TSE LAI YIN LILY AND OTHERS v. THE INCORPORATED OWNERS OF ALBERT HOUSE AND OTHERS

Date of Judgment: 23 December 1999

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J U D G M E N T

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1. Albert House is a block of building in Aberdeen comprising of both residential and commercial units built in 1973. It runs lengthwise along Chengtu Road on its west side with Sai On Street on its north side, a rear lane on the east side and a side lane on its south side. The commercial units of Albert House comprise of shops on the Ground Floor, all along Chengtu Road as well as the 1st, 2nd and 3rd Floors, which were used for a restaurant at the material time. The residential units are situated in the middle part of Albert House along Chengtu Road from the 4th Floor upwards. A flat roof exists over the 4th Floor from the Sai On Street side of the building, running all the way up to the residential tower in the middle of this block. The entrance to the residential block is situated in the middle of the building along Chengtu Road while the entrance to the restaurant premises on the 1st, 2nd and 3rd Floors of Albert House is to be found on the Sai On Street side of the building.

2. When Albert House was built in 1973, it was built with a concrete canopy on the 1st Floor, a cantilever structure projecting out from the external wall of Albert House, running along the entire length of the Sai On Street and Chengtu Road side of the building.

3. On 1 August 1994, at about 11 a.m., the whole of the concrete canopy along the Sai On Street side of the building collapsed and fell onto the pavement below. As a result of this collapse, the 1st to the 6th and the 8th plaintiffs herein sustained injuries and the deceased, whose estate is represented by the 7th plaintiff herein, was killed.

4. The 1st defendant is the incorporated owners of Albert House while the 2nd defendant was, at the time of the canopy collapse, the management company contracted with the task of managing Albert House. The 4th defendant was the owner of the New Best Restaurant which carried on a restaurant business on the 1st, 2nd and 3rd Floors of Albert House at the time of the accident, and the 3rd defendant, the licence holder of the New Best Restaurant and the Managing Director of the 4th defendant. The 5th defendant owns the restaurant Floors including the 1st Floor and as such was the landlord of the 4th defendant at the material time. The 6th defendant was the contractor carrying out major renovations and demolition works for the 4th defendant on the 1st Floor of Albert House at the time of the canopy collapse.

5. Interlocutory judgment has already been entered against the 6th defendant. Since the issue at this trial before me concerns only liability, I need not concern myself with the 6th defendant any further in this judgment when dealing with liability.

6. At this trial, on the issue of liability, only the 1st, 2nd and 5th defendants saw fit to take an active part in these proceedings. The 3rd and 4th defendants did not appear either by Counsel or in person, and took no active part in these proceedings.

Background

7. Some background knowledge relating to Albert House is important to fully understand the issues in dispute in this case.

8. Albert House was developed and built by the Aberdeen Development Corporation Limited ("ADC Ltd.") in 1973. The occupation permit for Albert House was issued on 30 August 1973. The first unit sold, being Flat D on the 6th Floor, was sold by ADC Ltd. to one Cheng Ching Miu, and a Deed of Covenant was entered between them on 25 September 1973 ("the DMC"). Under the DMC, ADC Ltd. retained exclusive use, occupation and enjoyment of the remaining unsold units including the 1st Floor of Albert House. These other remaining units were gradually sold off by ADC Ltd. On 24 April 1974, the 1st Floor (amongst other floors/units) was assigned by ADC Ltd. to the 5th defendant. Thereafter the 5th defendant leased the 1st Floor and other floors which it had acquired to the operators of the Sheung Hei Restaurant.

9. In November 1984, the operators of the Sheung Hei Restaurant assigned its entire restaurant business over to the 4th defendant and a tenancy agreement was entered into between the 4th defendant as tenant and the 5th defendant as landlord of (inter alia) the 1st Floor of Albert House for a term of 10 years from 1 December 1984 to 30 November 1994.

10. Sometime between October 1984 and December 1984, when renovation work was being carried out to prepare for the opening of the New Best Restaurant at Albert House, a fish tank was constructed, partly standing on the concrete canopy over Sai On Street at the 1st Floor and partly standing inside the 1st Floor premises of Albert House. At about the same time, a doorway was constructed next to this fish tank, giving access from the 1st Floor of Albert House onto the concrete canopy over Sai On Street. Hitherto the construction of such a doorway, there was no ready or direct access onto this canopy.

11. Initially, under the DMC, it was ADC Ltd. which was responsible for the management duties in respect of Albert House. The incorporated owners of Albert House was duly registered on 19 April 1978. Thereafter the management duties of Albert House was taken over by a Kong Chi Management Company, appointed by the 1st defendant. As from 1 January 1991, the 2nd defendant was appointed to take over the management duties of Albert House by the 1st defendant.

12. The facts above, forming the background to this case, are not disputed by any of the parties and are common grounds between them.

13. Central to the ultimate issue which I have to decide as regards the liability of these defendants or any of them are two matters in dispute between the parties in this hearing. The first is the cause of the collapse of this canopy, and the second is whether or not the collapsed canopy formed part of the common area of Albert House. I propose to deal with these two matters first.

Cause of the collapse

14. Immediately after the collapse of the canopy over Sai On Street, the Buildings Department carried out a full investigation as to the collapse. It came out with a final report on the matter in October 1994. This final report was agreed into evidence by all parties at the trial. This final report carried the following findings :-

(a) Building plans for Albert House, approved between January 1971 and August 1973, indicated a concrete canopy projecting at the 1st Floor level over both Sai On Street and Chengtu Road. The projection over Sai On Street was indicated to be 5 feet wide but only 2 feet wide over Chengtu Road. The canopy was to be constructed with a 3/4 inch cement rendering with two layers of asphalt to be applied to the top surface.

(b) Examination by the Buildings Department of the collapsed canopy showed deviations from the approved structural plans. Firstly, the reinforcing steel bars were irregularly spaced; and secondly, and more importantly, the reinforcing steel bars, instead of being spaced half inch from the top surface of the canopy, were set more towards the middle and bottom part of the canopy slab.

(c) The condition of these reinforcing steel bars of the collapsed canopy had rusted at the interface between the canopy slab and the 1st Floor beam. Corrosion had penetrated through the whole of the diameter of almost all the reinforcing steel bars such that no fresh steel was visible at the breakpoint of the bars. However, the rusting or corrosion did not extend along the length of these reinforcing steel bars but was only at the interface of the canopy slab with the 1st Floor beam. In contrast, examination of the canopy along the Chengtu Road side of Albert House which did not collapse, showed no rusting of the reinforcing steel bars there.

(d) The collapsed canopy was found to have two concrete toppings varying from between 35 mm and 40 mm thick, but no asphalt layers as indicated in the approved plans. On top of this were two layers of additional screeding separated by mosaic tiles. Each layer of screeding varied between 25 mm to 30 mm in thickness. At the junction with the external wall of the building, the screeding had built up even further to a raised section of 250 mm at its thickest. In the area around the fish tank, the screeding had also been increased in thickness to form a base of approximately 40 mm to 50 mm. Once more in contrast to this, no evidence of any extra screeding was found along the canopy over Chengtu Road which did not collapse.

(e) Testing carried out by the Buildings Department as to the strength of this concrete used in respect of both the collapsed part of the canopy along Sai On Street and that part of the canopy along Chengtu Road which did not collapse showed that the concrete used in the construction of the canopies to be satisfactory.

(f) The fish tank construction was first indicated to the Buildings Ordinance Office (now called the Buildings Department) on plans submitted to it on behalf of the 4th defendant on 28 March 1985. Those proposals were considered structurally unsuitable in general and approval was not given. Further referrals in June and July 1988 again indicated the fish tank construction. A visual inspection carried out by the Buildings Ordinance Office confirmed the existence of a fish tank partially on the canopy of the 1st Floor of Albert House measuring 4.4 m long x 1.9 m high x 0.8 m wide. Objections were therefore raised by the Buildings Ordinance Office. On 21 November 1988, the 4th defendant's authorised person and structural engineer submitted calculations to the Buildings Ordinance Office to justify the adequacy of the canopy to support the fish tank. Such calculations were based on the assumption that the reinforcing steel bars for the canopy over Sai On Street was 3/8th inch in diameter at 41/2 inches spacing. Based on such assumption, the calculations were considered acceptable by the Buildings Ordinance Office. However, as it turned out, the reinforcing steel bars of the collapsed canopy was found to be spaced 7 inches apart. Notwithstanding that the calculations were found acceptable at that time, the Buildings Ordinance Office replied to the Urban Council on 4 January 1989 indicating that the fish tank, inter alia, was an unauthorised structure contravening the Buildings Ordinance and asking the Urban Council to draw the 4th defendant's attention to the contents of the standard "LU Appendix 2", which in effect tells the applicant that an unauthorised building work has been carried out without approval or consent of the Buildings authorities and that the application for a licence (in this case a restaurant licence by the 4th defendant) and the unauthorised building works are separate issues and that action may be taken under the Buildings Ordinance to remove the unauthorised works. It goes on to say that although there is no evidence to reject the application (for a licence), it should by no means be taken that the unauthorised work is legal.

(g) An advertising sign for "New Best Restaurant" was positioned at the east end of the collapsed canopy. The sign was about one storey high. The metal support framing showed that parts of this sign would have been secured to the external wall of Albert House so that the entire weight of it would not have been solely on the canopy. It was assumed that one-third of the weight of this sign would be on the canopy for the purpose of the final report.

(h) The Buildings Department carried out a structural evaluation of the canopy slab based on the original approved plans as well as on the "as built" condition of the canopy. It was found that the original design for the collapsed canopy had a satisfactory safety factor and so too the original design with the addition of the fish tank and advertising sign. However, in its "as built" condition, the addition of the extra screeding alone resulted in an overstressed safety factor and, a fortiori, even more so with the addition of the fish tank and advertising sign. On the other hand, such evaluation of the Chengtu side of the canopy resulted in a satisfactory safety factor both in its original design and also its "as built" condition.

(i) It was also revealed in such investigation by the Buildings Department that no general maintenance, repair or inspection of the canopy had been carried out by the management company of Albert House.

(j) From these findings, the Buildings Department came to the conclusion that firstly, the additional screeding, the fish tank and the doorway giving access to the collapsed canopy had resulted in that canopy being used for purposes for which it was not designed since the canopy was constructed on the basis that it was to be non-load-bearing. Secondly, the deviation from the approved plans in the canopy's construction had led to the reinforcing steel bars being stressed beyond their designed limit and the top surface of the Sai On Street canopy slab being subjected to high tensile stress resulting in cracking in the concrete at the point where it joins the main building. Thirdly, the additional weight from the screeding and the fish tank had increased the loading on the collapsed canopy and had further aggravated the cracking at the interface. Fourthly, this had resulted in rain water and perhaps sea water from the fish tank, as well as dirt finding its way into the cracks and corroding the reinforcing steel bars at the interface as evidenced by the brown stains visible from the concrete between the collapsed canopy slab and that part of the building from which the canopy slab fell off.

15. As already stated, the final report of the Buildings Department as to the collapse of the canopy was agreed into evidence by all parties and there was no challenge to its contents. I accept all the findings contained in the final report with perhaps just one minor reservation. In the final report, it was suggested that the eastern end of the Sai On Street canopy probably collapsed first (that is the end which had the advertising sign for the New Best Restaurant as opposed to the west end of it which had the fish tank constructions). This suggestion is contrary to the opinion of Mr Holmes, a structural engineer called by the plaintiffs as an expert witness whose evidence I will come to shortly. There is also direct evidence from a witness Miss Chiu Wing Han that she actually saw the fish tank side of the canopy collapsing first, followed very shortly by the collapse of that part of the canopy on which the advertising sign stood. Should it become material to any issue in this case, I accept the evidence of Miss Chiu as to the stages in which the canopy collapsed.

16. There is also evidence before me, again unchallenged, that for about one hour immediately before the canopy collapsed, workmen of the 6th defendant were hammering away with large hammers at the fish tank on the 1st Floor canopy over Sai On Street - probably in an attempt to demolish the fish tank. I accept that evidence.

17. The plaintiffs called a structural engineer, Mr David Holmes, to give expert evidence as to the cause of the collapse. The report prepared by Mr Holmes was based mainly upon the findings and investigations carried out by the Buildings Department as contained in their final report of October 1994 to which I had already referred.

18. Mr Holmes expressed the following opinions :-

(a) The additional screeding were likely applied to make up the level of the canopy slab to form a base for the fish tank or to match the floor finish of the restaurant.

(b) It was unlikely that screeds were applied to seal structural cracks in the canopy slab, for if that was the purpose of the additional screeds, it would have been more likely to have been applied simply to the cracked area and not to the entire canopy slab. Furthermore, since the additional screeds were not reinforced, they were themselves subject to cracking when under stress.

(c) When a load is applied to any cantilevered slab such as this canopy, the highest tensile stresses are imposed on the upper surface. Cracking will therefore start on the top surface of this canopy slab and work its way down until it reaches the reinforcing steel bars. Such cracks will therefore provide a clear path for water and air to penetrate the concrete and corrode the steel.

(d) In so far as the advertising sign is concerned, no allowance had been made in the design of the canopy for the load applied to the canopy by the sign. The load for the sign would have contributed to the over-stress of the canopy but that construction would have been a minor addition to the fish tank, the additional screeding and the misplaced steel reinforcement.

19. Mr Holmes came to the following conclusions as to the reason for the collapse of the canopy :-

(a) The displaced reinforcing steel bars significantly reduced the load carrying capacity of the canopy.

(b) No allowance had been made in the original design of the canopy for the extra layers of screed, the fish tank and the advertisement sign, and these imposed a considerable additional load on the canopy structure.

(c) However, the canopy theoretically would still have been able to stand with this additional load in its "as built" condition as is shown by the fact that the collapsed canopy did remain in place for a number of years in the overloaded condition.

(d) In that overloaded condition, stress cracks along the top surface of the canopy at its interface with the building resulted in the severe corrosion of the steel reinforcement bars of the canopy. This corrosion of the reinforcing steel bars would have further and significantly reduced the strength of the canopy. The corrosion was so severe that the canopy had been in a state of near collapse for some time.

(e) The trigger for the collapse was the demolition of the fish tank where the hammering of the walls of the fish tank caused vibration in the slab and although these vibrations were not large, they were sufficient to propagate failure bearing in mind the extremely unsound state of the canopy.

20. It is a question of fact in each case as to what causes an accident. This case is no exception. I must decide from the facts of this case the cause of the collapse of this canopy.

21. Mr Holmes, when giving evidence in the witness box, did say that the misplacement of the reinforcing steel bars was fundamental to the collapse while the corrosion of the reinforcing steel bars was the largest contributing factor. There was also evidence that such misplacement of the reinforcing steel bars could not have been detected short of dismantling the canopy. In so far as the defendants have seized upon this piece of evidence to suggest that the misplacement of the steel bars was a latent defect which could not have been discoverable or known by them as being the cause of the collapse, I find myself unable to agree with such a view. Lord Wright said in the case of Yorkshire Dale Steam Ship Company v. Minister of War Transport [1942] AC 691 at 706 :

"Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician, would understand it."

22. With these words in mind, I come now to deal with what I find to be the causes of the collapse of this canopy.

23. In so far as the misplacement of the reinforcing steel bars is concerned, Mr Holmes did say in his evidence that the misplacement is fundamental to the collapse. No doubt when he said this, he said it as a structural engineer which he is. He also explained what he meant by fundamental. His explanation was that because the reinforcing steel bars were much lower than as designed, this increased the tensile stress on the top surface of the canopy slab at the interface with the building (i.e. the very line at which the canopy broke off from the building when it collapsed) when the additional loads were placed on the canopy thus giving rise to cracks along that interface at the top surface which in turn led to water and air penetrating those cracks down into and corroding the reinforcing steel bars.

24. Whilst such misplacement may be a structural defect, or even a defect in construction, on the evidence before me, I am unable to say that the misplacement of the steel bars was a cause of the collapse. There are two reasons for this. Firstly, the misplacement of the steel bars by itself is too remote as the cause of the collapse; and secondly, it has been shown by the canopy on the Chengtu Road side of the building (which also had the same misplacement defect) that that canopy did not collapse nor was there any evidence of any corrosion of the steel bars along that canopy.

25. The man in the street would undoubtedly say that the cause of the collapse was due to what was done to and/or omitted or neglected to have been done to the collapsed canopy which resulted in the almost total corrosion of the reinforcing steel bars therein at the point of its interface with the building. Having said that, one cannot wholly disregard the fact of the misplacement of the reinforcing steel bars but that it has to be viewed in the total context of what was subsequently done or omitted to be done to the Sai On Street canopy.

26. I accept Mr Holmes' evidence that the almost total corrosion of the reinforcing steel bars at its breakpoint was the largest contributing factor to the collapse of the canopy. I further find that this corrosion of the steel reinforcing bars was brought about by the overloading of the canopy coupled with the neglect or want of proper maintenance and repair to the very same canopy. Moreover, the extent of that corrosion as stated in the final report of the Buildings Department shows that the cracks have been present for a long time and so too the want of proper maintenance and repair.

27. The overloading of the canopy was in the form of the extra screeding, the fish tank construction and the advertising sign board - probably in that order. The overloading had caused cracks on the top surface of the canopy at its interface, thus allowing water and air to penetrate and corrode the steel reinforcing bars. However, the overloading per se would not necessarily have resulted in the severe corrosion to the steel bars had there been proper and timely repair or maintenance to such cracks. It is for this reason, therefore, that I find that the overloading coupled with the want of proper repair or maintenance which led to the long term corrosion of the steel reinforcements and ultimately resulted in the collapse of the canopy to be the cause of the collapse.

28. I also accept the expert's evidence that the "trigger" for the collapse was the hammering on the fish tank immediately prior to the collapse. This in no way detracts from my findings above as to the causes of the collapse. For whilst the hammering and/or demolition may have sparked the collapse, this collapse would not have come about but for the corrosion of the steel bars resulting from the overloading coupled with the want of repair and maintenance of the collapsed canopy. It is in this context that one should view the statement of Mr Holmes that the canopy had been in a near state of collapse for some time.

Was canopy part of common area?

29. The term "common parts" is defined in s.2 of the Building Management Ordinance to mean :

"(a) The whole of a building except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) Unless so specified or designed, those parts specified in the First Schedule."

30. The First Schedule to the Building Management Ordinance makes reference to, inter alia, "external walls" but makes no reference to "canopy".

31. The DMC was adduced into evidence by agreement of all parties. In the substantive part of the DMC, there is no mention of the canopy but on the 1st Floor plan annexed to the DMC, the canopy is shown on that plan and designated by the word "canopy" thereon.

32. It was submitted on behalf of the 1st defendant (which submission was adopted by the 2nd defendant) that as a matter of law the canopy is to be regarded as part of the 1st Floor of Albert House. The 1st defendant relied upon English cases of Hope Brothers Limited v. Cowan [1913] 2 Ch 312 and Sturge v. Hackett [1962] 1 WLR 1257 for the principle formulated in those judgments that the demise of a floor included both sides of the external walls. Based on these authorities, the 1st defendant submits that, the canopy, which should be regarded as part of the external wall of the 1st Floor of Albert House, is to be regarded as part of the 1st Floor.

33. I cannot agree with this submission. Since "common parts" in relation to a building is defined in Hong Kong under the Building Management Ordinance, what is or is not a common part of the building is to be determined by applying that definition. Moreover, the fact that the First Schedule to the Building Management Ordinance makes specific reference to external walls, that in itself clearly indicates that the principle enunciated in the two cases relied on by the 1st defendant has little or even no application in Hong Kong for that purpose.

34. In this respect, my attention was drawn to three Hong Kong decisions in which, it is submitted by the 1st defendant, the English cases of Hope Brothers Limited v. Coward and Sturge v. Hackett has been applied in Hong Kong. The three Hong Kong cases are -

(a) Koo Cheuk Son v. Tang Wai Chun [1963] HKLR 891;

(b) The Incorporated Owners of Wah Ha Factory Building v. Wah Ha Realty Co. Ltd [1979] HKLR 242;

(c) Wealthy China Trading Ltd v. Huie Man Kit [1999] 3 HKC 832.

35. Koo Cheuk Son was decided before the Building Management Ordinance or its predecessor the Multi-Storey Buildings (Owners Incorporated) Ordinance was enacted in Hong Kong.

36. The decision in The Incorporated Owners of Wah Ha Factory Building did not make any reference to the Building Management Ordinance and therefore is doubtful for that reason.

37. In Wealthy China Trading Limited, while Cheung J in that case did refer to Hope Brothers Limited v. Cowan and also Sturge v. Hackett, it is clear from a reading of the whole judgment in that case that Cheung J based his decision on the specification and designation in the Assignment of the area of the subject property (as provided for in the definition of "common part" by the Building Management Ordinance) and not on the principle enunciated in the two English cases.

38. For these reasons, I maintain my view that Hope Brothers Limited v. Cowan and Sturge v. Hackett can have no application in Hong Kong for the purpose submitted by the 1st defendant in the present case.

39. Secondly, it was submitted by both the 1st and 2nd defendants that because "canopy" was not mentioned either in the DMC or in the First Schedule to the Building Management Ordinance, this effectively shows that the canopy was never intended to be and could not be part of the common area of Albert House.

40. The flaw in this argument is that Part (a) of the definition of "common parts" under the Building Management Ordinance is worded such that the common part of any building can only be determined by a process of elimination - eliminating all those parts of the building specified or designated in an instrument registered in the Land Registry as being for the exclusive use, enjoyment or occupation by an owner. Moreover, Part (b) of the definition must be read in conjunction with Part (a) and nothing in the Ordinance suggests that those parts listed in the First Schedule of the Building Management Ordinance is an exhaustive list of the common parts of a building. Indeed, it cannot be an exhaustive list, otherwise Part (a) becomes unnecessary. Therefore the fact that "canopy" is not mentioned in the DMC or in the First Schedule does not, in my view, determine the issue.

41. The better view, having regard to the definition in s.2 of the Building Management Ordinance, is to look at what was assigned by ADC Ltd. to the 5th defendant when the 5th defendant purchased, inter alia, the 1st Floor of Albert House from ADC Ltd. That assignment, dated 24 April 1974, and registered in the Land Office by Memorial No.1091688 on 15 June 1974 "assigned ... unto the purchaser all that the right to the exclusive use occupation and enjoyment of ... the whole of 1st, 2nd and 3rd Floors of Albert House ... as shown and coloured pink on the plans annexed hereto together with all other rights and benefits of the vendor under and by virtue of the said Deed of Covenant so far as they relate to the premises hereby assigned..."

42. From the 1st Floor plan annexed to the assignment, it can be seen that the whole of the interior of the 1st Floor premises of Albert House (excepting the staircases and lifts of the residential block) is coloured pink. The canopy which is also shown and designated on this plan was not coloured pink. Neither is there any other evidence before me to show that there exists any other instrument registered in the Land Registry whereby this canopy of Albert House has been specified or designated as being for the exclusive use, occupation or enjoyment of any owner.

43. A further submission by the 2nd defendant is to the effect that if ADC Ltd. did not assign the canopy to the 5th defendant together with the interior of the 1st Floor, then ADC Ltd. has remained the owner of the canopy with the exclusive use, occupation and enjoyment of it.

44. Once more, I cannot accept this submission for two reasons. Firstly, looking at it from the point of view of the Building Management Ordinance, and keeping in mind the definition of "common parts" under that Ordinance, all parts of Albert House, including the canopy, starts off as being common parts. I have not seen in evidence any instruments registered in the Land Registry which specifies or designate the canopy as being for the exclusive use, occupation or enjoyment of any owner, so as to remove the canopy as being a common part of the building.

45. Secondly, looked at from a common sense point of view, to accept such a submission effectively means that having assigned the interior of the 1st Floor of Albert House to the 5th defendant, ADC Ltd., a property developer, has since April 1974 remained the owner having exclusive use, occupation or enjoyment of only the canopy on the 1st Floor of Albert House. A canopy which, when the 1st Floor was assigned by ADC Ltd. to the 5th defendant in April 1974, most likely did not have any direct or ready means of access, and which cannot be effectively made use of in any particular way apart from providing some shelter to persons on the pavement below, since under the Building Ordinance, a canopy is not designed for load bearing purposes.

46. For these reasons, I am satisfied from all the evidence before me, in particular the DMC and the assignment by ADC Ltd. to the 5th defendant which includes the assignment of the 1st Floor of Albert House, bearing in mind the definition of "common parts" in the Building Management Ordinance, that the canopy constructed around the 1st Floor of Albert House was at all times a common part of Albert House.

47. Leave was sought by the defendants and granted by me to make further representation by way of written submission in respect of the decision of Deputy Judge To in the case of Uniland Investment Enterprises v. The Incorporated Owners of Sea View Estate and another (High Court Civil Action No.20920 of 1998). That decision was handed down on 5 October 1999, after final submission in the present cases had finished, but before judgment was given.

48. The 1st defendant sought to rely on the ruling by Deputy Judge To that the owner, occupier or user of a particular part of a multi-storey building has the exclusive obligation to maintain that part of the building, notwithstanding any provisions to the contrary in the deed of mutual covenant. It was contended that once there is an owner, occupier or user having the obligation to maintain, no other person would have the same obligation. Therefore, the 1st defendant says, since the evidence in the present case show that only the 3rd and 4th defendants had exclusive occupation and use of the canopy, they alone have the responsibility to maintain the canopy.

49. I, however, do not share the view of the 1st defendant. Firstly, Uniland Investment Enterprises was decided on very different facts than the facts in the present case and is clearly distinguishable on facts. In Uniland Investment Enterprises it is common grounds between the parties thereto that the plaintiff in that case is the owner of the outer wall of Sea View Estate and as such has the full and exclusive right and privilege to hold, use, occupy and enjoy the outer wall. It was also common ground in Uniland's case that the outer wall do not form part of the common area of the building, i.e. Sea View Estate.

50. It was upon those facts pertaining to Uniland's case that Deputy Judge To decided that Section 34H of the Building Management Ordinance applied and that since one of the terms of the deed of mutual covenant, which provided for the management company to maintain the outer wall, was inconsistent with section 34H, that term was void as being inconsistent with Part VIA of the Ordinance as provided for in section 34C(2).

51. Coming back to our present case, having found the canopy to be a part of the common area of Albert House and therefore owned by the 1st defendant, the fact that the 3rd and 4th defendants had the de facto use of the canopy - and that only because their unilateral usurpation of its use was not met with any objection from either the 1st defendant, nor from the 2nd defendant after their appointment as managers in 1991 - does not give to the 3rd and 4th defendants any exclusive right either to the use, occupation or possession of the canopy. It is clear from the wordings of section 34H that it has application only where a party has such exclusive right to any part of the building. In the absence of any such exclusive right on the part of the 3rd and 4th defendants, section 34H can have no application to the present case.

52. The 2nd defendant also sought to rely on the decision in Uniland's case. It was argued by the 2nd defendant that even if the plaintiff's primary contention is accepted by the court that the canopy is a part of the external wall of Albert House, the effect of the decision in Uniland's case casts the burden of repairing and maintaining the canopy solely on the 5th defendant, being the owner of the Restaurant Unit. The reason for this is that clause (r) of the Third Schedule to the DMC gives to the owner of the Restaurant Unit the exclusive right to use the external wall for displaying signs.

53. Clause (r) of the Third Schedule of the DMC reads :-

"(r) The owner of the Restaurant Unit shall have the following rights :-

.....

(iii) The exclusive right to display or affix signs (whether illuminated or otherwise) ... on the exterior of the building within the confines of the Restaurant Unit."

54. This right, albeit exclusive, as provided for by Clause (r)(iii) of the Third Schedule of the DMC, is limited only to displaying or affixing signs to the exterior of the Restaurant Unit. No right is given to use the exterior wall for any other purpose. Nor does it confer any rights of ownership of the exterior wall (see Wealthy China Trading Ltd v. Huie Man Kit [1999] 3 HKC 832 at 837). I take the view that such a clause as this cannot and does not give the owner of the Restaurant Unit any exclusive right to use occupy or enjoy the exterior wall of the Restaurant Unit - an ingredient essential to the decision in Uniland's case which was based on section 34H(1) of the Building Management Ordinance.

55. Moreover, when I made the finding that the canopy was a common part of Albert House, that finding was arrived at on the basis that the canopy had not been shown to have been assigned to any specific owner by any instrument registered at the Land Registry. That finding was not arrived at on the basis that the canopy formed part of the external wall.

56. Accordingly, I do not accept the submission of the 2nd defendant on this point.

57. For these reasons, the decision of Deputy Judge To in the Uniland case cannot, in my view, assist any of the defendants in the present case. Nor does the decision in the Uniland case alter in the least the earlier conclusion that I have come to, namely that the canopy on the 1st floor of Albert House is a common part of the building.

Fish tank, advertising sign and screeding

58. I have already referred to the evidence of the Buildings Department contained in its final report of October 1994 in respect of the lack of approval having been given by that Department for the construction of the fish tank on the canopy above Sai On Street, and in particular the reference to the LU Appendix 2. In his evidence on this aspect, the plaintiffs' expert Mr Holmes elaborated by saying that since the fish tank was an unauthorized structure, the proper course would have been for the fish tank to have been demolished and then rebuilt with the necessary approval. This was not done and the fish tank remained an unauthorized structure right up to the date of its collapse.

59. There was also evidence in the form of statements given by Tam Chung Fu, a manager of the New Best Restaurant to the Police and to the Buildings Department that the fish tank was constructed partly on the canopy sometime between October and December 1984. In his statement, he gave details of the fish tank, stating that 1 foot of the fish tank was inside the 1st Floor premises while 2 feet of the fish tank was outside resting on the canopy. Moreover, there were three layers to the fish tank which measured 2 feet for the upper layer, 2 feet 3 inches the middle layer and 3 feet the lower layer. The bottom layer was made of concrete while the upper and middle layers were constructed of glass.

60. Photographs produced by the plaintiffs of the fish tank (both before and after the collapse of the canopy) showed that before the collapse of the canopy, the fish tank could clearly be seen from street level as protruding out from the main wall and partly resting on the canopy itself.

61. In his statement to the Police, Tam Chung Fu also made mention that the water in the fish tank would be changed twice a week when a lorry carrying seawater would come to the New Best Restaurant. The water in the fish tank would then be drained onto the canopy where it would be channelled to a drainage pipe at the rear alley end of the canopy. After the water was drained from the tank, the tank would then be filled with fresh seawater from the lorry.

62. This evidence was to a large extent confirmed by the evidence given by Madam Tsui Ho who operated a newspaper stall along the Sai On Street pavement, just by the entrance to the New Best Restaurant. The only significant difference between her evidence and what is said by Tam Chung Fu in his statement relating to the changing of the seawater in the fish tank is that according to Madam Tsui, when the water from the fish tank is drained off, a lot of that water would splash down from the edge of the canopy onto Sai On Street and the pavement, making a great noise and wetting her newspaper stall such that whenever the water of the fish tank was changed, she would have to cover her newspapers and magazines with plastic sheets, or else they would get wet.

63. Madam Tsui also gave evidence that when the water of the fish tank were changed in this way, on occasions, the caretaker of Albert House who was the same caretaker employed on the day of the accident, would also watch the water being changed in that manner as described by her. I accept the evidence of Madam Tsui.

64. From all the evidence and taking into account the findings of the Buildings Department as contained in their final report of October 1994, I make the following findings of facts in relation to the fish tank, the screeding and the advertising sign :-

(a) The fish tank was constructed sometime between October and December 1984 at the instructions of the 3rd and 4th defendants for use in the 4th defendant's restaurant business and was partly on the canopy.

(b) The fish tank was an unauthorized structure in that the necessary approval by the Buildings Department had never been obtained and remained an unauthorized structure throughout.

(c) The fish tank was a large and conspicuous structure easily visible from Sai On Street when it can be seen to be partly resting on the canopy.

(d) Seawater was regularly drained from the fish tank onto the canopy on Sai On Street, overflowing onto Sai On Street below. This changing of the water of the fish tank was carried out in full view of passers-by along Sai On Street and on occasions actually witnessed by the caretaker of Albert House during the time when the 2nd defendant was the manager of Albert House.

65. From all the circumstances and the evidence and from the facts that I have found in this case, I can and do infer that the doorway giving access to the canopy from the 1st Floor of the New Best Restaurant and the advertising sign bearing the name "New Best Restaurant" were also erected upon the instructions of the 3rd and 4th defendants and at about the same time as the fish tank was constructed, i.e. between October and December 1984, immediately prior to the commencement of business by the New Best Restaurant.

66. I am also able to infer that the additional screeding on the canopy over Sai On Street was made at the instructions of the 3rd and 4th defendants, more likely than not for the purpose of raising the level of the canopy to match the floor level of the 1st Floor in order to facilitate construction of the fish tank to be partly standing on the 1st Floor premises and partly on the canopy.

Water dripping from the Sai On Street canopy and/or seeping down the external wall

67. The plaintiffs called evidence from a number of witnesses who are frequent users of the pavement over which the Sai On Street canopy stood. These witnesses were Lily Tse Lai Yin, Ng Pak Mui, Tsui Ho, Tsui Siu Nui, Chan Min Wah, Mak Mei Fung, Yu Kin Man and Shek Kwok Keung. Their evidence spanned the period from 1985 up till the collapse of the canopy. All of them gave evidence of occasions when they experienced water dripping down to the pavement from various parts of the Sai On Street canopy.

68. Lily Tse Lai Yin had been a frequent user of this pavement since 1982. Up to about 1990, she cannot recall any water dripping. According to her, from 1990 to 1992, there was occasional dripping. From 1993 to 1994, these drippings became more frequent. The drippings were not fixed at any one spot of the canopy. It dripped sometimes from one spot and sometimes from another.

69. Ng Pak Miu said that between 1985 and May 1994, she would occasionally experience water dripping at the entrance to the New Best Restaurant. She denied in cross-examination that there was any air-conditioners outside the New Best Restaurant.

70. Tsui Ho operates a newspaper stall by the side of the entrance to the New Best Restaurant since about 1980. She said that normally there was water dripping down from the canopy as well as water running down the external wall of the building such that she had to constantly use a sun umbrella for protection from the drippings and also used plastic sheets to cover her newspaper and magazines. Her sister, Tsui Sai Nui, also gave evidence that she attended her sister's newspaper stall daily and that for some seven or eight years prior to the collapse, she had seen water dripping from the canopy in the vicinity of the newspaper stall. She also gave evidence that the wall of the building behind the newspaper stall was at times wet with water running down. This had occurred some two to three years before the collapse. According to her, many customers complained about such drippings.

71. Chan Min Wah's evidence was that she bought a newspaper from that very newspaper stall under the Sai On Street canopy on the morning of the collapse and she noticed a continual seepage of water on the wall behind the newspaper stall. The seepage of water was not as serious as a continuous flow of water, but drop by drop running down the wall.

72. Mak Mei Fung gave evidence that for two years prior to the collapse she frequented Sai On Street practically daily and noticed water dripping from this canopy over Sai On Street. At times it was a stream of water coming down, other times drippings. The water dripped down sometimes from the pillar of the corner shop, sometimes from the canopy itself and at other times, from the edge of the canopy. During the month before the collapse, water had dripped on her for some ten odd times from this canopy.

73. Yu Kin Man's evidence was to the effect that he walked along this pavement in Sai On Street almost two to three times a week and each time he saw water dripping with his own eyes. Occasionally, the water dripped from the underside of the hoarding along the canopy and sometimes the drippings came from the edge of the canopy. This took place for about half a year to one year before the collapse. He also noticed water seeping down the wall of the building along this pavement.

74. Shek Kwok Keung gave evidence relating mainly to water spilling down from the Chengtu Road side of the canopy and is of marginal value to the collapse of the Sai On Street canopy. So, too, the evidence of Lee Kam Wing who actually saw for himself water pooled along the entire length of the surface of the Chengtu Road canopy on one occasion in or around April 1994.

75. In so far as this aspect of the case is concerned, I take into account also the findings of the Buildings Department as contained in its final report of October 1994. I have also taken into consideration the photographs taken by the Buildings Department after the collapse of the canopy which show clear signs of water stains ranging from yellow to brown to dark colour (no doubt mixed with the rusting from the corroded steel reinforcements) on the interface directly below the cracked section.

76. The evidence of dripping given by the aforesaid witnesses were never seriously challenged by any of the defendants. Indeed, in cross-examination, Counsel for the 1st defendant had suggested to one of the witnesses called by the plaintiffs that his instruction from his client was that although there was water dripping from the canopy of Albert House along Sai On Street, it only took place very occasionally. Needless to say, that witness disagreed with the suggestion that the dripping was only very occasionally.

77. From the totality of the evidence relating to water dripping from the canopy and seeping down the external wall of the building, I make the following findings of fact :-

(a) Since about 1990 (and probably even earlier than that) water had been dripping from various parts of the underside of the canopy along Sai On Street as well as seeping down along the external wall on that side of Albert House.

(b) This dripping and seepage of the water continued and gradually worsened up until the time of the collapse of the canopy in Sai On Street.

(c) This dripping and seepage of water more likely than not resulted from water on the surface of the canopy (wherever or whatever its source may have been, be it rain water or water from the fish tank when discharged onto the top surface of the canopy, or from any other source) finding its way into the cracks along the interface between the concrete canopy and the external wall on the Sai On Street side of Albert House.

The poor drainage

78. Much evidence had been adduced by the plaintiffs to show that the drainage system in Albert House was in poor condition, in particular the drains in the vicinity of the Chengtu Road canopy, thus often resulting in the pooling of water along the Chengtu Road canopy due to the blocked drains. The purpose of this evidence is undoubtedly to show that it can be inferred that the pooling of water on the Chengtu Road canopy would, from time to time, back-up onto the Sai On Street canopy as well, thereby infiltrating or seeping into the cracks along the interface, resulting in the corrosion to the steel reinforcement bars of the Sai On Street canopy.

79. I take the view, however, that for the purpose of deciding liability in this case, it is not necessary for me to make any specific findings as to the source of the water which seeped into the cracks along the Sai On Street canopy at its interface with the external wall. It may have been rain water or water from the fish tank when discharged, or from any other source. Nor is it material that any of the defendants knew of the source of the water as long as they knew or ought to have known of the probability of water seeping into such cracks.

80. Furthermore, it would be quite immaterial to show that the 2nd defendant failed in its duties to properly maintain the drainage system of Albert House, thus resulting in the blocked drains, since I have found that the cause of the collapse to be the overloading of the canopy as well as the lack of proper maintenance and repair to it.

81. I therefore do not propose to go through the evidence called in this respect nor to make any specific findings from it.

The 1st defendant

82. I turn now to deal with the position of the 1st defendant vis-à-vis the collapse of this canopy. Having found this canopy to be a common part of Albert House, the 1st defendant, being the incorporated owners thereof, is in law effectively the owner of the canopy. As such the 1st defendant had the necessary control of the canopy so as to be saddled with the legal responsibility of seeing that the canopy is maintained and kept in proper repair. This duty is owed by the 1st defendant to any persons who may be injured as a result of the failure to maintain or to keep the canopy in proper repair.

83. Since the canopy overhangs the pavement of Sai On Street before its collapse, it must have been within the 1st defendant's reasonable contemplation that if the canopy collapses due to want of repair, pedestrians using the pavement below could well suffer injuries thereby. Therefore, to all the plaintiffs in this case who were injured by the collapse of the canopy as well as to the deceased, the 1st defendant owed such duty to keep the canopy in proper repair.

84. The primary defence of the 1st defendant was that the canopy did not form a common part of Albert House and that the 1st defendant was under no duty to maintain it. That being the case, no evidence was put before me of any steps having been taken by the 1st defendant to maintain or to keep the canopy in good repair. Moreover, there is no evidence before me of any kind of inspection carried out by the 1st defendant, or by anyone appointed by it, in any form whatsoever in respect of this canopy before its collapse.

85. Evidence was given by the present secretary of the 1st defendant, Mr Wong Chi Kuen. His evidence was to the effect that after the collapse of the canopy, during casual conversations which he had with some of the committee members of the 1st defendant, everyone of them expressed the view that the canopy was the responsibility of the New Best Restaurant and not that of the 1st defendant. This evidence, even if accepted as true, cannot in my view absolve the 1st defendant from their duty as owner to keep the canopy in proper repair. The views of these individual committee members of the 1st defendant can be no more than just that. It cannot and does not change the legal position in which the 1st defendant stands.

86. I have little doubt that this situation was allowed to come about because the 1st defendant, its committee being made up from the residents of Albert House, had little interest in concerning itself with a canopy situated on the restaurant side of the building, and in respect of which little use could be made of the canopy by the residents. Therefore, when, at the end of 1984 or early 1985, the restaurant operators decided to usurp the canopy for their own use, they met with little or no opposition from the 1st defendant. However, no specific arrangements was entered into and unfortunately for the 1st defendant, the Restaurant operators, whilst they used the canopy, and even facilitated that use by opening a doorway giving access to the canopy itself, did nothing to keep this canopy in proper repair, not even when cracks appeared on the top surface at its interface.

87. Whilst this may explain how the situation developed and came about, it does not excuse the 1st defendant from carrying out its duties to maintain the canopy. The 1st defendant have permitted the situation to come about through sheer neglect and apathy on their part. They will have to bear the consequences.

88. The second line of defence relied on by the 1st defendant is that having appointed the 2nd defendant as building managers, they, the 1st defendant had fully and properly discharged its duties to third parties and that whatever breaches there may be on the part of the 2nd defendant, it should not be placed at the 1st defendant's door.

89. I am unable to accept this submission by the 1st defendant. As the owner of the canopy, the 1st defendant owes a strict duty to the plaintiffs and the deceased (Wringe v Cohen [1940] 1 KB 229). Whilst the 1st defendant may delegate that duty to another (in this case the 2nd defendant), if that duty is not fulfilled by the 2nd defendant, then the 1st defendant's duty is not discharged by such delegation (Tarry v Ashton [1876] 1 QBD 314). In that sense, the 1st defendant's duty is non-delegable. I take the view that in such circumstances, the 1st defendant's duty is "a duty not merely to take care, but a duty to provide that care is taken." (per Langton J in The Pass of Ballater [1942] P 112 at 117). So that, if care is not taken, the 1st defendant is in breach of its duty.

90. In the circumstances of the present case, the evidence shows that the 2nd defendant, as in the case that the 1st defendant took no steps to maintain the collapsed canopy before its collapse, nor to keep it in proper repair, since the 2nd defendant's appointment as building manager from 1 January 1991. Furthermore, nothing was done by the 1st defendant to even indicate to the 2nd defendant that that should be done. In these circumstances, it is hard to see how the 1st defendant can say that the 1st defendant was not in breach of its duty by appointing the 2nd defendant as building manager. That appointment did nothing on the part of either the 1st or the 2nd defendant to see to it that the duty to maintain and keep the canopy in good repair was performed.

91. For these reasons, I am satisfied that the 1st defendant as the owner of the canopy, a common part of Albert House, is liable to the plaintiffs and the estate of the deceased for negligence as well as for nuisance.

The 2nd defendant

92. The 2nd defendant is the building manager appointed under contract to manage Albert House as from 1 January 1991.

93. Before going any further, I need to deal firstly with an objection taken by Counsel for the 2nd defendant during final submission in this case upon the pleadings. The 2nd defendant objects to the plaintiffs' case against the 2nd defendant being put on the basis that the 2nd defendant was an "occupier" of the canopy because it was submitted that it had never been pleaded by the plaintiffs that the 2nd defendant was an occupier. In this respect, my attention was specifically drawn by Counsel for the 2nd defendant to the original paragraph 21 in the Statement of Claim which had been deleted in the Re-Re-Amended Statement of Claim. The case was opened by the plaintiffs on that basis and no objection was taken then. This objection having been raised for the first time at the final submission stage, the parties agreed rather than to seek a ruling from me at that stage, for me to deal with it de bene esse in my judgment. I shall therefore deal with this objection now.

94. The original Statement of Claim had pleaded in paragraph 21 that the 1st to the 5th defendants were the occupiers of Albert House and as such, owed a common duty of care to the plaintiffs and the deceased under the Occupier's Liability Ordinance, Cap.314. This paragraph 21 was subsequently deleted in later amendments to the Statement of Claim. The reason for this deletion was that after the original paragraph 21 had been pleaded, the plaintiffs came to realize that they could not base this claim on the Occupier's Liability Ordinance since none of the plaintiffs nor the deceased were visitors to Albert House at the time of the accident. This original paragraph 21 was therefore deleted. Nowhere else in the Re-Re-Amended Statement of Claim was the word "occupier" used to described the 2nd defendant.

95. What has been pleaded by the plaintiff in the Re-Re-Amended Statement of Claim in relation to the 2nd defendant is as follows :-

(a) that the 2nd defendant is the building manager (of Albert House) at the material time (paragraph 10 of the Re-Re-Amended Statement of Claim); and

(b) that the 2nd defendant as manager of Albert House was responsible for the maintenance of the common parts including the canopy (paragraph 20 of the Re-Re-Amended Statement of Claim).

96. Moreover, the plaintiffs had furnished Further and Better Particulars dated 8 May 1998 of the Statement of Claim to the 2nd defendant as requested for by the 2nd defendant. In Item 8 of the Further and Better Particulars so furnished by the plaintiffs is a list in sub-paragraph (i) of what the plaintiffs alleged to be the responsibilities of the 2nd defendant as building manager of Albert House. Furthermore, the Further and Better Particulars of the plaintiffs make it quite clear that the plaintiffs are saying that the 2nd defendant had the duty to :-

(a) Ensure no unauthorized dangerous structure or construction is on the canopy (Item 26 of the Further and Better Particulars).

(b) Ensure prior approval for demolition works (Item 29 of the Further and Better Particulars).

(c) Ensure qualified architect, surveyor, engineer to inspect the fish tank and the canopy (Item 30 of the Further and Better Particulars).

(d) Take precaution such as adequate shoring (Item 31 of the Further and Better Particulars).

(e) To obtain proper professional advice (Item 32 of the Further and Better Particulars).

(f) To ensure the 1st, 3rd, 4th and 5th defendants did not commence demolition until competent demolition contractors are appointed and approved by the 2nd defendant.

97. The totality of what has been pleaded by the plaintiffs as well as the Further and Better Particulars furnished by them are such that there can be no doubt that the plaintiffs' case against the 2nd defendant is based on the footing that the 2nd defendant as the building manager, had the necessary control over Albert House, in particular, over the canopy which was a common part, from which such duty arose.

98. The law has for long recognized that in this area of the law, the essential question to ask is "who has control of the premises?". The word "occupier" is simply a convenient one to denote a person who has sufficient degree of control over premises to put him under a duty of care. This is especially true for a case like the present one where the plaintiffs are not seeking to rely on the Occupier's Liability Ordinance.

99. In the case of Wheat v Lacon & Company Limited [1966] AC 552, Lord Denning said at p.578 :-

"In Salmon on Torts, 14th Edition (1965), page 372, it is said that an 'occupier' is 'he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons'. This definition was adopted by Roxburg J. in Hartwell v Grayson, Rollo & Clover Docks Limited and by Diplock LJ in the present case. There is no doubt that a person who fulfills that test is an 'occupier'. He is the person who says 'come in'. But I think that test is too narrow by far. There are other people who are 'occupiers', even though they do not say 'come in'. If a person has any degree of control over the state of the premises it is enough."

100. Nor did Lord Denning stand alone. His words cited above were echoed by Lord Pearson in the same case where he said at p.589 :-

"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."

101. Coming back to the present case, I am of the view that this objection taken by the 2nd defendant on the pleading point is purely technical and quite without merits. From what has been pleaded and contained in the Further and Better Particulars supplied by the plaintiffs to the 2nd defendant, it must have been clear to the 2nd defendant that the plaintiffs' case against the 2nd defendant was based on the fact that the 2nd defendant, being the building manager at the relevant time, had a sufficient degree of control over Albert House and in particular the collapsed canopy, being a common part of Albert House, such that the 2nd defendant was under a duty of care vis-à-vis all the plaintiffs and the deceased.

102. I cannot see how the 2nd defendant can in any way be prejudiced or taken by surprise by the fact that the word "occupier" was not used in the pleadings. As the building manager of Albert House since 1991, the 2nd defendant was under a duty to ensure that the canopy, a common part of Albert House, was properly maintained and kept in good repair so that it would not collapse and injure pedestrians below.

103. As professional building managers, it was incumbent upon them, when they took on the job in January 1991, to ascertain for themselves from the legal documents which are the common parts of the building. It is difficult to see how they could have discharged their duties as building managers without ascertaining for themselves from the DMC and from the various assignments which are the common parts of Albert House. I therefore take the view that they knew or ought to have known that the canopy was a common part of Albert House. Evidence was given by Muk Ping Man, a witness called by the 2nd defendant, to the effect that on an inspection tour of Albert House at the time when the 2nd defendant started to be the building manager of Albert House in early January 1991, he was told during that inspection tour by the then chairman of the 1st defendant that the 2nd defendant did not have to manage the Restaurant in so far as Albert House is concerned. As a general statement, these words are true because the Restaurant has always managed its own premises. These words may well have been said by the then chairman to Mr Muk. However, these words does not entitle the 2nd defendant to assume, without more, that the canopy forms a part of the restaurant premises.

104. Moreover, the 2nd defendant either knew or ought to have known the following :-

(a) that the canopy was non-load-bearing;

(b) that the fish tank, screeding and advertisement sign had been erected or carried out on part of the canopy along Sai On Street thus adding extra load to the canopy; and

(c) that there had been constant dripping or seepage of water from various parts of the canopy over Sai On Street and from its interface with the external wall.

105. The cumulative effect of this knowledge ought to have put the 2nd defendant on notice that all was not well with the canopy. Even if the 2nd defendant did not possess the requisite knowledge of a structural engineer, with the knowledge which they had or ought to have had about the canopy, it would have been reasonable to have expected them as professional housing managers to have called in experts to inspect and to ensure that the canopy was in a safe condition and not dangerous to the public below it. In short, they ought to have been put on notice. If the 2nd defendant had called in structural engineers or building experts for an inspection of the canopy, they could not have failed to discover as a fact the dangerous state in which this canopy was hanging over the pavement. Even if they themselves had inspected the top surface of the canopy, they could not have failed to see the cracks on the top surface with the interface. Unfortunately, nothing whatsoever was done by the 2nd defendant, not even a brief inspection of this canopy. They failed woefully in the discharge of their duties as building managers.

106. In so far as nuisance is concerned, admittedly the 2nd defendant did not create the danger. That was created by the 4th defendant. However, the 2nd defendant had sufficient control of the canopy as managers of the building. They also knew or ought to have known of the dangerous state the canopy was in. All the tell-tale signs were there. The 2nd defendant did nothing to curb the nuisance.

107. The main defence of the 2nd defendant was that the canopy was not a common part of the building. In support of that defence, the 2nd defendant had called evidence to show that from 1991 up to the time of the accident no repair works had ever been done by Housing Mechanical Limited, the engineering arm of the 2nd defendant, on the canopy and not even to the drains on the canopy, whether along Sai On Street or Chengtu Road. This, says the 2nd defendant, shows that the canopy was probably owned and maintained by some other persons, possibly the 5th defendant or even the developer who was maintaining or repairing the canopy and the drains along it.

108. I have already found the canopy to be a common part of Albert House. This evidence adduced by the 2nd defendant merely reinforces my conclusion that no maintenance or repair works had been undertaken by either the 1st or the 2nd defendant to this canopy.

109. In all the circumstances of this case, and with the knowledge that the 2nd defendant had or ought to have had, it must have been reasonably foreseeable to the 2nd defendant that if the canopy or any part of it collapsed due to the want of repair, pedestrians below could well be injured by such collapse.

110. From all the evidence before me, I find the 2nd defendant liable to all the plaintiffs and the estate of the deceased in negligence and nuisance.

The 3rd and 4th defendants

111. Although the 3rd and 4th defendants did not see fit to appear (either by Counsel or in person) at the trial, there can be no doubt from the evidence presented that they were instrumental in overloading this canopy by having the fish tank and advertising sign erected. More likely than not, they were also instrumental in having the screeding put on the canopy as well.

112. From the findings of the Buildings Department as contained in the final report of October 1994 which I accept, it appears that neither the 3rd nor 4th defendant had taken any steps to maintain this canopy or to keep it in any sort of repair - even when cracks appeared at the surface with the interface between the canopy and the building. On the contrary, they had continued to allow the discharge of seawater from the fish tank to be emptied onto the canopy even when such cracks appeared, and from the available evidence, these cracks must have been quite apparent for a number of years before the canopy actually collapsed.

113. In the circumstances, they have not only created this dangerous state that this canopy posed to the public below but had allowed it to continue by failing to take the necessary, or any steps at all to curb such danger.

114. The 3rd defendant is the licence holder of the New Best Restaurant and the managing director of the 4th defendant. In a statement given by him to the Police on 8 August 1994, he admitted himself to be the decision-maker of the New Best Restaurant. The plaintiffs' case against him is that as the decision-maker of the 4th defendant, he must have authorized, directed and procured the tortious acts and/or omissions now complained of and should be liable for the loss and damage which resulted from his actions.

115. I have no hesitation reaching the conclusion that both the 3rd and 4th defendants created the dangerous state of this canopy. As such, their liability would be strict. Even if their liability was not strict, they were in the best position to know of the dangerous state of the canopy. They knew or ought to have known of the cracks at the interface between the canopy and the external wall of the building as well as the constant dripping and seepage of water onto the pavement below which would have put them on notice at the very least to have the canopy inspected by experts such as building surveyors. They did nothing to repair or to maintain the canopy.

116. In the circumstances, it is not difficult to come to the conclusion that the 3rd and 4th defendants are liable to all the plaintiffs and to the estate of the deceased in both negligence and nuisance. They are probably the most culpable of all the defendants in so far as liability goes.

The 5th defendant

117. I turn now to deal with the 5th defendant. The 5th defendant is the owner of, inter alia, the 1st, 2nd and 3rd Floors of Albert House. On 1 December 1984, the 5th defendant had leased all three floors to the 4th defendant for a term of 10 years. The leased premises did not include any part of the canopy whether over Sai On Street or over Chengtu Road. The canopy, as I have found, was a common part of Albert House. However, during the term of the lease, the 4th defendant as tenant, having no right to the canopy whatsoever, had encroached upon and usurped the use of the canopy - at least that part of the canopy over Sai On Street - some time between October and December 1984. The construction of a doorway giving access to the canopy by the 4th defendant is an indication that their encroachment was done quite openly and most likely without any sort of objection either from the 1st defendant or even from the 5th defendant, its landlord.

118. The presence of this doorway as well as the fish tank, constructed partly on the canopy, indicated that the 5th defendant knew or ought to have known of such encroachment by the 4th defendant. Furthermore, there is the admission by Yip Yuk Chi in her statement to the Police given on 9 August 1994 and her evidence given at the Coroner's inquest that a complaint was made to her about water leaking from the fish tank by someone from the U2 Boutique, a shop operating on the ground floor of Albert House just below the canopy. Ms Yip stated that she referred this complaint to the 4th defendant. This admission by Ms Yip clearly shows that she, as a director of the 5th defendant, was well aware of the fish tank on the canopy, and therefore aware of the encroachment of the canopy by the 4th defendant.

119. The law in this respect provides that where, during the course of a tenancy, a tenant encroaches upon, or without title to do so, takes possession of, other land, there is a presumption that the land so taken becomes annexed to the demised premises, whether or not it is immediately adjacent to the demised premises and whether or not it belongs to the landlord or to a third person, and on the determination of the tenancy, the land must be given up to the landlord together with the demised premises. (See Halsbury's Laws of England, 4th Edn., Vol.27(1), paragraph 165.) No evidence has been adduced by the 5th defendant to rebut such presumption.

120. Under Clause 2(c) of the lease between the 4th and the 5th defendants, the landlord (i.e. the 5th defendant) has the right to enter the demised premises, examine the condition of and specify any necessary repairs and require the tenant (i.e. the 4th defendant) forthwith to execute the same and if such repairs are not executed within 14 days, to permit the landlord to enter the premises and execute such repairs and the costs thereof shall be a debt due from the tenant to the landlord.

121. In the case of Heap v Inde Coope & Allsopp Ltd. [1940] 2 KB 476, the Court of Appeal held that a person injured while proceeding along a highway by the defective condition of premises alongside it may be entitled to sue the landlord instead of the occupying tenant for personal injuries and for that purpose, it was not necessary that the landlord should have covenanted with the tenant to do the external repairs; it is sufficient that the landlord has reserved the right to enter on and view the premises and to do all necessary repairs.

122. MacKinnon LJ said at page 484 :-

"The landlord has expressly reserved to himself the right to enter and do necessary repairs : why then should he be under no duty to make it safe for passersby? The proximity is there : he had the right to enter and remedy a danger. Is the injured person to be left in such a case only to a remedy against the tenant?"

In saying these words, MacKinnon LJ was quoting the words of Lord Goddard in the case of Wilchick v Marks & Silverstone [1934] 2 KB 56 at 67, but also made clear that he was deliberately leaving out the words "when he knows that the property is dangerous" from what was said by Lord Goddard because of the decision in Wringe v Cohen [1940] 1 KB 229, that knowledge of the danger is not an essential factor, Wringe v Cohen being decided after Wilchick v Marks & Silverstone.

123. The 5th defendant, being the 4th defendant's landlord and having the duty to enter and view the premises and do necessary repairs, knew or ought to have known the following matters :-

(a) the canopy was a non-load-bearing structure;

(b) the overloading of the canopy by its tenant, the 4th defendant, encroaching thereon in carrying out screeding and constructing the unauthorised fish tank and the advertising sign thereon;

(c) the cracks along the top surface of the canopy at its interface with the building wall; and

(d) the constant dripping and seepage of water from the canopy to the pavement below as well as water running down along the external wall of the building.

124. The above matters ought reasonably to have alerted the 5th defendant to the fact that the canopy was in an unstable if not dangerous state and required maintenance and repair. Again, nothing was done by the 5th defendant in this respect, not even an inspection carried out of the canopy to ascertain its condition.

125. With this knowledge that the 5th defendant had or ought to have had, it must have been reasonably foreseeable to the 5th defendant that if the canopy collapsed due to the want of repair, there would be a likelihood of pedestrians being injured by such collapse.

126. Once the conclusion is reached, which I have no difficulty in reaching, that the canopy is presumed to be part of the demised premises by reason of its encroachment by the 4th defendant, this case, in so far as the 5th defendant is concerned, is on all fours with Heap v Inde Coope & Allsopp Ltd.

127. In the circumstances, the 5th defendant is also liable to all the plaintiffs and the estate of the deceased in negligence and nuisance.

Conclusion

128. It follows from the above that there will be judgment in favour of all the plaintiffs against the 1st, 2nd, 3rd, 4th and 5th defendants in this case.

Breach of Statutory Duty

129. For completeness sake, I should mention that the plaintiffs had also pleaded breaches of statutory duties against the defendants in this case. The statutory duties which the plaintiffs say the defendants were in breach of are duties contained in the Buildings Ordinance Cap.123 and the Building Management Ordinance Cap.344.

130. The general rule has always been that a breach of a statutory duty does not, per se, give rise to a cause of action for damages. Such a cause of action may arise if it can be shown that firstly the statutory duty was intended by the legislature for the protection of a specific class of the public and that the legislature intended to give members of that class a right of action for such breach.

131. In so far as the Buildings Ordinance is concerned, its preamble states the aim of it to be : "To provide for the planning, design and construction of buildings and associated works; to make provisions for the rendering safe of dangerous building and land; and to make provisions for matters connected therewith".

132. The breaches of duties relied upon by the plaintiffs in respect of the Buildings Ordinance, namely sections 3, 4, 13 and 41, it is clear from reading those sections that they were enacted to regulate and control the planning, design and construction of buildings and associated works. I can find nothing to suggest that these sections were intended by the legislature to either benefit or protect any specified class of the public or to create any private law right of action. This view of mine is further reinforced by the fact that the plaintiffs in this case can resort to other remedies against the defendants in the form of causes of action in negligence or nuisance. Moreover, it has not been shown that such breach of statutory duty resulted in the injuries complained of.

133. As for the Building Management Ordinance, the plaintiffs rely on breaches of sections 34H and 34I. The preamble to that Ordinance states that the ordinance is 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".

134. More significantly, sections 34H(2) and 34I(2) provide that the obligations under sections 34H(1) and 34I(2) are deemed to be obligations under the deed of mutual covenant.

135. It is therefore quite clear that the Building Management Ordinance was never intended by the legislature to give protection to the public generally, nor to give the general public any right of action for breaches of duties therein, although it may well give a right of action to parties to a deed of mutual covenant in respect of any particular building to enforce the obligation provided by the Ordinance as against other parties to the same deed or the incorporated owners.

136. For these reasons, I am of the view that the plaintiffs have no cause of action against the defendants for breach of statutory duty whether in respect of the Buildings Ordinance or in respect of the Building Management Ordinance.

Apportionment

137. As already indicated, the most culpable of the defendants in this case are without doubt the 3rd and 4th defendants. For the purposes of apportioning liability as between the different defendants, I will treat both the 3rd and 4th defendants as one. There are two reasons for this. The 3rd defendant is the director and decision-maker of the 4th defendant. Furthermore, there is no contribution notice inter se between the two of them.

138. On the other end of the spectrum, the 6th defendant is probably the least culpable, judgment having been entered in default against him, he being the contractor engaged by the 4th defendant to demolish the fish tank on the day of the accident.

139. In between these two spectrum are the 1st, 2nd and 5th defendants. There is little, if any, to separate the 1st, 2nd and 5th defendants from each other in so far as apportionment of liability is concerned. Each had a duty to maintain this canopy. All of them were in complete breach of their own respective duty to maintain the canopy. Without any clear indication as to which of these three is more to blame for the collapse of the canopy, I propose to apportion their liability equally.

140. In all the circumstances of this case, I shall apportion liability as between the defendants as follows. The 3rd and 4th defendants will together be 50% to blame. Each of the 1st, 2nd and 5th defendants will be 15% to blame. The 6th defendant will be 5% to blame. Needless to say, this apportionment only affects the defendants as between themselves. This apportionment does not affect the plaintiffs in any way.

Costs

141. There will be a costs order nisi that the plaintiffs will be entitled to their costs of this action on liability as against the 1st, 2nd, 3rd, 4th and 5th defendants, to be taxed if not agreed. The plaintiffs' own costs will be taxed in accordance with Legal Aid Regulations.

142. As between the defendants, such costs be apportioned between them in the manner as I have apportioned liability save that the 6th defendant will only be liable (inter se) for his share of the costs up to the date of the Interlocutory Judgment against him.