CHU KEUNG FAI AND OTHERS v. SUCCESS INSURANCE LIMITED AND OTHERS

Fatal accident - two passengers travelling in taxi at night when Typhoon No.8 signal hoisted - while travelling on flooded temporary road within Shatin New Town development taxi veered off road into pond - both passengers drowned - whether 2nd defendant taxi driver negligent and any contribution by passengers - whether 3rd defendant contractor was an occupier of temporary road or pond - whether 3rd defendant created pond which constituted the hazard - Held: 1. 2nd defendant negligent; 2. No contribution on part of passengers; 3. The 3rd defendant was not an occupier of the road or the pond; 4. The 3rd defendant did not create the pond hazard; 5. Damages of $171,350 awarded.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action No.4517 of 1981

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JUDGMENT

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1. The deceased, Mr. Lai Pak Chuen and Madam Chu Wah Ying, were husband and wife. For many years until 29th July 1978 they had carried on business as hawkers in an old market at Shatin from a fixed pitched grocery stall and also from a mobile vegetable stall. They frequently slept overnight at the grocery stall although they also had a home in the Fo Tan Cottage Area, Fo Tan Road, which was located some distance away in the upper reaches of the Fo Tan Valley, which joined Taipo Road in the vicinity of Shatin.

2. On the morning of 25th July 1978, severe Tropical Storm Agnes approached Hong Kong and the No.1 Signal was hoisted. The following day the signal was increased to No.8 but on 27th July it was replaced by a No.3 Signal. However, during the afternoon of 29th July 1978, Agnes returned and the No.8 Signal was again hoisted at 5.25 p.m. and not lowered until 30th July 1978. Agnes was a particularly wet tropical storm and very heavy rain fell in Shatin. Major development works for the present Shatin New Town had commenced the previous year and during 1978 considerable quantities of earth were still being excavated from nearby hills and valleys for reclamation purposes in relation to the new town.

3. After Typhoon 8 had been re-hoisted the deceased closed their business and decided to return to their home in the Fo Tan Valley. At about 7.30 p.m. they hailed a passing taxi on the then Shatin By-pass road, near the Floating Restaurant. The taxi was driven by the 2nd Defendant, Mr. C.M, Lai. Mr. Lai stated he was not familiar with the Fo Tan Valley area but was directed by the late Mr. Lai to Taipo Road from whence they turned left into Fo Tan Road. The lower portion of Fo Tan Road nearer to Shatin was described as Road 3, on the plans which were produced. After travelling along that road and passing the T-intersection from whcih Road 8 branches off to the left, they proceeded on to a Y-intersection. At this point Road 7, then still under construction, branched off to the right. The other road, which at this point branches off to the left, was described in evidence as the "temporary road". The "temporary road" loomed large in the evidence adduced at the trial.

4. By the 29th of July 1978 the temporary road continued on for only a short distance beyond the Y-intersection serving only as access to the relatively small Pat Tse Wo Village. Until 23rd July 1978 the temporary road had continued much further up the valley providing access to the Fo Tan Cottage area where the deceased lived and also for a large number of vehicles involved in excavation and construction work. But on 23rd July 1978 the new Road 8 had been opened which gave new access to Road 4 which in turn went on to Fo Tan Cottage Area as well as providing access for construction and other vehicles. When the new Roads 4 and 8, providing new access to Fo Tan Cottage Area, were opened on 23rd July 1978, steps were taken to block the temporary road at a point just beyond Fat Tse Wo Village. As a result the temporary road thereafter only provided access from Road 3 to the Tat Tse Wo Village.

5. After entering the temporary road, the taxi continued on to where the road was blocked just beyond Fat Tse Uo Village. On finding the road blocked, the 2nd defendant invited the deceased to alight and make their way on foot past the barrier, to walk to Fo Tan Cottage area. Fo tan Cottage Area was still a considerable distance further up the valley. The deceased declined to get out and walk and asked the 2nd defendant to drive them back to Shatin. The 2nd defendant then turned his taxi round intending to drive back along the same route. When earlier the taxi had entered the temporary road the 2nd deferdant stated that for some distance the road was flooded. He was able to drive through the flood, keeping to his left, where the road edge was clearly visible, as the water crossed the road and fell down a bank along its left side edge, into an adjacent temporary stream diversion.

6. Unknown to the 2nd defendant, the right hand edge of the road, which was not visible, bordered a large area of low lying land which had some time previously filled with water to form a deep pond. The heavy rain during the typhoon had caused the pond to overflow, flooding the road at its lowest point, after which it poured down into the temporary stream diversion which ran parallel to the road along its westerly boundary. When the 2nd defendant commenced to return along the temporary road, on his way back to Shatin, he elected to drive along its left or easterly side. The flooded surface of the road extended in an easterly direction as far as the eye could see and in that direction the edge of the road was not visible. The taxi left the road near where the road was flooded to its greatest depth and fell into the pond. The whole taxi, except for the top of a radio antenna, was covered by the pond water. The 2nd defendant managed to get out of the taxi and swim to the surface. Both the deceased, seated in the rear seat of the taxi, were unable to escape. Despite attempts by the 2nd defendant to assist them to escape, they remained in the taxi and drowned.

7. The easterly boundary of the temporary road, which separated the road from the pond, also marked the common .boundary of two contractual site areas. The land to the west of the common boundary, which included the temporary road, was or had been in the site area of Sang Lee Contractors Ltd. ('Sang Lee'). The land to the east of the common boundary, including the pond, was claimed by the plaintiffs to be within the site area of the 3rd defendant. Express Transport and Building Contractors Ltd. ('Express'). The plaintiffs claim against the 2nd defendant was relatively straightforward. As a matter of law, it raised the issue whether the deaths of the deceased were caused by his negligence as the driver of the taxi. I should record that when the action first commenced the 1st defendant was Yuen Por, the owner of the taxi. He died before the hearing. By an order dated 19th June 1986 his insurer, Success Insurance Co. Ltd., were substituted as 1st defendant. At the hearing Counsel for the plaintiffs abandoned the claim against the insurer, so I am no longer concerned with the 1st defendant.

8. The plaintiffs claim against the 3rd defendant is more complicated as it raises issues resulting from the alleged delayed and progressive handing over of possession by the Crown to the 3rd defendant of the site area and also whether the hazard constituted by the pond was created by the 3rd defendant. The latter two issues are also relevant to liability in the third party proceedings brought by the 3rd defendant against the 2nd defendant. These three main issues will be considered in turn.

The claim against the 2nd defendant

9. I find that the 2nd defendant at all material times drove the taxi, Registered No. BS6050, in which the deceased were passengers at the time of their death. The undisputed fact is that the 2nd defendant drove that taxi off the road. When the taxi left the road it veered into the pond and was quickly covered with mater. The direct consequence of those facts was that the deceased were drowned. Those facts, in isolation, would normally be powerful evidence of negligence on the part of the 2nd defendant. However, it is necessary to go on and consider what occurred in the light of all the surrounding circumstances.

10. The simple facts are that the 2nd defendant when Typhoon Signal No.8 was hoisted, at the request of his passengers, the deceased, drove to a locality not well known to him. I find that he safely drove along the temporary road on the initial part of the journey to where the road was blocked. During that part of his journey he drove through the flooded section of the road, but throughout was able to observe the position of the left hand edge of the road, next to a temporary stream diversion. Clearly he keep as far as practical to the left during thast part of his journey. Quite apart from the road traffic laws, that was obviously a sensible course to follow, as because of the flooding, the right hand side of the road was not visible.

11. At the time it was raining heavily and visibility was poor. Those factors, together with the flooded state of the temporary road, were known to the 2nd defendant and would have reinforced the mere general warning to a driver, created by the hoisting of a No.8 Signal. In those circumstances after turning his taxi around, the 2nd defendant commenced his return journey. In driving in this opposite direction along the left hand side of the temporary road, the 2nd defendant, on the return journey, thus drove along the easterly carriageway of the temporary road. This side of the road may be contrasted with the other or westerly side of the temporary road, over which he had safely travelled or the initial journey along the road.

12. The only direct evidence of what happened before the taxi veered into the pool, comes from the 2nd defendant himself, was given in clear terms and consistently repeated under cross-examination. I found him to be an honest and generally reliable witness. During the earlier part of his return journey he was able to see bitumen to his left which, he inferred, represented the left hand side of the road. When he reached the flooded section of the road, he could no longer see the left hand edge of the road. His visibility was about 20 feet; it was raining heavily; there was water to his left as far as he could see; he wound down his right hand side driver's window to improve his visibility in that direction; he drove slowly in second gear. After continuing about 30 feet past a telephone post, the left front of the taxi veered to the left. In the 2nd defendant's words, he thought he had reached a low lying area of the road. He was still driving through the flooded waters. After the taxi had veered to the left, the 2nd defendant still elected'to continue driving forward. After travelling a further distance of about one-half car's length, his taxi veered further to the left. At that stage, the 2nd defendant stated, he wanted to stop and applied the brakes but the taxi continued onwards down the slope and into the pond.

13. After the taxi was covered by water in the pond I am satisfied that the 2nd defendant took all reasonable steps to assist his passengers to safety but tragically those efforts were unsuccessful. But the crucial period of time relevant to the allegation of negligence, relates to the 2nd defendant's actions before the taxi entered the pond. Before considering that evidence in more detail, I should refer to the substantial volume of evidence relating to the entrance to the temporary road at the Y-intersection with Road 7 and to a lesser extent to a prior T-intersection to a new Road 8 closer to Shatin. I am satisfied that when on 23rd July 1978 the new junction closer to Shatin of Road 3 with Road 8 was opened, the intention of Government was to close the temporary road. Thereafter Fo Tan Cottage area traffic, contractors vehicles and all other traffic to places higher up Fo Tan Valley were to use the new access along Roads 8 and 4.

14. The Crown had appointed Maunsell Consultants Asia ('Maunsell') as its Engineer under the various contracts for the infrastructure and other development of Shatin New Town. I am satisfied that, in accordance with instructions from Maunsell, contractors took steps to close the temporary road, which was to coincide with the opening of the new Roads 8 and 4 on 23rd July 1978. The temporary road was effectively closed at the point just beyond Pat Tse Wo Village near a pipe bridge over the temporary stream diversion. This was near a point marked ''E" on a plan, Exhibit P.599 drawn on 31st July 1978 by Mr. R.G.N. McPherson, Ma nsell's Chief Resident Engineer at the time and produced by him when he gave evidence. I am also satisfied that a further barrier and "Road Closed" sign was erected at the opposite end of the temporary road, nearer to Shatin, at the Y-intersection with Road 7 which was in the vicinity of the point marked 'B" on Exhibit P.599.

15. The practical difficulty which, arose on or shortly after 23rd July 1978 was that the steps to close the temporary road, had removed all access to Pat Tse Wo Village. I find following complaints by the villagers that either with or without Maunsell's knowledge or consent, the barrier at point ''B'' was at least partially removed to allow vehicular and other traffic to have access to at Tse Wo Village and the "Road Closed" sign was moved from the centre to the side of the road. One explanation of why the deceased directed the 2nd defendant to the temporary road on 28th July 1978 may, in view of their only occasional use of that property, have been that that was their first attempt to return, after the road alterations implemented on or after 23rd July 1978.

16. The 2nd defendant stated that on his initial journey he never noticed either a barrier or a "Road Closed" sign at the Y-intersection near point "B". There is strong evidence from a number of other witnesses that they also never saw either object when they passed point "B" on the right of the accident I also had the advantage of hearing the evidence of Mr. S.Y. Lau, a village elder who resided at Pat Tse Wo Village. Shortly after the taxi veered into the pond, Mr. Lau drove from Shatin to his home. On entering the temporary road he passed point "B" and shortly afterwards saw the 2nd defendant who waved him to a halt Mr. Lau stated that when he stopped near where the taxi had entered the pond, the road was flooded and the water level reached half way up the wheels of his Mercedes Benz car. When he got out the water- reached to between his ankle and his knee. Clearly on that evidence, the road was flooded to a depth of from 6 to 8 inches.

17. Mr. Lau stated that at point "B" there was neither a barrier or a road closed sign. Nor had he observed any such objects earlier, yet he drove up and down the road daily. All but one of the police officers who attended the scere similarly did not observe the barriers or the sign at the time when, they first passed point "B". Significantly it was only after he passed point "B" in a police vehicle and alighted and inspected the area on foot, that P.W.2 P.C. 9914, from the Accident Investigation Section of the Traffic Branch, observed the sign. He agreed that it was on the left hand side of the road and rot in the middle of the road as shown on Exhibit P.599. I also record that his evidence was that there were barriers along parts of the westerly side of the temporary road marking that edge of the road with the temporary stream diversion but there were no barriers or the easterly side of the road, marking its common boundary with the pond.

18. That evidence was confirmed by or consistent with all. the evidence given by others on this matter. Indeed, the valuable evidence of P.W.4 Mr. C C Luk, who was employed by Maunsell under the Resident Engineer as an Inspector, went even further. He was involved in the diversion of traffic on 23rd July 1978 along the new Roads 8 and 4 and the closure of the temporary road, which operations were carried out by Sang Lee under his supervision. Apart from the installation of diversion signs at the earlier T-intersection of Roads 3 and 8 to stop traffic continuing on to the Yintersection, he stated that the temporary road was closed at points "B" and "E". At point "B", he stated, barriers were placed across the road and a road closed sign installed. At the same time, Sang Lee removed the barriers and lights which had previously marked the westerly side of the temporary road. I am prepared to infer that the barriers which were later observed along part of the westerly side of the road, were either left by Sang Lee or were parts of the road barrier, which was pushed to the side, between 23rd and 29th July 1978, when access to Pat Ise Wo Village was restored Mr. Luk's recollection was that only part of the barrier was removed to allow limited access to the village. That may have been the position when it was first arranged to reopen access. By the 29th July 1978 1 am satisfied that probably the whole of the barrier was removed or pushed to the side of the road together wits the "Road Closed" sign. Mr. Luk, while emphatic that the road closed sign remained, agreed in cross-examination that he had no recollection of seeing the sigh on the night of the accident.

19. I am satisfied that the road closed sign had been moved to the side of the road by 29th July 1978 and was probably not reasonably visible to a prudent driver approaching and passing the Y-intersection into the temporary road on the night of the accident. I record that the one police officer who recalled seeing the sign, P.W.5, otherwise had a poorer recollection of this accident which occurred 7 years ago. In my view he probably was confused in his recollection as he had been to the scene on other occasions when, it is common ground, a road closed sign was erected. On that evidence and on those findings, I do not consider the 2nd defendant was negligent in either proceeding past the diversion signs at the Road 8 T-intersection or later on his journey, entering the temporary road at the Y-intersection. Counsel for the plaintiff in view of the evidence, sensibly abandoned the earlier pleading which, in summary, alleged that the 2nd defendant was negligent in entering the temporary road

20. However, I am well satisfied that a reasonably prudent driver, with the knowledge the 2nd defendant possessed relating to the adverse weather and road conditions, would not have driver in the manner of the 2nd defendant on that fatal return journey. I am satisfied that a reasonably prudent driver would have adopted at least one of several safer alternative courses. First, he may have elected to return along the flooded road on the same westerly side as he followed on his prior journey, where the edge of the road was visible. The 2nd defendant explained that he elected to return on the opposite easterly side because on a dual carriageway he was obliged, under the road traffic laws, to drive on the left hand side of the road. In fact the obligation is only to drive as far as practical to the left. On this night there was no other traffic; the road was in a remote area; the only boundary of the flooded road visible was the westerly edge. In these circumstances, as a matter of law, the 2nd defendant was not obliged to travel along the route chosen.

21. Alternatively, even if he elected not to drive along the westerly side of the road, he had several warnings of the potential danger of driving along the easterly side. The left hand easterly side of the road was not visible. The flooded area extended as far as he could see to his left. Further and crucially, having elected to drive along the easterly side of the road, he received full warning of the danger on the first occasion when he noticed his car veer to the left. At least at that stage, he had the opportunity to attempt to stop.

22. I am satisfied that a reasonably prudent driver would then have attempted to stop. Instead, on the 2nd defendant's own evidence, he elected to continue. It was only after doing so when the taxi veered even further to the left, that he attempted to stop but by then it was too late. On those facts I find the 2nd defendant drove the taxi negligently and that as a consequence the deceased were drowned.

23. The 2nd defendant pleaded that the death of the deceased was wholly or in part caused by their own negligence. I have held that deceased were not negligent and that none of their actions contributed to accident. The particulars of the alleged negligence included allegations that they directed the 2nd defendant to drive on the temporary road which they knew or should have known was closed; that they knew or should have known it was flooded or was liable to be flooded; that they failed to warn the 2nd defendant of the existence of the pond; and that they refused to leave the taxi when it reached point "E".

24. The deceased were merely passengers in the back seat of the taxi. The directions they gave were no different to the general instructions commonly given by passengers to taxi drivers. Such instructions do not relieve a taxi driver of the duty to exercise reasonable care. Nor when given, do such instructions necessarily result in the passengers participating in the driving of the taxi. The deceased were hawkers who did not own a car and I infer did not hold a driver's licence. Seated in the back seat of a taxi, at night, in poor visibility, they were not in a position either to assist the 2nd defendant keep a proper look out, nor do they offer to do so. The instant facts simply do not provide any basis for a duty which may on occasion, if exceptionally, arise where passengers, in common with drivers, owe a duty of care, in relation to the manner in which a vehicle may be driven. In this particular case I am satisfied, that in relation to the factors which caused the accident, the duty to exercise reasonable care rested on the driver alone.

25. I would also record that I am satisfied that the deceased were unaware that the temporary road had a few days before the accident been closed at point "E" and no longer provided access to the Fo Tan Cottage Area but only served as access to Pat Tse Wo Village. I would also record that when the taxi reached point "E'' on the 2nd defendant's own evidence, he merely asked them to alight and walk to Fo Tan Cottage area. That was certainly an alternative open to them. Although their home was still a considerable distance away, it was as close as they could be driven to along the temporary road. But when the deceased declined to continue their journey on foot and asked to return to Shatin, the 2nd defendant turned his taxi around and intended to proceed to that new destination with the deceased as his passengers. I record that on the facts this is also not within the class of cases where passengers, aware of a hazard, accept the risk.

26. For all these reasons I find that the 2nd defendant's allegations of negligence on the part of the deceased fail.

The claim against the 3rd defendant

27. The allegations by the plaintiff against Express, the 3rd defendant, were the subject of several particulars but may be grouped under two heads. First, some of the duties, which are alleged to have been breached, would only arise if Express were in occupation of the relevant land. Secondly, quite independently of occupation, other particulars relate to the duty imposed in tort, on persons who cause a hazard to be created.

28. On the question of an occupier's liability in tort I was referred by Counsel to Charlesworth & Percy on Negligence (7th Edn) paragraphs 7-09, 7-10 and Clerk & Lindsell On Torts (15th Edn) paragraphs 10-80, 10-81. I was also referred to the liability of non-occupiers set out in Charlesworth and Percy at paragraphs 7-51 et seq. I have considered those paragraphs and also the cases cited to me including Hadley v. Taylor (1965) LP 1 CP 53, Coupland v. Hardingham (1813) 3 Camp. 398, Creed v. McGeoch & Sons Ltd. (1955) 1 WLR 1005, Davis v. St. Mary's Demolition and Excavation Co. Ltd. (1954) 1 WLR 592 and A.C. Billings & Sons Ltd. v. Riden (1958) AC 240.

29. Although the two issues involving the 3rd defendant were, to some extent, pleaded in the reverse order, it is convenient to deal first with the issue whether Express was an occupier of the relevant land.

30. As a matter of law, an occupier of premises, is under a duty to take reasonable care, to prevent damage from unusual dangers. Occupation may be shared by several persons in which event each occupier is under a duty of care to visitors deperding on the decree of control exercisable by him. The degree of control need not be entire or exclusive but a person must first have the status of an occupier, before liability in tort can follow under this head.

31. Turning to the instant facts it was alleged that the 3rd defendant was in occupation of not only the pond and the surrounding land but also of the road. To consider these allegations it is necessary first to go back to the provisions of Contract No- 519 of 1976 between the Government and Express in which Maunsell was also appointed Engineer. Before going on to consider some of the provisions of that contract I would record that the present claim is, of course, in tort and not contract. There was a contractual relationship between the Government and Express in relation to at least some of the land relevant to this action.

32. All Counsel were at pains to emphasise the fundamental, distinction between tort and contract and on that issue I accept their submissions. In particular I recognise that even though Express may have complied with its contractual liability to the Government, that does not necessarily mean that it discharged its duty to other persons in torte. Conversely, if Express were in default under the contract, that does not necessarily mean that they were under any tortious liability in relation to the same acts. I only repeat these fundamental distinctions, because they were obviously matters of considerable concern to Counsel.

33. Under the contract "site" is defined as meaning the lands and other places on, under, in or through which works are to be executed or carried out and any ether lands or places provided by Government for the purposes of the contract. Drawing No.60376/1030 prepared by Maunsell's was produced as Exhibit P.3A which delineated the site boundaries. The major part of the site was marked "E" Pat Tse Wo village was within the outer boundaries of the site but was marked on the plan as a separate Area J". Area J, as marked on the plan, closely surrounded the village and did not extend to include the pond area.

34. Exhibit P.599 showed the area of the temporary road and the pond in some detail and also showed the site boundary of Express at that particular location which corresponded with the site boundary shown in Exhibit P3A. From those plans and the other evidence adduced, I find that Express and Sang Lee's respective contractual sites adjoined. I further find that the contractual site of Express extended towards Sang Lee's site along a line which coincided with the boundary between. the temporary road and the pond. Mr. McPherson was quite definite that the site boundary shown on Exhibit P.599, marked the western boundary of the contractual site of Express. He thought that the boundary of Sang Lee's site shared the same boundary, which would have resulted in the temporary road being wholly within Sang Lee's site. However, he stated that it was possible that Sang Lee's site stopped or. the easterly boundary of the road, with the Express site commencing on the westerly boundary. This would have meant that the road was in neither contractual site. However, that possibility does not affect the position of Express, as Mr. McPherson was emphatic as the plans themselves indicated, that the temporary road was not within the Express site.

35. So far as the road was concerned, the plaintiffs submitted that Express were the major user of the road. Further, than when barriers along the side of the road were knocked down, if the Resident Engineer was satisfied that vehicles owned or employed by Express had knocked them down, he required Express to reinstate the barriers. On other occasions, when the culprit was unknown, the Resident Engineer instructed contractors, including express, to effect repairs at the Government's expenses.

36. I recognise that under the contractual provisions of Particular Specification 1.63, Express had a contractual obligation to Government to ensure that all roads used by it, both within and outside the site, were kept completely free of debris and excavated material. Express were also liable under the contract to maintain roads, if damaged by it, in serviceable condition. I recognise that these obligations may go beyond the normal obligations of road users. However, they fall far short of elevating the status of Express from a user of the road, to an occupier of the roads.

37. I accept that Express was the major user of the road and carried out repairs to the barriers in both the circumstances already set outs I am further satisfied that subject to the contractual qualification already mentioned, Express was merely a road user. Those qualifications did not fundamentally change the nature of the road user, from that of any other member of the publics I find that Express entirely lacked any degree of control over or in respect of the road which would have been necessary before any liability as occupier of the road could have arisen. The road was not within. the Express sites. Nor was Express otherwise in occupation of the road.

38. The more substantial question is whether Express was the occupier of the pond area. The pond shared a common boundary with the road. Any occupier of the pond would certainly have been under a duty to fence or otherwise prevent the pond from being a danger to road users and others. The pond area is clearly within the site, area. I was referred to the contractual provisions in relation to the handing over of the sites. These were relevant to the issue of occupation. For if Express were contractually in possession of the site, including the pond, that would have been strong evidence, that it was, for the purpose of tortious liability, also in occupation of the pond.

39. The contract was created by Government's acceptance on 11th May 1977 of the tender from Express for Contract 519. By letter dated 13th May 1977 Maunsell wrote to Express informing it of the commencement date of the contract, requested the name of the Agent to be appointed by Express and sought confirmation that Express ha taken charge of the contract site. The plaintiffs submitted that upon or shortly after the commencement of the contract, Express took possession of the site. However, they had difficulty in pointing to any action or document whereby Express indicated that it had taken possession of the site. On 17th May 1977 Express replied to Maunsell's letter but limited its reply to specifying the name and qualifications of its agent, Mr. F.P. Ma.

40. In fact nearly all the other evidence supported the 3rd defendant's submission., that it had never taker possession or occupied the pond. Mr. McPherson stated that after a contract commenced, the practice was for a formal handing over of possession to be made on the site with representatives of the Government, Maunsell's and the contractor, present. At such a meeting the site boundaries and the site generally was inspected by the parties. It was not uncommon for possession of different parts of a contractual site to be handed over progressively in stages after the contract commenced. This practice is in fact expressly borne out by the Particulars of Specification of this contract. Clause 1.07A provided that Area "E" would be allocated to Express at the start of the contract and Area "J" seven months after the start of the contract.

41. If those allocation times had been adhered to the plaintiffs submission would no doubt have been considerably strengthened. However, there was considerable delay in handing over possession of parts of Area "E" and the whole of Area "J".  As early as 3rd June 1977 the District Officer was in correspondence with Maunsell's in relation to trees growing in Area "E" near Area "J". The District Officer stated that the Pat Tse Wo villagers on fung shui grounds, would oppose any interference with the trees until the village had been resited. The village was not resited until early in 1979. I find that at about the same time the villagers also objected on fung shui grounds, to any wonk proceeding in the vicinity of what later became the pond.

42. I record that during 1976 the Government had taken steps under the Crown Lands Resumption Ordinance Cap. 124, to resume a large area of land in the Fo Tan Valley for the purpose of developing the Shatin New Town. This land, known as Area 16B, included Pat Tse Wo Village, the land which later became the pond and a large block of adjoining land. Area 16B, pursuant to the provisions of the Crown Lands Resumption Ordinance, reverted to the Crown on 16th April 1976. The formal gazette notice, being G.N. 384, published in "The Hong Kong Government Gazette" No. 8/1976 and the relevant plan were produced as Exhibit No.P.13. However, while the villagers title to the land had passed to the Government, they still remained in possession. Government could not give possession to Express until the villagers had given up possession or other arrangements were made, hence the exclusion of Area "J" from that part of the contract site to be handed over to Express at the commencement of the contract.

43. The villagers objection to work being commenced in the fung shui areas related to land in Area "E". The District Officer's letter of 3rd June 1977 concluded with the recommendation to Maunsell that "it would seem best to avoid work in this area, if at all possible, until such time as the village is removed." Maunsell's raised this issue with Express at a site meeting on 23rd June 1977 after which Express wrote to Maunsell's recording the five areas which it had not yet been handed possession and enclosed a sketch plan showing the location of those areas. Area 2 was the fung shui area behind Pat Tse Wo village containing the trees first mentioned by the villagers. Area 1 was described as "'Fung shui' attached to Pat Tse Wo Village". Thereafter Maunsell's monthly reports continued to record that possession of parts of the site were delayed. I also accept Mr. McPherson's evidence that the usage developed of referring to both the contractual Area "J" and the two Area 1 and Area 2 fung shui pieces of land, as Area "J". In view of the long delay in possession of these 3 areas being related to the opposition and resiting of the villagers, this is understandable. I find that possession of Area 1, including the pond, was not handed over to Express until after 29th July 1978.

44. The plaintiffs contended that the resumption having been completed in 1976, the Government was not only in a position to hand over possession of the whole of Area "E" at the commencement of the contract, namely on 23rd May 1977 but had in fact handed over possession. An attempt was made to explain the documentary references thereafter to the areas not yet possessed" as being concerned not with the legal right of the contractor to possession, but merely with a limitation to carrying out works or land already in the contractor's possession. The evidence to the contrary is overwhelming. I am satisfied that Express was only able to go into possession of the different parts of the contract site when such possession was handed over by the Government. It is common ground that there was no physical handing over of the pond area until after the accident. The documents generally support the 3rd defendant's contention that possession of the pond had not been handed over to Express.

45. The action of Express in re-erecting broken barriers along the common boundary of the road and the pond and carrying out other work at Maunsell's direction in relation to the road and the pond, neither separately or cumulatively points to Express being in possession of the pond. Much of the evidence in relation to whether Express was in contractual possession of the pond, is relevant to the more important question whether Express were in occupation of the pond. If Express were in contractual possession of the pond, it would certainly then have had a sufficient degree of immediate control or supervision of the pond, to give rise to liability in tort as an occupier of the pond. After reviewing the whole of the evidence, I find that not only was Express not in possession of the pond but that it lacked that degree of control or supervision which would have been necessary before it could be liable as occupier. Accordingly, I also find it was not an occupier of the pond.

46. The next submission was that ever if Express was not an occupier, if it created the hazard which caused the accident, it still owed a duty in tort. The law is well settled that even where a person is neither owner or occupier, he is under a duty to take care when he knows or ought to know, that a person is present and is likely to be injured unless care is taken. The wide extent of that duty is emphasised in the following extract from Charlesworth & Percy paragraph 7-52:

"The duty of a person, who is neither the owner nor the occupier of land may in some cases be greater than that of the owner or occupier. If he is doing something on the land, which he knows or ought to know will be a source of danger to persons on or likely to come on land and meddle with the subject of his activity, he is under a duty to take precautions to prevent damage. Reasonable precautions will include such matters as by giving warrings, guiding, fencing off or otherwise taking steps to preserve the safety of the persons,who come or the premises."

The standard of care owed by persons on land occupied by another is similarly set forth in Clerk & Lindsell paragraph 10-80, where at 10-81 the duty owed by contractors is separately dealt with and reference made to the House of Lords judgment in A.C. Billings Sons Ltd. v. Riden (1958) AC 240.

47. The plaintiffs sought to invoke those principles on a twofold basis. First, it was submitted that the evidence established that the work carried out by the 3rd defendant in the vicinity of the pond had caused water to accumulate in Area 1 and thereby created the pond. Secondly, it was submitted that earth filling deposited by the 3rd defendant on the thin strip of lard between the pond and Area "J" restricted the size of the pond, increased its depth and its likelihood to flood over the temporary road.

48. I accept Mr. McPherson's evidence that the excavation anal other earthworks carried out by Express under the contract before 29th July 1978 had materially changed the natural contour of the locality and altered the pre-existing catchment areas. Many of the photographs taken at different stages of the contract vividly reinforce his evidence. I accept that those works would have accelerated the flow of rainwater down the higher slopes towards Pat Tse Wo Village. The delay in resisting the village and the opposition of the villagers to the area of the pond being filled by earth, had two main consequences.

49. One consequence was that it became necessary to divert the water away from the village. The only alternatives were to either side of the village so that the water might thereafter drain into a emporary diversion stream on the westerly side of the temporary road. The other consequence was that the Government's decision not to allow Express to enter and fill the pond area, meant that water flowing in that direction would first create a large and deep pond before it could reach the temporary stream diversion. It could only reach that diversion if it were drained under the road or rose to a sufficient level to flood over the road.

50. The question is whether Express so altered the natural floor of water above the pond so as to cause the pond to be created. Certainly the works materially altered the former natural cat chment areas. There were during the course of the contract at least monthly meetings between Maunsell and Express which were minuted by Maunsell. The minutes were produced. Maunsell were usually represented by their Resident Engineer, Mr. T. Cunnington although on occasion, his senior, Mr. McPherson, attended. Express were usually represented by Mr. F P. Ma but also often by its Project Manager Mr. G. Mak. The minutes from January 1978 to July 1978 reveal that both parties were aware of potential water problems and record remedial steps that were taken. Supporting written instructions and memoranda also indicate some of the measures which were taken.

51. At the 3rd Jaruary 1978 meeting Express raised the drainage problems which it claimed were arising due to the piecemeal manner in which Government was handing over possession of the site. Express suggested at that early stage that a culvert should be installed under the temporary road to drain the pond area. Maunsell did not agree to that course. Mr. Cunnington stated that in time of heavy rain. the pond could overflow across the temporary road. At successive meetings Express voiced their concern that Area J could be affected by flooding in times of heavy rain. As the typhoon season approached, Maunsell's from March 1978 started to give instructions for the diversion of water away from the village.

52. The instructions generally envisaged water being diverted from the village to a low spot in Area 3. Area 3 was or the northern side of the village. The pond was on the southern side of the village. The documents by themselves indicate that the water was to be diverted above the village and not into the pond. However, Mr. McPherson when he gave evvidence expressed the opinion that Mr. Cunnington must have been confused in his area references as the "low spot" would appear to refer to the pond which was in Area 6. If the references in Maunsell's documents to Area 3 are incorrect and are treated as references to Area 6, then the proposal would have been to divert the water into the pond. That was clear was that Express did carry out work involving the diversion of water from the villages. If they had diverted the water into the pond it was true that they would have done so in accordance with Maunsell's instructions. Further, that Maunsell's had refused to allow the pond to be drained by the installation of a culvert and had explained that the acceptable alternative was to allow the pond to flood over the road. However, even if Express had done this work as well as refraining from draining the pond, in compliance with Maunsell's instructions, that would have been no defence to an action in tort by a third party if a duty existed.

53. At the end of the plaintiff's case it was at least arguable that Maunsell's references to Area 3 were meant to be references to Area 6 in which event it could be inferred that Express had diverted or concentrated water into the area creating the pond and, in case of heavy rain, allowed it to flood the road. In that event the duty to fence or otherwise take protective measures in respect of the hazard, created by the pond, would have been established. However, later in the hearing the 3rd defendant called, its present Managing Director Mr. G. Mak who was able to give material evidence on this issue. Mr. Mak is a Member of the Institute of Mechanical Engineers and also holds a blaster of Science degree. At the time of the contract Mr. Mak was Project Manager for Express and under him was Mr. F.P. Ma, the site agent.

54. I fnund Mr. Mak to have comparable qualifications to Mr. McPherson. Although Mr. McPherson had the greater experience, he was less directly involved with this contract than Mr. Mak. As Mr. Maunsell's Chief Resident Engineer for Shat in New Town development he had overall supervision of many contracts, each of which was directly supervised by one of several Resident Engineers employed by Maunsell. Mr. Cunnington was Maunsell's Resident Engineer for this contract which was his full-time responsibility. Mr. Mak although not on site full-time was more involved with the detailed works under the contract, than Mr. McPherson. One indication of their respective personal involvement is the minutes of site meetings which were often attended by Mr. Mak but only occasionally by Mr. McPherson. I found Mr. McPherson and Mr. Mak to be honest and reliable witnesses. The evidence of both was given with admirable clarity, apparent objectivity and was most helpful in attempting to reconstruct what occurred some 7 years earlier on land the topography of which is now substantially altered being absorbed in the final layout of the new town.

55. On matters of detail Mr. Mak was often able to give direct evidence of what he recollected had occurred. Much of his evidence may be contrasted with Mr McPherson, who often could properly only tender his opinion, as to what may have occurred. As far as Maunsell were concerned much of the detail was known only directly to Mr. Cunnington who was not called. Mr. Mak stated that the instruction from Maunsell to divert water to the low spot, was not to the pond area but was in fact to the low lying ground of Area 3 near a pipe bridge above the village. Mr. Mak contended that the references in the documents to Area 3 were in fact generally correct although he agreed that one of the documents more probably referred to the pond area. Further, Mr. Mak was able to draw a red lire on Exhibit P.657 showing the line of the diversion trench, which Express dug in accordance with Maunsell's written isntructions. This trench followed a contour line on the map and collected water not only above the village but also above the pond area. The trench then took the water along higher ground to the northern side of the village and down ultimately to the temporary stream diversion at a point a short distance north of the entrance to the village from the temporary road.

56. I accept Mr. Mak's evidence that the diversion trench was dug along that line. Mr. Mak's volunteered that the success of the trench would depend on a number of factors and that its effectiveness could have been reduced by other construction work. He agreed that at one stage it was backfilled but confirmed the documentary evidence that it was re-excavated before Typhoon Agnes. Mr. Mak stated that the trench would have assisted in diverting water flowing down towards the village and pond area, away to the northern side of the village. I accept that evidence. The result of these findirgs supports Counsel, for the 3rd defendant's submission that the work carried out by Express, far from creating the hazard, in fact reduced that hazard. When I review the whole of the evidence on this isuue I am satisfied that works carried out by Express did not create the pond or any similar hazard. To the contrary the diversion works they carried out would have tended to reduce the hazard created by the pond

57. Moving on to whether the pond was created or made more dangerous by the earth filling deposited on that portion of Area "E", between Area "J" and Area 1, I record that the filling, which resembles a spur, is most clearly visible in the lower photograph at page 5A of Exhinit P.2 dated 26th April 1978. At that time Express had been pressing Maunsell for full possession of the site so that it could proceed to fill in the whole of the lower area stretching from the Y-intersection, northwards to the village boundary of Area "J". Area 1, comprising the fung shui area, which included the village Pak kung, was separated from Area J by the narrow strip of Area "E", which continued down the hillside to abut the temporary road. Pending possession of Area 1 coming available, Express proceeded to deposit earth on the narrow intervening strip of land, to a considerable height, in the vicinity of final formation level.

58. The plaintiffs submitted that the high earth spur which resulted, directly restricted the catchment area; gave the pond a greater potential depth; reduced the surface area which would otherwise have facilitated evaporation; caused silt to fall into the pond further reducing the size of the pond and thereby increasing its water level. If those submissions are considered in isolation they might well tend to establish liability on the part of the 3rd defendant. Although some of the submissions are complicated by the fact that they depend on inferences repeatedly being drawn adverse to the 3rd defendant. However, it is necessary to consider the creation of the spur in relation to the other evidence.

59. When that is done the difficulties facing the plaintiffs are at least threefold. First, the main physical change to the landscape, which caused the pond to be created, was the construction of the temporary road. That road stopped water running down from higher ground and draining into the temporary stream diversions. The temporary road was not within the Express site. The temporary road was not constructed by Express. The temporary road was constructed by Sang Lee and was probably in Sang Lee's site. Secondly, against any detrimental effect of the spur, it is necessary to take into account the beneficial effect of the diversion trench collecting and diverting some of the rain water in the same locality. Thirdly, it is expremely difficult to analyse the effect of the altered catchment area caused by the excavations higher up the slope, in relation to the spur, during the very heavy rain which fell during Typhoon Agnes. It is equally difficult to make any definite findings as to the overall effect of the spur. The records produced from the Royal Observatory, indicate that the rain was very heavy. At the time of the accident the rain was very much heavier than shortly afterwards. The intensity of the rain caused very heavy flooding of which there was still some evidence the following day as depicted in Exhibit P.50 which is a photograph showing part of the temporary road still flooded.

60. When I take all the relevant evidence into account, it falls short of satisfying me that it is more probable than not that the spur created the hazard or alternatively increased its danger. The evidence on that issue is simply more speculative than probable.

61. For all these reasons I find that the plaintiffs have failed to establish that the hazard constituted by the pond was created by the 3rd defendant.

3rd party proceedings

62. The 3rd defendant brought third party proceedings against the 1^st and 2nd defendants. By consent the issue of liability between the 3rd defendant and the third parties was tried at the trial of the action. The plaintiff at an early stage abandoned its claim against the 1st defendant which disposes of the third party claim against the 1st third party. As the plaintiff has failed in its claim against the 3rd defendant, that also disposes of the 3rd defendant's claim against the 2nd Third Party. In view of my earlier findings the counterclaim in the third party proceedings is also dismissed.

Quantum

63. The remaining issue to determine is the damages to be paid by the 2nd defendant to the plaintiffs. The plaintiff claims for $3,900 funeral expenses, $20,000 loss of expectation of life in respect of Mr. Lai Pak Chuen and $20,000 for Madam Chu Wah Ying, were agreed to by the other parties and I will allow judgment for those sums. The claim for the alleged loss of 10 taels of gold was, in view of the paucity of evidence, not pursued and is disallowed. There was also no eviderce to support the Fatal Accidents Ordinance claim for the alleged dependency of Madam Chan Wah Ying, the mother of Madam Chu Wah Ying or of Mr. Chu Hoi Wan, the brother of Madam Chu Wah Ying. Those claims too are dismissed.

64. The remaining Fatal Accidents Ordinance claim in respect of the deceased's daughter, Madam Lai Siu Fun, merges with the claim under the Law Amendment and Reform (Consolidation) Ordinance under which I will therefore now proceed to assess damages. The principal assessment difficulty is to determine the deceaseds income at the date of death. The deceased were self-exployed. The plaintiffs were unable to produce any records of what the deceaseds income may have been. Their daughter, Madam Lai Siu Fun, was only 10 years old at the date of death and was unaware of her parents income. A further difficulty was that the old Shatin Market where the deceased carried on business at their two stalls was demolished in about 1980, when fixed pitch stall holders were each offered 1 stall per family in the new market complex in Shat in New Town. No rent was payable in the old market. However, rent was payable for stall space in the new market and some stall holders elected not to take up the stalls. In that event they were paid compensation by the Government in the region of $10,000. It seems that some of those stall holders also opened new stalls at other places such as at Tai Wai. I find that if the deceased had not been drowned in the accident, they would have been allocated a stall in the new market. I will infer that they would have elected to take up the new stall.

65. Counsel for the plaintiff submitted that the joint income of the deceased at the date of death was $70 per day which he projected to $130 for 1986. The income of each deceased, on this basis, in 1978 would have been $35 per day. In the case of Mr. Lai it was submitted that 7 was the appropriate multiplier and the deceased's daily income during 1985 would have been 160 per day. Adopting an average of $47.50 per day this figure produced an annual income of $17,005 and $119,035 for a 7 year period. Because of the frugal life style of both deceased, Counsel for the plaintiffs submitted that a conventional free balance of 60% was unrealistic and that 80% would be a more realistic percentage. On those figures and on that higher percentage the lost years claim for Mr. Lai would amount to $95,228.

66. In the case of Madam Chu a multiplier of 12 was suggested and a 1986 daily income of $65 was advanced to support an average daily income throughout the period of $50. Twelve is a higher rather than a lower multiplier. However, P.W. 12, Madam Lo, was a neighbouring hawker in the old market and is now 60 years of age. Together with her husband, who is also 60, they elected in 1980 to accept a stall in the new market where they are continuing to carry on their business. When I take into account the usual contingencies and other multipliers cited, against the background that both Mr. Lo and Madam Lo, in their sixties, are still operating a similar stall, a multiplier of 12 does not seem unreasonable. On the plaintiffs calculations gross pre-trial loss for 8 years 4 months produced a figure of $149,166 of which 80% amounted to $119,322. Post-trial loss at $65 per day was claimed to produce an annual income of $23,270. On this basis the gross loss for the remaining 44 months would have been $85,323 of which 80% would have been $68,258 .

67. Counsel for the 2nd defendant submitted that the pre-accident income would have been $25 per day for each deceased, producing a monthly income of $750 each and a 60% free balance of $450. On the assumption that the deceased would have moved to the new market in 1980, the increased overheads would, it was submitted, reduce the income of each deceased to $500 of which a 60% free balance would have been $300. For the 19 month period after the accident during which it was assumed that the deceased would have remained at the old market, their free balance would have been $450 x 19 months = $8,850 each. From February 1980, on the assumption they moved to the new market, Mr. Tai's free balance, employing a multiplier of 6, for the remaining 53 months would have been $15,900. Adding this post-removal sum of $15,900 to the pre-removal sum of $8,550 produced a total sum of $24,450. Counsel for the 2nd defendant then selected a multiplier of 10 years or 120 months for Madam Chu. The first 19 months of that 10 year period produced a free balance, referred to earlier, of $8,550. The remaining 101 months at $300 per month amounted to $30,300 which added to the $38,550 amounts to a total of $38,850. On quantum Counsel for the 3rd defendant adopted the submissions of the 2nd defendant.

68. The only evidence on income, on which the foregoing submissions of all Counsel were based, was that given by P.W.12, Madam Lo Sui Ngan. Madam Lo and her husband, as already indicated, are now both 60 years of age and carried on business as hawkers in the old Shatin market until it was demolished in 1980 when they moved to a stall in the new market. In the old market they operated a grocery stall similar to the deceaseds fixed pitch stall. Their stall was a little larger than the deceaseds but not quite as well situated. I am satisfied that the two stalls were generally comparable. In 1978 Madam Lo estimated that the income of her husband and herself from their one stall was $20 to $30 per day. She was unaware what income was produced by vegetable stalls similar to the deceaseds other mobile stall.

69. The evidence of the several witnesses who had personal knowledge of the deceaseds working habits before the accident was identical on a number of points. From that evidence I am satisfied that Mr. Lai conducted the grocery stall from its fixed pitch. Madam Chu operated the mobile vegetable stall. Daily Madam Chu travelled to Taipo or Cheung Sha Wan for vegetables which she resold. She was 12 years younger than her husband and carried out all the heavy work in relation to both stalls. Her husband had some years earlier been involved in an accident and although the stronger eviderce was that he had fully recovered, it is not surprising in view of that incident and his greater age, that Madam Chu was the more active. I would not have been surprised if the mobile vegetable stall had a considerably larger income than the grocery stall.

70. In the absence of direct evidence, this car only be a matter for conservative inference. I am prepared to find that the grocery stall would have had the same or a similar income to Madam Lo's stall of $20 to $30 per day. The plaintiffs suggested income of $70 would have required the vegetable stall to have produced an income of $40 to $50 per day. The 2nd and 3rd defendants were prepared to accept a total daily income of $50 but not $70. I am satisfied that the vegetable stall would probably have produced $30 to $40 per day. On those figures I find that the income of the stalls in 1978 totalled $60 per day.

71. Although the grocery stall probably produced a lower income than the vegetable stall, it had the advantage that on a resumption or clearance, that being on a fixed pitch it would have transfer and compensation, if exgratia, entitlements, not enjoyed by the mobile vegetable stall. Because the old market was closed in 1980, I reject the plaintiffs submission that the date of death income should be projected forward in accordance with the appropriate multipliers without reference to the 1980 closure or removal. This is a case where the Court is entitled to the advantage of hindsight and to quantify loss in the light of the actual subseauent factual position and not rely on an inferior and in this case unnecessary conjectural basis. In relation to the pre-removal period I find that the deceased for a period of 19 months from July 1978 would have continued to receive a joint income of $60 per day or $30 each per day.

72. Assuming that the deceased would have wished to move to the new market, I confirm that, as they owned a fixed pitch stall, it is probable that they would have been allocated a new stall. Madam Lo stated that the daily income of their stall has increased to $100 per day but they have to pay $1,900 per month rent. In the old market no rent was paid by Madam Lo or the deceased. I take into account that Madam Lo and her husband were younger than Mr. Lai. However, Madam Chu was not only about 3 years younger than both Madam Lo and her husband but was clearly an energetic hardworking woman. I find that the deceased stall would have enjoyed a comparable income to Madam Lo's stall. I further find that the deceaseds monthly income would now been in the region of $2,900 which, after paying rent of $1,900, would have left a net income of $1,000 per month or $500 per month each. I appreciate that those incomes would have been affected by inflation but so would rent and other overheads. The net annual income would probably have remained steady. I propose to adopt a broad approach. I have made no adjustment for inflation in favour of the deceaseds for the 19 month period from the date of death to the date of the removal of the market. I also propose to make no converse adverse adjustment from the present back to the date of removal. I record that only part of that period, in any event, would affect the entitlement in respect of Mr. Lai.

73. In the case of Mr. Lai and Madam Chu a number of different multipliers were suggested. I was also cited a number of authorities on multipliers. I propose to select 6 as the multiplier for Mr. Lai and 12 as the multiplier for Madam Chu. As to the percentage of income that should be adopted to ascertain the free balance for each deceased, I accept that both were very frugal people. Because of the strong evidence that was adduced on. this issue, it was not surprising that Counsel for the 2nd defendant observed, that he could not quibble with the unusually high figure of 80% put forward by Counsel for the plaintiffs. Although I recognise that in advancing the 2nd defendant's calculations, Counsel did so on the more conventional basis of 60%. On the particular exceptional facts of this case, I find that 80% is reasonable.

74. For the 19 month period up to the removal of the market in February 1980 the daily joint income of $60 would have amounted to $1,800 per month or $900 each. The free balance at 80% of their respective shares of $900 each, would have been $720. The preremoval loss of income, in respect of each deceased, is therefore $720 x 19 = $13,680. The post-removal income in respect of Mr. Lai would have been a further 53 months. The net monthly sum is 80% of $500 namely $400. This produces the sum of $21,200. All these sums in relation to Mr. Lai represent pre-trial loss of earnings and amount to $34,880.

75. As to Madam Chu I am satisfied that she could have continued single handed to operate the new stall and achieve a comparable income, for the residue of 6 years in relation to her multiplier of 12 years, after the expiration of her husband's shorter multiplier of 6 years. The assessment of damages requires to reflect that distinction. For the first 53 months after removal, damages in respect of Madam Chu are similarly assessed at $21,200. For the remaining 6 years damages are to be assessed on the basis of 80% of $1,000, namely $800 per month which produces the sum of $57,600. I record that the pretrial period was 100 months and the post-trial period is 44 months. Pre-trial damages in respect of Madam Chu amount to $57,280 and post trial to $35,200.

76. The total damages awarded are therefore $171,330 made up as follows:

77. Interest on the total sum of $40,000 awarded for loss of expectation of life shall be paid at the rate of 2% per annum from the date of service of the writ until today. There shall also be interest at the rate of 4% per annum on pre-trial loss of earnings and funeral expenses from the date of the fatal accidents until today. After this judgment is handed down I will hear Counsel further on costs and also on investment and payment out for which liberty to apply is reserved.