Owners' incorporations are liable if their failure to properly maintain buildings results in death, injury or a nuisance, the Court of Final Appeal ruled yesterday.
The court made the ruling in the case of lingerie hawker Sukey Liu Ngan-fong, 41, who was killed after she was struck on the head by a 6.8kg piece of concrete that had fallen from an illegal canopy on the 11th floor of Kwok Wing House in Tung Choi Street, Mong Kok, on August 10, 1999.
The incorporated owners of the building had been sued for failing to ensure the canopy was safe and for not having it removed when they found, or should have found, that it was an illegal structure and had fallen into disrepair.
The Court of First Instance agreed and awarded Liu's family about HK$1.5 million in damages.
However, the Court of Appeal had found that the important thing was what it termed 'occupational control', or control of the premises arising directly 'from presence in and use of or activity in the premises'.
Court of Final Appeal Justice Roberto Ribeiro, writing on behalf of the court - Chief Justice Andrew Li Kwok-nang, Justice Kemal Bokhary, Justice Patrick Chan Siu-oi and Lord Woolf - said that 'control and not the defendant's interest in or occupation of the property' was the chief consideration.
Mr Justice Ribeiro said incorporated owners were co-owners of the building with rights and responsibilities defined by a deed of mutual covenant.
That document would define which parts of the building were possessed by individual owners and which were common.
They had a duty, he said, to maintain the common parts of the building, including the external walls, so that they remained free from hazards.
A failure to do so could leave them open to litigation in the event of an accident.
Mr Justice Ribeiro ruled that since the owners were under a duty to maintain the external walls, it should have been known to them that the canopy was illegal and that there was a chance it was not particularly well built.
'They ought to have realised that these sorts of risks arise in connection with illegal structures,' the judge said. 'As everyone must have known, the extended canopy was a structure projecting out over a busy street from the 11th floor of the building and that it had been ... exposed to the elements for some 35 years.
'The inevitable conclusion must be that the incorporated owners were at least under a duty to inspect the structure to ensure that it did not endanger the lives and safety of the public and then to take necessary preventive steps if a risk was detected.'