Leung Tsang Hung and Lee Wai Yu The incorporated owners of kwok wing house
Leung Tsang Hung and Lee Wai yu v. The incorporated proprietors of Kwok Wing House, hksar facv4/2007
Background of the contingency
A province of indurated which subvert balance from the Kwok Wing Scion structure remaindered in demise of a costermonger Madam Liu Ngan Fong Sukey . The province of indurated had been different from the balcony of horizontal sum 11.The structure was old .The structure plans showed that it was an open balcony behind a turn a indurated canopy aggravatehead it. The canopy, which was the remainder of the demise, was unabrupt environing thirty five years end turn embankments and windows were unwandering to afforest the balcony. The identical astern this installation was not unreserved. The declaration implied that the handicraft was moneyless. The critic fix twain the occupier and the proprietors subject but dismissed the renewal opposing the incorporated proprietors
Justice Bokhary PJ
The Justice commandly that proprietors can not be held directable on as they had no comprehension of such a peril.
Mr Justice Chan PJ
He agreed behind a turn Justice Bokhary
Mr Justice Ribeiro PJ:
He fix the occupiers and the proprietor amenable but dismissed the renewal opposing the incorporated proprietors behind a turn costs.
The Critic reasoned that the incorporated proprietors had no equitable of tenure, avocation or guide balance the structure.
History and Courts Reasoning
Identify the key law considered by the affect.
Background and harvest of the applicable law.
Explain how the affect applied warrant to the axioms.
Outline how the affects' forced fits behind a turn truth.
Logically cluster paragraphs to argue disjoined issues.
Be concrete. Do not apprehend your own opinion
Keeping in regard the texture of the contingency, the spiritless law enormity superior accountability for generally-unreserved plague was considered. Ultimately the power is currently below harvest ; a interchangeable covenant was not offer in-reference-to it. Any subject which strength complicate the menace to lives, security, enjoyment, commoditiess or self-acclamation of the populace or invent hindrances in any legitimate equitables of the populace of the declare is considered to be a generally-unreserved plague or by the acclamation of Lord Bingham of Cornhill in R v Rimmington  perchance referred to as the plague stake. The dignified top to image on was the top environing the relation of this law in this contingency, that was proven gone the proprietor failed to hinder by his responsibilities ; thus ended up in such a contingency. According to the Overseas Tankship UK  it is sound to act upon the generally-unreserved plague power when an identical trouble is superior than the generally-unreserved trouble; for-this-reason this law has been enslaved as the key by the affect in this contingency.
The law differs touching the generally-unreserved ; special opinion. Special plague is unquiet basically behind a turn the proprietor or occupier's renewals haply impairing the prosperity of the peculiarity related to or clogged by another identical. The plague scapture must be directable on for a trouble or defective to the vilewealth in command to be considered by the affect. The power may be considered idiosyncraticly if the plaintiff, accuseds are not allied to the peculiarity in scrutiny, a sum of contingencys accept arisered that did not hinder by this administration, for development the contingency of a vessel discharging oil into tolerable waters (Dymond v Pearce ), senders of racially distasteful scholarship (R v Rimmington, R v Goldstein ) & etc.. The focal top of this contingency is the proprietor's flow remaindering in a trouble of specialality. The legitimate once of the scapture is simply on the accused especially when in contingency of a confident act, ultimately in a faux pas, the accused is considered to be officially certified to uproot the peril or to guard it from causing trouble to the vilewealth. If the clothing does arise behind legitimate give-heed-to the trouble applicant should be awarded some pay for the defender's deception.
According to the affect in a generally-unreserved plague contingency, any generally-unreserved scapture is not dependant on coolness. As proclaimed by Lord Goff of Chieveley, the affect can not legitimately investigation the accused for any act that remaindered in plague scapture which he couldn't' foretell. For-this-reason the accused's taking foresight to forsake stakes, when his act is amenable to any indirect commodities to the vilewealth; does not uphold him from jurisdiction. (Cambridge Water Co v Eastern Counties Leather ) Another deed to be considered is that unwandering accountability should not be involved behind a turn non-delegable covenant. Behind a turn i-elation to this contingency the accused was apprised of his once to fix a plague ; he did engage an fruitful agreeor Chappell for that aim, ultimately the agreeor did not hinder by his duties ; hitherbehind did not transport the scapture which was a lamp in this contingency. The improvidence of the accused is so in scrutiny gone he did not stop whether the agreeor had unwandering the lamp; conduct the once to uproot the foolhardy article, he could not rotate his end on his duties. The agreeor is so at want hither gone he did not aim his covenant; for-this-reason foresightlessness on twain calibre has creatord the clothing.
In contingency of proprietors occupying their own peculiarity the idiosyncratic once of any flow ; as a remainder its legitimate once is the proprietors themselves, gone having adequate equitables ; guide balance the fix he is confident to be apprised of any plague scapture offer in or encircling the residuum. He would be amenable if the scapture creators any defective to any identical. The selfselfsame power applies to the proprietor of an unclogged fix flush though he is not in in-existence offer there. It is his orderly province to capture foresight of his peculiarity ; frequent a stop for any harmful views, sediment gone it is his job to nullify his fix from decent a plague to the vilewealth (Lindley LJ at 566) As in AG v Tod Heatley, whither an proprietor's unclogged peculiarity had befit a generally-unreserved plague by dumping of “dead dogs and cats, vegetable trash, fish, sediment, dross, and all kinds of filth” by the intruders .
If the fix is clogged by lodgers or renters, life the identical in direct of the peculiarity he is the one directable on for any jurisdiction if he fails to guide or frequent a stop for generally-unreserved stakes. Ultimately the law considers the proprietor & the fixlord amenable for any visitation. For development in Wilchick v Marks and Silverstone  a shutter devolution from a structure injured a observer, twain the proprietors and the occupier were litigated. It was following revealed that the proprietors were apprised of the scapture posed by the shutter and had backwardness the equitable to invade and do repairs if they wanted.
The critic's resolution was to arrange the entreat ; twain conductor ; the accused were irunder obligation frequenting in opinion the deed that the illegitimate addition of an view behind a turn the structure that may creator reprobate ; unpitying remainders affect in the offer contingency; hitherbehind the perpetuation was the idiosyncratic province of the populace occupying the peculiarity. However, gone the proprietors had no equitable to enjoy or husband the visible embankments of the structure, the proprietors were different from that jurisdiction. Chief Justice Li ; Mr Justice Chan PJ agreed behind a turn Mr Justice Ribeiro PJ when he avowed the contingency as a lethal clothing; ultimately Mr. Justice Bokhary PJ counteracted the resolution by quoting Lord Reid  “when a new top emerges, one should ask not whether it is habituated by example but whether normal powers allot to it”. He commandly that the proprietor was amenable for the cheerless dame, gone they were apprised of the commanding peril but tranquil did not exclude it; hitherbehind the accused ; the agreeor should accept been fond jurisdiction ; punished for their improvidence.
The key law which was considered for the conclusive finding declares that scarcity to adequate a province which construes jurisdiction in generally-unreserved plague is punishable. Such an exclusion may remainder in life directd and treated as a identical amenable for reproachable act.
In Sedleigh-Denfield v O’Callaghan,  Lord Wequitable in-reference-to this law declares environing the accused that. If he is to be subject a advance qualification is indispensable, namely, that he had comprehension or instrument of comprehension, that he knew or should accept unbackwardness of the plague in space to improve it and obstruct its injurious commoditiess. The jurisdiction for a plague is not, at smallest in recent law, a stringent or arbitrary jurisdiction.”
The law holds a identical amenable for improvidence and imposes legitimate once in contingency of any trouble that strength accept been justifiably nullifyed if the identical took befitting renewal.
The affect so considered that generally-unreserved plague is a spiritless law sin .Previously it was criticd that as the incorporated proprietors did not enjoy the fix, so they can not be held directable on for the calamity. But in the conclusive finding it as brought to give-heed-to that an concern in fix is not an accidental atom.
In R v Dytham (1979) QB 722 an on-province police administrator intelligible and watched a man beaten to demise outerly a nightclub. He then left behind a turnout avocation for coadjutorship or attracting an ambulance. He was convicted of the spiritless law sin of preconcerted follow in generally-unreserved office
It is to be famous that he police administrator was on-duty. In the offer contingency, as told by the critics, it was the province of the incorporated proprietors of kwok wing scion to stop the structure for repairs.
In R v Pittwood (1902), the accused was convicted of vicious improvidence manslaughter behind he failed to cork the commencement on a roll transection as he was slender to do. This creatord a retinue to penetrate behind a turn a hay cart, and the affect administrationd that "a man strength run culpable jurisdiction from a province arising out of agree."
One may so voice that the Australian High Affect has avowed that, as behind a turn the tort of improvidence, a accused is not subject in generally-unreserved plague regular the defective creatord to the plaintiff is of a foretellable pattern.
The affect firm that as the incorporated proprietors had adapted grade of guide, which is the main touchstone for recognizing a province, they must be held directable on for the trouble too. The incorporated proprietors’ province to detain the spiritless calibre, which apprehendd visible embankments, obliged them to transport any perilous unacknowledged structures that had been robust to those spiritless calibre.
The affect so give-heed-tod that when in 1998 unmistakable waterproofing works had to be done behind a turn scaffolding erected on the visible embankment from the 11th Floor up to top of the structure, the turn to overhaul the canopy was missed.
The Incorporated Owners were not at-once directable on but they should accept enslaved pre-cautionary measures to forsake any clothings. A year-by-year defence scan by experts or authoritative agreeors could accept saved the costermonger from life the prey.
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 so Barker v Herbert  2 KB 633
AG v Tod Heatley  1 Ch 560
Wilchick v Marks and Silverstone  2 KB 56
Dorset Yacht Co. Ltd v. Home Office  AC 1004 at pp 1026H - 1027A
10. Leung Tsang Hung ; Another v Incorporated Owners of Kwok Wing Scion 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. Generally-unreserved Plague - IO is subject to UBWs http://hk.myblog.yahoo.com/jw!hOyexcmXEw5KH7tRLPM-/article?mid=487