WONG LAI KAI v. WU CHAN CHOI AND OTHERS

HCPI962/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 962 OF 1996

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

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

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

J U D G M E N T

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

1. In the morning of 22nd July 1994, while the Plaintiff was walking along the pavement outside Shop 5B on the Ground Floor of Lok Fu Building at Fuk Tin Path, Yuen Long, ("the Shop") the awning attached to the external wall above the shop front of the said premises suddenly collapsed. The Plaintiff received injuries to his left knee.

2. The 1st, 2nd, 3rd and 4th Defendants are the registered owners of the shop. The 5th Defendant was at the time a tenant carrying on the business of a food stall at the shop.

3. The 6th Defendant is the Incorporated Owners of the said Lok Fu Building incorporated under the Multi-Storey Buildings (Owners Incorporation) Ordinance. The 1st to the 5th Defendants did not appear at the trial. It is not entirely clear from the evidence who had erected the awning in question. However there is undisputed evidence from the Plaintiff that the 5th Defendant had been using the awning to provide shade and cover for those customers of the food stall who sat at tables placed on the pavement by the 5th Defendant.

4. The primary claim of the Plaintiff is against the 1st to the 5th Defendants. The defence of the 1st, 2nd, 3rd and 4th Defendant (the registered owners) is that they were under no obligation to maintain the awning. The defence of the 5th Defendant was that when he entered into the Tenancy Agreement for the said premises, the awning had already been erected and in any event it was not erected on any part of the shop premises and therefore she had no control over them, nor that she was under any duty to maintain the same. The 5th Defendant alternatively alleged that the collapse of the awning was caused by acts of God in that in the days prior to its collapse, there had been an unusually heavy rainstorm lasting for more than 10 hours.

5. The 6th Defendant is an alternative Defendant. If the Court is to hold that the 1st to the 5th Defendants are liable, then the 6th Defendant should not be liable.

6. At the time of the accident, the Plaintiff was a pedestrian passing under the awning. The 5th Defendant, as the occupier of the Shop premises owed a duty of care in respect of the awning to persons lawfully passing under it. It is not open to the 5th Defendant, in my view, to suggest that while they had been using the awning to provide shelter for their customers, they nevertheless had no duty to ensure that it would not pose any danger to passes-by. In this context, it is immaterial whether the awning was erected on the external wall forming part of the Shop premises or otherwise.

7. The evidence before me establishes that when the 5th Defendant leased the shop from the owners, the awning was already in place. The evidence also suggest that the awning had been treated by the registered owners and the 5th Defendant as part of the Shop premises and was let as such. The 5th Defendant had derived benefit from it. On that basis, the authorities are clear that the 5th Defendant owed a duty of care to persons lawfully passing under it. The case of Cunard v. Antifyre Ltd. [1933] 1 K.B. 551 refers. The 5th Defendant has a duty to ensure that the awning was properly maintained at all times.

8. The position of the registered owners appears to be this : a landlord is normally not liable at common law as the lease transferred all obligations from the landlord to the tenant, as a result of which the landlord could no longer be regarded as the occupier of the premises. That being the case, they would therefore be exempted from liability for any danger existing in the awning. There is nothing in the Tenancy Agreement where the landlord had taken upon themselves the contractual obligation of keeping the premises in repair. It has not been pleaded by the 5th Defendant that the owners were in any way responsible. As the 5th Defendant had chosen not to appear in this hearing, there is no evidence for this Court to determine whether the 5th Defendant can establish a basis to shift the responsibility to the owners.

9. On the issue of Act of God, the 5th Defendant pleaded that there had been unusually heavy rainfall in the 10 hours preceding the accident. As it was the 5th Defendant's case that the rain had continued for such a long period, she should have alerted to the potential danger caused by such weather condition and in turn, took additional precautions. No such steps, however, were taken. A plea of Act of God, in the circumstances, could not operate as a defence to the Plaintiff's claim.

10. For the reasons given, I find that the occupier, in this case the 5th Defendant, is in breach of the duty of care she owed to the Plaintiff. The owners, that is the 1st to 4th Defendants are not liable.

11. As the claim against the 6th Defendant is framed in the alternative to the claim against the 1st to 5th Defendants, this would have sufficiently dispose of the issue on liability. I think it would nevertheless be appropriate for me to make a number of observations in respect of the Plaintiff's claim against the 6th Defendant.

12. Counsel for the Plaintiff submitted that if the Court finds the awning was attached to the external wall of the building, which could not be in the exclusive possession of the owner/occupier of Shop 5B, then pursuant to clause 4(f)(vi) of the Deed of Mutual Covenant, the awning should be regarded as being attached to the common part of the building for which the 6th Defendant is responsible under s.16 of the Building Management Ordinance, Cap.344.

13. Under Clause 10(e) of the Deed of Mutual Covenant, the owners covenanted with each other :

"Not to erect or affix or permit or suffer to be erected ... any signboard, signs, notices, posters, signal, advertisement ... to the exterior of the said building or to common areas within the said building or any part thereof or to any exterior wall ... of the said building PROVIDED that the owner or owners for the time being of the ground floor of the said building shall have the right to erect or affix signboard to the exterior of his part of the said building but the height of such signboard shall not exceed the ceiling level of such part of the said building."

The burden falls squarely on the Plaintiff to establish that the awning was erected on the external wall of the building and not the part where the owner/occupiers were entitled to exclusive use. The photographs produced at the hearing did not assist the Plaintiff's case on this point. There is no evidence that the awning was above the ceiling level of the Shop in question. The representative of the 6th Defendant, Mr Nip, explained that the awning was fixed below the concrete edge of the ground floor ceiling and hence within the shop premises. His evidence was not challenged.

14. Under the Deed, "external wall" is not included in the definition of common parts and Clause 4(n), the definition section makes no reference to that effect. Read in conjunction with Clause 9 of the Deed which provides :

"each owner may place and erect in his own part of the said building at his own expense any additions improvements or furniture and may make alterations thereto and shall have the right to remove the same at his own expense."

15. The above provision is consistent with an intention to allow the shops on the ground floor to have exclusive use of the respective part of their Shop front. The 5th Defendant, through the registered owners, acquired the right to the exclusive use of the part of the external wall where the awning was erected. In my view, the position of the wall where the awning was erected is part of Shop 5B.

16. Having so found, s.2 of the Building Management Ordinance, Cap.344 does not apply to that part of the external wall in question. The 5th Defendant being the person having exclusive possession of the shop, has a duty to maintain it in good repair and condition and to ensure that it would not pose any danger to passers-by beneath it. The case of So John v. Lau Hon Man [1993] 2 HKC 356 refers. For the reasons given, I find that the Incorporated Owners are not liable to the Plaintiff's claim.

Quantum

17. The Plaintiff was born on 22 March 1958 and was 36 at the time of the accident. He worked as a restaurant waiter earning a monthly salary of $9,000. After the accident, he was admitted to Tuen Mun Hospital with abrasions over the left elbow and right leg and superficial abrasions over the left thigh and a fracture of the head of the left fibula. He was treated and discharged on the same day, but was later readmitted on 25 July 1994.

18. According to Dr Wong Hok Lung, examination of the Plaintiff on his admission showed an avulsed posterior cruciate ligament of the left knee. Open reduction and screw fixation were performed on the same day. The left knee was put in a plaster cast and he was discharged on 28 July 1994.

19. The Plaintiff was readmitted again on 15 August 1994 for left calf swelling and he was diagnosed to have been suffering from deep vein thrombosis of the left leg. He was treated with anti-coagulants and was subsequently discharged on 27 August 1994. He received physiotherapy for some two to three weeks with oral medication for about a month afterwards. The Plaintiff still complains of swelling of the left leg on prolonged standing and walking. Sick leave was granted to the Plaintiff until 19 April 1999.

20. Dr Yu Kwong San is of the view that the Plaintiff can now manage the type of jobs which gives him the opportunity to stand and to sit from time to time. Although the Plaintiff can no longer work as a waiter which requires standing for long periods, there is no reason why he cannot be employed as a shop assistant, a storekeeper or a caretaker as suggested by Dr Lau Hoi Kuen, the medical expert called by the 6th Defendant. Dr Lau was of the view that the Plaintiff was exaggerating his disability and I agree with his observations. Dr Lau's assessment, which is not contradicted by the Plaintiff's medical experts, is 3% permanent disability and 5% loss of earning capacity. I shall proceed on the basis that the Plaintiff might be expected to earn $8,000 a month as a shop assistant.

Special Damages

21. The claim for special damages as set out in the revised Schedule of Damages is allowed in full : HK$7,066.60.

Pre-trial loss of earnings

22. The Plaintiff has been on sick leave since the date of the accident on 26 July 1994. He was given sick leave until 19 April 1999. I adopt a rate of increase of 15.9% from 1994 to November 1997 and no increase thereafter. The median would be (HK$9,000.00 + HK$10,431) ÷ 2 = HK$9,715.50. The pre-trial loss of earning would therefore be HK$9,715.50 x 53.5 months = HK$519,779.00.

General damage - PSLA

23. In Chan Pui Ki [1996] 2 HKC 657 the award in the serious injury category has been revised to start at $400,000. The Plaintiff's injury in this case is nowhere near that degree of seriousness. I would award a sum of $250,000 under this head and allowing for inflation, the sum would be $250,000 x 1.057 = $264,250.00.

Loss of future earnings

24. I would adopt a multiplier of 11 for the Plaintiff. On the assumption that the Plaintiff can earn $8,000 as a storekeeper or a watchman or a caretaker, his future loss of earning will be ($10,431 - $8,000) x 11 x 12 = $320,892.

Summary

25. The Plaintiff is entitled to interest on PSLA at 2% per annum from the date of writ and half judgment rate from the date of accident on pre-trial loss of earnings and special damages.

26. A date will be fixed for argument on costs in consultation with Counsel's diaries.