Whether registered owners / occupiers blocking the means of escape can be held liable for personal injuries in case of fire or emergency
Introduction
In our previous newsletter titled “Do
I have any claim against the registered owners / occupiers blocking the path to
an exclusively possessed area in case of fire?” (June 2020 issue), we discussed about the Hong Kong
Court of First Instance case of Tang Ho Hei v Chan Po Mei [2020]
HKCFI 342, which held that registered owners or occupiers blocking the path to
an exclusively possessed area may be liable for injuries caused in case of fire.
Subsequent to the first instance decision,
the defendant in this case appealed to the Court of Appeal and the Court of
Appeal’s decision has been handed down recently. In this newsletter, we will
explore the issues dealt with in the appeal.
Background
This case arises from a fire that occurred
in a six-storey building (“Building”).
Miscellaneous articles (“Articles”)
were placed by the defendant and her relatives at the common stairwell outside
the defendant’s flat on the 5th floor, which obstructed the
plaintiff’s escape route to the roof.
The plaintiff suffered serious burn
injuries while she attempted to escape from her flat on the 3rd
floor to the roof. The plaintiff’s neighbours passed away because of the
injuries suffered during the escape. The defendant was convicted of the offence
of obstructing means of escape under section 14 of the Fire Services (Fire
Hazard Abatement) Regulation (Cap 95F) (“Regulation”).
The plaintiff claimed against the
defendant on the ground that the defendant obstructed the plaintiff’s escape
path to the roof, which caused delay in the plaintiff’s escape and prolonged
her exposure to very high temperature, thereby causing or materially
contributing to the serious burn injuries suffered by the plaintiff.
Court
of First Instance’s ruling
With reference to experts’ evidence
including the Fire Services Department Report, the trial judge 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,
which materially contributed to or caused the burn injuries of the plaintiff (“Causation Issue”).
The Court of First Instance further held
that under the Regulation and the Building (Planning) Regulations (Cap 123F) (“BPR”), the entire staircase of the
Building must be a means of escape and therefore, the Obstruction created
by the defendant occurred in the means of escape (“Statutory Interpretation Issue”).
Hence, the Court of First Instance held
that the defendant was liable for the injuries suffered by the plaintiff, and awarded
the plaintiff HK$1.5 million in damages for pain, suffering, and loss of
amenities.
Court
of Appeal’s ruling
The defendant’s appeal seeks to challenge
all material findings made by the trial judge under the Causation Issue and the
Statutory Interpretation Issue.
Appeal grounds
based on issues of facts
The defendant submitted that there were
errors in the trial judge’s findings of facts, e.g. the trial judge should have
considered the defendant’s case that the plaintiff’s injuries were caused by
her own attempt to descend to the ground floor level.
All of the defendant’s contentions were
dismissed by the Court of Appeal, which took the view that the trial judge had
given proper consideration and proper weight to the evidence, including the
Fire Services Department Report, the expert evidence, and the plaintiff’s
evidence, and the trial judge was not unreasonable in his evaluation of the
facts.
Appeal grounds
based on alleged errors of law
The defendant contented that the trial
judge had made errors of law on the Causation Issue, in that the principle that
negligent defendants must take their victim as they find him is not applicable
in this case because it is only for the plaintiff’s physical peculiarities but
not the defendant’s own frolic.
The Court of Appeal held that the principle
is plainly apposite in this case in that the defendant should be held liable
even if the plaintiff, when she faced the Articles’ obstruction at the 5th
floor, was more susceptible to heat as a result of her previous exposure to
heat in the course of escape.
Further, the defendant maintained that the
trial judge had made errors of law on the Statutory Interpretation Issue:
1.
The trial judge held that “the
whole of the staircase in the Building, from the street level to the roof
floor, and vice versa, must be a ‘means of escape’ within the meaning of
section 14 of the Regulation”.
2.
The defendant argued that the trial judge’s construction of the words
“means of escape” was wrong because:
a.
The trial judge should not “impose” the meaning of “means of escape” in the
BPR into the Regulation.
b.
The trial judge erred in construing “means of escape” as including a
“mean of escape” into a private premises (i.e. the roof) as opposed to an
escape out of it.
c.
The trial judge erred in construing “means of escape” as covering the
part of the staircase from the 5th floor to the roof floor given
that the plaintiff has no right of access to that part under the Deed of Mutual
Covenant.
The Court of Appeal found that these
grounds were devoid of merits because:
1.
It was correct for the trial judge to construe the BPR and the
Regulation together based on the well-established principles on construing statutes in
pari materia.
2.
Since the whole staircase in the Building (from street level to the roof
floor and vice versa) is required to be the “means of escape” under the BPR, it
should also fall within the meaning of “means of escape” under section 14 of
the Regulation such that any obstruction of it may be enforced by the
authority.
As none of
the grounds of appeal disclosed any error in the trial judge’s decision, the
Court of Appeal dismissed the defendant’s appeal.
Costs were granted to the plaintiff on indemnity basis (a harsher standard compared
with the normal party and party basis) as the defendant’s grounds of appeal
were mostly regurgitations of the arguments that she had run and failed in the Court
of First Instance. Besides, the defendant has singularly failed to identify any
errors in the trial judge’s judgment. These were improper and invalid grounds
of appeal, in particular when the appeal was principally against the trial
judge’s findings of fact.
Conclusion
The Court of Appeal affirmed that 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 such area.
The Court of Appeal also reminded all
intended appellants the proper role of the appellate court and that costs on
indemnity basis may be imposed on appellants failing to put forward proper
grounds of appeal. Potential litigants of a personal injury case, in particular
those contemplating an appeal, should seek proper legal advice accordingly.
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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. |
Published by ONC Lawyers © 2022 |