So Kai Hau v. Ysk2 Engineering Co Ltd

HCPI 1077/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1077 OF 2006

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(Joined by the 2^nd Third Party)

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D E C I S I O N

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Introduction

1.The present application was brought by the Fourth Party,Wellgo Archdecor Consultancy Limited (“the Fourth Party”) under Order 38 Rule 36 of the Rules of the High Court (“RHC”) and paragraph 71 of Practice Direction 18.1.  In the Summons, the Fourth Party applies for leave to adduce expert evidence “on the subject of authorized person services” under the Buildings Ordinance on the liability in respect of Fourth Party proceedings.  The 2^ndThird Party, JMK Consulting Engineers Limited (“2^nd Third Party”) opposes the application.

Background

The Accident

2.On 20 November 1996, there was a No. 5 Alarm fire happened in Garley Building in Jordon, Kowloon (“the Building”).  Many lives were lost in that tragic fire.  Subsequent to the fire, the Buildings Department (“the BD”) ordered the then owners of the Building to carry out remedial and monitoring work on the condition of the Building (“the R&M Work”) until such a time when the Building would be demolished for redevelopment.

3.Mr David Chan (“Chan”), who was employed by the Fourth Party at the time, was appointed as the Authorized Person (“AP”) for the R&M Work of the Building in May 1997.  As part of his duties as AP, Chan had to carry out regular monthly inspection to the Building and to prepare monitoring inspection reports on the condition of the Building.  During the relevant period, Chan had, under the Fourth Party’s name, issued a total of 40 monitoring inspection reports (“the Inspection Reports”).  The first of these Inspection Reports was dated 29 May 1998 and the last one was dated 29 August 2003.  

4.In the first Inspection Report, Chan stated in paragraph 7.1 thereof that, after his inspection of the Building on 13 May 1998, “in respect of the 3^rd floor, all tenancy fixtures & furnitures (sic) together with fire damages (sic) debris were removed and carted away from the premises.”

5.The same finding had been made throughout the rest of the Inspection Reports during the aforementioned period.  In fact, in almost all the Inspection Reports, when it comes to the condition of the 3^rd floor, it almost inevitably stated that “premises free from debris” and the condition was “similar to previous inspection” or words to those effects.

6.In the final Inspection Report, which was dated 29 August 2003 (with inspection took place on 23 August 2003), Chan reported that for the 3^rd floor down to the ground floor, “(P)remises free from debris” and “(D)ebris all cleared away”.

7.Subsequently, the Building was sold to a company called Worldfaith Properties Ltd (“the New Owner”) on 11 September 2003 under an order for compulsory sale.

8.On 29 December 2003, the New Owner then entered the site to start the demolition work.  The New Owner appointed the 4^th Third Party, Mr Daniel Kwan, as the AP for the demolition work on or about 30 September 2003. The Defendant in this case, YSK2 Engineering Company Limited, was the main contractor for the demolition work.  The Plaintiff was one of the workers employed by the Defendant to carry out demolition work at the site.

9.On 28 June 2004, while the demolition work was under way on the 3^rd floor of the Building, a cylinder shot up from under a heap of building debris following the sudden release of pressurized gas.  It hit the external wall of the 16^th floor of an adjacent building and ricocheted downwards back to 3^rd floor of the Building.  Unfortunately, the Plaintiff’s left arm was amputated at the elbow region in the process (“the Accident”).   

10.Perhaps it is worth noting at this juncture that at all material time it must be within Chan’s knowledge that it was necessary for the Building to be free from debris.  This can be demonstrated by reference to the Notes of Meeting on 4 November 1997 held at the conference room of the Tsim Sha Tsui Fire Station where representatives from the Fire Services Department, Labour Department, Buildings Department, the registered structure engineers, the security company, the Incorporated Owners of the Building and the Fourth Party.  Chan was the only person representing the Fourth Party at the meeting. 

11.The following has been recorded in the Notes of Meeting:

“Mr David CHAN, AP for CAC, stated that the Ex-CAC Dept. Store had been cleared of any rubbish/ debris remaining from the disaster occurred in Nov. 1996.

The Chairman further stated that as long as there were workers working in the premise and the debris inside the building was not cleared, there always existed a potential fire risk.  As the building was not protected by any FSI, he urged the AP/IO to repair the FSI pump so that the undamaged FSI could still be used.  If so required, FSD would help filing up the FSI tank on roof.”

12.In addition, by a letter from the Fourth Party to the Incorporated Owners of the Building (“the Incorporated Owners”) dated 20 October 1999, the Fourth Party explained to the Incorporated Owners that removal of all fire debris including fixtures and fittings by respective occupiers of the premises of the Building would be eventually required prior to the intended demolition of the Building. 

13.The facts of this case must also be seen in the light of the guidelines provided in the Draft Code of Practice for Demolition of Buildings issued by the BD in February 1988 (“the Draft Code”).  The Draft Code aims to provide guidance on safe and good practices for demolition works and for compliance with the requirements of the relevant provisions of the Building (Administration) Regulations and Building (Demolition Works) Regulations relating to demolition works.  The following are some of the provisions of the Draft Code which are relevant to this case:

“1.1.1 This Code of Practice outlines good practices for planning and implementation of demolition of various building works in Hong Kong aiming at minimizing the following risks:

(A) Damage to persons and properties of the public;

(B) Endanger the health and safety of site personnel; and

(C) Damage to the neighbourhood environment.

The prime intention of this Code is to give guidelines for engineering practice and safe procedures for various demolition methods and to provide guidance on compliance with relevant requirements of Building (Administration) Regulations and Building (Demolition Works) Regulations.  Aspects related to environmental, labour health and safety are referenced to relevant regulations.

……

1.1.3 This Code covers methods commonly used in building demolition.  Though it does not include all demolition methods, it is not the intention to discourage the use of other methods which are not included in this Code.  Any newly invented demolition method not covered in this Code may be used subject to careful consideration and recommendation by experienced Authorized Person, Registered Structural Engineer and Registered Specialist Demolition Contractor, or theirs equivalent professionals or counterparts and subject to the approval of the Building Authority or other equivalent approving Authority.  Such new demolition method proposed shall be supported by scientific research and engineering experience.

1.2 Definitions

For the purpose of this code, the following definitions shall apply:

“Authorized Person” means a person whose name is on the Authorized persons’ register kept under Buildings Ordinance section 3(1):

(a) as an architect; or

(b) as an engineer; or

(c) as a surveyor;

……

“Building Survey” means an inspection on the Building and its surroundings aiming as spotting any potential problems that may arise during demolition and developing a Method Statement for Demolition;

……

“Demolition” means dismantling razing, destroying or wrecking any building or structure or any part thereof by pre-planned and controlled methods;

……

2.1 Building Appraisal and Demolition Plan

Prior to carrying out any building demolition, detailed building appraisal by means of surveys and appropriate assessments shall be required.  In general, the surveys shall include a Building Survey and a Structural Survey with photographs or videos taken for future reference.  Based on the findings of these surveys, a demolition plan shall then be prepared and submitted to the Building Department for approval. The demolition plan must also be accompanied by a report together with structural calculations assessing the stability of the building to be demolished and all affected buildings, structures, streets, land and services.

2.1.1 Building Survey

……

(B) Survey Items

The Building Survey shall cover the following:

(1) The construction materials;

(2) The existing use and, if possible, the past uses of the building prior to demolition;

(3) The presence of wastewater, hazardous materials, matters arising from toxic chemicals, flammable or explosive and radioactive materials, etc. and possible presence of materials which can contribute to air pollution and soil contamination;  [emphasis added]

……

(C)  Hazardous Materials

(1) Unless the Building Survey reviews that no obvious hazardous material is present in the building, the Authorized Person shall cause proper sampling and testing for the hazardous materials;

(2) In the case when hazardous materials are present, such hazardous materials e.g., asbestos containing materials, or petroleum, shall be removed and cleared according to the statutory requirements administered by the Environmental Protection Department, Fire Services Department, Labour Department and any other Government Departments, referred to in Appendix D;

(3) In the case when the site has previously been used to store chemicals, and other dangerous goods, soil contamination assessment shall be required at pre-demolition stage and/ or post-demolition stage;

(4) In the case when the site has previously been used to store explosives, special procedures to ensure no explosives remain on site will be required.

……

3.8.4  Fire

All flammable goods shall be removed from site unless they are necessary for the works involved.  Any remaining flammable goods shall be stored in proper storage facilities.  All furniture, timber, doors, etc. shall be removed before any welding work is performed.  Fire fighting appliances shall be provided and maintained in working conditions.

……

3.9.4  Hazardous Materials

……

Other materials such as LPG cylinders in domestic flats, toxic and corrosive chemicals for industrial undertakings, and any other hazardous materials have to be identified and properly handled and removed prior to the commencement of the demolition of the building. [emphasis added]

……

3.10.4 Debris Accumulation

In general, the debris accumulation on the floors is not allowed unless the debris accumulation is justified by engineering calculations.  Debris shall not accumulate against the hoarding or external wall.  Excessive accumulation of debris any cause overloading condition and may induce lateral loading on the walls and shall be avoided. The propping design shall include the debris loading.”

The Pleadings

14.The Fourth Party was originally joined by the Defendant as the 1^st Third Party in this case.  However, the action against it was discontinued by the Defendant on 25 July 2011.

15.Instead, the 2^nd Third Party issued a Fourth Party Notice against the Fourth Party pursuant to an Order made by Master Ng on 6 February 2012.  The Fourth Party Notice was dated 17 February 2012.

16.In the Fourth Party Notice, the following facts have been pleaded:

“6. The Fourth Party was at all material times the employer of Mr Chan Wah-wai, David (“David Chan”) who was the appointed Authorized Person for the carrying out of the Remedial & Monitoring Works of the Building (the “AP for Remedial & Monitoring Works”).

7. As the AP for Remedial & Monitoring Works, David Chan undertook the duty of carrying out regular monthly monitoring inspections to the Building and preparing monitoring inspection reports, including the final monitoring inspection report dated 29 August 2003, also known as the 40^th monitoring inspection report (the “Final Monitoring Inspection Report”). In the Final Monitoring Inspection Report, David Chan reported that the Premises were free from debris and that all debris were cleared away.

8. At all material times, David Chan well knew that it was necessary for the Premises to be free from debris (including hazardous materials) for the examination by the Registered Structural Engineer and any subsequent demolition works to be carried out in the Building.

9. By inspecting the Building together with the representatives of the Building Department and Fire Service Department since about 1997, David Chan well knew or, alternatively, should have known about the existence of the fire extinguisher cylinder within the Premises as referred to in the Amended Statement of Claim (the “Cylinder”).

Particulars of Knowledge

(1) During a joint inspection on 3^rd September 1997 of the Premises by David Chan and Mr Michael Pang, a building surveyor of the Building Department, the Cylinder was identified and photographs were taken. Mr Michael Pang also gave David Chan a set of identification floor plans (total 16 nos. from G/F to 15/F inclusive) in A-3 size with coloured marks showing various infractions. The plan of 3/F shows that there was a BTM bottle room at the 3/F.

(2) By a letter dated 16^th April 1998 jointly issued by David Chan and the 3^rd Third Party to the Buildings Department, David Chan and the 3^rd Third Party confirmed that the Building would be inspected (by professional staff from Joseph Chow & Partners Limited and/ or the Fourth Party) on a monthly or more frequent basis as required in order to ensure that the vacant building’s structural condition being sound/ safe and also no cause of imminent danger would affect the public. There was, however, no mention is the said letter of the presence of the Cylinder and the requirement for removal of the same for the public safety.

(3)   By another letter dated 13^th August 2003 to the Incorporated Owners of Garley Building (the “IOGB”), the Fourth Party informed that as evidenced by the recent monitoring inspections of the Building, considerable safety remedial works would need to be carried out.  The Fourth Party requested the IOGB to advise the status of the re-development proposal so that they could plan to avoid unnecessary cost and at the same time to ensure safety of the general public.  Yet, the Fourth Party did not advise in this letter of presence of the Cylinder and the requirement for removal of the same for the public safety.

(4)   During an inspection of the Premises by David Chan on 23^rd August 2003, David Chan found that the Cylinder was still present.  However, he did not include this finding in the Final Monitoring Inspection Report as he considered that the Cylinder should not be classified as “debris” in the Building.

10.   There was no mention of the existence or presence of the Cylinder inside the Premises in any of the monitoring inspection reports prepared by David Chan so far discovered including the 1^st monitoring inspection report dated 29^th May 1998.

11.   In the 1^st monitoring inspection report, David Chan stated in paragraph 7.1 concerning the Premises that, after his inspection of the Building on 13^th May 1998, “all tenancy fixtures & furniture together with fire damaged debris were removed and carted away from the premise”.

12.   On 20^th October 1999, David Chan issued a letter to the IOGB representing and/or advising, inter alia, that all fire debris including fixtures and fittings should eventually be required to be removed for examination of the factual condition of the structure by the RSE for preparation of the “Demolition Plans and Proposal” for approval by the Building Department as well as for the erection of temporary propping for the demolition works.

13.   The Building was handed over to the Defendant on or about 29^th December 2003 for the carrying out of the demolition works.”

17.The 2^nd Third Party’s cause of action against the Fourth Party is one solely based on the tort of negligence only.  It has been capsulated in the Fourth Party’s Notice as follows:-

“14. If, which the 2^nd Third Party does not admit, the said injury to the Plaintiff was caused by the sudden forceful propulsion and ricochet of the Cylinder in the manner as alleged by the Plaintiff in the Amended Statement of Claim:-

(a) the Plaintiff’s injury, loss and damage consequent thereon; and

(b) in consequence of the Plaintiff’s claim against the Defendant for his injury, loss and damage, the Defendant’s loss and damage (including costs in defending the Plaintiff’s claim) thereon,

were caused by the negligence on the part of David Chan as the AP for the Remedial & Monitoring Works, for which the Fourth Party is vicariously liable.

Particulars of David Chan’s Negligence for which the Fourth Party is vicariously liable

David Chan, as the AP for Remedial & Monitoring Works:-

(1) Failed to exercise due care in carrying out the aforesaid regular monthly monitoring inspections of the Building;

(2) Failed to report the presence of the Cylinder on the Premises during the aforesaid regular monthly monitoring inspections of the Building or otherwise;

(3) Failed to notify the Fire Services Department and/ or the Labour Department and/ or other relevant Government departments about the presence of the Cylinder (which are and/or contain hazardous or potential hazardous materials) on the Premises during the term of his appointment as the AP for the Remedial & Monitoring Works;

(4) Failed to make enquiries with the Building Department and/ or the Fire Services Department and/ or the Labour Department and/ or other relevant Government departments about the proper way of disposal or removal of the Cylinder;

(5) Failed to cause the Cylinder to be removed from the Premises prior to the Building being handed over to the Defendant on 29^th December 2003 for the commencement of the demolition works or prior to the termination of his engagement as the AP for the Remedial & Monitoring Works;

(6) Failed to warn or inform the owners of the Building, the Incorporated Owners of the Building, Defendant, the Plaintiff and/ or the 2^nd Third Party of the presence of the Cylinder on the Premises;

(7) Falsely represented to the owners of the Building, the Incorporated Owners of the Building, Defendant, the Plaintiff and/or the 2^nd Third Party through the aforesaid monthly monitoring inspection reports and in particular the Final Monitoring Inspection Report that the Premises were free of debris and that all debris on the Premises had been cleared away, which would be reasonably understood to mean that there was no potentially hazardous material on the Premises.”

18.Hence, the 2^nd Third Party is seeking indemnity from the Fourth Party should it be adjudged as liable to pay the Defendant in this case. 

19.In the Re-Amended Defence filed by the Fourth Party, it is not disputed that Chan was aware of the presence of the bromotrifluoro-methane (“BTM”) installation, including the BTM cylinder which subsequently exploded, inside an enclosed BTM bottle room as early as on 3 September 1997.  On that day, he carried out an inspection with a building surveyor from the BD by the name of Michael Pang: see para 19(d) of the Re-Amended Defence of the Fourth Party. 

20.There is also no dispute that the Fourth Party did not advise the Incorporated Owners or state in any of the Inspection Reports regarding the presence of the BTM installation (including the BTM cylinder) on the 3^rd floor of the Building at any material time: see para 19 (e) & (f) and 25(b) of the Re-Amended Defence of the Fourth Party.

21.Further, there is no dispute that the Fourth Party did not cause the BTM cylinder to be removed from the 3^rd floor of the Building nor did the Fourth Party give notification to or make any enquiries with the Fire Services Department, Buildings Department, Labour Department or other government departments regarding the disposal or removal of the BTM cylinder: see para 25(c) and (d) of the Re-Amended Defence of the Fourth Party.

22.It has been asserted by the Fourth Party in its Defence that the BTM cylinder was a fixed fire services installation as part of the 3^rd floor premises of the Building, instead of a separate detachable and portable cylinder.  Further, it has been asserted that the BTM installation (including the BTM cylinder) was not debris: see para 19(d) of the Re-Amended Defence of the Fourth Party.

23.However, it has been admitted that the Fourth Party knew that the Building was going to be demolished for redevelopment because it has been stated in the Defence of the Fourth Party that the Incorporated Owners’ “were willing to carry out only such essential work to ensure the structure stability of the Building which was sealed off with no access save with permission.”: see para 16(a) of the Re-Amended Defence of the Fourth Party.      

24.In short, the Fourth Party asserts that it owed no such duty to make any advice on the presence of or to cause the removal of the BTM cylinder.  Further, it does not consider the BTM cylinder to be debris, tenancy fixtures or furniture.

The Fourth Party’s Summons

25.In the Fourth Party’s summons dated 28 September 2012, the following are the principal directions sought:

“1. Expert evidence will be required on the subject of authorized person services under the Buildings Ordinance (the “Subject”) on liability in respect of Fourth Party proceedings;

2. Leave is granted for one(1) expert to be called by each of the 2^nd Third Party and the Fourth Party on the Subject.  The proposed expert of the Fourth Party is Professor Barnabas Chung or Mr Tsang Cheung Chuen, and one of the areas of expertise of the Fourth Party’s expert is on common professional practice of an authorized person under the Buildings Ordinance in Hong Kong;

3. The experts in the Subject are to answer the following specific questions (adopting the same abbreviations in the Fourth Party’s Amended Defence):

(a)  Was an AP employed to deal with the said Orders and to provide monitoring inspection and reporting services of the Building required to meet the requirements provided in (i) the Building (Demolition Works) Regulations, Cap.123C and (ii) the Draft Code of Practice for Demolition of Buildings 1988 under the common or normal professional practice of an AP in Hong Kong? 

(b)  Was an AP for demolition of the Building required to meet the requirements as provided in (i) the Building (Demolition Works) Regulations, Cap.123C and (ii) the Draft Code of Practice for Demolition of Buildings 1988 under the common or normal professional practice of an AP in Hong Kong?

(c)  Was the 2^nd Third Party required to report the presence of the BTM installation (including the BTM cylinder) in the Engineer’s Appraisal Report or otherwise for the purpose of the structural appraisal of the Building for demolition purposes?

(d)  Whether it was reasonable for the 2^nd Third Party to rely on any of the monitoring reports including the 40^th Report for the structural appraisal of the Building for demolition purposes?

(e)  Was an AP employed to deal with the said Orders and to provide monitoring inspection and reporting services of the Building required to report in any of the monitoring reports including the 40^th Report the presence of the BTM installation (including the BTM cylinder) on 3/F of the Building under the normal or reasonable standard of a qualified AP in Hong Kong?

(f)  Was an AP for demolition of the Building required to report to the BD the presence of the BTM installation (including the BTM cylinder) on 3/F of the Building prior to the commencement of the demolition work under the normal or reasonable standard of a qualified AP in Hong Kong?

(g)  Was an AP employed to deal with the said Orders and to provide monitoring inspection and reporting services of the Building required to remove or cause the removal of the BTM installation (including the BTM cylinder) on 3/F of the Building under the normal or reasonable standard of a qualified AP in Hong Kong?

(h)  Was an AP for demolition of the Building required to remove or cause to remove the BTM installation (including the BTM cylinder) on 3/F of the Building prior to the commencement of the demolition work under the normal or reasonable standard of a qualified AP in Hong Kong?

(i)   Was the warning given by Mr David Chan of the Fourth Party as pleaded in paragraph 17(h) of the Amended Defence reasonable and sufficient under the normal or reasonable standard of a qualified AP in Hong Kong?”

The Relevant Legal Principles

26.The legal principles on whether a party is allowed to adduce expert evidence at trial in a particular case are well established and not in dispute between the parties.  The basic principles can be found in Wong Hoi Fung v American International Assurance Co. (Bermuda) Limited and another [2002] 3 HKLRD 507 at paras 11 & 12; Kam Hing Trading (HK) Ltd v The People’s Insurance Company of China (HK) Ltd [2009] 4 HKC 531 at paras 2 & 3.

27.Mr CY Li, SC, who represents the Fourth Party, has succinctly summarized the basic legal principles in his Skeleton Submissions.  I respectfully agree with them and would produce his summary here:

“(a) The admissibility of expert evidence in civil proceedings depends on (inter alia) whether the subject of the evidence is a relevant matter in the proceedings and whether the subject upon which the person proposes to give evidence is one upon which the tribunal requires the assistance of an expert. (Hong Kong Civil Procedure 2013, Vol 2, para J 1/58/2).

(b) It is for the party seeking to call expert evidence to satisfy the court that expert evidence is available which would have a bearing on the issues which the court has to decide and would be helpful to the court in coming to a conclusion on those issues. (Phipson on Evidence, 17^th Ed., para 33-36)

(c) Expert evidence is admissible where the court accepts that there exists a recognized expertise governed by recognized standards and rules of conduct capable of influencing the court’s decision on any of the issues which has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issues in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence. (Phipson on Evidence, 17^th Ed., para 33-36 citing Barings plc v Coppers & Lybrand (No.2) [2001] PNLR 22 at para 45).

(d) The court, either under Order 38 or under its inherent jurisdiction can determine the admissibility of the proposed expert evidence either at trial or at an earlier stage (Ko Chi Keung v Lee Ping Yan [2001) 1 HKLRD 829).

(e) The matter is ultimately one of discretion of the court. Where the court cannot form a clear view on the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at the trial (Ko Chi Keung at 833D-E; Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507 at 511J-512A).

(f)   At trial, it is open for the judge to disallow expert evidence which either is not relevant for any reason, or which he regards as excessive and disproportionate in all the circumstances even though permission for the evidence had been given (Phipson on Evidence, 17^th Ed., para 33-51).” 

Discussion

The Fourth Party’s case: why expert evidence should be allowed

28.In essence, the Fourth Party submits that the main issue in the Fourth Party proceedings is the “exact scope” of duty of Chan acting as AP in the R&M Work.  As the “exact scope” was not defined anywhere, whether under the Fourth Party or Chan’s terms of engagement or under the Building (Demolition Works) Regulations or the Draft Code, the Fourth Party submits that expert evidence will be necessary in this case.

29.The Fourth Party further submits that in the context of professional liability such as an AP, evidence of “common practice” is highly relevant in determining whether there has been a breach of duty: see Clerk & Lindsell on Torts, 20^th Ed., paras 8-165 & 8-166.

30.It says that the common or normal professional practice of an AP in Hong Kong is a subject which the Court would require the assistance of an expert. The Fourth Party says that the questions stated in the Summons are to address the issue of whether the work fell within the common scope of duty of an AP in the position of the Fourth Party or Chan, or whether they were duties of the AP for the demolition.

The 2^nd Third Party’s case: why expert evidence should not be allowed

31.The 2^nd Third Party’s primary submission is that the “expert evidence” the Fourth Party is seeking to adduce is not relevant to the issues in the present case as “common professional practice” of an AP in Hong Kong has no bearing on the issues in the face of “such clear and succinct instructions” prescribed in the Draft Code.  The 2^nd Third Party further submits that the Draft Code itself is patently clear and more than sufficient to assist the Court in coming to the conclusion on how dangerous materials such as a BTM cylinder found in a demolition site should be handled.  It says that it does not require evidence from an expert to tell the Court what the common professional practice of an authorized person under the Buildings Ordinance is.

32.Further, the 2^nd Third Party submits that the provisions of the Building (Demolition Works) Regulations and the Buildings Ordinance have already adequately defined what the duties of an AP would include, in particular in a demolition work situation, and hence no expert evidence is required to advise the Court what the scope of duties would include.

33.In addition, the 2^nd Third Party submits that as any ordinary and reasonable man, it would have been patently clear to Chan that a cylinder of compressed air would be extremely dangerous in a demolition site if not properly handled and left unattended for more than 6 years, and that serious harm and damage would be inflicted on people occupying (including workers engaged in the demolition work) and properties on the site should there been an explosion.  It says that the facts of the case clearly indicate that Chan had failed to exercise reasonable skills and care in handling and reporting the debris that was left on the 3^rd floor of the Building.

34.Finally, the 2^nd Third Party submits that the issue to which the Fourth Party intends to adduce expert evidence is not one that requires special knowledge.  It says that this is not a case where expert opinion is required to explain special terms or terminology where ordinary person would be incapable to understand without the assistance of experts.  It submits that it is just common sense that a cylinder of compressed air having been left unattended for more than 6 years in a demolition site is extremely dangerous.

Analysis

35.I am of the view that this is not a case where expert evidence is required or necessary for the Court to rule on the issue of whether Chan as AP was negligent or not in the Accident.

36.There are a number of reasons that assist me to reach such conclusion.

37.First and foremost, I am of the opinion that the questions raised by the Fourth Party in the Summons which it says the Court ought to be assisted by the experts to answer are no more than questions of common sense.  They are factual issues that will have to be resolved by the Court should the fourth party proceedings proceed to trial.  In my view, there is no reason why the Court cannot answer those questions or resolve the factual issues by itself without the assistance of experts.

38.For example, the Fourth Party submits that the first 2 questions, i.e. questions (a) & (b) could only be answered by the Court with the assistance of experts in this case. 

39.I do not agree.  To my mind, these are matters of fact or law that ought to be answered by a judge after hearing evidence from witnesses and submissions from the parties.  They are not matters that an expert or experts can purportedly answer on behalf of the Court or able to provide assistance to the Court in answering those questions.

40.For questions (c) to (i), I am not even certain whether they are questions which need to be answered by the Court in the first place before able to decide on the central issue between the 2^nd Third Party and the Fourth Party, namely, whether Chan was negligent when discharging his duties as AP for the R&M Works prior to the demolition of the Building.  Even assuming that they are questions that need to be resolved by the Court, of which I have great reservation, there is no reason why in my view the Court cannot resolve those matters by itself without the assistant of an expert.

41.Second, it is a well recognized fact that the term “authorized person” defined under the Buildings Ordinance has a wide meaning and does not confine to a single trade or profession within the building or demolition industry.  Under section 2 of the Buildings Ordinance, the term “authorized person” has been defined to mean “a person whose name is on the authorized persons’ register kept under section 3(1)  -- (a) as an architect; (b) as an engineer; or (c) as a surveyor”. Under section 3(1) of the Ordinance, it states that the Building Authority shall keep a register of “all persons who are qualified to perform the duties and functions of an unauthorized person” in accordance with the Ordinance. Besides the above register for those 3 different professions, a register for structural engineers, a register for geotechnical engineers and a register for inspectors were subsequently added to the original register kept under section 3(1). Hence, it is not difficult to see that when one is talking about an “authorized person”, one could be talking about different kind of professions who may be involved at different stages in the building or demolition work of a particular project.

42.The lack of clear demarcation of different trades or professions in the definition of an AP is amply illustrated in this case.  In the Fourth Party’s summons, it specifically mentioned the names of 2 proposed experts and states that one of the areas of expertise of the Fourth Party’s expert(s) is on the “common professional practice of an authorized person under the Buildings Ordinance in Hong Kong”.  When asked by this Court of what kind of expertise does the proposed experts possess that may assist the Court in arriving its decision on one or more of the issues to be resolved, the Fourth Party could only say the one of the experts with the title of a “professor” whom it intends to instruct as an expert in fact is a retired senior civil servant who used to work for the Buildings Department and is now a part-time visiting professor at a local university.  With respect, his views on the issues set out in the summons are as good as any AP who is familiar with R&M Works in Hong Kong.  Further, it has not been shown by the Fourth Party why the Court cannot answer those questions itself without the assistance from such so-called “experts”.  I therefore am not satisfied that any views to be expressed by the experts would even qualify as “expert evidence” in this case to meet the first stage of the two-stage test as set out in Wong Hoi Fung v, American International Assurance Co (Bermuda) Ltd & Another, supra, at p.512 B-C.  

43.Third, the Fourth Party places much emphasis on what is the “common professional practice” of an AP under the Buildings Ordinance in Hong Kong and it says that it is this “common professional practice” which would require expert evidence to assist the Court to understand. 

44.I would respectfully agree with Mr Yeung, who represents the 2^nd Third Party, that whatever is the ‘common professional practice” of an AP (if there is one as such at all), it has no bearing on the dispute between the 2^nd Third Party and the Fourth Party in this case.  This is particularly so when the duties of the AP have already been clearly defined in the Draft Code and the Regulations.

45.In this regard, I find the judgment of Ward L.J in Michael Hyde & Associates Ltd v J D Williams & Co Ltd [2001] PNLR 233, at 247 particularly helpful when the English Court of Appeal held that there were three situations where the Bolam test did not apply:

“26. In the case before us the judge expressly declined to discount Mr Byrom’s opinion as logically flawed although he went some way in his supplementary judgment to showing how he could have done so. He did not find, as in Nye Saunders, that the evidence he received amounted to no more than an expression of personal opinion as to what the witness would or would not have done, thereby falling short of being evidence of a responsible body of architects, or a recognized practice within the profession. He may well have been able to discount the evidence on that basis for I find little to suggest that there were two recognized but contrary views of an accepted practice governing the decision in questions. As I read the evidence, the experts were doing no more than putting themselves forward as reasonably competent architects and then saying what they would have done in circumstances in which Mr Warrington found himself. In my judgment this case could well have been decided and disposed of by adoption of Oliver J’s views in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp (a firm) [1979] CH.384, 402:

“Clearly, if there is some practice in a profession, some accepted standard of conduct which is laid down by a professional institute of sanctioned by common usage, evidence of that can and ought to be received.  But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendant’s is of little assistance to the court…”

Had the judge followed that course it would have been very difficult to criticise him for it.

27.    As I understand his judgment, the judge followed the third route.  He found in paragraph 21 that the exercise of judgment involved in deciding whether further investigation of the risk of discoloration was required or not did not of itself require any special architectural skills.  He was entitled to come to that conclusion.  Contrary to Mr Grime’s submission, the judge did not have to get under the skin of a different profession to assess what warning lights shone from the British Gas disclaimer.  He was entitled to judge that for himself and he made no error of law in doing so.  I reject this first ground of appeal accordingly. [emphasis added]

46.Fourth, I also agree with Mr Yeung that the issue to which the Fourth Party intends to adduce evidence is not one that requires special knowledge.  I agree with him when he says that this is not a case where expert evidence is required to explain special terms or terminology where an ordinary person would be incapable to understand without the assistance of experts.  Judges are asked to resolve complicated factual issues on a daily basis.  I do not see any special features or technicality in this case which a judge who is experienced in personal injury cases cannot answer himself without the assistance of an expert.      

47.Last but not the least, I think it is worth noting that there has been no application by any party in this action, including the Third Party Actions, for adducing expert evidence to comment on what is the “common professional practice” of an AP and the specific questions raised by the Fourth party in this case.  Of course, the fact that it was not raised by any other party does not mean that the Fourth Party is wrong and the other parties are right in doing so.  However, it is most telling when the Fourth Party was first joined by the Defendant as the 1^st Third Party in this case (eventhough the action was discontinued against it by the Defendant subsequently), no similar application had ever been made by the Fourth Party even up to the stage when the exchange of witness statements had already taken place.

Order

48.In the aforestated premises, I am not convinced that the Fourth Party has satisfied that expert evidence as proposed in the Summons is either relevant or necessary in this case.  Thus, I shall dismiss the Fourth Party’s summons herein with costs.

49.I shall make an order nisi that the Fourth Party to pay the 2^nd Third Party’s costs of this application to be taxed if not agreed, with Certificate for Counsel.  Such order on costs will become absolute unless the party takes out an application to vary the order within 14 days.

50.Lastly, I would like to thank Counsel for their very able submissions and assistance rendered to the Court.

Mr M T Yeung, instructed by Messrs. Liu, Chan & Lam, for the 2^nd Third Party

Mr C Y Li, SC instructed by Messrs. Fred Kan & Co, for the Fourth Party