Water and Sewerage Authority of Trinidad and Tobago v Darwin Azad Sahadath and another (Trinidad and Tobago)

On a second appeal, a final appellate court ordinarily does not review concurrent findings of fact by two lower courts. Departure requires special circumstances, such as an error of law or defective procedure. The restriction does not apply to a genuinely evaluative legal judgment, such as whether facts establish reasonable cause, but it does apply to assessment of reliability, weight and sufficiency of evidence. A causation issue remains factual where it asks only whether a physical connection is proved; it becomes a legal issue only where it concerns attribution of legal responsibility. Complaints about evidential weight do not become questions of law merely because they concern expert evidence. An unarguable appeal may be refused leave or struck out.

Owners of a house in Trinidad brought negligence proceedings after a landslide caused the house to move down a slope and become uninhabitable. The trial judge found that the damage was caused by the Authority’s failure to repair a leaking water main and awarded damages of $2,218,954 plus interest. The Court of Appeal dismissed the Authority’s appeal and affirmed those findings.

On this second appeal, the Authority challenged the finding of negligence and argued that the evidence, including expert evidence, was insufficient to establish causation. The central issues were whether the Board should depart from its practice concerning concurrent findings of fact and whether the evidential complaints raised questions of law.

The Privy Council unanimously dismissed the appeal. Lord Leggatt gave the judgment, with whom Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lady Rose agreed.

1. Concurrent findings of fact. The Board’s settled practice, authoritatively stated in Devi v Roy [1946] AC 508, is generally not to review concurrent findings of fact by two lower courts. Departure is ordinarily justified only by special circumstances, such as an error of law or a defective procedure. The Authority had not identified any such circumstance.
2. Evaluative judgments and fact-finding. The Board explained the distinction discussed in Betaudier v Attorney General of Trinidad and Tobago [2021] UKPC 7. Whether information gives reasonable cause for an arrest involves a legal value judgment and may be reviewed by a final appellate court. Assessing the reliability, weight and sufficiency of evidence is instead a factual exercise, ordinarily best undertaken at trial and not reopened after affirmation by the Court of Appeal.
3. Causation. Causation can raise questions of law concerning the attribution of legal responsibility, as illustrated by Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19. This case involved only the factual question whether leakage from the Authority’s pipeline was physically connected with the damage.
4. Expert evidence. The weight or probative value of expert evidence is a question of fact. Under the distinction drawn in Devi v Roy [1946] AC 508, admissibility may raise a question of law where it materially affects the finding, but evidential value alone cannot justify departure from the practice. Hinds v London Transport Executive [1979] RTR 103 was distinguishable: no admissibility objection had previously been made, and the experts possessed relevant specialised knowledge.
5. Leave and costs. Even where an appeal lies as of right, leave is required. The Board may strike out an appeal that is not properly arguable or is abusive, as recognised in Consolidated Contractors International Company SAL v Masri [2011] UKPC 29. The Authority’s attempt to obtain a fresh assessment of the evidence disclosed no properly arguable basis. The Authority was ordered to pay the respondents’ appeal costs on the indemnity basis unless it showed good reason otherwise in written submissions filed within 21 days.

• Privy Council: Dismissed the second appeal and ordered indemnity costs, subject to any written submissions showing good reason for a different order.
• Court of Appeal of the Republic of Trinidad and Tobago: Dismissed the Authority’s appeal and affirmed the trial judge’s finding that leakage from the pipeline caused the damage.
• High Court: Found the Authority negligent and awarded damages of $2,218,954 plus interest.