Who Would Be Liable if I Was Struck by a Fallen Object of a Building?

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Fallen object is a great risk to the safety of passers-by on the street. It can be caused by (i) person throwing object from his apartment or (ii) an object, such as a piece of concrete, being dropped or fell from a building. 

The Law
A victim who was struck by a fallen object of a building and suffered personal injuries can claim damages against the wrongdoers in both negligence and public nuisance. Negligence refers to a breach of duty of care by the wrongdoers. Public nuisance is a state of affairs that endangered the lives, safety, health, property or comfort of the public; or obstructed the public in the exercise or enjoyment of any right that was common to members of the public (i.e. nuisance hazard). The defendant might be liable for the nuisance either on the basis of an act, or an omission where he or she was under a legal duty to neutralize the nuisance hazard.

Parties to be sued
If the accident is caused by a person throwing an object from his apartment, obviously the person throwing the object will be liable. If the accident is caused by an object being fell from a building, the owner of the apartment from where the object fell, its tenant and/or occupier, the contractors who carried out the construction, repair or decoration works at the time the object fell, the incorporated owners of the building and its building manager could all be found liable.

The case Lily Tse Lai Yin v The Incorporated Owners of Albert House & Other [1999] HKEC 825 illustrates who would be liable when an object fell from a building and caused personal injuries.

The case
In Lily Tse Lai Yin, a concrete canopy was built around the 1st Floor of Albert House. The canopy collapsed and fell onto the pavement below. As a result of the collapse, a number of pedestrians were injured and killed.

Liability of tenant/occupier
The 1st Floor of Albert House was occupied by a restaurant at the time of the accident. Immediately after the accident, the Building Department carried out a full investigation as to the collapse. The Building Department found that the tenant and occupier of the 1st Floor of Albert House were instrumental in overloading the canopy by having a fish tank and advertising sign erected. They had failed to take any steps to maintain the canopy or to keep it in any sort of repair, even when cracks appeared at the surface with the interface between the canopy and the building.

Therefore, the Court held that the tenant/occupier had not only created the dangerous state of the canopy posed to the public below, but had allowed it to continue by failing to take any necessary steps to curb such danger. They were found liable in negligence and nuisance.

Liability of owner
The owner of the 1st Floor of Albert House (i.e. the landlord) had reserved the right to enter the premises, examine the condition of and require the tenant to do necessary repairs. Therefore, the Court held that the landlord knew or ought to have known that the canopy was in an unstable if not dangerous state and required maintain and repair. It must have been reasonably foreseeable to the landlord that if the canopy collapsed due to the want of repair, there would be a likelihood of pedestrians being injured by such collapse. Accordingly, the Court also found the landlord liable in negligence and nuisance.

Liability of incorporated owners
The key question is whether the canopy was part of the common area of Albert House. If it is so, the incorporated owners are in law effectively the owner of the canopy and should have the necessary control of the canopy so as to be saddled with the legal responsibility of seeing that the canopy is maintained and kept in proper repair.

The Court held that the canopy is within the meaning of “common parts” in a multi-storey building as defined in section 2 of the Building Management Ordinance and hence the incorporated owners are liable in negligence and nuisance for failing to carry out their duties to maintain the canopy.

Liability of the building manager
Professional building managers should ascertain for themselves which are the common parts of the building. Accordingly, the Court held that they knew or ought to have known that the canopy was a common part of Albert House. 

The Court also held that the building managers had sufficient control of the canopy and knew or ought to have known of the dangerous state the canopy was in. It would have been reasonable to have expected the professional building managers to have called in experts to inspect and to ensure that the canopy was in a safe condition and not dangerous to the public below it. The building manager did nothing to curb the danger and was found liable in negligence and nuisance.

 
IMPORTANT:
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
 
For enquiries, please contact our Insurance & Personal Injury Department:
E: insurance_pi@onc.hk
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T: (852) 2810 1212
F: (852) 2804 6311
 

Published by ONC Lawyers © 2013