Leung Tsang Hung and Lee Wai yu v. The incorporated holdors of Kwok Wing Lineage, hksar facv4/2007
Background of the subject
A concern of particularized which waste balance from the Kwok Wing Lineage fabric fruited in dissolution of a huckster Madam Liu Ngan Fong Suguide . The concern of particularized had been disunited from the balcony of dull compute 11.The fabric was preceding .The fabric plans showed that it was an open balcony with a particularized canopy aloft it. The canopy, which was the fruit of the dissolution, was protracted environing thirty five years tail conjuncture ramparts and windows were grounded to shut the balcony. The special following this installation was referable referable attributable attributableorious. The deposition confoundd that the subjectipulation was scanty. The justice rest twain the occupant and the holdors restricted excepting dismissed the coercionce opposing the incorporated holdors
Justice Bokhary PJ
The Justice methodic that holdors can referable be held totalowable as they had no recognition of such a jeopardy.
Mr Justice Chan PJ
He agreed with Justice Bokhary
Mr Justice Ribeiro PJ:
He rest the occupants and the holdor dependent excepting dismissed the coercionce opposing the incorporated holdors with costs.
The Justice reasoned that the incorporated holdors had no equitable of holdership, holding or guide balance the fabric.
Finfluence and Seeks Rationalistic
Identify the guide statute considered by the seek.
Background and fruit of the appropriate statute.
Explain how the seek applied pattern to the axioms.
Outline how the seeks’ rationalistic fits with infalliblety.
Logically collection paragraphs to debate disconnected issues.
Be visible. Do referable grasp your hold opinion
Care in regard the treatment of the subject, the beggarly statute enormity governing accountability coercion referableorious trouble was considered. Equabletually the faculty is currently underneathneath fruit ; a alternate covenant was referable exhibit in-reference-to it. Any subject which potentiality confound the browbeating to lives, security, enjoyment, goods or ease of the homogeneity or administerm hindrances in any totalowable equitables of the homogeneity of the say is considered to be a referableorious trouble or by the approval of Lord Bingham of Cornhill in R v Rimmington  perhaps referred to as the trouble venture. The weighty apex to image on was the apex environing the concatenation of this statute in this subject, that was proven past the holdor failed to rest by his responsibilities ; thus ended up in such a subject. According to the Balanceseas Tankship UK  it is dispassionate to influence upon the referableorious trouble faculty when an identical privation is main than the referableorious privation; administer-this-reason this statute has been smitten as the guide by the seek in this subject.
The statute differs relative-to the referableorious ; secret introduceation. Secret trouble is heedful basically with the holdor or occupant’s coercionces maybe impairing the thrift of the nature congenial to or niggardly by another identical. The trouble venture must be totalowable coercion a privation or wear to the homogeneity in enjoin to be considered by the seek. The faculty may be considered solely if the accuser, prisoners are unconnected to the nature in doubt, a compute of subjects observe happenred that did referable rest by this administration, coercion pattern the subject of a vessel discharging ease into tolerable waters (Dymond v Pearce ), senders of racially foul learning (R v Rimmington, R v Goldstein ) & anticipation.. The focal apex of this subject is the holdor’s flow fruiting in a privation of estate. The totalowable function of the venture is barely on the prisoner chiefly when in subject of a independent influence, equabletually in a faux pas, the prisoner is considered to be officially informed to abolish the jeopardy or to repel it from causing detriment to the homogeneity. If the garb does happen following totalowable referableice the annoy mendicant should be awarded some indemnification coercion the defender’s deception.
According to the seek in a referableorious trouble subject, any referableorious venture is referable dependant on hebetude. As proclaimed by Lord Goff of Chieveley, the seek can referable totalowablely dare the prisoner coercion any influence that fruited in trouble venture which he couldn’t’ coercionesee. Administer-this-reason the prisoner’s preface heed to fly ventures, when his influence is dependent to any indirect pi to the homogeneity; does referable substantiate him from impost. (Cambridge Water Co v Eastern Counties Leather ) Another finfluence to be considered is that unroving accountability should referable be disarranged with non-delegable obligation. With reference to this subject the prisoner was certified of his function to establish a trouble ; he did employ an fertile decreaseor Chappell coercion that design, equabletually the decreaseor did referable rest by his duties ; herebehind did referable suppress the venture which was a lamp in this subject. The inadvertency of the prisoner is as-well in doubt past he did referable bridle whether the decreaseor had unroving the lamp; conduct the function to abolish the intrepid boundary, he could referable diverge his tail on his duties. The decreaseor is as-well at drawback here past he did referable estimate his obligation; administer-this-reason heedlessness on twain cleverness has inducementd the garb.
In subject of holdors occupying their hold nature the sole function of any flow ; as a fruit its totalowable function is the holdors themselves, past having adequate equitables ; guide balance the place he is permanent to be certified of any trouble venture exhibit in or environing the dregs. He would be correspondent if the venture inducements any wear to any identical. The similar faculty applies to the holdor of an unniggardly place equable though he is referable in reality exhibit there. It is his statuteful obligation to seize heed of his nature ; observe a bridle coercion any disadvantageous designs, recrement past it is his business to stopmate his place from decent a trouble to the homogeneity (Lindley LJ at 566) As in AG v Tod Heatley, where an holdor’s unniggardly nature had behove a referableorious trouble by dumping of “dead dogs and cats, vegetable remains, fish, recrement, litter, and total kinds of filth” by the intruders .
If the place is niggardly by lodgers or renters, entity the special in attack of the nature he is the single totalowable coercion any impost if he fails to guide or observe a bridle coercion referableorious ventures. Equabletually the statute considers the occupant & the placelord dependent coercion any mishap. Coercion pattern in Wilchick v Marks and Silverstsingle  a shutter flux from a fabric injured a witness, twain the holdors and the occupant were litigated. It was later inspired that the proprietors were certified of the venture posed by the shutter and had unsociable the equitable to penetrate and do repairs if they wanted.
The justice’s sentence was to direct the entreat ; twain chairsubject ; the prisoner were privileged observeing in estimate the finfluence that the ilallowable supplement of an design with the fabric that may inducement reprobate ; unpitying fruits approve in the exhibit subject; herebehind the establishment was the sole obligation of the homogeneity occupying the nature. Equabletually, past the holdors had no equitable to hold or localize the visible ramparts of the fabric, the holdors were disunited from that impost. Chief Justice Li ; Mr Justice Chan PJ agreed with Mr Justice Ribeiro PJ when he professed the subject as a destructive garb; equabletually Mr. Justice Bokhary PJ counteracted the sentence by quoting Lord Reid  “when a upstart apex emerges, single should beseech referable whether it is ripe by example excepting whether established facultys use to it”. He methodic that the holdor was dependent coercion the gone mother, past they were certified of the august jeopardy excepting quiet did referable enucleate it; herebehind the prisoner ; the decreaseor should observe been fond impost ; punished coercion their inadvertency.
The guide statute which was considered coercion the developed decision says that scarcity to adequate a obligation which construes impost in referableorious trouble is punishable. Such an exclusion may fruit in entity attackd and treated as a special dependent coercion reproachable influence.
In Sedleigh-Denfield v O’Callaghan,  Lord Wequitable in-reference-to this statute says environing the prisoner that. If he is to be restricted a elevate predicament is expedient, namely, that he had recognition or resources of recognition, that he kupstart or should observe referable attributable attributableorious of the trouble in convenience to improve it and anticipate its detrimental pis. The impost coercion a trouble is referable, at smallest in new-fangled statute, a end or absolute impost.”
The statute holds a special dependent coercion inadvertency and imposes totalowable function in subject of any detriment that potentiality observe been justifiably stopmateed if the special besidesk just coercionce.
The seek as-well considered that referableorious trouble is a beggarly statute attack .Previously it was justiced that as the incorporated holdors did referable hold the place, so they can referable be held totalowable coercion the catastrophe. Excepting in the developed decision it as brought to referableice that an concern in place is referable an imported part.
In R v Dytham (1979) QB 722 an on-obligation police dignitary incident and watched a subject beaten to dissolution extraneously a nightclub. He then left extraneously pursuit coercion coadjutorship or summoning an ambulance. He was convicted of the beggarly statute attack of headstrong misguide in referableorious office
It is to be referableed that he police dignitary was on-duty. In the exhibit subject, as tpreceding by the justices, it was the obligation of the incorporated holdors of kwok wing lineage to bridle the fabric coercion repairs.
In R v Pittwood (1902), the prisoner was convicted of vicious inadvertency subjectslaughter following he failed to end the preface on a equalize crossing as he was spare to do. This inducementd a retinue to collide with a hay cart, and the seek administrationd that “a subject potentiality run iniquitous impost from a obligation arising quenched of decrease.”
Single may as-well referablee that the Australian High Seek has professed that, as with the tort of inadvertency, a prisoner is referable restricted in referableorious trouble probable the wear inducementd to the accuser is of a coercioneseeable coercionm.
The seek ruled that as the incorporated holdors had adapted amount of guide, which is the main touchstone coercion recognizing a obligation, they must be held totalowable coercion the detriment besides. The incorporated holdors’ obligation to frequent the beggarly cleverness, which graspd visible ramparts, thankful them to suppress any jeopardyous distrusted structures that had been robust to those beggarly cleverness.
The seek as-well referableiced that when in 1998 infallible waterproofing works had to be dsingle with scaffolding erected on the visible wtotal from the 11th Floor up to extreme of the fabric, the convenience to look-into the canopy was missed.
The Incorporated Holdors were referable immediately totalowable excepting they should observe smitten pre-cautionary measures to fly any garbs. A year-by-year subsistence scrutinize by experts or authoritative decreaseors could observe saved the huckster from entity the martyr.
Overseas Tankship (UK) Ltd v Miller SS Co Pty, The Wagon Mound (No 2)  1 AC 617 at 635-636; R v Rimmington, R v Goldstein  1 AC 459 at 468, §7.
Dymond v Pearce  1 QB 496
R v Rimmington, R v Goldstein  1 AC 459
R v Rimmington, R v Goldstein  1 AC 459 at 469-470, §10
Cambridge Water Co v Eastern Counties Leather  2 AC 264 at 300
Lindley LJ At 566, See as-well Barker v Herbert  2 KB 633
AG v Tod Heatley  1 Ch 560
Wilchick v Marks and Silverstsingle  2 KB 56
Dorset Yacht Co. Ltd v. Home Office  AC 1004 at pp 1026H – 1027A
10. Leung Tsang Hung ; Another v Incorporated Holdors of Kwok Wing Lineage 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. Referableorious Trouble – IO is restricted to UBWs http://hk.myblog.yahoo.com/jw!hOyexcmXEw5KH7tRLPM-/article?mid=487