Read the full judgment text of HCCT 10/2011 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 20 August 2015 before Mr Recorder Patrick Fung SC.
Construction and arbitration proceedings involving damage to an underground 132 KV electric cable owned by THE HONG KONG ELECTRIC COMPANY, LIMITED against KIN WING FOUNDATIONDS LIMITED as the foundation contractor. The cable damage occurred during excavation works at a hotel development site bounded by a disputed building line and site boundary. The plaintiff alleged negligence and breach of statutory duties under the Electricity Supply Lines (Protection) Regulation in failing to prevent damage to the cable. The defendant contended no direct contact with the cable was made, relying on evidence of approximate cable location plans and physical barriers restricting excavator movement. The court examined the factual and expert evidence, including the reliability of site surveys, the position of the cable relative to the site boundary, and the nature of the damage. The plaintiff’s expert opined the damage was likely caused by a mechanical excavator, while the defendant's expert suggested internal cable failure and disturbance of cable bedding as plausible alternative causes. The court found that Sketch A prepared by the defendant was more accurate than the plaintiff’s Sketch B and that the cable and protective planking lay outside and inside the building line respectively. The bucket of the defendant’s excavator was in use at the time but was prevented by the site’s concrete face from coming into contact with the cable. The evidential rule of res ipsa loquitur did not assist the plaintiff as they failed to prove which instrument inflicted the damage and the defendant provided plausible alternative causes. Legally, the court held there was no private right of action for breach of the statutory duties under the Electricity Supply Lines (Protection) Regulation, which provides for criminal sanctions only, and the plaintiff’s claim under statute failed. On damages, the court reduced plaintiff’s claimed quantum substantially, disallowing some items and allowing others pro rata, resulting in a total allowed amount of $1,017,466.09 on a hypothetical full liability basis. The plaintiff’s claims were dismissed and costs ordered accordingly. Counsel on both sides were thanked for their assistance.
Legal issues: Negligence duty and breach · Breach of statutory duty under Electricity Supply Lines (Protection) Regulation · Application of res ipsa loquitur
Outcome: Plaintiff's claim dismissed; costs ordered to follow event.
Cites 1 case