Read the full judgment text of CACV 001715/2001 on BabelCite. This Court of Appeal judgment was delivered on 15 March 2002 before Mayo VP, Cheung JA, Chu J.
Tort – occupiers' liability – duty of care to members of public – building manager under Deed of Mutual Covenant – awning collapse causing death of passer-by – negligence – apportionment – costs of successful co-defendants. Civil procedure – costs – costs of successful defendants against ultimately liable defendant. The deceased, Mr. Yuen Fook Wah, was killed on 3 August 1994 when a piece of metal piping from a shop awning detached in heavy rain and strong winds and struck his chest while he was walking past shop premises in Lung Fung Garden, Sheung Shui. The awning was a flimsy structure attached to the underside of a building projection, supported by vertical pipes braced only by two ropes anchored in the ground. The 4th defendant, operator of the shop, had installed the awning with verbal permission from the 5th defendant, the building manager appointed under the DMC. Whether the awning was part of the common parts of Lung Fung Garden so as to engage the 5th defendant's responsibility – held: yes, distinguishing Wong Lai Kai v. Incorporated Owners of Lok Fu Building, Yuen Long [2000] 3 HKC 633; the assignment of the shop showed the area, and the relevant wall was not within the exclusive use of the shop under s.2 of the Building Management Ordinance (Cap. 344). Whether the 5th defendant owed a duty of care in tort to Mr. Yuen as a member of the public – held: yes; contractual obligations to owners do not exclude tortious duties to the public. The 5th defendant was an occupier under the Occupiers' Liability Ordinance exercising a 'degree of control over the state of the premises' (Wheat v. Lacon Company Limited [1966] AC 552) and also owed a duty as occupier of an overhanging structure projecting over a highway (Cunard v. Antifyre [1933] 1 KB 551; Walsh v. Holst Co. Ltd. [1958] 1 W.L.R. 800). Foreseeability, proximity, and fairness/justice/reasonableness (Marc Rich & Co. v. Bishop Rock Ltd. [1996] 1 A.C. 235) were all satisfied. Whether the 5th defendant was negligent – held: yes; it permitted installation of an inherently dangerous awning and failed to ensure its removal when rainstorm warnings were hoisted. Whether the apportionment of two-thirds liability to the 5th defendant and one-third to the 4th defendant should be disturbed – held: no; appellate courts interfere with apportionment only in exceptional cases (The MacGregor [1943] A.C. 197; Brown & Ano v. Thompson [1968] 1 WLR 1003). Whether the costs of the successful 1st and 6th defendants should be borne by the 5th defendant – held: yes; it is well established that costs of successful co-defendants may be ordered against a defendant ultimately liable to the plaintiffs where it was reasonable to join the successful parties (Sanderson v. Blyth Theatre Company [1903] 2 KB 533; Leung Lai-ha and Another v. Hon Sau Ling and Another [1993] 1 HKLR 86). Appeal dismissed with costs of the plaintiffs, 1st, 4th and 6th defendants to be taxed if not agreed.
Legal issues: Whether the awning was part of the common parts of Lung Fung Garden and thus within the 5th defendant's responsibility · Whether the 5th defendant owed a duty of care to Mr. Yuen, a member of the public · Whether the 5th defendant was negligent · Apportionment of liability between the 4th and 5th defendants · Costs of successful defendants against the 5th defendant
Outcome: Appeal by the 5th defendant (Hang Yick Properties Management Limited) dismissed; findings of liability and apportionment (two-thirds to 5th defendant, one-third to 4th defendant) upheld.
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