Read the full judgment text of FACV 000004/2007 on BabelCite. This FACV judgment was delivered on 26 October 2007 before Li CJ, Bokhary PJ, Chan PJ, Ribeiro PJ, Woolf NPJ.
Civil law – public nuisance – omission – liability of incorporated owners – extended canopy – fatal accident – building management – common parts – illegal structure – knowledge or presumed knowledge – non-delegable duty – actionable omission – effective control over common parts – appeal allowed – judgment for damages against incorporated owners. On 10 August 1999, Madam Liu Ngan Fong Sukey, a hawker plying her trade in Tung Choi Street, was struck and killed by a 15-pound piece of concrete that had fallen from the 11th floor of Kwok Wing House. The fragment came from the corner of an extended concrete canopy projecting from the enclosed balcony of Flat A on the 11th floor – an illegal structure of about 35 years which had been cast against the approved canopy without proper reinforcement and with poor workmanship. The plaintiffs, administrators of Madam Liu's estate, sued the flat owners (1st defendants), the tenant (2nd defendant) and the Incorporated Owners of Kwok Wing House (3rd defendants). The flat owners consented to judgment. At trial, Deputy High Court Judge To held the tenant liable in negligence and public nuisance and awarded damages of $1,554,742.00 against the owners and tenant, but dismissed the claim against the incorporated owners on the ground that they owed no actionable duty. The Court of Appeal dismissed the plaintiffs' appeal on the same basis. On final appeal, held, allowing the appeal: (1) Liability in public nuisance is not strict or absolute – a defendant is liable only if he knew or ought reasonably to have known of the relevant nuisance hazard (knowledge or presumed knowledge), and the type of injury must be foreseeable. The Wringe v Cohen distinction between 'want of repair' (strict) and 'latent defect' or 'secret and unobservable operation of nature' (knowledge) cases should no longer be followed, and the further technical distinctions between artificial and natural hazards, or between hazards abutting or near a highway, should likewise no longer determine whether liability is strict. (2) An incorporated owners corporation, while not an owner-occupier in the traditional sense, is the corporate embodiment of the co-owners collectively under the Building Management Ordinance (Cap 344). It exercises sufficient control over the common parts of a building (including external walls) – through statutory duties to maintain and enforce the deed of mutual covenant, and statutory powers of entry, inspection, repair, removal and cost-recovery – to be treated as falling within an analogous category to owners and occupiers of land. It is therefore subject to a non-delegable, actionable duty to remove or neutralise nuisance hazards on or emanating from those common parts, of which it knows or ought to know. The corporation is not properly analogised to public authorities, for whom liability for non-exercise of statutory powers has been doubted on grounds of resource allocation and public law doctrine. (3) The incorporated owners ought to have known that the extended canopy was an illegal structure attached to the common parts and presented a real risk of danger, given that it projected from the 11th floor over a busy street and had been exposed to the elements for 35 years. They had the means to inspect and remove the hazard – as demonstrated by their commissioning of external maintenance works using scaffolding in 1993 ($250,920) and again in 1998. Their omission to inspect or take any action in respect of the canopy, wrongly regarding it as solely the individual owner's responsibility, was causative of the fatal accident: on the expert evidence, a proper inspection would have discovered and rectified the dangerous condition. (4) Section 16 of the BMO, which makes the corporation exclusively liable for owners' common-part liabilities, does not preclude the corporation and individual flat owners from being sued together in a single action, and the court may apportion liability and apply section 3(1) of the Civil Liability (Contribution) Ordinance (Cap 377) to contribution among such co-defendants. The Court allowed the appeal and entered judgment for damages against the 3rd defendants, with liberty to apply for costs, contribution and other directions once the pending quantum appeal is determined.
Legal issues: Nature of liability in public nuisance – strict or knowledge-based · Liability of incorporated owners in public nuisance for omissions regarding common parts · Knowledge, presumed knowledge, causation and means in respect of the incorporated owners · Effect of section 16 of the BMO on joint liability of the corporation and individual owners
Outcome: Appeal allowed. The Incorporated Owners of Kwok Wing House (3rd defendants) are liable to the plaintiffs in damages for public nuisance, jointly with the flat owners and the tenant.
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