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 5^th 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 3^rd 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 5^th 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 5^th 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 5^th 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.

 

For enquiries, please feel free to contact us at:

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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