LEUNG TSANG HUNG AND ANOTHER v. TSE YIU PUI AND OTHERS

LEUNG TSANG HUNG AND ANOTHER v. TSE YIU PUI AND OTHERS

The 2nd Defendant, as occupier who used and benefited from the unauthorised extended canopy adjoining a busy public highway, owed and breached an absolute duty in nuisance and a duty of care in negligence to maintain the canopy; res ipsa loquitur applies and causation is established by want of repair. The 3rd Defendant (incorporated owners) had no sufficient control over the illegal extended canopy to impose a duty to inspect or repair and is not liable. Contractual allocation of repair between landlord and tenant does not negate the occupier's tortious duty to third parties.

Citation
LEUNG TSANG HUNG AND ANOTHER v. TSE YIU PUI AND OTHERS
Parties
Plaintiffs: Leung Tsang Hung and Lee Wai Yu (administrators of the estate of Liu Ngan Fong Sukey, deceased); 1st Defendants: Tse Yiu Pui and Ho Lai Bing; 2nd Defendant: Chan Kwok Chi; 3rd Defendant: The Incorporated Owners of Kwok Wing House
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 May 2004
Case Number
HCPI595/2002
Procedural Posture
Personal Injuries (fatal Accidents Ordinance) / Judgment at First Instance (court of First Instance)
Outcome
Judgment for Plaintiffs against 1st and 2nd Defendants; claim against 3rd Defendant dismissed
Legal Topics
Occupier's Liability, Duty to Repair, Res Ipsa Loquitur, Latent Defects, Deed of Mutual Covenant, Assessment of Damages
Source Language
EN
Tort Negligence Nuisance Building Management Fatal Accidents Occupier's Liability Duty to Repair Res Ipsa Loquitur +3 more

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Parties

Leung Tsang Hung and Lee Wai Yu (administrators of the estate of Liu Ngan Fong Sukey, deceased)

Plaintiffs

Tse Yiu Pui and Ho Lai Bing

1st Defendants

Chan Kwok Chi

2nd Defendant

The Incorporated Owners of Kwok Wing House

3rd Defendant

Procedural Posture

Personal Injuries (fatal Accidents Ordinance) / Judgment at First Instance (court of First Instance)

Legal Issues

  1. 1 Whether occupier/owner/manager owed duty to repair or inspect the unauthorised extended canopy
  2. 2 Whether the defendant(s) breached any duty to repair or inspect
  3. 3 Causation of collapse and applicability of res ipsa loquitur

Ratio Decidendi

The 2nd Defendant, as occupier who used and benefited from the unauthorised extended canopy adjoining a busy public highway, owed and breached an absolute duty in nuisance and a duty of care in negligence to maintain the canopy; res ipsa loquitur applies and causation is established by want of repair. The 3rd Defendant (incorporated owners) had no sufficient control over the illegal extended canopy to impose a duty to inspect or repair and is not liable. Contractual allocation of repair between landlord and tenant does not negate the occupier's tortious duty to third parties.

Court Disposition

Judgment for Plaintiffs against 1st and 2nd Defendants; claim against 3rd Defendant dismissed

Orders

  • Judgment for Plaintiffs for HKD 1,554,742.00 against the 1st and 2nd Defendants
  • Plaintiffs' claim against the 3rd Defendant dismissed with costs