Introduction
In our previous newsletters entitled “Occupiers’ Liability” (May 2011) and “Occupiers’ Liability: Slip and Fall Cases in Focus” (January 2013) we expounded briefly general principles and a narrower topic within occupiers’ liability. The discussion only involved straight forward 2-party scenarios in which a visitor is injured at a certain venue and sues the occupier.

In the recent judgement of Yang Yee Man, the Administratrix of the Estate of Lam Lok Kin, Deceased v Leung Hing Hung HCPI 443/2010 of 21st April 2014 by Bharwaney J (chief justice of the Personal Injury List) the defendant has made contribution claims against two third parties in damages, which may shed some light on occupier’s liability in a 3-party context.

Yang Yee Man (administratrix) v Leung Hing Hung

Background: a driver knocked down a sign post inside a car park killing a pedestrian
The case involved a tragedy that occurred in August 2007 in the car park at Tai Pei Public Square Car Park in Tsuen Wan (the “Car Park”). The Car Park is square-shaped with 29 parking spaces (the “Parking Spaces”), and is situated south of Tsuen Wan Market. Upon entering the Car Park, vehicles would be able to access those 29 parking spaces through a one-way circular aisle (the “Aisle”). The internal circulation within the Car Park is clockwise and requires three 90 degree right-hand turns, and there are sign posts along the Aisle.

On the day of the accident, the defendant was driving a medium sized goods vehicle into the Car Park, but soon after he entered the Car Park he found that the Aisle was too narrow for the vehicle he was driving. In struggling to make his first 90 degree right-hand turn, the defendant’s vehicle knocked down a parking sign post that had been positioned on the side of the Aisle. The parking sign post toppled and struck the head of a pedestrian who was later known to be another user of the Car Park. The pedestrian suffered from serious injuries and subsequently died, and the deceased’s wife brought this action against the defendant for damages.

Court’s ruling on liability against the driver
Given that the defendant has already been convicted of careless driving in criminal court before the present action, the civil court did not hesitate to strike out the defendant’s defence and entered interlocutory judgment for damages to be assessed against the defendant on the ground that the defence was frivolous and vexatious.

The defendant brought third party proceedings against the Commissioner for Transport (the “Commissioner”) and Hong Kong Parking Limited (the “HKPL”) for indemnity against, or contribution towards his liability to the plaintiff.

Third party claim against the Commissioner for Transport as an occupier
The third party claim against the Commissioner was based on the Commissioner being responsible for the design and management of the Car Park, and hence shall be an occupier of the Cark Park pursuant to the Occupiers’ Liability Ordinance (Cap.314) (“OLO”). The defendant pleaded that as the design of the Car Park was faulty, the Commissioner should be held at least partly liable for the accident.

The very first question that the Court was invited to rule on was whether the Commissioner is an occupier within the meaning of OLO. It was agreed between the parties that the Car Park, consisted of the Parking Spaces and the Aisle was a road that provided access to the shops and other premises around the square-shaped Car Park.

The Commissioner hence argued that, since the Car Park falls under the definition of a “road” within the Road Traffic Ordinance (Cap.374), the Commissioner could not be liable under the OLO because of the common law principle that a highway authority is not an occupier of a public road and owes no common duty of care under the OLO towards road users. The Commissioner referred to a list of authorities, all suggesting that persons using a public road exercise a right and are not invitees of the Government. Hence a public highway user is not a visitor within the meaning of the OLO (per Mr. Commissioner O’Connor in Cheung Fung Ying (as administratrix of the estate of Wong Ming Mui, deceased, plaintiff) v Attorney General & Anor HCA 2476/1975).  By the same token, as the Car Park was a public road, the plaintiff was not a “visitor” of the Car Park qua public road within the meaning of the OLO.

The Commissioner’s argument was not accepted by the Court. The Court found that the parking sign posts within the Car Park, which expressly permits vehicles to park in the Parking Spaces, were inviting the public to park there, and therefore anyone who on this invitation parks a vehicle in the Parking Spaces would be an invitee and visitor under the meaning of the OLO. The Court ruled that once someone entered the Parking Spaces, he became a lawful visitor and the Commissioner would owe a duty of care towards him as occupier of that Parking Space.

Having ruled that the Commissioner is an occupier of the Parking Spaces, the Court also found that the design of the Car Park was faulty and that medium sized goods vehicles would find it difficult to negotiate round the corners of the Aisle. The Court also opined that in the circumstances it would be reasonably foreseeable that a driver of such a vehicle could easily strike and topple parking sign posts in question, and thereby endangering lawful visitors of the Parking Spaces.

Judgment was entered in favour of the defendant against the Commissioner for 20% of the damages and interest awarded to the plaintiff against the defendant.

Third party claim against HKPL the management company
Using the same rationale, the defendant tried to bring third party proceedings against the HKPL as an occupier of the Car Park, as HKPL was the management company responsible for the management, operation and maintenance of the Parking Spaces.

However, although the Court agreed with the defendant that HKPL was an occupier of the Parking Spaces, HKPL remained only its management company but had nothing to do with the faulty design that the defendant complained of. The design of the Car Park was entirely within the power of the Commissioner not HKPL. In this regard, the Court ruled that the third party claim against HKPL for faulty design of the Parking Spaces fail.

Conclusion
The doctrine which absolves highway authorities from liability as found in Cheung Fung Ying had been abolished in England and Wales by statute (the Highways (Miscellaneous Provisions) Act of 1961). There are no such abolition or equivalent legislations in Hong Kong. Therefore, the Commissioner remains not an occupier of a public road in Hong Kong. If the accident in the above case occurred at the Aisle, which is to be treated as the public road leading to the Parking Space, the Commissioner owed no duty of care and would not be held liable as occupier of the Aisle.

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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.