Introduction

On 5 March 2020, the Hong Kong Court of First Instance (“CFI”) handed down a judgment (Tang Ho Hei v Chan Po Mei [2020] HKCFI 342) which held that the defendant is liable to the plaintiff for personal injuries when the miscellaneous articles placed at the common staircase outside the defendant’s flat obstructed the plaintiff’s escape path to the roof during a fire.

Background

A fire occurred in a 6-storey tenement building (the “Building”) on 4 November 2011. When the plaintiff, who was the individual owner of the flat located on the 3^rd floor, was escaping to the roof of the building, she was obstructed by the articles which the defendant had left (or allowed to have been left) in the staircase from the 5^th floor to the roof floor (the “Obstruction”).

The plaintiff’s case can be encapsulated as follows: the Obstruction created by the defendant delayed her escape from the 5^th floor to the roof and prolonged her exposure to very high temperatures (as well as delaying the rescuers’ access to the roof), thereby causing/materially contributing to the serious burn injuries that she sustained.

The defendant did not advance a positive case in respect of the fire and instead put the plaintiff to strict proof as to how her injuries were caused. The defendant challenged that the plaintiff’s injuries was sustained not at or around the 5^th floor to the roof floor, but was sustained at the common areas at or near the vicinity of the source of fire, that is the 1^st floor of the Building.

Moreover, the defendant also argued that the roof in the Building was not a place of refuge as it was privately owned by the defendant. The staircase from other units up to the roof of the Building cannot be regarded as a “means of escape” and therefore the defendant shall not be held liable for the injuries sustained by the plaintiff as a result of the Obstruction.

Issues at trial

Among other things, the following two issues in relation to liability are relevant for discussion in this article.

1.        Did the obstruction by the articles in the staircase from the 5^th floor to the roof floor cause and/or materially contribute to the plaintiff’s injuries by delaying her escape and/or rescue and treatment?

2.        Did the articles obstruct a “means of escape” within the meaning of section 14 of the Fire Services (Fire Hazard Abatement) Regulation (Cap 95F)?

Legal principles

The plaintiff in establishing her claim in personal injuries has to show on the balance of probabilities that the defendant’s negligence has materially contributed to her injury and a negligent defendant must take its victim as it finds her and must pay damages accordingly (CMY v Tam Siu Wing [2008] 4 HKLRD 604). However, it is not necessary for the plaintiff to show that the defendant’s negligence was the sole cause of the plaintiff’s injury.

The legal burden of proof is on the defendant, who was convicted of the offence of “Obstructing means of escape” contrary to section 14(1) and 14(2) of the Cap 95F, to prove that she did not leave (or cause/permit to be left) the articles in the staircase from the 5^th floor to the roof floor of the building and that the articles did not obstruct the means of escape.

Judgment

In relation to the first issue concerning causation, after considering the witnesses’ testimony, the Fire Service Department Report and Photographs, together with the experts’ evidence, the CFI held that the obstruction created by the Defendant delayed the Plaintiff’s ascension of the staircase from the 5th floor to the roof floor of the Building and it also meant that the Plaintiff had to keep to her right by the handrail, thereby increasing the plaintiff’s exposure to very high temperatures and materially contributing to the burn injuries which she sustained.

In relation to the second issue concerning whether the Obstruction occurred in the means of escape, since Cap 95F does not define or exclude a “means of escape” by reference to whether a place is part of the common area or under someone’s exclusive possession, a question arose as to whether, given that the defendant is the owner of the roof, the staircase can be regarded as a “means of escape” within the meaning of section 14 of Cap 95F from other units up to the roof of the Building. The CFI held that staircase in the Building, from the street level to the roof floor, and vice versa, must be a “means of escape”. Even if the defendant was the owner of the roof, any agreement between co-owners of the Building as to the use of a certain part of the Building, or giving exclusive possession thereof to any of the owners, cannot override the requirement of fire regulations aimed to save lives. Taking into account Cap 95F and the Building (Planning) Regulations (“Cap 123F”), their combined effect is that where a building has a single staircase, that staircase must continue all the way up to the roof, and if the exit from the staircase out onto the roof is locked/secured, it must be possible to open that exit conveniently and easily from inside /the staircase in the event of an emergency, regardless of whether the roof is a common area or privately owned. The entire staircase must be a means of escape under both the Cap 95F and Cap 123F and therefore the Obstruction created by the defendant occurred in the means of escape. The defendant was held liable for the injuries sustained by the plaintiff as a result of the Obstruction.

Conclusion

According to the judgment, the path to an exclusively possessed area in a building can be regarded as a means of escape in the event of fire or emergency. An injured person may therefore claim against the registered owners/occupiers blocking the means of escape in case of fire or emergency even if the relevant obstruction occurred in the path to an exclusively possessed area.