LEUNG TSANG HUNG AND ANOTHER v. THE INCORPORATED OWNERS OF KWOK WING HOUSE

CACV 195/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2004

(ON APPEAL FROM HCPI NO. 595 OF 2002 )

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 11 October 2006 this court handed down judgment by which it dismissed the appeal of the plaintiffs from the dismissal by Deputy Judge To of their claims in negligence and nuisance against the third defendant, Incorporated Owners of a building in Kowloon, in respect of the death of a female hawker on the pavement below the building on 10 August 1999 caused by the fall of a concrete fragment from the building. 

2. The question that arose in that appeal was whether the Incorporated Owners exercised sufficient control of that part of the building from which the concrete fell so as to impose upon them the liability alleged.  The matter has now come before us with the plaintiffs seeking leave to appeal to the Court of the Final Appeal. 

3. The question of great general or public importance that, after some debate, has been encapsulated and in respect of which we grant leave under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, is as follows:

“When the user of a highway adjoining a multi-storey building is injured by the collapse of part of an unauthorized extension to the building, which extension has been erected by and for the exclusive use of the occupier of an individual unit therein, do the Incorporated Owners of that building incur liability to the injured person by reason of not having inspected the same and/or not having required its removal, in the absence of a specific duty imposed by the deed of mutual covenant on the Incorporated Owners to remove unauthorised extensions of which the Incorporated Owners are or ought to be aware?”

4. Costs of this application will be costs in the appeal to the Court of Final Appeal.  Plaintiffs’ costs to be taxed in accordance with the Legal Aid Regulations.