2007-10-27
【大公報訊】旺角通菜街一九九九年發生大廈外牆簷篷石屎塊剝落擊斃女小販慘劇，死者親屬年前在高院興訟索償，原訟庭法官裁定單位業主和住客疏忽，須共同賠償一百五十五萬元給女死者親屬，惟大廈業主立案法團則可免責，親屬不滿，上訴終審法院，終院昨頒下判詞，改判業主立案法團需要一併承擔意外的法律責任，但不是疏忽，而是公眾滋擾責任。大廈所有單位業主均要上身，共同攤分賠償金。
終審法院五位法官一致認為下級法院法官犯錯，業主立案法團理應知道十一樓單位外的石屎簷篷屬僭建，延伸外露居高臨下於人來人往的通菜街，迄今已三十五年，法團有責任定期檢查僭建簷篷，如發覺有崩裂剝落即時維修，以確保簷篷安全，不會危害公眾人身安全。然而，法團卻錯誤地認為檢查和維修只是所屬單位業主本身責任，跟他們無關。一直無做檢查及維修保養。終審庭澄清法團對意外是絕不能卸責。
新賠償金額有待審理
高院○四年判通菜街六十五號國榮大廈十一樓肇禍單位業主謝耀培、何麗冰（均譯音），以及住客陳國枝（譯音）須向不幸給十五磅石屎塊擊中頭頸喪生的女小販廖銀芳（四十三歲）的親屬賠償一百五十五萬四千七百四十二元，親屬認為賠償過少並提出上訴。終審法院常任法官李義昨在判詞指，要留待上訴庭審理原訴人的訴求後，知道新的賠償金額，終審庭才能再頒令業主立案法團、單位業主和單位住客三方面如何攤分賠償責任。
國榮大廈樓高十二層，是一幢有四十三年歷史的唐樓，共有三十四個單位。非法僭建石屎簷篷位於大廈十一樓，業主加建該簷篷，延伸出露台外面大約二百毫米範圍，建築材料差劣，經過三十多年風雨侵蝕，加上簷篷石塊有裂縫，最終令簷篷一角於一九九九年八月十日下午三時崩裂飛墮街上，擊中正在擺檔售賣內衣褲的廖銀芳。
簷篷石屎墮街釀慘劇
終審庭研究過公眾滋擾法例以及一些責任賠償案例，指本港建築物管理條例有明確規定，業主立案法團有責任採取一切步驟確保大廈公共部分如外牆鞏固，一旦查出有問題必須予以修葺，以保障市民生命。今次法團要上身，主要是他們知道非法僭建的簷篷日久失修存著剝落危險，仍無採取任何檢查工夫，置諸不理。原訟庭法官錯誤認為法團無權干涉大廈僭建部分，不做檢查保養不算失責，上訴庭的結論亦過於狹隘，以為判罰法團是苛刻和不合理。
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, 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. 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”.
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 (“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, 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 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. That is the basis of the
present action. The ingredients of a
public nuisance are the same for both the crime and the tort.
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. 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 and a demise charterer of a vessel discharging oil into navigable waters; a person parking
a lorry on the public highway; and senders of racially offensive letters and letters containing
salt which caused an anthrax scare.
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. 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 between acts and omissions as follows:
“There are sound reasons why
omissions require different treatment from positive conduct. It is one thing
for the law to say that a person who undertakes some activity shall take
reasonable care not to cause damage to others.
It is another thing for the law to require that a person who is doing
nothing in particular shall take steps to prevent another from suffering harm
from the acts of third parties ... or natural causes.”
16.
Where a nuisance hazard results
from a positive act by the defendant, the basis of liability is relatively
straightforward. But before a
defendant’s omission is actionable, he must first have been under a legal duty
to eliminate the nuisance hazard or to prevent it from causing harm to the public. The law must then recognize an entitlement on
the part of an injured plaintiff to compensation for the defendant’s omission,
which entitlement does not follow as a matter of course.
C.4 Need for knowledge or presumed knowledge
17.
The modern case-law establishes
that a defendant can only be liable for public nuisance if he knew or ought
reasonably to have known (in that the means of knowledge were reasonably
available to him) that his act or omission would result in a nuisance hazard
presenting a real risk of harm to the public.
Where a defendant ought reasonably to have known of the risk, he may be
said to have the necessary “presumed knowledge”.
(a)
In Sedleigh-Denfield
v O’Callaghan, Lord Wright stated:
“Though
the rule has not been laid down by this House, it has I think been rightly
established in the Court of Appeal that an occupier is not prima facie
responsible for a nuisance created without his knowledge and consent. If he is
to be liable a further condition is necessary, namely, that he had knowledge or
means of knowledge, that he knew or should have known of the nuisance in time
to correct it and obviate its mischievous effects. The liability for a nuisance
is not, at least in modern law, a strict or absolute liability.”
(b)
In Overseas Tankship (UK)
Ltd v Miller SS Co Pty, The Wagon Mound (No 2), while acknowledging that negligence is not an essential element of
nuisance (in the sense considered below), Lord Reid explained:
“...
although negligence may not be necessary, fault of some kind is almost always
necessary and fault generally involves foreseeability, eg, in cases like Sedleigh-Denfield
v O’Callaghan the fault is in failing to abate the nuisance of the
existence of which the defender is or ought to be aware as likely to cause
damage to his neighbour.”
(c)
In R v Rimmington, Lord Bingham regarded the passage from Lord Wright’s judgment in Sedleigh-Denfield
v O'Callaghan cited above as “what has come to be accepted as the
test”. And Lord Rodger of Earlsferry
approved the Court of Appeal’s decision in R v Shorrock, holding “that a defendant landowner was responsible for a public
nuisance which he knew or ought to have known (in the sense that the means of
knowledge were available to him) would be the consequence of activities carried
on by him on his land.”
(d)
One may also note that the Australian
High Court has declared that the test for liability in public nuisance, at
least as applied to highway cases, has been “absorbed by the principles of
ordinary negligence”.
18.
It is furthermore established
that, as with the tort of negligence, a defendant is not liable in public
nuisance unless the injury caused to the plaintiff is of a foreseeable type.
19.
It follows from the above that
it is now recognized that liability in public nuisance is not “strict” or
“absolute”. Cases suggesting the contrary
should no longer be followed. Technical
distinctions (often difficult to draw) should no longer provide the basis for
determining whether liability is strict or alternatively dependent on knowledge
or presumed knowledge.
20.
Thus, a distinction was drawn
in Wringe v Cohen (and followed in many cases) between instances where the nuisance hazard was due to “want of
repair” (when liability was said to be strict) and cases where the hazard was
due to the act of a trespasser or to “a secret and unobservable operation of
nature” or to a “latent defect” (when liability was said to depend on whether
the defendant knew or ought to have known of the nuisance hazard). That distinction was adopted by Yuen JA
below. However, in The Wagon
Mound (No 2), having stressed the need for fault in public nuisance, Lord Reid,
speaking for the Privy Council, went out of his way to say: “Their Lordships
express no opinion about cases like Wringe v Cohen, on which neither
counsel relied.” Of course, in a case
where a property is in a dilapidated condition and plainly suffering from want
of repair, it will generally not be difficult to establish knowledge or
presumed knowledge of the nuisance hazard.
21.
Other technical distinctions
which equally should no longer serve as a basis for determining whether or not
liability is strict include distinctions between hazards which abut upon or
overhang a highway (where liability has been treated as strict, as with the
collapsing wall in Mint v Good) or merely near a highway (where it has not, like the
Hawthorn tree in Salsbury v Woodland); or between artificially made hazards (like the gas lamp in Tarry
v Ashton) and natural hazards (like the tree branch in Noble v
Harrison) which overhang the highway.
22.
Although in Mint v Good, Denning LJ joined Somervell LJ in applying Wringe v Cohen and holding that liability for public nuisances affecting users of
the highway was strict, it is noteworthy that five years later, in the
unreported case of Morton v Wheeler, cited by Lord Reid in The Wagon Mound (No 2), Lord Denning MR stated:
“But how are we to determine whether
a state of affairs in or near a highway is a danger? This depends, I think, on whether injury may
reasonably be foreseen. If you take all the cases in the books, you will find
that if the state of affairs is such that injury may reasonably be anticipated
to persons using the highway it is a public nuisance.”
This received
the Privy Council’s approval, Lord Reid commenting:
“So in the class of nuisance which
includes this case [ie, a highway case] foreseeability is an essential element
in determining liability.”
23.
In my view, the law has now
evolved to the point where the question is simply whether the defendant knew or
ought to have known of the relevant nuisance hazard. Thus, it must be shown that a defendant whose
positive act creates the hazard knows or ought to know that it is the likely
consequence of his act. And a defendant
who is potentially liable on the basis of an omission must be shown to have had
knowledge or presumed knowledge that a nuisance hazard is the likely
consequence of his failure to carry out his applicable duty.
C.5 Negligence not essential but liability is
not strict
24.
It is clear that negligence is
not an essential element of public nuisance.
However, this does not mean that liability is strict or absolute. It means that where a defendant does an act
with knowledge or presumed knowledge that it may result in a nuisance hazard
causing injury to the public, it is no answer for him to say that he took all
reasonable care to avoid causing injury if his act turns out to be causative of
a foreseeable type of harm. As Lord Goff
of Chieveley put it:
“... it is still the law that the
fact that the defendant has taken all reasonable care will not of itself exonerate
him from liability, the relevant control mechanism being found within the
principle of reasonable user. But it by
no means follows that the defendant should be held liable for damage of a type
which he could not reasonably foresee;
and the development of the law of negligence in the past 60 years points
strongly towards a requirement that such foreseeability should be a
prerequisite of liability in damages for nuisance, as it is of liability in
negligence.”
C.6 Duty may be non-delegable but liability is
not strict
25.
It is also important not to
confuse strict or absolute liability with liability arising under a
non-delegable duty. Where a defendant is
under a duty to nullify a nuisance (in circumstances discussed further below),
that duty is non-delegable. He remains
liable even though he has engaged an apparently competent independent
contractor to eliminate the nuisance hazard if, through the latter’s negligence
or otherwise, the hazard is not in fact removed, resulting in injury to the
plaintiff.
26.
The frequently cited case of Tarry
v Ashton is properly understood as illustrating the foregoing proposition
and not, as is sometimes suggested, as an authority for strict liability in
relation to injury caused by structures projecting over the highway. It was a case involving injury to a passer-by
when a heavy gas lamp overhanging the pavement fell on her. The defendant occupier knew or ought to have
known of the potentially dangerous condition of the lamp and was held liable
because his duty was non-delegable, not because liability was strict. Blackburn J put it thus:
“Now in the present case there is
ample evidence that in August the defendant was aware that the lamp might be
getting out of repair, and, it being his duty to put it in repair, he employs
Chappell to do so. We must assume, I think, that Chappell was a proper person
to employ; and I may observe that he was clearly not the defendant’s servant,
as the jury say, but an independent contractor. But it was the defendant’s duty
to make the lamp reasonably safe, the contractor failed to do that; and the
defendant, having the duty, has trusted the fulfilment of that duty to another
who has not done it. Therefore the defendant has not done his duty, and he is
liable to the plaintiff for the consequences. It was his duty to have the lamp
set right; it was not set right.”
This was re-iterated by his Lordship in the
House of Lords five years later in Charles Dalton v Henry Angus & Co, citing Tarry v Ashton among other cases:
“... a person causing something to be
done, the doing of which casts on him a duty, cannot escape from the
responsibility attaching on him of seeing that duty performed by delegating it
to a contractor. He may bargain with the contractor that he shall perform the
duty and stipulate for an indemnity from him if it is not performed, but he
cannot thereby relieve himself from liability to those injured by the failure
to perform it.”
27.
In Salsbury v Woodland, Widgery LJ rejected the argument that Tarry v Ashton was a
strict liability highway case, explaining that it was concerned with a
non-delegable duty:
“[Counsel] argued that [Tarry v
Ashton] illustrated the special sympathy with which the law regards
passers-by on the highway. He said that
it demonstrated that the law has always been inclined to give special
protection to persons in that category and so supported his argument that any
action adjacent to the highway might be subject to special rights. But, in my judgment, that is not so. Tarry
v Ashton seems to me to be a perfectly ordinary and straightforward example
of a case where the employer was under a positive and continuing duty to see
that the lamp was kept in repair. That duty was imposed upon him before the
contractor came and after the contractor had gone; and on the principle that
such a duty cannot be delegated the responsibility of the employer in that case
seems to me to be fully demonstrated.”
C.7 Liability based on positive acts
28.
Where alleged liability is
based on a positive act, the defendant is liable if the act is his own or the
act of someone for whom he is vicariously liable. It is not clear whether a defendant can be
made liable in this context for the acts of an independent contractor for whom
he is not vicariously liable. Without
deciding the question, the better view seems to be that no such liability
arises unless the independent contractor was engaged by the defendant with a
view to discharging a non-delegable duty resting upon the defendant.
C.8 Liability based on omissions
29.
As noted above, an omission is
only actionable in public nuisance if the defendant is under a duty to
neutralize the nuisance hazard and fails to do so in circumstances where the
law confers on the injured plaintiff the right to compensation from the
defendant. This is necessarily the position
since everyone, and not merely any particular defendant, will have omitted to
act. A prerequisite of liability must be
the identification of a duty on the defendant to prevent the nuisance from
causing harm. That duty must then be one
which the law regards as actionable on behalf of the injured plaintiff, as
opposed to a duty owed only within the confines of some other scheme of
liability, whether contractual or otherwise.
As previously noted, such an actionable duty is non-delegable. How then does the law identify cases where
omissions are so actionable?
C.9 Occupiers of land: the criterion of control
30.
In one class of cases,
liability on the basis of an omission – that is, of having done nothing – is
clearly established. Occupiers of land
generally come under a duty to remove any nuisance hazard on or emanating from
the land of which they have knowledge or presumed knowledge, or at least to
prevent such hazard from injuring members of the public. If they fail to do so and injury results,
they are liable in public nuisance for such omission. The law imposes that duty because occupation
generally gives such immediate and practical control over the property that the
occupier is justifiably made liable on the basis of omission.
31.
Thus, in Wilchick v Marks
and Silverstone, Goddard J posed the question and supplied the answer as follows:
“What is the principle that
determines the liability for nuisance; why is it that prima facie it is the
occupier who is liable? In Laugher v Pointer 5 B & C 547, 576; Abbott
CJ said: ‘I have the control and management of all that belongs to my land or
my house; and it is my fault if I do not so exercise my authority as to prevent
injury to another.’”
32.
And in L E Jones
(Insurance Brokers) Ltd v Portsmouth City Council, Dyson LJ explained the criterion for liability in this class
of cases as follows:
“... the basis for the liability of
an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his
occupation, an occupier usually has it in his power to take the measures that
are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard
which constitutes the nuisance for it to be reasonable to make him liable for
the foreseeable consequences of his failure to exercise that control and so
remove the hazard.”
C.9a Liability for omission of an owner-occupier
33.
A number of sub-categories
within this class may be identified. The
paradigm instance where liability for omission is established involves owners
in actual occupation of their land. Such
persons can plainly be expected to have effective control, both physically and
legally, over the property in question.
Such an owner-occupier is subject to a duty to nullify the hazard if he
knows or ought to know of its existence, even though he has done nothing to
create it. The hazard may have been
created by a trespasser or a by “a secret and unobservable operation of nature”, but his omission to neutralize the hazard within a reasonable time after acquiring the requisite knowledge or presumed knowledge is
actionable if particular injury results to a member of the public.
C.9b Liability of an owner in respect of vacant
land
34.
An owner may have left his land
vacant. In such cases, although he is
factually not in occupation, he is still regarded, by virtue of his ownership,
as having sufficient control of the land to be made subject to liability on the
basis of omission if he has the requisite knowledge or presumed knowledge.
35.
A relator action succeeded, for
instance, in AG v Tod Heatley, where the owner’s vacant lot had been used by trespassers for
dumping “dead dogs and cats, vegetable refuse, fish, offal, rubbish, and all
kinds of filth” causing a public nuisance.
Lindley LJ stated:
“Now is it, or is it not, a common
law duty of the owner of a vacant piece of land to prevent that land from being
a public nuisance? It appears to me that it is. ... If the owner of a piece of
land does permit it to be in such a state, eg smothered or covered with filth,
that it is a public nuisance, he commits an indictable offence. He has no
defence whatever to an indictment for such a public nuisance. It is no defence
to say, ‘I did not put the filth on but somebody else did.’ He must provide against this if he can. His business
is to prevent his land from being a public nuisance.”
C.9c Where land is occupied by a tenant
36.
Another sub-category within
this class involves land, not occupied by the owner but by a tenant (by which
term I include any sub-tenant or licensee who may be in actual
occupation). It is clear that the
tenant, as occupier and therefore presumptively in immediate control of the
premises, is in principle subject to liability by way of omission. Thus, in St Anne’s Well Brewery Company v
Roberts, Scrutton LJ, referring to a tenant, stated:
“... it is clear law that the person
liable for a nuisance on premises is surely the occupier.”
37.
However, it may be quite
unrealistic to expect the tenant, who may merely be a weekly or monthly tenant
with modest resources to have the means to eliminate and to be required to
assume sole responsibility for eliminating a nuisance hazard of which he knows
or ought to know. The courts have
therefore been ready to hold that the owner or landlord remains liable even
though he has parted with possession to the tenant. Thus, in Wilchick v Marks and Silverstone, a passer-by was injured by a shutter falling from a building and
sued both the owners and the tenant. The
landlords were found to have known of the hazard posed by the shutter and to
have reserved to themselves the right to enter and do repairs if they thought
fit. That was enough for the court to
hold them liable along with the tenants.
As Goddard J put it:
“A property owner knows that his
house if not repaired must at some time get into a dangerous state: he lets it
to a tenant and puts him under no obligation to keep it repaired: it may be the
tenant is one who from lack of means could not do any repairs. The landlord has
expressly reserved to himself the right to enter and do necessary repairs: why
then should he be under no duty to make it safe for passers by when he knows
that the property is dangerous? The proximity is there: he has the right to
enter and remedy a known danger. Is the
injured person to be left in such a case only to a remedy against the tenant,
who in this sort of tenancy, which commonly obtains only with regard to small
properties, is probably in quite humble circumstances?”
His Lordship concluded that the landlords
“had the authority; they knew ... of the necessity to exercise it; they failed
to do so and are accordingly liable.”
38.
Powers of entry and repair are
readily implied where no express covenant exists. Thus, in Mint v Good, a case involving a weekly tenancy, Somervell LJ commented that:
“... in the absence of evidence which
excluded it, there is no term which would be more easily and more necessarily
implied by law in a tenancy of this kind than a right in the landlord to enter,
or to re-enter, to examine the premises and to do necessary repairs. It must be
in the contemplation of both parties to such a weekly tenancy that the tenant
will not be called upon to do repairs.”
His Lordship concluded that:
“... in the case of a weekly tenancy,
business efficacy certainly will not be effected if the house is allowed to
fall into disrepair and no one keeps it in reasonable condition; and it seems
to me, therefore, necessary for business efficacy that the landlord should have
the right which I have defined.”
39.
This willingness to attribute
liability to the landlord is not limited to cases involving short
tenancies. Brew Bros Ltd v Snax
(Ross) Ltd concerned a 14 year lease where the landlords took a covenant from
the tenant to keep the demised premises in good repair. The landlords were nonetheless held liable in
respect of a wall which had become dangerous due to the undermining of its
foundations because of seepage from defective drains. It was held that the landlords ought to have
known of that condition prior to the lease when they had full control of the
property, notwithstanding the tenant’s covenant to be responsible for
repairs. Sachs LJ summarised the
position, stressing the non-delegable nature of the owners’ duties as follows:
“... the test of an owner’s duty to
his neighbour now depends on the degree of control exercised by the owner in
law or in fact for the purpose of repairs: see the judgment of Denning LJ in Mint
v Good at p 528, as fully agreed by Birkett LJ at p 529. As regards
nuisances of which he knew at the date of the lease, the duty similarly arises
by reason of his control before that date. Once the liability attaches I can
find no rational reason why it should as regards third parties be shuffled off
merely by signing a document which as between owner and tenant casts on the
latter the burden of executing remedial work. The duty of the owner is to
ensure that the nuisance causes no injury - not merely to get somebody else’s
promise to take the requisite steps to abate it.”
40.
An owner can therefore usually
be shown to have a sufficient degree of control to be made liable together with
the tenant.
C.10 Relevance of the defendant’s resources
41.
As the foregoing cases
indicate, in the context of liability by omission, a particular defendant’s
resources are relevant to his potential liability. The law adopts the criterion of what is
reasonable in all the circumstances. In
asking whether a defendant ought to have known of a nuisance hazard, the
financial and other resources realistically available to him are taken into
account in deciding whether he ought reasonably in all the circumstances be
regarded as having had the means of knowledge.
Similarly, such resources are taken into account in deciding whether in
all the circumstances he ought reasonably be held responsible for failing to
neutralize a nuisance hazard of which he had knowledge or presumed knowledge.
42.
In Goldman v Hargrave, Lord Wilberforce put the principle thus:
“...the law must take account of the
fact that the occupier on whom the duty is cast has, ex hypothesi, had this
hazard thrust upon him through no seeking or fault of his own. His interest,
and his resources, whether physical or material, may be of a very modest
character either in relation to the magnitude of the hazard, or as compared
with those of his threatened neighbour. A rule which required of him in such
unsought circumstances in his neighbour’s interest a physical effort of which
he is not capable, or an excessive expenditure of money, would be unenforceable
or unjust. One may say in general terms that the existence of a duty must be
based upon knowledge of the hazard, ability to foresee the consequences of not
checking or removing it, and the ability to abate it.”
43.
In Leakey v
National Trust, Megaw LJ stated:
“The criteria of reasonableness
include, in respect of a duty of this nature, the factor of what the particular
man - not the average man - can be expected to do, having regard, amongst other
things, where a serious expenditure of money is required to eliminate or reduce
the danger, to his means. Just as, where physical effort is required to avert
an immediate danger, the defendant’s age and physical condition may be relevant
in deciding what is reasonable, so also logic and good sense require that,
where the expenditure of money is required, the defendant’s capacity to find
the money is relevant. But this can only be in the way of a broad, and not a
detailed, assessment; and, in arriving at a judgment on reasonableness, a
similar broad assessment may be relevant in some cases as to the neighbour’s
capacity to protect himself from damage...”
44.
The question of resources is,
however, only relevant in omission cases.
As Lord Hoffmann pointed out in Stovin v Wise, a defendant’s lack of resources to abate a nuisance caused by his
own positive acts is in principle irrelevant:
“[In Goldman v Hargreave]
... Lord Wilberforce underlined the exceptional nature of the liability
when he pointed out that the question of whether the landowner had acted
reasonably should be judged by reference to the resources he actually had at
his disposal and not by some general or objective standard. This is quite
different from the duty owed by a person who undertakes a positive activity
which carries the risk of causing damage to others. If he does not have the
resources to take such steps as are objectively reasonable to prevent such
damage, he should not undertake that activity at all.”
45.
As we have seen, in omission
cases, effective practical control over the property in which the nuisance
hazard arises is the criterion for imposing a duty to remove the hazard in the
class of cases mentioned above. It is
consistent to regard a defendant’s lack of the resources objectively required
to gain knowledge of and/or to eliminate the hazard as negating such control
and so removing the basis of the duty.
C.11 Actionable omissions unrelated to occupation:
public authorities
46.
Do any other categories exist
where omissions are similarly actionable?
In particular, is there a category in which a defendant who is not in
occupation or control of land in which a nuisance hazard arises, can be made
liable in public nuisance for doing nothing to abate that hazard?
47.
The debate has focused in this
context on public authorities. Attempts
have been made to impose liability for public nuisance or negligence on a
public authority for omitting to exercise its statutory powers or to carry out
its statutory duties so as to remove a nuisance hazard of which it knows or
ought to know, where injury to members of the public is the foreseeable
consequence of inaction. Thus, there
have been attempts to make highway authorities liable for failing to use
statutory powers variously to remove a bank of land obstructing the views of
drivers at a road junction; to erect “Give Way” signs so as to give earlier warning of a road
junction; and to warn motorists not to drive too quickly when approaching a
dangerous road configuration by painting a “Slow” sign on the road. Similarly, public
authorities having powers and duties to provide drainage services have been
sued where inadequate sewers have resulted in overflows causing foreseeable
damage to the plaintiffs’ land. There may be cases where it
is necessary to distinguish between statutory powers and statutory duties, but for present purposes, unless that need arises, I shall simply
refer to “statutory powers” as shorthand for both.
48.
It should be emphasised that
this is not a discussion about tortious liability for breach of statutory
duty. A statutory provision may impose a
duty in terms making non-compliance actionable as a tortious breach of
statutory duty. Whether this is the
effect of the provision is a matter of statutory construction. But in the cases under
discussion, it is not suggested that the statutory powers in question can be
construed as giving such a remedy.
Instead, the statutory powers are relied on for supplying a duty or
power which forms the basis for an omission on the part of the relevant public
authority to be actionable in public nuisance or negligence.
49.
This is an evolving area of
law, as Lord Steyn pointed out. However, it is a category of
proposed liability with a future which is at least uncertain. If, as a matter of statutory construction,
the public authority’s failure to act does not constitute an actionable breach
of statutory duty, why should the same omission provide a basis for
establishing liability in negligence or public nuisance on its part? The intractability of this difficulty for
proponents of liability has been noted on a number of occasions. Thus, in Stovin v Wise, Lord Hoffmann stated:
“As Lord
Browne-Wilkinson said in X (Minors) v Bedfordshire County Council [1995]
2 AC 633, 739C in relation to the duty of care owed by a public authority
performing statutory functions: ‘the question whether there is such a common
law duty and if so its ambit, must be profoundly influenced by the statutory
framework within which the acts complained of were done.’
The same is true of
omission to perform a statutory duty. If such a duty does not give rise to a
private right to sue for breach, it would be unusual if it nevertheless gave
rise to a duty of care at common law which made the public authority liable to
pay compensation for foreseeable loss caused by the duty not being performed.”
50.
In Rice v Secretary of State
for Trade and Industry, after reviewing the authorities, May LJ stated:
“... a statute containing broad
target duties owed to the public at large, and which does not itself confer on
individuals a right of action for breach of statutory duty, is unlikely to give
rise to a common law duty of care, breach of which will support a claim by an
individual for damages.”
51.
In Gorringe v Calderdale
Metropolitan Borough Council, Lord Hoffmann took as his example O’Rourke v Camden London
Borough Council, where a homeless person’s action for damages on the ground that the
council had failed in its statutory duty to provide him with accommodation was
struck out on the ground that the statute gave rise to no private rights. His
Lordship commented:
“In the absence of a right to sue for
breach of the statutory duty itself, it would in my opinion have been absurd to
hold that the council was nevertheless under a common law duty to take
reasonable care to provide accommodation for homeless persons whom it could
reasonably foresee would otherwise be reduced to sleeping rough.”
52.
In the same case, Lord Scott of Foscote went so far as to hold that the absence of a
right of action for breach of statutory duty meant that no common law duty was
capable of arising:
“In my opinion, if a statutory duty does
not give rise to a private right to sue for breach, the duty cannot create a
duty of care that would not have been owed at common law if the statute were
not there. If the policy of the statute is not consistent with the creation of
a statutory liability to pay compensation for damage caused by a breach of the
statutory duty, the same policy would, in my opinion, exclude the use of the
statutory duty in order to create a common law duty of care that would be
broken by a failure to perform the statutory duty.”
53.
Even if the proposed doctrine
is not at present quite as definitively interred as Lord Scott would have it,
it plainly cannot presently be regarded as established. It is at least true to say
that it can only be in exceptional circumstances (if at all) that any such
liability can arise. It is also clear that the
mere existence of a statutory power which is causally relevant to the
plaintiff’s injury cannot give rise to common law liability (even if the public
authority has the needed knowledge or presumed knowledge). Even if liability can arise, something more
is required. But there is no agreement
as to what such additional ingredients might be. In these circumstances, it is unnecessary and
would be speculative to attempt further analysis of this proposed category.
54.
I should, however, emphasise
that this discussion concerns attempts to impose liability on public
authorities for omission. It is not
concerned with the liability which public authorities attract like other
persons where they perform acts which negligently or otherwise unlawfully cause
damage, unless their liability is excluded by statute. This was stressed by Lord Hoffmann in Gorringe in the following terms:
“We are not concerned with cases in
which public authorities have actually done acts or entered into relationships
or undertaken responsibilities which give rise to a common law duty of care. In
such cases the fact that the public authority acted pursuant to a statutory
power or public duty does not necessarily negative the existence of a
duty. A hospital trust provides medical
treatment pursuant to the public law duty in the National Health Service Act
1977, but the existence of its common law duty is based simply upon its
acceptance of a professional relationship with the patient no different from
that which would be accepted by a doctor in private practice. The duty rests
upon a solid, orthodox common law foundation and the question is not whether it
is created by the statute but whether the terms of the statute (for example, in
requiring a particular thing to be done or conferring a discretion) are
sufficient to exclude it. The law in this respect has been well established
since Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430.”
D. Application of the principles to the
present case
55.
The plaintiffs’ claim against
the incorporated owners is founded on an omission. Their pleaded case focuses on the
corporation’s failure:
(a)
to ensure that the canopy
“while it remained on the external wall ... was inspected regularly by
qualified professionals to see to it that it was maintained in a good and safe
condition”; and
(b)
“to ensure that the canopy was
removed from the external wall ... when it knew or ought to have known that it
was an unauthorized structure and/or it had fallen into a dangerous state of
repair”.
56.
It was accordingly their case
that the canopy was in a dangerous condition amounting to a nuisance hazard;
that the corporation knew or ought to have known of that hazard; and that it is
answerable in damages for failing to take any steps towards having the canopy
removed or otherwise neutralizing the hazard.
D.1 The existing categories
57.
As noted in Section C.8 of this
judgment, an omission is only actionable in public nuisance if the defendant is
under a duty to eliminate the nuisance hazard and if his failure to do so is
regarded in law as actionable at the suit of the injured plaintiff. As discussed above, a category where such omissions are recognized as giving rise to
liability involves owners and/or occupiers of land who are regarded as having
such immediate and practical control over the property that making them liable
on such basis is justified. And, as
noted above, a possible further category has been mooted but whose existence has
been doubted, involving public authorities which have knowledge or presumed
knowledge of a nuisance hazard likely to cause harm to members of the public,
but which fail to exercise their statutory powers to prevent such injury.
58.
Plainly, the incorporated
owners do not fall neatly within either category. They are not owners or occupiers in the sense
discussed above. Nor are they a public
authority. They are a corporation
created under the BMO and given particular duties, powers and functions in
relation to properties in multi-ownership in the Hong Kong context.
59.
Mr Denis Chang SC, appearing
with Ms Corinne Remedios for the appellants, submits that an examination of the
juridical nature of an owners’ incorporation and of its duties and powers
arising under the BMO and under the deed of mutual covenant (“DMC”)
shows that it is in effect the corporate embodiment of the owners collectively,
possessing and exercising such control over the common parts of the building
that they should for all practical purposes be treated as if they were owners
and occupiers of such common parts and therefore as falling within the
recognized or an analogous category.
60.
Mr Ruy Barretto SC, appearing
with Mr Meyrick Wong on behalf of the incorporated owners, contends that no
basis exists for regarding his clients as falling either actually or by analogy
within the recognized category of owners and/or occupiers of premises. He argues that the Court of Appeal was
correct to hold that only “occupational control” meaning “control associated with and
arising from presence in and use of or activity in the premises” suffices to
generate a duty giving rise to an actionable omission, and that such control
was plainly absent. While it is not an
essential part of his case, he submits that the incorporated owners’ position
is, if anything, analogous to that of public authorities where the existence of
a relevant duty to act has been much doubted.
D.2 Excluding the public authority category
61.
If the incorporated owners were
to be regarded as falling within the public authority category, it would follow
that on the authorities as they stand, its failure to exercise any relevant
powers or to carry out its duties under the BMO and the DMC would not be
sufficient to constitute an actionable omission even if they had the knowledge
or presumed knowledge of the hazardous condition of the extended canopy.
62.
It is not appropriate for the
corporation to be so regarded. The law
has been reluctant to impose liability on public authorities at the suit of an
individual affected by non-exercise of statutory powers or duties for two
compelling reasons which are inapplicable to an owners’ incorporation.
63.
This is first, because the
imposition of liability would require the court’s intervention in high-level
policy decisions regarding the allocation of public resources in the obviously
inappropriate setting of an individual claim brought in public nuisance or
negligence. This is illustrated by Marcic v Thames
Water Utilities Ltd, a case involving
a plaintiff who had regularly suffered damage caused by flooding due to
overloaded sewers operated by the defendant.
The latter was under a statutory duty to provide a system of public
sewers so as “to ensure that the area is and continues to be effectually drained”. The plaintiff sued in nuisance, contending
that the authority had failed to carry out its duty to provide adequate sewers
and seeking to compel the authority to build new drains. He failed.
Having pointed out that the courts are accustomed to dealing with
nuisance claims between two private individuals, Lord Hoffmann continued as
follows:
“But the exercise becomes very
different when one is dealing with the capital expenditure of a statutory
undertaking providing public utilities on a large scale. The matter is no
longer confined to the parties to the action. If one customer is given a
certain level of services, everyone in the same circumstances should receive
the same level of services. So the effect of a decision about what it would be
reasonable to expect a sewerage undertaker to do for the plaintiff is
extrapolated across the country. This in turn raises questions of public
interest. Capital expenditure on new sewers has to be financed; interest must
be paid on borrowings and privatised undertakers must earn a reasonable return.
This expenditure can be met only by charges paid by consumers. Is it in the
public interest that they should have to pay more? And does expenditure on the
particular improvements with which the plaintiff is concerned represent the
best order of priorities? These are
decisions which courts are not equipped to make in ordinary litigation.”
64.
Secondly, individuals’ rights
and obligations vis-à-vis public authorities are regulated by public law
doctrines which have their own rationale and mechanisms for balancing competing
policies and interests. To permit
individuals simply to sue public authorities for private law remedies on the
ground of non-exercise of their statutory powers (where the enactment cannot be
construed as intending to provide a remedy for breach of statutory duty) is
likely to do violence to those public law doctrines and concepts. Thus, in Sutherland Shire Council v
Heyman, Mason J stressed
that the precise public law duty should be given effect and not permitted to
found a much broader private law claim:
“... although a public authority may
be under a public duty, enforceable by mandamus, to give proper consideration
to the question whether it should exercise a power, this duty cannot be equated
with, or regarded as a foundation for imposing, a duty of care on the public
authority in relation to the exercise of the power. Mandamus will compel proper
consideration of the authority of its discretion, but that is all.”
65.
The possibility of reconciling
public and private law doctrines by importing public law concepts as
ingredients of a private law cause of action (such as a requirement that an
omission must be irrational in the public law sense before it is actionable) was firmly rejected by the House of Lords in Barrett v Enfield
London Borough Council and Gorringe v Calderdale Metropolitan Borough Council.
66.
It is accordingly my view that
the incorporated owners should not be excluded from liability by analogy with
the public authority category of cases.
D.3 The legal attributes of an owners’ incorporation
67.
I turn then to the question
whether incorporated owners should be treated as falling within the established
owner and/or occupier category or within an analogous category of
actionability. This requires us, in the
first place, to examine the legal attributes, powers and duties of the owners’
incorporation.
68.
Co-owners in a building such as
the present hold their proprietary interests in the land and building as
tenants in common. As Mr Justice Litton
PJ pointed out in Jumbo King Ltd v Faithful Properties Ltd, the right of each co-owner is to an undivided share in the
property, with each of them prima facie entitled to exert rights of possession
over every part of the land and building, in common with the other owners. This “unity of possession” is regulated by
mutual covenant. The co-owners enter
into a DMC defining their mutual rights, interests and obligations. It is by means of the DMC that rights of
exclusive possession to individual portions are marked out and common parts, to
be used and enjoyed by all owners in common, are designated.
69.
Before the advent of statutory
owners’ incorporations, the co-owners had to act together in relation to the common
parts. An owners’ committee was usually
formed to take this in hand and it might in turn engage a manager to carry out
the day-to-day management. The cost
would be shared among the co-owners and if legal proceedings were taken either
by or against them, this would be done by naming each of them as a party. Where, for instance, a visitor to the building
was injured because of negligently maintained common parts, he would have to
sue all the owners (along with any manager appointed by them) as occupiers.
70.
Such a procedure is obviously
very cumbersome and, as the BMO’s long title indicates, the main purpose of the
Ordinance is to “facilitate the incorporation of owners of flats in buildings
..., to provide for the management of buildings ... and for matters incidental
thereto or connected therewith.” This is
achieved by the creation of a statutory owners’ incorporation.
71.
The close identification of
such a corporation with the owners collectively is strikingly apparent from the
BMO’s provisions. Thus, the way in which
the process of incorporation commences is by the management committee appointed
by the owners applying to the Land Registrar “for the registration of the
owners as a corporation.” Upon registration:
“... the owners for the time being
shall be a body corporate with perpetual succession and shall in the name of
the corporation specified in the certificate of registration be capable of
suing and being sued and, subject to this Ordinance, of doing and suffering all
such other acts and things as bodies corporate may lawfully do and suffer.”
72.
After formation, resolutions passed at meetings of
the corporation “with respect to the control, management and administration of
the common parts or the renovation, improvement or decoration of those parts”
bind all the owners. The corporation has
generally the power to “act on behalf of the owners in respect of any ...
matter in which the owners have a common interest.” It may finance its
activities by establishing a fund maintained by the contributions of the owners “to defray the cost of the exercise of its powers and the
performance of its duties under [the DMC]” and to pay Government levies and “other outgoings (including any
outgoings in relation to any maintenance or repair work) which are payable in
respect of the building as a whole”. If the corporation is
successfully sued, the judgment may be enforced against its property or, with
leave of the Lands Tribunal “against any owner”. And if it should be wound
up:
“the owners shall be liable, both
jointly and severally, to contribute, according to their respective shares, to
the assets of the corporation to an amount sufficient to discharge its debts
and liabilities.”
73.
It is clear from the foregoing
that an owners’ incorporation is the corporate embodiment of the co-owners
collectively. The corporation is a
separate legal personality capable of suing and being sued in its own name, not
because it has or is given by statute any rights or liabilities separate from
those that are vested in the co-owners, but to facilitate the exercise and
enforcement of those very rights and liabilities, avoiding the cumbersome
procedures previously required. It is
through registration of the owners as a whole that the corporation is
born. When it acts, it binds them all. The corporate veil is highly transparent and
may be lifted for the purposes of enforcing a judgment against any owner and,
on a winding-up, for the corporation’s liabilities to be recovered from all the
owners rateably.
74.
This is the view taken in Grenville
House Ltd v The Incorporated Owners of Grenville House, where the corporation brought proceedings against certain
defendants for damage done to the common parts of a building by a
landslide. A preliminary issue was
ordered to be tried since the defendants objected to its bringing such a suit
on the ground that it had not itself suffered any loss and had no cause of
action. McMullin J rejected this
argument, pointing to the close identity between the corporation and the
co-owners:
“As a notional separate entity from
its constituents it is quite true, as counsel have said, that the corporation
has not itself suffered any damage and has no cause of action. It does purport
to sue ‘on its own behalf’, but it does not do to lean too heavily upon these
words. In one sense of course it is true
that it is suing on its own behalf since it is that corporate persona which is
given the right to sue but it is not suing on its own behalf in the sense that
it has a separate cause of action apart from the several causes of its
constituents. Its action on its own behalf is for practical purposes indistinguishable
from its action on behalf of the owners.
What the Ordinance has done is to create a persisting entity capable of
representing all the owners at any moment of time for any of the given
purposes.”
75.
In Jikan Development Ltd v
The Incorporated Owners of Million Future Industrial Centre, the question was raised as to whether the incorporated owners were
entitled to sue for recovery of parking fees misapplied by managers of the
building prior to incorporation. Mr
Justice Litton PJ, with whom the other members of the Court agreed, answered it
in the affirmative, stating:
“The owners as a body had the right
to say, right up to the moment of incorporation : We want an accounting for the
parking fees now. This right then passed
to the corporation and became exercisable by the corporation, in terms of s
16. It is as simple as that.”
The cause of action asserted by the
incorporated owners was therefore that vested in the owners as a body at the
date of incorporation, thereafter being exercised by the corporation and
reflecting the close identification of the incorporated owners with the owners
collectively.
D.4 Control over the common parts
76.
Given such attributes, can it
be said that the incorporated owners in the present case exercised sufficient
control over the building’s common parts to justify placing them in a category
of actionability in respect of omissions?
77.
In my view, the answer is
affirmative. The Ordinance places the
incorporated owners under a duty to “maintain the common parts and the property
of the corporation in a state of good and serviceable repair ...; and to do all
things reasonably necessary for the enforcement of the obligations contained in
the deed of mutual covenant ... for the control, management and administration
of the building.” The common parts include the
external walls. Obligations deemed by the
BMO to form part of the DMC which the corporation is duty-bound to enforce
include a prohibition against any person converting any common part to his own
use without the approval of the owners’ committee.
78.
The DMC in the present case
requires each owner to share in the cost of keeping the external parts of the
building in good and tenantable repair and condition. It also provides that the
parties should not “make any structural alteration to the said building”. Each owner covenants “not to
place anything in or to occupy ... any part of the ... said building intended
for common use.” The parties also covenant to
employ an agent to “generally take care of the said building for the common
benefit of the parties hereto and to repair ... the structure and exterior of
the said building or any part or parts thereof which are used by the parties
hereto in common ...”
79.
To give these powers and duties
teeth, the BMO authorizes entry on behalf of the incorporated owners into any
flat for the purpose of inspecting, repairing, maintaining or renewing any
common parts or other property in the flat causing concern; or for the purpose
of “abating any hazard or nuisance which does or may adversely affect the
common parts or other owners”. If entry is refused, the BMO
empowers a magistrate to issue a warrant authorizing a person to break into the
flat in the presence of a police officer. Members of the management
committee exercising such powers in good faith and in a reasonable manner are
given personal immunity. Costs incurred in the
exercise of these powers are recoverable from the owner in question, as are the costs of remedial works which the corporation may
undertake itself where the owner fails to do what is necessary, such costs
being a charge upon the defaulting party’s share of the property.
D.5 Incorporated
owners’ actionable omissions
80.
In the light of the foregoing,
it is my view that the legal attributes, duties and powers of the incorporated
owners place them in a category closely analogous with that occupied by the
owners and occupiers discussed above. They exercise a sufficient
degree of control over the common parts of the building to justify making them
subject to a duty which is actionable on the basis of omission in respect of
nuisance hazards arising on or emanating from those common parts, subject to
proof of the other necessary elements of liability.
D.6 Knowledge,
presumed knowledge, causation and means
81.
I turn therefore to examine
those other elements of liability. One
must ask: did the incorporated owners know or ought they to have known of the
nuisance hazard constituted by the extended canopy? If they knew or ought to have known, was
their omission to exercise their powers or duties of management causative of
the fatal accident? Did they have the
means and resources to eliminate or nullify the hazard? These related questions can be dealt with
together.
82.
It is common ground that the
extended canopy was an illegal structure.
Ought the incorporated owners have known this? In my view, the answer is plainly “Yes”. The approved plans of the building were
available. Examination of such plans
shows immediately that the balcony as approved was not enclosed and did not
have a canopy which extended out over the street. The extended canopy is obviously an
unauthorized extension which, as the Judge found, was attached to the common parts (the approved canopy being such a
common part). As we have seen, the incorporated owners were under a duty, among other things, to
maintain the common parts, including the external walls, in good repair. To carry out that duty, they had to know what
the common parts were and therefore can be expected, whether or not after
consulting the approved plans, to have realised that the extended canopy was an
illegal extension.
83.
The fact that a structure is an
unauthorized extension does not of itself mean that it is a nuisance
hazard. It might not be a danger to
anyone. But it does mean that its design
had never been approved by the Building Authority and may not be in compliance
with established building standards and regulations (as was indeed the case
here). The design and quality of
such building works must therefore be subject to question. As we have seen in the present case,
workmanship was in fact poor. I mention
this not to suggest that the incorporated owners knew that this was so. They did not.
However, they ought to have realised that these sorts of risks arise in
connection with illegal structures. When
the abovementioned considerations are coupled with the fact that, as everyone
must have known, the extended canopy was a structure projecting out over a busy
street from the 11th floor of the building and that it had been
affixed to the common parts and exposed to the elements for some 35 years, the
inevitable conclusion must be that the incorporated owners were at least under
a duty to inspect the structure to ensure that it did not endanger the lives
and safety of the public and then to take necessary preventive steps if a risk
was detected.
84.
The Judge stated: “Anyone of
ordinary sense who addressed his mind to the circumstances would at once
recognise that if he allowed the Extended Canopy to get out of repair, it would
cause danger or injury to the people below.” It is true that he said this
in relation to the tenant and not the incorporated owners. However, it is a statement made in general
terms and is plainly justified on the evidence.
His Lordship accepted expert evidence indicating that “an experienced
contractor would look for signs of aging, deformity and shrinkage in the
concrete fin [that is, the fragment which became detached] and if necessary
expose the concrete for a more thorough investigation for defect” so that, upon proper inspection, the hazard would have been
discovered and rectified. On his findings, the
incorporated owners plainly ought to have known of the nuisance hazard in
question.
85.
In my judgment, those are
findings which are wholly justified and applicable to the pleaded case against
the incorporated owners. The evidence in
fact makes it clear that the incorporated owners, through Mr Shek Hon-kei (“Mr Shek”), the chairman of their management committee, were conscious of
safety concerns relating to the state of the premises of individual owners,
including their unauthorized extensions.
The error which the incorporated owners made was to regard such concerns
as solely the responsibility of the individual owners.
86.
Thus, on 18 March 1993, the
owners (the corporation not yet having been created) received a letter from the
Buildings Ordinance Office requiring them to repair defective storm
drains. This prompted them to commission
works to maintain and repair the external parts of the building. The works specification dated 29 March 1993
included “removing any loosened, broken or damaged concrete (slab) of the
reinforced concrete structures ... in public areas, such as the external walls
...” and “removing rust and impurities from the reinforcement and adding and
fixing new reinforcement where necessary.”
A scaffolding was erected around the whole of the building for this
purpose. The total cost was $250,920.00
which (according to the quotation) came to $7,380 for each of 34 flats
concerned.
87.
Unfortunately, as Mr Shek
explained when giving evidence at the coroner’s inquest, these works excluded
inspection and maintenance of the canopies because the owners took the view
that they were “additional structures put up by (individual owners) themselves
and therefore were their own responsibility”.
88.
When, in 1998 certain
waterproofing works had to be done with scaffolding erected on the external
wall from the 11th Floor up to top of the building, the opportunity
to inspect the canopy was again missed.
On that occasion, Mr Shek, caused a letter to be written to individual
owners stating: “The government stipulates that all buildings are required to
be checked and maintained regularly.
Therefore your attention is drawn to the safety and maintenance of your
flat.” This clearly shows that the
incorporated owners were (through Mr
Shek) aware of the need for regular safety checks and maintenance for the
premises. But they thought they could simply
leave it to the individual owners. That
was wrong as a matter of law. They did
not realise that it was not only their duty, but a duty which was
non-delegable.
89.
Accordingly, by virtue of its
status as the embodiment of the owners collectively; of its effective control
over the common parts, including the external parts, of the building; and of
the fact that it knew or ought to have known of the nuisance hazard, the
corporation was under a duty to remove that hazard or prevent it from causing
harm to the public in the street below.
They plainly had the means to achieve this, as their ability to
commission the maintenance and repair works in 1993 and 1998 demonstrate. But the incorporated owners took no
action. If the extended canopy had been
subjected to a proper inspection, its dangerous condition would, as the Judge
found, have been discovered and rectified.
The omission was therefore causative of the fatal accident.
D.7 The respondents’ objection to new case on
appeal
90.
Mr Barretto SC objected to the
adoption of the foregoing approach to liability on the basis that it constituted
a new case which falls foul of the well-known principles laid down in Flywin
Co Ltd v Strong & Associates Ltd. A party is barred from taking
a new point on appeal “unless there is no reasonable possibility that the state
of the evidence relevant to the point would have been materially more
favourable to the other side if the point had been taken at the trial.” Mr Barretto argues that the claim against the
incorporated owners had proceeded on the basis of strict liability and that,
accordingly, the question of whether they knew or ought to have known of the
nuisance hazard was not explored, this being an issue obviously susceptible to
his clients calling further evidence.
91.
That objection cannot be
sustained. The question of whether the
incorporated owners had the needed knowledge or presumed knowledge is not a new
point. As noted above, it was pleaded against them that they had such knowledge and they
must have gone to trial prepared to meet it.
Under the law as expounded in the courts below, there was a need to show that the incorporated owners ought to have
known of the hazard where the hazard was not created by the corporation but was attached to the
common parts by a trespasser without the corporation’s consent. Mr Shek chose not to testify at the trial,
but the evidence discussed above was derived from statements made by him. And the Judge duly made findings in relation
to the tenants in general terms which embrace the position of the incorporated
owners. I can see no prejudice to the incorporated
owners in the Court upholding the aforementioned approach.
D.8 Conclusion as to liability
92.
It follows, in my view, that
all the elements of liability on the incorporated owners’ part have properly
been made out. They are accordingly
liable for damages for public nuisance along with the flat’s owners and tenant.
93.
I ought to mention in this
context a point concerning section 16 of the BMO which may require
clarification. That section 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.”
Commenting on this aspect of the provision, Mr Justice Litton PJ in
Chi Kit Co Ltd v Lucky Health International Enterprise Ltd, stated: “After incorporation a visitor injured on the common parts
will no longer be able to seek redress against the owners personally.” It is important that this dictum should not
be understood to relate to individual owners who, like the owners in the
present case plainly can be made liable alongside the incorporated owners (and,
indeed, other parties like the tenant).
This dictum should be read as referring to proceedings in relation to
the common parts which, prior to incorporation, would have had to be brought
against the owners as a body. Such
proceedings can now only be brought against the incorporated owners who may in
turn, call for funds from the owners to meet its liabilities. A plaintiff may also seek
leave to enforce against particular owners, a judgment obtained against the
corporation.
94.
The court may apportion
liability among the defendants (including individual owners and the owners’
incorporation) and the Court of Appeal has held that section 3(1) of the Civil Liability (Contribution) Ordinance is applicable to claims for contribution among such co-defendants
in respect of apportioned sums left unpaid by insolvent defendants. Nothing in section 16 is inconsistent with
this.
E. The approach of the courts below
95.
At the trial, the Judge held on
two main grounds that the plaintiffs could establish no relevant duty. First, he accepted the incorporated owners’
argument that the plaintiffs were in effect seeking to impose liability on the
corporation for failure to maintain an illegal structure which it had done
nothing to create and had not authorized nor in any sense continued or
adopted. The plaintiffs’ case, they
contended, involved reliance on a discredited “annexation” theory whereby the
attachment of an illegal structure to a common part had wrongly been said to
result in that structure becoming annexed to the common parts, so that its
maintenance became the responsibility of the incorporated owners. The Judge accordingly held
that the incorporated owners’ duty to maintain the external walls was not a
basis for any actionable duty since it “could not be extended to cover external
parts of an illegal structure attached to the building to which the
incorporated owners had no right of possession, occupation or control”. Secondly, the Judge rejected
the existence of any duty on the more general ground that the incorporated
owners “were neither owners nor occupiers of the Extended Canopy and had no
control over it.”
96.
The “annexation” theory has
rightly been rejected both at first instance and in the Court of Appeal. However, it is incorrect to
describe the plaintiffs’ case as based on that exploded theory. They were not relying on any failure by the
incorporated owners to maintain the extended canopy. As noted above, their argument was that the incorporated owners’ duty to maintain the
common parts, ie, the external walls, obliged them (after due inspection)
to remove any dangerous unauthorized structures that had been attached to those
common parts.
97.
The Judge’s second “control”
ground was where the argument centred in the Court of Appeal. Mr Barretto SC submitted that a duty to
remove the nuisance hazard presented by the extended canopy could only arise if
the incorporated owners had “occupational control” in the sense described by
Lord Pearson in Wheat v E Lacon & Co Ltd, where his Lordship stated:
“The foundation of occupier’s
liability is occupational control, ie, control associated with and arising from
presence in and use of or activity in the premises.”
Those submissions were accepted by Stock JA and Yuen JA who agreed that such occupational control was needed to found an
actionable duty.
98.
It is my view, with respect,
that the Court of Appeal’s approach was too narrow. As indicated above, the existence of a sufficient degree of control is the principal
criterion for recognizing a duty to remove a nuisance hazard and for making the
omission to do so actionable in public nuisance. In most cases, such control does indeed arise
from the defendant’s status as occupier or owner of the land in question. But it is the control and not the defendant’s
interest in or occupation of the property that is the criterion. The necessary control may spring from some
other source. And as noted above, liability in public nuisance is not tied to an interest in or
relationship with land. The possibility
that other categories of actionable omissions may exist which do not involve
any “occupational control” of premises is recognized in the on-going debate
concerning the mooted liability of public authorities.
99.
Lord Pearson’s comment in Wheat
v Lacon was that “occupational control” is the “foundation of occupier’s liability”. It is hardly surprising that “occupational
control” should be fundamental in that context since the object of the
Occupiers’ Liability Act (and its Hong Kong equivalent) is “to regulate the duty which an occupier of premises owes to his
visitors in respect of dangers due to the state of the premises or to things
done or omitted to be done on them.” That branch of the law is
therefore expressly tied by statute to the occupation and control of
premises. Lord Pearson’s dictum cannot
be extrapolated with a view to confining the scope of duties in public
nuisance. Instead, in a case like the
present, it is necessary to examine the specific legal attributes, duties and
powers of the body in question, as has been done above, to decide whether
liability on the basis of omission is justifiably to be imposed. The courts below erroneously stopped short of
that inquiry, considering it sufficient to exclude the incorporated owners on
the basis that they did not enjoy occupational control in the Wheat v Lacon
sense.
F. Policy considerations
100.
In reaching his decision, Stock
JA referred to policy considerations which led him to the view that fixing
incorporated owners with liability in a case like the present might have “harsh
and unreasonable pragmatic consequences”.
His Lordship stated:
“It would mean that whenever in this
territory there was erected upon a multi-storey building a structure that was
not authorized, no matter that it was, for example, constructed at the time the
bui1ding was erected and is of a solid appearance, not inherently a dangerous
structure, as was the structure in Chu Wo Heung & another v Hui Lai
Wa [2002] 3 HKLRD 209, no matter that it was constructed by and for the
exclusive use of one of the owners, the mere right in the DMC to require its
removal, a right enforceable only by action in the courts at the expense of the
corporation, would render the corporation liable for injuries to third parties
occasioned by the fact that the owner or tenant permitted that structure to
fall into disrepair, no matter that the disrepair was unapparent.”
101.
This passage suggests that
Stock JA was proceeding on the basis that liability is strict, so that the
incorporated owners would be liable even where there is no reasonable basis for
considering the structure a hazard.
However, if, as has been held above, it is recognized that the law has
evolved to the point where liability is premised on the defendant knowing or
properly being taken to know of the existence of the hazard, this policy
objection falls away. There is nothing
harsh or unreasonable about making the body responsible, on behalf of the
owners collectively, for keeping the common parts in good repair liable for
failing to do so where they know or ought to know of the existence of a
nuisance hazard endangering members of the public. The powers of enforcement given to the
corporation by the BMO have been mentioned above. The available measures are
not confined to action in the courts.
102.
There are moreover, in my view,
sound reasons for making the incorporated owners, and not merely the individual
owners implicated, responsible. Where
the hazard involves the external common parts of a high-rise building,
effective inspection and maintenance works can really only be carried out if
those parts (and any illegal accretions thereto) are dealt with as a whole,
with the erection of scaffolding and the like and with all the owners’
contributing to the cost, subject to possible adjustment regarding the
individual owners implicated. And where
the nuisance hazard consists of some unauthorized structure encroaching upon or
being attached to the common parts, the individual owners who may have erected
or adopted the structure and benefit from its existence, may well be unwilling
to take any steps to remove it.
Compulsion from, or direct action by, the incorporated owners may well
be required if the hazard is to be nullified.
G. Disposal of the appeal
103.
I would therefore allow the
appeal and order that there be judgment for damages in favour of the plaintiffs
against the 3rd defendants.
As an appeal on quantum is pending before the Court of Appeal, I would
direct that the parties be at liberty, when the outcome of that appeal is
known, to apply to the Court, by submissions in writing, for orders as to
costs, directions concerning contribution between defendants and any other
directions relevant to the implementation of this judgment. Any procedural directions needed regarding
such application and submissions should be sought from the Registrar of the
Court.
Lord Woolf NPJ:
104.
Mr Justice Ribeiro PJ’s
judgment is a masterly examination of the law and merits relating to this
appeal and I have no hesitation in saying that I am entirely in agreement with
its contents.
Chief Justice Li:
105.
The Court unanimously allows
the appeal and makes the orders and gives the directions set out in paragraph
103 of the judgment of Mr Justice Ribeiro PJ.
(Andrew
Li) (Kemal Bokhary) (Patrick Chan)
Chief
Justice Permanent Judge Permanent Judge
(R A V Ribeiro) (Lord Woolf)
Permanent Judge Non-Permanent
Judge
Mr Denis Chang SC and Ms Corinne
Remedios (instructed by Messrs Pang & Associates and assigned by the Legal
Aid Department) for the appellants
Mr Ruy Barretto SC and Mr Meyrick Wong
(instructed by Messrs Edmund WH Chow & Co) for the respondents
