Hong Kong Case Law: Decisions & Judgments

Topic

Latent defect

Legal area

Court

16 Jun 2020

FONG CHONG CHUEN v. THE BOYS’AND GIRLS’CLUBS ASSOCIATION OF HONG KONG

Citation

[2020] HKDC 360
Court

District Court
Case number

DCPI548/2018

Leave to appeal denied because none of the proposed grounds met the reasonable prospect of success threshold: the trial court's findings that the collapse was due to inability to bear the combined weight of three participants and that the risk of that collapse was reasonably foreseeable were supportable on the evidence; the defendant elected not to call expert evidence and cannot now complain; specific pleading of precise cause was unnecessary where duty and breach were pleaded; latent defect was not demonstrated; the balancing exercise was fact sensitive and correctly performed; and no basis…
15 Oct 2019

FONG CHONG CHUEN v. THE BOY’AND GIRLS’ CLUBS ASSOCIATION OF HONG KONG

Citation

[2019] HKDC 1305
Court

District Court
Case number

DCPI548/2018

Defendant breached its duty by failing to take reasonable steps to ascertain and control the bridge's load-bearing capacity in circumstances where it was foreseeable that at least three participants would use the bridge at the same time; that failure caused the collapse and plaintiff's injuries and the defendant did not discharge its evidential burden to prove a latent defect.
8 Jun 2011

V SHAPES MOULDERS LTD v. PACIFIC DUNLOP GARMENTS LTD

Citation

V SHAPES MOULDERS LTD v. PACIFIC DUNLOP GARMENTS LTD
Court

Court of First Instance
Case number

HCA493/2008

On the evidence the Court found the Plaintiff defective in moulding operations (excessive temperature/dwell time and failure to follow specification) causing yellowing of moulded shell fabrics and apex/fitting defects so the goods failed to correspond with samples and breached SOGO implied terms; the Defendant accepted bulk goods by processing and delivery so lost right of rejection but could recover damages for losses incurred before acceptance; foam cup yellowing was a latent defect but no established trade practice of 20 weeks or sufficient evidence to fix Plaintiff liability for foam; no…
16 Nov 2009

CHENG KAI KIT v. KWONG KAM TIM MARBLE CO LTD AND ANOTHER

Citation

CHENG KAI KIT v. KWONG KAM TIM MARBLE CO LTD AND ANOTHER
Court

District Court
Case number

DCPI2627/2008

On the balance of probabilities the plaintiff failed to prove the ladder was defective prior to the fall and that any latent defect caused the accident; the fall was found to be a slip while descending and causation and breach by KKT or FY were not established; accordingly liability not proved and claim dismissed.
5 Jan 2005

MODERN SEAS LTD v. SHUN TAT LEE LTD

Citation

MODERN SEAS LTD v. SHUN TAT LEE LTD
Court

District Court
Case number

DCCJ6804/2003

Defendant accepted the goods, had the contractual seven-day period to complain and failed to do so; no credible evidence of a latent defect was presented; returned yarns were accepted as goodwill not admission of defect; consequently plaintiff proved claim for the unpaid balance and defendant is not entitled to set-off or air freight reimbursement.
27 Jun 2003

SANFIELD BUILDING CONTRACTORS LTD v. LI KAI CHEONG

Citation

SANFIELD BUILDING CONTRACTORS LTD v. LI KAI CHEONG
Court

Court of Final Appeal
Case number

FACV16/2002

Where an accident of unknown cause would not ordinarily occur without negligence, res ipsa loquitur permits the court to infer negligence against persons in control unless an acceptable explanation is offered; a defendant cannot defeat that inference by pointing to an unspecified, discoverable defect; concurrent factual findings stand absent special circumstances; the appellant failed to rebut the inference and the appeal (liability and costs) is dismissed.
22 Oct 2002

LI KAI CHEONG v. LAM YING WAI t/a CHI SHING SOLDERING FACTORY AND OTHERS

Citation

LI KAI CHEONG v. LAM YING WAI t/a CHI SHING SOLDERING FACTORY AND OTHERS
Court

Court of Appeal
Case number

CACV140/2002

Majority held the trial judge was entitled to accept the plaintiff and Mr Chan's evidence, to apply res ipsa loquitur and infer that a defect in the scaffold caused the accident, and that the 3rd and 4th defendants failed to discharge the evidential burden to show absence of negligence or to support reliance on the Form 5 certificate; accordingly the 3rd and 4th defendants were liable while the 1st defendant was exculpated on the basis of relying on equipment supplied with a recent Form 5 certificate.
14 May 2001

RICHMOND (H.K.) LTD. AND ANOTHER v. WING ON CHEONG WATCH INDUSTRIES LTD.

Citation

RICHMOND (H.K.) LTD. AND ANOTHER v. WING ON CHEONG WATCH INDUSTRIES LTD.
Court

Court of First Instance
Case number

HCA16479/1998

The contract was a sale by sample; the bulk did not correspond with the sample because the straps failed to change colour in sunlight and exhibited a latent defect (white particles and opacity); the defendant was entitled to treat the breach as giving rise to damages and to set off the US$12,500 settlement with Nuova (converted to HK$15,600) against the plaintiff's claim; the plaintiff's claim for HK$81,900 was dismissed and the defendant awarded judgment for the shortfall plus interest and costs.
1 Dec 2000

WONG SAU KAM AND ANOTHER v. SHUM YUK FONG AND OTHERS

Citation

WONG SAU KAM AND ANOTHER v. SHUM YUK FONG AND OTHERS
Court

Court of First Instance
Case number

HCPI798/1998

Summary judgment refused because the 1st defendant's knowledge of the dangerous state of the unauthorized canopy was in dispute and knowledge is a fact-intensive issue inappropriate for interlocutory inference; unconditional leave to defend granted. Interim payment application dismissed because the court was not satisfied the plaintiffs would obtain judgment against the 1st defendant and there are conflicting authorities on making interim payments where leave to defend is granted.
10 Dec 1999

THE BANK OF EAST ASIA, LTD. v. TSIEN WUI MARBLE FACTORY LTD. AND OTHERS and REMO RIVA AND OTHERS (Third Parties)

Citation

THE BANK OF EAST ASIA, LTD. v. TSIEN WUI MARBLE FACTORY LTD. AND OTHERS and REMO RIVA AND OTHERS (Third Parties)
Court

Court of Final Appeal
Case number

FACV21/1998

Majority held that the Limitation Ordinance and settled authorities require that in latent defect cases a cause of action accrues when relevant damage in a real and substantial sense first occurred (Pirelli principle as incorporated into Hong Kong law); on the evidence the physical/economic damage first occurred about 1985, thus the cause of action accrued before 1 July 1985 and the actions were statute-barred; s.31 did not assist because the cause of action was already time-barred when the 1991 amendments took effect; Bank’s appeals dismissed.