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Leung Tsang Hung And Another v The Incorporated Owners Of Kwok Wing House

Judgment Cited authorities 42 Cited in Precedent Map Related
Vincent
Judgment Date26 October 2007
Year2007
Citation[2007] 4 HKLRD 654; (2007) 10 HKCFAR 480
Judgement NumberFACV4/2007
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV000004/2007 LEUNG TSANG HUNG AND ANOTHER v. THE INCORPORATED OWNERS OF KWOK WING HOUSE

FACV No. 4 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2007 (Civil)

(ON APPEAL FROM CACV No. 195 of 2004)

_______________________

Between:

LEUNG TSANG HUNG AND LEE WAI YU,
the administrators of the estate of
Liu Ngan Fong Sukey, deceased 		Plaintiffs
(Appellants)
and
THE INCORPORATED OWNERS OF KWOK WING HOUSE 3rd Defendants
(Respondents)

_______________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Woolf NPJ

Dates of Hearing: 11 and 12 October 2007

Date of Judgment: 26 October 2007

_______________________

J U D G M E N T

_______________________

Chief Justice Li:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Bokhary PJ:

2. Without attempting an exhaustive statement of the legal position, I think that at least this much can be said. Where any part of, or anything annexed to, the common parts of a building falls off as a result of its hazardous state and causes death, injury or damage in the street below, the incorporated owners are liable in nuisance for the consequences if they knew or ought to have known of the hazard in time to remove it but had unreasonably failed to do so. I regard such a rule as consistent with principle. And, as Lord Reid famously said in Dorset Yacht Co. Ltd v. Home Office [1970] AC 1004 at pp 1026H - 1027A, “when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it”. That was said in regard to negligence. It holds good in regard to nuisance. On the basis of what these incorporated owners ought to have known in the circumstances of the present case as disclosed by the evidence, I am of the view that the estate of this deceased woman is entitled to succeed against them. For the foregoing reasons and those more fully stated in Mr Justice Ribeiro PJ’s judgment with which I agree, I would allow this appeal in the terms which he proposes.

Mr Justice Chan PJ:

3. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

A. The fatal accident

4. On 10 August 1999 at about 3.00 pm, Madam Liu Ngan Fong Sukey was plying her trade as a hawker at a fixed pitch in Tung Choi Street when she was struck by a piece of concrete which had fallen from the adjacent building. She died in consequence.

5. The building is known as Kwok Wing House (“the building”) and the object which had caused Madam Liu’s death was a triangular-shaped piece of concrete weighing some 15 lbs which had fallen from the 11th floor. It had formed the corner of a concrete canopy projecting out from over the enclosed balcony of Flat A on that floor (“the flat”), before it had become detached and fallen down into the street.

6. It was an old building, the occupation permit having been issued in October 1964. In the approved building plans, the flat was shown as having an open balcony with a cantilevered concrete canopy above it, some 380 mm in length. Someone decided to enclose that balcony, installing walls and windows around the space to be enclosed and extending the canopy by some 590 mm to form the roof and ceiling. The extended canopy projected beyond the face of the enclosed balcony by some 200 mm. It was a corner of this extension that broke off and fell into the street. There was no evidence as to who had enclosed the balcony or when this was done, although there is some suggestion that the enclosure was already in place when the occupation permit was granted. It is in any event clear that the extended canopy had been in existence for some 35 years by the time of the accident. It is common ground that the extended canopy was an illegal structure, its construction not having been authorized by the Building Authority.

7. The trial judge, Deputy High Court Judge To,[1] noted that the unchallenged expert evidence was that the extended canopy had been cast against the approved canopy with a roughened joint but without any longitudinal steel reinforcement rods, a design not in conformity with the Building (Construction) Regulations.[2] The evidence indicated that the workmanship was poor with the concrete being porous, having voids and low density. The most likely cause of the concrete fragment’s detachment was the long-term effect of the extended canopy’s exposure to rainfall and the seepage of moisture through a hairline crack which had probably existed in the structure since its construction. The Judge concluded that the cause of the collapse “could not have been anything other than what could properly be described as want of repair”.[3]

B. The proceedings below and the present appeal

8. The plaintiffs are the administrators of the estate of Madam Liu. They sued Tse Yiu Pui and Ho Lai Bing who jointly owned the flat (“the owners”) as the 1st defendants. Chan Kwok Chi was their tenant (“the tenant”) and he was made the 2nd defendant. The 3rd defendants are the incorporated owners of the building, being a corporation which had come into existence on 12 April 1999 upon the owners being registered under the Building Management Ordinance[4] (“the BMO”).

9. The owners consented to judgment so that at the trial, the Judge was concerned only with the liability of the tenant and the corporation. They were each sued in negligence and public nuisance. His Lordship found the tenant liable along with the owners but dismissed the action against the incorporated owners with costs, holding that they did not owe any actionable duty to the deceased. Damages were assessed in the sum of $1,554,742.00 and judgment in that amount, together with various sums of interest and costs, was entered against the owners and the tenant. The plaintiffs’ appeal to the Court of Appeal in relation to the liability of the incorporated owners was dismissed,[5] again on the basis that the corporation owed the deceased no operative duty. An appeal on quantum is pending in the Court of Appeal. Leave to appeal to this Court was granted by the Court of Appeal[6] under section 22(1)(b) of the Court’s statute.

10. It is common ground that the liability of the incorporated owners, if any, should be determined by applying the law of public nuisance, and that the tort of negligence does not add anything and need not be considered in the present appeal.

11. As the common law principles governing liability for public nuisance have been in a state of development for some time, and as general consensus may be lacking as to certain constituent elements of the tort, it will be necessary first to identify the governing principles before seeking to apply them to this case. Application of the principles will require consideration of the juridical nature of an owners’ incorporation and the basis upon which a claim in public nuisance may successfully be brought against such a corporation on the ground that it has omitted to carry out its duties.

C. The legal principles governing public nuisance

C.1 The nature of public nuisance

12. Public nuisance is a common law offence. Inheriting the jurisdiction from the office of Attorney-General, the Secretary for Justice may also move to restrain a public nuisance in a relator action brought on behalf of the public at large. Public nuisance is furthermore actionable as a tort by an individual who has been caused particular damage over and above the damage suffered by the public at large.[7] That is the basis of the present action. The ingredients of a public nuisance are the same for both the crime and the tort.[8]

13. While there is an overlap between the elements of public and private nuisance, they are causes of action which are different in kind. Private nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land.[9] But while most reported public nuisance cases involve nuisances on or emanating from land or buildings, an interest in land is not an essential element of the tort. Neither the plaintiff (who will often, as in the present case, simply be a person using the public highway) nor the defendant (who may simply be someone who does an act creating a nuisance hazard) need have any interest in or relationship with any land or building. Such defendants (in both civil and criminal public nuisance cases) have included, for instance, a shipowner[10] and a demise charterer[11] of a vessel discharging oil into navigable waters; a person parking a lorry on the public highway;[12] and senders of racially offensive letters and letters containing salt which caused an anthrax scare.[13]

C.2 Hazards which amount to public nuisances

14. A state of affairs which constitutes a public nuisance is one which endangers the lives, safety, health, property or comfort of the public; or obstructs the public in the exercise or enjoyment of any right that is common to members of the public. This is a proposition derived from a number of definitions approved by Lord Bingham of Cornhill in R v Rimmington.[14] I will refer to such a state of affairs as “the nuisance hazard”.

C.3 Acts and omissions

15. A defendant may be held liable for public nuisance on the basis of his positive act or his omission. The present case has been approached on the basis of an omission on the part of the incorporated owners. In each case, the nuisance hazard which arises from the act or omission must be causative of particular injury to a member of the public. Certain differences necessarily exist in the rules applicable to acts and to omissions respectively. Lord Hoffmann put the need to differentiate...

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