Lee Chun Mui v. Securicor Gurkha Services Ltd and Another

HCPI 774/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 774 OF 2005

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BETWEEN

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Before : Deputy High Court Judge Carlson in Chambers

Date of Hearing : 19 February 2008

Date of Judgment : 27 February 2008

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J U D G M E N T

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Introduction

1.This is the 2^nd Third Party’s appeal against a refusal by Master Kwan to allow expert evidence from an architect to be called at the trial of the action.  This is a rather straightforward personal injury action brought by the Plaintiff, who is an employee of the 1^st Defendant.  She was employed by it as a security officer at its offices at Castle Peak Road, Kowloon.  Her duties mostly involved watching the CCTV monitors and answering the telephone at the Central Control Room which was situated on the mezzanine floor of the building.  She was also required to replace the receptionist at the Reception Counter on the first floor during the receptionist’s meal breaks.

2.On 16 August 2003, the 1^st Defendant’s offices were undergoing an extensive refurbishment.  At 12:30 p.m., the Plaintiff, as was usual, had been asked to go and relieve the receptionist at the Reception Counter during the receptionist’s lunch break.  Because of the refurbishment the Plaintiff was required to take a circuitous route from the Control Room to the Reception Desk by means of two staircases.  The first staircase, which is the relevant one for these purposes, led downstairs from the Control Room on the mezzanine floor to the ground floor, from where she would have had to take another staircase up to the first floor reception counter.  The first staircase was in the course of being refurbished.  Its handrail had been removed and the steps, which were going to be renewed, had been scraped and were therefore uneven and coarse.  As the Plaintiff stepped on the 3^rd or 4^th step from the top, she lost her footing and fell for three or four steps down to ground floor level and was injured.

3.She has sued, as 1^st Defendant, her employer and as 2^nd Defendant, the contractor carrying out the works.  She has done so in negligence and for breach of statutory duty under the Occupiers Liability Ordinance and additionally, against her employer for breach of the Occupational Safety and Health Ordinance and the contractor under the Construction Sites (Safety) Regulations.  All of these allegations centre on the allegedly dangerous state of the staircase, a failure to warn against this and a failure to provide an alternative and safe means of access to the Reception Counter from the Control Room, as well as, against her employer, failing to provide a safe system of work.  From this brief summary of the allegations, it is very plain that this should be a relatively uncomplicated personal injury action.

The Third Party Proceedings

4.The action has since become enlarged and complicated by the addition of two third parties.  The 1^st Third Party, as its name suggests, is an associated company of the 1^st Defendant and is the owner of the building.  It engaged the 2^nd Defendant to carry out the refurbishment works.  The 2^nd Defendant (the contractor) has brought these third party proceedings on 20 June 2006 against the 1^st Third Party.  Its Third Party Notice is at pages 44 to 56.  Its plea against the 1^st Third Party is based on the fact that the 1^st Third Party would have known of the presence of all persons working in the building during the course of the refurbishment, that it was not made aware of the likely presence of the Plaintiff at the time and, that everything that it had done to the staircase was in accordance with the master working programme and that it had taken its instructions as to what to do to the staircase from the architect, which was in due course, as I shall describe in a moment, to become the 2^nd Third Party.  In the circumstances of its plea in the Third Party Notice, the 2^nd Defendant laid the blame for the accident to the Plaintiff on the 1^st Third Party.

5.On 25 July 2006, the Plaintiff’s employer, the 1^st Defendant, joined the architect as the 2^nd Third Party [see pages 81-99].  The 1^st Defendant’s Third Party Notice is an elaborate pleading containing to less than 30 particulars of negligence levelled against the 2^nd Third Party.  But even before one gets to these particulars, one is invited to consider the Architect Contract, as it is described, under which the 1^st Third Party engaged the 2^nd Third Party to be the Project Manager in respect of the refurbishment works.  It’s duties include supervision of the 2^nd Defendant contractor and, it is alleged, the implementation of safety measures.  Additionally, pursuant to the Architect Contract, the 2^nd Third Party was also contracted by the 1^st Defendant employer to, amongst other things, prepare designs, specifications, tender documents and liaise with the Building Authority and recommend a suitable contractor which, as it turned out, was the 2^nd Defendant.  At pages 83 and 84, there are pleaded 15 duties or obligations that are said to derive from the Architect Contract owed by the architect 2^nd Third Party to the 1^st Defendant.

6.Moving on from that there is a very detailed plea concerning a revised relocation plan relating to the old Central Control Room and how that was to take place.  Seven separate steps are pleaded as to precisely how, sequentially, that should have taken place.  Next come the 30 particulars of negligence concerning a failure of supervision, instruction and warning on the part of the architect 2^nd Third Party.  I will need to return to the implications of this plea in due course.

7.As if this was not enough, on 17 January this year, the contractor 2^nd Defendant has also issued third party proceedings against the architect 2^nd Third Party [147/4-147/9].  This plea is a much shorter one than the 1^st Defendant’s Third Party Notice and really amounts to an alleged failure by the architect to understand what was contained in the revived relocation plan, as a result of which it failed to appreciate that the staircase used by the Plaintiff might still have been in use and, permitting the 2^nd Defendant to carry out work on it at such a time and to do so without a handrail.

The Implications of the Third Party Proceedings

8.Whilst these are perfectly good pleas where the Defendants’ have sought to cover their position in the event of being found liable to the Plaintiff, and in doing so they have attempted to identify the most immediate and proximate cause of this accident, it seems to me that they have inevitably turned, what started out as a simple tripping case into a detailed investigation of the professional obligations and duties of the architect, and have alleged a failure by it to perform those duties as it should have done, thereby causing the staircase to remain in use when it should not have been and to compound that by a failure to see to it that there were warning signs and a handrail.

9.The Master, in her understandable desire to keep the matter as simple as possible and proportionate in terms of cost for what had started out as a simple personal injury action, has required the 1^st Defendant to simplify the pleaded case by preparing a list of issues [see 144-146].  Having done so, she then declined to allow expert evidence to be called on the basis that the parties various contractual duties can be found from the contracts.  The list of issues is a brave attempt to keep the matter as short as possible and paragraph 6(a) to (c) [page 146] states what are said to be the real points calling for resolution by the trial judge, although it is notable that this paragraph specifically relies on the 30 particulars of negligence at paragraph 28 of the Third Party Notice. 

10.Mr Haynes, for the architect, says that whilst the 1^st Defendant is fully entitled to put forward these matters as the issues which call for decision, that does not mean that the architect in defending itself is to be held to these items.  It must be able to argue its case as it sees fit on the basis of the pleadings which is, of course, perfectly correct.

What is the Substance of the Third Party Proceedings

11.It seems to me that these pleadings and the allegations made against the architect are that it has not carried out its contractual duties properly.  Specifically, it is said that it has been guilty, in the many ways appearing in paragraph 28 of the 1^st Defendant’s Third Party Notice, of negligence.  This it has denied.  For my part, I am satisfied that these are allegations of professional negligence against an architect and, as I have said, a perfectly good plea of professional negligence has been pleaded against it.  It is no answer to say that this is just a personal injury case in which it has now become, and rightly so, increasingly rare to find that expert evidence is admitted on the issue of liability.  The substance of the third party proceedings is that the architect has not done its duty properly and what one sees is the sort of plea that one would expect to find in an action for professional negligence against an architect.

12.This having been said, it is not in every case of professional negligence that one will require the appearance of an expert.  Much will depend on the complexity of the issues.  In the Supreme Court of South Australia in the case of F v R (1983) SASR 189, 194 (referred to in Jackson & Powell, 5^th Edtn 293) King CJ emphasised the fact that the decision as to the standard of skill and care required of a defendant professional is ultimately a matter for the court and not for the profession in the form of expert witnesses. The Chief Justice said this:

“

The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law.  That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.”

Nevertheless, the learned authors of Jackson go on to say at 8-150, page 253 that:

“	However, in most cases in which construction professionals are alleged to have fallen below the required standard of skill and care, the court will be assisted by expert evidence as to either or both:
	(i)	matters of scientific or technical fact.  To this extent, the expert’s function is merely didactic, in that he explains the technical aspects of the case in terms comprehensible to the layperson.  Expert evidence of this sort may be largely or wholly uncontroversial;
	(ii)	the standards ordinarily observed in his profession, including the existence of schools of thought, bodies of opinion or of recognised practices within the profession.
	Indeed, save in those (relatively rare) cases in which the issue of breach of duty can properly be decided as a matter of ordinary common sense, expert evidence that the reasonably competent professional would not have committed the act or omission complained of will be essential for a finding of breach of duty.”

It seems to me that the third party proceedings in this case, raising as they do detailed allegations of negligence do call for the assistance to the trial judge of expert witnesses.  The issues considered at (ii) above in Jackson would be the sort of matters upon which a judge would need help.  I do not believe that the allegations against the architect in this case can be decided on the basis of common sense.  An expert will be required to consider the contractual duties of the architect; have regard to how the architect purported to perform those duties; carefully consider the allegations of negligence and then speak to what the recognised practices are within the profession and how a reasonably competent architect would be expected to perform the architect’s duties in this case, with particular regard to the management of this staircase in the course of the refurbishment.

13.In my judgment, a judge cannot be expected to look at the contract and decide the various issues raised in the allegations of negligence in this way.  In any event, it should also not be forgotten that, as the English Court of Appeal held in Sanson & Anr v Metcalfe Hambleton & Co. 57 CLR 88, a plaintiff who alleges professional negligence (in that case a quantity surveyor) should lead evidence by a quantity surveyor.  At page 95 Butler-Sloss LJ (as she then was) held that:

“

In my judgment, it is clear, from both lines of authority to which I have referred, that a court should be slow to find a professionally qualified man guilty of a breach of his duty of skill and care towards a client (or third party) without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of the professionally qualified man to measure up to that standard.  It is not an absolute rule as Sachs LJ indicated by his example but, unless it is an obvious case, in the absence of the relevant expert evidence the claim will not be proved.”

What I get from this decision is that, save for a straightforward case, the court will look to an expert for assistance in resolving issues which concern allegations of professional negligence in helping it arrive at a decision as to whether the professional person concerned has:

“	… exercised the ordinary skill of an ordinary competent man exercising that particular art.”

See Bolam v Friern Barnet Hospital Management Committee (1957) 1 WLR 582 at 586.

Conclusions

14.These third party pleadings concern allegations of professional negligence and, for my part, I do not believe that this matter can be resolved just on the basis of common sense.  Accordingly, I direct that expert evidence from an architect is necessary and should be admitted.  Although this will call for added expense and make the trial a little longer, I would hope that the form of the order that I am going to make will narrow down the issues between the experts.  Nevertheless, what is unavoidable, in most cases when pleas of professional negligence are made against a professional, is that expert evidence will have to be employed to assist the judge.  I would have thought that when the architects’ expert reports are ready in their final form which will be after the experts have met to try and narrow any difference between them, the Check List Review hearing will need to be restored to see how best to manage the case most effectively. 

15.Therefore, I propose to make an order in terms of the Notice of Appeal (see pages 147/1-2), with the result that the appeal must be allowed and the Master’s order in this regard will have to be set aside.

Messrs Deannie Yew & Associates, for the Plaintiff, absent

Daniel K K Chan, instructed by Messrs T S Tong & Co., for the 1^st Defendant and 1^st Third Party

Messrs Paul C K Tang & Co. for the 2^nd Defendant, absent

Timothy Haynes, instructed by Messrs JSM, for the 2^nd Third Party