LEUNG TSANG HUNG AND ANOTHER v. THE INCORPORATED OWNERS OF KWOK WING HOUSE

CACV 195/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2004

(ON APPEAL FROM HCPI NO. 595 OF 2002 )

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J U D G M E N T

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Hon Stock JA:

Introduction

1. This case raises an important issue, which is the liability of incorporated owners of a multi-storey building for injuries caused to a user of the highway adjoining the building as a result of the collapse of part of an unauthorised extension to the building erected by and for the exclusive use of the occupier of an individual unit.

2. There is an eleven-storey building at no. 65 Tung Choi Street in Kowloon.  It is called Kwok Wing House.  The building is about 40 years old, the occupation permit having been granted in 1964.  We are concerned in this case with the premises on the eleventh storey; the top floor.  There had at all material times been a canopy, an authorised canopy, extending slightly from the exterior wall at that level, but on a date which has not been ascertained, though clearly many years ago, there was constructed a concrete extension to this canopy; and it is this extension, the unauthorised or extended canopy, that is at the heart of the case.  That extension was built on to the authorised canopy and on to the exterior wall of the building.

3. At about 3 p.m. on 10 August 1999, a concrete fragment from the unauthorised extended part of the canopy fell to the street below hitting the deceased, a female hawker aged 41 years, on the head causing her death.

4. Proceedings were issued by the administrators of the deceased's estate, to which proceedings there were three defendants:

(1) The first defendants were, at the time of the accident, the joint owners of the 11th floor premises.  With them we are not, for present purposes, concerned, judgment having been entered against them in default of defence.

(2) The second defendant was the tenant of the premises and had been the tenant since 1990.

(3) The third defendant is the Incorporated Owners of Kwok Wing House.

This appeal concerns the liability of the third defendant.

5. The cause of action against all defendants was in negligence and nuisance and after a trial before Deputy Judge To in the High Court in November 2003, judgment was delivered against the second defendant in May 2004; but the judge determined that the incorporated owners were liable neither in negligence nor in nuisance and the claim against the incorporated owners was, accordingly, dismissed.  This is an appeal by the plaintiffs against that decision.

6. The judge awarded damages in the sum of $1,554,742 with interest against the first and second defendants and costs.  There is a respondent’s notice by which the third defendant seeks, in the event of a finding adverse to it on the question of liability, a downward variation of that sum.

7. The building was granted an occupation permit in August 1964 for commercial or residential purposes.  The owner of the flat on the 11th floor, Flat A, was, at the time of the accident in question, the first owner of that unit; in other words, an owner who purchased the flat in 1964.  The plan annexed to the assignment to the present owner shows a balcony at the front of the premises, that is to say, at its aspect facing Tung Choi Street; and the plan approved by the Building Authority in July 1964 shows a side view cross-section of the elevation of the building that illustrates how, originally, the 10th and 11th floors were each slightly set back from the frontage of the remainder of the building, the 10th floor set back slightly from the ninth, and the 11th floor slightly from the 10th.

8. The balcony in question was 770 mm, which is about 2.5 feet, wide, that is to say it extended 770m beyond the main outer wall.  There was, over a portion of that balcony, an approved concrete canopy protruding approximately 380 mm, which is to say about 1.3 feet; the effect of which was that the protrusion did not extend over the whole width of the balcony.  At some stage, the date of which has not been established, unauthorised alterations were made to the canopy and the balcony.  The nature and effect of these alterations were best illustrated by two sketches; the first on page 98 of appeal bundle B and the second, a sketch made upon a section of the approved plan as shown on page 134 of appeal bundle B.  The unauthorised alterations were to the following effect:

(1) the canopy was extended by a total distance of about 590 mm, which is to say almost two feet, beyond the authorised part,  200 mm of which traveled beyond the line of the balcony wall; and

(2) an extension was made to the side wall of the building, and aluminium framed windows constructed up from the balcony wall so as to effect an enclosure over which the unauthorised canopy protruded by the 200 mm to which reference is made above.

It was from the corner edge of this 200 mm protrusion that a concrete fragment disengaged itself and fell to the street below, hitting the hawker on the head and causing her death.

9. There were two expert reports considered by the trial judge. His summary of their effect is as follows:

“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.  …  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 understrength 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 [said that] there were signs of possible poor workmanship in constructing the extended canopy as the concrete was porous with numerous voids and 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 ageing 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.”

10. As for a suggestion that the collapse was caused by a latent defect which could not have been discovered by visual inspection, Dr Lam agreed that the cracks were facing the sky and could not been detected by the tenant from below, and that because there was a plaster coating on the extended canopy the cracks would not have been seen by visual inspection from the roof.  As to the effect of Dr Lam's evidence, the judge went on:

“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 out by Dr Lam, an experienced contractor would look for signs of ageing, deformity in shrinkage in the concrete fin and if necessary expose the concrete for more thorough investigation for defect.”

11. The judge found, and it is not disputed, that the tenant of the premises, namely, the second defendant, had exclusive right to occupy the space enclosed by the works to which we have referred; and he held that the tenant was under a common law duty of care to inspect and keep the extended canopy in sufficient repair so as not to constitute a danger to those exercising the right of way in the street below.  He found that the extended canopy had been there for about 35 years and that the second defendant had occupied the premises for nine years immediately prior to the accident.  It could, he concluded, not have been anything other than want of repair, for which the second defendant was responsible, that caused the accident and held that in the circumstances of the case there existed a strong presumption of negligence against him.  He said, at paragraph 9 of the judgment:

“This is precisely the type of 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. … The 2^nd defendant has utterly failed to rebut the presumption.  He is accordingly liable in negligence.”

And in a passage which is of particular significance to issues that we have to address he said also, at paragraph 8 of the judgment :

“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.”

12. The judge held that the duty to maintain and repair was not one that the second defendant was entitled to leave to the incorporated owners, for he was under a common law duty of care to inspect and keep the canopy in good condition so as not to permit it to constitute a danger to his neighbours, who included the public exercising their right of way in the street below.  He accordingly held the second defendant liable in negligence.

13. The judge held also that the second defendant was liable in nuisance; the nuisance being the dangerous state of the extended canopy.  He pointed out that the extended canopy as such was not a nuisance so long as it posed no danger to the public; but that it would become dangerous if allowed to get out of repair.  It must self-evidently have become dangerous before the accident occurred in August 1999; there was nothing to suggest that the collapse was due to the act of a third-party; and that accordingly, since the second defendant had failed to repair the extended canopy so as to prevent it from becoming a nuisance, he was liable.  In relation to the argument about latent defect, an argument advanced by the second defendant, the judge said – in a passage, at paragraph 23, that is relevant to the issue of liability in relation to the third defendant:

“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… Wringe v Cohen … 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.”

History

14. The third defendant was registered as a corporation under the Building Management Ordinance on 12 April 1999, that is to say a mere four months before the accident in question.  The history prior to that date came, albeit somewhat sparsely, from Mr Shek Hon-kei, who was chairman of the management committee.  He owned a number of units in the building.  He had provided a witness statement for the purpose of the proceedings in the court below, but that statement was never ordered to stand as evidence-in-chief and he did not give oral testimony.  However, there was admitted as evidence in the court below a statement that he had provided to the police after the death of Madam Leung, as well as a record of his oral testimony at an inquest into her death in March 2001.

15. He had lived in the building for over ten years, perhaps considerably longer.  He said that when he moved into the building he did not notice any balconies – in other words, when he moved in it would appear that the balconies had already been enclosed, not only on the 11th floor but elsewhere.  He said that prior to incorporation, there was a committee called the management committee; but the work of that management committee appears generally to have been restricted to collecting fees for cleaning and for rubbish disposal. 

16. Maintenance work had been carried out on several occasions prior to the year of the accident.  In 1993, maintenance works were carried out for the entire building, including the interior and exterior and this included external wall maintenance work.  There are minutes of a meeting dated 24 April 1993 attended by representatives of twenty-five of the households in the building and Mr Shek was stated to be chairman.  Those minutes record that:

“As Kwok Wing building had not been properly maintained, there was peeling off and water seepage at various locations of the external wall of the building.  Having been issued with a warning by the Building and Lands Department (the building) had to undergo maintenance as soon as possible.”

There is then recorded an agreement that work be carried out.

17. A quotation was received for “maintenance work of the building structure, the common area, the external wall, light well, staircases and the roof of the building”.  I note that part of the quotation in 1993 was for:

“Removing any loosened, broken or damaged concrete (slab) of the reinforced concrete structures of the pillars, beams, ceilings and parapet walls in public areas, such as the external walls,… roof and corridors of the building.

…

Removing all loosened or damaged plaster from all external and internal public walls and have the same restored to their original appearance.”

The total fee quoted was $250,920.

When asked whether the canopy on the 11th floor was also included in the work to be done Mr Shek answered:

“I don't think so…. at that time we did not include the so-called canopy, because the canopy was the concern of individual person[s]”.

18. Maintenance works were carried out regularly, he told the police.  It was an issue discussed at every meeting, and landlords would be assisted with maintenance.  A meeting was held in June 1998 and a circular issued to all occupants and owners stating: “The government stipulates that all buildings are required to be checked and maintained regularly.  Therefore your attention is drawn to the safety and maintenance of your flat.”  At that meeting, Mr Shek reminded landlords of the building to conduct regular checks on the structure of the building and to carry out maintenance on necessary items.  “According to the record of the meeting, the landlord of the [11th floor] told the meeting there was leakage on the outer wall of his premises.  The meeting confirmed that maintenance works had to be carried out at once on the outer wall of the premises concerned.”

19. The work in 1998 was executed upon the external wall from the ninth floor level upwards and that work was carried out, he said, because water was leaking from some pipes; that is to say, from the wall itself.  The work carried out was external wall plastering and repair of the external wall, and scaffolding was erected.  It was he, Mr Shek, who issued the instructions for the work to be carried out and that was because he was at the time chairman of the management committee.  He was asked:

“Q:  Why was this maintenance project carried out by the owners Corporation of the building?

A:    Because the location involved was a part of the external wall.”

20. He was asked whether in mid-1998 when this maintenance work was carried out to the external wall, any maintenance was effected to the canopies of the building and he answered:

“A:  No, because the canopies were the concerns of every individual owner.

Q:    Why do you say so?

A:    Because most of them were additional structures put up by them themselves.  I mean many canopies were like that.

Q:    You mean they were individual owners’…

A:    Responsibility, yes.”

21. He said that from time to time individual owners might engage construction workers or masons to see if anything required repair but that inspection work for the building as a whole was not periodically conducted:

“… because the Owners’ Corporation had not yet been formed at that time." (p D28)

22. He was asked specifically whether the owners had carried out any inspection at regular intervals to see if there were any illegal or dangerous structures, but that particular question was not in the event answered because the testimony drifted in other directions.  There were three units on each floor and each owner, he said, took care of his own business.

The Deed of Mutual Covenant

23. The Deed of Mutual Covenant (“DMC”) for this building is dated October 1964.  Amongst the clauses of the DMC the following are germane to this case:

“3. Each of the parties hereto shall pay his due proportion of :-

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(b) the cost of keeping in good and tenantable repair and condition, the foundation, the side walks, main walls, supports, beams, gutters, fences, chimneys and all external parts of the said building.

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(e) …  the cost of rebuilding or reinstatement of the said building or any part thereof in case of destruction or damage… .

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7. Each of the parties hereto shall not make any structural alteration to the said building or to the portion of the said building of which he is entitled to the exclusive use occupation and enjoyment or cut or damage any of the main walls support joists floors or ceilings therein… .

8. Each party hereto covenants with the others as follows:- 

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(d) not to place anything in or to occupy obstruct or cause any obstruction of any part of the said premises or of the said building intended for common use and not to use such parts of the said building otherwise than for access to and from his portion.

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9. For the purpose of more efficiently maintaining the said building in a proper manner the parties hereto shall employ an agent to operate the lift water pumps and to light and clean the entrance staircases and passages and all common places and to collect and dispose of garbage and to watch and generally take care of the said building for the common benefit of the parties hereto and to repair paint or decorate the structure and exterior of the said building or any part or parts thereof which are used by the parties hereto in common and to repair and maintain all sewers drains cables pipes wires or services in the said building and all apparatus equipment and convenience thereof in common use.

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11.       From time to time there shall be meetings of the parties hereto to appoint members of the management committee… .

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14. If any of the parties hereto shall fail to fulfil his share of the rebuilding of or repairs or amendments to the said building if such rebuilding of or repairs or amendments to the said building should become necessary … within two months from the date of any notice from the other or others of them requiring the same to be done or paid then the party serving such notice may at his own absolute discretion proceed to carry out such rebuilding or repairs or amendments and the defaulting party shall on demand repay to the other party or parties his share of the costs… .”

The pleaded case

24. The case against the third defendant was pleaded in negligence and nuisance.  It was asserted that “on the part of the external wall to which the canopy attached was a common part of the building over which the third defendant has management and/or control”; and, as to negligence, that the third defendant failed to ensure that the canopy, whilst it remained on the external wall outside of the premises, was inspected regularly and maintained in good and safe condition, and in “failing to take step or any adequate step to ensure that the canopy was removed from the external wall outside the premises when it knew or ought to have known that it was an unauthorised structure and/or it had fallen into a dangerous state of repair”.  It was further asserted that the canopy constituted a nuisance in that “the exercise of a public right of way was thereby rendered dangerous” and that by reason of the matters previously pleaded the third defendant (as well as the other defendants) caused or “continued to adopt” the nuisance.

The third defendant: the judge’s findings

25. As for the case against the third defendant, the judge's reasoning went broadly as follows:

(1) There was no duty upon incorporated owners to maintain an illegal structure attached to the common part of a building, a structure erected by and for the exclusive use of its owner.  See Wong Lai Kai v Incorporated Owners of Lok Fu Building, Yuen Long [2000] 3 HKC 633.  With this proposition, no-one upon this appeal takes issue.

(2) Although the extended canopy merged with the common parts of the building and was attached to the common parts, it was not erected by the incorporated owners.  They had never approved its erection nor would they, under the DMC, have had the power so to approve.  The canopy was erected for the exclusive enjoyment, occupation and use of the occupier of the premises.  None of the co-owners had the right to use the canopy.  The mere fact that the illegal structure was attached to the common parts would not have the effect of converting it into a common part.

(3) Neither the DMC nor obligations imposed by statute could be read as conferring upon the incorporated owners the power to approve or consent to the erection of an illegal structure, nor a power to maintain an illegal structure attached to the building when the structure was one in respect of which the incorporated owners had no right of possession, occupation or control. 

(4) As to the obligations imposed upon incorporated owners by section 18(1) of the Building Management Ordinance – to which we shall later turn – he said that:

“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. …..  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.  Accordingly, I conclude that the third defendant had no duty to repair or inspect the extended canopy.  This must necessarily mean that the third defendant could not be liable to the plaintiffs whether in negligence or in nuisance.”

See paragraphs 38 to 40, judgment.

The appeal

26. The essence of the appeal is the assertion that the judge erred in his conclusion that the third defendant did not have sufficient control over the illegal structure such as to render it liable for such nuisance as ensued from its state of disrepair.  It is argued that he incorrectly required as a precondition to liability in negligence and nuisance, that there be established use, occupation or enjoyment by the third defendant of the extended canopy.  It is accepted by Ms Remedios on behalf of the appellants that the third defendant did not create the nuisance.  But she asserts that nonetheless the third defendant must be taken to have known that there was appended to a common part of the building, namely, the external wall, a structure which was, in the event of prolonged neglect to maintain, liable to become dangerous to passers-by below; and that although the third defendant was not under a duty to maintain the extension, since it was an illegal structure, nevertheless it had the power and the duty to require and, if necessary effect, its removal.  That very power and duty, arises, she says, from the DMC and the statutory provisions of the Building Management Ordinance, Cap 344, (“the Ordinance”) which gave the third defendant a sufficient degree of control to render it liable in public nuisance in the event of injury to a passer-by on the street below, resulting from the dangerous condition of the structure.

27. It is accepted by Mr Barretto SC on behalf of the respondent that the external wall and the approved canopy are properly categorized as common parts of the building.  But he does not accept that the third defendant had, in relation to the extended unauthorised canopy, control in the Wheat v Lacon sense; for which reason, he says, no liability attaches to the third defendant.  What has to be established, he contends, is ‘occupational control’; that is to say, control arising from presence in and use of the premises in question – in this case, the extended canopy.  He says that ownership of the canopy extension did not rest with the third defendant; neither did occupation; and that the purpose of the canopy was to benefit the owner or tenant of the premises on the 11th floor and not the third defendant: all these, he says, are classic indicia of Wheat v Lacon control.  What is here sought, he contends, is an extension of the present law that sits ill with any test of fairness, justice or reasonableness, factors to which the policy of the law looks when determining whether to impose a duty of care.  He argues also that the appellant has moved its case from that canvassed before the judge below, and that it should not be permitted to do so.

The Building Management Ordinance

28. Since the case for the appellant depends upon a reading not only of the DMC but also of the Ordinance, those sections said to be relevant to the issue of control must here be highlighted:

(1) It seems clear enough that the external wall and the approved canopy each constitutes a common part within the meaning of that Ordinance; for “common parts” is defined by section 2 as including the parts specified in the First Schedule which, in turn, includes external walls.  The judge found as a fact, (para. 37 judgment), that ‘the extended canopy was attached to the common parts of the building’.

(2) Section 18(1) states that :

“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.”

        (3) Section 34H provides that:

“(1) Where a person who owns any part of a building, has the right to exclusive possession of any part of the building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant.”

The appellant does not in this case rely on this section.

        (4) Section 34I states that:

“(1) No person may –

(a) convert any part of the common parts of the building to his own use unless such conversion is approved by resolution of the owners’ committee (if any)

….

(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

(5) Section 40 enables a member of the management committee, on reasonable notice to the owner or occupier of a flat, to enter a flat at any reasonable time for the purpose of inspecting, repairing, maintaining or renewing any common parts of the flat or "any other property in the flat the condition of which does or may affect adversely the common parts or other owners, or for abating any hazard or nuisance” which may adversely affect the common parts or other owners.

Public nuisance and control

29. There is placed upon those who occupy premises adjoining a public highway a particular responsibility in relation to structures which become a danger to passers-by.  If they become a danger to passers-by, they constitute a nuisance.  Whether the liability for damage that results from such a nuisance, in this case from an injury caused by the collapse of such a structure which has fallen into disrepair, is absolute or depends upon knowledge, actual or constructive, has been the subject of some debate but is a debate that does not affect the result in this case.

30. This special responsibility was stated thus by Denning L.J, as he then was, in Mint v Good [1951] 1 KB 517 at p. 526:

“The law of England has always taken particular care to protect those who use a highway.  It puts on the occupier of adjoining premises a special responsibility for the structures which he keeps beside the highway.  So long as those structures are safe, all well and good; but if they fall into disrepair, so as to be a potential danger to passers-by, then they are a nuisance, and, what is more, a public nuisance; and the occupier is liable to anyone using the highway who is injured by reason of the disrepair.  It is no answer for him to say that he and his servants took reasonable care; for, even if he has employed a competent independent contractor to repair the structure, and has every reason for supposing it to be safe, the occupier is still liable if the independent contractor did the work badly: see Tarry v Ashton (1876) 1 QBD 314.

The occupier's duty to passers-by is to see that the structure is as safe as reasonable care can make it; a duty which is as high as the duty which an occupier owes to people who pay to come on to his premises.  He is not liable for latent defects, which could not be discovered by reasonable care on the part of anyone, nor for acts of trespassers of which he neither knew, nor ought to have known: see Barker v Herbert [1911] 2 KB 633,645; but he is liable when structures fall into dangerous disrepair, because there must be some fault on the part of someone or other for that to happen; and he is responsible for it to persons using the highway, even though he is not actually at fault himself.  That principle was laid down in this court in Wringe v Cohen[[1940] 1 KB 233], where it is to be noted that the principle is confined to ‘premises on a highway,’ and is, I think, clearly correct in regard to the responsibility of an occupier to passers-by.”

31. There can be no question in the present case but that the extended canopy was permitted to fall into disrepair and that it was as a result of that disrepair that the unfortunate lady who was conducting her hawkers trade on the street below was struck and killed.  That a nuisance had been created by the presence of the extended canopy adjoining the highway and its disrepair is clear.  At issue, however, was who was liable.  That more than one party might be liable was not contested.  The question comes down to that of control, for the general principle upon which the plaintiffs relied, but in respect of which they failed in the court below, was that stated in Wheat v Lacon & Co. Ltd [1966] AC 552, 578:

“… wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” … In order to be an “occupier” it is not necessary for a person to have entire control of the premises.  He need not have exclusive occupation.  Suffice it that he has some degree of control.  He may share the control with others.  Two or more may be “occupiers”.  And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control.”

32. Mr Barretto asserted that control in the sense intended by Wheat v Lacon was occupational control.  This he drew from Wheat v Lacon itself at p. 589 where Lord Pearson said:

“The foundation of occupier's liability is occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises.”

Occupational control, according to this argument, means either actual possession, as in the case of a tenant; or ownership of the structure that has been allowed to fall into disrepair; or use or enjoyment or intended use or enjoyment of the structure; or control arising from an undertaking to maintain the structure in question, such as an express or implied covenant by a landlord to repair.

33. The question or issue in each case is that of sufficiency of control such as to render it reasonable to impose upon the person in whom there reposes that control responsibility for the consequences of his failure to exercise it.  The point has been most recently explained in L E Jones (Insurance Brokers) Ltd v Portsmouth City Council [2003] 1 WLR 427, at p. 431:

“…the key to responsibility in the law of nuisance is the degree of control, in law and/or in fact, exercised by the putative defendant over the thing or activity which has brought about the nuisance.

11. … the basis for the liability of an occupier for a nuisance on his land is not his occupation as such.  Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance.  He has sufficient control over the hazard which constitutes a nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove a hazard.  Similarly, control lies at the heart of the liability of a non-occupying owner for liability when the nuisance is attributable to a breach by him of the covenants of the lease, or a failure to exercise his right to enter and carry out repairs…. .  The court [in Mint v Good] considered the line of cases including Wilchick v Marks and Silverstone [1934] 2 KB 56 and Heap v Ind Coope & Allsopp Ltd [1940] 2 KB 476, which support the proposition that a non occupying owner who has the right to enter premises to carry out repairs may be liable in nuisance to the third party who was injured by reason of the owner’s failure to carry out the repairs, even if the owner has not covenanted to carry them out.  In the course of his judgment, Denning LJ explained the basis of this line of authority.  He said, at p 527:

‘I cannot think that the liability of the owner to passers-by depends on the precise terms of the tenancy agreement between the owner and the tenant, that is to say, on whether he has expressly reserved a right to enter or not.  It depends on the degree of control exercised by the owner, in law or in fact, for the purposes of repairs….’ (Emphasis added).

…

13. … I do not accept the submission … that in Russell’s case the highway authority was liable because it was in occupation of the highway. … it is clear that liability was based on the fact that it had sufficient control over the trees to make it liable.  In most cases, occupation will give the occupier sufficient control to found liability in nuisance.  But Russell's case is not authority for the proposition that a person cannot be liable in nuisance unless he is in occupation of the land or has some legal interest in it.”

34. It is correct, as the judge found, that the extended canopy was not erected by or on behalf of the co-owners of the building.  It follows that neither they nor their incorporated body created the nuisance.  That does not of itself absolve them from liability, for although an owner of land is not liable for a nuisance created upon it by another against his will ‘he may become liable if he permits it to continue and fails to abate it within a reasonable time after it has come, or ought to have come, to his knowledge’: Barker v Herbert [1911] 2 KB 633, at p. 645, endorsed in Sedleigh-Denfield above at pp. 905-906.  The law in this regard is summarized in ‘Encyclopedia of Highway Law and Practice’ Vol 1 para. 2-226 :

“An occupier is not liable for the nuisance to highway users arising from his premises unless he created the nuisance, or, knowing of its existence, or, being in a position that, with reasonable care, he ought to have known of its existence, he has done nothing to remedy it.”

35. It goes too far to say that the obligation upon the co-owners was to maintain in a good state of repair something that was an illegal structure: See Chan Yan Nam v Hui Ka Ming & others [2003] 1 HKC 341, 349-350 and in particular Suffiad J in Wong Sau Kam and Yeung Kong v Shum Yuk Fong and others HCPI 798 OF 1998, 11 October 2001, unreported:

“…the common part of the building to which all the owners are under a duty to maintain can only refer to those parts of the common areas which are not unauthorised structures or unauthorised installations.  Put differently, how can it be right that all the owners of the building will be under a duty to maintain an illegal structure erected by one of the owners (or a tenant) but which illegal structure is attached to some common part of the building.  Even if all the other owners are under duty to enforce the deed of mutual covenant by taking action to have the illegal structure removed, I do not think that they have a duty, without more, to maintain that illegal structure.”

36. It is in the last sentence of that passage that lies the core problem or issue in this particular case, namely the right, if and in so far as it existed, to require the illegal structure to be removed, for the argument would run that there was pursuant to the terms of the DMC such a power or right, and had it been exercised this accident would not have occurred.  There is a certain force in the argument, and one that has, I confess, attracted me.  The argument would run as follows: It was part of the compact expressed in the DMC that none of the co-owners was to make any structural alteration to the building and yet some did just that, by building on to the external walls so as to enclose their balconies.  Putting aside the effect of the statutory duty imposed by section 18 of the Ordinance because – whatever might be its impact on the issue of control in such a case – it only came into operation in respect of this corporation upon its incorporation, which was a mere four months before the accident, there was nonetheless a right in law arising from the covenant itself to require those who had constructed the illegal extensions to remove them.

37. There is a theoretical attraction to the argument, the more so in cases of structures which overhang a public street, but its application would, I have concluded, on the facts of this case, have harsh and unreasonable pragmatic consequences, and occupational control must, so it seems to me, embrace a significant pragmatic component.  It would mean that whenever in this territory there was erected upon a multi-storey building a structure that was not authorized, no matter that it was, for example, constructed at the time the bui1ding was erected and is of a solid appearance, not inherently a dangerous structure, as was the structure in Chu Wo Heung& another v Hui Lai Wa [2002]3 HKLRD 209, no matter that it was constructed by and for the exclusive use of one of the owners, the mere right in the DMC to require its removal, a right enforceable only by action in the courts at the expense of the corporation, would render the corporation liable for injuries to third parties occasioned by the fact that the owner or tenant permitted that structure to fall into disrepair, no matter that the disrepair was unapparent.  I respectfully agree with the judgment of Yuen JA, and for the reasons that there she provides, that this is not control of the type envisaged by Wheat v Lacon.  It is not sufficient control to render it reasonable to make the corporation liable for such a mishap as in this case.

Hon Yuen JA:

38. I have had the advantage of reading in draft the judgment of Stock JA and I gratefully adopt his narrative of the facts.  In my view, the 3rd Defendant (“the I.O.”) is not liable to the Plaintiff in this case.

39. Before I discuss the issues, I would first set out my understanding, from the authorities referred to us, of the state of the law so far as liability for premises causing injury is concerned.

The Law

40. As I understand it, the law may be summarized as follows:

(A) if someone (whether on certain premises or on the highway adjoining those premises) is injured by reason of those premises being in want of repair, then the occupier in control of the premises would be liable, and he would be liable

- even though he did not have actual knowledge of the want of repair;

- even though there was nothing to cause him to have constructive knowledge of the want of repair;

- even though he had instructed a competent independent contractor to effect repairs, because the duty is his, and the independent contractor would simply be his delegate when performing that duty;

(Tarry v Ashton [1876] 1 Q.B.D.314, at p.320; Wringe v Cohen pp.233, 239-240, 248)

(B) however if someone is injured by reason of the premises suffering from a latent defect, or because of a trespasser’s act, then the occupier in control would only be liable

- if he had actual knowledge of the defect or act causing danger, or

- if (in light of relevant circumstances, such as time, ability to examine, etc.) he should have known of the defect or act

(Wringe v Cohen pp. 233, 238, 242-243; Mint v Good pp.525-526, Goldman v Hargrave [1967] 1 A.C. 645, at p.660,

Sedleigh-Denfield v O’Callaghan pp.904-5).

41. As I see it, the underlying principle is one of control by virtue of occupation of the premises causing the injury.  As was held in Wringe v Cohen, the liability of an occupier of premises to persons on the adjoining highway injured by an act or omission on the premises was founded upon his being in occupation of the premises.  Explaining Tarry v Ashton, Atkinson J delivering the judgment of the court held (at p.239, see also p.240):

“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”.  (Emphasis added).

42. However the mere fact that a defendant was an occupier does not by itself make him liable.  As was said by Lord Atkin in Sedleigh-Denfield v O’Callaghan (p.897), an occupier is not an insurer.  There may at any one time be more than one occupier (Wheat v Lacon p.578) and the mere fact that a person is an occupier of premises does not mean that he is necessarily in breach of his duty to a person injured on the premises.

43. Whether an occupier is in breach of duty depends on the content and measure (or degree) of his control over the premises.  The following passages in Wheat v Lacon are instructive.  Lord Denning held (at p.578C-F):

“Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’: and the ‘occupier’ is under a duty to his ‘visitor’ to use reasonable care.  In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises.  He need not have exclusive occupation.  Suffice it that he has some degree of control.  He may share the control with others.  Two or more may be ‘occupiers’.  And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, depending on his degree of control.  If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a contribution from the other”.  (Emphasis added).

Lord Morris of Borth-Y-Gest put it in the following way (at pp.585 E-F):

“I think it follows that both Lacons [the owner of the premises and who had the right to effect repairs] and the Richardsons [their licensees] owed Mr Wheat and his party a duty.  The duty was the common duty of care.  The measure and the content of that duty were not, however, necessarily the same in the case of Lacons and in the case of the Richardsons”.  (Emphasis added).

(and at p.586D):

“It may, therefore, often be that the extent of the particular control which is exercised within the sphere of joint occupation will become a pointer as to the nature and extent of the duty which reasonably devolves upon a particular occupier”.

Lord Pearce also said (at p.587B-C):

“The safety of premises may depend on the acts or omissions of more than one person, each of whom may have a different right to cause or continue the state of affairs which creates the danger and on each a duty of care may lie.  But where separate persons are each under a duty of care the acts or omissions which would constitute a breach of that duty may vary very greatly.  That which would be negligent in one may well be free from blame in the other”.  (Emphasis added).  

44. Thus there may at any one time be more than one occupier of the same premises, and where that is so, the ‘measure and content’ of each occupier’s duty to the injured person depends on his control over the premises (or even, as in Wheat v Lacon, the part of the premises where injury occurred).  In that case the House of Lords held that the owner was entitled to leave the safety of the private part of the house to the licensee and his wife (pp.585-7).

45. It is also clear that when the courts examine whether a person has control over premises, they do not look simply at the position in law.  Thus, a landlord would be liable if in practice he has control over premises, whether he has in his lease an express obligation to repair (as in Wringe v Cohen, pp.234-235) or an implied obligation (as in Mint v Good pp.521-522, 527), or simply had reserved to himself the right to effect repairs (as in Heap v Ind Coope and Allsopp [1940] 2 K.B. 476 at pp.483-484).  In Mint v Good, the court considered (at pp.527-528) who would normally be expected to do structural repairs to premises.  Would it be a tenant who might not have the means to do so even if he is obliged to do so under the lease?  Or would it be the landlord who would have more of an interest in maintaining the structural integrity of his property and would have the means to do so?

46. As Lord Pearson held in Wheat v Lacon, “the foundation of occupier’s liability is occupational control, i.e. control associated with and arising from presence in and use of or activity in the premises” (emphasis added, pp. 589F-p.590A), citing with approval that part of the judgment in Duncan v Cammell Laird [1943] 2 All E.R. 621 holding that “the importance of control is that it affords the opportunity to ... know the premises, and to become aware of dangers, whether concealed or not, and to remedy them, or at least to warn ...” .

47. The authorities discussed in the above paragraphs refer to liability of occupiers (or perhaps more accurately, liability of persons in control of premises), to persons actually on the premises or on a highway adjoining the premises.  But it is in essence the manifestation of the duty of care which the court considers a person in control of premises owes to his neighbour (in the sense of the word used by Lord Atkin in Donoghue v Stevenson [1932] A.C. 562).

Application to the facts

48. Applying the above principles to the present case, I can see no ground to hold the IO liable to the deceased.  The concrete which fell and killed the deceased was from the unauthorised extension to the canopy - premises which were clearly within the occupational control of the other defendants.  Direct attachment to a common part does not make an unauthorised extension a common part: Chan Yan Nam v Hui Ka Ming, a binding decision of this court (Rogers VP, Le Pichon JA and Jackson J). 

49. Can the IO be said to be in control simply because it had the right under the DMC to sue the other defendants for a mandatory injunction requiring them to remove the unauthorised extension?  In my view, that is not the control by virtue of occupation that is discussed in the authorities.  The IO: (1) did not enjoy the use of the extended canopy, (2) had no means of knowing how the extension was constructed, and (3) did not in the ordinary course have access to it.  To hold the IO liable would in effect be to make it the insurer of every person who may be injured as a result of an individual owner’s failure to maintain parts of a building which that owner and only he alone enjoys, knows about and controls. 

BMO

50. As for s.18 of the BMO, that section confers on the IO a duty to do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant for the control, management and administration of the building.  That should be read in light of the express purposes of the Ordinance which are:

“to facilitate the incorporation of owners of flats in buildings or groups of buildings, to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith”. 

51. The IO’s rights and duties under the BMO to enforce a deed of mutual covenant against an offending owner are rights and duties vis-a-vis the parties to a deed which sets out their mutual agreement on how to manage a building which they commonly own.  I do not see how it involves the imposition of a duty on the IO owed to the general public over and above that owed to the owners to manage the building for their mutual benefit.  For my part I think it would take much clearer legislation than the BMO to make the IO liable in these circumstances.   

Even if IO were an occupier

52. Further and in any event, even if the IO were to be regarded as some sort of “occupier” of the unauthorised canopy at the same time as the other defendants, then in the same way that in Wheat v Lacon Lacon (the owner) was entitled to leave the safety of the private part of the premises to Mrs Richardson (the licensee’s wife) who took in paying guests, the IO was in my view entitled to leave the safety of the canopy to the other defendants from whose premises it extended. 

Foreseeability not enough without duty at law

53. Finally even if it were to be assumed that it was factually foreseeable that injury to a person on the highway may result from the IO’s omission to sue the other defendants for a mandatory injunction to remove the unauthorised extension, that cannot be translated into a duty of care in law by the IO towards the public.  

54. In his famous speech in Donoghue v Stevenson, Lord Atkin said (at p.580):

“The law takes no cognizance of carelessness in the abstract.  It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.  In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.  What, then, are the circumstances which give rise to this duty to take care?  In the daily contacts of social and business life human beings are thrown into, or place themselves, in an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in relation to each other”.

55. If I may be forgiven for suggesting a simple example, it may be factually foreseeable that if an able-bodied man does not stop a bigger child from assaulting a smaller child, the latter will be injured, but in the absence of any duty in law to the smaller child that the man has to control the assailant, he cannot be held liable for the victim’s injury simply because he has stood by when he could have stopped the assault.  I would therefore respectfully disagree with the obiter remarks of this court (Mayo VP, Cheung JA and Chu J) in Chu Wo Heung v Hui Lai Wa (paras. 19-21) a case where it must be emphasized the facts were markedly different – not only was the offending awning attached to a common part (para. 18), but there was also evidence that the management company had actually given oral permission for it to be erected (para. 12).

56. For the reasons above, I would dismiss the appeal with an order nisi that the Appellant bear the Respondent’s costs.

Hon Suffiad J:

57. I have had the privilege of reading the judgments of both Stock JA and Yuen JA in draft and am in agreement with both their judgments which have fully and completely covered all the points in this appeal.

58. For those reasons given by them, I too would dismiss this appeal.

Hon Stock JA:

59. Accordingly, the appeal is dismissed.  There will be an order nisi that the respondent’s costs of the appeal be paid by the appellants.  The appellant’s own costs are to be taxed in accordance with the Legal Aid Regulations.