WONG WING HO v. THE HONG KONG HOUSING AUTHORITY AND ANOTHER

cacv 28/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 28 of 2007

(on appeal from HCPI NO. 558 of 2004)

______________________

______________________

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This is an appeal from a judgment of Deputy High Court Judge Muttrie dated 20 December 2006 in a personal injuries action in which the second defendant was ordered to pay the plaintiff the sum of $800,000 by way of damages.  At the conclusion of the hearing, judgment was reserved which we now give.

Background

3.  The plaintiff was 12 years old at the time of the accident which occurred on 21 October 2001.  At that time, the plaintiff, his parents and his younger brother were living in a flat at Tin Shing Court, Tin Shui Wai.  They had moved there in January 2000, shortly after the completion of the development which had been built for the first defendant, the Housing Authority.  The family obtained residents’ cards after having registered themselves as residents of the development.

4.  Within the development was a seven storey building managed by the second defendant, comprising two floors of shops and five floors of car parks.  On the roof of the building were tennis, volleyball and basketball courts, separated by wire mesh fences about 6 m high.  At the time of the accident, only the two basketball courts were open for use by residents between 8 a.m. and 10 p.m. on a daily basis.  The volleyball and tennis courts remained locked up: they were awaiting remedial work and had never been in use.

The accident

5.  Shortly after 8 a.m. on the day in question, the plaintiff and his younger brother went to the basketball court on their own.  It was the plaintiff’s evidence that almost every Saturday and Sunday he would play there with his brother.  Their parents did not accompany them on the occasion in question but had gone jogging.

6.  There was some dispute as to where a resident wishing to use one of the two basketball courts was supposed to register by showing his resident’s card before using the court.  According to the plaintiff and his father, it was at the registration counter near the ball courts which was not always manned.  According to the second defendant it was to be done at the management office on the ground floor which was manned 24 hours a day.  The judge made no express finding on that issue but found as a fact that residents, or indeed anyone, could in fact simply enter the basketball courts without registering.

7.  It was the plaintiff’s evidence that the registration counter was unmanned when he arrived with his brother and so they went on to one of the courts without registering.  In the course of play, the ball accidentally went over the fence into the adjoining, locked volleyball court.  There was still no one at the registration counter so the plaintiff went down to the security guard post on the ground floor of the shopping centre to look for a watchman or guard but without success.  He returned to the basketball court and waited for about half an hour until around 9 a.m. in the hope that a watchman or guard would appear, but no one materialised before he was due back home.  Being extremely anxious to retrieve the ball and faced with no alternative, he decided to climb over the fence.

8.  The physical layout and characteristics of the ball court complex were as described in the following passage of the judgment:

“

8.

The ball court complex is surrounded, and the individual courts within it are divided by high fencing made of steel tubing and wire mesh, about six metres in height.  The perimeter fence is supported by a series of stands with a triangular cross-section.  The stand looks like three ladders placed vertically in an isosceles triangle with one side against the mesh.  From the photographs it appears that the mesh is about 6 cm square.  The horizontal tubes, or rungs of these stands are 31.75 cm wide and 24 cm in circumference.  The internal fencing between the courts is also supported by stands but they are flat rather than triangular, though the dimensions of the tubes are the same; these stands look like single ladders to which the mesh is attached.”

9.  The judge found that the plaintiff climbed up one of the external triangular stands and down the other side of it into the volleyball court.  Having retrieved the ball and thrown it back into the basketball court, he then climbed up one of the flats dividing stands.  After getting over the top, he fell from one of the rungs near the top of the stand to the floor of the basketball court.

The judgment below

10.  The judge found (and it was not challenged) that the plaintiff had entered the basketball court as a visitor.  This must be correct since the plaintiff’s right to use the court arose from the fact of his being a resident and, in any event, he had a resident’s card.

11.  But the judge held that when the plaintiff climbed the fence, he ceased to be a visitor and became a trespasser because he did not have the defendants’ permission to climb the fencing nor did he have their permission to enter the volleyball court.  He took the view that the provisions of the Occupiers Liability Ordinance, Cap. 314 (“the Ordinance”) did not apply to the plaintiff.  He also found that there was nothing dangerous in the state of the fences themselves which were perfectly sound.

12.  The judge then considered the duty owed to the plaintiff as a trespasser.  He held that the law applicable in Hong Kong was that set out by the House of Lords in British Railways Board v Herrington [1972] AC 877, identifying and citing two passages from the speeches of Lord Diplock and Lord Morris (at pages 941 and 909) respectively.  The judge turned to the particular circumstances before him and found as follows:

“	38.	There is no suggestion that [the second defendant] knew that trespassers did in fact climb the fencing, but it must have known, for it left the courts unsupervised from 8 a.m. to 10 p.m., apart from visits by a patrolling guard, that persons, including children would be in a position to climb the fencing if they wanted to; and there would be nothing and no one to stop them.
	39.	It is also a fact of life that, no matter how high one may build a fence around a ball court to keep the balls in, sooner or later some player will, through inadvertence or lack of skill, manage to put a ball out of the court.  If a ball goes out of play in this way, the obvious remedy, where this is possible, is to go and fetch it back.  If the ball goes into an area where one is not supposed to go, e.g. a neighbour’s garden, there is nevertheless a temptation to go there, even if that means climbing a wall or fence.  It is notorious that children have been succumbing to that temptation that from time immemorial.  The only difference between that situation and the situation here is that in the present case the fence was very high.
	40.	High though the fences may be, to a young person possessed of normal fitness, fortitude and self-reliance they would appear an easy climb.  The triangular and the flat stands are in the form of ladders with rungs.  Anyone could go up them easily.  One who did so might have problems climbing up or down the mesh side, because the mesh is quite small, and it might be difficult to get the toes of his shoes securely into it.  Nevertheless, there are plenty of hand-holds and toe-holds.  The climb would be easier than that on an artificial rock-climbing wall, for instance, and probably much easier.  Indeed the plaintiff, having got up the triangular stand, must have got down the mesh side into the volleyball court without mishap.
	41.	It seems to me, therefore, that any reasonable person must expect that from time to time balls would go out of the basketball court into the closed volleyball court, and sooner or later, some basketball player would go over the fence to get his ball back.  The probability of this happening was low, but, especially where the courts were unsupervised, the risk was there.  It was therefore the duty of [the second defendant], in the words of Lord Morris, to take such steps as common sense or common humanity would dictate to exclude or to warn or otherwise within reasonable and practicable limits to reduce or avert danger.”

13.  In considering whether there had been a breach of the duty of care, the judge resolved the disputed evidence as to whether or not at the relevant time there was a notice on the wall outside the registration office indicating a telephone number which the users could call for assistance.  On that issue he accepted the plaintiff’s evidence and held that on the day of the accident there was no notice giving a number to call for assistance.  He concluded that the absence of such a notice

“

was a breach of the limited duty which the 2nd defendant owed to any person who was in the foreseeable but not very likely situation of having lost his ball into the closed court and wishing to retrieve it.  If there had been a notice, the plaintiff could have called the number.  He would not have climbed the fences and the accident would have been avoided.”

It was on that basis that he held the second defendant liable to the plaintiff for negligence.

14.  On the issue of contributory negligence, he found the plaintiff 50% liable for the accident.

This appeal

15.  The substantive point taken on this appeal was that the judge was wrong in holding that the second defendant owed to the plaintiff a duty of care as a trespasser.  Mr Lam who appeared for the second defendant submitted that the Herrington test is that stated by Lord Diplock (at 941E) and cited by the judge in § 32 of his judgment:

“

The duty does not arise until the occupier has actual knowledge either of the presence of the trespasser upon his land or facts which make it likely that the trespasser will come on to his land; and has also actual knowledge of facts as to the condition of his land or of activities carried out upon it which are likely to cause personal injury to a trespasser who is unaware of the danger.” (emphasis added)

He also drew attention to the fact that at an earlier part of his speech, Lord Diplock had said (at 929H-930A) that

“	there is no duty owed by an occupier to any trespasser unless he actually knows of the physical facts in relation to the state of his land or some activity carried out upon it, which constituted a serious danger to persons on the land who are unaware of those facts.” (emphasis added)

Mr Lam submitted that the italicized words in both passages from Lord Diplock’s speech made it clear that a pre-requisite or condition of the duty arising was that the “danger” about which the occupier must know had to relate to “the conditions of his land or of activities carried out upon it” and had to be “hidden” and that the pre-requisite had not been satisfied in the present case.

16.  The difficulty with Mr Lam’s submission is that the pre-requisite referred to above is not to be found in the speeches of the other members of the House of Lords.  Lord Reid’s formulation of the duty (at 899B-C) was as follows:

“

So the question whether an occupier is liable in respect of an accident to a trespasser on his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it.  If he knew before the accident that there was a substantial probability that trespassers would come I think that most people would regard as culpable failure to give any thought to their safety.  He might often reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything.  But if he could at small trouble and expense take some effective action, again I think that most people would think it inhumane and culpable not to do that.”

Lord Pearson expressed the duty (at 922H, 923C) thus:

“

If the presence of the trespasser is known to or reasonably to be anticipated by the occupier, then the occupier has a duty to the trespasser, but it is a lower and less onerous duty than the one which the occupier owes to a lawful visitor.  Very broadly stated, it is a duty to treat the trespasser with ordinary humanity …it is normally sufficient for the occupier to make reasonable endeavours to keep out or chase off the potential or actual intruder who is likely to be or is in a dangerous situation.  The erection and maintenance of suitable notice boards or fencing or both, or the giving of suitable oral warning, or a practice of chasing away trespassing children, will usually constitute reasonable endeavours for this purpose.”

Lord Morris of Borth-y-Gest in the passage quoted in § 33 of the judgment said at 909:

“

… an occupier owes no duty to make his land fit for trespassers to trespass in … [but there is] a duty which, while not amounting to the duty of care which an occupier owes to a visitor, would be a duty to take such steps as common sense or common humanity would dictate: they would be steps calculated to exclude or to warn or otherwise within reasonable and practicable limits to reduce or avert danger.”

Mr Lam had to agree and did accept that the pre-requisite he relied on could only be found in Lord Diplock’s speech and that it did not constitute the ratio decidendi of Herrington.

17.  The more difficult question, however, is what Herrington did decide.  Thus, while it is generally accepted that Herrington discarded the old common law rule encapsulated in Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 by holding that a trespasser was owed a limited duty of care, as stated in Clerk & Lindsell on Torts, 19^th Edn (2006), § 12-62, “the precise level of the duty of care owed underHerrington, and how it differed from the common duty of care, remained obscure”.  Lord Hoffmann described Herrington as an “inconclusive attempt” by the House of Lords to modify the common law rule but he did not elaborate on how it was modified as that was not a question he had to address.  See Tomlinson v Congleton Borough Council [2004] 1 AC 46 at 74F.

18.  The Law Commission’s Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability (Law Com. No. 75) published in March 1976 set out its view of Herrington:

“	5.	There is no doubt that the speeches in the House of Lords brought about a change in the law as to the liability for injuries suffered by a trespasser on an occupier’s property …
	6.	There did not, however, emerge fromHerrington’s case a clear principle applicable to the generality of cases.  It is clear that no member of the House of Lords considered that the occupation of land in itself created a situation whereby the occupier owed a duty to all persons on his land; that arose in the where persons were lawfully on the land.  Before it could be said that the duty was owed to a trespasser, and before consideration could be given to the content of that duty, there had to be a finding of some additional and special facts which would entitle a court to hold that the occupier owed a duty to the trespasser.  These special facts or special situations were the variously described.”

After referring to the differing formulations of that duty to be found in the speeches of the members of the House of Lords, the Report stated that it was

“	difficult to conclude that the question as to when the special facts gave rise to a duty to the trespasser received an entirely consistent answer inHerrington’s case.”

19.  In England, the lack of clarity and therefore uncertainty as to the Herrington duty led to legislation in the form of the Occupiers’ Liability Act 1984 following the recommendation of the Law Commission to create a statutory duty to trespassers.  However, Hong Kong did not follow suit and has no parallel legislation.

20.  In the present case, the uncertainties created by Herrington are perhaps academic because although the judge appeared to consider that the relevant duty was a duty of care owed to the plaintiff as a trespasser, on closer analysis, his reasons for holding the second defendant liable were entirely consistent with a duty of care owed to the plaintiff as a lawful visitor to the basketball court.  To such a visitor, the second defendant plainly owed a duty to take reasonable care to ensure his safety.  The relevant test is based on foreseeability.  Mr Lam acknowledged that it was reasonably foreseeable and not at all fanciful that a ball might accidentally be knocked over the fence into an adjoining court.  It was equally foreseeable that in those circumstances a basketball player like the plaintiff would wish to retrieve his ball.  Thus the duty the judge found to have been breached was nothing more than an appropriate step that ought to have been taken by the second defendant that would have afforded a means of enabling the ball to be retrieved without exposing the player to unnecessary risk.  But if a notice giving a number to call for assistance is to have any meaningful effect, it must be given to the player before he becomes a trespasser by the activity of climbing the fence.  Logically, the duty must have been owed to him while he was still a lawful visitor.

21.  When this was put to Mr Lam, he referred to the House of Lords’ decisioninTomlinson, as I understand it, as authority for the proposition that no duty is owed to a potential trespasser to prevent him from becoming a trespasser.  That case concerned the duty of care owed by the owners and managers of a country park to a trespasser under the Occupiers’ Liability Act 1984.  The park contained a lake which was a disused quarry.  Swimming was prohibited and there were prominent notices to that effect.  The plaintiff who was a visitor to the park went into the lake and from a standing position in shallow water dived and struck his head on the bottom, breaking his neck.  Whilst it is true that the plaintiff in that case conceded that he was indeed a trespasser when he went into the water, the issue of liability turned on whether the injury sustained could be attributed to the fault of the defendants.  I do not read Tomlinson as laying down any general principle that no duty can ever be owed by an occupier to a potential trespasser.  The decision was based entirely on the 1984 Act which has no counterpart in Hong Kong and which, in any event, is distinguishable on the facts.

22.  On the facts of the present case, the judge could not be criticised for his conclusion that the second defendant owed the plaintiff a duty of care in the form of exhibiting a notice giving a number to call for assistance.  In my view, that duty was owed to the plaintiff qua visitor given that he was using the basketball court for a lawful purpose and the foreseeability of both the ball being knocked over the fence during such lawful user and the plaintiff wanting to retrieve it.  The duty could not have been owed to him qua trespasser because the steps required to discharge the duty would serve no purpose once he had become as trespasser.  It would simply be too late.

23.  If that be right, it will not be necessary to address the other criticisms of the judgment made by Mr Lam in the context of the duty owed to a trespasser.  It was said that the degree of likelihood that someone would climb the fence as found by the judge at §§ 41 and 54 (i.e. the probability was “low” and “not very likely”) was insufficient to cause a duty of care to a trespasser to arise and that the appropriate test in the case of a trespasser is the “substantial chance” test.  Mr Lam referred to Southern Cement Ltd v Cooper [1974] AC 623 where (at 644D-E) Lord Reid said:

“

Next comes the question to whom does the occupier owe a duty.  Their Lordships have already rejected the view that no duty is owed unless the advent of a trespasser is extremely probable.  It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not.  Their Lordships can find neither principle nor authority nor any practical reason to justify such a limitation.  The only rational or practical answer would seem to be that the occupier is entitled to neglect a bare possibility that trespassers may come to a particular place on his land but is bound at least to give consideration to the matter when he knows facts which show a substantial chance that they may come there.”

That passage appeared to have been premised on a distinction of substance between something that is “extremely probable” (which was expressly rejected as the appropriate test) and “facts which show a substantial chance”.  For my part, I find the distinction somewhat obscure.  In any event, while it seems clear that an occupier is “entitled to neglect a bare possibility”, what constitutes a ‘substantial chance’ has to be read with the paragraphs immediately following (at 644F and H):

“	Such consideration should be all-embracing.  On the one hand the occupier is entitled to put in the scales every kind of disadvantage to him if he takes or refrains from action for the benefit of trespassers.  On the other hand he must consider the degree of likelihood of trespassers coming and the degree of hidden or unexpected danger to which they may be exposed if they come.  He may have to give more weight to these factors if the potential trespassers are children because generally mere warning is of little value to protect children.
	…
	The problem then is to determine what would have been the decision of a humane man with the financial and other limitations of the occupier.  Would he have done something which would or might have prevented the accident, or would he, regretfully it may be, have decided that he could not reasonably be expected to do anything.”

The plaintiff was not an adult but a child of 12.  Taking the ‘all-embracing’ view, the judge could not be faulted for reaching the conclusion that he did.

24.  It was also said that as there was no evidence before the judge to support the factual findings made in §§ 38-39 of the judgment, those findings were unsustainable, there being no scope to burden an occupier with inferred knowledge of risk and that knowledge of relevant facts must be proved against an occupier.  Harris v Birkenhead Corporation [1975] 1 WLR 379, 383F-G was cited in support.  But it is clear that knowledge can be imputed: see 383H.  Moreover, Kilner Brown J clearly considered that it was perfectly proper to draw the adverse inference that a derelict house openly available to a little toddler of four with a gaping window only a few inches above the floor was a potentially dangerous situation against which any humane and commonsense person ought to take precautions: see 384B.

25.  I am acutely conscious that the judge appeared to have approached the matter before him on the basis of a duty of care owed to a trespasser and that counsel for the plaintiff had argued it on that basis below and had not sought to challenge this on appeal.  Nevertheless, it appears to me that the established facts fit neatly with a duty that was owed to the plaintiff as a lawful visitor.

26.  It should also be mentioned that the defendant’s skeleton did raise other points such as challenges to the judge’s factual findings and his apportionment for contributory negligence.  Whilst not formally abandoning those points, Mr Lam rightly did not pursue them in oral argument.

27.  I would dismiss this appeal and propose that there be an order nisi of costs in favour of the plaintiff, and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Hon Sakhrani J:

28.  I agree.

Hon Rogers VP:

29.  There will therefore be an order in terms of paragraph 27 above.