Lam Kei Fung v. The Incorporated Owners of Yue Tin Court and Others

DCPI 1237/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1237 OF 2005

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Coram  :  Her Honour Judge Mimmie Chan

Dates of hearing  :  18-21; 26; 28-29 February & 4 March 2008

Date of handing down Judgment  :   2 April, 2008

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JUDGMENT

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Background

1.Mr. Lam was employed by Vinci Park Services Hong Kong Ltd. as a car park attendant.  He worked mostly night shifts at the carpark of Yue Tin Court in Shatin.  On 24 September 2002, at about 5:20 a.m., Mr. Lam was doing his usual patrol duties, when he slipped in the course of going down a staircase leading from the upper floor to the lower floor of the carpark, and fell.  He sustained injuries as a result, and brought these proceedings for recovery of damages.

2.The 1st Defendant are the Incorporated Owners of Yue Tin Court.  The 2nd Defendant was the company appointed by the 1st Defendant to manage Yue Tin Court.  The 3rd Defendant is a statutory body and a party to the Deed of Mutual Covenant in respect of Yue Tin Court.  Neither the 1st nor 3rd Defendants claim to have any interest by way of ownership or control of the staircase where the accident occurred. 

Issues

3.The issues for determination at trial are:

(1)	Did the accident happen in the manner alleged by Mr. Lam?
(2)	Was the accident caused by the negligence or breach of an occupier's duty of care on the part of any of the Defendants?
(3)	What are the damages recoverable by Mr. Lam?

Did the accident happen in the manner alleged by Mr. Lam?

Mr. Lam's work

4.According to Mr. Lam, his job as carpark attendant required his working 6 days a week, 12 hours each day, from 7 p.m. to 7 a.m. on night shift.  He had been working at the Yue Tin Court carpark since March 2002.  Prior to that, he had been assigned to work in carparks at other housing estates of the 3rd Defendant.  His duty was to patrol the carpark, to inspect if there was any damage to vehicles parked there, and to deal with general security in the carpark.  The carpark at Yue Tin Court was divided into 2 stories with car parking spaces.  In the course of his duties, Mr. Tam followed his employer's instructions to use the staircases situated on each side of the carpark when he went on his nightly patrols.  According to Mr. Lam, each patrol of the carpark would take approximately 50 minutes.  He had to make a round every hour.

Where the accident occurred

5.Mr. Lam slipped and fell when he was walking down from 1/F to G/F of the subject staircase, on his patrol round in the carpark between Block A and Block B.  As much of the argument on liability turns on the situation and layout of the subject carpark and the staircase in question, I will describe these in further detail. 

6.Yue Tin Court, where the subject carpark is situated, is a housing estate built under the Home Ownership Scheme of the Government.  It comprises 7 multi-storey residential blocks with carparks, open bays, shops, kindergartens, and other non-residential premises.  Like most modern housing estates in Hong Kong now, the buildings are linked by a raised podium.  The carpark in which the accident occurred is straddled between Block A and Block B of Yue Tin Court.

7.After examination of the photographs and plans produced in evidence at trial, the parties do not seriously dispute the following.  The subject carpark is a three-storey structure between Block A and Block B, connecting these 2 residential blocks, and consisting of G/F, 1/F and the podium level.  G/F and 1/F are used as carparks.  The podium level is an open space, linked to the podium level of the entire estate.  On each side of the carpark structure is a staircase, and the accident occurred in the staircase on the side of Block B.

8.The G/F opening of the subject staircase is next to the G/F opening of the residential Block B.  The G/F lift lobby of Block B is behind a stainless steel door within the opening of Block B.  The steel door is locked, and residents of Block B have the access code to the lock. 

9.On the other side of the G/F opening of the subject staircase is the open access to the G/F car parking spaces. 

10.Directly in front of the opening to the subject staircase and the area leading to the steel gate and the lift lobby of Block B on the ground floor level is an empty space about 8 m in width leading to, and with an opening adjacent to, the public pedestrian walkway at street level.

11.There is a further main entrance to the residential units of Block B, and this is on the podium level.  The exit of the subject staircase on the podium level is right next to this main entrance of Block B.

12.Access to the subject staircase is open.  There are no gates or doors restricting entry to or exit from the subject staircase.  It provides access from the street or ground level to the podium level, and hence to the main entrance to Block B on the podium level.  It has been emphasized by Counsel for the Incorporated Owners that there is a separate staircase behind the lift shaft of Block B, which leads to the main entrance to Block B on the podium level, and also to the lift lobby or emergency exit at the ground level of Block B.   According to Counsel for the Housing Authority, the subject staircase provides the only sheltered access from the ground floor or street level to the podium level for visitors without the access code to the lifts or the staircase within Block B, which are behind the steel gate on the ground floor.

13.At the base of the subject staircase on the ground floor, there is a storeroom which is encased by iron grill and locked.  The keys to the storeroom were apparently in the possession of Hong Yip at one stage, for they were handed over by Hong Yip to the company which took over management of Yue Tin Court from Hong Yip in January 2003.

How the accident happened

14.Mr. Lam slipped and fell when he was walking down from 1/F to G/F of the subject staircase, to do his patrol round at about 5:20 a.m..  He had turned at the landing between these 2 floors in the staircase, and had walked further down 2 or 3 steps of the staircase, when his feet slipped, causing him to lose his balance.  Mr. Lam fell down the steps, landing on his buttocks on the ground at the base of the flight of stairs.  According to Mr. Lam, he had slipped because the floor surface of the staircase was wet and slippery, as a result of water leaking from a fire service pipe running from the ceiling to the ground at the landing of the subject staircase ("the Water Pipe").

15.According to Mr. Lam, when he landed on the ground in the fall, his body had leaned back and his hands was stretched out towards the back.  When he landed on the ground, his hands came into contact with the surface of the second last step of the staircase.  His palms and elbows were wet.  Mr. Lam said that the buttocks area of his pants was also wet, and he could feel this when he was sitting on the ground.   Mr. Lam could not move because of the pain sustained as a result of the fall.  He sat on the ground for about 20 minutes before he could stand up, and then made his way back to the shroff office, where his colleague, Mr. Tang, was.

16.No one witnessed the accident.  Mr. Tang, who worked in the shroff office, confirmed in his evidence that he saw Mr. Lam return to the Shroff office some time after 5:30 a.m..  He said that Mr. Lam was walking with a limp, and that Mr. Lam told him that he had had a fall in the staircase.  He noticed that Mr. Lam appeared to be in pain.  Mr. Tang also noticed that Mr. Lam's pants were wet in the buttocks area.  Mr. Tang asked if he should call an ambulance, but Mr. Lam said that was not necessary.  Mr. Lam then  took a taxi to the hospital, and Mr. Tang filed an incident report for his employer.

17.Mr. Lam's case is that he had slipped because the Water Pipe leaked, there was consequently water on the landing of the subject staircase, and he had slipped as a result when going down the flight of steps.  Mr. Lam was candid in his admission that on the morning in question, before the fall and throughout  his rounds, he had not noticed whether there was water on the landing or on the steps in the subject staircase.  After the fall, he had not turned round to see where the water had come from, because he was in great pain then.  He also admitted that after he had stood up, he did not climb up the staircase to check the source of the water leakage.  Mr. Lam's evidence was that during the time when he had worked the day shift at the subject carpark, there were occasions on which he had noticed leakage of water from the Water Pipe.  The last occasion on which he had seen water leaking from the Water Pipe was during one of his day shifts in August 2002, about a month before the accident.  The lighting was better during the day, and he could see better.

18.Mr. Tang was more adamant than Mr. Lam in relation to the presence of water in the subject staircase.  His evidence is that although it was not his duty to do so, he would help out his colleagues in their patrol of the subject carpark during the night shift.  He had, however, received specific instructions from his superior not to assist Mr. Lam.  Nevertheless, he would patrol the carpark 3 or 4 times a week when other attendants were on duty, and he passed by the subject staircase on each of such occasions.  According to Mr. Tang, there was water seepage at the location of the accident on each occasion of Mr. Tang's rounds.  Mr. Tang was therefore certain in his evidence that there was water at the location of the accident, although he could not explain the source of such water.  His evidence was that he would be particularly careful whenever he passed the location.

19.The Defendants claim that there is no evidence that Mr. Lam had fallen because there was water in the subject staircase which caused him to slip.  They claim that it was Mr. Lam's mere guess that there was water and that he had slipped on the water in the staircase, as Mr. Lam had admitted that on the day of the accident, he had not seen water in the staircase, despite having passed the staircase at least 10 times.

20.Having heard Mr. Lam and Mr. Tang in evidence, I accept that they are both honest witnesses.  Mr. Lam was candid in admitting features of evidence which were not favorable to his case.  Mr. Tang, on his part, was direct and unwavering in his evidence and, having left his employment with Vinci and being unrelated to and (on his evidence) not even close with Mr. Lam, he had no reason to lie about what he had seen on the day of the accident and before. 

21.Although the witnesses called by the Defendants denied that they had ever seen water leakage in the subject staircase, it appears from the evidence that their visits were infrequent.  It is not unlikely for them not to have noticed water in the subject staircase during their chance passing of the staircase, even if there had been water.  Moreover, the visits made by Mr. Fok, Hong Yip's witness, were mostly late at night and, from the evidence, it is probable that any water in the subject staircase may have been easily missed by Mr. Fok.

22.In view of the presence of the Water Pipe at the landing, and in the light of Mr. Tang's evidence, it is in my judgment more probable than not that there was water leakage from the Water Pipe which led to the presence of water on the ground in the subject staircase.  Mr. Lam's own evidence, that his palms and pants were wet after landing on the ground after the fall, supports his case that there was water in the subject staircase.

23.The Incorporated Owners and Hong Yip accept that they have the duty to maintain the Water Pipe as part of the fire services equipment of Yue Tin Court.  According to Mr. Fok, the fire services equipment at Yue Tin Court were at the material time inspected every 3 months by the registered contractors responsible.  Hong Yip rely on their General Ledger for the period from 1 April 2002 to 30 April 2003 as evidence that the Water Pipe at the subject staircase had not been repaired either before the accident in September 2002, or at any time shortly thereafter.  I do not accept this as conclusive evidence that there was no leakage from the Water Pipe at the time of the accident.  The Certificate of Fire Service Installation and Equipment produced by Hong Yip only shows that the firehose and fire hydrant systems of Yue Tin Court had been inspected and tested on a quarterly basis and found to be "in efficient working order".  I do not accept this as conclusive evidence that there is no leakage from the Water Pipe in the subject staircase at the material time.  It may be that even with minor or occasional leakage, the firehose and fire hydrant systems can still be in efficient working order.  I also accept the submissions of Counsel for Mr. Lam that from the evidence, the Water Pipe had not been replaced since Yue Tin Court was completed sometime in 1982, and that the quarterly inspection conducted after the accident only showed that the Incorporated Owners and Hong Yip had complied with the minimum statutory requirements under the law, instead of taking all reasonable steps to check the Water Pipe for leakage or defects and to properly maintain or repair the same.

24.Counsel for the Defendants challenged Mr. Lam's testimony as to how the accident had occurred as being incredible and improbable.  It is claimed that it is improbable that after Mr. Lam's return to the shroff office on the morning in question, Mr. Lam and Mr. Tang would not have discussed the alleged water leakage in the staircase if it had caused Mr. Lam's fall.  They pointed out that prior to the accident, neither Mr. Lam nor Mr. Tang had made any complaint to their employer about the leakage if it was indeed as serious as they claimed it to be. 

25.I accept the evidence of Mr. Lam and Mr. Tang that despite their working together, there was very little conversation between them because, as is apparent when Mr. Lam gave evidence, he spoke very little or very bad Cantonese.  Mr. Tang said it was very difficult for him to carry on a conversation with Mr. Lam because of the language barrier.  I consider it understandable that at the time when Mr. Lam had just experienced a fall and was apparently in great pain, Mr. Lam and Mr. Tang would not have conducted a detailed and long discussion on the condition of the staircase.  Mr. Lam also explained that he had been given to understand that his job responsibilities extended to the carpark building and the vehicles parked there, but not to the staircase, such that he did not regard it as his duty to report to his employer any water leakage detected in the subject staircase.  Mr. Tang also explained that the subject staircase was not Vinci's responsibility and hence he did not make any complaint to his superior about the water seepage problem prior to the accident.

26.The Defendants also referred to the incident report which Mr. Tang had prepared in relation to the accident.  I do not find any significance in the small discrepancies in the two versions of the report signed by Mr. Tang, and do not accept that they cast any doubt on the circumstances of the accident or Mr. Tang's account thereof.

27.The Defendants further claimed that Mr. Lam's own health condition had caused or led to his fall.  Having considered the medical reports, and having heard Mr. Lam's evidence, I am satisfied that his  health problems before the accident did not cause him any exceptional difficulty in carrying out his work duties.  On his evidence, he had no cause to take sick leave prior to the accident and there had been no complaints from his employer about any inability on his part to properly carry out his work prior to the accident.

28.On the evidence available, I accept on a balance of probabilities that the accident had occurred in the manner described by Mr. Lam and he had fallen as a result of the presence of water on the ground in the subject staircase.  I also accept, on a balance of probabilities, that the water on the ground was caused by leakage from the Water Pipe.  The condition of the leakage may have been slightly exaggerated by Mr. Tang, but I believe his evidence that there was constantly water in the staircase in the vicinity of the Water Pipe, and this can only be explained by a leakage in the Water Pipe.

Was the accident caused by the negligence or breach of an occupier's duty of care on the part of any of the Defendants?

29.Mr. Lam's case is that his fall and injuries are caused by the Defendants' negligence, or breach of their duty of care as an occupier of the subject staircase.  It is not disputed that the foundation of occupier's liability is occupational control, which has been clearly established to mean "control associated with and arising from presence in and use of or activity in the premises" (Wheat v. E. Lacon & Co. Ltd [1966] A. C.  552).

30.Neither the Incorporated Owners nor the Housing Authority admits to be the occupier of the subject staircase.  The Housing Authority is the owner of the carparks of Yue Tin Court.  According to the Incorporated Owners, the Housing Authority, as the developer of Yue Tin Court,  has retained the exclusive right and privilege under the Deed of Mutual Covenant relating to Yue Tin Court ("Deed") to hold, use, occupy and enjoy the carparks in Yue Tin Court.  The Incorporated Owners therefore claim that the carparks are not "common parts" of Yue Tin Court.  They also claim that the subject staircase is an integral part of the carpark owned by the Housing Authority such that the Housing Authority remains the owner and retains the control of the subject staircase.

31.Both Counsel for the Incorporated Owners and Counsel for the Housing Authority made it clear at the outset that the court is not asked to make any finding in these proceedings on the title to the subject carpark or the staircase.  It is obviously unnecessary for the court to do so, as the liability of the Defendants does not depend on ownership or title to the subject staircase where the accident occurred.  I only need to determine the liability of the Defendants on the basis of occupational control, and negligence.  Counsel for the Incorporated Owners and counsel for the Housing Authority agree that the issue in dispute between them is whether the subject staircase forms part of the carpark which is owned by the Housing Authority, or whether it is a common part of Yue Tin Court which the Incorporated Owners and Hong Yip (as the management agent appointed by the Incorporated Owners) at the material time were under a duty to maintain.

Whether the subject staircase is a common part

32.I accept the submissions of Counsel for the Housing Authority that the proper approach in determining whether the subject staircase is a common part is to consider the provisions of the Deed and section 2 of the Building Management Ordinance ("BM Ordinance").

33.Section 2 of the BM Ordinance provides for "common parts" to mean :

"(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in Schedule 1;

…"

34.The parts specified in Schedule 1 of the BM Ordinance include staircases and landings.

35.Clause 13 (c) of the Deed also provides that "common parts" mean:

"the whole of the Estate except such parts thereof as have been specified or designated in an instrument registered in the District Land Office Shatin as being for the exclusive use occupation or enjoyment of an owner or owners".

36.In recital (6) of the Deed, the "Estate" is notionally divided into 29,761 equal undivided shares.   The Estate is defined in recital (5) of the Deed to mean the "seven multi-storey buildings of flatted development known as Yue Tin Court with car parking spaces open bays management offices caretakers quarters shops kindergarten children's nursery clinics other non-residential accommodation residential units roads paths pavements lawns gardens outside lighting and other facilities for the better enjoyment thereof as a private residential estate".

37.Undivided shares are allotted to each residential flat in the 7 blocks of the Estate.  One undivided share is allotted to "Empty Bays".  One undivided share is allotted to "Car Parks".  "Car Parks" are not otherwise defined or delineated in the Deed.

38.Clause 1 of the Deed provides that the Housing Authority has the full and exclusive right and privilege to hold use occupy and enjoy to the exclusion of the First Purchaser "all those flats car parking spaces open bays management offices caretakers quarters shops kindergarten children's nursery clinics and other non-residential accommodation under in and of the buildings within the Estate" save and except the flat assigned to the First Purchaser.

39.It is not disputed that the carparks at Yue Tin Court are not the subject of any separate assignment, by which the exclusive right to hold, use, occupy and enjoy any part of Yue Tin Court designated as the carpark portion, or the “Car Parks” as referred to in recital (6) of the Deed, is granted to the Housing Authority or any other owner.  The Deed does not define or delineate "Car Parks", to which the one undivided share in the Estate is allotted under recital (6).  The exclusive right reserved to the Housing Authority in clause 1 of the Deed covers "car parking spaces", as opposed to "Car Parks". 

40.Counsel for the Housing Authority submits that the reservation clause in clause 1 of the Deed should be narrowly construed against the party benefiting from the reservation of rights, and that the Housing Authority should reserve the minimal part of the Estate for its exclusive use and right of occupation.  In the case of Jumbo King Ltd. v. Faithful Properties Ltd. & Others (1999) 2 HKCFAR 279, Lord Hoffman NPJ expressed doubt about whether the principle for construing reservations applies to a Deed of Mutual Covenant.  He considered that the grant is the assignment of the undivided share, and the Deed of Mutual Covenant is mutual, where parties contract as covenantor and covenantee and do not reserve anything.  It was also emphasized that whether or not the principle applies, it is only a last resort to resolve an ambiguity.

41.Looking at the ordinary and natural meaning of the words used in clause 1 of the Deed, namely "car parking spaces", it is quite clear that the Housing Authority only has the exclusive right to hold, use, occupy and enjoy the "car parking spaces" allocated within the entire Estate of Yue Tin Court for the parking of vehicles, whether these spaces are within the area of the 2 levels of the enclosed carpark between Block A and Block B, or anywhere else in the open area within Yue Tin Court.

42.Clause 1 of the Deed is the only document adduced in evidence in which the exclusive rights in any car park or car parking spaces are designated.   Thus, having ruled on the part specified or designated in clause 1 as being for the exclusive use, occupation or enjoyment of the Housing Authority, it follows from my judgment that the subject staircase, not falling within "car parking spaces", "open bays" or other parts  reserved in clause 1, is a common part by virtue of section 2 of the BM Ordinance, and by virtue of clause 13 (c) of the Deed.

43.Adopting the test propounded by Lord Hoffman NPJ in Jumbo King Ltd., that the construction of a Deed of Mutual Covenant, like any other document, should be an attempt to discover what a reasonable person would have understood the parties to the document to mean, it may be that a reasonable person, looking at the Deed as a whole and having regard to the factual background of Yue Tin Court, may come to the conclusion that "Car Parks" referred to in recital (6) must, and can only, mean the two-storey carpark between Block A and Block B, and the two-storey carpark between Block C and Block D.   However, this is would not affect my decision on whether the subject staircase is a common part, for the reasons I will outlined below.  Nor do I have sufficient evidence before me in these proceedings to decide whether the Housing Authority's ownership of the one undivided share in the "Car Parks" entails title and ownership of and the exclusive right to occupy the entire carpark structures between Blocks A and B, and between Blocks C and D.   As explained in paragraph 31 above, it is unnecessary for me in these proceedings to determine questions relating to the title in the "Car Parks" or the subject staircase.

44.In support of their contention that the subject staircase is an integral part of the entire 2 levels of the enclosed carpark  structure between Block A and Block B of Yue Tin Court,  Counsel for the Incorporated Owners argued that the architectural drawings of Yue Tin Court shed light on what was perceived by the Housing Authority as to the functionality of the subject staircase vis-a-vis the carpark and Block B of Yue Tin Court.  It was argued that the subject staircase connects the G/F and 1/F levels of the enclosed carpark and is an indispensable part of the carpark, for carpark users and staff of the carpark operator to gain access to the carpark. 

45.However, even looking at the architectural drawings and plans of Yue Tin Court, I do not accept that it is clear that the subject staircase is a part of the enclosed carpark structure comprising the 2 levels of car parking spaces between Block A and Block B, as opposed to its being a part of either Block B, or the podium (which is a common part) of the Yue Tin Court.  The subject staircase is within the "flexi-block" design of Block B, which means (according to the witness Mr. Ho called on behalf of the Housing Authority) a design in the shape of a cross and common in designs of  buildings in the Home Ownership Scheme. 

46.Nor do I accept that the frequency of use or actual manner of use of a part of a building or estate should conclusively determine whether that part is a common part of the building or estate, or not.  The fact that the subject staircase is, according to the Incorporated Owners, used mainly by users of the enclosed carpark structure between Block A and Block B, and the fact that there are other means of access to Block B apart from the subject staircase, do not by themselves mean necessarily that the subject staircase is primarily for access to the enclosed carpark, and is not a common part of Block B.  In any event, it appears from the evidence that the subject staircase provides access not only to the subject carpark, but also to the podium, as well as to other common areas on the G/F level of Yue Tin Court.

47.Counsel for the Housing Authority pointed out that at the base of the subject staircase is a storeroom which was, at the material time, used and controlled by Hong Yip, the management agents of the Incorporated Owners.  The Housing Authority argues that this is consistent with their case that the subject staircase is a common part of Yue Tin Court.

48.Having considered all the evidence, I am satisfied that the subject staircase is a common part of Yue Tin Court. 

Whether the Incorporated Owners and Hong Yip are liable in respect of the subject staircase

49.The Incorporated Owners have a duty under s.18 of the BM Ordinance to maintain the subject staircase as a common part of Yue Tin Court.  In my judgment, the Incorporated Owners are not absolved from their duty to maintain the subject staircase as a common part by reason of the fact that there was never a proper or formal briefing by the Housing Authority, when it handed over management of Yue Tin Court to the Incorporated Owners in 2000, as to which parts of Yue Tin Court comprise the common parts to be maintained and managed by the Incorporated Owners, or on their behalf by their management agents.  Nor are the Incorporated Owners and Hong Yip excused by the fact that they, erroneously or otherwise, thought that the Housing Authority was taking care of the cleaning and management of the subject staircase.  It would appear from the evidence that the Incorporated Owners, Hong Yip and the Housing Authority simply turned a blind eye to the state and condition of the subject staircase, as none of them took any step to ascertain whether it was properly cleaned or maintained by anyone.

50.The Incorporated Owners clearly have the necessary occupational control envisaged by Wheat v. E. Lacon [1966] A. C. 552 to be liable in relation to the common parts of Yue Tin Court, as the court so recognized in Lily Tse Lai Yin v. The Incorporated Owners of Albert House HCPI 828/1997, 23 December 1999.  The Incorporated Owners' duty is to ensure that care is taken to prevent injury to third parties, which duty is not discharged by delegation to Hong Yip as the managers of Yue Tin Court.  The fact that they never exercised control over the subject staircase, under the mistaken belief or otherwise that the Housing Authority has the duty to manage and maintain the subject staircase, is evidence of their breach of duty rather than the answer to the allegation of breach.

51.I accept the submissions of Counsel for Mr. Lam that Hong Yip, as the manager ofYue Tin Court at the material time, has the duty to ensure that all common parts of Yue Tin Court, including the subject staircase, are properly maintained, and that as professional building managers, it is incumbent upon Hong Yip to ascertain for themselves which are the common parts which fall within the scope of their duty to maintain, and to seek any necessary clarification from the Incorporated Owners and the Housing Authority if there are any doubts.

52.In failing to take any adequate or practicable steps to prevent water leakage from the Water Pipe, and otherwise to prevent the occurrence of water seepage in the subject staircase and allowing the frequent presence of water in the landing between the 1/F and G/F levels of the carpark where the accident occurred, both the Incorporated Owners and Hong Yip are liable as occupiers and in negligence.  It is clearly within their reasonable contemplation that users of the staircase such as Mr. Lam would be at risk of injury if the Water Pipe is not properly maintained, or the subject staircase is not properly cleaned and maintained.

Whether the Housing Authority is liable in respect of the subject staircase

53.Counsel for the Housing Authority argued that as the subject staircase is a common part of Yue Tin Court, the Incorporated Owners should be the sole party liable to Mr. Lam under s.16 of the BM Ordinance.  This provides that upon incorporation, the liabilities of the owners in relation to the common parts of the building shall be enforceable against the corporation to the exclusion of the owners. 

54.The Housing Authority argued that, as the individual owner of the undivided one share in the "Car Parks" of Yue Tin Court, before it can be made independently liable together with the Incorporated Owners under s.16, the Housing Authority's liability and breach of duty must be over and above that of a co-owner in any multi-story building.  Otherwise, it is argued, any other individual co-owner can be liable and be sued as occupier, which will defeat the purpose of s.16 of the BM Ordinance.

55.The Housing Authority claims that it had never exercised any degree of control over the subject staircase.  The staircase was open to access by everyone.  The Housing Authority and its agents did not have any priority in the use of the subject staircase.  Mr. Lam and other employees of Vinci (the manager of the carpark) were not instructed to patrol or arrange for the cleaning of the subject staircase.

56.It is not disputed that the Housing Authority is the owner of and entitled to the exclusive right to use, occupy and enjoy the car parking spaces within the carpark structure between Block A and Block B.  The subject staircase provides access to the many car parking spaces within G/F and 1/F of the carpark in question, and for the users of these car parking spaces.  Under the provisions of the Deed, the Housing Authority has power to prevent obstruction of the car parking spaces.  The Housing Authority derives income from the use of the car parking spaces.  It also has power to, and did, appoint its own manager to operate the carpark of Yue Tin Court.  These operators and managers as well as their servants and agents use the subject staircase in order to carry out their duties and functions in the management and operation of the car parking spaces.  They clearly do so with the knowledge and consent of the Housing Authority.  Without using the subject staircase, the only other way for people to gain access to the car parking spaces would be to use the circulation lanes and driveways meant for vehicles, which would be unsafe and hence unreasonable. Under its agreement with the carpark managers, the Housing Authority has control over the efficient operation and management of, and security over, the carparks within the properties of the Housing Authority, including the cleaning of the lobby areas and stairways of the carparks.  Although the Housing Authority claims that the provisions relating to the cleaning of the stairways of carparks only apply to carparks which are multi-storey carparks, and not to the subject carpark at Yue Tin Court, such claim is entirely contradictory to the express terms of the management agreement.

57.Bearing in mind the facts and circumstances outlined in the preceding paragraph, I am satisfied that it is reasonably foreseeable by the Housing Authority that visitors to the carpark and users of the car parking spaces there, including Mr. Lam and other carpark attendants engaged to patrol the carpark and car parking spaces, would use the subject staircase and be at risk if the subject staircase was not properly managed, cleaned and maintained.  Counsel for the Housing authority relies on Yeung Wan Chun (Adminstratrix of the Estate of Yu Chi Wai, deceased) v. Kwok Wing Kwan trading as Golden Harvest Transportation & Another [1987] 3 HKC 288 in support of his contention that the Housing Authority is not an occupier of the subject staircase, as it has no power to exclude other persons from entering or using the subject staircase which the Housing Authority maintains is a common part.  However, that decision also lends support to my finding that there is a sufficient relationship of proximity between the Housing Authority and Mr. Lam, being the carpark attendant employed by Vinci which is in turn engaged by the Housing Authority to manage and operate the subject carpark, such that the Housing Authority owes a duty to Mr. Lam to provide him with a safe system of work and in securing safe access to the subject carpark for the carrying out of Mr. Lam's duties.  The Housing Authority accordingly has the duty to ensure that the subject staircase is properly managed, cleaned and maintained, either by its own agents or by the Incorporated Owners or their management agents.  The Housing Authority has fallen short of its duty in this regard, as it admitted that it had never provided maintenance or cleaning service in relation to the subject staircase, nor had it taken any steps to inquire with either the Incorporated Owners or Hong Yip as to whether either of them maintained or cleaned the subject staircase.

58.In my judgment, the Housing Authority is negligent and hence liable to Mr. Lam.  It is unnecessary for me to decide on the liability of the Housing Authority as an occupier, but I would regard the Housing Authority's activity in and use of the subject carpark and the subject staircase adjacent thereto, and its powers of management over the carpark and access to the carpark (even if this should be confined to mean the car parking spaces), as coming very close to occupational control of the subject staircase.

59.I am also satisfied that the Housing Authority's liability in negligence is separate to the liability owed by the co-owners of Yue Tin Court as a whole in relation to the subject staircase as a common part of Yue Tin Court, such as to render the Housing Authority liable alongside the Incorporated Owners under s.16 of the BM Ordinance.  Woo V-P made the distinction in his judgment in Hang Yick Properties Management Ltd. v. Incorporated Owners of Tuen Mun Kar Wah Building [2005] 2 HKLRD  499 between the liability owed by the owners as a whole in relation to the common parts (which liability passes onto the Incorporated Owners under s.16 of the BM Ordinance) and the personal liability of an individual owner in relation to the common parts which, depending on the facts of each case, can be tortious or contractual in nature, and are not covered by s.16.

Conclusion and apportionment of liability

60.The Incorporated Owners, Hong Yip and the Housing Authority are all liable in negligence or as occupiers.  Considering their respective roles, the Incorporated Owners have the statutory duty to maintain common parts under the BM Ordinance, and Hong Yip are professional agents paid for their expertise.  The Housing Authority is the developer of Yue Tin Court which handed over management to the Incorporated Owners in 2000.  It is also the developer of all public housing estates in Hong Kong.  As Counsel for Mr. Lam rightly pointed out, the Housing Authority is the provider of residential accommodation to the general public in Hong Kong, and should have an overriding interest to see to it that public housing estates are being properly managed and do not create a source of danger to people.  In my judgment, the 3 Defendants are equally to be blamed and liability should be apportioned amongst them on equal basis.

Contributory negligence

61.The Defendants claim that Mr. Lam should bear a substantial portion of the blame for his own fall.  I accept the submissions made by Counsel that if the condition of the subject staircase was as bad as that described by Mr. Tang, namely, that there was always water in the subject staircase, then Mr. Lam should have exercised greater care when going up or down the subject staircase.  Further, if as Mr. Lam himself said in evidence, the leakage was so serious that there was water on the steps which Mr. Lam could feel with his hands after his fall, then the presence of water in the subject staircase should have been spotted by Mr. Lam during the rounds which he had made in the morning before the accident.  Yet, it is Mr. Lam's evidence that during his rounds from the start of his night shift at 7 p.m. until the occurrence of the accident at about 5:20 a.m., he had not noticed any water.  I do not accept that it was "momentary inattentiveness", as counsel for Mr. Lam submitted, when he had made at least 10 rounds before the accident.  Nevertheless, although Mr. Lam did not notice any water, he claimed that he had walked carefully and slowly.   In all the circumstances, I find that the accident was contributed to by Mr. Lam's lack of due care in failing to detect the presence of water in the subject staircase.  In my judgment, Mr. Lam is 15% to be blamed.

What are the damages recoverable by Mr. Lam?

62.Mr. Lam was admitted to the Accident and Emergency Department of Prince of Wales Hospital on 24 September 2002, complaining of tenderness at the lower back.  Examination revealed no neurological deficits over his lower limb and there was no evidence of fracture.  On admission to the Department of Orthopedic and Traumatology on the same day, Mr. Lam was noted as suffering from low back pain, and numbness and weakness of the left leg.  He received physiotherapy treatment, was transferred to Tai Po Hospital on 26 September 2002 where he received a further course of physiotherapy, and was finally discharged on 18 October 2002, with a small quadripod.

63.On 30 October 2002, Mr. Lam was referred to the Physiotherapy Department of Yan Chai Hospital for treatment.  An initial assessment carried out on 12 November 2002 showed that Mr. Lam's range of motion of trunk flexion was about knee level with pain at the end range.  There was local tenderness at the L4/5 region on palpation.  He received further physiotherapy courses as he continued to complain of low back pain and left lower limb numbness.  He was granted sick leave from 24 September 2002 to 20 October 2004, and was finally assessed by the Employees Compensation (Ordinary Assessment) Board to have suffered 4% loss of earning capacity.  He continued to receive treatment from the Prince of Wales Hospital, with sick leave extended to 21 September 2005.

64.Mr. Lam still complains of lower back pain which is persistent and with a fluctuating intensity.  His lower back pain increases with weather change and prolonged sitting or standing for half an hour, walking for an hour, squatting, getting up from bed or lying down flat, and turning over in bed.  He also suffers from a stiff back.

Pain and suffering and loss of amenity

65.The diagnoses of the doctors who examined Mr. Lam are that Mr. Lam suffered a back injury as a result of the accident.  The parties are in agreement that this is the only relevant injury, the other complaints and ailments of Mr. Lam such as neck pain, upper back pain, bilateral blephalospasm and cervical dystonia, all being unrelated to the accident.

66.The Defendants referred to the Progress and Treatment record of the Prince of Wales Hospital completed on the day of the accident, which indicated that Mr. Lam was diagnosed as having suffered "back contusion".  The Defendants also referred to the pre-existing degenerative changes found in Mr. Lam's spine, and claim that any award should be deducted for this reason.

67.According to the report of Dr. Au who examined Mr. Lam on February 2007 and who had reviewed the earlier medical records relating to Mr. Lam's treatment, the degenerative change in Mr. Lam's spine were pre-existing, and in Dr. Au's opinion, the injury sustained by Mr. Lam on 24 September 2002 had aggravated the degenerative change and caused Mr. Lam's lower back to become painful.  According to Dr. Au, the annular tear at L4/5 detected at the MRI investigation is likely to be a result of the accident.

68.Although Dr. Yip dismissed Mr. Lam's prolonged back pain as "simple degenerative back", placing reliance on the fact that Mr. Lam had suffered from degenerative symptomatic lumbar spine since November 1999, he did not comment on whether the annular tear at L4/5 and the disk desiccation detected at the MRI investigation was actually caused by the accident, or not.

69.I accept the submissions made by counsel for Mr. Lam that although Mr. Lam suffered from back pain before the accident, there was no evidence that he was in any way handicapped in, or incapable of, carrying out his duties as a carpark attendant.  There is no evidence that his work performance was in any way affected by his back pain or any other aspects of his physical condition prior to the accident.  There is no evidence to suggest that but for the accident and the back injury sustained, Mr. Lam would by natural progression of his pre-existing condition have been rendered unfit to perform his work as a car park attendant.  Bearing in mind the principles adopted in the case of Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523 on the effect of pre-existing conditions on assessment of damages, I  accept that any award in favor of Mr. Lam should not be affected by reason of his earlier back pain or neck pain.

70.Mr. Lam was 60 years old at the time of the accident.  As a result of the fall, he was hospitalized from 24 September 2002 to 18 October 2002.  When he was discharged in October 2002, he had to walk with a quadripod.  He continued to suffer from back pain and had to undergo physiotherapy until September 2003.  Although the Defendants suggest that Mr. Lam had exaggerated his symptoms, neither Dr. Au, Dr. Yip nor any of the doctors who had examined Mr. Lam at the Prince of Wales Hospital had made such comments in their reports.  After reviewing all the medical evidence and the authorities to which counsel have referred, and taking into consideration the fact that Mr. Lam had experienced pain and discomfort for a long period of time after the accident, I consider that an appropriate award for pain and suffering and loss of amenity is $180,000. 

Pre-trial loss of earnings

71.The Defendants challenge the length of the period of sick leave granted to Mr. Lam.  According to Dr. Yip, a reasonable period of sick leave for a case of simple back contusion is 6 months.  The Defendants also claim that Mr. Lam should have been able to return to work by the end of October 2002, relying on the notes of the medical officer in charge at Tai Po Hospital on 17 October 2002, recording the advice given to Mr. Lam to go back to work.

72.According to the medical records produced in evidence, when Mr. Lam was discharged on 18 October 2002, he was given sick leave until 31 October 2002.  Thereafter, he had attended regular follow-up treatment as advised and was continuing to receive physiotherapy treatment. When he attended the follow up inspection at the Prince of Wales Hospital on 30 October 2002, he was still suffering back pain which pain radiated to his left leg.  He was referred to the Yan Chai Hospital for physiotherapy treatment on 30 October 2002.  His sick leave was extended to 11 December 2002, and he was not recommended to return to work but requested to attend follow-up treatment in 6 weeks’ time.  At the follow up, Mr. Lam's condition was not yet static and he was given further sick leave until April 2003.  He was thereafter informed that MRI had been arranged for him in December 2003, and his sick leave was extended.  On 7 April 2004, he was reported to be still suffering from back pain.  Work assessment showed that his condition then only matched his work requirement marginally and that Mr. Lam needed further strengthening exercises.  He was asked in July 2004 to consider surgical treatment for his back, which he later declined.  Even on 15 June 2005, Mr. Lam was certified to be not suitable to resume his pre-accident work, and sick leave was extended until 21 September 2005.  From the evidence, therefore, it does not appear to me that Mr. Lam could have returned to work in October 2002, or in March 2003.

73.However, since Mr. Lam's own expert, Dr. Au, endorsed the sick leave granted by the Medical Assessment Board from 24 September 2002 to 20 October 2004 as appropriate for the injuries sustained by Mr. Lam as a result of the accident, I accept this as the reasonable period of sick leave.

74.I accept Mr. Lam's average monthly earnings as $8,040.43.  The Defendants suggest that Mr. Lam's earnings would have been reduced as the year-end bonus which Mr. Lam had taken into consideration in calculating the sum of $8,040.43 had become discretionary since 1 January 2003.  However, Mr. Lam's evidence is that he had not signed the letter from his employer, Vinci, to agree to the proposal made relating to the bonus and the variation in his terms of employment.  There is no other evidence from Vinci that Mr. Lam's earnings would have been reduced in any event.

75.It is not in dispute that Mr. Lam has been suffering from cerebeller dysfunction, which is not related to the accident. According to Dr. Yip's report, and as is apparent from the medical records from Yan Chai Hospital, Mr. Lam was admitted into hospital on 14 December 2004, having complained of a headache for about three days.  Involuntary facial movement was already observed then in Mr. Lam.  Dr. Yip's opinion is that even without the accident, Mr. Lam would have been in and out of hospital for his medical problems, particularly by reason of his cerebeller problems.

76.Even on Dr. Au's evidence, although Mr. Lam is not fit to return to his pre-accident job, he was considered fit for a light duty job.  However, Mr. Lam decided not to return to work after his sick leave, possibly because of his age and his deteriorating health condition.

77.I am therefore making an award for Mr. Lam's loss of earnings on the basis only of the period of his sick leave  from 24 September 2002 to 20 October 2004 (25 months), on the basis of his average monthly earnings of $8,040.43.  I am prepared to grant him an additional period of 6 months as an allowance for the time needed for him to find new and suitable employment had he decided to return to work.  This gives a total award of $261,715 ($8,040.43 x 31 x 105%).

Future loss of earnings and loss of earning capacity

78.Mr. Lam has withdrawn his claims under these heads, in view of his current physical condition.

Special damages

79.I allow Mr. Lam's claims for $3,119.60 as medical expenses, and $3,000 as traveling expenses incurred.  I will only allow a reasonable sum of $1,000 for tonic food.  There is no evidence that the high voltage therapy equipment is necessary or effective for treatment of Mr. Lam's injuries.  I will not allow the sum of $31,300 claimed.

Future medical and traveling expenses

80.I allow the claim of $2,800.

Summary of damages

81.In summary, the award I make is:

(1)	PSLA		$180,000.00
(2)	Pre-trial loss of earnings		$261,715.00
(3)	Special damages		$7,119.60
(4)	Future medical expenses		$2,800.00
	Sub-total		$451,634.60
	Less EC award		$225,989.92
	Total		$225,644.68

82.Taking into account my finding that Mr. Lam was 15% contributorily negligent, he is entitled to an award of $191,797.97. 

83.I will award interest on the award of PSLA at the rate of 2% per annum from the date of the writ to the date of judgment, and on the award of total special damages at half the judgment rate from the date of the accident to the date of judgment.

84.I will further make an order nisi that the costs of the action be paid by the Defendants to Mr. Lam, with certificate for counsel, to be taxed if not agreed. Mr. Lam's own costs are to be taxed in accordance with the Legal Aid Regulations.

Miss Julia Lau, instructed by T.S. Tong & Co, for the Plaintiff

Mr. Samuel Chan, instructed by Woo, Kwan, Lee & Lo, for the 1^st & 2^nd Defendants

Mr. K. C. Chan, instructed by Tang & Lee, for the 3^rd Defendant