CHEUNG MAN HO v. YETREND INVESTMENTS LTD.

DCCJ 6562/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6562 OF 1999

-----------------

----------------

_________________

J U D G M E N T

_________________

1. The fact of this case is very straightforward. The Plaintiff is the owner of a light goods vehicle bearing registration No. FG 4307. On 4th December 1993, the said vehicle was driven by PW1, the driver of the Plaintiff. At about 5:30 p.m., PW1 parked the said vehicle outside No.1 Sai Lau Street, Tsuen Wan, New Territories, Hong Kong ("the Building"). When he returned in about 45 minutes, he found policemen around the said vehicle. On investigation, he found that some renders and tiles had fallen onto the said vehicle and damaged it. Some renders were of 2 feet by 3 to 4 feet in size.

2. There were suggestions that these renders and tiles peeled off from the external wall of the Building but there is no direct evidence. The Plaintiff asked me to draw an inference from the evidence, and I shall come to that later. In order to understand the case of the Plaintiff, it is necessary to refer to the Amended Statement of Claim. Paragraphs 2 and 3 read :-

"2. On the 4 December 1993, the servant or agent of the Defendant were engaged in exterior maintenance and refurbishing works on the Property. The works included, among other items, removing renders and wall tiles on exterior of the Property and replacing them with new ones.

3.	(a) ...
	(b) When the Plaintiff returned to the Plaintiff's vehicle at about 6:30 p.m. that day, the Plaintiff noticed that renders and wall tiles had fallen from the external wall of the Property and had struck the Plaintiff's vehicle causing loss and damage."

3. Paragraph 4 of the Amended Statement of Claims pleads that the loss and damage to the said vehicle was by reason of the negligence on the part of the Defendant and set out four heads of particulars of negligence. At the conclusion of the trial, counsel for the Plaintiff confirmed that he only relied on paragraph (b) and (d) of the particulars, which read as follows:-

"(b) [The Defendant] failed to take any or any adequate precautions to ensure that the renders and wall tiles would not and could not fall on Sai Lau Street.

(d) The Plaintiff would further relied on the doctrine of res ipsa loquitur, namely upon the fact, as evidence of the negligence on the part of the Defendant, the servants or agents, that the renders and wall tiles which were among the renders and wall tiles being removed or replaced were under the control and management of the Defendant fell and struck the Plaintiff's vehicle."

4. It is obvious from the above pleading that the Plaintiff is claiming a positive case that the Defendant carried out maintenance and refurbishing work at the external wall of the Property and, by negligence, allowed some renders and tiles to fall onto the said vehicle (The Property is defined in the Statement of Claim as Flat A and B on 4/F of the Building, and I adopt the same definition herein).

5. It is also important to note that before the amendment, the Statement of Claim referred to maintenance and refurbishing work on the Building. The work included removing renders and wall tiles on the exterior of the Building. Later, pursuant to an order of Deputy Judge Lok on 22nd November 2000, the Plaintiff amended the Statement of Claim and replaced the reference to the Building with the Property, meaning Flat A and B of the 4th Floor of the Building. The Plaintiff upon the amendment must have abandoned any reference to the external wall of the Building other than the external of the Property.

6. In the said amendment, the Plaintiff also brings in a further ground of claim on public nuisance that appears at paragraph 4A of the Amended Statement of Claim. It is pleaded that the Property, and not the Building, abuts Sai Lau Street which is a public highway. The Plaintiff again contends that the renders and wall tiles fell from the external wall of the Property form part of the Property. The Defendant knew or ought to have known that the same would endanger the public for lack of proper maintenance or other reasons.

7. By the pleading, the Plaintiff rests his claim solely on renders and tiles falling from the Property, either on the ground of negligence or public nuisance. He can only succeed with the case if he proved that the renders and tiles fell from the external wall of the Property.

8. At the final submission, counsel for the Plaintiff submitted a very ingenious argument. They submitted that the Defendant as one of the co-owners is under an obligation to maintain the renders and tiles on the external wall of the Building. Although they have used the words renders and tiles from the external wall of the Property, by paragraph (d) of the particulars under paragraph 4, they relied on the doctrine of res ipsa loquitur and it could be inferred from the facts of the case that the Defendant was prima facie negligent if it could be proved that renders and tiles fell from the external wall of the Building.

9. Paragraph (d) does mention that the renders and wall tiles removed or replaced and were under the control and management of the Defendant fell and struck the Plaintiff's vehicle. The wordings seem to be wide enough to cover renders and tiles falling from the external wall of the Building if it is under the control and management of the Defendant, jointly with other co-owners.

10. But the particulars must be read in the context of the whole document. One cannot ignore what is pleaded by the Plaintiff under paragraphs 2 and 3 of the Statement of Claim. It states a positive case that the Plaintiff's vehicle was being struck and damaged by renders and wall tiles fell from the external wall of the Property. The particulars only elaborate the claims that the Defendant has been negligent in allowing renders and wall tiles to fall from the external wall of the Property. The Plaintiff is bound by his own pleading and the Defendant should not be taken by surprise.

11. At the material time, the Defendant was one of the co-owners of the Building, the registered owner of the Property. It is not disputed that on about 9th August 1991, an order No. D137/NT/91E was issued by The Building Authority under section 24 of the Building Ordinance to all the co-owners of the Building, including the Defendant, requesting them to remove all loose and defective external rendering.

12. The Defendant denies liability. They denies that there were any maintenance and refurnishing works being carried out at the external wall of the Property at the time of the accident. If there were such works, they were carried out by the Third Party who was at the material time a contractor employed by the Building Authority. Since the Third Party is not their agent, they are not liable for the Third Party's negligent work, if any. They took out Third Party Proceedings that are to be dealt with after I determine the issue herein.

13. In support of their case, the Plaintiff called PW1. He said some of the renders were very big, of 2 feet by 3 to 4 feet. He admitted that on the day of the accident, when he looked up to the Building, there was no maintenance or refurnishing work. He did mention in evidence-in-chief that the tiles came from the 4/F. But in cross-examination and in re-examination, he agreed that he was not sure. I found that his evidence as to where the tiles came from is not assisting.

14. The Plaintiff called PW2 to produce the file kept by the Building Authority in relation to the said Order. It is helpful at this juncture to refer to Exhibit D-enc-26 (which is part of the said file). It is a photograph taken shortly after the accident. It shows that there were peeling off of tiles and renders at least at the 4/F and the 3/F of the Building. It is understandable that the PW1 could not really be sure from which floor the tiles come down by mere observation. And there is no other evidence from the Plaintiff to say that the renders and tiles peeled off from the external wall of the Property.

15. The Plaintiff also relies upon the doctrine of res ipsa loquitur. There is no magic about the doctrine of res ipsa loquitur that is just an exercise by the court to reach, on the balance of probability, an irresistible inference from the proven fact of the case.

16. As mentioned above, the Building Department had issued an order to the co-owners to remove or repair the loosen renders. Further, Counsel for the Plaintiff urged me to rely on the documents of the Building Department, photographs D-enc-20, D-enc-24 and the said D-enc-26 and draw the inference that the tiles and renders must have fallen from the external of the Property. He submitted that in photograph D-enc-20, it shows that some tiles on the exterior of the 3/F peeled off. The area of peel off at the 3/F appears to have increased in D-enc-24. He then submitted that by comparing D-enc-26 that was taken shortly after the accident, with D-enc-24, the area of peel off at the 3/F remains the same and the area of peel off at 4/F increased. One is bound to conclude that the tiles that fell onto the said vehicle came from the external wall of the Property.

17. It is difficult to rely on the photographs to speculate the size of the peel off area. Further, the weak point of this argument is that one cannot tell when the tiles at 4/F peeled off. There is no photograph taken immediately before the accident. These photographs cannot lead to a conclusion on balance of probability that the renders on the said vehicle came from the Property.

18. I was also referred to a letter from the police, indicating that the responsible party is the Defendant. Surely the police had not given any reason and did not say in this letter that the tiles came from the 4/F. In another letter from the Building Authority, they also commented that the tiles probably came from the 4/F external wall. These are at the highest, opinion. I do not know on what basis they expressed such opinion and I attach little weight to these letters.

19. In conclusion, the Plaintiff failed to prove that the tiles or renders that damaged the said vehicle came from the Property. And as admitted by PW1, there was no construction work on the external as pleaded in the Statement of Claim. The Plaintiff's case has not been proved. The Plaintiff's claim is dismissed.

20. While I have dismissed the Plaintiff's claim, I still have to deal with the Third Party. Parties submitted that they would wish to address me on the question of costs. There would be some complication here, in particularly with the costs of the Third Party. I would therefore reserve the question of costs and direct that the Plaintiff shall within 14 days from today make an appointment for all parties to appear before me to finalize the Third Party Proceedings and to argue on the issue of costs.