Leung tsang hung and lee wai yu v. The incorporated owners of kwok wing house, hksar facv4/2007

Background of the case

A piece of concrete which fell over from the Kwok Wing House building resulted in death of a hawker Madam Liu Ngan Fong Sukey . The piece of concrete had been detached from the balcony of flat number 11.The building was old .The building plans showed that it was an open  balcony with a  concrete canopy above it. The canopy, which was the result of the death, was extended about thirty five years back while walls and windows were installed to enclose the balcony. The person behind this installation  was not known. The evidence indicated that the workmanship was poor. The judge found both  the tenant and the owners liable but dismissed the action against the incorporated owners

Justice Bokhary PJ

The Justice stated that owners can not be held responsible as they had no knowledge of such a danger.

Mr Justice Chan PJ

He agreed with Justice Bokhary

Mr Justice Ribeiro PJ:

He found the tenants and the owner accountable but dismissed the action against the incorporated owners with costs.

Reasons The Judge reasoned that the incorporated owners had no right of possession, occupation or control over the building.

My Analysis:

History and Courts Reasoning

Identify the key law considered by the court. Background and development of the relevant law. Explain how the court applied precedent to the facts. Outline how the courts' reasoning fits with history. Logically group paragraphs to discuss separate issues. Be objective. Do not include your own opinion Keeping in reference the context of the case, the common law offense governing accountability for public nuisance was considered. However the principle is currently under development & a mutual agreement was not present regarding it. Any matter which might involve the threat to lives, safety, wellbeing, assets or comfort of the people or create hindrances in any legal rights of the people of the state is considered to be a public nuisance or by the approval of Lord Bingham of Cornhill in R v Rimmington [2006] maybe referred to as the nuisance hazard.

The important point to reflect on was the point about the relevance of this law in this case, that was proven since the owner failed to abide by his responsibilities & thus ended up in such a case. According to the Overseas Tankship UK [1967] it is reasonable to act upon the public nuisance principle when an individual loss is greater than the public loss; therefore this law has been taken as the key by the court in this case.

The law differs concerning the public & private aspect. Private nuisance is concerned basically with the owner or tenant's actions possibly impairing the welfare of the property belonging to or occupied by another individual. The nuisance hazard must be responsible for a loss or injury to the community in order to be considered by the court.

The principle may be considered only if the plaintiff, defendants are unrelated to the property in question, a number of cases have occurred that did not abide by this rule, for example the case of a vessel discharging oil into navigable waters (Dymond v Pearce [1972]), senders of racially offensive letters (R v Rimmington, R v Goldstein [2006]) & etc.. The focal point of this case is the owner's lapse resulting in a loss of life.

The legal responsibility of the hazard is simply on the defendant especially when in case of a positive act, however in a faux pas, the defendant is considered to be officially informed to eradicate the danger or to avert it from causing damage to the community. If the accident does occur after legal notice the hurt petitioner should be awarded some compensation for the defender's error.

According to the court in a public nuisance case, any public hazard is not dependant on laxity. As proclaimed by Lord Goff of Chieveley, the court can not legally challenge the defendant for any act that resulted in nuisance hazard which he couldn't' foresee. Therefore the defendant's taking care to avoid hazards, when his act is accountable to any negative effect to the community; does not vindicate him from liability.

(Cambridge Water Co v Eastern Counties Leather [1994]) Another fact to be considered is that fixed accountability should not be confused with non-delegable obligation. With respect to this case the defendant was aware of his responsibility to fix a nuisance & he did hire an efficient contractor Chappell for that purpose, however the contractor did not abide by his duties & hence did not remove the hazard which was a lamp in this case.

The negligence of the defendant is also in question since he did not check whether the contractor had fixed the lamp; bearing the responsibility to eradicate the risky article, he could not turn his back on his duties. The contractor is also at fault here since he did not fulfill his obligation; therefore carelessness on both parts has caused the accident.

In case of owners occupying their own property the sole responsibility of any lapse & as a result its legal responsibility is the owners themselves, since having complete rights & control over the land he is sure to be aware of any nuisance hazard present in or around the location. He would be answerable if the hazard causes any injury to any individual. The same principle applies to the owner of an unoccupied land even though he is not in verity present there.

It is his lawful duty to take care of his property & keep a check for any harmful objects, garbage since it is his job to prevent his land from becoming a nuisance to the community (Lindley LJ at 566) As in AG v Tod Heatley, where an owner's unoccupied property had become a public nuisance by dumping of “dead dogs and cats, vegetable refuse, fish, offal, rubbish, and all kinds of filth” by the intruders [1897].

If the land is occupied by lodgers or renters, being the person in charge of the property he is the one responsible for any liability if he fails to control or keep a check for public hazards. However the law considers the occupant & the landlord accountable for any mishap. For example in Wilchick v Marks and Silverstone [1934] a shutter falling from a building injured a bystander, both the owners and the tenant were litigated. It was later revealed that the proprietors were aware of the hazard posed by the shutter and had reserved the right to enter and do repairs if they wanted.

The judge's decision was to dispose the appeal & both conductor & the defendant were liberated keeping in view the fact that the illegal annexation of an object with the building that may cause obdurate & ruthless results like in the present case; hence the continuance was the sole duty of the people occupying the property. However, since the owners had no right to possess or utilize the external walls of the building, the owners were detached from that liability. Chief Justice Li & Mr Justice Chan PJ agreed with Mr Justice Ribeiro PJ when he declared the case as a fatal accident; however Mr. Justice Bokhary PJ counteracted the decision by quoting Lord Reid [1970] “when a new point emerges, one should ask not whether it is covered by authority but whether recognized principles apply to it”.

He stated that the owner was accountable for the deceased woman, since they were aware of the imposing danger but still did not eliminate it; hence the defendant & the contractor should have been given liability & punished for their negligence.

Conclusion

The key law which was considered for the final verdict states that failure to complete a duty which construes liability in public nuisance is punishable. Such an omission may result in being charged and treated as a person accountable for reprehensible act.

In Sedleigh-Denfield v O’Callaghan, [17] Lord Wright regarding this law states about the defendant that. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability.”

The law holds a person accountable for negligence and imposes legal responsibility in case of any damage that might have been justifiably prevented if the person took proper action.

The court also considered that public nuisance is a common law offence .Previously it was judged that as the incorporated owners did not possess the land, so they can not be held responsible for the tragedy. But in the final verdict it as brought to notice that an interest in land is not an essential element.

In R v Dytham (1979) QB 722 an on-duty police officer stood and watched a man beaten to death outside a nightclub. He then left without calling for assistance or summoning an ambulance. He was convicted of the common law offence of willful misconduct in public office

It is to be noted that he police officer was on-duty. In the present case, as told by the judges, it was the duty of the incorporated owners of kwok wing house to check the building for repairs.

In R v Pittwood (1902), the defendant was convicted of gross negligence manslaughter after he failed to close the gate on a level crossing as he was contracted to do. This caused a train to collide with a hay cart, and the court ruled that "a man might incur criminal liability from a duty arising out of contract."

One may also note that the Australian High Court has declared that, as with the tort of negligence, a defendant is not liable in public nuisance unless the injury caused to the plaintiff is of a foreseeable type.

The court decided that as the incorporated owners had sufficient degree of control, which is the principal criterion for recognizing a duty, they must be held responsible for the damage too. The incorporated owners’ duty to maintain the common parts, which included external walls, obliged them to remove any dangerous unauthorized structures that had been attached to those common parts.

The court also noticed that when in 1998 certain waterproofing works had to be done with scaffolding erected on the external wall from the 11th Floor up to top of the building, the opportunity to inspect the canopy was missed.

The Incorporated Owners were not directly responsible but they should have taken pre-cautionary measures to avoid any accidents. A yearly maintenance survey by experts or professional contractors could have saved the hawker from being the victim.

References

Overseas Tankship (UK) Ltd v Miller SS Co Pty, The Wagon Mound (No 2) [1967] 1 AC 617 at 635-636; R v Rimmington, R v Goldstein [2006] 1 AC 459 at 468, §7. Dymond v Pearce [1972] 1 QB 496 R v Rimmington, R v Goldstein [2006] 1 AC 459 R v Rimmington, R v Goldstein [2006] 1 AC 459 at 469-470, §10 Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264 at 300 Lindley LJ At 566, See also Barker v Herbert [1911] 2 KB 633 AG v Tod Heatley [1897] 1 Ch 560 Wilchick v Marks and Silverstone [1934] 2 KB 56 Dorset Yacht Co. Ltd v. Home Office [1970] AC 1004 at pp 1026H - 1027A 10.  Leung Tsang Hung & Another v Incorporated Owners of Kwok Wing House FACV No. 4 of 2007 (Civil) (ON APPEAL FROM CACV No. 195 of 2004) http://lll817.blogspot.com/2007/10/leung-tsang-hung-and-lee-wai-yu-v.html

11.  Public Nuisance - IO is liable to UBWs http://hk.myblog.yahoo.com/jw!hOyexcmXEw5KH7tRLPM-/article?mid=487