Read the full judgment text of HCA 005263/1992 on BabelCite. This High Court CFI judgment was delivered on 12 August 1994 before Deputy Judge W.A. Wilson.
Tort – negligence – duty of care – property management – theft of vehicle from residential estate carpark – whether management company owed duty to prevent third-party crime – whether breach of duty – whether caretaker's lapse proximate cause – special relationship and foreseeability – novus actus interveniens – competing interests of residents – whether management company an insurer or custodian of vehicles. The plaintiff's general manager, Mr Henry Ching, had his company Toyota Lexus stolen from the carpark of Scenic Villas residential estate managed by the defendant. Four cars had been stolen from the estate in just over a year during a notorious upsurge in Hong Kong vehicle thefts. The defendant had taken various security measures including patrols, walkie-talkies, registration recording, a high-risk vehicle list, and proposed a magnetic passcard access control system that was blocked by a single owner's objection. The estate had 210 flats, 282 parking spaces, and a supermarket open to the general public. The night gate caretaker raised the barrier for the Lexus driver after being told he was from flat K10, but later had second thoughts and alerted Mr Ching. Held, allowing the general rule that no one owes a duty to prevent another's crime (novus actus interveniens), the defendant did owe a duty to take reasonable care, given the special relationship and foreseeability. However, the defendant was not in breach: it was a management company steering a middle course between the competing demands of a vocal minority of luxury car owners and a less vocal majority of modest-car owners, and was constrained by funds. The caretaker's lapse was not necessarily the proximate cause, as the thieves would probably have crashed through the barrier or overcome the elderly caretaker. The defendant was not an insurer of the cars and less of a custodian than a parking service or repair garage. The case was distinguished from a complete withdrawal of services as in Hui Kay-cheong v. Chi Wo Properties. Plaintiff's claim dismissed with costs; leave to the parties to apply.
Legal issues: Existence of duty of care owed by property manager to prevent third-party crime · Whether defendant breached the duty of care in security arrangements · Whether the caretaker's lapse was the proximate cause of the loss
Outcome: Plaintiff's claim dismissed with costs.