LEUNG TSANG HUNG AND ANOTHER v. TSE YIU PUI AND OTHERS

HCPI 595/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 595 OF 2002

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J U D G M E N T

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INTRODUCTION

1. This is an action for damages based on the Fatal Accidents Ordinance, Cap 22. The deceased, a forty-one year old woman hawker, was killed outside 65 Tung Choi Street on 10 August 1999 when she was hawking there. She was hit on the head by concrete fragments fallen from part of the extended canopy (the "Extended Canopy") attached to the exterior wall of the premises on 11th floor of 65 Tung Choi Street (the "Premises") immediately above where she was hawking. The Premises were owned by the 1st Defendants jointly. The 2nd Defendant had been their tenant since 1990. The 3rd Defendant is the incorporated owners of the building in question (the "Building") which was incorporated on 12 April 1999.

2. Judgment on liability has been entered against the 1st Defendants in default of defence. The Plaintiffs' action against the 2nd and 3rd Defendants is in negligence and nuisance. The claim in negligence is based on the 2nd Defendant and 3rd Defendant failure to repair, maintain, inspect and cause the removal of the Extended Canopy. The claim in nuisance is founded on the basis that the Extended Canopy constituted a danger to those exercising a public right of way in the street below.

3. The parties have no dispute that the accident occurred and that the deceased died as a result. No one could establish with any degree of certainty the cause of the accident. The issues in this case are (1) whether the Defendants owed the duty to repair the Extended Canopy in negligence or in nuisance, (2) whether they were in breach of that duty and (3) whether that breach caused the accident.

THE CAUSE OF THE ACCIDENT

4. The Premises are on the top floor of the Building. There was a canopy protruding from the outer wall of the Premises to which someone added the Extended Canopy and converted the open balcony beneath as part of the covered space inside the Premises. The fatal concrete fragment fell from that Extended Canopy. There was no evidence when the Extended Canopy was erected and who was responsible for its erection. It could well have been erected in 1964 soon after occupation permit was issued and before the sale of the Premises to its first owner.

5. According to the Building Authority's Investigation Report, the Extended Canopy was cast against the approved canopy with roughened joint but without connecting steel reinforcement and spanned between the extended side walls of the balcony. It protruded a foot or two beyond the front of the Premises. The Extended Canopy and the extended side walls were unauthorised structures and were illegal. It was not designed in accordance with the Building (Construction) Regulations in that there were no longitudinal steel reinforcement bars inside the concrete slab. Though there were signs of poor workmanship as the concrete fragments were porous with voids and the density of the concrete was low, the report excluded overloading of the canopy slab, corrosion of the reinforcement or under-strength concrete as contributing factors for the collapse of the Extended Canopy. The report cannot identify the precise reason of the collapse but considered the most likely cause to be the long-term effect of exposure to rainfall and moisture seepage on a hairline crack which probably existed since the construction of the Extended Canopy, which could easily have formed when the formwork to the Extended Canopy was stripped before the concrete had properly cured.

6. Dr Lam of the Hong Kong Polytechnic University also prepared an investigation report upon the instruction of the Police. According to Dr Lam, there were signs of possible poor workmanship in constructing the Extended Canopy as the concrete was porous with numerous voids and was of low concrete density. He considered the absence of longitudinal reinforcement bars as a possible design fault or construction error and the quality of the concrete unsatisfactory. He suggested aging and lack of proper maintenance could be contributory causes of the collapse. He, too, cannot establish with any degree of certainty the cause of the collapse. He concluded the obvious that had there been proper maintenance, the cracks would have been observed and the defect rectified.

7. These reports were unchallenged, but neither of them established with any degree of certainty the cause of the collapse.

THE CASE AGAINST THE 2ND DEFENDANT

Liability in negligence

8. The 2nd Defendant was the tenant and occupier of the Premises adjoining the highway. He had access to and the use of the Extended Canopy. He obtained a benefit from using the Extended Canopy in that the internal accommodation of the Premises was thus increased. He had exclusive right to occupy the space thus enclosed under the deed of mutual covenant. The Extended Canopy protruded beyond the front of the Building. It was overhanging a very busy street below full of hawkers and pedestrians. 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. A duty to maintain the Extended Canopy in sufficient repair so as to avoid such danger must arise. He had used the Premises for nine years. He must know that the Building was an old building. He must inspect the Extended Canopy every now and then and have it maintained or repaired if necessary. He may not leave that duty to the incorporated owners, even though he might have assumed that the incorporated owners were responsible for all maintenance and repairs of the Building including the Extended Canopy. The 2nd Defendant must be under a common duty of care to inspect and keep the Extended Canopy in sufficient repairs so that it will not constitute a danger to his neighbours including the public exercising the right of way in the street below.

9. There is no dispute that none of the Defendants, including the 2nd Defendant, had ever maintained the Extended Canopy. The 2nd Defendant was clearly in breach of his duty of care. The next issue is causation. The Building Authority suggested that the most likely cause of the collapse was the long-term effect of exposure to rainfall and moisture seepage on a hairline crack in the Extended Canopy. Mr Ling, on behalf of the 2nd Defendant, suggested that the one hour heavy rain within 24 hours prior to the incident might have attributed to the aggravation of any existing crack in the Extended Canopy, presumably suggesting that the 2nd Defendant had not caused the accident. That is only his conjecture and is insufficient to displace the very valid point made by Dr Lam that had there been proper maintenance, the cracks would have been observed and the defect rectified. There was nothing to suggest any external cause such as overloading of the canopy or vibration or other construction works on the roof or acts of any third party which could have caused the collapse of the Extended Canopy. The Extended Canopy had stood there for about thirty-five years. The 2nd Defendant occupied the Premises for the nine years immediately before the accident. Whatever might have been the precise cause of its collapse, in the absence of an identifiable cause, it could not have been anything other than what could properly be described as want of repair, for which the 2nd Defendant was responsible. If this was not the cause of the accident, there is still a very strong presumption of negligence against the occupier. This is precisely the type of the case where the accident would not have occurred had those who had the duty to maintain the Extended Canopy exercised proper care. In my view, the doctrine res ipsa loquitur applies and the duty is upon those under a duty to maintain the Extended Canopy to establish how the accident occurred without negligence on their part: see Walsh v Holst & Co Ltd and Others [1958] 1 WLR 800. The 2nd Defendant has utterly failed to rebut this presumption. He is accordingly liable in negligence.

Liability in nuisance

10. It is well settled law that if premises adjoining the highway become dangerous as a result of failure to repair and cause damage, the occupier is liable, although he did not know of the danger and was not negligent in not knowing. The law on this subject is summarised by Atkinson J in Wringe v Cohen [1940] 1 KB 229 at 233 as follows:

"In our judgment if, owing to want of repair, premises on a highway become dangerous and, therefore, a nuisance, and a passer-by or an adjoining owner suffers damage by their collapse, the occupier, or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not. The undertaking to repair gives the owner control of the premises, and a right of access thereto for the purpose of maintaining them in a safe condition. On the other hand, if the nuisance is created, not by want of repair, but, for example, by the act of a trespasser, or by a secret and unobservable operation of nature, such as a subsidence under or near the foundations of the premises, neither an occupier nor an owner responsible for repair is answerable, unless with knowledge or means of knowledge he allows the danger to continue. In such a case he has in no sense caused the nuisance by any act or breach of duty. I think that every case decided in the English Courts is consistent with this view."

11. In respect of this duty to keep the premises adjoining the highway in sufficient repair, the occupier's duty of care in negligence merges with his duty in nuisance.

12. Neither the 1st Defendant nor the 2nd Defendant was responsible for the erection of the Extended Canopy which protruded beyond the front of the Premises. The nuisance was the dangerous state of the Extended Canopy. The Extended Canopy as such was not a nuisance so long as it posed no danger to the public, but it would become dangerous if allowed to get out of repair. It is not known when during these thirty-five years it started to become a danger. It must have become dangerous sometime before the accident occurred in August 1999. There was nothing to suggest the collapse was due to the act of a third party or other operation on or before the day of the accident. However, as the occupier of the Premises, the 2nd Defendant was under a duty to repair the Extended Canopy so as to prevent it from becoming a nuisance to the public. As I have found earlier, the accident could not have been due to any cause other than what could properly be described as want of repair for which the 2nd Defendant as the occupier was responsible. Part of the Extended Canopy collapsed and caused the deceased's death. The 2nd Defendant is therefore liable.

Whether the occupier's duty to maintain premises in sufficient repair owed to a third party is excluded by the landlord's obligation to repair

13. The 2nd Defendant's defence is that under the implied term of his tenancy agreement with the landlord, the duty to maintain or repair the Premises or the Extended Canopy was with the 1st Defendants and that he had no duty to maintain or repair it. The Premises together with the Extended Canopy had been leased by the 1st Defendants to the 2nd Defendant since 1990. On 1 January 1998, the parties entered into an informal tenancy agreement. So far as the duty to repair and maintain is concerned, it provides:

"..... 屋內水喉、窗門，如有損壞時，由住客修理，....."

"..... the tenant shall repair the water piping inside the flat and windows if damaged ....."

The tenancy agreement is silent as to the responsibility for the repair and maintenance of the external wall or the Extended Canopy. It is the 2nd Defendant's submission that though the tenancy agreement between the 1st Defendants and the 2nd Defendant was silent on the responsibility for repair to the external part of the Premises, the landlord's obligation to repair the exterior can be readily implied. Mr Ling cited the decision in Barrett v Lounova Ltd (1982) [1989] 1 All ER 351 in support of his proposition. In that case the tenant covenanted to keep the inside of the premises in good repairs. However, the outside of the house fell into a bad state of disrepair and there was extensive water penetration causing damage to the interior of the house. The court applied the business efficacy test and implied into the tenancy agreement an obligation on the landlord to repair the outside of the house for without which the tenant could not perform his covenant to keep the inside in good repairs.

14. I think whether such an obligation on the landlord is to be implied depends on all the circumstances of the tenancy including the express terms of the tenancy agreement. In Barrett v Lounova Ltd (1982) the landlord's obligation to repair the outside wall was implied because otherwise the tenant could not perform his obligation to repair the inside. In the present case, the tenant's obligation was only limited to water pipes inside the house and windows. Except for these two items, the tenancy agreement was silent on the tenant's obligation to repair. Thus the present case is distinguishable from Barrett v Lounova Ltd (1982) on the facts.

15. A landlord's implied obligation to repair always raises difficult and interesting arguments. It appeared that neither party was prepared to argue that issue at length. For the purpose of the Plaintiffs, it is unnecessary for reasons as will become apparent from the later part of this judgment. For the purpose of determining contribution as between the 1st and 2nd Defendants, this is also unnecessary as they had entered into a consent judgment whereby the 1st Defendants shall indemnify the 2nd Defendant. For my part, though I hold that Barrett v Lounova Ltd (1982) is distinguishable from the present case, I am prepared to imply such an obligation on the part of the landlord to repair the Extended Canopy. This is a multi-storey building. When the Premises was first let to the tenant, it was let with the balcony already converted into internal accommodation by the Extended Canopy. The Extended Canopy was an illegal structure for which the incorporated owners was not responsible. Not only that, the law would require it to be demolished. The repairs of such an illegal structure would involve structural work which would be costly and probably out of proportion with the market rent for the Premises. The parties reduced into writing a limited obligation to repair only the water piping and windows if damaged. This is a contingent obligation which would only arise if the piping and windows were damaged. It did not create an obligation to maintain. The express stipulation of such a limited obligation to repair raises a strong inference that the parties intended that all other obligation to repair and the obligation to maintain remained with the landlord, especially in respect of expensive structural maintenance. Had the question of repairs been raised by the parties when entering into the tenancy agreement, they would have said that it goes without saying that the landlord shall be responsible for structural repairs. If the landlord was under an implied obligation to repair, it must mean that the tenant was not under such a duty under the tenancy agreement. But, I must emphasise that this is only an obligation as between the parties, i.e. the 1st Defendants as landlords and the 2nd Defendant as their tenant. It does not affect the obligation of either of them towards third parties.

16. Barrett v Lounova Ltd (1982), relied on by Mr Ling, is a case in contract in which the tenant brought an action against the landlord for breach of implied covenant to repair. The present case is a claim in tort in which a third party to the tenancy agreement sued the landlord and the tenant for breach of duty of care. In respect of the Plaintiffs' claim in negligence, the issue as against the 2nd Defendant is whether as the occupier of the Premises he owed a duty of care to the deceased in the street below, whether he was in breach of that duty and whether there was causation. In respect of the Plaintiffs' claim in nuisance, the issue is simply whether the 2nd Defendant was the occupier of the Premises on a highway and whether the Premises became dangerous owing to want of repair. I think the question of contractual obligation as between the landlord and the tenant is irrelevant.

17. Mr Ling referred to the head-note in Payne v Rogers 2 H BL 351 quoted in Wringe v Cohen which reads:

"If the owner of a house is bound to repair it, he, and not the occupier, is liable to an action on the case for an injury sustained by a stranger from the want of repair."

Based on that, counsel submitted that as the landlord was bound to repair, the 1st Defendant and not the 2nd Defendant is liable.

18. I think this case illustrates the danger of placing undue reliance on the head-note without reading the report. Payne v Rogers was an action by the plaintiff against the owner of premises for personal injury sustained on the owner's premises occupied by his tenant. The plaintiff obtained judgment against the owner. The owner sought to have the verdict set aside and to enter a nonsuit. The report is a short one. It consisted of the brief statements of the three judges. The Lord Chief Justice held:

"Evidence was given of repairs being actually done by the landlord. And I thought at the trial, that though the tenant was prima facie bound to repair, and therefore liable, yet if he could shew that the landlord was to repair, then that the landlord was liable."

19. Buller J concurred and said:

"The direction of my Lord Chief Justice was most clearly right. I agree that the tenant as occupier is prima facie liable to the public, whatever private agreement there may be between him and the landlord. But if he can shew that the landlord is to repair, the landlord is liable for neglect to repair."

20. Heath J said:

"If we were to hold that the tenant was liable in this case, we should encourage circuity of action, as the tenant would have his remedy over against the landlord."

21. I do not think the head-note is an accurate summary of the law decided in this case. The action was between the owner who was not in occupation but was under an obligation to repair under the term of his agreement with the occupier. The occupier was not a party to the action. After judgment was obtained against the owner, the owner moved to have it set aside saying that the occupier was liable. As Buller J said the occupier is prima facie liable to the public whatever private agreement there may be between him and the landlord. The owner's motion was dismissed as Heath J said to avoid circuity of action. This is not a case which decided any principle of law that the owner who has the duty to repair is liable to the exclusion of his tenant. From the judgment, it is clear that the occupier is primarily liable as the person in actual possession and control of the premises giving rise to the nuisance and the landlord is only liable if he has covenanted to repair because he would be liable in law to indemnify the occupier in contract. In fact, it is the usual practice these days to sue both the owner and the occupier.

22. I think it is trite law that the contractual obligation between the parties to a contract does not preclude the duty of care owed by them to third parties from arising. Of course, in considering whether the duty of care is owed to a third party, other factors have to be taken into account, including the contractual liability of the occupier vis-à-vis the landlord. Even if under the terms of the tenancy agreement the tenant is under no obligation to repair, that agreement does not prevent a duty of care owed to a third party from arising by reason of the tenant's involvement in any activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the third party. In my opinion, the duty owed to the public by an occupier of premises adjoining the highway to keep the premises in sufficient repair as to prevent them becoming a danger to the public using the highway is a duty cast in stone in our law. It cannot be extinguished by the contractual terms in a tenancy agreement between the landlord and the tenant. Indeed as the cases have shown, this primary duty owed by the occupier is very often extended to the landlord if he has covenanted to repair the premises.

Latent defect

23. The 2nd Defendant's alternative argument is that the collapse was caused by a latent defect which could not have been discovered by visual inspection. Mr Ling referred to the decision of Cushing v Peter Walker & Son (Warrington & Burton), Ltd [1941] KBD 693. He submitted that the Extended Canopy was in an acceptable standard and the cracks if they existed were on the surface of the Extended Canopy facing the sky and could not have been detected by the 2nd Defendant from below. He relied particularly to the evidence of Dr Lam given in the course of the death inquest of the deceased. In essence, Dr Lam explained that the cracks the experts were talking about were structural cracks and structural cracks would be on the top of the concrete and not below. He said as there was a plaster coating on the Extended Canopy, such cracks could not be seen by a visual inspection from the roof. He also agreed that an ordinary landlord would not be able to find out by visual inspection whether there was adequate maintenance. However, that a defect is not apparent to the eyes of an ordinary landlord does not relieve him of his duty to maintain or cause the Extended Canopy to be maintained by those who are qualified to do the work. As pointed to by Dr Lam, an experienced contractor would look for signs of aging, deformity and shrinkage in the concrete fin and if necessary expose the concrete for a more thorough investigation for defect.

24. With respect to counsel, I think he has quite misunderstood the law and equated latent defect with knowledge of the danger necessary to impose liability on an occupier for continuing or adopting an already existing nuisance as distinct from actually creating one through want of repair. From the dicta of Atkinson J in Wringe v Cohen which I have referred to above, it is clear that the duty which the law of nuisance imposes on the occupier of premises adjoining the highway is an absolute one. The occupier is liable whether he knew or ought to have known of the danger. It was so held by all the three judges in Tarry v Ashton (1876) 1 QBD 314. But as pointed out by Atkinson J in Wringe v Cohen, this case seems to have been misunderstood even by many eminent judges as making knowledge of the danger a condition to liability. Mr Ling seemed to have followed their footsteps. Before referring to how Tarry v Ashton was explained by Atkinson J in Wringe v Cohen, I shall first turn to the facts in that case.

25. In Tarry v Ashton, the defendant lately became the occupier of premises with a lamp suspending from the front of the premises and overhanging the highway. Knowing that the lamp and other fittings were of some age, the defendant employed an experienced fitter to examine them and put them in thorough repair in the preceding August. In November, a workman placed his ladder against the lamp bracket and climbed on the ladder to blow water out of the gas pipes. The ladder slipped and the workman fell. The lamp got shaken and its fastenings broke. It fell and injured a passer-by. The defendant had no knowledge of the defective condition of the fastening. He had no knowledge of the want of repair. He did not even suspect it as he had caused it to be examined by an experienced fitter and to put the lamp and its fittings in thorough repair. But it was in fact in a dangerous condition and hence a nuisance. Lush and Quain JJ did not consider the question of latent defect. They rested their judgments on an absolute obligation to prevent one's property from becoming a nuisance. They held that if a person maintains a lamp projecting over the highway for his own purposes, it is his duty to maintain it so as not to be dangerous to the pedestrians; and if it causes injury owing to want of repair, it is no answer on his part that he had employed a competent person to repair it. These judges considered the duty to repair an absolute duty. However, Blackburn J went on to consider the question of latent defect. This was where the question of knowledge entered into his judgment and was understood.

26. Blackburn J held at 318:

"It appears that the defendant came into occupation of a house with a lamp projecting from it over the public thoroughfare, which would do no harm so long as it was in good repair, but would become dangerous if allowed to get out of repair. It is therefore not a nuisance of itself. But if the defendant knowingly maintained it in a dangerous state he would then be indictable for the nuisance. This much is clearly decided by Reg v Watson 2 Ld Raym 856; 1 Salk 356, for the defendant was there held liable for not repairing his house which was on a highway and was ruinous and like to fall down, on the ground that as occupier he was bound to keep the house so as not to be a nuisance."

Pausing here, Atkinson J pointed out that the last sentence quoted above would be true without the word "knowingly" and that Reg v Watson is certainly not an authority for requiring the insertion of that word. That I agree. That word might have inadvertently found its way into the judgment.

27. Blackburn J then went on:

"As I have said, I do not wish to decide more than is necessary; and if there were a latent defect in the premises, or something done to them without the knowledge of the owner or occupier by a wrongdoer, such as digging out the coals underneath and so leaving a house near the highway in a dangerous condition, I doubt - at all events, I do not say - whether or not the occupier would be liable. But if he did know of the defect, and neglect to put the premises in order, he would be liable."

Again, pausing here, the defect or latent defect Blackburn J was talking about in this passage was a defect caused by the act of a trespasser or a third party. The defect in Tarry v Ashton was the general decay of the fitting connection which was latent in the sense that it was unobservable. That was not regarded by Blackburn J as latent defect. It is in respect of this act of a trespasser that the question of knowledge was brought into the judgment of this great judge where he continued:

"He would be responsible to this extent, that as soon as he know of the danger he would be bound to put the premises in repair or pull them down."

28. What followed was a discussion of an occupier's general duty to inspect even where he has no knowledge of the danger. Blackburn J said:

"So also the occupier would be bound to know that things like this lamp will ultimately get out of order, and, as occupier, there would be a duty cast upon him from time to time to investigate the state of the lamp. If he did investigate, and there were a latent defect which he could not discover, I doubt whether he would be liable; but if he discovers the defect and does not cure it, or if he did not discover what he ought on investigation to have discovered, then I think he would clearly be answerable for the consequences."

The latent defect referred to in the above dictum of Blackburn J must be the defect caused by a trespasser which the occupier has no knowledge of.

29. Then Blackburn J turned to the facts of the case before him and said:

"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."

This is where the reporter of the case got the facts wrong and reported that the defendant knew the lamp wanted repair in August when the fact was to the contrary. Blackburn J held that the defendant was under a duty to repair. He said:

"..... 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."

As pointed out by Atkinson J at 239 the duty which Blackburn J had in mind must be the duty of an occupier and that in the above dictum Blackburn J was contrasting the position of a nuisance due to want of repair with that of a nuisance due to a latent defect or an act of trespasser. Atkinson J said:

"Why was it 'the defendant's duty to make the lamp safe'? Blackburn J does not say it was his duty because he was aware that the lamp might be getting out of repair, merely that the defendant had the duty. Surely it was not his duty because he gave his mind to the question of the safety of his premises and, wishing to ensure that safety, employed a contractor to examine and do all that might be necessary. He could not be in a worse position than if he had not given the matter a thought, and, therefore, had not had anyone to examine and do what was necessary. The learned judge must have meant that he was under a duty because, as an occupier, he was bound to keep his premises, including the lamp, from becoming unsafe for want of proper repair. That duty was not performed and, therefore, he was liable, despite the absence of negligence or knowledge. The leaned judge contrasted the position of a nuisance due to want of repair with that of a nuisance due to a latent defect or an act of trespass."

30. After examining the authorities, the Court of Appeal in Wringe v Cohen reached the conclusion that the law is as summarised in the dicta of Atkinson J I quoted above. It can be seen from those dicta that the law distinguishes between a person who creates a nuisance and someone who continues a nuisance created by a third party. Where someone creates a nuisance, he is answerable whether he knew or ought to have known of the danger or not. Thus where an occupier through want of repair creates a dangerous state in his premises, he is liable even though he had no knowledge of the danger or the cause of the danger. However, where the danger is created by a third party or by secret unobservable operation of nature, the occupier is not liable, unless he adopts the nuisance in the sense that with knowledge or means of knowledge he allows the danger to continue. In relation to continuing or adopting a nuisance, knowledge of the danger is required to fix liability on the occupier. Cushing v Peter Walker & Son (Warrington & Burton), Ltd cited by Mr Ling is consistent with the above principle and in my view does not support the defence of latent defect relied on by the 2nd Defendant.

31. In that case a slate loosen by the blast from an enemy bomb fell 18 days later from the roof as result of a high wind and injured the plaintiff. The roof was covered by layers of wooden slates and secured by nails. After the accident, the roof was examined. It was found that the slates were secured by nails which could have lasted for another three or four years and that part of the broken slate which fell was covered by at least one layer of slates and could not have been discovered by reasonable inspection. There was no question of want of repairs. The court found that the roof was well secured and only became a nuisance because of the loosen slate caused by the blast which was the act of a trespasser, i.e. by enemy action. The defect was latent in the sense that the loosen slate was hidden beneath at least another layer of slate and could not have been discovered by reasonable inspection. However, because the blast which caused the nuisance was blatant, the court held the defendant had, with knowledge or presumed knowledge of this nuisance, adopted or continued the nuisance. The question for the court was whether with that knowledge or presumed knowledge the defendant failed to take any reasonable means to bring the nuisance to an end. It resolved in favour of the defendant because reasonable inspection of the roof could not have disclosed the fact that the slate had been loosen by the blast. This is not a decision on latent defect but on act of a trespasser.

32. The present case is distinguishable from Cushing v Peter Walker & Son (Warrington & Burton), Ltd in that the danger was not caused by the act of a trespasser. The hairline crack, even if it was the sole cause of the collapse, was not the act of a trespasser. It was a latent defect in the sense that it was not discoverable by a visual inspection. But the latent defects for which an occupier is not liable without knowledge are those caused by the act of a third party or by unobservable operation of nature. General decay as in the case of Tarry v Ashton does not amount to such latent defects. Likewise, aging or the hairline crack inside the concrete slab could not amount to such latent defects as would relieve the occupier of his liability for nuisance created by him through want of repair. As the 2nd Defendant created the nuisance through want of repair, he is answerable whether he knew of the defect. His lack of knowledge of the danger or the defect is irrelevant. I reject his defence of latent defect.

THE CASE AGAINST THE 3RD DEFENDANT

33. The Plaintiffs' case against the 3rd Defendant is based on the 3rd Defendant's duty to inspect the Extended Canopy and to require its removal. Mr Chiu, on behalf of the Plaintiffs, accepted the authority of Wong Lai Kai v Incorporated Owners of Lok Fu Building, Yuen Long [2000] 3 HKC 633 that the incorporated owners have no duty to maintain an illegal structure attached to the common part of the building erected by and for the exclusive use, occupation and enjoyment of its owner as would attract the operation of section 34H of the Building Management Ordinance. He submitted that Wong Lai Kai v Incorporated Owners of Lok Fu Building did not discuss beyond the duty to repair whether there was any other duty of care owed by the manager of a building to third parties. He submitted that the incorporated owners owe at least a duty to inspect and to remove or cause the removal of illegal structure which posed as a danger to the public. He drew support for the existence of such a duty on the incorporated owners from the case of Chu Wo Heung & Another and Hui Lai Wa & Others [2002] 3 HKLRD 209. In that case, the Court of Appeal held that the manager appointed by the owners of the building was an occupier and had sufficient control of an awning constructed by an occupier of a shop with the manager's permission. Hence, Mr Chiu submitted that on the basis that the 3rd Defendants were the occupiers of the Extended Canopy, it owed a duty to inspect and to remove the Extended Canopy if it became a danger. He quoted the following dicta of Cheung JA at 216G:

"The fifth defendant was clearly an occupier of the awning: it exercised a 'degree of control over the state of the premises', per Lord Denning in Wheat v E Lacon & Co Ltd [1966] AC 552 at p 578. It also had control 'associated with and arising from presence in and use of or activity in the premises', per Lord Pearson at p 589. This control existed because of the requirement that permission to construct the awning must be obtained from the fifth defendant and its various powers under the DMC relating to structures on external walls, including the power to require unauthorized structures to be removed. The structure may be a flimsy one, but it remained to be a structure attached to the premises."

34. It should be noted that there were two important material facts which formed the basis of the decision of the Court of Appeal. These were the requirement in the deed of mutual covenant that permission to construct the awning had to be obtained from the manager and the finding that the incorporated owners had assumed a duty of care towards the public to make sure that the structure did not become a hazard to the public. Chu Wo Heung & Another and Hui Lai Wa & Others was not followed by the Court of Appeal in Chan Yan Nam v Hui Ka Ming & Others [2003] 1 HKC 341. In distinguishing Chu Wo Heung & Another and Hui Lai Wa & Others, Le Pichon JA identified the above two distinguishing features and held at 350H:

"However, in coming to the conclusion that the manager had control over the awning, the court [in Chu Wo Heung & Another and Hui Lai Wa & Others] had reasoned that control existed because of the requirement that permission to construct the awning had to be obtained from the manager and because of its various powers under the particular deed of mutual covenant in that case relating to structures on external walls. But these provisions are absent from the deed of mutual covenant in the present case. There was also the factor that the awning projected across the frontage of the building over the pavement. In those circumstances, the judge held that by exercising control over the structure the incorporated owners had assumed a duty of care towards the public to make sure the structure did not become a hazard to the public. For my part, I do not consider that Chu's case assists. I agree with counsel for the 3rd defendant that the 3rd defendant had no control over the lower canopy in the Wheat v Lacon sense to render it an occupier."

35. Mr Chiu submitted that the facts in Chan Yan Nam v Hui Ka Ming & Others are distinguishable from the present case in that it was concerned exclusively with occupier's liability because in that case the illegal canopy from which the victim fell was not protruded into or overhanging any public area and the victim was an invitee. Despite the distinction, I do not think it is material or that it affects in any way the conclusion which could be reached on the basis of lack of control by the incorporated owners over the Extended Canopy in this case.

36. Mr Chiu attempted to cure the lack of power in the deed of mutual covenant to authorise the illegal structure by referring to the 3rd Defendant's power under clause 3(b) of the deed of mutual covenant to maintain all external parts of the Building, the co-owners' obligation not to make any structural alteration to the Building under clause 7 and the 3rd Defendant's power under clause 9 to employ an agent to watch and generally take care of the Building. He submitted that when these powers and obligations were read together with section 18(1)(c) of the Building Management Ordinance, the 3rd Defendant clearly has power over the external structure of the Building and in particular the power to remove illegal structure. Section 18(1)(c) of the Building Management Ordinance provides:

"18(1) The corporation shall -

.....

(c) do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building."

He said this power existed in Chu Wo Heung & Another and Hui Lai Wa & Others but was missing in the deed of mutual covenant in the Chan Yan Nam v Hui Ka Ming & Others.

37. The Extended Canopy was cast against the existing canopy with roughened joint though without connecting steel reinforcement. It rested on the extended side walls, the original part of which must be connected to the structure of the Building. Looking at the photographs, I have no difficulties to find that in appearance the Extended Canopy merged with the common parts of the Building. I find as a fact that it was attached to the common parts of the Building. However, it was not erected by the incorporated owners. They never approved nor had they the power under the deed of mutual covenant to approve its erection. The Extended Canopy was erected for the exclusive enjoyment, occupation and use of the occupier of the Premises. Neither the co-owners nor the incorporated owners had such right to use the Extended Canopy. I do not think the mere fact that the illegal structure was attached to the common parts of the Building would have the effect of converting it into the common parts of the Building. As was held by Suffiad J in Wong Sau Kam v Shum Yuk Fong HCPI No 798 of 1998 which was approved by the Court of Appeal in Chan Yan Nam v Hui Ka Ming & Others, it could not be right that by the mere attachment to a common area such an illegal structure should become part of the common area of the building with the result that all the other co-owners will come under a duty to maintain it once it was erected. In approving Wong Sau Kam v Shum Yuk Fong, Le Pichon, JA said at 350:

"It would be quite remarkable if an unauthorized structure which happens to interface with a common part would automatically become annexed to it with the consequence that the owners would become annexed to it with the consequence that the owners would come under an obligation to maintain it."

38. I think the above dicta relating to common parts of a building apply with equal force to the external parts of the Building referred to in clause 3(b) of the deed of mutual covenant. The power to maintain the external parts of the Building 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. I do not think in that sense, the obligation under section 18(1) of the Building Management Ordinance could be read as giving the incorporated owners the power to approve or consent to erection of illegal structure. For the control, management and administration of the building, the section may perhaps be interpreted to mean that the incorporated owners shall take such steps as may be reasonably necessary for the enforcement of the obligations contained in clause 9 of the DMC. Such steps may include taking action with the Building Authority for the purpose of causing the illegal structure to be removed. But this is far from saying that the incorporated owners therefore had control over the illegal structure in the Wheat v E Lacon & Co Ltd sense as to make it an occupier of the illegal structure and therefore owed the duty to inspect and repair so as to ensure its safety.

39. In support of the existence of this duty to inspect, Mr Chiu relied on the fact that the roof was separately owned and it would have been easier and more practical for the incorporated owners to carry out a general survey of the condition of the building including all its external parts by way of a general maintenance exercise. He referred to the two renovations of the Building in 1993 and 1998 in which all canopies were excluded. He submitted that the managers then and later the 3rd Defendant were clearly aware of the illegal canopies on the external parts of the Building but did nothing about it. He argued that in all probabilities paint had been applied to the canopies during these renovations so as to give the Building a uniform colour in outlook and the owners of the illegal canopies were put under the false impression that their canopies had also been renovated by the building management. He submitted that the exercise of the management activity in carrying out the two renovations, coupled with the above inference were sufficient to give rise to a duty on the part of the manager and later the 3rd Defendant to either cause the owner's canopies to be professionally inspected or to inform the owners or occupiers of any defects found or alternatively to issue specific notice to them pointing out that each of them should inspect and repair their canopies as they were not included in the two renovations or to have the canopies removed. He also referred to the notice dated 23 June 1998 issued by the management office of the Building to the owners and occupiers which showed that the management office was aware of the duty to remind the owners of their need to repair but short of telling them that their canopies were not included in the renovation. In short, I am not impressed by these arguments. I fail to see how the duty to inspect could have arisen when the managers then and the incorporated owners since incorporation are not under any duty to inspect as they were neither owners nor occupiers of the Extended Canopy and had no control over it.

40. Accordingly, I conclude that the 3rd Defendant had no duty to repair or to inspect the Extended Canopy. This must necessarily mean that the 3rd Defendant could not be liable to the Plaintiffs whether in negligence or in nuisance.

QUANTUM

41. The normal approach to assessment of damages in respect of a claim under the Fatal Accident Ordinance is that propounded by Seagroatt J in Tsang Mei Ying & Another and Lam Pak Chiu & Another [1990] 2 HKLRD 807. However, the assessment in this case is complicated by the fact that there is no clear evidence as to the income of the deceased at the time of her death, while the evidence of the husband, who is the only person who could have given useful information about the deceased's income and family expenditure, is found to be incredible.

42. The husband said he used to hawk with the deceased, but later he gave up hawking and entered into an illegal bookmaking business with two other partners in 1995. He earned $500 to $1,000 per day for dealing with and handling bets in addition to his profits from the illegal bookmaking business. He operated a karaoke business in China in 1996 which was unsuccessful and he sold the business in 1997. He was convicted of the offence of bookmaking and was imprisoned from December 1998 to April 1999. He had no gainful employment thereafter and was supported by the deceased who gave him $5,000 five or six times a year. He did not work and went to China to see his mother very often.

43. He was unable to explain the large amount of cash movements in his bank accounts. Some of these were of the order of $100,000 to $300,000. Many of these transactions were effected in 2000 after the deceased's death. He said those transactions were loans from his friends who were hawkers in Tung Choi Street or repayments of the loans. He said those loans were interest free loans without repayment schedule. The alleged loans were unsecured loans for substantial amounts and unlikely to have been interest free loans consistent with the means of hawkers. These transactions suggest he was carrying on a business of some kind.

44. He was also unable to explain the very substantial transactions in the deceased bank account. These were in the form of cheque deposits or transfers and in amounts of tens of thousands of dollars up to half a million dollars. These transactions were inconsistent with the deceased's business as an ordinary illegal hawker. The husband was obviously insincere in his evidence. The cash movements in his and the deceased's bank accounts suggest that they were related to his illegal bookmaking business and that the husband, too, contributed to the family expenditure and probably more substantially than the deceased. I do not have to surmise what those transactions were for. Suffice it to say, I find the husband's evidence incredible.

45. The husband had much to hide from the Court. He was not sincere about his income from the illegal bookmaking business. He was concealing his income and contribution to the household expenses so as to paint the picture that the deceased was the sole bread winner of the family and that he was dependent on the deceased. Obviously, he was trying to inflate the income of the deceased and to pretend he was dependent on her so as to capitalise on the accident. I reject his evidence.

The deceased's income

46. The deceased had a husband, a son and a daughter. They lived in a flat which they purchased with a mortgage. The mortgage was fully paid up two months after the death of the deceased. According to the Plaintiffs, the deceased was the breadwinner of the family. She paid the mortgage by depositing money into the husband's bank account. She supported the husband who was unemployed. She also gave pocket money to her mother. On the assumption that the deceased was the sole breadwinner of the family responsible for the household expenditure and for providing pocket money for every member of the family and her mother, Mr Chiu submitted that her monthly income was in the region of $25,000.

47. The deceased was an illegal hawker in Tung Choi Street. She had no fixed stall but squatted in whichever stall that was vacant. According to the 2nd Defendant, he saw the deceased four or five times every month and she sold socks and women's underwear only. This was confirmed by the deceased's son. But the husband, who gave evidence after the son, said that the deceased sold, in addition to socks and underwear, fashion garments as well. He produced receipts of purchase of stock in support of his evidence. The daughter who gave evidence after the husband corroborated the husband's evidence. She explained that she was closer to the deceased and accompanied her at the stall doing her homework so she had a better knowledge of what the deceased sold. The son is older than the daughter. Both of them were in Court while the husband was giving evidence. The son appeared to be a simple and straightforward witness. There is no reason to doubt the reliability of his evidence. The daughter is seemingly more mature than her age. She gave evidence one day after the husband and the son. It is likely that her evidence was an afterthought tailored to meet the evidence of the husband. Her evidence is also inconsistent with the evidence of the 2nd Defendant. I give no weight to her evidence. On an objective view, the deceased was an illegal itinerant hawker. The size of her stall could not permit her to carry on the business of selling fashion garments and to keep a reasonable stock for that purpose. The risk of having the garments confiscated if arrested for hawking without a licence was not worth running. I reject the husband's and the daughter's evidence that the deceased sold fashion garments in addition to socks and underwear.

48. According to the husband's witness statement, the monthly turnover of the deceased stall was $50,000 to $60,000. He departed from that in his evidence and said that the daily turnover was between $1,000 and $2,000. Mr Chiu submitted that this would yield a monthly income of $19,500 on the assumption that the deceased worked 26 days a month and at a gross profit of 50%. This would be sufficient to cover the monthly household expenses of $13,683 and the pocket money she gave to her mother.

49. The husband produced receipts for purchase of socks and garments from China as evidence of the turnover of the deceased's business. These receipts were mainly from three suppliers in Dongguan and Guangzhou. As contrast with the evidence of the daughter, she said that the deceased went to Shenzhen to buy stock and spend only a few hours there. Dongguan and Guangzhou are more than a few hours from Hong Kong. This casts doubts on the authenticity of the receipts or whether they were issued in respect of purchases by the deceased. Besides, these receipts are primitive and lacking in description. Some of these receipts are questionable. The amounts stated on some of the receipts did not match the numerical figures. The distinctive numbers of two of the receipts from the same supplier were just nine apart despite a lapse of fifty-five days. It may well be that there were a number of receipt books used by the supplier. But it certainly needs some coincidence upon coincidence to explain this unusual feature. Mr Chiu submitted that it is too late to challenge the contents of these receipts as the Defendants never challenged their authenticity and under Order 27 rule 4 of the Rules of the High Court they are deemed to have admitted the same. Be that as it may, the weight to be attached to these receipts is a matter for the Court. I do have serious doubts as to the truth of the contents of these receipts or whether they were issued in respect of purchases by the deceased. I give no weight to these receipts.

50. The income as suggested by Mr Chiu is grossly out of line with that according to the statement of another hawker, Cheng Sau Chun who said that she earned only $6,000 a month. Mr Chiu submitted that this statement was admitted in evidence for the purpose of proof of liability and not quantum and there was no opportunity for the witness to be cross examined. I agree that in the circumstances not much weight could be given to her statement on the issue of quantum, but it is nevertheless some evidence that I may take into account.

51. Mr Chiu referred me to the evidence of the 2nd Defendant who was a licensed hawker in Tung Choi Street. He operated two stalls with his family members. The 2nd Defendant earned $14,000 a month. He paid $10,000 rent for the two stalls, $3,300 rent for the Premises which he used as a godown. He also paid $530 for water and electricity. On these figures, Mr Chiu submitted that the 2nd Defendant would have earned $27,000 if he did not have to pay rent and utilities and this would support the earning of the deceased. With respect, I do not think these figures provide a reliable indicator of the income of the deceased. The 2nd Defendant operated on two fixed pitch stalls on a regular basis. He would have earned more goodwill and more customers than an itinerant hawker with no fixed stall. He operated on a much larger scale with a much larger stock which made it necessary to rent the Premises as a godown. He also sold higher-end products. The 2nd Defendant's business is a very much different operation from the deceased business of selling socks and underwear. His income is not useful as a comparable.

52. On the other hand, the husband said he had also hawked for three to four months after the accident. He earned $7,000 to $8,000 a month. I think his evidence in this respect and Cheng Sau Chun's evidence are probably more reliable indicators of the income of the deceased. The deceased was educated up to Form 7. She had hawked in the area for fourteen years. She appeared to be a good and hard working entrepreneur. Her family was well provided for. I would assess her income above that of Cheng Sau Chun's and the husband's after the accident. I assess the deceased's income to be $10,000 per month.

Household expenses

53. I accept Mr Chiu's submission that the household expenses of the family was $13,683 per month. This amount is not challenged by the Defendants and is in all the circumstances fair and reasonable. The share of the expenses for each member of the family was therefore $3420.75.

Dependency of the husband

54. I have set out the background of the husband and his evidence. Prior to the deceased's death, the husband operated an illegal bookmaking business and a karaoke business in China. He was imprisoned in December 1998 for the offence of bookmaking and was released in April 1999. He claimed that since his discharge from prison he did not work and was supported by the deceased who gave him $5,000 five or six times a year. He travelled to China often to see his mother. He only occasionally assisted the deceased. After the deceased's death, he hawked for a few months earning $7,000 to $8,000. He gave up hawking as he did not wish to be reminded of the tragedy and lived on public assistance. For reasons as I have already given, I reject his evidence.

55. The inference to be drawn from the unexplained cash movements in his bank accounts prior to his custody in December 1998 is that he received substantial income from his illegal bookmaking business prior to the deceased's death. Not only was he not dependent on the deceased, he also contributed to the household expenses. The inference to be drawn from the unexplained cash movements in his bank accounts after his release from custody in April 1999 is that he continued to receive income from his illegal bookmaking business. There is no truth in his evidence that he was supported by the deceased after his release in April 1999. He said after the deceased's death, he could not resume hawking as he could not overcome the tragedy of the deceased death. I reject his evidence as being incredible. The husband is an able body. He cannot make himself a dependent by his own choice. I accept that in the end he sold his matrimonial home and moved to smaller accommodation and lived on public assistance. However, as at the time of the death of the deceased, I am satisfied that he was not dependent on the deceased and that he contributed to the household expenses. Accordingly, I dismiss the husband's claim for loss of dependency.

Dependency of the son

56. The son said he was given $1,000 every month as pocket money which he spent with the daughter. I would set aside $300 for the daughter as her share of the pocket money. The deceased also spent about $2,000 per year ($167 per month) on his books and $200 per month for his medical expenses. I consider the monthly sum of $1,070 as his personal expenses reasonable.

57. The son was born in August 1986 and was aged thirteen at the time of the death of the deceased. His share of the household expenses was $3,420.75 and his personal expenses were $1,070 per month. Assuming that both the deceased and the husband contributed equally, his dependency from the deceased was $2,245.40 per month. I expect the deceased and the husband would have increased the pocket money to the son after the mortgage was paid off two months after the accident. I do not agree with Mr Chiu's submission that as much as a quarter of the mortgage payment saved would have been spent on the well being of the son. I think much of that would have been saved or used by the deceased. I consider the deceased and her husband would have granted the son an increase of $100 pocket money per week after the mortgage was paid off two months after the accident. His dependency would to be $2,445.40 with effect from the third month after the accident. He finished his secondary education and took up employment since September 2003 earning $3,000 per month. He is currently unemployed. The deceased herself was educated up to Form 7. She would certain hope to support the son until he reached twenty one years of age when he should have completed his higher education. I consider a multiplier of 7 appropriate. I assess the son's pre-trial dependency to be $124,315.40 ($2,245.40 x 2 + $2,445.40 x 49) and his post-trial dependency to be $80,698.20 ($2,445.40 x 12 x (7 - 4.25). Thus his total loss of dependency is $205,013.60 ($124,315.40 + $80,698.20).

Dependency of the daughter

58. The daughter claimed that the deceased spent $1,000 per year on her books (i.e. $84 per month), $1,000 per year (i.e. $84 per month) on her medical expenses and $350 per month for her school bus during the school term (i.e. $292 per month). I also add her share of pocket money of $300 which she obtained through the son. I consider a monthly sum of $760 as her personal expenses reasonable.

59. The daughter was born in December 1989 and was ten years old at the time of the accident. The deceased would certainly have wished to support her until she reached twenty-one. A multiplier of 8 is appropriate. Her share of the household expenses was $3,420.75 and her personal expenses were $760 per month. Her monthly dependency from the deceased is $2,090.40. I would expect the deceased and the husband would each have increased the pocket money to the daughter by $200 per month after the mortgage was paid off two months after the accident and would further increase it by $200 after another 2 years and 10 months to bring it in line with the son's. I assess her pre-trial dependency to be $119,410.40 ($2,090.40 x 2 + $2,290.40 x 34 + $2,490.40 x 15) and her post-trial dependency to be $112,068.00 ($2,490.40 x 12 x (8 - 4.25)). Her total loss of dependency is therefore $231,478.40 ($119,410.40 + $112,068.00).

Dependency of the mother

60. The mother claimed that the deceased gave her $2,000 to $4,000 per month. This evidence is not seriously challenged. Despite that, on the basis of my finding of the income of the deceased, her own share of the household expenses and her contribution to her children's share of the same and their pocket money, she could only have $2,243.45 left for her own disposal. This would only be sufficient for her own pocket money and for her business trips to Shenzhen. The family spent $3,000 on food and $3,000 on entertainment every month only. A regular monthly payment of $2,000 to $4,000 would be out of line with the income of the deceased and the standard of living the deceased and her family enjoyed. Furthermore, the amount does not make sense as compared with the amount of $6,650 which the family had to pay for the mortgage of the family property.

61. At the time of the accident, the mother was a labourer employed by the Hospital Authority earning over $10,000. She lived in her own accommodation which had been fully paid up. She was much better off financially than the deceased. In her witness statement, the mother said that the deceased gave her $3,000 to $4,000 every month. She departed from that in her evidence in re-examination and said that the deceased gave her $2,000 per month. It is unlikely in the circumstances that the deceased would have regularly given her mother $3,000 to $4,000 a month and the mother in her much stronger financial position would have accepted such substantial payment from the deceased despite her very heavy financial burden. Regular treats by the deceased would probably have been well received by the mother as the deceased's gesture of filial piety.

62. It could not be possible for the deceased to have made the payment unless I revise my assessment of her income. But having regard to the evidence of Cheng Sau Chun and what the husband said he earned for the few months he hawked, I consider my assessment is already very generous. Alternatively, it could well be that the husband actually contributed more than an equal share of the household expenses or that the mother received less, say $1,000 only. But this is not their case. In the circumstances, I am bound to reject the mother's evidence and dismiss her claim for dependency.

Loss of accumulation of wealth

63. The deceased's share of the household expenses was $3,420.75 and she contributed $2,245.40 towards the household expenses and personal expenses of her son and $2,090.40 towards those of her daughter. She was a frugal person. I assume she would spend the balance of $2,243.45 on herself and for her business trips to Shenzhen. Thus for the two months after her death, she would little or nothing left by way of saving. Assuming that she would have spend $1,000 more on herself and $400 more on her children after the mortgage was paid off, she would start to save $1,925 every month ($6,650.00 ÷ 2 - $1,000 - $400). The saving would be reduced by another $200 to $1,725 when the daughter's pocket money would be brought in line with the son's. Thus her pre-trial loss of saving would be $91,325.00 ($1,925.00 x 34 + $1,725.00 x 15).

64. When the son ceases to be dependent on her support 2 years and 9 months after trial, her saving would be increased by $2,445.40 to $4,170.40. In a further year's time, when the daughter ceases to be dependent, her saving would be increased by another $2,490.40 per month to $6,660.80. Her post-trial loss of saving up to eight years after her death would have been $106,969.80 ($1,725 x 12 x (7 - 4.25) + $4,170.40 x 12). Assuming that she would work up to the age of sixty, her saving for the remaining eleven years would be $879,225.60 ($6,660.80 x 12 x 11). As the family becomes more affluent, and as she advances in age, it is expected that she would be spending more generously on herself and on her medical and health expenses. A discount of 20% from her post trial saving would be appropriate. I therefore assess her total post trial loss of saving to be $788,956.32 (($106,969.80 + $879,225.60) x 80%).

65. Including the pre-trial loss of $91,325.00, her total loss of saving would be $880,281.32. I assume the interest she would have earned from her investment of the capital sum and the pocket money she would have received from her children would be adequate to support her living expenses from retirement until her natural death. Accordingly, I award a global sum of $880,000 as her loss of accumulation of wealth.

Funeral expenses

66. The Plaintiffs claimed funeral expenses in the amount of $88,250. The amount is not seriously disputed save that Mr Ling argued that the amount claimed should be set off against donations received from the hawkers in Tung Choi Street as condolence or as contribution to the funeral expenses of the deceased. I do not think this is right. Section 20(2)(b)(i) of the Law Amendment and Reform (Consolidation) Ordinance expressly provides that damages recoverable for the benefit of the estate shall "be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included." Such donations as a gain to the estate of the deceased must be ignored. I think it is revolting to justice that a wrongdoer should be allowed to have the benefit of the generosity of those who are activated by motives of compassion to make donations towards the deceased's family who were brought to distress by the acts of the wrongdoer. If a wrongdoer should have his liability reduced by the generosity of the donors, the whole purpose of the donations is defeated. It would make a mockery of the generosity of the donors if the effect their donations is to fund or to indemnify the wrongdoer in his wrongful act and not to provide relief to those who are in distress. To hold that such donations are deductible from the damages recoverable would discourage people from exercising their generosity to those who are in distress. There is absolutely no merit in Mr Ling's submission. I allow the claim for funeral expenses in full.

Bereavement

67. Bereavement at $150,000 is not disputed.

CONCLUSION

68. For the above reasons I enter judgment on liability against the 2nd Defendant. Judgment on liability has already been entered against the 1st Defendants. I assess the damages to be $1,554,742 which is calculated as follows:

(1)	Pre-trial loss of dependency of the son	$124,315.40
(2)	Pre-trial loss of dependency of the daughter	$119,410.40
(3)	Post-trial loss of dependency of the son	$ 80,698.20
(4)	Post-trial loss of dependency of the daughter	$112,068.00
(5)	Loss of accumulation of wealth $880,000.00
(6)	Bereavement	$150,000.00
(7)	Funeral expenses	$ 88,250.00
		_____________
		$1,554,742.00
		===========

69. Accordingly, there will be judgment for the Plaintiffs for $1,554,742 with interest against both the 1st Defendants and the 2nd Defendant with costs. Interest on pre-trial loss of dependency and funeral expenses shall be awarded at half judgment rate. Interest on the bereavement award shall be awarded at the rate payable on suitor funds in line with the decision of Keith J in Kwan Lai Kuen v National Insurance Co Ltd [1989] 1 HKC 98. The Plaintiffs' claim against the 3rd Defendant shall be dismissed with costs. All costs shall be taxed if not agreed. The Plaintiffs' own costs shall be taxed in accordance with Legal Aid Regulations.