Tort Law — High Court allows property manager’s appeal against the decisions of Small Claims Tribunal in finding it negligent for causing a flood in a car park when super typhoon Mangkhut struck Hong Kong

In Ko Pui Yee & Ors v Jones Lang Lasalle Management Services Ltd [2023] 4 HKC 50, the Defendant successfully appealed against the decisions of the Small Claims Tribunal which found the Defendant negligent as the property manager of the underground car park of a residential estate. The High Court set aside the adjudicator’s orders and the claims were remitted back to the Small Claims Tribunal for fresh determination.

Simon Wong leading Warren Suen, instructed by Deacons, acted for the successful Defendant.

Background

In 2018, the concerned car park was heavily flooded amidst the super typhoon Mangkhut.  The Claimants were the owners of the damaged vehicles parked in the car park.  They sued the Defendant in the Small Claims Tribunal for its negligence as the property manager.

The adjudicator found in favour of all five claims and held that the Defendant was in breach of its duty of care in failing to take preventive measure to stop sea water from entering the car park, including the placing of sandbags or other water barriers, which caused the vehicle damage.  In arriving at his conclusion, the adjudicator rejected the defence, that sandbags would not have avoided the flood, as the Defendant had not adduced any expert evidence to support its argument.

The Appeal

Having obtained leave to appeal, the Defendant’s appeal was heard before DHCJ Winnie Tsui in the High Court.  The learned Judge held that the adjudicator’s finding on causation could not stand, as the adjudicator ignored the evidence that a large amount of water was leaking from a burst pipe in the car park, and failed to consider the extent the burst pipe had contributed to the flooding.  That was significant, because if the car park would have been flooded by reason of the burst pipe, the defendant’s failure to take any step to stop sea water from entering the car park from the street level could not be said to have caused the flooding as a matter of law and the “but for” test would not be satisfied.

The learned Judge also allowed the appeal on the basis that the adjudicator did not advise the Defendant that it might need to adduce expert evidence in support of the defence and the Defendant was not made aware of such need.  Her Ladyship further found that the adjudicator rejected the defence’s argument because of its failure to adduce expert evidence in support.  Accordingly, the adjudicator was under a duty but had failed to advise the Defendant of the need to call an expert. 

The adjudicator’s orders were set aside and the claims were remitted back to the Small Claims Tribunal.

Significance

This case is an illustration of a successful appeal against a decision of the Small Claims Tribunal on the ground that the adjudicator did not have a proper regard to relevant factors in making the finding. The appellant ought to show that the factor which the adjudicator is said to have disregarded is relevant and significant.

The adjudicator’s duty to investigate was also clarified.  It was held that, in appropriate cases, such duty to investigate includes a duty to remind parties to adduce expert evidence where such evidence is reasonably required.  While the duty to alert is not absolute, the material consideration is whether the claims and the defence would be disposed of fairly and properly as a result of the failure.  The Court agreed with Simon’s submissions that the adjudicator ought to have alerted the parties of the need to adduce expert evidence before rejecting the Defendant’s argument and that the adjudicator’s failure to alert was unjust to the Defendant.

Simon Wong

“Simon is very meticulous and his advocacy is very good. His advice is practical and easy to follow whilst his preparation is unquestionable.”

“Excellent communication skills with the ability to articulate arguments in a concise, professional and persuasive manner.”

Legal 500 Asia-Pacific 2023, Leading Juniors — Commercial Disputes, Labour and Employment

Simon is qualified to practise law both in Hong Kong and California USA. He specializes in commercial dispute resolution and personal injury litigation. Simon’s commercial litigation experience includes company matters, shareholders’ disputes, banking disputes, insolvency matter and contract claims. In his personal injury practice, he has been instructed in more than 500 personal injury and medical negligence cases and has extensive experience in representing claimants as well as defendants.

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Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers.