CHAN YAN NAM v. HUI KA MING t/a KAR LEE ENGINEERING AND OTHERS

CACV 342/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 342 OF 2002

(ON APPEAL FROM HCPI NO. 1169 OF 2000)

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J U D G M E N T

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Hon Rogers VP:

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

Hon Le Pichon JA:

2. This is an appeal from the order of Deputy High Court Judge Muttrie dated 8 July 2002 that judgment be entered for the plaintiff against the 1st defendant with damages to be reduced by 50% by reason of the plaintiff's contributory negligence and dismissing the plaintiff's claim against the 2nd and 3rd defendants with costs.

Background

3. The 1st defendant was the main contractor engaged by the owner of the first floor flat (Flat C1). The 2nd defendant is the owner of shop C on the ground floor and flat C on the mezzanine floor (Flat CM1), of the same building. The 3rd defendant is the owners' corporation. The plaintiff was the electrical and plumbing subcontractor for the 1st defendant when he sustained personal injuries through the collapse of an unauthorised structure on which he had been sitting whilst connecting new pipes from Flat C1 to the common pipes.

4. The building in question was built in the 1960's. The ground floor consists of three shops, A, B and C, each shopfront being only about 13 feet wide and fronting Nathan Road. The building extends some 60 feet back from Nathan Road to a scavenging lane. There is a light well at the rear of the building measuring about 30 feet fronting the scavenging lane and 9 feet 6 inches deep. This was located mainly at the back of shop B and extending a little into the back of shop A. This space is divided internally by solid walls into three backyards measuring 9 feet 6 inches deep by 10 feet wide, one for each shop. Flat C1 which was on the first floor has windows looking out on to the lane and sideways into the light well. It has a small bathroom window looking out to the lane from the inner corner of the light well.

5. On 23 October 1997, the date of the accident, there was a sloping canopy ("the upper canopy") made of corrugated asbestos covered with cement screeding covering the whole of the light well with its upper and inner edge about 18 inches below the level of the windows of Flat C1 and about 20 feet above ground level. The walls of yard C had been built up to a height of 16 feet, being the ceiling height of the mezzanine floor. The vertically extended yard space had a 'roof', namely, the unauthorised structure which was some 3 to 4 feet below the upper canopy at the building wall. This roof consisted of either another canopy of a similar construction to the upper one or with a flat cement platform supported by horizontal burglar-bars. That apparently was a matter of dispute at the trial. It is common ground that these structures were unauthorised and there was no information as to when or by whom they had been erected.

6. The plaintiff had been sub-contracted to plumb in a new lavatory, wash basin and floor drain in the bathroom of Flat C1. For this purpose, he had knocked holes through the outside wall for the soil and water drain pipes. These pipes had been installed on the outside wall below the upper canopy and it was whilst connecting these to the common pipes that the unauthorised structure supporting the plaintiff gave way and he fell some 16 feet down to the floor of the yard of shop C.

7. As noted above, there was a conflict of evidence below. The judge found, on the balance of probabilities, that there was a lower canopy or platform which was three to four feet below the upper canopy. He also found that the plaintiff had gained access to the lower canopy, that the lower canopy had supported his weight whilst he was working there for some hours before the entire lower canopy gave way under his weight. Although it is not absolutely clear from the judgment how the plaintiff had gained access to the lower canopy, it would appear that the judge thought that he had done so through the hole in the upper canopy rather than through the window of Flat C1 onto the scaffolding that had been erected by the 1st defendant for the installation of the windows and along it to the gap between the two canopies for the following reasons. The plaintiff's declaration made on 20 January 1998 to the factory inspector, within 3 months of the accident, stated that he had climbed down to the lower canopy through a hole of 3 feet x 3 feet on the upper canopy and that the space between the canopies was about 3 feet. The photographs before the court depicted horizontal support beams of the upper canopy which extended downwards. These appreciably reduced the already narrow gap between the canopies rendering the latter unlikely and certainly the more difficult as the point of access.

8. The 1st defendant was the main contractor and thus owed various statutory duties to the plaintiff under the Construction Sites (Safety) Regulations. The judge found that the 1st defendant was in breach of his statutory duties under Regulation 38A(1) and 38B. There is no cross-appeal by the 1st defendant on this issue.

9. The judge found that the 2nd defendant had purchased shop C and Flat CM in June 1997 subject to an existing tenancy which expired some four months after completion of the purchase, on 10 October 1997. Mr Lam Yik Him, the manager of the 2nd defendant, had seen the premises earlier in December 1996 shortly before the sale and purchase agreement and also when the 2nd defendant regained possession from the tenant in October 1997. Mr Lam had seen the condition of the extension and had tried, unsuccessfully, to get the management office to remove it. Shortly before the expiration of the tenancy, Mr Lam and his contractor had inspected the premises. On 10 October 1997, the contractor's quotation which included the demolition and replacement of this unauthorised structure had been accepted. Renovation work commenced on 12 October but the accident happened before the demolition and replacement of the lower canopy could be carried out.

10. The judge found that upon the 2nd defendant taking possession of the shop and the mezzanine floor, it had possession of the whole unauthorised structure of which the lower canopy formed part. It therefore had a duty to keep it reasonably safe for any visitor entering into the yard of shop C. The judge concluded that the same duty was owed to a person who had 'entered lawfully' onto the roof of the lower canopy. In effect, he held that the 2nd defendant was an 'occupier' within the principle in Wheat v E. Lacon & Co. Ltd [1996] AC 552, 577G in that it was:

"a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises."

However, he held that the presence of the plaintiff on the lower canopy was not reasonably foreseeable. As regards the 3rd defendant, the judge accepted the plaintiff's submission that the common parts of the building included the external walls. He also accepted the further submission that anything attached to the common parts such as a canopy or a roof of an unauthorised outbuilding would become annexed to them and fall into the ownership of the 3rd defendant. However, the judge concluded that the 3rd defendant did not, expressly or impliedly, license the plaintiff to go onto the lower canopy.

11. His findings are at paragraph 37 of the judgment:

"The plaintiff was there without any invitation from either of them, and completely unknown to them, on a structure not made for access and on which neither of them should have been expected to foresee that someone would go."

It followed that neither the 2nd nor the 3rd defendant could be made liable to the plaintiff for the accident. Vis-à-vis both the 2nd and 3rd defendants, the plaintiff was a trespasser.

12. The judge also rejected any liability on the part of the 2nd and 3rd defendants under the principle in British Railways Board v Herrington [1972] AC 877 where the House of Lords held that it was possible for a trespasser to recover damages in negligence.

This appeal

13. The plaintiff's appeal is against the judge's finding of non-liability on the part of the 2nd and 3rd defendants.

The 2nd defendant

14. The plaintiff's case was that (i) the 2nd defendant ought to have been held liable as occupier and the judge was wrong in holding that the plaintiff was a trespasser; (ii) alternatively, the plaintiff was a person to whom a duty of case was owed under the principle in British Railways Board v Herrington [1972] AC 877.

Trespasser

15. Ms Remedios, counsel for the plaintiff, submitted that it was foreseeable that workers would use the lower canopy which would make them invitees. It was said that the 2nd defendant should have anticipated workers being there simply by the presence of the lower canopy, more specifically, workmen of co-owners needing access from time to time to the external wall for, inter alia, connection to common drainage works. It was drawn to the court's attention that the 2nd defendant knew that

"... if the public water pipes of the building have to be replaced, the workers may come in to carry out the work at any time." (Transcript at 205I.)

16. It is necessary to recapitulate some of the judge's findings of fact. He found that the plaintiff had never made it known to the 2nd defendant or his contractor of the need to connect new sewage pipes into the common drain or of his intention to get onto the lower canopy. There was no evidence that the 2nd defendant or his contractor had any knowledge that the plaintiff was using the lower canopy. There are also the location and physical characteristics of the lower canopy. It was situated beneath an upper canopy which was in such proximity that the gap did not permit or allow a person to be standing upright on the lower canopy. But for the hole, it is doubtful that anybody could have used the lower canopy as a platform to support himself as access to the lower canopy beneath the upper canopy would have been extremely difficult. Any person attempting to do that would have had to crawl if not be entirely prostrate.

17. The 2nd defendant's liability as a occupier depends on whether the plaintiff's presence on the lower canopy was reasonably foreseeable. Whilst it is true that the common drainage for the entire building ran down the external walls of the building into the light well and yard C, it was not the case that the common drainage for the entire building was being replaced. The new drainpipes installed by the plaintiff were between the upper and lower canopies. On those facts, it is difficult to see how the owner of the lower canopy could have anticipated the presence of visitors on it.

18. Further, contrary to Ms Remedios' submission, access to the lower canopy was not essential for the work to be carried out to Flat C1. It was suggested that the presence of the lower canopy blocked up access to the common pipes. But the 2nd defendant's contractor's evidence (which was not challenged) was that during the renovation period, no one had requested to go into the yard nor did he know that someone needed to install sewage pipes in the area where the lower canopy was situated. He said this:

"If I knew that the Plaintiff wanted to install the sewage pipes in the open well or needed to enter the open well to install the sewage pipes, I would ask him to do it 1 or 2 days later since the scaffolding would be put up in the open well and the Plaintiff could make use of the same."

I agree with counsel for the 2nd defendant that had such a request been made to the 2nd defendant, that would have been the answer he would have received. Nor would the fact that the plaintiff was permitted to work for the owner of Flat C1 mean that he became the lawful visitor to another part of the building not in common ownership. Accordingly, the judge was obviously correct in holding that, vis-à-vis the 2nd defendant, the plaintiff was a trespasser.

The Herrington principle

19. The plaintiff's alternative case has based on the House of Lords' decision in British Railways Board v Herrington [1972] AC 877. The parameters of that duty were considered by Lord Diplock in his speech at 941E-942A. The judge summarised its application to the facts before him as follows:

"... to become liable [the 2nd defendant] would have to know that the condition of 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."

It would not appear that Ms Remedios was challenging the accuracy of that summary.

20. Ms Remedios drew attention to the absence of any warning notice put up by the 2nd defendant. But the critical question is whether it was reasonably foreseeable that someone would climb onto the lower canopy. If it was not reasonably foreseeable, then the fact that there was no warning exhibited matters not, although I have to say that I have some difficulty in seeing what warning signs should have been put up and where. Given the location and physical characteristics of the lower canopy and the fact that the lower canopy was not the sort of roof on which persons could obtain access let alone be expected to walk, I am unable to agree with the plaintiff that it was reasonably foreseeable that workmen would use the lower canopy to obtain access to the common drainage.

21. It was also suggested that the 2nd defendant ought to have known from its tenant that trespassers, namely burglars, regularly attempted to break into the rear part of the 2nd defendant's premises. That may be so, but even Ms Remedios stopped short of submitting that the Herrington principle meant that a duty of care was owed to burglars. As Lord Morris of Borth-y-Gest made clear in Herrington (at 909F):

"... an occupier owes no duty to make his land fit for trespassers to trespass in. ... The general law remains that one who trespasses does so at his peril."

In the Herrington case, there were special circumstances, all well-known and obvious which gave rise to

"... 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."

In the present case, there were no such special circumstances.

22. The plaintiff also relied on Ta Xuong v Incorporated Owners of Sun Hing Building [1997] 4 HKC 171 where Seagroatt J described the disused scaffold in that case as both an invitation to burglars and "an open invitation to anyone required to do any work on the exterior of the building to use it and rely upon it as a means of access and support". I do not see how the lower canopy can be likened to a scaffold on a building since, located as it was beneath the upper canopy with only a 'crawl space' between it and the upper canopy, it is not at all evident that anyone could be expected to go onto it. In the circumstances, I can see no basis for casting upon the owner a duty to make the lower canopy load-bearing. In this connection, the description of the lower canopy recorded in the statement of the Divisional Occupational Safety Officer is pertinent:

"The canopy in question was a structure intended for the purpose of keeping out rain water or foul water leaking from the drainage pipes of the upper floors. The structure, which was of unknown loading capacity and lack of proper maintenance, was not suitable for any work to be carried out thereon."

The 3rd defendant

23. As against the 3rd defendant, the plaintiff's submissions in summary were that the judge, having found that the lower canopy fell within the common parts of the building such that the 3rd defendant came under a duty to maintain it by virtue of the Deed of Mutual Covenant and/or section 34H of the Building Management Ordinance, was wrong in holding that the plaintiff's presence on it was not reasonably foreseeable. It was also suggested the owner of Flat C1 had the authority to invite the plaintiff to use the canopy as it formed part of the common parts. Further, if the lower canopy was not a common part, nevertheless the 3rd defendant had sufficient control over the unauthorised structure attaching to the wall to render it an 'occupier' and it was reasonably foreseeable that someone would stand on the roof of that unauthorised structure to fix the plumbing. Alternatively, the 3rd defendant was liable under the Herrington principle.

The 'annexation' theory

24. The 3rd defendant did not challenge the finding that the external walls were common parts of the building within the ownership and occupation of the 3rd defendant. However, it took issue with the further holding that, as a matter of law, an unauthorised structure attached to a common part would become annexed to it and fall into the ownership of the 3rd defendant. The 3rd defendant submitted that not only was there no legal support for the 'annexation' theory, there was authority to the contrary. In Wong Sau Kam and Yeung Kong v Shum Yuk Fong and Others HCPI 798 of 1998, unreported, 11 October 2001, after referring to the Deed of Mutual Covenant in that case which put the owners under a duty to maintain the common areas including the external wall and provisions prohibiting the making of any unauthorised installation to any part of the building in common use, Suffiad J observed:

"35. ... Clearly therefore the common parts of the building for which all the owners are under a duty to maintain can only refer to those parts of the common areas which are not unauthorised structures or unauthorised installations. Put differently, how can it be right that all the owners of the building will be under a duty to maintain an illegal structure erected by one of the owner (or a tenant) but which illegal structure is attached to some common parts of the building. Even if all the other owners are under a duty to enforce the Deed of Mutual Covenant by taking action to have the illegal structure removed, I do not think that they have a duty, without more, to maintain that illegal structure.

36. If such an illegal structure were to become part of the common area simply because it was attached to a common area of the building, then under the Deed of Mutual Covenant all the other owners will be under a duty to maintain it once it is erected. I do not think that is right."

25. I would respectfully agree. It would be quite remarkable if an unauthorised structure which happens to interface with a common part would automatically become annexed to it with the consequence that the owners would come under an obligation to maintain it. In any event, the plaintiff was quite unable to point to any authority that supported the 'annexation' theory. For my part, the plaintiff has failed to establish that the lower canopy was a common part which the 3rd defendant was under an obligation to maintain. The further question of whether the plaintiff's presence as an invitee to a common part does not therefore arise.

Was the 3rd defendant an 'occupier'?

26. In the course of the appeal hearing, the plaintiff retreated somewhat from the 'annexation' argument on which it had succeeded below, maintaining that it was sufficient to show that the 3rd defendant had sufficient control over the unauthorised structure since that would cast upon the 3rd defendant a duty to maintain the lower canopy. The plaintiff relied on Chu Wo Heung and Pak Yuen Sau, the administratrices of the estate of Yuen Fook Wah, deceased v Hui Lai Wa and Others CACV 1715 of 2001, unreported, 15 March 2002 where (at paragraph 13) the court held that the manager had sufficient control over an awning erected by the operator of the shop. However, in coming to the conclusion that the manager had control over the awning, the court had reasoned that control existed because of the requirement that permission to construct the awning had to be obtained from the manager and because of its various powers under the particular deed of mutual covenant in that case relating to structures on external walls. But these provisions are absent from the deed of mutual covenant in the present case. There was also the factor that the awning projected across the frontage of the building over the pavement. In those circumstances, the judge held that by exercising control over the structure the incorporated owners had assumed a duty of care towards the public to make sure the structure did not become a hazard to the public. For my part, I do not consider that Chu's case assists. I agree with counsel for the 3rd defendant that the 3rd defendant had no control over the lower canopy in the Wheat v Lacon sense to render it an 'occupier'.

27. Even if it were, it would not have made any difference. What has been said as regards the 2nd defendant on the subject of foreseeability, trespass and the Herrington principle would apply, mutatis mutandis, to the 3rd defendant.

Conclusion

28. For these reasons, I would dismiss the appeal. I would also make an order nisi for that the plaintiff bears the costs.

Hon Jackson J:

29. I agree.

Hon Rogers VP:

30. The appeal will be dismissed accordingly and there will be an order nisi that the costs of the appeal will be in favour of the 2nd and 3rd respondents.