WONG SAU CHUN AND ANOTHERS v. HO KAM CHIU AND OTHERS

HCPI 872/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 872 OF 1996

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J U D G M E N T

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1. On the 23 August 1993 shortly after 10 o'clock in the evening Miss Wong Sau Ngo, a single lady aged 32 years was walking in the common area at ground level of a block of flats known as Wah Hei House, Siu Hei Court, in Tuen Mun. She lived in another block in the same development. She was struck by part of a pane of glass which fell from the kitchen window of Flat 11 on the 18th floor of the block. Tragically she was in the wrong place at the wrong time but it could have happened to any innocent passer-by in that vicinity. She suffered appalling head injuries from which she died within a few hours in Tuen Mun Hospital.

2. The flat from which the glass fell was owned and occupied by the 1st Defendant. He had arranged with the 2nd Defendant, a decorator/carpenter by trade, for the flat to be renovated and some alterations made. The material alteration was to a glass window in the kitchen which was to be replaced by another which had a vent or pipe outlet for an extraction unit or a heating exhaust unit.

3. The 2nd Defendant subcontracted the supply and fitting of the glass to the 3rd Defendant company which he had used on previous occasions for glazing work.

4. The 3rd Defendant's employees, including the 4th Defendant, carried out the removal of one glass pane and the replacement of it by another on the evening of the accident. The replacement panel had to be positioned and fixed from the outside of the frame. A suction gripper was used to hold and manoeuvre the panel. Somehow the panel fractured outside the suction gripper and fell to the ground.

5. The issue in this case is not why the panel fractured but why there was no netting, boarding or other means to catch falling objects so as to prevent pedestrians below being put at risk. It is a simple issue.

6. The Plaintiffs, the two elder sisters of the deceased, plead "res ipsa loquitur". It is a classic case of such. There is the clearest prima facie evidence of negligence on the part of the owner/occupier of the premises, the 1st Defendant.

The 1st Defendant

7. As owner/occupier he had a duty of care to all persons who might be at risk from objects falling from his apartment. His apartment was well above ground level. He must have known of the risk. Anyone who occupies an apartment above ground floor level is aware that falling objects pose such a hazard. They have to take all reasonable care to ensure such a hazard does not materialise. Where an independent contractor is engaged to do work which carries with it some risk to persons by reason of a fall of material from a height, the occupier must nonetheless ensure that there is adequate protection for people at risk either by taking such necessary measures or ensuring that the contractor does so.

8. The nature of this duty is so well known and so clearly expounded in numerous cases over the past century that it hardly calls for re-statement or exposition in terms of authorities. However in view of the argument advanced before me on behalf of the 1st Defendant, I need do no more than refer, amongst the almost uncountable statements, to that of Morris LJ (as he then was) in Walsh v. Holst & Co. Ltd [1958] 1 WLR p.800.

- at p.807:

"The seriousness of the consequences must be a factor in assessing the quality of the case which is requisite. A falling brick might easily cause a death. (A falling pane of glass may well decapitate a passer-by.) ... Any reasonable man would foresee these potential perils to users of the highway."

The words in parentheses are mine.

9. At p.808 Morris LJ cited Erle, CJ in Scott v. London and St Katherine Docks Co. [1863] 3 H & C p.596:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the Defendants that the accident arose from want of care."

In the context of Walsh's case Morris LJ said at p.809:

"Though the Board (occupiers of the premises) employed Holst as contractors, the Board cannot exclude themselves from liability. The duty of the Board to take care that bricks are not dropped from the building on to passers-by in the street is not in abeyance because they employ Holst to do work on their building .....

It is manifest that Holst and the Board owed a duty to take great care to ensure that bricks should not fall on passers-by."

Miss Sze Kin relies upon the English Court of Appeal decision in Salisbury v. Woodland [1970] 1 QB p.324 which distinguished the decision in Walsh's case. The facts of Salisbury's case were clearly different in nature from those in Walsh's case and this case. Widgery LJ and Harman LJ said that the obiter dicta in Walsh were too widely stated and applied to different circumstances. But I do not understand Walsh's case and the obiter dicta therein to be in conflict with the general principle that if the occupier can show that there was no negligence on his part and that he properly delegated the carrying out of the work to independent contractors, he will not be liable in negligence. Salisbury's case was not a case of "res ipsa loquitur" and the facts, sequence of events, the nuisance created, causation, and the involvement of the Plaintiff, constituted a context far removed from that in Walsh's case or this which I have to consider.

10. Regrettably, despite the nature of the work of which he well knew - i.e. the fitting of a pane of glass even if he did not know whether it was to be fitted from the inside or the outside - he did nothing to ensure the safety of persons at risk. He made no inquiry of or request to the contractor, the 2nd Defendant. He made no check. He was however concerned that the contractor should not cause any damage to the common parts which might give rise to problems with his neighbours. Surprisingly he said he told the contractor to be more careful when the glass came to be fixed lest the workmen be endangered in their handling of it. There was to my mind more obvious a risk to people outside the building and yet the 1st Defendant never lent his mind to this although he did say he did not think that there was a risk of material falling from the kitchen window.

11. I consider he was clearly negligent. In my view there is a paramount duty on the occupants of high rise buildings to ensure that no objects or material fall from it to the danger for people below. It would have been easy to fix some netting or shield.

The 2nd Defendant

12. He was the main contractor. He too was in occupation of the premises. He knew what work the glaziers had to to do. He knew that the glass had to be fitted from the outside of the frame. In any event as main contractor the onus was on him to ensure that the work could be done safely without risk to anyone outside the premises and fix any necessary netting or protective shield.

13. The glaziers first arrived with a panel of glass which was of the wrong dimensions. They returned at night time and he gave them access to the premises. In fact the 2nd Defendant lived in the same block on the 3rd floor.

14. He had fixed nothing to catching material falling outwards. He trusted the glaziers with the work so did not concern himself with how they did it. He said that he did not apply his mind to how they would do their fixing work.

15. He said in cross-examination "I never thought of the risk of falling objects but now you mention it I realise."

16. In my judgment there was an obvious risk and he should have realised it. The nature of the work called for some fixture outside the kitchen area to ensure that no material fell to the ground. Mr Ip Kam Tong was disarmingly na?ve and negligent in his failure to take obvious and necessary preventative measures.

The 3rd and 4th Defendants

17. The 3rd Defendant company was vicariously responsible for the negligence of its employees.

18. It was contracted to fix a pane of glass to a window frame which gave onto an external aspect. If anything went wrong there was a clear risk of glass falling out and downwards. That risk was increased by the fact that the panel had to be fixed from outside into the frame. The means of manoeuvring and holding it - a suction gripper - was irrelevant to the risk as was demonstrated by what happened. Part of the panel outside the gripper unit fractured and fell.

19. The 3rd Defendant should have ensured that there was an effective external netting or fixing which would catch any falling material. They did not do so. They were clearly negligent. The risk must have been as obvious as it was or ought to have been to anyone else.

The contributions

20. It is necessary to apportion responsibility as between the Defendants in accordance with the contribution notices between the 1st, 2nd and 3rd Defendants and in view of the fact that the 2nd Defendant is unrepresented and there is already a judgment by the Plaintiff against the 3rd and 4th Defendants. I should assess respective proportions of liability.

21. The 1st Defendant bears the smaller proportion. It is 20%. The 2nd Defendant as main contractor carries the largest proportion. It is 50%. The 3rd Defendant will bear 30%. Those apportionments reflect the degree of liability which I have considered earlier in this judgment.

DAMAGES

Bereavement

22. This is a figure fixed by statute. It is agreed at $70,000, it is to be shared between the two Plaintiffs.

Special Damages

23. These are also agreed at $13,875 plus hospital and travelling expenses of $950, totalling $14,825. Of these $14,525 were incurred by the 2nd named Plaintiff and $300 by the 1st named Plaintiff.

Dependency

24. The deceased was single. She lived with one of her two sisters, the second named Plaintiff. She worked as a secretary earning at the date of her death $8,200 per month. She had no assets. She had been employed since she was about 18 years old.

25. The Inland Revenue shows that she was indebted to four banks or credit card companies to the extent of over $52,000. The solicitors for the Plaintiffs have not obtained any statements or information concerning these liabilities to enable me to understand the nature of the goods or services, or expenditure generally, which gave rise to this, nor as to the period of time over which they had accumulated. The only inference I can draw is that she was living well beyond her means. The only record of income or savings is a savings book with the Sinhua Bank. It showed a modest credit balance of a little over $1,500 although the balance month by month was well below that figure. Again the Plaintiffs' solicitors have not obtained her current account statements. Despite this picture there is a claim by both sisters alleging a degree of financial dependency, and for loss of accumulation of wealth under the Law Amendment and Reform Consolidation Ordinance.

The 1st Plaintiff

26. She says the deceased gave her $1,000 every month and had done so for over 10 years. This was in effect in recognition of and return for the financial support given by the sister when she was younger, at school, and was given to their mother for her maintenance. I accept this evidence but for how long could the deceased have afforded to continue this? She was heavily in debt though the sister did not know it. At some stage her creditors would have put pressure upon her and on her income. She could not realistically have repaid without stopping any payments to her family. Her sister acknowledged that once the pressure was on she would not accept the money. Furthermore there is some evidence that she took and paid for courses to improve her job prospects and hoped to go to England to work. The latter would certainly put an end to any further payments. She might marry - she might find her own accommodation. But her life-style as best I can deduce would have put an end to any such generous payments to her family. I think Miss Sze Kin is correct in arguing that the maximum multiplier for any such dependency payment should be 12 months; accordingly I will award $12,000 under this head.

The 2nd Plaintiff

27. The deceased lived with this sister. She gave her, on the oral evidence, $3,000 monthly. Some of this must have represented her keep. Having heard evidence, examined some of the monthly expenditure of this household, it seems to me that $1,500 is the proper though approximate figure to represent the costs of the deceased's keep, leaving the other $1,500 as a dependency figure.

28. Although Miss Sze Kin has taken a generous view of the multiplier, I have to bear in mind any reasonable argument that the 2nd Defendant, who appears in person, might want to argue and there also has to be consistency with the approach in respect of the 1st Plaintiff. I have decided I should apply the same multiplier, 12 months. The sum awarded is therefore $18,000.

Loss of accumulation of wealth

29. There is no pattern of saving. I have already referred to the extent of the deceased's indebtedness. The only inference is that she was living beyond her means. No evidence has been produced to displace this. Her future plans precluded any accumulation of wealth. It remains highly speculative. Any savings she would be able to make in the future would be for her own benefit. I make no award under this head.

Non-Contributory M.P.F.

30. She had been with these employers for only six months. This would have been a benefit accruing on her retirement. She was only 32 years of age. What form it would have taken is not clear. It is unlikely to have been for the benefit of her sisters and would probably have constituted a pension for her. It was non-contributory so there is no return of contributions in any event and no payment to her estate.

31. I make no award under this head.

Conclusion

32. There will also be interest on the heads of damage at the appropriate rates for the appropriate periods.

Delay

33. There has been a degree of inexcusable delay in this case. There was no defence to the Plaintiffs' claim. One or more defendants were clearly liable. The identity of the Defendants was clear. There had been an inquest and a prosecution. The amount of the claim was simple to calculate. It was arguably more appropriate to bring proceedings in the District Court. The Plaintiffs solicitors do not appear to have obtained what I regard as essential evidence relating to the deceased's financial status. It remained a very simple case to prepare and present.

34. Instructions were received from the Plaintiffs in July 1995. The writ was not issued until late August 1996. There was negligible progress in 1997 and 1998. Only in 1999 did the action start to move. That is not acceptable. I do not in this case propose to limit the period for which interest is to be calculated. That would be harsh upon the Plaintiffs but I make it clear that in such a modest claim and with the significant delay, it would not be professional for the Plaintiffs' solicitors to try and obtain any costs or make any charges against them.