Liao Kuo Chun v. Win Captial (HK) Ltd and Others
Read the full judgment text of HCPI 1175/2002 on BabelCite. This High Court CFI judgment was delivered on 16 July 2010.
1. This case concerns an all too common but entirely avoidable occurrence in Hong Kong. On 25 March 2000, a portion of an unauthorised canopy affixed to certain shop premises on the 1 st Floor of No. 241A, Mei King Mansion, Phase II, in To Kwa Wan (“the Building”) collapsed, causing injury to seven pedestrians who, at the time of the collapse, were on the pavement of To Kwa Wan Road just below the canopy. The Building is a 15-storey building located at 241-247B To Kwa Wan Road and 78-84 Lok Sh
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HCPI 1175-1179/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1175 OF 2002 ----------------------------- BETWEEN
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----------------------------- AND PERSONAL INJURIES ACTION NO. 1178 OF 2002 ----------------------------- BETWEEN
----------------------------- AND PERSONAL INJURIES ACTION NO. 1179 OF 2002 ----------------------------- BETWEEN
----------------------------- Before : Hon Bharwaney J in Court Datesof Hearing : 24, 25, 27 and 28 May 2010 Date of Judgment : 16 July 2010 ----------------------- J U D G M E N T ----------------------- 1.This case concerns an all too common but entirely avoidable occurrence in Hong Kong. On 25 March 2000, a portion of an unauthorised canopy affixed to certain shop premises on the 1st Floor of No. 241A, Mei King Mansion, Phase II, in To Kwa Wan (“the Building”) collapsed, causing injury to seven pedestrians who, at the time of the collapse, were on the pavement of To Kwa Wan Road just below the canopy. The Building is a 15-storey building located at 241-247B To Kwa Wan Road and 78-84 Lok Shan Road in Kowloon. It was over 35 years old at the time of the occurrence. Its Occupation Permit was issued in 1964. A side lane separates it from the adjacent I Feng Building at No. 231 To Kwa Wan Road. Shop No. 241A was at the corner of To Kwa Wan Road and the side lane. The Building contained many unauthorised structures. The ground floor of the shop at No. 241A had an unauthorised extension into the side lane between the Building and the adjacent I Feng Building. The non-structural wall of the ground floor shop facing the side lane had been demolished in order to enlarge the area of the shop to include the area of the unauthorised extension into the side lane. The shop premises included the 1st Floor unit immediately above it that could be accessed from an unauthorised internal staircase. This 1st Floor unit is identified on the assignment plan as Flat No. 2 on the 1st Floor of the Building. A number of unauthorised building works existed at the 1st Floor level. The 1st Floor shop front included a tiled feature that extended across the full width of the side lane on the lot and over the pavement. The lane width along the boundary was just short of 12 feet (3,645 mm). The cantilevered (i.e. supported on one side only) tiled extension over the side lane collapsed together with a portion of the unauthorised canopy on 25 March 2000. 2.The whole side lane was covered at the 1st Floor level. The cover on the exterior of Flat No. 2 is shown on a plan prepared by the Buildings Department Legal Section and attached to its prosecution report in respect of the canopy collapse that occurred on 25 March 2000 (at p. 192). That plan is attached to this Judgment as Appendix 1. The tiled feature of the shop front that extended across the side lane is shown on the plan and marked with the letter “B”. The whole side lane was covered. The cover at the portion marked with the letter “C” on Appendix 1 consisted of a steel deck of steel plate and channels. The steel channel sections acted as column supports along the fence wall on the lot boundary. The soffit (underside) was fully concealed by a false ceiling with lighting. Part of the side lane structure, identified by the letter “C”, cantilevered over the pavement. Between the structures marked as “B” and “C” was a canopy (marked as “D” on Appendix 1) that was concealed at the underside with a false ceiling. This portion of the canopy consisted of light steel angle sections connected to the canopy marked as “C” probably by welding. It was likely to have been connected to the tiled front feature B as well. 3.These unauthorised structures can also be seen on the side elevation plan attached to the same prosecution report (at p. 196) and which is also attached to this Judgment as Appendix 2. The portion of the canopy marked as “D” can be seen on the side elevation plan to be inclining downwards. Another unauthorised structure called the Hut extended along the full length of Flat No. 2 on the 1st Floor. It is marked as “A” on the plans appended to this Judgment. It was accessed through a door opening in the sidewall of the Building and used as a storage space. It measured about 1.5m x 8m. 4.Another plan attached to the prosecution report (p. 198), and which is also attached to this Judgment as Appendix 3, shows, marked in yellow colour, the parts of the unauthorised structures that collapsed on 25 March 2000. The shop front tiled structure, marked as “B”, which extended over the side lane, collapsed and the whole steel frame and corrugated roofing of the canopy structure, marked as “D”, also collapsed. Part of the screeding on top of the canopy structure “D” did not collapse and this part is marked in orange on the plan. The collapsed portion covered an area of about 3.5m x 1.6m. 5.The portion of the canopy marked as “C” on which the Hut had rested did not collapse. The Hut, identified by the letter “A” in the Appendices, had been completely removed before the time of the collapse and only its steel frame remained on site above the portion of the canopy marked as C. 6.These unauthorised structures had been present from as long ago as 1978. An anonymous complainant, who described himself as a resident of the Building, wrote a letter of complaint to the Buildings Ordinance Enforcement Unit. There was a receipt chop of the Buildings Ordinance Office PWD, dated 29 August 1978, that was affixed on the letter that he or she had written. The writer complained of the concrete flat roof constructed on the 1st Floor between the Building and I Feng Building and urged the authorities to take action. The complainant also sent photographs that showed the extended shop front tiled feature in 1978. This tiled feature has remained much the same in appearance over the years, as can be seen from other photographs of the shop front taken on later occasions, in 1989, and nearer to the time of the collapse. The parties to these proceedings 7.Five of the seven injured pedestrians brought these actions, which were ordered to be heard together, against Win Capital (HK) Ltd as the 1st defendant, Madam Ho Ching Mui as the 2nd defendant, Mr Wong Tak Sing as the 3rd defendant, and the Incorporated Owners of Mei King Mansion Phase II as the 4th defendant. 8.The 4th defendant was incorporated in 1978 and, by virtue of section 16 of the Building Management Ordinance and its predecessor, the rights, powers, privileges and duties of the owners in relation to the common parts of the Building were to be exercised and performed by the 4th defendant, and the liabilities of the owners, in relation to the common parts of the Building, were enforceable against the 4th defendant to the exclusion of the owners. 9.Mr Yung Leung Sam and Madam Tin Kwok Yin purchased the Ground Floor shop and Flat No. 2 on the 1st Floor on 21 May 1991 for the price of $4,490,000 and received an assignment of the properties on 5 September 1991. By Clause 36 of the Sale and Purchase Agreement, they agreed to purchase the property subject to the illegal structures of the property, and further agreed that if any notice (in connection with the illegal structures) shall be served before the date of completion, the costs of repairs shall be borne by the purchasers solely. On 26 June 1993, they assigned the property to the 1st defendant for the same consideration of $4,490,000. The Assignment bears the signatures of Mr Yung Leung Sam and Madam Tin Kwok Yin, as vendors of the property, and as purchasers of the property, in that they signed in their personal capacity as vendors as well as in their capacity as directors of the 1st defendant purchaser. 10.The 2nd defendant rented the Ground Floor and 1st Floor properties from the 1st defendant under a Tenancy Agreement dated 20 June 1997 and remained the tenant of the properties up to the date of the collapse on 25 March 2000. The 2nd defendant carried on the business of a fashion shop by the name of Yat Sun Trading on the Ground and 1st Floor premises using the unauthorised extension into the side lane as well as the unauthorised Hut for her business. The Hut was used for storage purposes with its only access being from the 1st Floor premises. 11.The 3rd defendant had been engaged by the 1st defendant’s agent to demolish the unauthorised Hut some time prior to the collapse of the canopy on 25 March 2000. The proceedings and contribution proceedings 12.The five actions were commenced on 20 December 2002. In January 2003, default judgment was entered against the 1st defendant, and in June 2003, default judgment was entered against the 3rd defendant, in all the five actions. After the landmark judgment by the Court of Final Appeal in Leung Tsang Hung & Another v Incorporated Owners of Kwok Wing House [2007] 4 HKLRD 654, handed down on 26 October 2007, which established liability against the Incorporated Owners in that case under the law of public nuisance in respect of a canopy collapse, the 4th defendant very sensibly consented to judgment in all the five actions, and these were entered in June 2008. In August 2008, the five plaintiffs discontinued their claims against the 2nd defendant in all actions. 13.The five plaintiffs had also brought separate proceedings in HCPI 297 of 2003 against Po Fat Construction Co. Ltd (“Po Fat”), as the 1st defendant, Lau Hon Chi, as the 2nd defendant, and the Secretary for Justice on behalf of the Buildings Department, as the 3rd defendant. By an order by consent, the proceedings against the Secretary for Justice were stayed on 19 December 2006, and the plaintiffs discontinued the proceedings against Lau Hon Chi, the 2nd defendant, on 13 February 2007, and against Po Fat, the 1st defendant, on 13 September 2008. Po Fat was the contractor engaged by the 4th defendant to carry out renovation work on the Building, and Lau Hon Chi was the authorised person appointed by the 4th defendant to carry out investigation work, as required by an order issued by the Buildings Department on 25 November 1998 under section 26A of the Buildings Ordinance. 14.Thereafter, the plaintiffs proceeded to an assessment of their damages against the 1st, 3rd and 4th defendants. The 1st and 3rd defendants did not participate in the proceedings for the assessment of damages and, between March and June 2009, consent orders for payment of judgment sums, inclusive of interest, were made against the 4th defendant in the five actions in the amounts as set out in the Table below. 15.Prior to this time, the 1st defendant had paid various amounts by way of interim damages to the five plaintiffs in order to obtain a discharge of Charging Orders the five plaintiffs had registered against its properties. The 4th defendant paid the balance sums due shortly after the consent orders were made. The Table below sets out the judgment sums payable by the 4th defendant under the consent orders in question, the amounts the 1st defendant had earlier paid by way of interim payment of damages and the balance amounts paid by the 4th defendant. The total amounts, inclusive of interest, paid to the five plaintiffs by the 1st and 4th defendants were $1,700,962.98 and $1,562,429 respectively. The 1st defendant has paid more than the 4th defendant.
16.By the said consent orders, the 4th defendant had been ordered to pay the costs incurred by the five plaintiffs against all four defendants. The costs incurred against the 1st and 3rd defendants would have been minimal, as default judgment had been entered against them very early on. The contribution proceedings 17.Although contribution notices had been served by the 1st and 4th defendants against all other defendants, by the time this matter reached me, the 1st and 4th defendants had abandoned their contribution claims against the 2nd and 3rd defendants in all five Actions. At a pre-trial review of the contribution proceedings between the 1st and 4th defendants, which was attended by counsel for the 1st and 4th defendants, Fung J gave certain directions in relation to those proceedings including leave to amend the respective contribution notices of the 2 remaining parties. Some time thereafter, solicitors acting for the 1st defendant ceased to act and the trial commenced before me with Mr Lee Siu Ho appearing on behalf of the 4th defendant and the 1st defendant not appearing. 18.I am required, in these proceedings, to determine the amount of contribution that is recoverable by the 4th defendant from the 1st defendant, and by the 1st defendant from the 4th defendant, as is just and equitable having regard to the extent of their respective responsibility for the damage in question, pursuant to section 4(1) of the Civil Liability (Contribution) Ordinance, Cap. 377. Events prior to the collapse on 25 March 2000 19.On 25 November 1998, the Buildings Department had served an order on the 4th defendant, under section 26A of the Buildings Ordinance, requiring the 4th defendant to appoint and authorise a person to carry out investigation works on the common areas and exterior of the Building and to submit proposals for remedial works to be carried out in connection with dilapidation/defects found in the investigation. The 4th defendant then appointed an authorised person, Mr Lau Hon Chi, to carry out the investigations and to make the necessary report. On 16 August 1999, Po Fat submitted a tender to perform renovation works on the Building for the sum of $6.58 million. At a meeting of the Incorporated Owners held on 9 September 1999, it was resolved that Po Fat be appointed to carry out renovation works and, on 12 September 1999, a formal renovation contract was entered into by the 4th defendant and Po Fat whereby the 4th defendant agreed to pay about $6.76 million for such work. Po Fat then proceeded to arrange for the construction of bamboo scaffolding around the Building, and this work was completed some time in November 1999. 20.In the meantime, Mr Yip Ki Chun, who was then the chairman of the 4th defendant, wrote to the Director of Urban Services by letter dated 14 October 1999 complaining of illegal structures and extensions in the Building that obstructed the remedial work which had to be carried out to repair the Building. He complained that these illegal structures caused a nuisance to the public and also endangered lives. The complaint was referred to the Buildings Department. Pursuant thereto, officers of the Buildings Department carried out a survey on the Building between 5 and 8 November 1999. A marked-up plan was produced as a result of the survey on which the unauthorised Hut was identified and shown to have a dimension of about 1.7m x 7m. The plan also showed the unauthorised opening in the floor slab of Flat No. 2 on the 1st Floor which enabled a staircase to be constructed to connect it to the Ground Floor. A number of photographs taken at that survey were identified on this plan. The 1st photograph taken showed the shop front and the cantilevered tiled extension of the shop front onto the side lane which was described on the photograph as “concrete slab” and as “solid structure attached to external wall of Flat 2, 1/F”. Scaffolding that had been erected around the Building by that time is also shown on this photograph, including a bamboo pole that appeared to act as a diagonal brace of the scaffold and which appeared to rest on top of the unauthorised canopy at location “D” behind the shop front extension. The maker of the prosecution report referred to this photograph and made the observation that “scaffoldings appeared to be erected directly on the UBWs”. UBW is an abbreviation for Unauthorised Building Works. 21.The other photographs taken showed the exterior and interior of the unauthorised Hut. The latter photographs showed that a substantial amount of goods, presumably clothing, in large plastic bags were stored inside the unauthorised Hut. 22.After the inspection, an order was issued by the Buildings Department under section 26A of the Buildings Ordinance requiring the 4th defendant to appoint an authorised person to investigate the stability of the authorised canopy of the Building which was facing Lok Shan Road and to submit proposals for remedial works if the canopy was found to be structurally inadequate. However, no order was issued in respect of the unauthorised canopy above the side lane between the Building and I Feng Building. 23.Before that, on 29 November 1999, an advisory letter had been sent by the Buildings Department to the owner/occupant of the Ground Floor and 1st Floor shop premises for the removal of building works which had been erected on an “approved canopy” at 241 To Kwa Wan Road. The reference to the building works was a reference to the unauthorised Hut. The reference to the “approved canopy” in this letter was clearly a mistake. The canopy of the Building facing Lok Shan Road was an approved canopy. This particular canopy over the side lane was an unauthorised construction. The 2nd defendant, who was the tenant and occupant of the shop premises on the Ground and 1st Floor, handed the letter to Madam Yung Shuk Fong, who was the aunt of Mr Yung Leung Sam and who acted as the agent of the 1st defendant at all relevant times. On receipt of the advisory letter, Madam Yung contacted the Buildings Department for clarification of what had to be done and she was advised that only the unauthorised Hut and the internal staircase had to be demolished. She was not told to demolish the canopy at the 1st Floor level. Madam Yung then engaged the 3rd defendant, who had previously performed renovation work for her in the past, to demolish the unauthorised Hut. The 3rd defendant engaged a visitor from the Mainland, who did not have permission from the Immigration Department to be employed in employment in Hong Kong, to assist him in the demolition work. The scaffolding erected by Po Fat’s sub-contractor 24.At the time, scaffolding had been erected on the exterior of the Building to enable Po Fat to carry out renovation works on the common areas and the exterior of the Building. All non-structural work had been completed by Po Fat by March 2000 and they were waiting for permission from the Buildings Department to start the structural work. 25.There are conflicting versions in the statements given by the 3rd defendant and in the witness statement of Mr Chong Chung Yan served in HCPI 297 of 2003. It is clear that Madam Yung had paid the sum of $3,500 to Po Fat on 23 March 2000 for scaffolding work to be carried out. The conflict turns on the nature of those scaffolding works. The invoice issued by Po Fat to the 1st defendant described the subject matter of the work as “replenish the bamboo scaffolding above Shop 241A To Kwa Wan Road”. The details of the work were provided in the body of the invoice as being “material costs for replenishment of bamboo scaffolding for the removed unauthorised building works above Shop 241A, To Kwa Wan Road, Phase II Mei King Mansion”. The receipt from Po Fat of the same date acknowledged receipt of the sum of HK$3,500 being payment of “replenishing the bamboo scaffolding above Shop 241A To Kwa Wan Road”. 26.In her police statement made on 25 March 2000, Madam Yung said that she had inquired from Po Fat whether the scaffolding would be affected if she demolished the unauthorised Hut and was told that HK$3,500 had to be paid for the alteration of the scaffolding. In the later statement she made to the Buildings Department on 1 March 2001, Madam Yung said that the 3rd defendant had told her that the scaffolding erected by Po Fat might not stand if he removed the unauthorised Hut and he asked her to seek advice from Po Fat on the matter, which she did, and was told that they could have the bamboo scaffolding restructured at the price of $3,500 so that the unauthorised Hut could be removed. 27.In his statement to the Buildings Department dated 28 September 2000, the 3rd defendant said that some of the horizontal bamboo poles of the scaffolding around the Building were inserted on the roof of the unauthorised Hut and had to be removed before he could demolish the Hut. He told Madam Yung about this and she requested the contractor to restructure the bamboo scaffolding. The contractor agreed to do so for a fee and he installed triangular-shaped steel brackets above the roof of the unauthorised Hut to bear the weight of the horizontal bamboo poles. In a subsequent statement to the Buildings Department made on 1 March 2001, the 3rd defendant stated that the canopy had collapsed on 25 March 2000 and the steel brackets had been installed on or about 23 March 2000. Two bamboo scaffolding workers had arrived at about 11:30 a.m. on 23 March 2000 to install the steel brackets. They had tied up the scaffolding to these metal brackets. He later commented to Madam Yung that it was profitable for the contractor to charge HK$3,500 to install a few metal brackets. 28.In the same statement, the 3rd defendant stated that he had noticed one diagonal bamboo resting on the edge of the collapsed canopy, but he did not pay attention to whether or not there was any space between the foot of the diagonal bamboo and the top of the canopy. 29.A different version is given in the statements of Mr Siu Kwok Kwong and Mr Chong Chung Yan of Po Fat. Mr Siu was the main supervisor of the construction works carried out by Po Fat and the main supervisor of the maintenance works at the Building. In his statement to the Police made on 25 March 2000, he said that, according to the scaffolding instruction of his company, if they found that there was any unit with an illegal structure or an illegal canopy at the outer wall of the building, they would not put up scaffolding outside the outer wall where the illegal structure was located but would by-pass the illegal structure. He referred to the canopy that had collapsed which had been located outside Flat No. 2 on the 1st Floor of the Building and he said that Po Fat did not erect scaffolding outside that unit when he put up the scaffolding at the outer wall of the Building. He remembered that at about 8:30 p.m. on 21 March 2000, he had explained to the landlady of the unit in question that if she demolished the unauthorised canopy, Po Fat would put up the scaffolding at the outer wall of her unit for a fee of HK$3,500. She agreed to pay the fee. He had also reminded her that she should engage professional persons for the demolition work. 30.Mr Chong is a qualified safety inspector and was employed by Po Fat as Senior Project Coordinator since 2000. In his witness statement dated 27 February 2007, he said that Po Fat had successfully bid on the tender for the maintenance contract of the Building and that the work included the repair and painting of the external and internal walls of the Building, renewing sewage channels and fresh water channels, and the repair and renewal of other common facilities. However, the contract works did not include unauthorised structures and Po Fat was not responsible for their removal. Po Fat’s scaffolding sub-contractor had been instructed not to build any scaffolding on the unauthorised building works but to build around them. According to the detailed specifications of the contract, all scaffolding on flat roofs had to be supported with truss-out metal brackets and be 300mm higher than the flat roofs so that damage and collapse of flat roofs caused by their inability to sustain the weight of the scaffolding could be prevented. Mr Chong said that, at the meeting of the Incorporated Owners in early 2000, Madam Yung inquired from him about the cost of removing unauthorised building works. He quoted her the sum of about HK$30,000 and emphasised to her the importance of employing qualified contractors to do the work and getting proper third party liability and labour insurance cover for the work. He also told Madam Yung that, after the removal of the unauthorised Hut, Po Fat would restore the scaffolding at that location by adding more bamboos to fill the space originally occupied by the unauthorised Hut and to cover the corresponding external wall, so that maintenance work could be carried out, and that Po Fat would charge her HK$3,500 for the restoration of the scaffolding. Madam Yung had paid the sum of HK$3,500 on behalf of the owners on 23 March 2000 but, as the unauthorised Hut had not been completely removed, Po Fat had not yet executed the scaffolding restoration work on 25 March 2000 when the accident occurred. Mr Chong also stated that the scaffolding at that location did not need the roof of the unauthorised Hut for support as they were supported by truss-out metal brackets located about 300mm above the unauthorised Hut. The bamboo poles extending from the metal brackets were near the roof of the unauthorised Hut but were not resting on the roof, and the scaffolding in place did not obstruct the removal work of the Hut. At the time of the collapse, the workers employed by Madam Yung had already removed the walls and the interior part of the Hut leaving only the metal frames of the unauthorised Hut in place. Mr Chong concluded his witness statement by stating that Po Fat knew that the canopy and the unauthorised Hut above it were unauthorised structures and that Po Fat did not need to support its scaffolding on the canopy or on the unauthorised Hut. The bamboos were supported by the metal brackets and by supporting bamboos of the scaffolding that were standing on the pedestrian pavement and on the ground of the side lane outside the unauthorised canopy. 31.The contract entered into between Po Fat and the 4th defendant contained the following provisions. It was stipulated in Clause 20, under Part III of the contract, that if the removal of cages or other additional buildings structures causes the canopy to have gaps, the owners or residents concerned were responsible to fill them up and to purchase the relevant insurance. Clause B(1) under Part VI of the detailed specifications provided that all scaffolding on flat roofs shall be supported with truss-out metal brackets and be 300mm higher than the flat roofs. 32.For the reasons set out below, I accept the evidence of Mr Siu and Mr Chong that the four metal brackets had been erected above the roof of the unauthorised Hut in the course of the construction of the scaffolding around the Building some time prior to the time of the demolition of the unauthorised Hut and that Madam Yung had paid the sum of $3,500 to Po Fat in order for Po Fat to extend the scaffolding to cover the external wall at the location of the unauthorised Hut after its demolition and that such work had not yet been carried out on 25 March 2000 when the unauthorised canopy collapsed. The demolition of the unauthorised Hut 33.On or about 10 March 2000, the 2nd defendant moved her goods away from the Hut in order to prepare for its demolition. The demolition works commenced on or about 20 March 2000. The door of the Hut was sealed and the 3rd defendant and his co-worker proceeded to demolish the Hut by using electric cutters and steel hammers. The debris from the demolition was put into nylon bags weighing about 22 kg each. In his statement made to the Police under caution on 25 March 2000, the 3rd defendant said that he had placed 2 nylon bags of debris on the canopy which had subsequently collapsed whilst other bags were placed inside and outside the unauthorised Hut on the part of the canopy which did not collapse. There were about 80 bags of debris accumulated there. In his subsequent statement to the Buildings Department on 28 September 2000, the 3rd defendant confirmed that 2 to 3 bags of debris were found lying on the ground after the collapse and that these had been placed by him on the canopy which had collapsed. He said that that part of the canopy was inclined and he had not expected it to be able to support heavy weight and that was why he did not place heavy loads on that part of the canopy. 34.The 3rd defendant and his co-worker had completed the demolition of the unauthorised Hut on 24 March 2000. On the morning of 25 March 2000, prior to the collapse, they were filling nylon bags with debris from the removal work. At the time of the collapse, they were working at the other end of the canopy which was further into the side lane, at or about that part of the canopy shown on Appendix 3 and marked with the letter “C”. The cause of the collapse 35.The collapsed portion of the canopy measuring about 3.5m x 1.6m was made of corrugated sheets with cement screeding on top and supported by a metal frame. The building materials which fell on the pavement below consisted mainly of broken corrugated sheets, cement screeding, metal frames, shop front decorations, and 2 to 3 nylon bags containing broken concrete and debris. By way of emergency remedial measures, the Buildings Department immediately called in its own contractor to carry out clearing and shoring work at the scene. 36.Mr Warren Wong Ka Chan, who was then a Senior Structural Engineer with the Buildings Department, prepared a report dated 9 October 2000 setting out his expert opinion on the causes of the collapse. He supplemented that report by a further statement dated 6 February 2001. He also gave evidence before me. Mr Wong is a Chartered Engineer and I accepted him as an expert witness. 37.Mr Wong identified 4 possible causes of the collapse, namely, the manner in which the demolition work had been carried out; overloading by demolition debris on the canopy; defective materials and construction of the canopy; and external loads. 38.The Buildings Department’s advisory letter dated 29 November 1999 to the owner/occupier of the shop premises in question had not specified that the removal work should be supervised by an authorised person, nor had it specified the qualification of the person carrying out the required work. Under the 2000 Guidelines for the removal of typical unauthorised building works and general maintenance of external walls issued by the Buildings Department, an owner would only be asked, under a removal order to demolish a structure not forming a substantial or significant part of the building, to appoint a contractor to ensure that the safety measures set out in the guidelines were provided before and during the removal work. In this case no removal order was made, only an advisory letter had been issued. Under the 2005 Guidelines, an owner was required in the case of the removal of a substantial unauthorised building work or those attached to a critical building element, such as cantilevered structures, to appoint a registered general building contractor or registered specialist contractor in the demolition category to carry out the works and an authorised person or a registered structural engineer to advise on and ensure that the necessary safety measures are provided. In all other cases, an owner was advised, but not required, for his own safety and that of the public, to appoint a registered general building contractor or registered specialist contractor to carry out the works. The unauthorised Hut sat on a critical building element, namely, the unauthorised canopy which was a cantilevered structure. Whether or not the unauthorised Hut could be regarded as a substantial, it is likely that if the 2005 Guidelines had applied to this case the 1st defendant would have been advised to appoint a registered general building contractor for its demolition. However, Madam Yung did not do so, but engaged the 3rd defendant who then worked with an unqualified visitor from the Mainland. 39.Nevertheless, I am satisfied that the work carried out by the 3rd defendant and his co-worker did not cause or contribute to the collapse of the canopy. The part of the canopy on which the unauthorised Hut had been constructed remained intact notwithstanding that some 80 bags of debris weighing about 22 kg each remained on that part of the canopy. However, I accept the opinion of Mr Wong that, whilst the vibration caused by falling debris from the height of a single storey structure, such as the unauthorised Hut in question, should not have a detrimental effect on the stability of a canopy in sound condition, given the state of deterioration of the canopy in question and the uncertainty of the adequacy of its support, vibration caused by the falling debris could have had a catalytic effect on the collapse. 40.I note the opinion of Mr Wong that the 3 bags of debris, weighing about 66 kgs in total, placed on the canopy before the collapse would not have exceeded the loads that could be imposed on that canopy. In his report dated 9 October 2000, Mr Wong said that overloading by the bags of debris might not be a major cause of the collapse. However, in his evidence before me, he referred to various photographs showing the state of the canopy after the collapse, from which he concluded that the state of the dilapidation was severe. He also said that the weight of the 3 bags of debris could be a cause of the collapse. The more dilapidated the state of the canopy, the less weight would be needed to cause a collapse. However, he had not carried out any scientific tests to measure the weight needed to cause a collapse of that part of the canopy. 41.I have carefully looked at the photographs taken after the collapse, especially the photographs on pp. 222A and 223A showing severe corrosion on the underside of the canopy. I accept the evidence of Mr Wong and find that the weight of the 3 bags of debris, placed on the part of the canopy which collapsed, contributed to its collapse. 42.I also accept the evidence of Mr Wong that heavy loading from storage of goods and clothing in the unauthorised Hut had a long-term adverse effect on the stability of the canopy. I find that the unauthorised Hut had been used for storage purposes for many years and for the storage of clothing from the time that the Ground Floor and 1st Floor shop premises had been rented out to the 2nd defendant in mid 1997. 43.However, there is no doubt in my mind, and I readily accept the opinion of Mr Wong, that the major cause of the collapse was the failure of the steel frames of the canopy which were in a severely corroded state. The structural member sizes of the canopy were relatively small and they were highly corroded to such a state that a brittle mode failure occurred. I also find, from the severe state of the corrosion, that no maintenance work had been carried out on the canopy. 44.Finally, I deal with the issue of external loads. In his first report, Mr Wong was of the opinion that the scaffolding for the renovation of the Building had been erected on the unauthorised canopy and that the weight of the scaffolding might have had a detrimental effect on the stability of the canopy. He referred to an incident which occurred in another location in Yuen Long on 19 April 2000, soon after the collapse of this canopy, when scaffolding erected on an unauthorised canopy caused that canopy to collapse. 45.The supplemental statement of Mr Wong dated 6 February 2001 was based on the statements made by the 3rd defendant. On the assumption that those statements were correct, Mr Wong had formed the opinion that during the process of transferring the load of the canopy, from the top of the unauthorised Hut to the steel brackets, and before equilibrium could be achieved, load from the scaffolding would have been transferred to the edge of the unauthorised canopy via the diagonal bracing, thus overloading the edge of the canopy. In his evidence before me, Mr Wong readily conceded that, if Mr Chong’s evidence was accepted by me and if I found that the whole scaffolding was free from any contact with the unauthorised Hut and the unauthorised canopy, then the scaffolding would have had no causal contribution to the collapse. 46.As indicated above, I accept the evidence of Mr Chong and I find that the scaffolding had already been erected with its vertical bamboo poles affixed to the steel brackets above the unauthorised Hut and that the work of extending the scaffolding to cover the external wall where the unauthorised Hut stood had not yet commenced when the collapse occurred on 25 March 2000. I find support for Mr Chong’s version from the terms of the contract which required the scaffolding to be supported by metal brackets and to be 300mm higher than the flat roofs of the building and the further clause in the contract that the owners/residents of the building were responsible for the provision of additional scaffolding at the areas formerly occupied by their illegal structures. The use of the word “replenishment” on the invoice and the receipt issued by Po Fat was also consistent with the agreement to “restore/add” scaffolds at the outer wall at the location of the unauthorised Hut after its demolition had been completed. 47.The statement given by Mr Siu of Po Fat to the Police on the date of the collapse that $3,500 was sought from Madam Yung to “put up the scaffolding at the outer wall of the Hut for maintenance” when she had demolished the illegal structure, is consistent with Mr Chong’s version, as is the use of the expression by Madam Yung, in her own statement to the Police made on that date, that “Po Fat said that HK$3,500 had to be paid for the addition of the scaffolding”. The 3rd defendant made no mention of the alteration of scaffolding or of any scaffolding resting on the Hut in the statement he gave on the day of the collapse; he only did so some 5 months later on 29 September 2000. 48.However, I do not accept the evidence of Mr Chong, insofar as he said or suggested that the diagonal bamboo pole, which one can see on the photographs at p. 207A, taken prior to the collapse in November 1999, did not rest on the edge of the portion of the unauthorised canopy which collapsed. In this connection, I accept the evidence of Mr Wong who said that normally diagonal bracing would have firm footing, although he could not say whether or not this diagonal bracing was footed on the edge of the portion of the canopy which had collapsed. He stated in §3.2 of his supplemental statement that record photographs taken after the collapse indicated that the scaffolding at the canopy location was left “hanging” in mid-air, and that the diagonal bracing bamboo most probably rested on the edge beam of the canopy. In his evidence before me, he said that, by looking at what remained after the collapse, it appeared to him that the diagonal bracing was touching the edge of the canopy. He was of the view that the foot of the diagonal bracing bamboo probably rested on the edge beam of the unauthorised canopy, from what he could see from the photographic evidence and because the diagonal bracing and vertical members came to a point at that location. I accept the evidence of Mr Wong and find that the diagonal bracing bamboo rested on the edge of the portion of the unauthorised canopy which collapsed and that the weight of the scaffolding on the canopy at that point had a detrimental effect on the stability of the canopy, and also contributed to its collapse. 49.In summary, I find that the major cause of the collapse of the canopy was its severely corroded state and the failure to maintain the canopy. The collapse was also contributed to by the heavy loading from storage of goods, including clothing, in the Hut for many years which had a long-term adverse effect on the stability of the canopy; by the recent loading of the canopy by the 3 bags of debris placed on it by the 3rd defendant; by the vibration caused by the falling debris during the demolition of the unauthorised Hut which had a catalytic effect; and by the loading of the edge of the canopy, and the detrimental effect on its stability, which resulted from the diagonal bracing bamboo of the scaffold resting on the edge of the canopy. Apportionment under section 4(1) of the Civil Liability (Contribution) Ordinance, Cap.377 50.It is well established that the exercise of assessing the amount of contribution recoverable from any person, in such amount as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question, requires the court to assess blameworthiness as well as causative potency. Non-causative factors that also involve a breach of duty are relevant considerations. Greater causal impact by one party may be balanced against greater blameworthiness by the other. As Hobhouse LJ, as he then was, said in Downs v Chappell [1997] 1 WLR 426 at 445 :
51.The judge must apportion the damages between the parties who are actually before the court and he should not apportion damages between them and some other person or persons, not a party to the proceedings, whose fault may have contributed to the plaintiff’s damage (Mayfield v Llewellyn [1961] 1 WLR 119). In this case, I am concerned to apportion liability between the 1st and 4th defendants only. However, in apportioning liability between them, I attribute to each of them the acts and defaults of their respective contractors and sub-contractors. In my judgment, a person’s responsibility for the damage in question includes responsibility for the acts and defaults of that person’s contractors and sub-contractors, even though such acts and defaults of independent contractors may not create tortious personal or vicarious liability on the part of that person. 52.Legal liability has to be distinguished from moral blameworthiness. It may be that a party that is liable to the plaintiff by reason of multiple breaches of duty has greater responsibility than a party that has breached only one duty to the plaintiff, but that is not necessarily so as is demonstrated by the present case. It is right that the 1st defendant’s breaches of obligations to the plaintiffs in this case arose from the law of public nuisance and from the provision in the Deed of Mutual Covenant which imposed the obligation on the 1st defendant not to cause a nuisance. The 1st defendant also had a positive obligation to maintain the canopy, by virtue of the reservation of right of access, contained in its tenancy agreement with the 2nd defendant, to enter the unauthorised Hut, and by virtue of the encroachment and use of the unauthorised Hut which was presumed to have been made on behalf of the landlord. In addition, the 1st defendant was under a duty of care in negligence to the injured plaintiffs and in breach of that duty. These multiple torts are to be contrasted with the single fault of the 4th defendant, namely, its liability in public nuisance for failing to remove the hazard posed by the canopy. 53.In the exercise of apportionment, blameworthiness is not to be confused with legal liability. In my judgment, the Incorporated Owners are substantially more to blame for this occurrence than the owners of the shop premises on the Ground and the 1st Floor. The Incorporated Owners have been in existence since 1978, at or about the time that the unauthorised canopy was constructed. The severely dilapidated condition of the unauthorised canopy was plain and obvious, as can be seen from the photographs of the canopy taken prior to the time of the collapse. The Incorporated Owners must have known that the canopy had not been maintained for many years, if at all. The Incorporated Owners had far greater capacity to repair the unauthorised canopy and/or to remove it and/or otherwise to prevent it from endangering passing pedestrians than the 1st defendant, or any other individual owner of other premises in the Building. They enjoyed greater resources and powers under the Deed of Mutual Covenant and under the Building Management Ordinance to take steps to render the building safe than any individual flat owner. Indeed, prior to the collapse, the Incorporated Owners had paid or had agreed to pay an amount in excess of $6.5 million to Po Fat to repair the Building. 54.Even if it can be said that the major cause of the collapse, namely, the dilapidated condition of the canopy and the failure to maintain it, was equally contributed to by the failure of the 1st defendant to maintain the canopy as it was by the failure of the 4th defendant to do so, so far as relative blameworthiness is concerned, I have no difficulty in concluding that the 4th defendant was much more culpable. 55.The causative potency of the acts for which the 1st defendant is responsible through the acts and defaults of the 2nd and 3rd defendants, namely, long-term heavy loading of the canopy from the storage of clothing in the unauthorised Hut, vibrations caused by falling debris in the course of demolition of the unauthorised Hut, and overloading of the canopy by the 3 bags of debris, are more or less balanced out by the causative potency of the acts of Po Fat and its scaffolding sub-contractor, for which the 4th defendant is responsible, namely, overloading of the edge of the canopy by the diagonal bracing bamboo pole which rested on it. 56.Doing the best I can to apportion responsibility in the circumstances of this case, I find that the appropriate proportion to reflect the respective responsibilities of the 1st and 4th defendants is that 35% of the plaintiffs’ damages should be borne by the 1st defendant and 65% by the 4th defendant. But for the adverse effects of the long-term storage of goods in the Hut on the stability of the canopy, I would have apportioned even greater responsibility on the part of the 4th defendant. 57.Credit has to be given to the Incorporated Owners and to its Chairman, Mr Yip, for their recent endeavours to cause the owners of the Building to remove unauthorised structures. It may not be fair to refer to those endeavours as being “too little, too late”. On the other hand, the fact that they finally woke up to their responsibilities does not mean that more blame is, therefore, to be laid at the door of the 1st defendant. 58.At the material time of this occurrence, the 4th defendant had insurance cover up to the sum of $2 million. In March 2008, the insurers activated a provision in the insurance policy and paid up the entire sum of $2 million to the 4th defendant, leaving it to defend these proceedings and to deal with them as they wished. Is the existence or scope of any insurance cover material to the issue of apportionment? I agree with the judgment of David Steel J in West London Pipeline v Total UK [2008] Lloyd’s Insurance & Reinsurance Law Reports 688 at 690 that there is nothing exceptional in there being some form of insurance cover and that being insured has no connection whatsoever with any alleged causative conduct. The purpose of purchasing insurance cover is to save one’s pocket from the consequences of potential legal liability. Buying insurance cover does not, in any way, prevent such legal liability from arising. On the contrary, it may be arguable that the insured person may adopt a could-not-care-less attitude because he or she feels adequately protected by insurance. If that is indeed the case, the conduct of the insured tortfeasor would be a relevant consideration to have regard to in the exercise of apportioning responsibility, but not the fact that he or she has purchased insurance cover. Contribution towards the costs the 4thdefendant has been ordered to pay to the 5 plaintiffs 59.Default judgment was entered against the 1st defendant in January 2003, shortly after the actions were commenced on 20 December 2002. Thereafter, the 4th defendant fought the issue of its own liability until June 2008 when interlocutory judgments for damages to be assessed were entered by consent against the 4th defendant in all 5 actions. Thereafter, the cases proceeded to an assessment of damages until March to June 2009 when consent orders for the payment of judgment sums were made against the 4th defendant. The 4th defendant was also ordered to pay the costs of the five plaintiffs incurred against all four defendants. The 4th defendant claims contribution towards those costs. 60.In the exercise of my discretion to award costs in the actions, I make an order that the 1st defendant contributes to the extent of 35% of the costs incurred by the plaintiffs in the five actions on the issue of quantum. I do not make an order that the 1st defendant contributes towards the costs of the plaintiffs incurred against the 4th defendant on the issue of liability. Those costs were incurred because of the conscious decision taken by the 4th defendant to defend the proceedings on the issue of its own liability. 61.As the 1st and 4th defendants are both parties in the same 5 actions brought by the plaintiffs, I can deal with the issue of costs under the court’s discretion to award costs in the five actions. I need not deal with the question raised in the cases of S. Jainsbury Plc v Broadway [1999] PNLR 286, BICC Ltd v Cumbrian Industries Ltd [2001] EWCA Civ 1621 and Nationwide Building Society v DHL [2009] EWHC 254 (Comm), namely, the question of whether or not the Civil Liability (Contribution) Act 1978 (on which our Ordinance is based) enables the party claiming contribution to recover a contribution towards a payment made in respect of the injured party’s costs. That question will arise in a case where the injured party has sued one tortfeasor to judgment and that the tortfeasor has brought separate (not third party) proceedings against another tortfeasor for contribution. The question may also arise where the 1st tortfeasor has settled with the injured party and agreed to pay a settlement sum inclusive of costs. Hearing Bundles 62.I cannot conclude this Judgment without making some observations about the appalling state of the Hearing Bundles. Relevant documents such as coloured plans and important letters issued by the Buildings Department were missing from the Bundles. Photographs and proper colour reproductions of photographs were also missing from the Bundles which contained useless black and white (more black than white) photocopies of photographs. It was quite impossible to make any sense of them. Photographic evidence is often the best available evidence in cases of this nature, and it is incumbent on the solicitors preparing the case for trial to ensure that proper colour reproductions of the photographs make their way into the Hearing Bundles. The excuse offered by the solicitors in this case, namely, that the Buildings Department refused to release those important documents or to provide original prints, is simply unacceptable. In cases such as the present, the solicitors can make application under O. 24 r. 7A for specific discovery of relevant documents from a non-party. The practice of the Department of Justice is to agree an order by consent and to provide the documents upon the payment of reasonable charges. In this case, these important documents and photographs were only forthcoming when I granted leave for the issue of a subpoena duces tecum against the relevant officer of the Buildings Department to produce them. To prevent a recurrence of this undesirable situation, which caused a delay of the trial and resulted in wasted costs, I propose to include, in the usual directions given on the grant of leave to set an action down for trial, a further direction that the plaintiff’s solicitors shall provide the Listing Clerk with a letter stating that all directions have been compiled with, and that the Hearing Bundles contain legible documents, including legible sketches and proper colour reproductions of photographs and coloured sketches. As this case has demonstrated, the requirements of §§162 to 181 of the Practice direction PD. 18.1 are not being adhered to and have to be reinforced with additional directions. Costs of these contribution proceedings 63.These costs must be reserved to such time as the taxation of the plaintiffs’ costs has been completed. Only then would it be possible to ascertain whether the 1st defendant has to make any contribution to the 4th defendant over and above the sum of about $1,700,000 it had paid to the plaintiffs to discharge the charging orders registered against its properties in the Building. I grant liberty to the 4th defendant to apply to me, when the taxation of the plaintiffs’ costs has been completed, for an order that the costs of the contribution proceedings be paid by the 1st defendant to the 4th defendant. Whether or not the 4th defendant is entitled to such an order remains to be seen.
1st Defendant in person, absent Mr Lee Siu Ho, instructed by Messrs S. K. Lam, Alfred Chan & Co., for the 4th Defendant
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Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCPI 1175/2002