Cheung Hing v. Roth & Sons Estates Management Ltd

DCPI 181/2019

[2024] HKDC 756

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 181 OF 2019

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JUDGMENT

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A.  INTRODUCTION

1.This trial concerns the allocation of liability arising from an accident that happened to the Plaintiff in the early morning on 24 June 2018 (“Accident”) on the Ground Floor of Wun Fat Shopping Centre (“Shopping Centre”), Wun Fat Building, No. 8 Wang Fat Path, Yuen Long, New Territories, Hong Kong (“Building”).

2.The Plaintiff was at the material time employed as a security guard by the Defendant. He commenced this action against the Defendant on 14 January 2019.

3.The Defendant is a management company and was at the material time the manager of the Building. As provided in the Consent Order dated 17 November 2021, the Defendant has settled the Plaintiff’s claims in this action upon payment of HK$220,000 (inclusive of interest but on top of Employee’s Compensation of HK$166,150.34 received by the Plaintiff in DCEC 2036/2018 (“EC Action”)) and costs (in the sum of HK$395,500).

4.Meanwhile, on 15 April 2019, the Defendant commenced proceedings under the Civil Liability (Contribution) Ordinance (Cap 377) (“Contribution Ordinance”) against the 1^st Third Party (“TP1”) and 2^nd Third Party (“TP2”) for indemnity and/or contribution to the full or an apportionment of the amount payable by the Defendant to the Plaintiff including costs.

5.TP1 was (and still is) the registered owner and landlord of Shops 2-3 of the First Floor of the Shopping Centre (“Shops”). TP2 was at the material time TP1’s tenant at the Shops, operating a hair salon.

6.On 4 April 2022, the Defendant’s claim against TP2 was discontinued by consent upon TP2’s payment of HK$200,000 to the Defendant in settlement of the third party proceedings.

7.The outstanding dispute is therefore whether TP1 is to be held liable for the Accident and, if so, the appropriate quantum of her contribution to the Defendant’s payment to the Plaintiff. The specific issues falling for determination are set out in Section D below.

B.  WITNESSES

8.The Defendant called the Plaintiff and Ms 黃美華 (“Ms Wong”), the Defendant’s administrative manager, as factual witnesses at trial.

9.TP1 called two factual witnesses at trial, namely herself and TP2.

10.Neither party adduced any expert evidence, whether on the cause of the Accident or any other issue.

C.  FACTUAL EVIDENCE

C1.  The Accident

11.The Plaintiff was at the material time employed by the Defendant as the single night shift security guard of the Building. He was to be on duty from 7pm on 23 June 2018 to 7am on 24 June 2018.

12.According to the Plaintiff’s witness statement, at around 1am on 24 June 2018, he noticed water flowing down the staircase of the Shopping Centre to the Ground Floor. He walked up the stairs to the First Floor and saw the corridor being flooded with water. When he patrolled the First Floor to look for the cause of flooding, he heard a loud “sa sa” noise of water leaking from water pipe (很大聲的“沙沙”的水管漏水聲音) coming from the Shops and saw a large amount of water flowing out from the Shops. It was his estimate (估計) that there was water leaking from a bursting of water pipe (水管爆裂漏水) in the Shops.

13.In his oral testimony, the Plaintiff was asked by both the Defendant’s and TP1’s counsel as to what he saw and heard outside the Shops. The Plaintiff maintained that he heard a “sa sa” noise. He said he saw through the glass door of the Shops water bursting from inside. He said there were lights at the corridor of the First Floor, no light inside the Shops and no reflection on the glass door. When asked about the location from which water burst, the Plaintiff first said in cross-examination that it was from beneath a hair wash basin (洗頭盤下面) and there was bursting of water pipe in the Shops (嗰間嘢爆水管). Later in re-examination, however, the Plaintiff referred to a bursting of the hose (爆水喉嗰度). He also mentioned at one point that water came from a faucet (水龍頭). I note that the Plaintiff accepted in cross-examination that when he discovered water coming out from the Shops, he could not be sure if there was a bursting of water pipe or loosening of a hose.

14.Going back to his witness statement, the Plaintiff said he returned to the security guard post after seeing what happened at the Shops, called the Defendant’s control room to seek instructions, and was told that the latter was not sure how to handle the situation (不清楚怎樣處理清理). The Plaintiff then called to notify the person in charge of the day shift security guard, one “Ms Ho”, of the flooding. After a while, Ms Ho arrived at the Shopping Centre and instructed the Plaintiff to turn off the main tap of the Shopping Centre and then to clear the water on the First Floor and Ground Floor.

15.In cross-examination, the Plaintiff denied having been told that the Defendant’s control room was unsure how to handle the situation. He said that he called his supervisor, Ms Ho, and was instructed over the phone to turn off the main tap of the Shopping Centre, which he did before Ms Ho arrived. The Plaintiff added that someone had placed sandbags near the lift entrance to prevent further spreading of the flood.

16.In any event, the Plaintiff’s evidence was that he himself was instructed to use a broom to mop and sweep water from the First Floor towards the Ground Floor and then out to the street. He slipped and fell whilst performing the task on the Ground Floor, sustaining injuries to his upper limbs and back as a result. According to the Plaintiff, the water level at the two corridors near the Shops did not yet reach his shoe surface. He was wearing leather shoes and was not told to wear anti-slippery shoes. According to Ms Wong, the Defendant’s witness, the Building would have been equipped with water boots.

C2.  After the Accident

17.The Plaintiff was taken to the hospital by ambulance after the Accident.

18.According to TP1, she was informed by a Ms Ho, manager of the Defendant, by telephone at around 7am on 24 June 2018 that there was a water seepage problem in the corridor outside the Shops. As TP1 was then on her way to Mainland China, TP1 asked Ms Ho to contact TP2 directly to follow up on the matter, which, according to TP2, Ms Ho did by telephone at around 7:30am on 24 June 2018. On TP2’s account, TP2 went back to the First Floor of the Shopping Centre and noticed that the floor and corridors were damp. TP2 said she entered into the Shops with the Defendant’s manager and saw “water on the floor…around the hair wash basin (or the faucet thereof)” which, according to TP2, was “insufficient to cause the alleged flood”.

19.The Defendant produced two documentary records regarding the Accident, the authors of which have already left the Defendant’s employ. First, there was an incident report dated 25 June 2018 prepared by one 何雁紅, the security supervisor of the Building, who I believe is the same Ms Ho referred to above. The report stated inter alia that Ms Ho discovered flooding on the First Floor of the Shopping Centre at around 1:50am on 24 June 2018 and she instructed the Plaintiff to check and turn off the tap. It made no mention of the possible cause of the flooding.

20.Second, there was a letter dated 11 July 2018 issued by one 薛錦洪, the Defendant’s operations manager, to the incorporated owners (“IO”) of the Building. The subject of the letter was “24-6-2018 商場水浸事件” and it stated inter alia that “在24-6-2018（約01:35）商場1樓髮型屋，因接駁水喉膠喉鬆脫，而引致漏水，而導致漏水滲出走廊”.

21.There were also placed before the Court some photos of the Shops and the corridors outside the Shops which were said to be taken by or at the direction of Ms Ho after the Accident. There was a photo with the caption “爆喉位置”, and another one with an arrow apparently inserted by someone pointing towards what appears to be the connecting point between a pipe and a hose, but the photo was not accompanied by any description.

22.According to Ms Wong, the Defendant was not aware of whether and, if so, what repairs were effected after the Accident as the Shops were private premises.

23.As to TP1, her oral evidence (which did not feature in her witness statements) was that Ms Ho informed her verbally that the rubber pipes in the Shops had caused the water leakage. She also said that TP2 had changed the rubber hose (膠喉) in the Shops after the Accident, did not tell her how much that cost or seek reimbursement from her. In the course of TP2’s oral evidence, TP2 said, in response to a question from the Court, that she was asked by the Defendant’s staff after the Accident to replace two rubber pipes previously installed by herself to carry hot and cold water in the Shops, which she did by engaging a plumber at her own cost. These did not feature in TP2’s witness statement.

24.TP2 testified in English and referred to “rubber pipes” which she had installed before the Accident and replaced after the Accident. In the context of the evidence given, I understand “rubber pipes” to be the same as rubber hose (膠喉).

C3.  Prior to the Accident

25.A further matter canvassed at trial was whether TP1 had done anything for the repair and maintenance of the pipes in the Shops prior to the Accident. There is no dispute that TP2 had rented the Shops from TP1 and run a hair salon business on the premises for about 8 years until the time of the Accident.

26.The effective tenancy agreement between TP1 and TP2 dated 8 July 2016 provided at clause 9 that “The Landlord shall keep and maintain the structural parts of the Premises including the main drains, pipes and cables in proper state of repair Provided that the Landlord’s liability shall not be incurred unless and until written notice of any defect or want of repair has been given by the Tenant to the Landlord and the Landlord shall have failed to take reasonable steps to repair and remedy the same after the lapse of a reasonable time from the date of service of such notice”.

27.In TP1’s supplemental witness statement, she stated that apart from a request for repair many years ago from TP2 when TP2 started renting the Shops, with which TP1 complied, TP2 had since not requested TP1 to maintain or repair any structural defect within the Shops including the pipes. TP1 further stated that there had been no complaint from TP2 about any water leakage or pipe bursting problems in the Shops.

28.During cross-examination, TP1 added that she had voluntarily replaced the pipes in the Shops with copper pipes following the government’s advice to the public, although she could not remember how long ago that was before the Accident.

29.Finally, I should mention the Defendant’s work guidelines for property management / security personnel (“Guidelines”), which were referred to during the witnesses’ testimonies. Paragraph 12 of the Gudelines provided as follows:

“水浸

當發現大廈有水浸情況，大廈管理人員必須採取迅速行動以通止[sic]水勢蔓延，避免破壞大廈其他設施，一旦接獲水浸報告時，各員工必須：

(1)  尋找水浸原因；

(2)  如水浸涉及有關供水系統應即關閉有關水制，切斷水源；

(3)  如果水浸是由於水管爆裂所引起，應即知會維修人員進行搶修；

(4)  利用沙包遇止[sic]水勢蔓延到其他地方；

(5)  將接近水浸地區之電梯升高及暫停使用；

(6)  利用地拖，掃把及潛水泵等工具清理現場；

(7)  現場拍照以作記錄；

(8)  將一切有關資料包括水浸原因，涉及面積，破壞程度等一一記錄，並呈交報告。”

30.The Plaintiff said he had seen the Guidelines before and remembered looking at them from time to time.

D.  ISSUES FOR DETERMINATION

31.The parties agree that the following issues require determination.

32.First, whether TP1 is liable for the Accident (“Liability Issue”). The Defendant no longer pursues a claim for breach of the Deed of Mutual Covenant of the Building. The only cause of action is in negligence, for which the Defendant bears the burden of proof.

33.Second, if TP1 is found liable, whether the Plaintiff was contributorily negligent in the Accident and if so what is the percentage of contributory negligence (“Contributory Negligence Issue”). The burden of proof rests on TP1.

34.Third, if TP1 is found liable, what is the apportionment of liability between the Defendant and TP1 (“Apportionment Issue”).

35.Fourth, what is the quantum of TP1’s contribution to the Defendant’s payment to the Plaintiff (“Quantum Issue”).

36.Where the Court approaches the factual evidence and assesses witness credibility for determining the above issues, it is guided by the following general principles, as summmarised in Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009, 8 April 2014) at paragraphs 77-81 (DHCJ Eugene Fung SC).

(1)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility.

(2)  In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events.

(3)  Regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

(4)  Caution should be had against too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character.

37.As to those legal principles that apply to determining particular issues in this case, I shall address them under the relevant sections below.

E.  LIABILITY ISSUE

E1.  Cause of the Accident

38.It is common ground that the Court should ascertain the factual cause of the Accident. The Defendant says it was the bursting of water pipe inside the Shops. TP1 says it was the loosening of rubber hose.

39.I have the Defendant’s point that the Plaintiff was the only eye witness on the issue. Yet in my view there was a lack of clarity and consistency in the Plaintiff’s evidence in this regard, as shown in paragraphs 12 and 13 above. This is not meant to be a criticism of the Plaintiff, as he was dealing with an emergency and his focus at the time would have been to resolve the situation. I find it most likely to be only the Plaintiff’s estimate that there was water leaking from a bursting of water pipe in the Shops, as stated in his witness statement, and that he did not really have the time or means to verify that.

40.The Defendant submitted that there must have been a bursting of the pipe because a mere loosening of the rubber hose could not have produced the loud “sa sa” noise or the large amount of water as described by the Plaintiff. However, absent any assistance from expert, the Court does not find itself in a position to conclude that the noise level and water volume as described by the Plaintiff (even assuming to be true) were more likely than not produced by a bursting of the pipe instead of any other possible causes.

41.TP1, on the other hand, relies on the Defendant’s letter to the IO which stated that the Accident was caused by the loosening of the rubber hose (see paragraph 20 above). The letter was written a little over two weeks after the Accident and before litigation commenced. It is right to consider it a piece of contemporaneous documentary evidence to which this Court should attach weight. I also take into account (1) the Defendant’s Guidelines which provided that there should be a report on inter alia the cause of flooding; and (2) Ms Wong’s fair acceptance that it was important to report matters accurately to the IO. It is reasonable to infer that the Defendant would have undertaken some investigation before concluding to the IO in unequivocal terms that there was a loosening of the rubber hose in the Shops.

42.The said conclusion is corroborated by TP1 and TP2’s respective oral evidence as summarised in paragraph 23 above. It is somewhat surprising that such evidence did not feature in TP1 or TP2’s witness statements, but I am prepared to accept the same as true given they are entirely consistent with the aforesaid letter from the Defendant to the IO.

43.For completeness, I am unable to derive assistance from the photos mentioned in paragraph 21 above. Neither the person taking the photos nor the one adding the caption and/or the arrow was available to testify at trial. It is not possible to work out from the photos when exactly they were taken and what precisely they could show with regard to the cause of the Accident.

44.Based on the evidence before the Court, I find that the Accident was likely to be caused by a loosening of the rubber hose in the Shops, which was the reason provided in the Defendant’s letter to the IO dated 11 July 2018. I also accept TP2’s evidence that the rubber hose was installed by her before the Accident and replaced by her after the Accident.

E2.  Whether TP1 is liable

45.The six questions to consider in a negligence claim were set out by the Supreme Court in Meadows v Khan [2022] AC 852 at paragraph 28 (Lord Hodge DPSC) and Manchester Buildeing Society v Grant Thornton UK LPP [2022] AC 783 at paragraph 6 (Lord Sales JSC):

(1)  Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2)  What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3)  Did the defendant breach his or her duty by his or her act or omission? (the breach question)

(4)  Is the loss for which the claimant seeks damages the consequence of the defendant's act or omission? (the factual causation question)

(5)  Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant's duty of care as analysed at stage 2 above? (the duty nexus question)

(6)  Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)

46.The actionability question is not in issue as it is clearly to be answered in the affirmative.

47.On the scope of duty question, Mr Yeung on behalf of TP1 cited the following authorities to the Court.

(1)  In Meadows v Khan (supra), the Supreme Court held that “[t]he law has regard to the actual nature of the damage which the claimant has suffered when it determines the scope of the defendant’s duty”. This applies “where a claimant seeks to establish liability arising from a defendant’s omissions”. The scope of a defendant’s duty is defined by the “risk of harm [which] the defendant owed a duty of care to protect the claimant against”, and “the absence of foreseeability would militate against there being a duty of care in relation to such a risk” (paragraphs 33, 37, 38 and 65).

(2)  In the context of a landlord’s liability to third parties in tort, the authors of Winfield and Jolowicz on Tort (20^th ed, 2020) observed that “where the landlord did not create the defect, the position remains that there is no liability at common law, and this is so even if he undertakes to maintain and repair the demised premises” (paragraph 10-057). Similarly, the editors of Woodfall’s Law of Landlord and Tenant (Vol 1, 2023) stated that “[e]xcept as provided by statute the landlord owes no general duty of care to the tenant or to third parties” (paragraph 15.033).

(3)  In Dodd v Raeburn Estates Ltd [2016] P.I.Q.R. P16, the freehold owners of a building were sued by the executrix of a guest of a leasehold owner of flat in the building, who died after falling down a defective staircase which was not installed by the freehold owners. HH Judge Richard Parkes QC analysed the authorities and gave summary judgment in favour of the freehold owners as follows:

“An obvious obstacle to the claim at common law is Cavalier v Pope [1906] A.C. 428, which decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. The decision has been much criticised, and in Rimmer v Liverpool County Council [1985] QB 1, where it was distinguished by a holding that the local authority landlord which had designed and built the premises owed a duty of care to the tenant as the designer and builder, although not as landlord, it was said that it should be kept in close confinement. Nonetheless, it appears still to be good law. Lips v Older [2004] EWHC 1686 (QB); [2005] P.I.Q.R. P14 does not assist the claimant, for although the claimant succeeded against his landlord at common law, there is nothing in the decision (where Cavalier seems not to have been cited) to suggest that the existence of a duty of care was disputed. That was the conclusion of the judge in Drysdale v Hedges [2012] EWHC 4131 (QB); [2012] 3 E.G.L.R. 105, where a claim in common law negligence was dismissed. The landlord had painted the front door steps of the house let to the claimant with paint which made them unduly slippery in wet weather, as a result of which she fell (like the claimant in Lips v Older) into a basement area. The judge concluded that where personal injuries result from a failure to repair, then the duty of care is that set out in the DPA 1972, but where the DPA does not apply (as it did not in that case) then a landlord owed a duty to take reasonable care not to create an unnecessary risk of injury. On the facts, the duty was not breached.

Mr Stevens argued that since Cavalier, Rimmer and other cases had advanced the law. He mentioned Lips v Older, but I have already referred to the limited effect of that decision, and he relied on the fact that in Drysdale, common law negligence was found to be at least potentially arguable. But it was arguable only on facts that, as in Rimmer, entailed actions taken by the landlord. The position of Raebarn is very different. I cannot see any basis on which Raebarn could be held responsible at common law for the actions of its lessee in failing to install a handrail. Mr Stevens also prayed in aid the principle that it is not appropriate to strike out a claim in an area of developing law. I do not think that principle applies to the pleaded facts of this case.

In short, I see no basis on which the common law claim is sustainable. Raebarn did not design, build or install the staircase; it was not responsible for any breaches of planning permission or Building Regulations, nor did it have any duty to inspect to ensure compliance; and it had nothing to do with the installation or non-installation of a handrail. As the Master rightly said, Raebarn had no control over the premises and its responsibility was limited to a right to enter to repair.”

48.Mr Yeung submitted that TP1 was there to collect rent and did not have day-to-day control of the Shops. TP1 “did not design, build or install” the rubber hose. TP1 could not have foreseen the loosening of the rubber hose, which was not a structural part of the Shop. There is “absence of foreseeability” of the risks of the Plaintiff’s injuries caused by water that leaked from a loosened rubber hose. Imposing a duty of care on a landlord in these circumstances, according to Mr Yeung, would be tantamount to imposing a supervisory duty on the landlord to inspect and check on whatever the tenant does to see if any risk to third parties arises. The landlord would, at the same time, derogate the tenant’s covenant of quiet enjoyment of the property. It is also onerous, uncommercial and cannot be fair, just and reasonable.

49.Mr Gidwani for the Defendant, on the other hand, submitted that TP1 owed a duty of care under the neighbourhood principle to users of the common area in the Shopping Centre including the Plaintiff, and should have prevented the risks of harm by regularly maintaining the pipes in the Shops which were used as a hair salon.

50.The Court can envisage situations where a landlord of shop premises may owe a duty of care to users of the common parts, such as where the defect in the shop was created by the landlord, or (even where the defect was not so created) when the landlord was put on notice of a defect or a material risk of such defect.

51.On the evidence of this case, however, the loosened rubber hose was not installed by TP1. Even assuming (for argument’s sake) that the rubber hose were installed by TP1, there is nothing to suggest that TP1 was put on notice that it was or might become defective before the Accident. The risks of the injuries suffered by the Plaintiff were therefore not reasonably foreseeable. In the circumstances, I agree with Mr Yeung that it would be unduly onerous to impose a duty on TP1 to supervise what risks there might be in the Shops to third parties.

52.For completeness, even if (contrary to my conclusion above) TP1 owed a duty of care to the Plaintiff, I find that:

(1)  TP1 did not breach such duty, when the rubber hose was installed by TP2.

(2)  There is no factual causation in any event. I accept Mr Yeung’s submission that even if TP1 had regularly checked and maintained the pipes within the Shops, it is not established that the Accident would more likely than not have been prevented.

53.In view of the aforesaid, the Court does not need to deal with the duty nexus question or the legal responsibility question.

54.Given my finding that TP1 is not liable for the Accident, it would not be necessary to consider the remaining issues in paragraphs 33 to 35 above. I will nevertheless address them briefly in deference to counsel’s submissions.

F.  CONTRIBUTORY NEGLIGENCE ISSUE

55.TP1 argued that the Plaintiff had failed to take reasonable care of himself and should be held 50% contributorily negligent for the Accident.

56.In my view, the following considerations are relevant:

(1)  The Plaintiff was the only security guard on duty at the time;

(2)  The Plaintiff was dealing with an emergency situation. He had to act quickly to prevent water from flooding and spreading around the Shopping Centre, or else there could be damage or possibly serious damage to the common areas and/or other shops;

(3)  If the Plaintiff had worn anti-slippery shoes (rather than his leather shoes), the chances of him slipping and falling would likely have reduced;

(4)  However, even if the Court accepts Ms Wong’s evidence that water boots would have been available at the Building, there is no evidence of the Defendant’s staff having reminded the Plaintiff to put them on before instructing him to take steps such as turning off the main tap or sweeping water down to the Ground Floor and then to the street;

(5)  The Defendant’s Guidelines provided that the security personnel of the Building should take prompt actions to prevent the spreading of flood. They made no mention of the need to wear anti-slippery shoes or any other protective equipment.

57.In the circumstances, if the Court had to decide on the issue, I would have held that the Plaintiff was contributorily negligent by no more than 10%.

G.  APPORTIONMENT ISSUE

58.If the Court had to decide on this issue, it would have applied the principles in Li Shiu To v Cheung Pik Ng (No 2) [2018] 1 HKLRD 934 at paragraphs 31-37 (Au-Yeung J) and Liao Kuo Chun v Win Capital (HK) Ltd [2010] 4 HKLRD 257 at paragraphs 50-53 (Bharwaney J) on the operation of the Contribution Ordinance (as submitted by the Defendant); and followed the three-step approach in Nationwide Building Society v Dunlop Haywards Ltd [2010] 1 WLR 258 at paragraphs 71-78 (Clarke J, as he then was) (as submitted by TP1).

59.The quantum of damages payable to the Plaintiff has been fixed at HK$386,150.34 as per the Consent Order stated in paragraph 3 above. Taking into account contributory negligence of 10% as indicated above, the amount for apportionment would be HK$347,535.3.

60.I agree with TP1’s submission, based on So Kai Hau v YSK2 Engineering Company Ltd [2018] HKCFI 1803 (Bharwaney J), that the Court is not hamstrung by the settlement amount between the Defendant and TP2 at HK$200,000 (see paragraph 6 above). Taking into account TP2’s direct, day-to-day control and operation of the Shops and her obligation to notify TP1 of any need for structural repairs under the tenancy agreement (see paragraph 26 above), I accept it would be just and equitable that TP2 should bear a greater share of responsibility for the Accident than TP1. I further accept TP1’s submission that TP2 should bear 40% of the responsibility, with the result that the Defendant and TP1 should be liable to contribute 60% towards the damages payable to the Plaintiff. The sum for apportionment between the Defendant and TP1 should therefore be HK$347,535.3 x 60% = HK$208,521.18.

61.Considering the (1) causative relevance and (2) seriousness of fault of the Defendant and TP1 per the guidance from Liao Kuo Chun (supra), I am prepared to accept TP1’s submission that her liability should be no more than 25%. I bear in mind that the Defendant was in charge of the safety of the Shopping Centre and gave instructions to the Plaintiff on the night of the Accident, whereas TP1 had no direct or day-to-day control and operation of the Shops. Calculated on the basis of HK$208,521.18, the sum for which TP1 would have been liable (assuming liability were established) would be HK$52,130.29.

62.TP1 accepts that the Plaintiff’s costs in these proceedings and the EC Action can be claimed by the Defendant as part of contribution proceedings. TP1 would therefore have been liable to contribute HK$395,500 x 15% (i.e. 25% of the remaining 60% as found above) = HK$59,325 towards such costs, assuming liability were established.

63.On the other hand, I accept TP1’s submission, based on Halsbury’s Laws of Hong Kong (Vol 21(1), 2^nd ed, 2023) at paragraph 131.236 and the plain language of section 3(1) of the Contribution Ordinance, that the Defendant’s own costs in these proceedings and the EC Action do not amount to “damage suffered by another person” (i.e. the Plaintiff).

64.To conclude, assuming liability were established, the Court would have found that TP1 should contribute HK$52,130.29 + HK$59,325 = HK$111,455.29 to the Defendant.

H.  DISPOSITION AND COSTS

65.By reason of the above, I order that:

(1)  The Defendant’s claims against the TP1 in the action be dismissed; and

(2)  There be a costs order nisi that the Defendant pay TP1’s costs of the action, to be taxed on a party to party basis if not agreed.

66.I thank counsel for their assistance.

Mr Victor Gidwani, Counsel instructed by Lau, Chan & Ko, for the Defendant

Mr Joshua Yeung, Counsel instructed by Michael Pang & Co., for the 1^st Third Party