The Hong Kong Electric Co Ltd v. Kin Wing Foundationds Ltd

HCCT 10/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 10 OF 2011

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JUDGMENT
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1.This is an action by the plaintiff against the defendant for damages arising out of the damage to an underground electric cable owned by the plaintiff.

2.The damages claimed are relatively insubstantial, in the sum of $4,612,606.12.  There was originally a counterclaim by the defendant for damages to be assessed which was eventually not pursued.

3.It is unfortunate that the parties did not find themselves able to come to any settlement or even any meaningful agreement regarding the expert evidence.  As a result, the case had to be tried over a total of 14 days with the factual evidence having been completed in stage 1 of the trial and the expert evidence having to commence after a lapse of 12 months in stage 2.  Needless to say, the legal costs will have far exceeded the amount at stake between the parties.

BACKGROUND FACTS

4.The defendant was the foundation contractor for a hotel development at Nos 96‑106 Java Road, North Point (“the Site”).

5.The Site was handed over by its owner to the defendant on 3 February 2009.  By that time the original buildings on the Site, namely, a 1973 built 5‑storey building at Nos 96‑98 Java Road and a 1950 built 3‑storey building at Nos 100‑106 Java Road, had already been demolished and cleared to ground level.  The underground foundations of those two buildings had not been removed.

6.There was also a hoarding (“the Hoarding”) erected on the north side of the Site separating the Site from the pavement right outside it on Java Road.  The inside face of the Hoarding consisted of concrete walls (“the Concrete Face”) except at the entrance from Java Road into the Site.  There is a dispute between the parties as to the position of the Concrete Face in relation to the lot boundary and the site boundary.  More about this later.

7.By a letter dated 3 February 2009, the defendant wrote to the plaintiff to seek the latter’s assistance in providing information about its then existing underground facilities in the vicinity of the Site.

8.The defendant was required to break up only those parts of the foundations of the original two buildings on the Site which would obstruct the sinking of the bored piles and the driving of the sheet piles into the ground for the foundation of the proposed hotel building.

9.Whilst the defendant was waiting for a reply from the plaintiff, on 6 February 2009, the defendant began the process of hand‑digging trial pits at various places within the Site in order to locate whatever foundations and utilities there might be below the ground level.

10.On 11 February 2009, the defendant exposed a 2.6 metre‑deep reinforced concrete structure at the north side of the Site adjacent to and along Java Road at roughly Nos 96‑ 98 Java Road.

11.The defendant has appended to its Defence and Counterclaim a sketch marked as “Sketch A” showing, inter alia, the necessary details (according to the defendant) regarding the said reinforced concrete structure, the trial pit dug by the defendant, the building line, the Hoarding and the Concrete Face and the cable in question with exact measurements.  I annex hereto as Annexure 1 a copy of Sketch A.

12.Not surprisingly, the plaintiff takes issue with the accuracy of various matters depicted by Sketch A and has produced another sketch of its own which I shall deal with below.

13.Going back to the said reinforced concrete structure exposed by the defendant in the process of hand‑digging, it will be seen from Section Y – Y in Sketch A that it has been described as “The Foundation” consisting of the “Stem”, the “Heel” and the “Toe” (“the Foundation”).

14.The Stem and the Heel were broken up by the defendant on 12 February 2009.  The Toe was left intact because it extended beyond the Concrete Face into Java Road.

15.On the morning of 16 February 2009, the defendant received a letter dated 12 February 2009 (“the 12 February Letter”) from the plaintiff.  That letter enclosed, inter alia, several plans showing the electric cables along Java Road in the vicinity of the Site.  The relevant parts of that letter read as follows:

“ Enclosed are part plans showing the approximate positions of this Company’s electricity supply lines in the vicinity of your proposed works. … Please note that the plans show the record of our electricity supply lines at the time the plans were prepared. … Since our electricity supply lines are energised and our enclosed plans show only their approximate, rather than exact, positions, it is imperative that your contractors and employees exercise extreme care during any works that may be required and take all necessary steps and measures to prevent accidents to personnel and to our electricity supply lines. We are enclosing a copy of our ‘General Practice on Execution of Excavation and Construction Work near Underground Electricity Cables’ for your guidance. You are required to read through this document carefully and follow the guidelines therein strictly in the course of your works. Moreover, you are required to follow strictly the requirements as stipulated in the Code of Practice on Working near Electricity Supply Lines issued in accordance with the provision of the Electricity Supply Lines (Protection) Regulation under the Electricity Ordinance (Cap. 406), by the Electrical and Mechanical Services Department (the ‘Code of Practice’). Remember electricity supply lines when damaged and joints if improperly handled, may explode and cause death or injury to your employees or the general public and may lead to a suspension of our supply of electricity to many domestic, commercial and industrial users. We also enclose a pamphlet showing the precautionary measures for working close to our cables, and a copy of letter dated 8^th August 2008 from Electrical and Mechanical Services Department concerning the safety requirements related to works in vicinity of electricity supply lines for your attention.”

16.One of the plans enclosed with the 12 February Letter marked as “Map No. 11 SEG 103, II SEG 1D4-A4VTC” (“the Letter Plan”) gives an indication of depth of the electric cables laid underneath the pavement along the length of Java Road, including that Section just outside the Site, as being “1.68m”.  It is to be noted that this piece of information given by the plaintiff is heavily relied on by the defendant as one of the reasons why it should not be responsible for the accident.

17.The defendant continued to work on the Site at its north‑western corner by the use of a mechanical excavator.

18.At about 2:35 pm on the same day, ie 16 February 2009, there was a sudden explosion at the part of the Site being worked by the defendant.  The trench which had been excavated by the defendant became filled with a dark brown oil-water mixture.  At the same time, the plaintiff detected through its control system a tripping (ie an automatic shutting off of electricity) in one of its 132 KV cable circuits in the vicinity of the Site.

19.It later transpired that one of the 132 KV cables (“the Cable”) in the vicinity of that part of the Site being worked by the defendant had been damaged and the dark brown oil-water mixture had leaked out from the Cable.

20.The plaintiff alleges that the damage to the Cable had been caused by the defendant who should be held responsible for the loss and damage suffered by the plaintiff.  The defendant denies that the damage to the Cable had been caused by itself or that it should be responsible for the loss and damage suffered by the plaintiff.  Hence, this action.

THE PLAINTIFF’S CASE AS PLEADED

21.The Statement of Claim pleads that the damage to the Cable was caused by the negligence on the part of the defendant.  In paragraph 7 thereof, it refers to the investigation by a Mr Fred S K Lee (“Fred Lee”) of the plaintiff and his discovery that “there were flashover marks on the tip of a hydraulic breaker of the defendant’s mechanical excavator found on the Site”.

22.The Statement of Claim also pleads a breach of statutory duties on the part of the defendant regarding Section 10 of the Electricity Supply Lines (Protection) Regulation (“the Regulation”) and the Code of Practice on Working Near Electricity Supply Lines (2005 Edition) (“the Code of Practice”) issued under Section 15 of the Regulation.

23.By the “Answers To Request For Further And Better Particulars Of The Plaintiff’s Answer To Request For Further And Better Particulars Of The Statement Of Claim Dated 9 November 2011” filed by the plaintiff on 8 May 2012, the plaintiff stated: “It is the Plaintiff’s case that the only cause of damage to the Underground Cable was direct contact between the Defendant’s mechanical excavator and the Underground Cable.”

24.There has been considerable argument between Mr Scott SC, leading counsel for the defendant, and Mr Fung SC, leading counsel for the plaintiff, as to whether the pleading by the plaintiff relates to the defendant’s mechanical excavator fitted with a hydraulic breaker (as depicted by the model marked as Exhibit D2) or with a bucket (as depicted by the model marked as Exhibit D1).  There has also been a lot of discussion about the meaning of the expression “backhoe” as appearing in one of the internal reports by Fred Lee to the plaintiff.

25.This point is not merely a pleading point.  It has great relevance to the likelihood of the possible theories put forward by the plaintiff and the defendant respectively as to how the explosion and the damage to the Cable were caused.

26.As a matter of pleading, when one takes into account the parts of the pleadings quoted in paragraphs 21 and 23 above, I firmly take the view that the plaintiff’s allegation is that it was the defendant’s mechanical excavator fitted with a hydraulic breaker as opposed to a bucket which came into direct contact with the Cable and damaged it, thus leading to the explosion. I have, of course, not forgotten about the statement made by Mr Fung SC on Day 7 of the trial that: “The plaintiff’s case is that there was a contact between the cable and the mechanical excavator … Our case is not that it was a contact by the hydraulic or pneumatic breaker and the cable.”

27.I shall assess the evidence in light of such pleading below.

THE ISSUES

28.. In the plaintiff’s Closing Submissions, they set out the issues as agreed between the parties as follows, with “HEC” and “KW” meaning the plaintiff and the defendant respectively: -

“(1) On negligence:

(a) Whether KW owed any duty of care to HEC in its excavation work at the Site on 16^th February 2009.

(b) If so, whether KW was in breach of such duty.

(c) If so, whether the breach of such duty by KW caused HEC loss and damage.

(d) If so, what was the extent of HEC’s loss and damage.

(2) On breach of statutory duty:

(a) Whether KW owed any statutory duty to HEC in its excavation work at the Site on 16^th February 2009.

(b) If so, whether KW was in breach of such duty.

(c) If so, whether the breach of such duty by KW caused HEC loss and damage.

(d) If so, what was the extent of HEC’s loss and damage.

(3)   IF KW was in breach of its duty of care and/or statutory duty, whether    HEC was contributorily negligent.”

29.As I see it, the above are the main issues at the trial, with other subsidiary issues having to be decided also.

NEGLIGENCE

30.I deal first with the issue of negligence.

Summary of the plaintiff’s case on negligence

31.The case of the plaintiff on negligence has been summarised in its Closing Submissions as follows:

(i) The defendant owed to the plaintiff a duty to take care when  working in the close vicinity of the Cable underground.

(ii) The defendant was in breach of such duty of care in failing   to:

(a) take any reasonable steps to locate the Cable prior to commencement of its excavation work;

(b) give any proper instructions to its workers to ensure they were fully aware of the details of the Cable when carrying out the excavation work at the Site; and

(c) adopt safe excavation practice by maintaining an adequate clearance between the Cable and the point where the mechanical excavator was used.

(iii) The most likely cause of the damage to the Cable was the direct contact between the defendant’s mechanical excavator (most probably fitted with the bucket as opposed to the hydraulic breaker) and the Cable.

(iv) Alternatively, even if the plaintiff were to fail to establish direct contact between the mechanical excavator and the Cable the plaintiff would plead res ipsa loquitur and contend that:

(a) a prima facie case against the defendant has been raised; and

(b) the defendant has not been able to dispel that prima facie case by providing any plausible explanation for the damage to the Cable.

(v) As a result of the breach of duty of care by the defendant, the plaintiff has suffered loss and damage.

Summary of the defendant’s case on negligence

32.As I understand it, the case of the defendant on negligence can be summarised as follows:

(i) Although there is no express admission by the defendant, I do not discern any or any serious dispute by the defendant that a duty of care was owed by the defendant to the plaintiff in all the circumstances.

(ii) The onus of proof, on the balance of probabilities, that the defendant has been careless is on the plaintiff.

(iii) The defendant denies that it has been in breach of the duty of care owed to the plaintiff and asserts, in any event, that the plaintiff has failed to discharge its onus of proof.

(iv) The evidential rule of res ipsa loquitur has no application in the circumstances of this case.

(v) The defendant was not negligent because it had taken all reasonable steps in all the circumstances to avoid damaging any electric cables of the plaintiff (and other public utilities) in the vicinity of the Site.

(vi) The defendant’s mechanical excavator which at the time of the explosion was fitted with the bucket was never in contact with the Cable.

(vii) In any event, the defendant had been misled by the Letter Plan supplied by the plaintiff and the existence of the planking by the plaintiff within the Site.  Such matters combined with the unusual way in which the relevant section of the Cable had been laid exonerate the defendant from any responsibility and liability for the explosion even if the same had been caused by the activity carried out by the plaintiff in the vicinity of the Cable at the relevant time.  In other words, it could not have been within the reasonable contemplation of the defendant that its said activity would affect any underground cable of the plaintiff.

The Evidence

A. The Factual Evidence

33.Since none of the factual witnesses for the plaintiff was on the scene when the explosion occurred and since the factual witnesses for the defendant were more involved in the activities on the Site on the day of the accident, it will be more convenient for me to examine the evidence of the latter first.

34.Mr Chan Ka Wah (“Chan”) is the first factual witness for the defendant.  He graduated from the University of Hong Kong with a degree in civil and structural engineering.  He is the Assistant General Manager of the defendant and has had 20 years’ experience in the construction industry.

35.According to Chan, the defendant took over the Site on 3 February 2009.  It caused a topographic survey of the Site to be carried out.  It was discovered that the Hoarding and the Concrete Face had intruded into the Site by about 100 mm instead of sitting just outside or along the Building Line.  This point was raised as a concern by the defendant with its consultants because the mis-alignment of the Hoarding and the Concrete Face would have obstructed the construction of the basement and its temporary works, ie the sheet piles of the cofferdam.  Eventually, this concern did not present any problem because a basement no longer needed to be constructed.

36.In his examination‑in‑chief, Chan says that he was involved in the preparation of Sketch A and that he confirmed the accuracy of the contents of the same.  Sketch A does show that the Hoarding and the Concrete Face intruded into the Site by 100 mm.

37.According to Chan, soon after the defendant had taken over the Site, the defendant caused trial holes or pits to be made by hand‑digging.  By 11 February 2009, there were completed five 2‑metre-deep trial holes behind the building line of the Site along Java Road (“the Building Line”).  No utility had been found.  No precast concrete slab or coloured warning tapes of the plaintiff had been encountered.  In the course of hand‑digging the 6^th trial hole at the northwest corner of the Site (“the Trial Hole”), a concrete structure about 400 mm below ground was discovered.  That was the Foundation as shown in Sketch A.  It was thought that that was an old foundation left there by the previous owner of the building which had been demolished.  Further hand‑digging was done.  Chan was later informed by his staff that the bottom of the Foundation was about 2.6 m below ground and that the Foundation extended beyond the Building Line into the soil underneath the footpath outside the Site (“the Footpath”).  As mentioned above, the defendant then broke up the Stem and the Heel of the Foundation whilst leaving the Toe intact, as indicated by Section Y - Y in Sketch A.  The breaking up of the Foundation was carried out by the use of a hydraulic breaker attached to a mechanical excavator. Still no electric cable, precast concrete slab or coloured warning tapes of the plaintiff had been sighted.  Chan then instructed his staff to cease further excavation at the Trial Hole.

38.In the morning of 16 February 2009, after Chan had got back to his office, he was handed the 12 February Letter from the plaintiff together with its enclosures, including the Letter Plan.  By studying all the plans, enclosed, including the Letter Plan, and by using the scaling method of measurement, he was satisfied that there was no electric cable shown inside the Site but that there was a 132 KV cable (the Cable) laid some 900 mm to 1,000 mm north of and outside the Building Line where the north-west corner of the Site abutted.  The Letter Plan expressly stated that the Cable was 1,680 mm underneath the Footpath.

39.Having been satisfied that there was no electric cable laid within the Site, Chan still took the precaution of instructing his staff to further hand‑dig the Trial Hole by another 300 mm to ensure that there was no more concrete structure underneath the Foundation.

40.His staff later informed him that some short lengths (about 600 mm) of small‑sized steel U channels and corrugated sheets (“the Planking”) were found in the soil beneath the Foundation.  He thought that the Planking was temporary works left behind during the construction of the Foundation and instructed his staff to extract them out by the use of the bucket attached to the mechanical excavator.  He says that it was absolutely beyond his contemplation that the Planking had anything to do with the plaintiff or the plaintiff’s cables.

41.Chan went out for lunch.  At about 2:30 pm, he was informed by his staff that an explosion had occurred at a spot at the north of the Trial Hole and that the police, firemen and people from the plaintiff had arrived.

42.So much for the evidence of Chan up to the time of the accident. 

43.The second witness for the plaintiff was Wong Kwok Cheung Cecil (“Cecil Wong”).  He was employed by the defendant as a site agent and was in charge of the works at the Site.

44.His evidence was in line with that of Chan as set out above.

45.In relation to the discovery of the Planking, he says that shortly after the further hand-digging at the base of the Foundation, to his surprise, he discovered some very short U channels (500 mm to 600 mm in depth) together with some corrugated sheets (the Planking).  He personally inspected the Planking and found that the same was fairly loose.  The outside face of the Planking was roughly 170 mm behind the Building Line.  The excavation at the Trial Hole did not go beyond the Building Line because of the Hoarding above the ground.  He was instructed to extract the Planking by using the mechanical excavator.

46.After the lunch break for the workers, he instructed the operator of the mechanical excavator which was fitted with the bucket to horizontally push the Planking in the direction parallel to the Building Line.  The Planking was easily removed and found to be about 600mm in depth.  In fact, the Planking can be seen lying on the ground on the Site in some of the photographs taken after the accident. He also did not think that the Planking had anything to do with the plaintiff or any underground cable.

47.After some 1,000 mm to 1,500 mm in length of Planking had been extracted without anything unusual happening, he went out for a late lunch.  At about 2:30 pm, he received a call on his mobile phone and was told about the explosion.  He then rushed back to the Site.  At about 3:30pm, personnel from the plaintiff arrived at the Site.

48.According to Cecil Wong, he was told by the operator of the mechanical excavator that the bucket never had any contact with any cable.  From his observation before lunch, he had never seen any activity being carried out beyond the Building Line.

49.In the witness‑box, Cecil Wong referred to a photograph taken by a reporter from the Apple Daily newspaper, pointed out the mechanical excavator fitted with the bucket depicted therein and marked the position of the mechanical excavator at work just before he went out for his lunch.  According to him, at such a position and working in the manner it was, there was no possibility of the bucket reaching out beyond the Building Line and coming into contact with anything outside the Site because of the presence of the Concrete Face which prevented the swinging of the boom of the mechanical excavator in a northerly direction. Mr Scott SC was also at pains to demonstrate that that was so by the use of the model Exhibit D1 in his examination of the witnesses.

50.Cecil Wong was adamant that the hydraulic breaker was not in use before he went out for lunch or at all during 16 February 2009.  He says that it would take 20–30 minutes for detaching the hydraulic breaker from the mechanical excavator and replacing it with the bucket.  Thus, there cannot be any suggestion that there was any switching of the hydraulic breaker to the bucket after the accident had taken place.

51.The third witness for the defendant was Li Chi Hung (“C H Li”).  He was a general worker employed by the defendant.

52.On 16 February 2009, he returned to the Site after lunch.  He was instructed by Cecil Wong to be the signalman for the operator of the mechanical excavator.  He confirmed that at that time, the mechanical excavator was fitted with the bucket.  He gave evidence which was very much in line with that of Cecil Wong, especially regarding the action of the mechanical excavator and the bucket attached to it in shaking loose and extracting the Planking. After the Planking had become loose, they were gathered together by a few workmen and were transported up to the ground.

53.All three factual witnesses for the defendant were vigorously and skilfully cross‑examined by Mr Fung SC.  In relation to the action of the mechanical excavator and the bucket, Mr Fung SC was trying to suggest to Cecil Wong and C H Li that the mechanical excavator was working from a somewhat different position than that suggested by the witnesses whilst trying to extract the Planking and that the bucket could well have struck the wall or the soil directly below and in line with the Concrete Face.  The point that Mr Fung SC was trying to make was that the bucket had extended outside the Building Line.

54.Having heard the evidence and watched their graphic descriptions, I do not think that those three witnesses have been shaken in cross‑examination.  I accept their evidence, in particular, that relating to the positioning of the mechanical excavator and the movement of the bucket in extracting the Planking.

55.The plaintiff called two factual witnesses.  The first one was Fred Lee.  He joined the plaintiff in 1981 and at the time of the accident held the post of Engineer I.  His main duties included the operation and maintenance of transmission cable apparatus, including 132 KV cables, and responding to cable damage calls, conducting site investigation and arranging necessary repairs.

56.On 16 February 2009, at about 2:35 pm, he received from other staff of the plaintiff information about a tripping and low fluid pressure alarms in relation to the cable circuit system in North Point.  He and his colleagues carried out investigations immediately which eventually led them to the Site. At about that time, he was also told that one of the trenching contractors of the plaintiff who passed by the Site had heard a loud sound at the Site.  He suggested that there had been a cable damage at the site.  He explained that a loud sound would usually be heard as a result of flashover during cable damage near ground level.

57.He and his colleagues arrived at the Site at about 3:30 pm on the same day. He saw that the Trial Hole was filled with a dark brown oil-water fluid which would have leaked from a damaged cable.  He also spoke to Cecil Wong who told him that the mechanical excavator was being used at the time of the explosion.  Subsequently the fluid was pumped out and the Cable exposed showing its damage.

58.Fred Lee also examined the Planking which had been extracted.  He says that the Planking was initially installed to provide support against the nearby soil and maintain structural integrity before the Cable was laid and that it was left there after the completion of the cable laying works because it would provide physical protection for the Cable and protection against termite attack.  It was not temporary works.

59.On 17 February 2009, in order to ascertain the location of the Cable which was damaged and the Planking, the plaintiff instructed one of its trenching contractors, Kum Shing (K F) Construction Co Ltd (“Kum Shing”) which in turn instructed a surveyor, Geoway Surveying Co Ltd (“Geoway”), to conduct a survey on the Cable and the nearby structures.

60.A Survey Record Plan was produced by Geoway showing various coordinates (“the Survey Record Plan”).  On the basis of such coordinates together with official coordinates provided by the Lands Department in a “Plan of Setting Out of 1.L.3539 (Portion)” for the Site Boundary and with the assistance of a mapping computer, the plaintiff prepared a “Sketch B” which has been annexed to the Reply and Defence to Counterclaim (“Sketch B”).  I annex hereto as Annexure 2 a copy of Sketch B.

61.According to Fred Lee, Sketch B is “a measured‑to‑scale depiction of the location of the planking located near the Site boundary and an estimated ‘original’ location of the Damaged Cable” and that it can show that:

“(1) both the Damaged Cable and the planking were located outside the Site boundary;

(2) the diameter of the Damaged Cable was about 143mm and it was approximately 324mm between the centre of the Damaged Cable and the Site boundary; and

(3) the planking was approximately 74mm from the Site boundary.”

62.In the Reply and Defence to Counterclaim, the plaintiff has pleaded under paragraphs 3 and 5(vi) and (vii) as follows:

“3. With regard to Paragraph 7, the accuracy of Sketch A is denied. The plaintiff specifically denies that the following features have been accurately represented on Sketch A:

(i) the alignment and depth of the Underground Cable;

(ii) the location of the Planking;

(iii) the description and the extent of the alleged ‘Kin Wing’s Trial Pit’ coloured in blue, the plaintiff avers that a more accurate description should be ‘Excavated Trench’;

(iv) the extent of the alleged ‘Blasted Hole’ coloured in yellow; and

(v) the extent of the alleged ‘HKE’s Further Excavation’ coloured in green.

The plaintiff avers that an accurate representation of the site layout is shown on the attached Sketch B, which sketch adopts the same scale as the defendant’s Sketch A.

…

5. …

(vi) … it is denied that Sketch A shows the accurate position of the Underground Cable and the Foundation. The plaintiff avers that the accurate positions of these features are shown on Sketch B.

(vii) …

(c) the plaintiff denies the location of the Planking shown on Sketch A and avers that the accurate location of the Planking is shown on Sketch B.”

63.It can thus be seen that the accuracy of Sketch A and Sketch B respectively is of crucial importance in this case.

64.Before I examine the oral evidence on the plaintiff’s side relating to this matter, it would be pertinent to look at the relevant correspondence between the parties.

65.By a letter dated 27 January 2010, the defendant wrote to the plaintiff and said, inter alia, the following:

“ At all material times, we worked within the building line of our site.  In the morning of 16 February 2009, we excavated trial pits behind the building line to identify old foundations within our site for the purpose of subsequent removal and sheet piling along the building line.  It should be noted that trial pits showed that old foundations extended beyond the building line into the public footpath.  We found in the trial pits a line of steel planking, which if remained, would have obstructed our steel sheet piles.  At the material time, we believed that the said planking was left in when the old foundations were constructed.  The removal of the said planking was relatively easy as the same was very short (about 600mm).  At or about14:30 while we were removing the remaining planking, we (i) heard a “boom” noise, and (ii) saw sparks, breakage of part of the said planking and black fluid getting to our excavation.  Firemen and policemen then arrived.  Your team led by Mr H W Li also came to our site.

…

To ascertain the location of your cable, we conducted a survey by electronic surveying equipment in the presence of your team on 16 February 2009 and that the cementitious surface was within our site and 39mm behind the building line.  While your cable was about 120mm away from the building line, your planking had encroached into our site by about 120mm.  We believe that when we removed the planking within our site, your poorly compacted backfill moved and caused damages to your cable.

We note from the drawings you sent to us under cover of your letter dated 12 February 2009 that your cable was not only distantly away from the building line but also about 1680mm deep.  In the premises, we believe that you must have failed to comply with alignment of the cable approved by the authority.  We will of course discover the approved drawings and the road opening permits and ascertain the approved alignment of your cable in due course.

Had you laid the cable in accordance with the approved alignment, properly compacted the trench backfill and removed the planking, the incident would not have happened and we would not have suffered damages.”

66.By its reply to the defendant dated 10 February 2010, the plaintiff said as follows:

“ It is clear that the subject cable was damaged as a result of your failure to take these steps prior to the incident which amounts to a breach of your statutory duty under the Regulation. Our point has always been, and still is, if these steps were taken, the damage to the subject cable should have been avoided. Hence your liability for the damage is indisputable.

For the reasons mentioned above, the allegations in your letter are neither here nor there. Those allegations are in any case erroneous and must be rejected:

1. The compact backfill surrounding the subject cable could not have caused the mechanical damage to the subject cable. The cable was damaged by your mechanical excavator.

2. On proper review of the cable plans sent to you under cover of our letter dated 12 February 2009, the point at which the subject cable was damaged was quite close to the building line.  The point indicated as 1680mm deep was actually around 30 metres away from where the subject cable was damaged.”

67.It would appear from paragraphs 59 to 61 above that, by this time, the Survey Record Plan by Geoway should and would have been completed.  It would have been only natural for the plaintiff to have countered the allegations in the letter dated 27 January 2010 from the defendant by referring to the result of the Geoway survey.  Instead of doing that, the plaintiff simply said: “the allegations in your letter are neither here nor there”.  This certainly casts some doubt on the reliability of the Geoway survey and, in turn, Sketch B itself.

68.Fred Lee said in evidence that it was he who was responsible for the drawing of Sketch B.  In cross-examination, he was reminded by Mr Scott SC of his earlier evidence that the purpose of instructing Geoway was to ascertain the position of the damaged Cable and that he wanted to find out the original position of the Planking.  He was then asked where Geoway started its survey and what its datum point was.  His answer was that he was not present and that did not know.  He did not even inquire.  He was then referred to the Survey Record Plan and the cross-examination continued as follows:

“Q. Does this show, so far as you are aware, the datum point from which Geoway were measuring these coordinates? This diagram shows the points which were taken measurement, but I don’t know whether the number 1 coordinates would be the first point they look measurements.

Q. Were you present when this survey was carried out?

A. No, I was not.

Q. Do you know what equipment was used?

A. Of course I did not know, because I wasn’t there.

HIS LORDSHIP: Nobody is going to be called from Geoway?

MR SCOTT: No. You don’t know whether a theodolite was used, a digital GPS device, a level; no idea?

A. I don’t know.

Q. And you don’t know whether these devices, whatever it was, had been properly calibrated or tested?

A. I don’t know.

Q. You see, the difference between sketch A, attached to the defence, and sketch B, attached to the reply, is millimetres, for the location of the planking.

A. I understand that point.

Q. We say, and we said almost immediately after the accident, in correspondence that we will see in a minute, that the planking was located inside the site.

THE INTERPRETER: After the accident there was erection of the planking inside?

MR SCOTT: No. We say the defendant wrote to the plaintiff almost immediately after the accident –

THE INTERPRETER: To suggest that?

MR SCOTT: … saying that the planking was located inside the site.

A. Yes.

Q. The plaintiff pleads, in its reply, that the planking was fractionally outside the site, by a matter of millimetres.

A. Yes.

Q. Yes, is it right, you haven’t satisfied yourself on the accuracy of the survey that you have produced as evidence?

A. Please repeat, your question.

Q. Yes. Have you satisfied yourself of the accuracy of the survey conducted by Geoway, that you produce as evidence in this trial?

A. We did not, but this Geoway was a surveying company and we trusted it.”

69.It therefore appears from the evidence of Fred Lee set out in paragraph 68 above that he did not have a clue as to how the Geoway survey was conducted and how the Survey Record Plan was produced.  He just accepted on trust that the Survey Record Plan was accurate because Geoway was a surveying company and he was involved in the drawing of Sketch B based on the data contained in the Survey Record Plan.  Such evidence hardly inspires confidence in one of the accuracy and reliability of both the Survey Record Plan and Sketch B, especially when one is talking about differences in terms of millimetres.

70.In further cross-examination, Fred Lee said that he did not know whether the Foundation actually intruded into the site boundary.  He said that he had assumed that the site boundary was exactly the same as the lot boundary.  The information about the lot boundary was obtained by Geoway from the Lands Department.  Geoway was not instructed to ascertain the site boundary. Accordingly, Mr Scott SC challenged, quite rightly, the assertion by Fred Lee in his 1^st Witness Statement that “the planking was approximately 74 mm from the Site boundary”. Fred Lee agreed that if the site boundary was different from the lot boundary, the above assertion by him would be wrong.

71.It is worth noting also the following question and answer in the cross-examination of Fred Lee:

“Q: You still think, is this right, that the hydraulic breaker caused the damage, by direct contact with the cable?

A: Probably, yes.”

72.No doubt, this was as a result of the “flashover marks on the tip of a hydraulic breaker” observed by Fred Lee as referred to in paragraph 21 above, which flashover marks on the evidence could not have been caused by the explosion in question, if the hydraulic breaker was never attached to the mechanical excavator or used on 16 February 2009.

B. The expert evidence

73.I now go into the expert evidence about the cause of the explosion.

74.The plaintiff called as its electrical engineering expert a Mr Ng Kwok Chun (“Mr Ng”).  The defendant called as its electrical engineering expert a Mr Peter Wong Yiu Sun (“Peter Wong”).  They have each written one expert report.

75.Those two experts also made a Joint Expert Report between Electrical Engineering Experts dated 26 October 2012 (“the Joint Electrical Report”).

76.In the Joint Electrical Report, under “Expert Issue 1”, it is stated as follows:

“Expert Issue 1

Whether the damage to the Underground Cable was caused by:

(a) the mechanical excavator as alleged in paragraph 10(c) of the Statementof Claim?

(b) The high fault current within the Underground Cable upon the damage caused to the Underground [sic] by the defendant as alleged in paragraph 10(d) of the Statement of Claim; and/or

(c) any other reason?

…

7. The Experts are unable to agree: -

(a) That the plaintiff’s expert considers the cable damage and breakdown of insulation were caused by external tampering with foreign matters (e.g. a mechanical excavator). The defendant’s expert considers the opinion that the mechanical excavator that had caused the damage could not be ascertained.

(b)   That the plaintiff’s expert considers the tip of the hydraulic breaker fitted to the mechanical excavator could be one possible instrument that had caused the short circuit leading to the flashover and cable damage.  The defendant’s expert considers that it was not possible.”

77.Mr Ng graduated from the University of Hong Kong in 1976 with a Bachelor of Science in Engineering degree.  He worked for China Light and Power Co Ltd from 1976 until 1996 when he joined his present company, HAR Consultants Ltd., in which he is Project Director and Lead Consultant.  He is an experienced electrical and mechanical engineer with a lot of practical experience in Hong Kong.

78.Mr Ng’s theory is that the Cable must have been damaged by a powered mechanical tool first before the explosion would occur.  The powered mechanical tool would be something like the mechanical excavator, although in the course of Mr Ng’s evidence he shifted between whether the same would have been fitted with a hydraulic breaker or a bucket.  He said that the mechanical excavator would have had to pierce the insulation layer of the Cable which would in turn have led to a high fault current, thus causing a flashover and explosion and resulting in a tripping of the circuit.  He further said that the breaking up of concrete or planking could not have caused a cable wound of the sort in question.  He did not consider other possible causes which could have led to the Cable damage.

79.Mr Ng’s report is relatively much shorter than that of Peter Wong.  In paragraph 29 thereof, he stated as follows:

“29. Contrary to Mr Peter Wong’s view stated in paragraph 7 of the Joint Report, I consider the damage to the Underground Cable was caused by external tampering by a powered mechanical tool (as explained above). I understand from the documents set out in paragraph 9 above, in particular the photographs in LSK-2 of S K Lee’s Witness Statement, that a mechanical excavator was found at the Site. I consider this mechanical excavator could have caused the cable damage, as the wound shown in Appendix 2b is consistent with the distinctive damage marks caused by puncturing or piercing by a mechanical excavator.”

80.This point was further dealt with by Mr Ng in the course of his cross-examination by Mr Scott SC, the relevant part of which went as follows:

“Q. Thank you. Is it still your belief, now we’re Day 12 of the trial, having heard a lot of evidence and looked at a lot of material, that it is the tip of that hydraulic breaker that caused the puncture to the cable depicted in your picture 2b on page 208 of the file?

A. I was saying in the joint report – sorry, in my own report, I beg your pardon – that, basically, it is a case of tampering by a foreign object, and here, in this joint report just now what you have actually mentioned, page 171, example, a mechanical excavator. I am saying that it could be one of the possibilities.

Q. You see, that isn’t what you say in the joint report, is it? Turn back to page 171.

A. Okay.

Q. Subparagraph (b): ‘The plaintiff’s expert considers the tip of the hydraulic breaker fitted to the mechanical excavator could be one possible instrument that had caused the short circuit leading to the flashover and cable damage.’ Now, that’s still your case, is it?

A. One of the possibilities.

Q. What other possibilities are there?

A. Could be other foreign matters which is hard and driven by power tools.

Q. Power tools?

A. Yeah. I actually did mention it in my report, because with hand tools, it won’t be hard enough to crash on to the cable.

Q. You still believe that one possibility is the direct puncture by the tip of the hydraulic breaker that you’ve identified in the model in front of you?

A. If I –

Q. Is that still your case?

A. If I may clarify, I did not say “direct”, but it is one of the possibilities.

Q. You still think that that is a possibility, do you?

A. Yeah, given the fact that there was one of these machines around on site.”

81.From the above, I take the view that Mr Ng was most probably led to conclude that the Cable wound had been caused by the mechanical excavator which he could see from the photographs was on the Site at the material time and after he had been informed by Fred Lee that there was present on the Site also a hydraulic breaker with flashmarks on its tip.

82.The defendant’s expert, Peter Wong, is a chartered engineer.  He graduated from the Illinois Institute of Technology, Chicago, USA, with a Bachelor degree in 1971.  He worked for various mechanical and electrical consultancy companies and was involved in many major construction projects, including cable installations and terminations, in Hong Kong and overseas.  He was a council member of the Hong Kong Institute of Engineers and was elected its President in 2008.  Before he became President, he had been the chairman of both the Building Services and Electrical Engineering Divisions of the Institute.  In 2011, he was elected as the Vice President of the Chartered Institution of Building Services Engineers in the UK.  The above is not exhaustive of his curriculum vitae.  There is no doubt that Peter Wong is highly experienced and very well respected in the mechanical and engineering professions.

83.Peter Wong was vigorously cross-examined by Mr Fung SC, especially in relation to his experience in dealing with 132 KV cables.  He said that although he did not have any experience hands-on, he did study 275 KV cables.  He also had to deal with 400 KV cables and 500 KV cables in Mainland China.

84.According to Peter Wong, the hole in the Cable was probably the result and not the cause of the explosion.  If the hole had been caused by a cut on the protective sheath of the Cable by the mechanical excavator, there would definitely have been flashover marks on the part of the mechanical excavator which was in contact with the Cable when the explosion occurred.  Greater damage around the hole would also have been found.  He also took the view that the copper left on the core conductors inside the Cable suggested that the short circuit was a phase to phase fault, ie one caused internally, and not a phase to earth fault, ie one caused as a result of the tampering by an outside object.  Most importantly, there was simply no flashmark found on the bucket or on the hydraulic breaker on the Site which would support the theory of Mr Ng.

85.In this regard, it is worth looking at Peter Wong’s testimony in the course of his cross‑examination:

“Q. I just want to put his theory to you and see how you would respond. What Mr Ng said in this: he said, first of all, there was external tampering, and that pierced or punctured the cable, but it might not have touched the core. He said only if there was direct contact between the metal excavator and the core, one of the cores, there would be a flashover mark appearing on the mechanical excavator. But he said that might not have happened. He said if the mechanical excavator simply pierced through the sheath, causing pressure happening within the cable, leading to an insulation failure, which, in turn, led to a short circuit happening, then his conclusion is that the explosion would happen on the other side. That is why he says there are two holes of different sizes and of different nature. So this, roughly, is his case. Do you agree or disagree with what he says?

A. For 132kV cables, it is highly unlikely that you can just touch, punch, and then move away before you’ve got short circuit, explosion. Therefore, when you move away, then there was no flashmark. But mind you, if the foreign object is pressing against the insulations so that the conductors are being deformed or insultation deformed, that foreign object must maintain its pressure on the conductors. If you move away, I would have said it would – the pressure went off, so the conductor is no longer deformed. For Mr Ng’s opinion to be likely, that foreign object must be pressing against the insulation and remain pressing against the insulation before the short circuit happens, and there must be flashover, by his own opinion. I have other opinion. Even though you don’t touch it, within that particular distance, you have flashover. And if you look at the mass transit, which is only 1500 volt, you can see all these insulation tips, and that is starting flashover to the ground. And you’re talking about close to a half-metre high. So, no, without a flashover mark, I do not see there’s anyway possible – which I put in joint report – for a metal piece, so close to the cable when explosion happen, and without any flashover marks.

Q. At the beginning of that answer, you said for 132kV cable, it is highly unlikely that you can just touch, punch, and move away before you’ve got a short circuit, explosion. That’s what you said.

A. Yes.

Q. Can I just ask you: what is the basis of your opinion that it is highly unlikely that that could have happened? What material or what basis do you have to say that?

A. Electrical engineering training.

Q. But we’re talking about 132kV cable, yes?

A. Yes.

Q. And I think earlier you told us that you actually never really had any experience dealing with 132kV cable.

A. I don’t have any experience hands-on, but I studied 275kV. I was looking at 400kV, and in China there is 500kV, and I was looking at this. But 132kV – in fact, there is one of the transcripts where Mr Ng said several hundred times something. No, 132kV is about several thousand times a domestic experience. So if he was thinking about several hundred times, you know, magnitude, then that was wrong. So 132kV, extra high voltage cables, it demand different respects. And the quote he make in the Code of Practice, it was in January, more for the 11kV cable where you have gravel, stone pressing to the cable, but I don’t want to go into that, because that is adequate. But I’ll repeat my answer: 132kV, it’s just not even highly unlikely, it’s definitely not likely, if something pushes on it, you don’t have flashover.

HIS LORDSHIP: Is it because of the extra strong sheath?

A. It’s because of the extra high voltage, 132.  My Lord, 132kV cable is about 90,000 times higher than a domestic voltage, ballpark.”

86.In offering a theory as a possible explanation for the short circuit and explosion in the Cable, Peter Wong says that degraded insulation would further deteriorate in the presence of a partial discharge and could cause a flashover between the metal sheath and the core conductors leading to insulation breakdown and short circuiting.  He says that the Cable which was laid in 2001 could very well have been subject to mechanical stresses during as well as after its installation which stresses could well be further aggravated by localised heating inside the tunnel around the part of the Cable which exploded.

87.Peter Wong further opines that in the process of removal of pieces of the Planking by the defendant, the “operational equilibrium” of the Cable might have been disturbed in the following ways:

(i) The hand digging and soil removal had intensified the overheating within the tunnel housing the Cable and the water flowing from the Trial Hole further escalated such overheating.  As a result, the incipient fault further developed and culminated in an ultimate fault in the Cable.

(ii)   A portion of the Cable was adhered to the cement bond sand backfill materials and was dislodged from its bedding by the extraction of the pieces of Planking.  Such disturbance might have caused the short circuit and the explosion.

88.In connection with the above, Peter Wong pointed out that the profile of the Cable within the tunnel comprised of two changes of depth and two changes in alignment within a short distance.  Hence, sharp points resulted which have caused damage to the Cable and the remaining debris might have caused mechanical stress on the insulation after the installation of the Cable.

89.Having read all the expert reports and heard the testimony of the experts, I prefer the opinion of Peter Wong to that of Mr Ng.  I take the view that the theories put forward by Peter Wong are more plausible than those by Mr Ng.

90.The defendant had adduced a lot of evidence with a view to showing that the plaintiff and its sub‑contractors were negligent in the course of and in the manner in which the Cable was installed back in 2001.  In my judgment, that is not the real issue in this case and I refrain from making any finding in that respect.

My findings on negligence

91.I find as facts the following:

(i) Sketch A is more accurate than Sketch B, especially in relation to the positions of the Building Line, the Cable, the Foundation and the Planking.

(ii) Consequently, the Cable was positioned outside the Building Line.

(iii) Consequently, the Planking was positioned inside the Building Line and underneath the Stem of the Foundation before the breaking up of the latter by the defendant.

(iv) At the material time, on 16 February 2009, the hydraulic breaker was not attached to the mechanical excavator and was not used at all on that day.

(v) On 16 February 2009, at about 2:30 pm, when the explosion occurred, the bucket was attached to the mechanical excavator and was being used in the Trial Hole.  It was used to push loose the pieces of Planking to be then removed by human hands.

(vi) None of the bucket or any other parts of the mechanical excavator was ever in contact with the Cable.  It was impossible for such contact to take place because the boom of the mechanical excavator would have been prevented by the Concrete Face from enabling the bucket to go beyond the Building Line.

(vii) The defendant did owe a duty to the plaintiff to take care that the former would not cause damage to any cable of the latter in its operation on the Site.

(viii) The plaintiff has, however, failed to discharge its burden of proof that the defendant caused the damage to the Cable.

(ix) The defendant in all the circumstances had been misled by the Letter Plan regarding the positioning of the cables of the plaintiff, especially the Cable itself, despite the caveat in the 12 February Letter that “Since our electricity supply lines are energised and our enclosed plans show only their approximate, rather than exact, positions, it is imperative that your contractors and employees exercise extreme care during any works that may be required and take all necessary steps and measures to prevent accidents to personnel and to our electricity supply lines.” (emphasis added).

Res ipsa loquitur

92.In making the finding that the plaintiff has failed to discharge its burden of proving that the defendant was careless, I have taken into account the reliance by the former on the evidential rule of res ipsa loquitur which I deal with now.

93.The nature of the evidential rule has been clearly explained by Bokhary PJ in his leading judgment in the case of Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207.  The learned judge says as follows:

“2. The expression res ipsa loquitur (the thing speaks for itself) features prominently in the judgments of the courts below in this case. It is an expression that some lawyers (prominent among them Hobhouse LJ (as he then was) in Ratcliffe v Plymouth and Torbay Health Authority [1998] PIQR P170) prefer to avoid. But some lawyers still find it convenient. For my own part, I think that using it is convenient sometimes. The important thing to remember – and make clear – is that the expression does not denote a doctrine but merely “a mode of inferential reasoning”. The words which I have put within quotation marks are those used by Gleeson CJ and McHugh J in their joint judgment in a recent decision of the High Court of Australia, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at p 141.

3. This mode of inferential reasoning applies only to accidents of unknown cause.  But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known.  As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause. The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property.  In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care.  The ‘essence’ of this was identified by Lord Radcliffe in Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392 at p 403G.  It is, his Lordship said, that ‘an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence’.

4. None of this is to be analysed as putting an onus on the defendant to disprove negligence. …”  (emphasis added)

94.The way of application of the rule in practice has also been discussed in Clerk & Lindsell on Torts (20^th Edition) in paragraph 8‑172 and the relevant part of paragraph 8‑174 as follows:

“8-172 Res ipsa loquitur A further circumstance in which the court may infer carelessness on the part of the defendant is where the claimant can show that the nature of the accident suggests both negligence and the defendant’s responsibility. Drawing the inference in such a circumstance is often described as an application of res ipsa loquitur. However, it is important to note that this label represents a rule of evidence and states no principle of law. As Morris LJ said: ‘This convenient and succinct formula possesses no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin.’ It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. Res ipsa loquitur, which stems from the judgment of Erle CJ in Scott v London and St Katherine Docks, applies where (1) the occurrence is such that it would not have happened without negligence, and (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate for the question of the defendant’s negligence must be determined on that evidence.

8-174 Sole management and control To establish the defendant’s responsibility it is necessary to show that the damage has been caused by something under the sole management and control of the defendant or someone for whom he is responsible or whom he has a right to control. …”

95.Further guidance on the application of the rule has been provided by the Court of Final Appeal in the case of Yu Yu Kai v Chan Chi Keung (2009) 12 HKCFAR 705 in which Riberio PJ says as follows:

“43. Whether one uses the label res ipsa loquitur or one speaks (as Hobhouse LJ would have preferred) of establishing a prima facie case, one is concerned with a rule regarding the proper approach to the evidence. It is an approach whereby, in cases where the plaintiff is unable to say exactly how his injury was caused but, consonant with his duty of care, one may expect the defendant to know, one asks whether the evidence has raised a prima facie case against the defendant and if it has, whether the defendant has, at the end of the day, dispelled that prima facie case by providing a plausible explanation for the plaintiff’s injury which is consistent with the absence of negligence on his part.

…

48. To dispel such a prima facie case, the defendant would have to point to evidence supporting a plausible explanation consistent with the absence of negligence. As to the meaning of ‘plausible’, Buxton LJ point out that:

‘… mere assertion will not do; but neither need the explanation be shown to be the probable or likeliest answer. An explanation to that modest standard has to be reasonably available on the evidence taken in the round.’

49. Similarly, in his summary of the law, Brooke LJ in Ratcliffe stated:

‘(4) The position may then be reached at the close of the plaintiff’s case that the judge would be entitled to infer negligence on the defendant’s part unless the defendant adduces evidence which discharges this inference.

(5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant’s part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.’

50.   I would add that in the context of an appeal, the plausibility of the proffered explanation must be assessed in the light of the Judge’s unchallenged findings and in the light of what the evidence as a whole may fairly be taken to have established.”

96.In my judgment, following the guidelines set out in the abovementioned authorities, the evidential rule of res ipsa loquitur has no application in the present case.  Alternatively, even if there is room for the application of the rule, it does not assist the plaintiff.  The main reasons are:

(i) The case of the plaintiff is that the short circuit and explosion in the Cable was caused by direct contact between the mechanical excavator either fitted with the hydraulic breaker or the bucket and the Cable.  I have found as a fact that there was no such direct contact.  In other words, the plaintiff has simply failed to show which was “the thing that inflicted the damage”.

(ii) In any event, the defendant’s expert, Peter Wong, has suggested a number of possible reasons as to why there was a short circuit and an explosion in the Cable.  I have found such reasons to be a plausible explanation regarding the same.

(iii) In short, the plaintiff has failed to discharge the burden of proof which lies with it.

97.In connection with the above, I should point out that it is trite law that, in a civil case, the main function of the court is not necessarily to come to a conclusion on a set of facts, but simply to judge whether the plaintiff has proved its case as presented to the court.  That this is so can be seen, for example, from the judgment of the Full Court in the case of Cathay Textile Corporation v Eastern Zone Industrial Co Ltd [1962] HKLR 139 where Blair‑Kerr J said at page 145 as follows:

“The proceedings, in a civil case, are not an independent search for the truth by the Court but an attempt to achieve justice, according to law, on the case as presented.”

98.In the result, I find that the plaintiff fails in its claim against the defendant in negligence.

Contributory Negligence

99.In view of my findings above, it is not necessary for me to deal with contributory negligence at all.

BREACH OF STATUTORY DUTY

100.As mentioned in paragraph 22 above, the plaintiff also claims against the defendant for breach of statutory duties imposed on the latter under (i) Section 10 of the Regulation and (ii) the Code of Practice. The plaintiff claims that it is entitled to damages by reason of the alleged breaches of the same committed by the defendant which resulted in loss and damage suffered by the plaintiff.  In other words, the plaintiff claims that it is entitled to a private remedy in tort against the defendant.

101.The relevant provisions in the Regulation read as follows:

(i) In Section 2:

“2. Interpretation

In this Regulation, unless the context otherwise requires –

‘competent person’ (合資格人士) means a person approved as a competent person under Section 3;”

(ii) In Section 3:

“3. Approval, etc. of competent person

(1) The Director may, in accordance with this section, approve a person as a competent person for the purposes of this Regulation.

…

(3) Subject to subsection (4), the Director shall grant an application for approval as a competent person if –

(a) the Director is satisfied that –

(i) the person has attended and passed a course in the locating of underground electricity cables which has been approved by the Director for the purposes of this section; and

(ii) during the period of 3 years immediately preceding his application, the person has had not less than 6 months’ practical experience in locating underground electricity cables, or has had such other practical experience as the Director may consider relevant and equivalent for the purposes of this Regulation; or

(b) in the opinion of the Director, the person is by reason of his knowledge and practical experience capable of locating underground electricity cables in a competent manner,

and the Director may grant his approval subject to such conditions as he reasonable thinks fit.”

(iii) In Section 10:

“10. Requirements relating to works in vicinity of electricity supply lines

(1) A person shall not –

(a) carry out or cause or permit another to carry out in the vicinity of an underground electricity cable any works which are below ground level or

(b) carry out or cause or permit another to carry out in the vicinity of an overhead electricity line works of any kind,

unless before the works are begun all reasonable steps have been taken to ascertain the existence within the proposed works site and its vicinity of any such underground electricity cable and its alignment and depth or of any such overhead electricity line and its alignment, distance from the ground and voltage, as the case may be.

(2) A person who –

(a) carries out or causes or permits another to carry out in the vicinity of an underground electricity cable any works which are below ground level; or

(b) carries out or causes or permits another to carry out in the vicinity of an overhead electricity line works of any kind,

shall ensure that all reasonable measures are taken to prevent the occurrence of an electrical accident or an interruption to the supply of electricity arising from those works.

(3) For the purposes of subsection (1) as it applies in relation to works in the vicinity of an underground electricity cable, and without affecting the generality of that subsection, reasonable steps shall not be regarded as having been taken unless a competent person has undertaken an investigation for the purpose of ascertaining the existence within the proposed works site and its vicinity of any such underground electricity cable and its alignment and depth and has provided a written report of his findings as to those matters.

(4) Subject to Section 11(7), where the Director has approved a code of practice for any of the requirements of paragraph (a) or (b) of subsection (1) or (2), then, subject to subsection (3), compliance with the provisions of that code shall be deemed to constitute the taking of all reasonable steps, or the taking of all reasonable measures, as the case may be, for the purposes of that requirement.”

(iv)  In Section 17:

“17. Offences and penalties

…

(3) A person who contravenes any requirement of Section 10(1)(a) or (b) commits an offence and is liable to a fine at level 4 and to imprisonment for 6 months.

(4) A person who contravenes any requirement of Section 10(2)(a) or (b) commits an offence and is liable –

(a) if the contravention results in an electrical accident or an interruption to the supply of electricity, to a fine of $200,000 and to imprisonment for 12 months; or

(b) in any other case, to a fine at level 4 and to imprisonment for 6 months,

and, in the case of a continuing offence, to an additional fine of $10,000 for each day on which the offence continues.”

(v) In Section 18:

“18. Defence

It shall be a defence to a charge under Section 17(4) alleging a contravention of Section 10(2) for the person charged to show that –

(a) before the works began, all reasonable steps had been taken for the purposes of Section 10(1); and

(b)   any failure in the taking of all reasonable measures for the purposes of Section 10(2) was due to reliance on information contained in a report prepared by a competent person or on information provided by the electricity supplier who is the owner of the electricity supply line concerned.”

102.The relevant provisions in the Code of Practice read as follows:

“2.1 The working party’s safe system of work

2.1.1 The working party is responsible for ensuring that those working in the vicinity of electricity supply lines adhere to a safe system of work. This safe system of work has two key elements: reasonable steps and reasonable measures.

2.1.2 Before commencement of works in the vicinity of U/G cables, the working party shall take all reasonable steps to ensure safety, which include obtaining cable plan from electricity supplier, appointing a competent person for cable detection work and ensuring that personnel at the works site are fully aware of the details of the U/G cables.

2.3 Competent person’s responsibility

2.3.1 A competent person shall:

(a) coordinate with the working party to undertake an investigation to ascertain the existence of any U/G cable within the proposed works site and its vicinity, and to determine its alignment and depth; and

(b) provide the working party with a Competent Person Written Report and give a briefing on it as required by the working party.

2.3.3   The competent person shall seek assistance from the electricity  supplier if he encounters genuine difficulty in locating the U/G cables.”

103.The case of the plaintiff on breach of statutory duties is first that the defendant was in breach of its statutory duties under Section 10(1)(a) of the Regulation in failing to take reasonable steps to locate the Cable prior to its excavation work at the Site.  Furthermore, the defendant was in breach of its statutory duties under Section 10(2)(a) of the Regulation in:

(i) failing to take any reasonable steps to locate the Cable prior to the commencement of its excavation work;

(ii) failing to give any proper instructions to its workers to ensure   that they were fully aware of the details of the Cable when carrying out the excavation work at the Site; and

(iii) failing to adopt safe excavation practice by maintaining an adequate clearance between the underground Cable and the point where the mechanical excavator was used.

104.Although it does not seem to have been expressly stated in the plaintiff’s Closing Submissions, I believe that the plaintiff also claims on the basis of a breach of the Code of Practice.  Furthermore, although again not expressly stated therein, I believe that the plaintiff also relies on the failure on the part of the defendant to engage a “competent person” to help to locate the Cable.

105.The first question I have to decide is whether the Electricity Ordinance, the Regulation and the Code of Practice give any private cause of action to any citizen, including the plaintiff.

106.The plaintiff refers to Section 59(1)(ia) of the Electricity Ordinance which reads as follows:

“59. Regulations

(1) The Chief Executive in Council may make regulations for the general purposes of this Ordinance including regulations for all or any of the following matters –

(ia) measures designed to ensure that activities performed in the vicinity of electricity supply lines are performed in a manner that minimizes causing an electrical accident or interruption to the supply of electricity;

…”

and argues that the Regulation made thereunder, in particular, Section 10(1)(a) and (2)(a), therefore impose obligations to benefit all those individuals who would be affected by an electrical accident or interruption to the supply of electricity.

107.In the case of Dah Sing Insurance Services Ltd v Gill Gurlux Singh [2014] 1 HKLRD 691, the Court of Appeal had to deal with the issue of whether the Insurance Companies Ordinance, Cap 41 gave a private right of action to a party who had suffered loss and damage as a result of a breach of some provisions thereof committed by another party.  In paragraph 59 of her judgment, Kwan JA referred to the principles as set out in an English case:

“If there was breach of statutory duty simpliciter

59. The principles to be applied in determining whether a cause of action exists for breach of statutory duty simpliciter are as propounded by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council, 731D-732B:

‘The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action.  However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.  There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators.  If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer.  If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173.  However, the mere existence of some other statutory remedy is not necessarily decisive.  It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy.  Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v Wimbome (Lord) [1898] 2 QB 402.’”

108.Kwan JA then went on:

“65. This goes back to the crucial question whether there is legislative intent to protect a particular class of the public, namely, the insurance agents.

66. In attempting to answer this question, both sides referred us to a list of questions distilled by Morgan J in Digicel (St Lucia) Ltd v Cable and Wireless Plc [2010] EWHC 774 (Ch) at Annex H and referred to by Mann J in Di Marco v Morshead Mansions Ltd [2013] EWHC 1068 (Ch), [16].

69. I do not think the list of questions in Digicel (St Lucia) Ltd v Cable and Wireless Plc would be answered all one way. It is a question of what weight should be given to various answers in different directions in order to arrive at the crucial answer to which all those questions are directed.

70. Ultimately, I am not persuaded by Mr Li’s submission that as a matter of statutory construction, it ought to be inferred that one of the legislative intents was to protect insurance agents and to make a breach of duty on the part of insurers actionable by the agents. Having considered in some detail the statutory framework, the legislative materials and the speeches of the government officials, I am unable to discern any such intention on the part of the legislature when the bills were scrutinised. I agree with Mr Ho’s arguments. Throughout, the clear intention of the legislature was to protect public consumers, and to that end, to supervise the self-regulation of agents by the insurance industry. During the debates, the question of liabilities of an insurer was considered, but only in respect of its liabilities to policyholders. The effectiveness of the implementation of the Code was considered, but only in respect of whether the Code should become subsidiary legislation as breach of it may result in a term of imprisonment.

71. For the above reasons, I rule against the defendant and decline to hold that a cause of action would exist in this instance for breach of statutory duty simpliciter.”

109.In the case of HKSAR v Fugro Geotechnical Services Ltd (FACC 1/2014, judgment handed down on 7 November 2014, unreported), the Court of Final Appeal had to deal with a criminal appeal under the Electricity Ordinance.  The issue there was the meaning of the word “ramming” in Section 2 of the Regulation.  In paragraphs 34‑38 of the judgment of Fok PJ, he dealt with the legislative intent as follows:

“34. As indicated in the opening paragraph of this judgment, carrying out work in the vicinity of electricity cables is inherently dangerous and may be potentially highly disruptive. It is therefore of little surprise that the long title of the Ordinance includes as one of its objectives ‘to provide for measures designed to ensure that activities carried out in the vicinity of electricity supply lines do not prejudice safety or the continuity of the electricity supply’.

35. To this end, Section 59(1) of the Ordinance provides that the Chief Executive in Council may make regulations ‘for the general purposes of this Ordinance including regulations for all or any of the following matters’, including:

‘(ia) measures designed to ensure that activities performed in the vicinity of electricity supply lines are performed in a manner that minimizes causing an electrical accident or interruption to the supply of electricity.’

36. The Regulation having been made pursuant to Section 59 of the Ordinance, it is abundantly clear that its legislative purpose is safety and the prevention of interruption to the electricity supply. The following aspects of the Regulation firmly reinforce this.

(1) The title of the Regulation itself refers to the ‘protection’ of electricity supply lines.

(2) The Regulation provides a detailed scheme for the grant by the Director of approval to a person as ‘a competent person for the purposes of this Regulation’. This involves the person attending and passing a course in locating underground electricity cables, not less than 6 months’ practical experience in locating such cables and competence in locating them. As already pointed out, Section 10 of the Regulation sets out requirements relating to works in the vicinity of supply lines. For the purposes of demonstrating that reasonable steps have been taken for the purposes of the exemption in Section 10(1), it is necessary that a competent person ‘has undertaken an investigation for the purpose of ascertaining the existence within the proposed works site and its vicinity of any such underground electricity cable and its alignment and depth and has provided a written report of his findings as to those matters.’ In doing so, the competent person is required to ‘carry out the investigation in a manner that does not cause damage to, or impair the operation of, the underground electricity cable’.

(3) The Director is empowered, if he thinks a contravention of a requirement under the Regulation gives rise to ‘an undue risk of an electrical accident or an interruption to the supply of electricity’, to issue a remedial notice containing instructions as to measures to be taken to remedy the contravention. The Director is also given powers of entry and inspection to premises or places in which works are being undertaken in the vicinity of an electricity supply line ‘in the interests of safety or of ensuring the continuity of supply of electricity’.

37. The Director is also empowered to approve and issue codes of practice for the purpose of providing practical guidance in respect of any requirement under the Regulation. Reference to the Code of Practice further reinforces the purposes of the legislative provisions of the Regulation. It states, in it Introduction, that:

‘Incidents involving damage to electricity supply lines can have serious consequences for workers and adversely impact on the community. Various types of works have the potential to cause such damage but adequate precautions can dramatically reduce the risk of an incident. This Code outlines the dangers and provides advice on how to reduce risk.

…

It deals specifically with risks to persons carrying out works and the necessary precautions needed to reduce the risk of accidents due to damage and unsafe practices.’

38. Given the abundantly clear legislative purpose of the Regulation as a whole and the requirements relating to works in the vicinity of electricity supply lines prescribed in Section 10 of the Regulation, the word ‘ramming’ should, so far as permissible as a matter of language, be construed consistently with that purpose and in a manner which will best achieve that purpose.” (emphasis added)

110.In my judgment, the legislative intent is very clear.  Section 17 of the Regulation prescribes only criminal sanctions for contravention of various provisions.  It does not provide for any private remedy.  Clearly, the Electricity Ordinance, the Regulation and the Code of Practice are all designed for the protection of the public at large and not any particular section of the public or class of persons.  In my view, the position is absolutely clear and there is no need even to look at Hansard.

111.In the result, the plaintiff fails on its claim based on breach of statutory duties.

112.In case I am wrong in my conclusion on the law above, I take the view, on the evidence of the witnesses for the defendant, that the defendant had taken all reasonable measures to prevent the occurrence of an electrical accident or an interruption to the supply of electricity and, hence, had not contravened Section 10(2) of the Regulation.  On the other hand, by reason of the fact that the defendant has admitted that it had not engaged a competent person at any time in relation to work on the Site, it had contravened Section 10(1) of the Regulation and paragraph 2.1.2 of the Code of Practice.

DAMAGES

113.I now deal with the plaintiff’s claim for damages in case the matter is taken to a higher court and I am held to be wrong in my findings against the plaintiff regarding negligence and breach of statutory duties.

114.The plaintiff claims damages in the sum of $4,612,606.02 which have been particularised in the Statement of Claim as follows:

Item	HK$
Cable	294,570.00
Joints	372,000.00
Sundry Materials	19,580.06
Material Handling Costs	398.29
Cable Insulting Fluid	151,186.20
Switchgear Accessories and Material	2,585.79
Labour Costs	35,017.00
Contractor Charges	3,419,138.28
Excavation Permit Fee	12,720.00
Engineering Costs	265,713.50
Transportation Cost	39,696.90
	___________
	4,612,606.02
	==========

115.The defendant sought further and better particulars of the aforesaid items and in answer the plaintiff supplied the same as follows:

“Request

Please give full particulars as to how the sums of HK$294,570.00, HK$372,000.00, HK$19,580.06, HK$398.29, HK$151,186.20, HK$2,585.79, HK$35,017.00, HK$3,419,138.28, HK$12,720.00, HK$265,713.50, HK$39,696.90 are arrived at.

Answer

Please see the table below:

Item	Amount	Further Particulars
Cable	HK$294,570	90m of 132kV cable at HK$3,273/m (please refer to items 53(a) and (b) of the plaintiffs List of Documents)
Joint	HK$372,000	2 sets of cable joint at HK$186,000 each (please refer to item 53(e) of the plaintiff’s List of Documents)
Sundry Materials	HK$19,580.06	Minor sundry materials for repair and jointing such as solder, plumbing metal, insulation tapes, cleaning solvents, rags, cotton gloves, LPG gas bottles, etc. used for the repair.  For full list of items, please refer to item 53(f) of the plaintiff’s List of Documents.
Cable Insulating Fluid	HK$151,186.20	20 drums of 200L cable insulating fluid at HK$7,559.31 per drum (please refer to item 53(i) of the plaintiff’s List of Documents)
Switchgear Accessories and Material	HK$2,585.79	One number of V640 switchgear O-ring at HK$2,093.421 and one piece of silicon sealant at HK$492.37 (please refer to items 53(h) and (g) of the plaintiff’s List of Documents respectively)
Material Handling Costs	HK$398.29	Total 3.92 man hours at HK$101.69 per man hour (please refer to item 53(l) of the plaintiff’s List of Documents)
HEC Labour Cost	HK$35,017	Total 361 man hours at HK$97 per man hour (please refer to item 53(m) of the plaintiff’s List of Documents)
Contractor Charges – Transportation and supply of manual labourer	HK$93,207.32	Please refer to invoices at item 53(n) of the plaintiff’s List of Documents for detailed breakdown.
Contractor Charges – Trenching Work	HK$3,013,530.96	Please refer to invoices at item 53(o) of the plaintiff’s List of Documents for detailed breakdown.
Contractor Charges – Anti-termite Treatment	HK$17,400	Please refer to invoice at item 53(p) of the plaintiff’s List of Documents.
Contractor Charges – Temporary Removal of Reserved Gas Pipe	HK$182,000	Please refer to invoices at item 53® of the plaintiff’s List of Documents for breakdown.
Contractor Charges – Removal and Subsequent Reinstatement of Hoarding	HK$113,000	Please refer to invoice at item 53(t) of the plaintiff’s List of Documents.
Highways Department – Excavation Permit Fees	HK$12,720	Please refer to summary sheet at 53(u) of the plaintiff’s List of Documents for detailed breakdown
Engineer Costs	HK$265,713.50	Please refer to cost calculation sheet at item 53(x) of the plaintiff’s List of Documents for detailed breakdown.
Transportation cost	HK$39,696.90	Please refer to cost calculation sheet at item 53(x) of the plaintiff’s List of Documents for detailed breakdown.
TOTAL	$4,612,606.02	”

116.The defendant naturally disputes such quantum.  The defendant argues that even on the basis of 100% liability, the amount of damages should be no more than $356,642.29.  In support of such argument, the defendant produced a spreadsheet which has been marked as Exhibit D6.  I annex hereto as Annexure 3 a copy of Exhibit D6.  It summarises the defendant’s answers to each of the items claimed by the plaintiff as set out in paragraph 115 above.

117.The plaintiff takes a pleading point against the defendant.  It argues that since the defendant has only pleaded in the Defence and Counterclaim a bare denial that the plaintiff is entitled “to claim the sum of $4,612,606.02 or any part thereof”, it cannot now run a positive case of its own suggested quantum.

118.I do not accept such argument by the plaintiff.  The burden is always on the plaintiff to prove the quantum as claimed.  What the defendant is doing is merely to attack the validity and extent of such claim, item by item. Moreover, all the matters have been canvassed in the expert reports, the oral evidence and the oral submissions.  It cannot be said that the plaintiff was taken by surprise.  I hold that the defendant is entitled to do what it has done.

119.The biggest differences between the plaintiff and the defendant are in the following areas:

(i) The plaintiff claims that it was necessary to lay 90 metres of cable in order to remedy the situation as a result of the damage to the Cable.  The defendant says 12 metres of cable would have been sufficient.

(ii) The plaintiff claims that as a result of 90 metres of cable having to be laid, it was necessary to dig a trench of appropriate length.  The defendant says that for laying 12 metres of cable, only a trench of 18 metres in length was necessary.  As can be seen, the plaintiff claims over $3 million as the cost of trenching, whereas the defendant argues that it should be just over $100,000.

The cable joints and the length of cable

120.According to the plaintiff, the damaged Cable was repaired by way of the overlaying method which consisted of cutting off the damaged part of the Cable and connecting both ends of the remaining sections of the Cable to a new cable section (the over-laid cable) at the two cut‑off points via two joints.  The repair location would be based on the location of the two joint bays where the jointing work was to be conducted.  The location of the joint bays would determine the length of the new replacement cable section, the size of the joint bays and the size of the trench to be dug.

121.In this connection, it is to be noted that it was agreed between the experts, Mr Ng and Peter Wong, that:

“The locations of the cable joints must be as close to each other as practicable, such that the replacement cable section is kept at its shortest practicable length.”

122.According to the plaintiff, one joint bay was placed outside Nos 72‑78 Java Road and the other joint bay outside Nos 96‑108 Java Road.

123.In deciding to do that, the plaintiff took into account the following aspects of the original alignment of the Cable before the damage:

(i) There was a point outside Nos 72‑78 Java Road when the original three 132 KV cables started bending from where they were close to the carriageway towards the building line of Java Road.

(ii) There was another point outside No 96 Java Road when the original cables started bending from the building line towards the carriageway.

(iii) Thus, the cables outside Nos 80‑94 Java Road were laid very close to the building line.

124.In the above circumstances, the plaintiff decided against placing a joint bay at the footway anywhere between Nos 80 and 94 Java Road because:

(i) there was insufficient space for the setting up of joint bay areas and the construction of joint tents at the footway of approximately 3 metres in width;

(ii) there were difficulties in locating and shifting underground cables across congested underground pipes/ducts/lines underneath the footway to join with the new cable; and

(iii) consideration had to be given to the impact of construction work on busy vehicular and pedestrian traffic in that locality and the flow of pedestrian traffic into and out of the shops at Nos 84‑94 and 108‑112 Java Road.

125.As a result, the excavation trench was 104 metres in length and the total length of the replacement cables was 90 metres.

126.Furthermore, in order to accommodate the gas pipes discovered at both of the joint bays during the excavation work and to allow for the existing underground cable to be shifted towards the carriageway for jointing with the new cable, the joint bays had to be 15 metres in length and 2.5 metres in width with a total area of 37.5 square metres.

127.According to Peter Wong, the expert for the defendant, the manner in which the plaintiff carried out the repair work as described above was “bordering on a frivolous manner.  I do not believe the choices were made in accordance with an economic option.”

128.It was put to Fred Lee in cross-examination by Mr Scott SC that the damaged section of the Cable being only between 6 and 8 metres, only between 14 and 16 metres of cable would have been necessary to replace it. Fred Lee’s answer was: “Possible”.  If that is so, it follows that about 75 metres of serviceable cable would have been wasted.  Later on in his cross‑examination, Fred Lee accepted that there was no requirement as to the minimum permitted distance between two joint bays.

129.Fred Lee was then asked by reference to photographs why the repair could not have been made right outside No 96 Java Road where the explosion took place.  He suggested two reasons:

(i) the hole was inside the Site; and

(ii) there was the presence of a covered walkway just outside the Site.

130.The defendant’s answer is, first, the single joint bay suggested by the defendant was outside the Site where the original tunnel was located and thus the fact that the hole was within the Site was irrelevant.  Secondly, the covered walkway was only a temporary structure.  In fact, at the plaintiff’s request, the defendant actually removed the covered walkway (I believe that it is the same as the Hoarding) in September 2009 at its own cost.  It is to be noted that the plaintiff has actually claimed for this item of work.

131.Mr Ng was cross-examined about the feasibility of using only one single joint bay outside the Site.  His answer was: “Theoretically, yes”.  On the practicalities of the same, the only objection he could suggest was that there might be other utility cables at the location of the pavement outside No 96 Java Road (the Footpath).  He was then reminded that there would be other utility lines in the close vicinity of underground electric cables anywhere in Hong Kong.

132.In the above circumstances, I take the view that the plaintiff has not discharged its burden of proving that it is entitled to claim damages to the extent that it has claimed even on the basis of full liability against the defendant.

133.I shall now proceed to rule on the individual items as claimed by the plaintiff by reference to the numbering of the same as set out in Exhibit D6.  I shall give my brief reasons in relation to each item.

Ruling on claims

134.My ruling on each item of damages claimed is as follows:

(i) Item 1(a)

I allow 15 metres of cable. Since the plaintiff chose to use cable from its own stock acquired in 2003 at $1,649.70/m, that should be the price adopted:

$1,649.70 x 15 = $24,745.50.

(ii)   Item 1(b)

I allow two joints at the 2003 price of $91,053.30 (as conceded by the defendant):

$91,053.30 x 2 = $182,106.60.

(iii)   Item 1(c)

I allow the claim of $19,580 on a pro-rata basis:

$19,580 x 15/90 = $3,263.30.

(iv)   Item 1(d)

I allow the claim of $151,186.20 on a pro-rata basis:

$151,186.20 x 15/90 = $25,197.70.

(v)   Item 1(e)

I allow the claim of $2,585.79 on a pro-rata basis:

$2,585.79 x 15/90 = $430.96.

(vi)   Item 1(f)

I allow the claim of $398.29 on a pro-rata basis:

$398.29 x 15/90 = $66.38.

(vii) Item 2

Even though the plaintiff was using its own salaried staff, there is no reason why it cannot claim under this item. I therefore allow the claim of $35,017 on a pro-rata basis:

$35,017 x 15/90 = $5,836.16.

(viii)  Item 3(a)

I allow the claim of $93,207.32 on a pro-rata basis, the defendant having conceded that an 18 metre trench would be appropriate whilst the plaintiff argues that it should be 104 metres:

$93,207.32 x 18/104 = $16,132.03.

(ix)   Item 3(b)

I allow the claim of $3,013.531.02 on a pro-rata basis:

$3,013,531.02 x 18/104 = $521,572.67.

(x)   Item 3(c)

I allow the claim of $17,400 on a pro-rata basis:

$17,400 x 18/104 = $3,011.53.

(xi)   Item 3(d)

The defendant objects to the claim for the temporary removal of gas pipes on the basis that a single joint bay could have been constructed outside Nos 96‑106 Java Road where there did not appear to have been a gas main.  On the other hand, the defendant has conceded two joints under sub-paragraph (ii) above.  I will give the benefit of the doubt to the plaintiff and allow the claim of $182,000.

(xii)  Item 3(e)

I disallow the claim of $113,000 on the evidence that this item of expenditure was actually incurred by the defendant and not the plaintiff.

(xiii)  Item 4

I allow the claim of $12,720 on a pro-rata basis:

$12,720 x 18/104 = $2,201.53.

(xiv)  Item 5

Even though the plaintiff used the services of its own engineers, there is no reason why it cannot claim under this head.  I allow the claim of $265,713.50 on a pro-rata basis:

$265,713.50 x 15/90 = $44,285.58.

(xv)  Item 6

On the same basis as under sub-paragraph (xiv) above, I allow the claim of $39,696.90 on a pro-rata basis:

$39,696.90 x 15/90 = $6,616.15.

The total is therefore $1,017,466.09.

CONCLUSION

135.For all the above reasons, I dismiss the plaintiff’s claim.  I see no reason why costs should not follow the event.

136.I make an order nisi that:

(i) the plaintiff do pay the costs of its claim to the defendant; and

(ii) the defendant do pay the costs of its Counterclaim to the plaintiff up to the time of its abandonment.

137.Lastly, it remains for me to thank counsel on both sides for their very valuable assistance given to me.

Mr Eugene Fung SC and Ms Andrea Yu, instructed by Mayer Brown JSM, for the plaintiff

Mr John Scott SC and Ms Liza Jane Cruden, instructed by Wong & Fok for the defendant