LAM YUK FUNG AND ANOTHER v. ATTORNEY GENERAL AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is an action for damages in nuisance. By a deed of assignment dated 30th April 1970, and registered in the Lands Office by Memorial No. 735383, the two plaintiffs became the leaseholders of Inland Lot No. 4986, together with the premises erected thereon, known as 83, Wellington Street, Victoria, for the residue of a term of 999 years commencing from 26th June 1843. Consequent upon some modifications in the lease the plaintiffs started redeveloping this piece of land starting in about July 1980. With the resumption by the Government of the adjoining piece of land, No. 81, at about this time, the subject premises became the corner plot at the intersection of Wellington and Cochrane Streets in the Central District. Occupation permit for the new premises was issued on the 7th July, 1983 - Ex. P2.

2. Paragraphs 4 and 5 of the amended statement of claim state as follows :

3. The plaintiffs allege that their use and enjoyment of their premises aforesaid have been adversely affected and the matters complained of have interrupted and interfered with their ability to sublet the shop display and restaurant units on the lower floors and business units on the upper floors, whereby they have suffered loss and damage. The damages claimed are for loss of rentals, calculated at a rental of $30,000.00 per month for the basement, lower and upper ground floors, less actual rental received, that is, $20,000.00, making a total of $358,933.34.

4. The plaintiffs claim for an order declaring that the defendants have no right to maintain a refuse collection point outside 83 Wellington Street in lieu of an injunction restraining them from so maintaining a refuse collection point, and damages.

5. The defendants deny that the refuse collection point which was moved to 83-87 Wellington Street from the site at 95-97 Wellington Street is a nuisance as alleged in paragraph 5 of the statement of claim. Paragraph 8 of the re-re-amended defence states :

"8.    The defendants 1 and 2 were at all material times carrying on the refuse collection undertaking mentioned in the statement of claim pursuant to statutory powers and duties conferred upon them by the Waste Disposal Ordinance (Chapter 354 hereafter 'the Ordinance') in particular section 9 thereof. If, which is denied, any injury loss or damage has been or will be caused to the plaintiffs by the exercise by the defendants 1 and 2 of their said statutory powers and duties, the plaintiffs have no cause of action in respect thereof."

6. Mr. Au Yeung Kam-shing (P.W.1) is the husband of the second plaintiff, and the first plaintiff is the wife of his brothers. He said that he is the agent of the plaintiffs and in charge of the premises at No. 83.

7. It may be convenient if I were to set out the position of the Urban Council at this early stage. It is a statutory body, established by the Urban Council Ordinance (Cap. 101), with its functions set out in section 24, in so far as is material, as follows :

"24.    The Council shall -

 

Section 25 sets out the powers of the Council. Subsection (c) empowers it to acquire and hold property of any description which is necessary for the performance of any purpose which it is required or permitted by any Ordinance to perform, and subsection (f) states :

By virtue of section 27, the Council discharges its functions through the Urban Services Department (USD) under the Director of Urban Services and is enjoined to do "all acts and things necessary for implementing the decisions of the Council or of any committee thereof to which the Council may have delegated the exercise of any of its powers under this or any other Ordinance."

8. And section 9 of the Waste Disposal Ordinance (Cap. 354) states :

Section 2 defines "Collection Authority" in respect of the urban areas as the Urban Council.

9. I need mention one other document. It is the Policy Manual of the Urban Council - Ex. D2. This was compiled by the Council Secretariat in April 1982. Policy on cleansing is to be found in Section E which, according to the footnote on its title page, was last reviewed by the Environmental Hygiene Select Committee on 3rd July, 1981. Part I deals with the major aims of public cleansing to which I shall have occasion to refer later. Part II sets out the Policy Rulings, and (a) deals with waste collection. In so far as is material, those rulings are :

10. In these proceedings, the waste collection point has been referred to as the refuse collection point (RCP).

11. From the evidence adduced, it seems clear that such RCPs have existed in the urban areas for a very long time indeed. P.W.1 had seen the USD collect refuse from such points since his boyhood days. Mr. Cullen (P.W.2), who is a Chartered Surveyor and Valuer, said that refuse collection has been necessary in Hong Kong since its establishment and Mr. CHAN Wing-yuen (D.W.3) who is presently the Acting Senior Health Inspector with the USD, in whose area of jurisdiction in Central falls Wellington Street, said that there has been on-street collection of refuse ever since there has been refuse collection in this Colony.

12. Learned Counsel for the Crown, Mr. Burdett, went to considerable length in arguing the necessity for such on-street RCPs. This was obviously in an attempt to meet what learned Counsel for the plaintiffs, Mr. Pritchard, said in his opening address that one of the ways of avoiding any nuisance from on-street or this particular RCP was simply not to have them at all. I accept that the task of waste collection is not new. I also accept that, in special circumstances, in the words of Lord MacNaghten in Commrs. of Income Tax v Pensel (1891) AC 531 where one finds "legislation following a continuous practice and repeating the very words on which that practice was founded, it may perhaps fairly be inferred that the legislature in re-enacting the statute intended those words to be understood in their received meaning." It is thus permissible in the construction of the provision of the law we are here concerned with to look at its forerunner, section 16 of the Public Health and Public Services Ordinance (No. 30 of 1960), which was in these terms :

"16. The Authority may, in its discretion, provide services, or by licence or contract permit any other person to provide services for the removal and disposal of house refuse and street refuse and the cleansing and emptying of pail latrines and the removal and disposal of excreta]. matter therefrom."

13. I will accept as reasonably correct the comment made by Mr. Burdett that some twenty years later when the legislature enacted the present Ordinance - Cap. 354 - which originally was No. 8 of 1980 "there could not have been one member of the LEGCO who did not know that the Urban Council used on-street RCPs in their refuse collecting function." I accept also that in retaining the old provision, albeit with slightly different wording which does not change its effect, LEGCO must have intended that the Urban Council should have, as learned Crown Counsel said, through this section power to administer refuse collecting services in the same way as it had been doing for the last 20 years.

14. On this basis, it must be accepted that refuse collection by means inter alia of on-street RCPs must have been in the contemplation of the legislature in providing for section 9.

15. P.W.1 said that he noticed in early 1980 that a RCP had been moved from elsewhere to the junction of Wellington Street and Cochrane Street. D.W.3 said that it was moved from outside No. 97 Wellington Street with the intention of transferring it to No. 87-89, but due to the proposed widening of Cochrane Street the Traffic Engineer of the Transport Department required it to be positioned outside No. 83, 85 and 87.

16. P.W.1 said that after the re-positioning of this RCP, large quantity of refuse was left in front of the subject premises and at the corner between 10 a.m. and 6 p.m. when he left the office. In relation to the frontage of No. 83 to Wellington Street, he said that refuse occupied an area of about 4' x 10', covering both the pedestrian pavement and the carriageway. Under cross-examination he said that what he meant was that before and after a collection by the USD truck, refuse kept coming. D.W.3 agreed that immediately after the move of this RCP, there was quite a lot of illegal dumping. He said that he dealt with the situation in two ways : first, by instituting prosecutions against the offenders; secondly, by asking the Government Estate Surveyor to allocate the vacant land at No. 81 which had been acquired by the Government for the widening of Cochrane Street, to the USD for an off-street RCP. But the Highways Office objected and they were allowed to use it only as a refuse storage  chamber and they started using it as such from May, 1982. D.W.3 said that despite his efforts during 1981 to the beginning of 1982, refuse was on the street most of the time, but the use of the vacant land at No. 81 improved matters considerably.

17. Meantime, the redevelopment of the subject premises was proceeding. In about May, 1983 the wooden fence on No. 81 along Cochrane Street came down and, because of the road works which were then going on, the RCP was moved a little towards No. 85 and 87, to be brought back to its previous position outside No. 83 after the road works were completed. After the wooden fence was demolished, No. 81 was left open for some time until the 23rd July, 1983 when an enclosure of yellow hoarding was erected on it. This is to be seen in the photographs, Ex. P8 (A-E), which P.W.1 produced. It was agreed that these were taken on 25th July, 1983, two days before the USD took over the yellow enclosure. It was also agreed that the photographs in which the collection truck does not appear were taken in the morning, those in which it is seen in the afternoon. P.W.1 said that the refuse seen in the middle photograph on Ex. P8(A) was average. He said that the lower photograph on Ex. P8(B) depicted a typical accumulation of refuse in the morning and the two on Ex. P8(E) the typical scene at the time of collection of the refuse by the truck.

18. I find that, contrary to the earlier assertion of D.W.3 that the situation improved considerably from May, 1982 onward since they started using the vacant land in No. 81, the position of refuse collection outside the subject premises remained, as he admitted, as that depicted in those photographs which show a substantial amount of refuse strewn on the pavement in front of the entrance of the subject premises.

19. I have reached the position as it was at about the 25th July, 1983. I shall have to back-track a little at this stage. The plaintiffs were issued the occupation permit - Ex. P2 - on 7th July. On this basis in May, 1983 the new building was nearing completion. According to P.W.1 many people viewed the premises, and several showed interest in renting them. Among them was one Mr. FAN, the Manager of Yat Pin Heung Restaurant who was agreeable to take the basement, the lower and upper floors at a rental of $30,000.00 per month for a period of three years. However, on 1st July, 1983, P.W.1 received a letter from Mr. FAN - Ex. P3 - which reads :

20. This led to exchange of some letters. On 14th July, the plaintiffs' solicitors wrote to the Director of Urban Services - Ex. P11 - pointing out that negotiations for letting the premises broke down "solely because there is a refuse collecting centre immediately in front of the premises", which not only caused their clients considerable inconvenience but could be regarded as a nuisance. A request was made to "forthwith remove the refuse collecting centre to other adequately places (sic)". This brought a response from D.W.3 dated 25th July, 1983 - Ex. P12 - in which he set out three measures which they were taking to maintain this on-street RCP in an acceptable condition. On 27th July, Mr. Cullen (PW2) wrote to the Chief Estates Surveyor of the Lands Department (Ex. P13), asking for immediate action to have the RCP removed, failing which the owners would take action to seek compensation for loss of rental due to this nuisance. The reply is dated 17th August, 1983 - Ex. P14 - stating that the use of the vacant site at No. 81 as a RCP was a purely temporary measure until, as Mr. Chan had said in Ex. P12, a purpose-built facility in Gage Street was built. The inconvenience posed by the temporary facility was appreciated and the writer was endeavouring to find out what could be done to speed up the opening of the permanent RCP.

21. I will now go back to 25th July, 1983. The yellow enclosure was taken over by the District Office of the USD on the 27th July; and it was to remain on No. 81 until 24th December, 1983 when it was removed.

22. P.W.1 maintained that from July, 1983 onward until April, 1984, refuse was still left at this RCP outside No. 83 and was collected from the pavement. He said that there was much odour which he described as a "stingy" smell. A sign post indicating collection times - Ex. P4 - was also put up. He said that in April, 1984, people were allowed to deposit refuse forthwith into the truck, saying that they came upon the arrival of the truck. D.W.3 said that after the storage of refuse in the yellow enclosure started, illegal dumping of refuse reduced. Nevertheless, rubbish was still to be seen at some times of the day : it was visible before the 6.30 a.m. collection and refuse started accumulating within 15 minutes of that collection at 8 a.m. until the next collection time of 9.15 a.m. - 9.45 a.m., reaching a peak between 10 a.m. - 10.30 a.m. He said that an attendant would remove such accumulated rubbish into the yellow enclosure pending the next collection at 12.30 p.m. - 1.40 p.m. It is pertinent to point out that the existence of such an attendant was not put to P.W.1. However, D.W.3 said that there was no illegal dumping for the rest of the afternoon until about 5 p.m. when it started again until the next collection time, 7 p.m. - 8 p.m., and continued after the collection at 8 p.m. He said that night patrols by the USD foremen were introduced in 1982 which functioned once a week, the foremen having the power to institute prosecutions against the offenders.

23. D.W.3 maintained that from the end of October, 1983 the condition of the street had become very good. He said that after the removal of the yellow hoarding the USD had nowhere to store refuse but he maintained that by then illegal dumping had ceased to a great extent, though it still occurred between mid-night and 6.30 a.m. He said that there was none after 8 a.m. or at what previously was the peak hour. D.W.2 and D.W.3 said that from May, 1984 it became a rule for people to come to this RCP ten minutes before the arrival of the truck and were required to wait until their refuse was loaded onto the truck. The situation improved to acceptable level, the collection at 9.15 a.m. was done away with and a new sign post was erected, warning against dumping outside the collection hours. Also, street washing was started twice daily after the 6.30 a.m. - 8 a.m. collection and after the noon time collection. D.W.3 said that since May, 1984 this RCP is properly regulated, and there is no smell.

24. It is obvious that there is not much dispute about the factual state of affairs in Wellington Street. It is also clear that after the letters of complaint sent out in July, 1983, the first sign of improvement was noticed by P.W.1 in April, 1984. I find that between these dates refuse was being left outside the premises at No. 81 very much like before. In reaching this conclusion I take into account also the admission made by D.W.3 that the prosecutions in 1983 when he said the position was on the mend were in fact 20% more than in 1982 when according to him the situation was worse. I do not overlook the admission of D.W.3 which came under cross-examination that until July, 1983 they did not consider this particular RCP important because the building was then under construction.

25. Considering all this evidence, I find that the preponderance points to the probability that for well after the issue of the occupation permit on 7th July, 1983, the position of refuse collection outside No. 83 was as seen in the photographs and remained such until the beginning of 1984. The scenes depicted in those photographs taken together with the evidence of P.W.1 regarding the stingy smell lead me to the irresistible inference that such accumulation of refuse outside the subject premises constituted an invasion of the rights of the plaintiffs, hence it amounted to a nuisance.

26. After Mr. FAN withdrew from the provisional agreement to rent the premises, P.W.1 displayed advertisement signs on the premises, advertised in a local paper on one occasion and also instructed Mr . Cullen to look for prospective tenants. Two such tenants were found with whom tenancy agreements were finalised effective from 11th April 1984 and 12th May 1984 respectively.

27. At the start of his final address, Mr. Burdett conceded that the collection of refuse outside the subject premises did to some degree constitute a nuisance. When the court resumed the following day, he clarified this by dividing the nuisance suffered by the plaintiffs into two categories : first, that which inevitably was the result of the USD going about their lawful business in respect of this RCP; the other being nuisance suffered as a result of the illegal dumping by persons unknown. With regard to the latter, he submitted that the defendants could not be held liable for the action of persons unknown who dumped their refuse on the street without their knowledge or acquiescence. He relies on Sedleigh-Denfield v O'Callagan & Others (1940) 3 All E.R. 349 (HL). Mr. Pritchard counters this submission by saying that the position here is analogous to the nuisance well recognised in law of causing crowds to gather in public places, and he relies on Barber v Penley(1893) 2 Ch. 447 and Lyons, Sons & Co. v Gulliver (1913) 1 Ch. 631.

28. It seems to me that the answer to learned Crown Counsel's submission is to be found in the authority cited by himself. In Sedleigh-Denfield case, lord Wright had this to say at p.365 :

"Though the rule has not been laid down by this House, it has, I think, been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable, a further condition is necessary - namely, that he had knowledge, or means of knowledge, that he knew, or should have known, of the nuisance in time to correct it and obviate its mischievous effects. The liability for nuisance is not, at least in modern law, a strict or absolute liability. If the defendant, by himself or those for whom he is responsible, has created what constitutes a nuisance, and if it causes damage, the difficulty now being considered does not arise; but he may have taken over the nuisance, ready made as it were when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it."

29. Considering the evidence, it is abundantly clear that from 1980 when this RCP was moved to outside the subject premises onward, there always has been a sign-post indicating it was a temporary RCP, and indeed even to this day there is such a sign-post there. There is no dispute on this aspect of the evidence : P.W.1 mentioned such a signpost, so did D.W.3 who said that at the time when they tried after May, 1984 to eliminate the refuse collection at 9.15 a.m., a new warning sign was put up there, not to dump refuse outside the collection hours. I find that in these circumstances where people were required to take their rubbish to this RCP and some of them did that but outside the collection hours of which the defendants were well aware throughout the period from 1980 until about April, 1984, the defendants cannot now be heard to say that this was a probability in the natural course of events of which they had no knowledge or of which they could not reasonably be expected to have known. Perhaps they would not know of the identity of such persons, but I find that in the testimony of both D.W.2 and D.W.3 there is an abundance of evidence to show conclusively that they knew that such dumping of refuse outside the designated collection hours was a regular occurrence at this RCP. I further find that during the period aforesaid, the defendants suffered the nuisance so created without taking reasonably prompt and efficient means for its abatement, thus continuing the nuisance by persisting with the same collection procedures, obviously on the basis that as late as 1983 while the building at No. 83 was under construction, this RCP was not an important matter; changes in the procedures and enhanced effort on the part of the USD personnel becoming apparent only after the various written complaints were lodged about the nuisance and the results thud achieved being visible to P.W.1 in April, 1984. On this basis and with respect, I am not persuaded that there is any substance in this submission.

30. Regarding the main submission of the defence, I think that it is trite to say that what is done under statutory authority is lawful action of which no one is entitled to complain. Even if the statute merely confers a power to act, as distinct from a duty, a defendant will still escape liability in tort if interference of the type in question was an unavoidable consequence of the exercise of the power. Happily we are in very well charted and defined area of the law. In Manchester Corporation v. Farnworth (1930) A.C. 171, VISCOUNT DUNEDIN stated the law in these terms :

"When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rightly defined, of practical feasibility and of expense.''

Learned Crown Counsel submitted that s.9 gives the Council power to provide services for the removal of household waster and other forms of refuse, which power cannot be contemplated to be in the abstract. He said that it provided to enable the Council to provide a service without which the community would rapidly disintegrate. I do not think that anyone would take issue on these general comments. Referring obviously to the evidence of D.W.2 learned Crown Counsel pointed out that the service could only properly be provided if there are on-street RCPs, and he argues that the power given by s.9 must include the power to provide such RCPs.

31. D.W.2 is Senior Health Inspector POON Yue-hoo, who is now the Acting Staff Officer in the Cleansing Section of the USD, with which he has served for some 25 years. He referred to the major aims of the policy of the Council as set out in the Manual (Ex. D2). Those are stated to be :

Whereas Mr. Cullen argued very strongly for the provision of more purpose built off-street RCPs as one of the alternative measures, he agreed that (1) the Town Planning Board is the final government body which would implement the exquisition of land for such disposal of waste facility and representations by the USD would clearly be in order, the Council having no power of itself to resume land; (2) if the Council has for long pressed for permanent off-street RCPs to be provided through land resumption or any other means, he accepted the long term objective of the policy of the Council in providing off-street refuse collection facilities; (3) he had no evidence that the Council does not press their case with appropriate force; (4) in principle he had no quarrel with the policy of using such temporary on-street RCPs in the meantime.

32. The measure of the Council's endeavours is to be seen in the evidence of Mr. POON that as a result of Council policy, 56 purpose built permanent RCPs were built over a period of 12-15 years. Besides which are 52 temporary off-street collection points. He also highlighted the difficulties of the Council in getting allocations of land for this purpose, viz., difficulty of getting land in developed areas, extreme competition which it faces both from private and governmental bodies for acquiring land, and the problems of diplomacy and public relations involved in land resumptions as can be seen with the site in Gage Street which was offered to the Council as long ago as 1977 but the RCP has still to be completed. In the context of Hong Kong, its area and the availability of land, it is quite apparent that the problems mentioned by Mr. POON are indeed very real and understandable. It must follow therefore that in the exercise of its statutory power under s.9, the Council has to adopt other means, which are mentioned in its policy rulings in the Manual, quoted by me earlier on.

33. D.W.2 said that the USD or the City Services Department do not conduct house to house collection of refuse in any part of the urban area. With particular reference to Wellington Street, he said that this measure, besides being very expensive, will lead to obstruction and the residents will find it difficult to have suitable places for their dust bins.

34. Considering the evidence, I find that the on-street RCPs is a necessary measure in this exercise until such time that appropriate land allocation is made for purpose built off-street collection centres. That, of course, depends on a number of factors as already seen, and must remain a long term objective in the achievement of which the Council has not been shown to be failing or lacking in its efforts. In reaching this conclusion I have not lost sight of learned Crown Counsel's comment that the RCP provides one of the best examples which could be envisaged of individuals suffering a degree of inconvenience for the benefit of the community as a whole; such inconvenience at times amounting to nuisance. He sought support for this from Allen v. Gulf Oil Refining Co. Ltd., (1981) A.C. 1001 where he said that the House of Lords had interpreted the statutory provision involved in that case on this basis of public benefit. There the question was, as I see it, whether the Act of Parliament which authorised compulsory acquisition of land for the purpose of building a refinery included the authority to operate it. That was a private Act promoted by the appellants, and so they necessarily had to satisfy Parliament that the powers they were seeking were in the interests of the public to whom Parliament is responsible. With respect I do not understand that the construction of that provision which the House there had before them turned on this issue of public benefit. I think that it is correct to say that it is no defence that the nuisance, although injurious to the individual plaintiff, is beneficial to the public at large. A nuisance may be the inevitable result of some manufacture or other operation that is of undoubted public benefit - a benefit that far outweighs the loss inflicted upon the individual but it is an actionable nuisance nevertheless.

35. This will lead me to the submission of learned Crown Counsel that those exercising such power should only be liable for such nuisance as is caused by their negligence. He relies particularly on the speech of LORD EDMUND-DAVIES at p.1015 where he dealt with the burden of proof in the following terms :

"The burden will be upon the plaintiff to prove nuisance or negligence, arising from the construction or operation of the refinery. On the other hand, it would be for the defendant to establish that any proved nuisance was wholly unavoidable, and this quite regardless of the expense which might necessarily be involved in its avoidance, whereas he will clear himself of negligence if at the end of the day it emerges that any discomfort suffered by the plaintiff arose despite his exercise of reasonable care."

As LORD WILBERFORCE pointed out at p.1011 of the same report, "negligence" hers is used in a special sense ''so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons ........"

36. Thus it seems quite plain that the test of the necessity of a consequence is the impossibility of avoiding it by the exercise of due care and skill. Mr. Pritchard said that even if learned Crown Counsel's argument about the necessity of having such an on-street RCP succeeded, as indeed it has, his task did not end there. He submitted that it had still to be shown on this issue that there is no means using a reasonable amount of effort and skill to avoid the nuisance. Mr. Burdett Pointed to various examples of the diligence of the Council, namely, the prosecutions launched against the offenders for illegal dumping, changing the procedure whereby house-holders were required to bring their refuse within 10 minutes before the arrival of the collection truck and waiting there until it was loaded, the street washing up twice a day, the heirarchy of authority from the attendant upward and the night patrols. It is to be emphasised however that not all of these measures were actually in force at the material time and these were enforced with greater vigour only after complaints were made in July, 1983 subsequent to the breakdown of the negotiations with Mr. FAN for renting the three floors, and were in fact fully implemented in April or May, 1984. The approach adopted in Edgington v. Swindon Corporation, (1939) K.B. 86 commended itself to learned Crown Counsel. However, with respect, it seems to me that the case of Provender Millers (Winchester) Ltd. v. Southampton County Council, (1940) 1 Ch. 131, cited by Mr. Pritchard comes close to the instant case. The headnote of the report reads :

"A public authority, pursuant to their statutory duties in respect of bridges and highways, inserted a new culvert in a stream so as to give extra support to a highway passing over the stream, and did this and other work to prevent the flooding of the highway at certain times of the year. As a result of this work they diminished the natural flow of a river, thereby causing injury to the owners of a mill by preventing sufficient water to supply the necessary water power from reaching it."

37. It was held, inter alia, that the authority had failed to discharge the onus of proving that their obligations could not be performed in any other manner. According to the judgment of FARWELL, J. (at p.141) when the experts called by the defendants were cross-examined, "it became quite clear that they were not saying that the work could not have been done in any other way, but that they meant that, having regard to all the circumstances, it was from an engineering point of view a proper thing to do." One of the experts had said that if he had to do the job he would not have foreseen the result which had happened.

38. Now, in the present case, I have no doubt that the collection of refuse is necessary. The evidence on behalf of the defendants has satisfied me that collection of refuse in Wellington Street by means of an on-street RCP was essential. But in order to dismiss this action I have further to be satisfied that there was no other way of doing this work and in that regard the onus is on the defendants, or in terms of the test which I mentioned a little while earlier, the necessity of the consequence being in the impossibility of avoiding it by the exercise of due care and skill. As I said, the various measures which Mr. Burdett highlighted in support of showing the requisite degree of diligence on the part of the defendants in an effort to avoid liability have to be related to the period in question, which has to be considered in the situation as it then was and to view it with "a certain common sense appreciation ..... of practical feasibility in view of situation and expense." What that situation was I have already described, and what it was after the complaints of the plaintiffs also. Mr. Pritchard says that comparing the two, it is proved affirmatively that there were quite economical and reasonable means by which the nuisance which had existed outside No. 83 in June, 1983 or thereabouts could be reduced to what Mr. CHAN said acceptable levels. He said that had those steps which were taken since the complaints by the plaintiffs been adopted two years earlier as the USD could have done, the situation would have been the same as today. With this I agree completely. The steps taken by the USD after those complaints were quite simple measures based on common sense approach and were just as feasible and enforceable some two years before. Keeping pace with scientific knowledge or mechanisation of refuse collection procedures did not enter into consideration in those measures as such. It has not been shown why the same measures to abate the nuisance arising from the manner in which the defendants exercised their power could not have been implemented much earlier, the only explanation for this inaction being that because the plaintiffs' building was at the time still under construction, the RCP was not considered important. That surely was a complacent attitude of the nature which falls within the ambit of negligence in its special sense applied in cases of nuisance. In the circumstances I find that the nuisance which existed at the material time which resulted in the cancellation of the negotiations with Mr. FAN and held up the letting of the premises until April, 1984 was not the inevitable consequence of what the Legislature has authorised the Council to do.

39. Now to the issue of damages. Mr. Burdett submitted that although a subpoena for Mr. FAN was obtained he was not called with the result that he was not in a position to cross-examine P.W.1. He said that the matter of the negotiations was left uncertain, as there could be many reasons for a prospective tenant to withdraw from a provisional agreement. P.W.1  was not challenged about the provisional agreement with Mr. FAN and I think that Mr. Pritchard is justified in saying that there was thus no need for him to call Mr. FAN.

40. Learned Crown Counsel submitted that the provisional agreement should not form the basis for calculation of the damages on the ground that there was evidence from the two valuers, one for each side. I am inclined to agree with Mr. Pritchard that the evidence of P.W.1 remaining unchallenged on this issue, the question is whether on balance Mr. FAN would have entered into a lease but for the nuisance. I find P.W.1 a thoroughly honest and convincing witness; his evidence about the conditions prevailing outside the subject premises before April 1984 was corroborated substantially by D.W.3. I accept his evidence about his provisional agreement in May, 1984 for letting the basement, the lower and upper ground floors for the business of a restaurant for three years at a monthly rental of $30,000,00. I find that the letter he produced - Ex. P3 - is a genuine letter from Mr. FAN withdrawing from the provisional agreement due to the presence of the RCP outside the main entrance, which he described as filthy and dirty which would affect his business. I find that but for the nuisance which existed when the occupation permit was issued on 7th July, 1983, Mr. FAN would have taken the proposed lease and gone into possession very soon after the 7th July. In view of this, I do not think I need trouble with the opinion of the valuers which would have been relevant in the absence of any evidence as to the expected rental of the premises.

41. I find also that P.W.1 tried to mitigate the damages of the plaintiffs by displaying advertisements on the premises, and once in a local newspaper and asking Mr. Cullen to find alternative tenants. While the situation of the nuisance remained as before, no prospective tenant was found but in April, 1984, when the position of the RCP was brought under control to acceptable levels two tenants were found with whom tenancy agreements were finalised - one being LAW Chun-wai for the upper ground floor (Ex. P6) from 11th April, 1984 for three years at a rental of $11,000.00; the other with KWAN Ngar for the lower ground floor and the basement (Ex. P7) from 12th May, 1984, also for three years at a rental of $9,000.00.

42. On that basis, I agree with Mr. Pritchard that in normal circumstances the measure of damages should be the difference between what Mr. FAN would have paid for three years and what in fact would be received during that period, but I think that in this case it is subject to the principle that a defendant is not to be penalised by throwing into the balance against it the loss caused by the operations which it was legitimately entitled to carry out. He can be made liable only in respect of matters in which it has crossed the permissible limit.

43. I find that the loss caused to the plaintiffs by the nuisance by way loss of rentals in normal circumstances would be as follows :

                        i) For the void period which I think should run from 8th July, 1983, the day after the occupation permit was issued, until 11th April, 1984, when the tenancy agreement with LAW Chun-wai became effective : a period of nine months at the rate of $30,000.00. This comes to $270,000.00.

                        ii) From 11th April, 1984 to 12th May when the tenancy with KWAN Ngar became effective. This is about a month and will be the difference between $30,000.00 and the rentals paid by LAW Chun-wai of $11,000.00, which comes to $19,000.00.

                       iii) Thereafter until 7th July, 1986 when Mr. FAN's lease would have expired, a period of about 26 months at $10,000.00 ($30,000.00 less the combined rental from the two tenants of $20,000,00), which comes to $260,000.00.

44. The total of these three items comes to $549,000.00 which would represent the total pecuniary loss to the plaintiffs. As I have found, the defendants were legitimately entitled to collect refuse from Wellington Street by means of the on-street RCP. The manner in which it was done resulted in the damage. The question which I find is by no means easy is, where the permissible line is to be drawn. Considering the evidence in its totality and the extent of the nuisance, that is, refuse strewn on the pavement in front of the entrance of the subject premises over an area of 4' x 10', exhuding stingy smell, and taking into account that a lesser degree of interference caused in the process would not have been actionable, and doing the best I can, keeping in mind also the peculiar local conditions and circumstances, I am of the opinion that the defendants ought to be held liable to the extent of 40% of the total pecuniary loss; which will come to $219,600.00.

45. In the event, and in view of my findings, I do not think that the plaintiffs are entitled to the declaration they seek.

46. Judgment is entered for the plaintiffs in the sum of $219,600.00 with costs and interest at the usual court rates.