Can you claim against the government for injuries sustained in public area?
Introduction
It is trite that the owner of a property generally owns a duty of care
and occupiers’ liability to the user of the property. When a person sustains
injuries in a private property, most probably he will claim against the
property owner for the damage he suffers. However in the event that injuries
are sustained in public area, can the injured claimed against public bodies for
breach of duty? In Lee Priscilla Siok v
Secretary of Justice sued for and on behalf of
Director of Highways [2022] HKCFI 1569, the Court of First Instance
clarifies the circumstances under which public bodies can be held liable for negligence
causing personal injuries claim.
Background
The Plaintiff’s claim
The Plaintiff alleged that she tripped and
fell whilst walking on a footbridge and was about to descend a flight of stairs
sometime between 10 pm to 11 pm. Her foot got caught against the metal edge of
one of the steps so she fell. She landed on both knees and then to her left
side, causing injuries to her knees and left hip.
The Plaintiff sued the Director of Highways (the “Director”) for negligence and sought damages for injuries suffered
in a total sum of about HKD5.7 million. The Plaintiff alleged that the lighting
condition at the footbridge was poor and flickering, and that the accident
was caused by the negligence on the part of the Director. The Plaintiff claimed
against the Director for the following breach of duties: -
1. failing to
take any or any adequate precautions for the safety of the Plaintiff while she
was using the footbridge;
2. exposing the Plaintiff to a risk of damage or injury or which the
Director knew or ought to have known;
3. failing to provide or maintain any or any safe and proper system of
maintenance and to follow that system and/or failing to take proper care for
the safety of the Plaintiff;
4. failing to provide any, or sufficient, lighting at the footbridge
for the safe use of the footbridge; and
5. failing to provide the Plaintiff with a safe and serviceable
footbridge and to maintain the integrity of the footbridge network with
particular emphases on safety and serviceability.
Decisions
In order to
succeed in her negligence claim against the Director, the Plaintiff has to show
that (1) the Director owed her a duty of care; (2) that there was a breach of
that duty; (3) that the Plaintiff suffered damage as a result, and (4) that the
damage was not being too remote.
Whether the
Director owed a duty of care
The Plaintiff
argued that as personal safety is at stake and the risk goes to life and limb,
the principle of fairness, justice and reasonableness shall justify the
imposition of a duty of care on the Director. On the other hand, the Director
averred that the footbridge was a public right of way and he owned no duty to
the Plaintiff.
There is no
dispute that the footbridge is a public right of way. The Court started off
from the orthodox common law position that the owner of land over which a
public right of way passes is under no liability for negligent nonfeasance
towards members of the public using it. Nonfeasance, which refers to “failing
to confer a benefit” shall be distinguished from misfeasance, which means “causing
harm”. Some case precedents in the UK with similar facts as current case have
clarified that the failure to provide sufficient lighting by a public authority
is a nonfeasance than a misfeasance because their act does not cause or add to
the inherent danger, but on the contrary is an attempt to reduce it.
The Court considered that all the
particulars of the negligence claim pleaded by the Plaintiff are allegations
that the Director had failed to make things better, rather than the Director
had made things worse for the Plaintiff. They are hence claims on misfeasance
and the Director shall be benefited from the common law immunity for
nonfeasance.
Whether there
was a breach of duty of care
For the sake of completeness, the Court
went on to consider if there was a duty of care owed to the Plaintiff, whether
the Director had breached the duty. The Court
ruled in favour of the Director, who pleaded that he had maintained a system of
maintenance of the road network to ensure safety of users. The actual inspection
of the footbridge 1-2 days before the alleged accident did not identify any
defects of the surface of the footbridge. The lighting of the footbridge had also been under regular functional tests, annual
cleaning adjustments and replacement of defective lamps.
The Court considered the measures put in
place by the Directors attempts to “make things better” by ensuring better lighting and that faulty lights or road
surface was repaired. The Director did not make things worse. There was no
breach of duty on the part of the Director.
Meanwhile, the Court also consider the
evidence of the Plaintiff full of inconsistencies and hence is insufficient to prove
that the accident did occur. The claim of the Plaintiff was dismissed.
Key takeaways
The Court’s decision affirmed that the
public bodies will generally not be held liable to any negligent nonfeasance
claim relating to a public right of way. As such, whether a person who sustains
injuries in a public area can claim against public bodies depends on whether the
act or omission of the same create or add to the inherent danger. Having said
that, there is not always straight and forward answer when it comes to real
life scenario. When in doubt, one shall seek further legal advice to better
protect his interests.
For enquiries,
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Important: The law and procedure on
this subject are very specialised 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. |
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Published by ONC Lawyers © 2022 |
