Re Tsang Yiu Sang
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ARCHITECTS DISCIPLINARY BOARD APPEAL NO.1 OF 1972. ________________________
________________________ Coram: Huggins J. ________________________ JUDGMENT ________________________ 1. This is an appeal against the decision of a Disciplinary Board appointed under s.5 of the Buildings Ordinance whereby it was ordered that the Appellant be reprimanded and that he pay the sum of $4,500 towards the costs of the enquiry by the Board. The complaint before the Board was in the form of a formal charge and was in these terms:
This complaint arose out of the discovery that some of the concrete used in the construction of the two buildings on the site was of a quality inferior to that specified in the contract and approved by the Building Authority. As a result of the defect more than half the floors in the buildings had to be demolished and rebuilt. 2. The whole case before the Board turned upon the ascertainment of the true responsibility of the Appellant in relation to the building works, because the Appellant says he was not responsible to do what the Board found him to have failed to do. He was not the “appointed authorised architect” for the project: notice on the appropriate form was given in the name of the owner under reg.29 of the Building (Administration) Regulations that a Mr. E.Y. Wu had been appointed as the authorised architect and it is common ground that Mr. Wu’s appointment was in force at all material times. It seems to be accepted that the Notice was valid although it begins “I, PANG Yuen-yee” and is signed by “CHAN Shu-pun”, Mr. Chan being stated in the Notice to be a duly authorised agent of the owner. 3. The evidence as to the relationships between the Appellant and the owner and between the Appellant and Mr. Wu was far from clear. The owner herself appears to have played no direct part in the appointment of the Appellant: she was represented throughout by Mr. Chan. Mr. Chan said that he asked Mr. Wu to prepare plans and that he subsequently “found him to be too busy to do the job”: after consultation with, and with the approval of, Mr. Wu he asked the Appellant to design the structural part of the project. He said:
His attitude was indicated by his answer that “because all the structural parts were designed by [the Appellant] so naturally he should inspect the reinforcing”. However, he would not say whether he equally expected the Appellant to supervise the concreting and in reply to questions in cross-examination said that he asked the Appellant to assist Mr. Wu and was quite happy to let Mr. Wu and the Appellant “sort out between them the supervision of concreting”. On 22nd November 1969 Mr. Wu signed a Certificate of Authorised Architect certifying that structural details and calculations had “been prepared under the supervision or direction of the undersigned Mr. CHANG Yiu-sang” and that they complied in all respects with the relevant statutory provisions. This Certificate was counter-signed by the Appellant himself. 4. The evidence of the Appellant on the matter was contradictory. There is no doubt he was employed to design the structural details and he says that nothing was said by Mr. Chan about supervision. He sent the plans he had prepared to Mr. Wu and he said “I did not see Mr. Wu or discuss with him at all”. However, he admitted that after the work was started “Mr. Chan told me to assist Mr. Wu to check the reinforcement” and he (the Appellant) “promised him as a free service”. He went on to say: “in the meantime Mr. Wu asked me to keep an eye on the concrete” and that he did so, but that, again, “is a free service”. What he did appears to have been to make a visual inspection of the work and to “point out to foreman the portions of concrete for the execution of test-cubes”. In fact the contractor failed to supply test-cube reports after the work had progressed above third floor level and the Appellant wrote several letters to the contractor pointing out that the necessary reports had not been received. Copies of all these letters were sent to Mr. Wu (though with no indication that they were sent not merely to inform Mr. Wu that such letters had been written but with the intention that he should take action thereon) and copies of some of them were also sent to the owner or her agent. 5. On this evidence the Board found as a fact “that [the owner’s agent] did entrust, and that the [Appellant] did undertake, the work of supervision of the structural part of the building site in question”. They accepted the Appellant’s evidence that he undertook this work gratuitously but held, on the authority of Townsend Ltd. v. Cinema News([1]), “that a professional man although acting gratuitously without consideration still owes a duty to exercise his skill as may be reasonably expected to possess”. They acquitted the Appellant of “misconduct” but found him guilty of negligence in that he failed to give the supervision which he had undertaken to provide. 6. First it is contended that the findings that the supervision of the structural work was entrusted to the Appellant and entrusted to him by the owner were not justified. I would have preferred to put the emphasis on the fact that the Appellant undertook the work, albeit on a gratuitous basis, rather than upon its being entrusted to him. However, the Board were bound by the “Particulars of Offence”. I think there was ample evidence to support their findings. Perhaps the most conclusive piece of evidence is para.3 of the Appellant’s letter of 20th March 1971 in which he said that his firm was “verbally invited by the owner to make .... periodical checkings of the concrete works on behalf of the architect”. In his evidence he admitted that Mr. Wu asked him “to keep an eye on the concrete” and it is apparent from a schedule of inspections in fact made at the site that the Appellant and his assistant on numerous occasions did inspect the concreting. The assistant said that the Appellant told him he was “doing this supervision work on behalf of the owner”. The owner’s agent said that he asked the Appellant to assist Mr. Wu in supervising the concreting. Add to all this the fact that the Appellant knew that Mr. Wu required assistance because he was too busy to do the work himself and it is not surprising that the Board found as they did. 7. I agree with the Board that if a professional man purports to act in a professional capacity he must therein display such knowledge and skill as is reasonably to be expected from a professional man. It was held in Bagot v. Stevens Scanlan & Co., Ltd.([2]) that the duty owed by an architect to the owner to exercise reasonable skill and care arose out of contract alone and that no “status relationship” existed between them, as between master and servant. I accept that, but in my view it matters not whether the Appellant undertook the work on behalf of the building owner or (as the Appellant testified) on behalf of a professional colleague. In Townsend Ltd. v. Cinema News (see Hudson’s Building and Engineering Contracts 10th ed. pp.65-66) an architect was held liable in damages to a builder for failure to fulfil a gratuitous promise to secure by-law approval for work in which they were both engaged. The material fact was that he was acting throughout as the architect, i.e. in his professional capacity as an architect. This case also shows that it does not matter whether a professional man is to be paid for his services. In my view it is sufficient that the Appellant was purporting to exercise a professional skill in the interest of another and failed to display the skill which a qualified architect might reasonably be expected to possess. Section 7(1) of the Ordinance provides in part:
The “Particulars of Offence” alleged negligence in failing to supervise and did not allege who had entrusted the supervision to the Appellant. It was not necessary for the Board to find that it was the owner who so entrusted it. Counsel submitted that the examination of the witnesses would have proceeded differently if it had been alleged that the supervision of the work had been entrusted to the Appellant by Mr. Wu instead of by the owner, but I find nothing which inhibits me from saying that, even if there had been no evidence of an entrustment by the owner, the decision of the Board could be upheld on the basis of an entrusting by Mr. Wu. 8. There was some question on behalf of the Appellant of a duty to the Building Authority. I agree that the Appellant owed no such duty. Regulation 37 imposes a statutory duty on the appointed authorised architect, but the whole purpose of the appointment of an architect under reg. 29 is to ensure that there is one person to whom the Building Authority may turn in relation to the particular works in respect of which he is appointed. That does not mean that the appointed authorised architect may not delegate part of the supervision to another but merely that he remains responsible and that he delegates at his peril. The fact that a person to whom he delegates does not thereby undertake a statutory duty towards the Building Authority does not necessarily mean that he can act negligently or recklessly without running the risk of censure. Counsel says that “the charge was framed on the lines of reg.37”. Assuming that to be something more than mere coincidence I think it is entirely irrelevant. 9. The Board further took the view that the Appellant owed a duty of care to persons who might happen to be lawfully on, or near to, the building site and they referred to Clay v. A.J. Crump & Sons Ltd.([3]). Although in the present case no damage in fact resulted to such third parties, the Board held that there was a breach of that duty of care. The contention on behalf of the Appellant is, as I understand it, first that there was no such duty of care and secondly that, even if there were, the evidence showed the building not to be in imminent danger of collapse so that there was no breach of such duty. In my view no useful purpose is served by considering this aspect of the case further. It assumes that “negligence” in s.7(1) has the same meaning as it has in the law of tort. I do not think that is correct and I think the Board expressed the meaning of “negligence” too narrowly when they limited it to “negligence either founded in tort or contract”. The negligence contemplated by this section is, as we have seen, a failure to exercise such profession skill as an architect may be reasonably expected to possess. Whether or not such failure amounts to tortious negligence depends in the first place upon whether damage has resulted: the duty in the law of tort is to take care to avoid damage. In the present case there was no tort against third parties because no third parties sustained the damage. However, if damage had resulted I would have inclined to agree with the Board that the Appellant would have been liable. A case could arise where an architect was guilty of negligence within the meaning of s.7 although there was no danger of damage to third parties resulting therefrom, and to introduce questions of tortious liability is to cloud the real issue. In other words an authorised architect may be guilty of negligence and deserving of censure regardless of his liability in damages. 10. Next it was contended “that the Board misdirected itself on the powers of the Appellant vis-à-vis the building contractor as the Appellant had no power to tell the contractor how his work should be done”. This contention is based on the proposition that the Appellant had no power to order the contractor to stop work in the absence of test-cube reports on the concrete put into the building. Without so deciding I am prepared to assume that any order to stop work would have had to come from the appointed authorised architect, but the Board’s view was that the general lack of liaison between the Appellant and the appointed authorised architect was itself evidence of negligence. I agree, although it was not the negligence alleged in the charge. It is doubtful whether anything short of a direct proposal by the Appellant to the appointed authorised architect that he should stop the work pending receipt of test-cube reports would have sufficed to discharge the onus which was on the Appellant in the circumstances of this case. In any event I cannot say that the Board had no evidence upon which it could find that the Appellant was negligent in failing to give proper supervision. Whether or not Mr. Wu was also negligent in not appreciating that the erection of the building was being allowed to go too far without test-cube reports it is not necessary for me to consider: even if he was negligent, that would not excuse the Appellant. Clayton v. Woodman & Son (Builders) Ltd.([4]) and (on appeal)([5]) and A.M.F. International Ltd. v. Magnet Bowling Ltd.([6]) deal with an entirely different issue and I do not find them of any assistance. What I think must be emphasised is that the finding of negligence is in no way dependent upon the fact that the concrete used was defective so that a large part of the building had to be pulled down: it would have been negligent on the part of the Appellant to allow the work to proceed without test-cube reports even though the concrete had been in accordance with the specification. Accepting that “[the architect’s] function is (inter alia) to make sure that in the end, when the work has been completed, the owner will have a building properly constructed in accordance with the contract and any supplementary instructions which the architect may give” (per Pearson L.J. at 1962 2 All E.R. 39) one can visualise a case where the building was properly constructed in all respects although the architect had not visited the site once during the course of its erection. The satisfactory result would not be by virtue of the proper discharge by the architect of his function but in spite of his negligence. If he had discharged his function he would have been in a position to certify that the work of the contractors had been executed according to contract. The Board were fully justified in finding that proper supervision of the work would require the architect to ensure that test-cubes were taken and not merely to point out to the contractor where such test-cubes were to be taken. It is not without significance that in his letter of 22nd February 1971 to the contractors the Appellant indicated that if they did not take immediate action to supply test-cube reports “cease work order for concreting will be issued from the project architect”. The evidence showed that this was the normal practice and the members of the Board were entitled to have regard to their own experience in such matters in coming to the conclusion that if the contractor failed to make test-cubes the Appellant could and should have prepared them himself as a necessary part of the proper supervision of the work. 11. For these reasons I think the Board were clearly right in their conclusion that the Appellant was guilty of negligence. They declined to find “misconduct” and I see no reason to differ from that decision. It is argued by Mr. Haldane that although an appeal under s.7(4) lies only at the instance of the architect the court has power to increase the penalty imposed upon such an appeal and he submits that the penalty of reprimand and payment of costs was manifestly too lenient in the present case having regard to the extent of the defects which lack of supervision allowed to exist. I must confess to some anxiety at the suggestion that in a proceeding of this nature an architect should not be able to challenge the correctness of the finding of guilt without placing himself in peril of having the penalty increased. However, I do not find it necessary to decide whether that is the law for I am not persuaded that I ought to interfere with the penalty imposed. I do not for one moment deny that it was a very lenient penalty but the Board thought that on the evidence before them (which may not have been the same as that before the Board which acquitted Mr. Wu of negligence) Mr. Wu should bear some of the responsibility and they were obviously reluctant to impose a heavier penalty on the Appellant when the appointed authorised architect was not to be punished at all. That is not a factor to which I would have attached great weight myself but it was certainly proper that it should be taken into account. I am naturally reluctant to interfere with the discretion of a professional body in such a matter, because they are the best persons for weighing the seriousness of the conduct proved, and I have, after considering the penalties imposed in comparable cases, come to the conclusion that even if I have jurisdiction to increase the penalty it would not be right that I should do so. 12. The appeal is dismissed with costs. If the parties wish it I will consider directing payment of a gross sum instead of taxed costs. 21st August 1972. 13. By consent costs assessed at $1,500. 21st August 1972. Swaine (Yung Yu Yuen & Co.) for Appellant. Haldane C.C. for Respondent. |