lower end of the range of the prices given in quantifying his loss.

88. It was submitted by the defendants that I should accept the average price given in the Crop Assessment Schedule made by the relevant government department, namely, the Crop Assessment Section of the Agriculture, Fisheries and Conservation Department when an assessment of the plaintiff’s crops was carried out in September 2001 to assess the ex gratia payment to be made to the plaintiff for the crops on his plantation because the government had given notice to the plaintiff to vacate his plantation due to the termination of his license.  Initially, the plaintiff was required to vacate the plantation by the latest on 18 January 2002.  Subsequently, the license was extended to March 2002 before the plaintiff was required to vacate the plantation.

89. It is true that the prices stated in the Crop Assessment Schedule is substantially below the retail prices claimed by the plaintiff particularly so for the Lunar New Year plants.

90. Under the heading of “crop ex-gratia rates and assessment criteria” contained in a document entitled “Brief Introduction to Work of Crop Assessment in Agriculture, Fisheries and Conservation Department”, it is stated that the ex-gratia allowance reflects the market values of the crops which is computed from price data generated from wholesale markets and territory-wide farm and market survey.

91. Moreover, it also states in the following paragraph of that document that non-transplantable items such as vegetables are awarded the full crop ex-gratia rates, while transplantable items such as tree saplings or other nursery stocks as well as closely planted or newly planted crops are awarded a percentage of the full ex-gratia rate to reflect the cost and loss incurred upon transplanting.  Ex-gratia allowances for potted plants reflect the costs incurred upon removal.

92. From this document, it is clear that the prices stated in the Crop Assessment Schedule for the assessment carried out in September 2001 may well be far removed from the retail prices which such plants may fetch when sold jut before the Lunar New Year.  Moreover, the Lunar New Year plants in question here are all potted plants, the ex-gratia allowance for which are only intended to reflect the costs incurred upon removal.

93. For these reasons, I am not prepared to give weight to the prices as contained in the Crop Assessment Schedule where those prices differ from the retail prices given in the two certificates.  I accept instead the retail prices given in those two certificates as well as the evidence given by Tsui Lai Fan in respect of those prices.

94. In so far as the first four plants are concerned, namely Calamondin Orange, Tangerine, Red Orange and Mandarin (all being Lunar New Year plants), the claimed amount for them total $268,000.00.

95. A further piece of evidence which I need to take into account in assessing damages is that according to Tsui Lai Fan, it is that usually about 90% of the Lunar New Year plants are sold during the Lunar New Year period and those unsold plants are re-grown and kept to be sold the following year.

96. Taking that evidence into account, it is reasonable for the total claimed amount for the four Lunar New Year plants to be discounted to 90% which comes to $241,200.00

97. As for the remaining four items of wampei, corn, papaya and lychee, the claim by the plaintiff is based on the reduction of the fruit produced due to the effect of the salt water.  The total amount claimed for all these four types of plants comes to $29,900.00 and will be allowed in full.

98. Therefore, the total damages assessed for the loss of crops and plants for the year 2001 comes to $271,100.00.

99. I turn now to deal with the second head of damage claimed, namely, the loss of crops and plants for the year 2002.

100. As already stated above, the plaintiff’s license to occupy the plantation was extended to allow the plaintiff to remain on the plantation until March 2002.

101. It is the plaintiff’s case that he continued to cultivate Lunar New Year plants on his plantation after Lunar New Year 2001 with a view to selling such Lunar New Year plants in the following Lunar New Year.  However, because of the salt in the soil resulting from the salt water used for irrigation up to 8 January 2001, he could not sell the Lunar New Year plants during the Lunar New Year 2002.

102. The second head of claim relates only to four items of Lunar New Year plants, namely, Mandarin (59 in quantity), Tangerine (9), Calamondin Orange (562) and Oval kumquat (442).  The total amount claimed in this second head of claim comes to $601,947.00.

103. Although in an earlier part of this judgment I declined to give weight to the prices listed in the Crop Assessment Schedule prepared by the Agriculture, Fisheries and Conservation Department, there is another aspect to the Crop Assessment Schedule to which I must have regard.  This second aspect deal with the grading of the crop assessed.  The Brief Introduction to Work of Crop Assessment states that all crop items are assessed as either Grade A, B, C, D or E depending on its quality, which is observed from its growth condition : whether the crop is strong, whether the canopy is luxuriant, whether it is infested by pests and disease, as well as taking into account other cultural details such as whether there is sufficient field management, whether the crop has been properly irrigated, fertilised or pruned/thinned.  Based on these above criteria, best managed and most luxuriantly grown crop is Grade A; Grade B is above average; Grade C is just average; Grade D is below average and Grade E is far below average.

104. When the plaintiff’s crop was assessed in September 2001, only one out of the 59 crops of Mandarin was found to be far below average of Grade E; all nine of the Tangerine crops were of Grade B; 26 of the 562 crops of Calamondin orange were found to be Grade D or E and two of the 442 crops of Oval kumquat were of Grade D.

105. Even though I was not prepared to give weight to the prices stated on the Crop Assessment Schedule in the earlier part of this judgment, for the reasons given above when dealing with that aspect, the grading of the crops ranging from Grade A to Grade E is quite a different matter.  I am prepared to give weight to the grading made by the Crop Assessment Section.  The reason for that is there can be no good reason for the Crop Assessment Section to unnecessarily upgrade the crops when making the assessment since the higher the grade of the crops assessed the more ex-gratia allowance will have to be paid.

106. In the circumstances, that result of that assessment in terms of grading resulting in only a small portion of the Lunar New Year plants being either below average or far below average indicate that the effect of the salt in the soil had probably been to a large extent remedied by September 2001, albeit that both the plaintiff and Mr Tang’s evidence was that the crops was seen to be worse off in March than in January of 2001.

107. I shall, on that evidence, draw such distinction from the grading and compensate the plaintiff only for such of the crops as were assessed to be of either grade D or E, namely below average or far below average.

108. The amount of that damage is assessed to be :

	$
1 Mandarin plant @$1,256.00	1,256.00
26 Calamondin orange plants @$735.00	19,110.00
2 Oval kumquat plants @$252.50	505.00
Total :	20,871.00

Conclusion

109. Accordingly, there will be judgment for the plaintiff against both defendants for the total amount of $291,971.00.

Costs

110. There will be a costs order nisi that the plaintiff has the costs of the action against both defendants, to be taxed on the District Court scale if not agreed.