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

HCPI 558/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 558 OF 2004

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J U D G M E N T

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1.  The plaintiff, Wong Wing Ho, claims by his father and next friend for damages for personal injuries suffered on 21 October 2001 when he fell whilst climbing over a high fence between a basketball court and a volleyball court, which were owned by the 1^st defendant (“the HA”) and managed by the 2^nd defendant (“Kai Shing”).

2.  The plaintiff suffered a displaced trans-cervical fracture of the right femur and a crack fracture of the head of the right radius.  The leg injury and subsequent complications have produced a permanent disability.  Quantum is agreed at $1,600,000.  Only liability is in issue here.

Background

3.  The plaintiff was born on 29 July 1989.  He lives with his parents and family in a flat at Tin Shing Court, Tin Shui Wai.  The development was built for the HA in 1999, and the family moved into their flat in January 2000.  Within the development there is a 7-storey car park and shopping centre, which is managed by Kai Shing.  This building has on its roof tennis, volleyball and basketball courts, separated by wire mesh fences about 6 metres high.  At the relevant time the tennis and volleyball courts were not, and had never been in use; they were awaiting remedial works and were kept locked up.  The basketball court was, however, open for use by residents every day from 8 a.m. until 10 p.m.

The accident

4.  On 21 October 2001 at about 8:10 a.m. the plaintiff and his younger brother went by themselves to play at the basketball court.  Their parents had gone jogging separately. 

5.  It is not in dispute that a resident who wished to use the basketball court was supposed to register with Kai Shing’s guards before doing so.  The plaintiff and his father say that this was to be done at a registration counter near the ball courts.  The plaintiff says that the counter was not manned when he went there.  The defendants’ evidence is that although there was an office with a registration counter off the lift lobby on the roof, it was not in use then, and was only used later when the tennis court was opened.  In the meantime registration was to be done at the management office on the ground floor, although residents, or indeed anyone could in fact simply enter the basketball court without registering.

6.  In any event, the plaintiff and his brother went into the basketball court without registering.  In the course of play, their ball accidentally went over the fence into the adjoining, locked volleyball court.

7.  According to the plaintiff, he went to the registration counter to see if he could find a watchman or guard who could open the volleyball court for him, but no one was present there and the door was locked.  He went down to the guard post at the ground floor of the shopping centre, and again found no one.  He and his brother waited until about 9 a.m., in the hope that some watchman or guard would appear, but none did.  The boys were due back home; their time was running out.  So the plaintiff decided to climb over the fence and get the ball.

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 plaintiff climbed up one of the external triangular stands, and down the other side of it into the volleyball court.  Having thrown the ball into the basketball court, he then climbed up one of the flat dividing stands, to get into the basketball court; but having got over the top, he fell from the stand to the floor of the court.  His brother managed to telephone their father, and then the plaintiff was taken to hospital.

The claim

10.  The plaintiff claims that the accident was caused by the defendants’ breach of the common duty of care under section 3 of the Occupiers’ Liability Ordinance, Cap 314 (“the OLO”) or by their negligence. 

11.  The claim is particularised as follows:

(a)     Failing to post a guard or watchman at the ball courts to provide assistance to the users;

(b)    Failing to post the telephone number of the management office at the courts, so that the users could seek assistance;

(c)     Failing to erect warning signs to warn the plaintiff of the danger of climbing the stands;

(d)    Failing to deploy staff to ward off children from playing or climbing on the stands;

(e)     Failing to fence off the stands, so as to prevent children from climbing on them;

(f)     Failing to take all reasonable care to keep children off the stands;

(g)     Failing to consider the risks presented by the stands as an allurement to children;

(h)     Failing to take reasonable care that the plaintiff would be reasonably safe in using the courts as a resident; and

(i)      In the premises failing to discharge the common duty of care owed to the plaintiff under the Ordinance.

12.  Part of Kai Shing’s defence is that the plaintiff was a trespasser.  By way of Reply, the plaintiff has added two further particulars, of:

(a)     Failing to erect warning signs or notices that the volleyball courts were not open to the public and entry was forbidden, and

(b)    Failing to demarcate to the residents of visitors the non-entry zone of the rooftop in a proper manner.

The defence

13.  The HA pleads that it had contracted out the management of the estate to Kai Shing, and was therefore not an occupier and owed no duty to the plaintiff.  The accident was caused by Kai Shing’s negligence, if the plaintiff can establish that, and the HA is not liable; but contributory negligence is also pleaded.

14.  Kai Shing pleads that the basketball court was open, but the other courts were not; the plaintiff was a visitor when in the basketball court, but once he climbed the fence, he became a trespasser; the accident happened while he was trespassing, and as such Kai Shing owes him no duty under the Ordinance.

15.  Kai Shing further denies negligence and pleads that if it owed the plaintiff any duty as a trespasser, there was no breach of such duty.  It also avers that it had put up warning signs for “No Climbing” in the basketball courts, and a notice indicating a telephone number which the users could call for assistance, and that it had a well-established patrol system for the shopping centre, including the basketball courts.

16.  Both defendants plead that the plaintiff was negligent in climbing the fences, when he knew or ought to have known that it was dangerous to do so; in disregarding warning signs; and in failing to seek assistance from the management office or control room, or from his own parents.

Issues

(1)     The plaintiff entered the volleyball court as a visitor.  When he climbed the fence, did he continue to be a visitor or did he become a trespasser?

(2)     If he continued to be a visitor, was there a breach of the common duty of care owed to him under the Ordinance?

(3)     If he became a trespasser, what common law duties were owed to him?

(4)     Was there a breach of those duties, and did such breach cause the accident?

Visitor or trespasser

17.  Under section 3 of the OLO, an occupier of premises owes a common duty of care to all his visitors, to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

18.  By section 2, the persons who are to be treated as an occupier and as his visitors are “the same as the persons who would at common law be treated as an occupier and as his invitees or licensees”.  However the Ordinance, which follows the 1957 Occupiers’ Liability Act of England and Wales, does not regulate the duty of an occupier to a trespasser.

19.  “Trespasser” is a broad term and was defined by Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v. Dumbreck [1929] AC 358 at 371 as “one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known is practically objected to”.

20.  Where a person enters on land with limited permission, e.g. as to where he may go or as to the purpose for which he is there, and goes outwith the limits of his permission he is a trespasser.  Per Lord Atkin in Hillen v. ICI (Alkali) Ltd [1936] AC 65 at 69 (followed by Lord Hobhouse in Tomlinson v. Congleton Borough Council [2004] 1 AC 46 at 86G):

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

In Tomlinson at 91G-H Lord Hobhouse further held:

“… However, under the Occupiers Liability Act 1957 (and at common law) when an invitee or licensee breaches the condition upon which he has entered the premises, he ceases to be a visitor and becomes a trespasser; section 2(2)”.

21.  The plaintiff entered the basketball court as a visitor.  He had the permission of the defendants, as a resident, to use the court to play basketball.  He did not have their permission to enter into the volleyball court, which was out of use and kept locked.

22.  Nor, in my view, did the plaintiff have the defendants’ permission to climb the fencing.  Such fencing is there, primarily and necessarily, to keep balls from flying out of the courts when in play.  Though the fence may be strong and its supports may look like ladders, it is not there for climbing.  One who climbs the fencing uses it for a purpose which is alien to his invitation or licence.

23.  The plaintiff pleads that the defendants failed to consider the risks presented by the stands as an allurement to children.  The presence of an allurement in a place accessible to children may aid the inference of an implied licence.  See Clerk & Lindsell on Torts, 19^th edn., $12-18.

24.  The general rule at common law, as laid down in Addie v. Dumbreckwas that an occupier was under no duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land, however likely it may be that they would come on the land, and however lethal the danger may be.  The plaintiff refers to the case ofCooke v. Midland Great Western Railway of Ireland [1909] AC 229.  This was one of a line of cases where the courts held that an allurement amounted to an implied invitation to children, so as to sidestep the rule that no duty was owed to a trespassing child.

25.  In British Railways Board v. Herrington [1972] AC 877 the House of Lords reconsidered the decision in Addie v. Dumbreck.  The effect of their decision was that it became possible for a plaintiff, even though he was a trespasser, to recover in negligence.  The precise nature of the duty owed to a trespasser gave rise to controversy and provision was made by the Occupier’s Liability Act 1984 for the liability of an occupier to a trespasser in the United Kingdom.  There was no corresponding Hong Kong statute.  The law applicable in Hong Kong is that set out in Herrington.

26.  Since Herrington [1972] AC 877, the fiction of an allurement as an implied invitation, so as to bring the trespassing child by implication into the category of licensee, or visitor under the legislation, has been discarded.  See Clerk & Lindsell on Torts, 19^th edn., Para. 12-62.  Mr Lam has referred in his written final submissions to the passages in Herrington which are authority for this but I need not reproduce them here.

27.  In any event, the plaintiff did not climb the fences because he was trapped by being fascinated by them, or for a thrill, or to show off to his friends.  He climbed them to get his ball and not because he was in some way allured by the fences themselves.

28.  It seems to me, therefore, that the plaintiff, when he climbed the fences, was a trespasser and no longer a visitor, and that the provisions of the OLO do not apply to him.

Breach of common duty of care

29.  Arguments have been put forward that, even if the plaintiff was still a visitor when he climbed the fences, there were no dangers due to the state of the premises or to things done or omitted to be done on them (section 2(1) of the OLO).

30.  I think this must be right.  There was nothing risky in the state of the fences themselves.  As in Tomlinson, the risk arose out of what the plaintiff chose to do and not out of the state of the premises; see the judgment of Lord Hoffman at 80B-D.  Further there was nothing done, or omitted to be done to the fences, which gave rise to a danger.  They did not fall on the plaintiff; they were perfectly sound fences and not dangerous in themselves.  The danger only arose when they were climbed.

31.  It was also argued that if the plaintiff was a visitor, he was owed no duty under section 3(2) because he was not using the premises for the purposes for which he was invited or permitted to be there.  This must be right, but at the end of the day, this provision simply excludes statutory liability to one who, by his actions, has crossed from the category of visitor to that of trespasser.

What duties, if any, were owed to the plaintiff as a trespasser?

32.  Lord Diplock summarised the parameters of the duty to trespassers in Herrington at pp 941 in these terms:

“The duty [to the trespasser] 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. ... Once the occupier has actual knowledge of such facts, his own failure to appreciate the likelihood of the trespasser’s presence or the risk to him involved, does not absolve the occupier from his duty to the trespasser if a reasonable man possessed of the actual knowledge of the occupier would recognise that likelihood and that risk.”

33.  Lord Morris of Borth-y-Gest 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.”

34.  In Chan Yan Nam v. Hui Ka Ming & Ors, HCPI 1169 of 2000, I summarised the application of the occupier’s duty to a trespasser as it applied to the facts in the case before me, in these terms:

“... to become liable [the 2nd defendant] would have to know that the condition of the platform was such that it would be dangerous to a trespasser who went on to it and it would have to know or expect that someone would go on to it.”

35.  When that case came before the Court of Appeal (CACV 242 of 2002), Le Pichon JA, with whose judgment the other members of the Court agreed, noted that the appellant’s counsel did not challenge the accuracy of my summary, and did not herself criticise it. 

36.  I am therefore emboldened to apply the same summary, mutatis mutandis, in this case and to hold that, in order to become liable, Kai Shing would have had to know that the condition of the fencing was such that it would be dangerous to a trespasser who climbed it, and would have to know or expect that someone would climb it.

37.  One needs only to look at the photographs of the fencing to realise that it would be dangerous to a trespasser who climbed it.  The fencing is very high and the stands and the fences are vertical.  While one can obviously climb the ladder side of the stands very easily, climbing on the mesh side would be harder, because the mesh is quite small.  While the mesh provides plenty of hand-holds, it might be difficult, though not impossible, for a an adult to get the toes of his shoes into it though a child might find that easier.

38.  There is no suggestion that Kai Shing 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 Kai Shing, 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.

Was there a breach of that duty?

42.  As to exclusion, nothing was done.  Given the low probability of someone climbing over, it probably did not need to be.  It would certainly not have been reasonable or practicable to have the court manned at all times when open.

43.  As to warning, the plaintiff and his father say there were no warning signs at the relevant time.  The defendants have produced a photograph of a “No Climbing” sign, though of course we do not know when the photograph was taken.  But I do not think these matters.  A warning notice will only be of use and will only be required where there is a need to warn and warning will avert the danger.  Here, the danger is obvious and no warning sign is needed.  Nor would it help in the situation where someone climbs over to get his ball; once he decides to do it, no amount of warning notices will stop him.

44.  The plaintiff pleads the defendants that to post the telephone number of the management office at the courts, so that the users could seek assistance.  The defendants plead that there was a notice on the wall outside the closed registration office indicating a telephone number which the users could call for assistance, and that it had a well-established patrol system for the shopping centre, including the basketball courts.

45.  The defendants have produced photographs, nos. 13 and 14 in the photograph bundle, showing three notices, one giving the opening hours of the basketball courts, one setting out a series of rules for its use and beside these, the notice with the telephone number.  The first two are on yellow paper and the last on pink paper.

46.  I do not suppose that the patrol system, if there was one, would have done much good to stop someone climbing the fences, no matter how good it was; the guards could not be there all the time.  However, the notice is important.  Putting up a notice to tell the players at an unsupervised basketball court where they can get help, and a telephone number to call, is easy to do and costs little or nothing.  It is reasonable and practicable.  It would suffice to avert the danger; a player wanting to get his ball back could call for assistance rather than being tempted to take the risk of going over a 6-metre fence, no matter how easy the climb looked. 

47.  The plaintiff and his father say that the notices shown in the photographs were not there, or not all there, on the day of the accident.  Only a notice giving the basketball court opening hours was there.  The plaintiff says that this was the notice shown in the photographs but his father says that it was not; there was only a handwritten notice at that time. 

48.  In any event the plaintiff and his father agree that there was only one notice on the wall.  They also say that a notice shown in photograph 12, stuck on the glass door, to the effect that this was the registration office and changing room for the tennis court, was not there either.  The paper of this notice also appears pink on the photograph.

49.  Mr Chan, the defendants’ witness, says that at the time of the accident, the registration office was not in use; it was only in use when the tennis court came into use in early 2002.  He did not take the photographs himself, and he accepted that the notice posted on the glass door of the office was probably not there before the tennis court came into use.  But he insisted that the other three notices were posted on the wall since 1999; the rules and the telephone number to call for assistance, as well as the opening hours.

50.  There is a slight question mark over the evidence of the plaintiff and his father.  If the tennis court was not in use the office was probably not manned; there would be no point in manning it.  This casts doubt on their evidence that they normally registered at the counter there.  On the other hand, they were both quite clear that it was sometimes manned and sometimes not.

51.  What is more important, however, is the appearance of the notices in the photographs.  The notice with the telephone numbers is on pink paper; the others are on yellow paper.  This suggests that they were not put up at the same time.  Indeed the pink notice with the telephone numbers and the pink notice on the glass door probably went up at the same time, and at a different time from the yellow notices.  There would be no need, as Mr Chan accepted, for the notice on the door if the tennis court was not in use.  This suggests that the pink notices were not present on the day of the accident. 

52.  I realise that all the witnesses are talking about what was there, or not there, a long time ago; and management companies in housing estates and even private blocks are always putting up notices of one sort and another for people to disregard.  But there is nothing to contradict the plaintiff’s evidence that he waited at the counter for someone to come.  He would have been in a position to see if there was a notice giving a telephone number that he could call.  He was a straightforward and apparently honest young man and did not give the impression of concealing anything or making anything up. 

53.  The fact that, after the accident, the plaintiff’s younger brother was able to telephone their father also suggests that, if the notice had been there, one of the boys would have telephoned the number given, either on a mobile phone if they had one, or by asking to borrow a telephone somewhere in the shopping centre.

54.  Considering the evidence as a whole, I am satisfied that the only notice present on the wall on the day of the accident was one which gave the opening hours of the basketball court.  There was no notice giving a number to call for assistance.  That, in my view, was a breach of the limited duty which the 2^nd 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.

55.  I conclude that Kai Shing was in breach of its duty and is therefore liable to the plaintiff for negligence.

Contributory negligence

56.  Although the plaintiff does not admit contributory negligence, his counsel Mr Wong accepts that such a finding is inevitable.  Obviously the plaintiff was partly to blame.  The danger was obvious.  He said that he did not consider the danger but was pressed to accept that now, if given the choice, he would not climb.  In any event he did not take reasonable care for his own safety.

57.  Mr Lam, for the defendants, argues for a finding of 75% contribution.  He compares the plaintiff’s situation with that in Keown v. Coventry Healthcare NHS Trust [2006] 1 WLR 953, a case which he cited in his discussion of the difference between the visitor and the trespasser.  However, I do not find this case of assistance.  The appeal did not touch on the question of contributory negligence and each case depends on its own facts.

58.  The plaintiff’s evidence is all we have.  According to him, he stood and waited for a guard, and then he looked for one at the guard post.  He found no one.  He did not go to the management office because he did not know where it was; indeed he did not even know that there was a management office.  He did not think of going home to ask his parents for help. 

59.  I find it a little difficult to imagine that an intelligent 12-year-old would not know that there must be a management office somewhere in a housing estate, though he might not know where it was.  His father, who says he registered there, might have obtained resident cards for all the family; this is not in evidence.  A more important point is that the plaintiff could easily have gone home without the ball and asked his parents for help; he was due home anyway, and indeed that is why, according to him, he climbed over in order to retrieve the ball.  There is no evidence from the plaintiff or his father that he would have been in trouble if he had done that.

60.  As I have said, it would have appeared an easy climb.  A mature man would have had more sense than to try it because of the obvious danger it poses; but even a young adult might have tried it.  12-year-old boys are often silly and thoughtless.  Everyone knows that.  It applies even to boys who, like the plaintiff, have done well at school; there is no real correlation between that and good sense.  One cannot expect of a boy of that age the foresight of the reasonable man. 

61.  I find the plaintiff 50% liable for the accident. 

Result

62.  The plaintiff will have judgment for 50% of the agreed quantum figure of $1,600,000, i.e. $800,000.

63.  Counsel advised me that I need not apportion blame between the defendants.  However in view of my findings, it is necessary to consider whether judgment should be entered against Kai Shing only.  This eventuality was not considered at trial.

64.  I will hear the parties on this and on costs and related matters on a date to be fixed.  This judgment will be handed down in the meantime so that counsel may consider it in advance of the hearing.  If convenient the infant settlement may be dealt with at the same time.