LEE KEET YING v. MTR CORPORATION LTD

HCSA 51/2024
HCSA 52/2024
(heard together)

[2024] HKCFI 3421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 51 OF 2024

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 24589 OF 2023)

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AND

SMALL CLAIMS TRIBUNAL APPEAL NO 52 OF 2024

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 24590 OF 2023)

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D E C I S I O N

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1.  On 4 June 2024, the deputy adjudicator of the Small Claims Tribunal (“Tribunal”) dismissed the claims made by the Claimant against the Defendant in SCTC 24589/2023 and SCTC 24590/2023 (“Decision”). The Claimant applied for review of the Decision (“Review”), and on 19 July 2024, the Tribunal by his Orders dismissed such application (“Orders”).

2.  On 31 July 2024, the Claimant applied for leave to appeal against the Orders.

3.  Under s 28 of the Small Claims Tribunal Ordinance (Cap 338), any party who is aggrieved by a decision of the Tribunal may apply to the Court of First Instance on a ground involving a question of law alone, or on the ground that the claim was outside the jurisdiction of the Tribunal.

4.  The Claimant’s present application for leave to appeal is only on the ground that the Orders were erroneous in law. To summarise, the Claimant contends that the Tribunal erred in finding that the Defendant was not negligent, had erred in law in finding that the Defendant did not breach its non-delegable duty as estate manager, and came to the wrong conclusion as the Defendant cannot be indemnified by the “Protection of the Managers” clause in the deed of mutual covenant (“DMC”).

5.  The Claimant is the registered owner of Flat F, 23/F, Block 2, Coastal Skyline, 12 Tung Chung Waterfront Road, Tung Chung, Lantau Island, Hong Kong (“Property”). The Defendant is the estate manager. The Property does not have an incorporated owners’ corporation.

6.  The Claimant in these proceedings claims against the Defendant damages amounting to HK$71,224.3 and HK$7,667.55 incurred through replacement and repair of the Property’s windows, bay window, and fixing of water seepage on the external wall of the Property. The Claimant alleges that scratches to the windows were caused by New Progress Construction Limited (“New Progress”), a contractor employed by the Defendant in November to December 2022 to carry out repair works on the external walls of the Property (“Works”). It is the Claimant’s case that the Defendant breached its non-delegable duty under the DMC to “maintain and keep in good repair and condition the Common Areas and Facilities and to replace or renew any parts that may need replacement or renewal”, and was vicariously liable for all damages caused by New Progress.

7.  Save that the Defendant denies that the damages were caused by New Progress for which the Defendant is vicariously liable, there was no dispute in the proceedings over the factual background. As part of the background, it is noted at the outset that by November 2022 the windows of the Property had already been in use for close to 17-18 years.

8.  After hearing the evidence, the Tribunal dismissed the Claimant’s claims. In the Reasons for his Decision handed down on 16 August 2024 (“Reasons”), the Tribunal first considered the applicable legal principles on non-delegable duty and vicarious liability, citing Barclays Bank Plc v Various Claimants [2020] AC 973 §§27, 15. The Tribunal concluded on the facts that New Progress was not an employee of the Defendant in the course of employment during the Works but was an independent contractor, and then considered the question of whether the acts or omissions in question were the Defendant’s non-delegable duties (in paragraphs 14-26).

9.  The Claimant’s claims were grouped into three categories (in paragraph 27):

a.  Damages caused to windows allegedly due to falling debris or cement whilst the Works were being carried out (“Category 1”).

b.  Losses caused by an alleged failure to rectify water seepage problems on the external walls (“Category 2”).

c.  Losses caused by the negligence of New Progress, such as scratches on the Claimant’s marble windowsill allegedly caused by New Progress’s workers coming in and out of the Property (“Category 3”).

10.  The Tribunal considered that principles of non-delegable duty and vicarious liability applied differently to each category:

a.  For Category 1, if the Claimant could prove that the damages to the windows were caused by the falling debris and cement, the Defendant may be liable, as it was under a duty to take precautions (by itself or through New Progress) to prevent nuisance (in paragraph 28).

b.  Under Category 2, the duty to maintain the external walls in good condition was a non-delegable duty. If the Claimant could prove that the damages were caused by the Defendant’s negligence in failing to maintain the external walls, the Defendant would be liable (in paragraph 29).

c.  As for Category 3, the duty of reasonable care in the execution of the Works was not a non-delegable duty. So even if the Claimant could prove that the damage was caused by the negligence of New Progress, the Defendant would not be held liable (in paragraph 30).

11.  On the facts, the Tribunal considered that:

a.  For Category 1, the Claimant had failed to adduce sufficient evidence to show that the scratches to the living room windows, kitchen, and bathroom windows were caused by the Works of New Progress (paragraphs 72, 73 and 78).

b.  For Category 2, on the water seepage issue, the Claimant’s reasons for refusing to engage New Progress and choosing to employ her own contractor Mega Power Engineering Co Ltd (“Mega Power”) to carry out the Works lacked basis. There was no reason why the Defendant ought to be liable to pay for expenses that the Claimant chose to expend on her own (paragraphs 84 and 85) to verify the alleged problem.

c.  For Category 3, despite finding that on the balance of probabilities the damage in question might have been caused by New Progress (paragraph 90), since this is not due to a breach of a non-delegable duty of the Defendant, and because New Progress was not the Defendant’s employee for which it might be vicariously liable, the Tribunal held that the Defendant was not liable.

12.  In the Review, the Tribunal further considered that the Claimant’s reliance on the “Protection of the Managers” clause in the DMC was based on an erroneous reading of the clause, which was a limitation clause. Since the Defendant was not found to be liable, the limitation clause does not come into play (paragraph 25).

13.  Having considered the Reasons and the Review, I do not accept that there is any basis to grant leave to appeal. The Claimant is seeking to challenge the findings of fact made by the Tribunal on the basis of his rejection of the Claimant’s evidence that the scratches to the windows were caused by New Progress. I fail to see how it can be said that the Tribunal had ignored any evidence which would have any effect on the Decision or on the Orders.

14.  In relation to the submissions made by the Claimant that the Tribunal should have found, on the evidence of the damage, that they were caused by New Progress in the course of their execution of the Works, and not for any other cause, the observations made by Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1997] HKC 657 are pertinent:

“This court will not usurp the function of the trial judge, ie to find the facts. It will certainly not disturb his findings of primary fact where these are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another…

It is important for counsel and solicitors (and for the legal aid authorities) to remember the very limited extent to which this court will interfere in a case in which the appellant seeks to dispute the judge’s findings of fact. … It is not enough to show there is little evidence to support the judge’s finding, or that it was ‘contrary to the weight of the evidence’. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many.” (Emphasis added)

15.  Nor can I find any point of law on which the Tribunal can be said to have erred, to raise any arguable appeal. The Tribunal correctly summarised the applicable legal principles of non-delegable duty and vicarious liability by citing Barclays Bank, and correctly applied them to his findings of fact. The conclusion made by the Tribunal on the Claimant’s arguments on the relevant provisions of the DMC are also correct.

16.  For the above reasons, I am not satisfied that the Claimant has established any reasonable ground of appeal which has any reasonable prospect of success, and refuse to grant leave.