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

HCMP 2079/2000 &
HCMP 3438/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS. 2079 AND 3438 OF 2000

(ON APPEAL FROM HCPI 828/1997)'

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J U D G M E N T

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Hon Godfrey VP :

1. On 1 August 1994, there occurred a tragic accident at Albert House, Aberdeen. A canopy at the 1st floor level of Albert House fell and injured a number of pedestrians walking on the pavement. As a result of that accident, proceedings were instituted by or on behalf of those injured.

2. The 1st defendant was the corporation known as the Incorporated Owners of Albert House. The 2nd defendant was the management company at the time of the collapse of the canopy. The 3rd defendant was the licence holder of a restaurant called the New Best Restaurant. He was the managing director of the 4th defendant, the owner of that restaurant (which carried on business on the 1st, 2nd and 3rd floors of Albert House at the time of the accident). The 5th defendant was the owner of a number of undivided shares of the building which carried the exclusive right to use and occupation of the restaurant floors (but not the canopy) and was the landlord of the 4th defendant at the material time. The 6th defendant was a contractor carrying out major renovations and demolition works for the 4th defendant at that time.

3. The action came on for trial before Suffiad J. It was a trial as to liability only. It extended over many days. The judge gave judgment on 23 December 1999. His judgment extended to some 52 pages.

4. On 7 January 2000, immediately after the judge's order was perfected, the 1st defendant gave notice of a meeting of owners (to be held on 27 January 2000) to consider whether or not to appeal against the judge's decision.

5. On 10 January 2000, the 5th defendant decided to appeal against that decision.

6. On 23 December 1999, Suffiad J heard an application for directions as to the assessment of damages. He was not told of any possible appeal.

7. On 27 January 2000, the owners decided to consider further the question of appeal. At a meeting of the incorporated owners on 21 February 2000 (three days after the time for appeal against the decision of Suffiad J had expired) there was a vote of 45 to 40 in favour of prosecuting an appeal.

8. Thereafter, the plaintiffs were subjected to a number of medical and other examinations and tests in connection with the quantification of their claims to damages. The cost of all these examinations etc. exceed $200,000.

9. On 26 April 2000, the 1st defendant took out a summons for an extension of its time for appeal. Until that date, the 1st defendant had given no notice of any sort at all to the plaintiffs of its intention to appeal. (The 5th defendant made no application for an extension of time to appeal until 13 July 2000, a few days before the date fixed for the hearing of the application by the 1st defendant for leave to appeal out of time.)

10. On 20 June 2000, the judge heard the first pre-assessment review hearing on the matter of quantum (there is a further pre-assessment review hearing due to be heard before him on 6 November 2000).

11. Against this background, I have to consider whether to grant or to refuse the applications made by the 1st and 5th defendants for an extension of time in which to appeal.

12. It is said for the 1st defendant that it could not sensibly have been expected to have authorised an appeal without calling a meeting of owners as it did and obtaining that meeting's approval. I sympathise with that submission. It is said on behalf of the 5th defendant that it did not have sufficient funds to justify applying earlier for an extension of time in which to appeal. I sympathise with that submission too. It is said that on behalf of both the 1st and 5th defendants that there are merits in their proposed appeals. Certainly, the legal position is a matter of some complexity. There is, I think, no doubt, that the 1st defendant, as the owner of the structure of the building of Albert House, must be considered to be the owner and occupier of the canopy, which is part of the structure of the building: cp Nation Group Development Limited v. New Pacific Properties Limited, CACV 160/1999, decided by Court of Appeal on 20 January 2000.

13. However, the canopy appears to have collapsed as a result of a number of contributory causes. One was the insufficient extent to which the steel bars embedded in it extended through the canopy. Another is that those steel bars corroded, due to the presence of water on the canopy. Another is that a fish tank erected by the 4th defendant, and which straddled the 1st floor premises and the canopy, put a load on this corroded and screeded structure so that sooner or later the collapse of the canopy was inevitable.

14. The judge went carefully into all these matters. The judge concluded that all the defendants were liable to the plaintiffs. He attributed a degree of blame to the 1st defendant and to the 5th defendant, although it seems that the 5th defendant, as "an absentee owner", may not have been aware of the danger until late in the day.

15. The case for both the 1st and 5th defendants is not without merit and I do not dismiss the cases of the 1st and 5th defendants as unmeritorious. Against that, I have to weigh what has been said on behalf of the plaintiffs, which is that this accident occurred, six years ago, with considerable trauma for all involved. The plaintiffs and each of them have already suffered considerably and most have been subjected to numerous and costly medical examinations and tests in connection with their claims for damages, all since the time for appeal had long expired.

16. To allow the 1st and 5th defendants to appeal out of time, having given the plaintiffs no notice of their intention to do so until recently, and having made no application timeously before the expiration of time for leave to appeal had expired, would, in my judgment, be to do serious injustice to the plaintiffs. The prejudice to the plaintiffs would be, as Miss Corinne Remedios, on behalf of the plaintiffs, put it in argument, "very heavy", with so much money already spent on experts' fees.

17. I accept that these points could, in some extent, be met by an order refusing leave to appeal unless an undertaking is forthcoming from the 1st and 5th defendants to pay all the costs wasted, and I bear in mind that, as Mr Rimsky Yuen, for the 1st defendant, pointed out in reply, there remains the 2nd defendant who has not appealed and appears to be good for the money, so that the costs of medical examinations, etc. will not be wasted even if the 1st and 5th defendants were successful in their appeals. It is also said on behalf of the 1st and 5th defendants that this case is of general public importance, since the presence of canopies like this in Hong Kong is a common and serious danger.

18. I have to balance all these considerations and decide whether the balance of justice comes down in favour of allowing the 1st and 5th defendants to appeal out of time or in favour of refusing them that leave.

19. I have come to the conclusion that I ought to refuse leave. It seems to me that the prejudice to the plaintiffs here is indeed "very heavy". It considerably outweighs, in my judgment, the considerations urged on me, on behalf of the 1st and 5th defendants. I consider that the correct course for me to take is to refuse this application. I therefore do so.

20. I will order that the plaintiffs' costs of this application be taxed (if not agreed) and paid by the 1st and 5th defendants to the plaintiffs, and I will also order that the costs of the plaintiffs be taxed for the purposes of the Legal Aid Regulations.