Leung Tsang Hung and Lee Wai Yu v. the Incorporated Owners of Kwok Wing House - Outline Example

The case of Leung Tsang Hung and Lee Wai Yu v. the Incorporated Owners of Kwok Wing House FACV4/2007 A. General Field of Law: Negligence and Public Nuisance B. Case Description This is an accident that caused death of Madam Liu wherein not only the owner/occupier as well as the tenant of the illegal structure, but also the incorporated owners of the Kwok Wing House was held liable ("Leung Tsang Hung and Lee Wai Yu v. Incorporated Owners of Kwok Wing House FACV4/2007," 2007). C. Name of Case and Citation Leung Tsang Hung and Lee Wai Yu v. the Incorporated Owner of Kwok Wing House, HKSAR FACV4/2007 2. Introduction A. Broad field of law: Negligence and Public Nuisance B. Sub-areas of law: Personal Injury C. Name of court: Court of Final Appeal of the Hong Kong Special Administrative Region Final Appeal No. 4 of 2007 Name of case: Leung Tsang Hung and Lee Wai Yu v. the Incorporated Owners of Kwok Wing House FACV4/2007 D. Issue and a statement of the issue considered by the court This case is a personal injury incident happened in August 10, 1999. Madam Liu was plying her trade in Tung Choi Street, when struck by a piece of concrete falling from an adjacent building, known as the Kwok Wing House, which has a famous bookshop in its ground floor. Madam Liu died and it was found that the 15 lbs. triangular piece of concrete came from Kwok Wing House and fell from Flat A on the 11th floor and it formed the corner of a concrete canopy which is projecting out from over the enclosed balcony of the flat, before it had been detached and fallen down into the street ("Case Alert: Case 2 (FACV4/2007)," 2008; and "Leung Tsang Hung and Lee Wai Yu v. Incorporated Owners of Kwok Wing House FACV4/2007," 2007). The tenant as well as the incorporated owners was sued in negligence and public nuisance. And they were held liable for the case. The First Instance Judge as well as the Court of Appeal had dismissed the claim against the Incorporated Owners ("Case Alert: Case 2 (FACV4/2007)," 2008). This paper was done in order study the case of Leung Tsang Hung and Lee Wai Yu v. the Incorporated Owner of Kwok Wing House and find out what are the courts decisions about the case. E. Concise statement of the holding The Court of Final Appeal handed down the decision on the case on October 26, 2007 and the case has clearly laid down the responsibilities as well as liabilities of the incorporated owners in relation to common areas and illegal structures of the building. They were also held responsible for the Death of Madam Liu. 3. Facts A. Factual events leading up to the case In August 1999, Madam Liu was plying her trade as a hawker in Tung Choi Street, when she met was struck by a falling piece of concrete coming from adjacent building, known as Kwok Wing House and as a consequence, she died. That piece of concrete fell from Flat A on the 11th floor of the said building, which formed a corner of a concrete canopy projecting out from the enclosed balcony of the flat. Tenant of the flat and incorporated owners were sued in negligence and public nuisance. The tenant and owners of the flat were held liable, however, the first Instance Judge and Court of Appeal had dismissed the claim against the Incorporated Owners so, the plaintiffs appealed to the Court of Final Appeal ("Case Alert: Case 2 (FACV4/2007). Accident's Cause There was a canopy protruding from outer wall of the premises on top of the building to which someone added the extended canopy and converted the open balcony beneath as part of the covered space inside the premises. From that extended canopy the fatal concrete fragment fell. No evidence found when was the extended canopy erected and who was responsible for it and it could have been erected in 1964, soon after occupation permit was issued and before the sale of the said premise to its first owner. Investigation report of Building Authorities implies that the extended canopy was cast against the approved canopy with roughened joint however, connecting steel reinforcement and spanned between the extended side walls of the balcony is absent and beyond the front of the premises it protruded a foot or two. The extended canopy as well as the, extended side walls were unauthorized structures and illegal and it was not designed in accordance with Building Construction Regulations for the reason that inside the concrete slab, there were no longitudinal steel reinforcement bars ("Case Alert: Case 2 (FACV4/2007). B. Lower Court Decisions Court of Final Appeal examined the legal attributes of an owners' incorporation and determined whether it had sufficient control over the building's common parts to be liable in an action of public nuisance based on omissions ("Case Alert Corner, 2008"). The Court handed down the decision on October 26, 2007, and laid down the responsibilities and liabilities of the incorporated owners with regards to common areas and illegal structures of the building. From the legal point of view, however, as far as underlying problem is concerned, the decision of the court would not put the issue of illegal structure an end ("Mediator's Perspective," 2008). The Court of Final Appeal had laid down in the judgment, detailed principles regarding the tort of public nuisance. They found that the Incorporated Owners is a separate legal person when it is incorporated and it acts and binds all the owners. Moreover, it is an entity capable of representing all owners at any moment of time and for any given purposes. A sufficient degree of control was exercised by the Incorporated Owners, over the common parts of the building to justify making Incorporated Owners subject to a duty actionable based on omission in respect of nuisance hazards arising from the common parts and this includes the external wall of the building. Evidences showed that Incorporated Owners knew the existence of unauthorized extended canopy, projecting over a busy street and affixed to the common parts for 35 years. To ensure that it did not endanger the lives of the public it is their duty inspect the structure and as far as policy considerations are concerned, wherein the hazard involves the external common parts of a high rise building, the maintenance works can only be carried out if those parts are dealt with as a whole with the erection of scaffolding with the owners contributing to the cost ("Case Alert: Case 2 (FACV4/2007)," 2008). On October 26, 2007, the court unanimously allows the appeal, and makes the orders and gives direction, which was set out in paragraph 103 of the judgment of Mr. Justice Ribeiro PJ. On paragraph 103 it was stated that "the appeal would therefore be allowed and it was ordered that there be judgment for damages in favor of the plaintiffs against the third dependants which is the incorporated owner. As an appeal on quantum is pending before the court of appeal, it was directed that the parties be at liberty, when the outcome of the appeal is known, to apply to the court, by submissions in writing, for orders as to cost, directions concerning contributions between dependants and any other directions which are relevant to the implementation of this judgment. Moreover, any procedural directions needed regarding such application and submissions should be sought from the Registrar of the court" (In the Court of Final Appeal of the Hong Kong Special Administrative Region Final Appeal No. 4 of 2007," 2007). With regards to the case, against the owners as well as the tenants, damages were assessed in the sum of $1,554,742.00 and judgment in that amount, together with various sum of interest and costs. C. Identification of parties and material facts In this case, the administrators of the estate of Madam Liu are the plaintiffs and they sued: 1) the owners, Tse Yiu Pui and Ho Lai Bing who jointly owned the flat as first defendants; 2) their tenant, Chan Kwok Chi as the second dependant; as well as 3) the incorporated owners of the building as the third dependant, being a corporation which had come into existence on April 12, 1999 upon the owners being registered under the Building Management Ordinance ("Leung Tsang Hung and Lee Wai Yu v. Incorporated Owners of Kwok Wing House FACV4/2007," 2007). 4. History and Court's Reasoning (40%) A. Key law considered by the court. The judgment was based on the law that if premises adjoining the highway become dangerous as a result of failure to repair and eventually cause damage, the occupier is held liable, although he did not know of the danger and was not negligent in not knowing. Atkinson J has summarized the law in this subject in Wringe v Cohen [1940] 1 KB 229 at 233 as follows: "owing to want of repair, premises on a highway become dangerous and therefore a nuisance and a passer-by or an adjoining owner suffers damage by their collapse, the occupier, or the owner if he has undertaken the duty of repair, is answerable whether he new or ought to have known of the danger or not. The undertaking to repair gives the owner control of the premises, and a right of access thereto for the purpose of maintaining them in safe condition. On the other hand, if the nuisance is created, not by want of repair, but, for example by the act of a trespasser, or by a secret and unobservable operation of nature, such as a subsidence under or near the foundations of the premises, neither an occupier nor an owner responsible for the repair is answerable, unless with knowledge or means of knowledge he allows the danger to continue. In such a case he has in no sense caused the nuisance by any act or breach of duty" ("In the High Court of the Hong Kong Special Administrative Region Court of First Instance Personal Injuries Action No. 595/2002," 2004). B. Background and development of the relevant law. These are the requirements for the application of the doctrine of negligence; 1) Accident must be one which would not in the normal course of events have occurred without negligence; 2) Accident itself must justify inference of negligence and in all circumstances must be considered in the light of common experience and knowledge; and 3) Plaintiff is permitted to buttress his testimony with expert evidence to the effect that such an accident would not have occurred without the dependants negligence ("The Application of the Doctrine of Res Ipsa Loquitur to Medical Negligence in England"). C. Explain how the court applied precedent to the facts. Mention rules and techniques of stare decisions and statutory interpretation if applicable. Against the first dependant who owned the premises, the judgment on liability has been entered in default of defense. On the second and third dependant's failure to repair, maintain, inspect as well as cause the removal of the extended canopy the claim of negligence was based. Moreover, on the basis that the extended canopy constituted a danger to those exercising a public right of way in the street below the claim of nuisance was founded. According to judgment, doctrine of negligence applies to the case; and is precisely the type of case where the accident would not have occurred if only those who have the duty to maintain extended canopy exercise proper care. The second dependant has utterly failed to rebut this presumption and he is accordingly liable in negligence. Under a common duty of care, the second dependant which is the tenant and occupier of the premises adjoining the highway, must inspect and keep the extended canopy in sufficient repairs so that it will not constitute a danger to his neighbors including the public exercising the right of way in the street below. D. Outline how the court's reasoning fits with the history. On March 18, 1993, owners received a letter from Building Ordinance Office requiring them to repair defective storm drains and this prompted them to commission works to maintain and repair external parts of the building including removal of loosened, broken or damaged concrete of the reinforced concrete structure, in public areas such as the external walls and removing rusts and impurities from the reinforcement and adding reinforcement when necessary. For this purpose, scaffolding was erected around the whole building. However, Mr. Shek explained that these does not include inspection and maintenance of the canopies because the owners took the view that they were additional structures put up by individual owners themselves and therefore, were their own responsibility. In 1998, when certain waterproofing works had to be done with the scaffolding that was erected on the external wall from the 11th floor up to top of the building, again the opportunity to inspect the canopy was missed. Mr. Shek informed the individual owners through letters which states that "the government stipulates that all buildings are required to be checked and maintained regularly. Therefore their attention is drawn to the safety and maintenance of the flat." Through Mr. Shek, it shows that the incorporated owners were aware of the need for regular safety checks as well as maintenance for the premises. However they thought they could simply leave it to the individual owners. According to the law it was wrong. The incorporated owners did not realized, that it was not only their duty but a duty that was non-delegable. By virtue of its status as the embodiment of the owners collectively the corporation has the duty to remove the hazard or prevent it from causing harm to the public in the street below. They plainly had means to achieve this, as their ability to commission the maintenance as well as repair works in 1993 and 1998, however, the incorporated owners took no action. If only the extended canopy had been subjected to proper inspection, its dangerous condition would have been discovered as well as rectified (In the Court of Final Appeal of the Hong Kong Special Administrative Region Final Appeal No. 4 of 2007," 2007). 5. Analysis A. Merits and/or Mistakes of the Court's Decision On October 26, 2007 the judges have unanimously decided that incorporated owners should also be held liable for the case. Through Mr. Shek Hon-Kei, it is evident that incorporated owners were conscious of the safety concerns relating to the state of premises of individual owners including their unauthorized extensions. To regard such concerns as solely the responsibility of the individual owners is the error committed by the incorporated owners. From this evidences not only the owner/occupier as well as the tenant of the illegal structure, but also the incorporated owners of the Kwok Wing House was held liable, ("Leung Tsang Hung and Lee Wai Yu v. Incorporated Owners of Kwok Wing House FACV4/2007," 2007) because if only they subjected extended canopy to proper inspection, its dangerous condition would have been discovered and the accident could have been prevented. It is evident that the Court of First Instance committed a mistake in not making the incorporated owners liable for the case. The court has proven that they are also liable for damages of public nuisance together with the flat's owner and tenant. B. Two competing views and that the court has undoubtedly made choices The view that the court has undoubtedly made choices was the question on whether the incorporated owners of that building are liable or not on the injured person, when the user of the highway adjoining a multi-story building was injured by the collapse, for not having inspected the canopy of the building or not having required its removal in the absence of specific duty imposed by the deed of mutual covenant on the Incorporated Owners to remove unauthorized extensions of which they must be aware of. C. Did the court's holding solve the problem litigated Did the court misstate or misidentify the problem Where there alternative solutions available The court handed down the judgment on October 11, 2006, which dismissed the appeal of the plaintiffs from the dismissal of the Deputy Judge to their claims in negligence and nuisance against the third dependant which is the incorporated owners of the building in Kowloon, in respect of the death of a female hawker named Madam Liu, on the pavement below the building onAugust 10 1999 ("In the High Court of the Hong Kong Special Administrative Region Court of Appeal, CACV 195/2004" 2007). The case was not resolved and the court misidentified the problem and in order to solve it the plaintiff appealed to the Final Court of Appeal ("Case Alert: Case 2 (FACV4/2007)," 2008). Is the holding a complete departure from existing law Does it reinterpret existing law or create new law How might the holding affect future cases The holding depart from the existing law, accident could have been prevented if only the incorporated owner fulfill their duty to inspect the building and remove the illegal structure whether he knew or not that there is possible danger. To prevent future accidents it is their responsibility to remove the said illegal structure. What future litigation might be reasonably anticipated from this decision From this decision, the incorporated owners must rightfully be liable for the case and they must be responsible for requiring the removal of the extended canopy since it is unauthorized structure. Conclusion Restatement of the issue of analysis The court of the First Instance failed to make the incorporated owners to be liable for the case that is why the plaintiff made an appeal to the Court of Final Appeal. Based on the study of the Case of Leung Tsang Hung and Lee Wai Yu v. the incorporated Owners of Kwok Wing House FACV4/2007, it was found out that not only the owner/occupier and the tenant of the illegal structure were held liable for the case of an accident of Madam Liu which happened on August 10, 1999, but also the incorporated owners of Kwok Wing House was held liable. Based on the findings and evidences presented all of them are responsible for the death of Madam Liu. The Court of Final Appeal handed down the decision on the case on October 26, 2007 and the case has clearly laid down the responsibilities as well as liabilities of the incorporated owners in relation to common areas and illegal structures of the building. From the legal point of view, however, as far as underlying problem is concerned, the decision of the court would not put the issue of illegal structure an end. The incorporate owner must require the removal of the illegal structure that was built to prevent further damages or accidents. Works Cited "Case Alert: Case 2 (FACV4/2007)." Mediate.com.hk. Hk Institute of Mediation. "Case Alert Corner." Mediate Express. Hong Kong Institute of Mediation. Issued on 2 January 2008. "In the Court of Final Appeal of the Hong Kong Special Administrative Region Final Appeal No. 4 of 2007." Date of Judgment 26 October 2007. "In the High Court of the Hong Kong Special Administrative Region Court of First Instance Personal Injuries Action No. 595/2002." Date of Judgment 12 May 2004. "In the High Court of the Hong Kong Special Administrative Region Court of Appeal CACV 195/2004." retrieved on 20 November 2007. "Leung Tsang Hung and Lee Wai Yu v. The Incorporated Owners of Kwok Wing House FACV 4/2007." Solitaire's Words. posted on 28 October 2007. "Mediator's Perspective." Mediate Express. Hong Kong Instutute of Mediation. Issued On 2 January 2008. "The Application of the Doctrine of Res Ipsa Loquitur to Medical Negligence in England." Chapter 3. Walshv v. Holst & co. LTD. (1958) 1 WLR 800. University of Pretoria etd. Yui, E. 2008. "Public Nuisance - IO is Liable to UBWs." A Teaching and Learning Blog. Department of Real Estate and Construction of the University of Hong Kong: Yahoo Hong Kong Limited. Read More