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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D E C I S I O N

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I. BACKGROUND

1.  In 2010, this case came before me as Personal Injury Master in relation to an application concerning third party proceedings.[1]  It is convenient to set out the background of this case by adopting the following passage and abbreviations from my decision:[2]

“1. This case is a tragic sequel to the Garley Building (Building) fire disaster of 1996 (Fire). After the Fire, the Building was closed and left unoccupied until it was purchased by Worldfaith Properties Ltd (Owner) in 2000. The Owner proceeded to demolish the Building with a view to erect a new one. The defendant, a specialist demolition contractor, took over the site on 29 December 2003. The conventional top-down demolition method was adopted for the demolition works (Demolition Works), and by June 2004 such works had progressed down to the third floor (Premises).

2. The plaintiff was the site foreman employed by the defendant. His main duties were to oversee the collection/removal of scrap metal and miscellaneous waste at the demolition site. On 28 June 2004, a bromotrifluro-methane cylinder (Cylinder) shot up from under a heap of building debris following sudden release of pressurised gas. It hit the external wall of the 15^th floor of an adjacent building and ricocheted downwards into the Premises, and in the process amputated the plaintiff’s left arm at the elbow region (Accident). The plaintiff claims the Accident was caused by negligence or breach of statutory duties or both on the part of the defendant, its servant and agents in failing to discover, properly handle and/or remove the Cylinder prior to commencement of the Demolition Works.”

2.  The present appeal is brought by the former 1^st third party (now the fourth party, “Wellgo”) against the order by Master Li dated 6 May 2013 dismissing their application for leave to adduce expert evidence on liability in respect of the fourth party proceedings with costs (“Order”), which application was resisted by the 2^nd third party (“JMK”). Before I turn to the appeal against the Order, I set out the parties’ contentions drawing largely from their pleadings and referring to their witness statements[3] only as necessary/appropriate.

(a) Presence of the Cylinder

3.  According to the plaintiff and Wellgo, inspection/investigation by the Fire Services Department (“FSD”) on 23 November 1996 revealed the presence of a BTM fire-fighting system (“BTM System”) inside a computer or BTM gas bottle room at the Premises (“BTM Room”), which was installed by the then occupier.  It was common ground between the plaintiff and the defendant (“YSK2”) that the Cylinder was most probably a component of the BTM System, which installation had not been submitted to the FSD for fire services certification.  The entry registration record of the Building revealed repeated inspections by the FSD officers in 2002-2003.  Mr Li SC, counsel for Wellgo, submitted the above showed that the FSD was or would have been aware of the BTM System at the Premises. But Mr Yeung, counsel for JMK, submitted there was no obvious evidence that the FSD was aware of the BTM System apart from the aforesaid record of inspection on 23 November 1997.[4]  In my view, such dispute of fact is necessarily a matter for trial.

4.  JMK and Wellgo claimed that by a set of identification floor plans, the Buildings Department (“BD”) identified a number of infarctions in the Building affecting fire safety.[5]  The BTM System was not classified as an infarction although the third floor plan showed the presence of the BTM Room. Such plan was given to one of the former owners of the Building (“Former Owners”) by the BD on 4 February 1997, which (according to Wellgo) meant the BD was aware of presence of the BTM System.

5.  Wellgo claimed that as far as they were aware, neither the FSD nor BD ever requested the Incorporated Owners of the Building (“IO”) or any owner of the Premises to remove the BTM System (including the Cylinder) although they were at the material time aware of its presence.  

6.  During a joint site inspection of the Premises on 3 September 1997 by (a) Mr Chan Wah-wei David (“Mr Chan”) as authorised person (“AP”) for carrying out monitoring, inspection and reporting services (“MIR Services”) under various repair and investigation orders issued by the BD on/before 5 December 1996 (“Investigation Orders”)[6] (according to Wellgo) or as AP of the Remedial/Monitoring Works referred to in paragraph 10 below (according to JMK) and (b) the BD’s building surveyor Mr Michael Pang, Wellgo became aware of the presence of the BTM System (including the Cylinder) inside the enclosed BTM Room.  In fact, Mr Chan had drawn some sketches of the BTM System.

7.  Wellgo claimed the Cylinder was a fixed fire services installation for part of the Premises (and not a separate detachable/portable cylinder), and the BTM System (including the Cylinder) was not debris.  On the other hand, JMK claimed that at a meeting on 4 November 1997 for discussing fire safety measures chaired by the FSD, Wellgo’s Mr Chan in the presence of representatives ofthe FSD, Labour Department (“LD”), BD, Joseph Chow & Partners Limited (“JCPL”), IO and the security company described the situation of the fire services installation of the Building, but made no mention of the Cylinder as fixed fire services installation for part of the Premises. The minutes of meeting issued by the FSD on 12 November 1997 recorded inter alia that:

“6. 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.

7. Mr. David CHAN further described the situation of the building FSI. He said that the riser was not damaged by fire, hose reels on various floors which were not damaged by the fire were in workable condition and the water tank on roof was still intact. However, the electric system of the FSI had been damaged by fire and the fire pumps were properly not working.

……

9. In answering the Chairman’s enquiry, Mr. David CHAN said that the entire work of removing appendages was still going on every day and he expected the work would last about 10 more days. He promised to inform FSD when the work was completed.

……

11. 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 an 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 filling up the FSI tank on roof.”

8.  Wellgo claimed that when Mr Chan carried out the final Monitoring Inspection[7] on 23 August 2003, the Cylinder was fixed/secured in an upright position in the BTM Room at the Premises.  But after Wellgo’s Mr Chan handed over the Building to the AP for the Demolition Works on 29 December 2003,[8] the Cylinder was somehow removed from the BTM Room and came to the ground in a stack of building debris.

9.  Mr Li SC submitted that the debate as to who knew of and/or who had the responsibility of dealing with the BTM Room and the Cylinder would be a matter for trial, but the present issue was whether expert evidence would be helpful to inform the court in resolving such question. Mr Li SC argued the above matters suggested that when considering the scope of Mr Chan’s duty the court would be assisted by expert evidence as to the common practice of AP in handling such works.

 (b)  Investigation Orders

10.  Pursuant to various Investigation Orders, some of the Former Owners and IO were required to (a) carry out certain remedial building works to some structural and non-structural parts of the Building that were rendered defective by the Fire, and (b) investigate and monitor inter alia the structural elements as well as the dilapidation/defects of the Building (“Remedial/Monitoring Works”).

11.  The 3^rd third party (“Mr Chow”) was originally appointed both as AP and registered structural engineer (“RSE”) for the Remedial/ Monitoring Works.  In May 1997, Mr Chan was appointed by the IO as AP and Mr Chow remained as RSE. YSK2 claimed Mr Chow was JMK’s employee, but JMK claimed he was an employee, shareholder and director of JCPL (which traded as JMK Consulting Engineers).

12.  By a letter to the BD dated 30 March 1998 and copied to Mr Chan and Mr Chow, the IO stated as follows:

“We refer to our minute of the Committee member of [the IO] dated 18^th March 1998, we hereby authorized to be representative of the committee of [the IO] to authorised and confirmed [Wellgo] and Joseph Chow & Company being to be our jointly and severally representative to Monitoring, Inspection and Reporting to [the BD] for the extension of the various [Investigation Orders] of which the expiration date having long been transpired.”

(c)  Wellgo’s (and Mr Chan’s) works

13.  Wellgo claimed (but JMK did not admit) that since the IO intended to demolish the Building for redevelopment, they were willing to carry out only such essential works to ensure the structural stability of the Building (which was sealed off save for permitted access).  Wellgo further claimed that Wellgo/JCPL were instructed to provide MIR Services to justify the required extension of time for compliance with the Investigation Orders (and to obtain the BD’s consent for such purpose) pending the demolition of the Building for the intended redevelopment.  Mr Li SC submitted that Mr Chan’s and Wellgo’s scope of duty must be considered in light of the above context.  JMK also agreed that Wellgo and JPCL were respectively engaged by the Former Owners and/or IO to provide MIR Services pending the demolition of the Building.

(d)  Remedial/Monitoring Works

14.  Mr Chan as AP and Mr Chow as RSE (according to YSK2) or Wellgo’s Mr Chan and JCPL’s representative(s) (according to Wellgo), but not JMK (according to JMK), jointly carried out regular monthly monitoring inspections of the Building from 13 May 1998 to 23 August 2003 (“Monitoring Inspections”), and prepared 40 reports on such Monitoring Inspections (“MI Reports”) for submission to the BD for perusal and comments. According to YSK2, they had not at any time discovered and/or reported on the presence of the Cylinder in the Building.  

(e) Purpose of the Monitoring Inspections

15.  Wellgo claimed that the purpose of the Monitoring Inspections was to ensure the structural condition of the Building would remain sound/ safe and would not cause danger to the public in the context of (a) the Former Owners and/or IO being unable/reluctant to spend substantial monies for carrying out full-scale remedial works to comply with the Investigation Orders (which works would be wasted upon demolition of the Building), and (b) no person being allowed to enter the Building without Mr Chan’s permission, supervision and escort. Wellgo further claimed it was not the purpose of the Monitoring Inspections and/or MI Reports to identify any damaged or defective installations in the Building and/or to advise on necessary remedial works to be carried out in compliance with the Investigation Orders.

16.  But according to JMK, Wellgo in providing MIR Services well knew the Building would be demolished and specialist contractor would be engaged to carry out the Demolition Works, so one of the purposes of the Monitoring Inspections and MI Reports was to advise the Former Owners and/or IO the condition of the Building in anticipation of the Demolition Works.  JMK claimed that Mr Chan as an experienced AP should be aware of the requirements in regulation 3(1) of the Building (Demolition Works) Regulations Cap 123C (“Regulations”)[9] and the various paragraphs of the Draft Code of Practice for Demolition of Buildings 1988 (“Draft Code”) set out in paragraph 13 of the written decision handed down by Master Li on 6 May 2013 (“Master Decision”), which code aimed to provide guidance on safe and good practices for demolition works and for compliance with the requirements of the relevant provisions of the Regulations and the Building (Administration) Regulations Cap 123A relating to demolition works.

17.  JMK therefore claimed Wellgo should be aware that the presence of the Cylinder would be hazardous to any visitor of the Building including the demolition contractor and its workers, and that the Cylinder should not be allowed to remain at the Premises.  It was said that Wellgo should have advised the Former Owners and/or IO to cause the Cylinder to be removed upon having knowledge of the same and in any event before the commencement of the Demolition Works, or alternatively, Wellgo should have reported the presence of the Cylinder in the MI Reports so that the Former Owners and/or IO would be alerted and could well inform their consultants (ie AP/RSE for the Demolition Works) and contractors of the presence of the Cylinder and cause the same to be identified, investigated and removed prior to the commencement of the Demolition Works.

18.  JMK claimed that the duty of Mr Chan/Wellgo as AP for the Remedial/Monitoring Works should not be limited to the structural condition of the Building, and instead they should provide (a) observations by way of oversight as regards the general condition of the Building pursuant to regular Monitoring Inspections under AP’s responsibility for such works and (b) a continuous monitoring record pursuant to such inspections (ie the MI Reports) with responsibility to notify the Former Owners and/or IO of any deficiencies.

(f)  Monitoring Inspections and MI Reports

19.  JMK claimed that Mr Chan and Mr Chow by a joint letter dated 16 April 1998 to the BD confirmed the Building would be inspected by professional staff from JCPL and/or Wellgo on a monthly or more frequent basis as required to ensure the vacant Building’s structural condition would be sound/safe and not cause imminent danger to the public.  There was no mention in such letter of the presence and/or removal of the BTM System (including the Cylinder). Wellgo claimed this was because Mr Chow and/or Mr Chan/Wellgo had no duty to do so, and there was no requirement from the BD (who was aware of the presence of the BTM System prior to such letter) to remove the BTM System for public safety.

20.  JMK claimed that Wellgo by a letter dated 8 May 1998 informed the BD that according to their assessment/appraisal, the Building and its elements had been found to remain in a structurally stable condition.  Potentially dangerous and/or loose elements of construction had all been removed, so Wellgo opined no special arrangements and safety measures were required for persons who might enter the Building (eg consultants, workers, patrol guards and other parties with legitimate causes).

21.  Wellgo and JMK agreed it was not mentioned in any of the MI Reports about hazardous materials present inside the Building or whether the condition of the Building was safe and suitable for entry or for carrying out any demolition work.

22.  Mr Chan and Mr Chow stated in the 1^st MI Report dated  29 May 1998 that after the Monitoring Inspection on 13 May 1998 in respect of the third floor “[all] tenancy fixtures & furnitures together with fire damaged debris were removed and carted away from the [Premises]”. JMK claimed that by then Wellgo was fully aware of the presence of the BTM System (including the Cylinder) inside the BTM Room at the Premises, yet they did not mention the continued presence of the Cylinder at the Premises.

23.  Mr Li SC submitted that the question whether Mr Chan as AP was in breach of his duty of care in making such statement turned on whether or not the Cylinder should be classified as “tenancy fittings & furnitures” or “fire damaged debris” given that Wellgo claimed the Cylinder was fixed/secured in an upright position in the BTM Room but subsequently it was amongst debris on the ground at the Premises when the Accident happened. On the other hand, Mr Yeung submitted that “tenancy fixtures” had specific legal meaning, and the Cylinder necessarily came within such meaning. Be that as it may, Mr Li SC argued that for the purpose of JMK’s claim based on professional negligence the above matters would be important in determining Mr Chan’s (and hence Wellgo’s) scope of duty, and the judge would be assisted by what an AP in common practice would have regarded as tenancy fixtures and/or debris, which ought not to be answered simply by common sense.

24.  JMK and Wellgo claimed that on 20 October 1999 Mr Chan issued a letter to the IO representing and/or advising inter alia that removal of all fire debris including fixtures and fittings by respective occupiers of the Premises would eventually be required prior to the intended demolition of the Building.  JMK claimed such removal was for examination of the structural condition by the RSE for preparing the “Demolition Plans and Proposals” for approval by the BD as well as for erection of temporary propping for the Demolition Works.

25.  The same findings in the 1^st MI Report was made throughout the rest of the MI Reports in that almost all such reports, when it came to the condition of the Premises, stated that “Premises free from debris” and the condition was “[similar] to previous inspections” or words to those effect.

26.  On 10 July 2003, an order was made by the Lands Tribunal for the sale of the Building for redevelopment.  By a public auction held on 11 September 2003, the Building was sold to the Owner.

27.  Wellgo informed the IO by letter dated 13 August 2003 (with copy to the Owner’s solicitors) that, as evidenced by recent Monitoring Inspections, considerable safety remedial works would have to be carried out. JMK claimed that Wellgo requested the IO to advise the status of the redevelopment proposal so they could make plans to avoid unnecessary cost and also to ensure safety of the general public.  But in such letter Wellgo did not advise the presence of the BTM System (including the Cylinder) or the removal of the same for public safety. On the other hand, Wellgo claimed they had no duty and the BD did not require them to do so.  Wellgo further claimed no safety remedial works had been done since the IO had no intention or sufficient funds to carry out the same.

28.  Since the 33^rd MI Report (which related to the Monitoring Inspection on 13 November 2002) up to the final MI Report dated 29 August 2003 (which related to the final Monitoring Inspection on 23 August 20003, “Final MI Report”), it was reported that “Premises free from debris” for the third to ground floors.  In the 39^th MI Report dated 31 July 2003 and the Final MI Report, it was also stated “[debris] all cleared away”. It was further said that during the final Monitoring Inspection on 23 August 2003, Mr Chan found the Cylinder was still present, but he did not include this finding in the Final MI Report as he considered the Cylinder should not be classified as “debris”.

(g)  Appraisal Report

29.  JMK was employed by the Owner as structural and geotechnical engineering consultant to carry out appraisal and survey of the Building and its structural elements prior to the Demolition Works (according to YKS2) or to carry out structural appraisal of the Building (according to JMK) (“Survey”) for planning the Demolition Works and redeveloping the Building. Pursuant thereto, JMK carried out the Survey and prepared the Engineers’ Appraisal  Report for Demolition of Existing Building of September 2003 (“Appraisal Report”) setting out their findings and the results of such survey.

30.  The Appraisal Report comprised the engineering assessment of the demolition of the Building from the upper roof to the ground floor level, and set out the method statement and procedures for demolition.  It stated that the Demolition Works shall comply with the statutory requirements in inter alia the Regulations and the Draft Code, and the Final MI Report was annexed as an appendix thereto.

31.  JMK further claimed it was not until the Owner engaged them to carry out the Survey in/about August 2003 that they first got involved in structural appraisal works in respect of the Building after the Fire, but they were never asked by the Owner to carry out survey of the Building (other than for structural appraisal works) as alleged or at all.

32.  YSK2 claimed JMK did not inform them of the presence of the Cylinder in the Building, and in reliance of the Appraisal Report they had no reason to believe the Cylinder was present in the Building.

(h)  Demolition Works

33.  On/about 30 September 2003, Mr Kwan was appointed by the Owner as AP for the Demolition Works. Wellgo claimed Mr Chan did not participate in the preparation of the redevelopment proposal including the demolition plan of the Building.  The RSE appointed by the Owner for the Demolition Works was Ms Kwan Po-jen Helen (“Ms Kwan”), who was a director of JMK.

34.  The Building was handed over to the Owner (or Mr Kwan as AP for the Demolition Works) on/about 29 December 2003 to carry out the Demolition Works. According to the minutes of Site Progress Meeting No 1 on 29 December 2003, Mr Chan in the presence of Ms Kwan and Mr Edward Lo of JMK drew YSK2’s attention to the need for “extra caution should be taken during the course of [the Demolition Works]” since “some areas [of the Building] suffered serious fire damage”. Mr Li SC queried whether or not such warning was sufficient for Wellgo to discharge their duty even if hazardous or potentially hazardous materials were still present at the Premises bearing in mind that Wellgo was not appointed for the purpose of removing hazardous materials.  In this respect, Mr Li SC suggested that the court would be assisted by an expert who had understanding of and who could give evidence on the role of an AP such as Mr Chan.

35.  Wellgo claimed that on 29 December 2003 and in any event no later than 31 December 2003, Mr Chan ceased to be AP.  During the term of his appointment as AP, the Building was subject to various closure orders and no person was allowed to enter the Building without his permission, supervision and escort.  Further, no person was injured inside the Building during the course of his term as AP.

36.  YSK2 claimed that after the commencement and in the course of the Demolition Works, in accordance with the Appraisal Report, bi-weekly inspections of the Building or the remaining parts of the Building yet to be demolished were carried out on each floor by Mr Kwan and Ms Kwan respectively as AP and RSE for the Demolition Works together with YSK’s Project Manager and Managing Director.  Daily patrols/ inspections were carried out by site foremen employed by YSK2 including the plaintiff, but the Cylinder was never discovered by any person during such inspections or patrols.

37.  Mr Li SC submitted that the question of which party responsible for the Demolition Works failed to see the Cylinder in the course of preparing for and executing the Demolition Works would be a matter for trial, but this question had to be considered in the context of JMK having inspected the Building and carried out the Survey, and YSK2 having installed temporary propping at the Premises with spacing of 1.2m, which (according to Mr Li SC) made it highly improbable that the Cylinder (1000mm in length and 400mm in diameter) would be left unnoticed.

II. MAIN ACTION

38.  On 5 December 2006, the plaintiff commenced the present action against the defendant for damages in respect of the Accident, which he claimed was caused by YSK2’s negligence and breach of statutory duties.  According to the Amended Statement of Claim filed on 1 June 2011, the plaintiff averred that if the defendant had conducted proper/adequate building survey, the Cylinder would have been discovered, handled and removed prior to the Demolition Works thus avoiding the Accident.

39.  In their Amended Defence filed on 19 November 2009, YSK2 denied liability. YSK2 referred to the MI Reports, Appraisal Report,  bi-weekly site inspections and daily patrols of the Building during the Demolition Works, and claimed they had no reason to believe the Cylinder was present in the Building. YSK2’s Amended Defence referred to the roles of Wellgo, JSM and Mr Chow, and averred that the Draft Code applied to JMK.

III. THIRD PARTY PROCEEDINGS

40.  On 24 November 2009, YSK2 issued a Third Party Notice and filed a Third Party Statement of Claim against Wellgo and JMK as the 1^st and 2^nd third parties.  On 24 November 2010, YSK2 filed their Amended Third Party Notice against Wellgo, JMK, Mr Chow and Mr Kwan respectively as the 1^st, 2^nd, 3^rd and 4^th third parties. On 13 December 2010, YSK2 filed their Amended Statement of Claim in the third party proceedings for indemnity and contribution against the third parties.

41.  According to the Amended Third Party Statement of Claim, YSK2 referred to the Monitoring Inspections, MI Reports and Appraisal Report, and claimed that if the Accident happened as alleged by the plaintiff, his alleged injuries, loss and damages were caused:

(a)   by (i) negligence on the part of Wellgo as AP for the Remedial/Monitoring Works and JMK as structural and geotechnical engineering consultant engaged to carry out the Survey and/or (ii) negligence on the part of Mr Chow as RSE for the Remedial/Monitoring Works for which JMK was vicariously liable and/or (iii) breach of duty on the part of Ms Kwan as occupier of the Premises for which JMK was vicariously liable;

(b)   by (i) negligence on the part of Ms Kwan as RSE for the Demolition Works for which JMK was vicariously liable and (ii) negligence and/or breach of statutory duty on the part of Mr Kwan as AP for the Demolition Works.

42.  YSK2 claimed against (a) Wellgo as the then 1^st third party for negligence on their part as AP for the Remedial/Monitoring Works, (b) JMK as the 2^nd third party for negligence in their capacity as structural and geotechnical engineering consultant engaged for planning the Demolition Works, (c) Mr Chow as the 3^rd third party for negligence on his part as RSE for the Remedial/Monitoring Works, and (d) Mr Kwan as the 4^th third party for negligence on his part as AP for the Demolition Works and for breach of the Draft Code as applied to him.

43.  On 10 January 2011, 12 October 2012, 10 January 2011 and 10 November 2011, Wellgo, JMK, Mr Chow and Mr Kwan respectively filed their Amended Defence, Re-Amended Defence, Defence and Amended Defence in the third party proceedings.

44.  The primary defence in JMK’s Re-Amended Defence in the third party proceedings was that they were only the structural and geotechnical engineering consultant engaged for planning the Demolition Works and preparing the Appraisal Report, and they denied the plaintiff’s alleged injuries, loss and damages were caused by their negligence as such consultant and/or by Mr Chow’s negligence as RSE for the Remedial/ Monitoring Works and/or by Ms Kwan’s breach of statutory duty as occupier of the Premises.

45.  JMK averred that Ms Kwan’s duty/obligation as RSE for the Demolition Works was confined to structural safety aspects of the Building, and she would/did not have sufficient control over the Premises such that she ought reasonably to have foreseen any failure on her part to take care might result in injury to the plaintiff allegedly caused by the Cylinder being left within the Premises.  JMK contended that at the time of the Accident the site where the Building was being demolished was under the occupation, control and possession of YSK2 who was the only occupier of the Premises, and at all material times neither Ms Kwan as RSE for the Demolition Works nor JMK was an occupier of the Premises.

46.  JMK claimed that Mr Chow was not at any material time their employee, and they would/could not be held vicariously liable for any act or conduct of Mr Kwan. Further, inspection of the Premises for the purpose of locating potentially hazardous materials, including fire-fighting cylinders found within the area of the Premises, was not part of the duty or obligation of JMK as structural and geotechnical engineering consultant or of Ms Kwan as RSE for the Demolition Works.  Their duty and obligation were confined to the structural safety aspects of the Building, but even if Ms Kwan were an occupier of the Premises (which JMK denied), there was still no breach of duty on her part.

47.  JMK claimed they owed no duty of care or statutory duty to YSK2 in respect of the contents of the Final MI Report prepared by Wellgo (and not JMK) or the Appraisal Report prepared by JMK for the Owner in the absence of any contractual relationship.  JMK averred it was unreasonable for YSK2 as a specialist demolition contractor to rely on the statement in the Final MI Report that the Premises were “free from debris” to presume that during the consequent course of the Demolition Works the Premises would remain free from debris and potentially hazardous material.

48.  JMK averred that YSK2 was required under the Demolition Works contract to visit and be acquainted with the site and to examine the existing Building.  Had YSK2 discharged this duty, they should have discovered the presence of the Cylinder at the Premises and caused the same be removed well before the Accident. If YSK2 had relied on the statement in the Final MI Report (which was not admitted), JMK averred YSK2 did so negligently.

49.  JMK further claimed that the Appraisal Report recorded only the structural condition of the Building as at the time of such report. Reference made in the Appraisal Report to the Final MI Report was only in respect of the special structural condition of the Roof and the 15^th floor of the Building. It was also outside the duty of JMK as structural engineering consultant and outside the purview of the Appraisal Report to identify the location of any fire-fighting cylinder.

50.  JMK therefore averred that, if (which was not admitted) the Accident did occur as alleged, it was solely/wholly caused by negligence and/or breach of statutory duty on the part of YSK2 (who was at the material time the principal contractor and registered specialist contractor for the Demolition Works), their servants and agents, and/or contributed to (a) by negligence on the part of Mr Chan as AP for the Remedial/Monitoring Works for which Wellgo as his employer would be vicariously liable and/or (b) by negligence and/or breach of statutory duty on the part of Mr Kwan as AP for the Demolition Works, and his servants and agents.

51.  Following mediation held on 21 July 2011, by a Consent Order dated 25 July 2011, YSK2’s claim against Wellgo under the third party proceedings was discontinued.

IV. FOURTH PARTY PROCEEDINGS

52.  On 17 February 2012, JMK issued a Fourth Party Notice against Wellgo. Pursuant to the order dated 10 April 2012, the Fourth Party Notice stood as JMK’s Statement of Claim in the fourth party proceedings.

53.  JMK claimed that Mr Chan well knew it was necessary for the Premises to be free from debris (including hazardous material) for examination by the RSE and any subsequent Demolition Works, and that by inspecting the Building with representatives of the BD and FSD since about 1997 he knew or should have known about the existence of the Cylinder at the Premises, yet there was no mention of the existence/presence of the Cylinder at the Premises in any of the MI Reports prepared by Mr Chan including the 1^st MI Report dated 29 May 1998.

54.  JMK claimed that if the plaintiff’s injuries were caused by the Accident as alleged, his injuries, loss and damages were caused by and consequently his claim against YSK2 in the present action was based on the negligence by Mr Chan as AP for the Remedial/Monitoring Works (as particularised below) for which Wellgo was vicariously liable, and hence Wellgo should indemnify (i) YSK2 for any loss and damages payable to the plaintiff and/or (ii) JMK for any loss and damages payable to YSK2:

(a) failing to exercise due care in carrying out the regular monthly Monitoring Inspections of the Building;

(b) failing to report the presence of the Cylinder at the Premises during such Monitoring Inspections or otherwise;

(c) failing to notify the FSD, LD and/or other relevant government departments about the presence of the Cylinder (which was and/or contained hazardous or potentially hazardous material) at the Premises during the term of his appointment as AP for the Remedial/Monitoring Works;

(d) failing to make enquiries with the BD, FSD, LD and/or other relevant government departments about the proper way of disposal or removal of the Cylinder;

(e) failing to cause the Cylinder to be removed from the Premises prior to the Building being handed over to YSK2 on 29 December 2003 for commencement of the Demolition Works or prior to termination of his term as AP for the Remedial/Monitoring Works;

(f) failing to warn or inform the Former Owners, IO, YSK2, the plaintiff and/or JMK of the presence of the Cylinder at the Premises;

(g) falsely representing to the Former Owners, IO, YSK2, the plaintiff and/or JMK through the monthly MI Reports and in particular the Final MI 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 there was no potentially hazardous material at the Premises.

In short, JMK’s claim against Wellgo in the fourth party proceedings was based on professional negligence on the part of Mr Chan as AP for the Remedial/Monitoring Works for which Wellgo was said to be vicariously liable.

55.  On 17 October 2012, Wellgo filed their Re-Amended Defence in the fourth party proceedings to deny they and/or Mr Chan were negligent or owed any duty to JMK in the manner as alleged or at all. It was said that Wellgo’s role was to seek extension of time to deal with the Investigation Orders, and the objective of their MRI Services was to prevent any danger to the public and not with demolition.

56.  Wellgo claimed that Mr Chan and/or Wellgo had never been employed by JMK, and there was no contractual relationship between them. Wellgo asserted they were the copyright owner of the MI Reports, and had never authorised/permitted JMK to read or rely on them. Wellgo claimed they discovered from Mr Chow’s affidavit dated 2 July 2010 that the Final MI Report had been attached to JMK’s Appraisal Report without their knowledge, permission or authorisation, which act by JMK amounted to infringement of copyright. Likewise, the incorporation of the Appraisal Report (including the Final MI Report) as part of the tender/contract documents between the Owner as employer and YSK2 as contractor for redevelopment of the Building was without Wellgo’s knowledge, permission or authorisation.  Wellgo claimed they never gave advice/ recommendation to JMK in relation to the Appraisal Report or proposed demolition of the Building, and JMK did not make any enquiry with them in respect of the condition of the Building or verify whether the contents of the MI Reports were applicable for the purpose of the Demolition Works.  It was said that if JMK relied on the MI Report(s) to prepare the Appraisal Report or to give advice based on the contents of the MI Report(s), they did so entirely at their own risk and such reliance was unreasonable due to their infringing acts. Wellgo claimed that neither they nor Mr Chan owed any duty of care to JMK, but even if they did there was no breach by Wellgo and/or Mr Chan of any duty of care. Wellgo added that it was unreasonable for any unauthorised person including JMK to rely on or act upon any contents of the MI Report(s) for matters connected with the Demolition Works.

57.  Wellgo admitted the BTM System (including the Cylinder) was still present in the BTM Room at the Premises during the Monitoring Inspection done by Mr Chan on 23 August 2003, but claimed they did not have any duty to and did not mention the presence of the BTM System (including the Cylinder) in the BTM Room at the Premises during the Monitoring Inspections and in the MI Reports (including the 1^st and Final MI Reports). Wellgo claimed the BTM System (including the Cylinder) did not form part of the tenancy fixtures and furniture as mentioned in the 1^st MI Report, and hence Wellgo had no obligation to report or remove the same.

58.  Wellgo further admitted they did not notify the FSD, BD, LD or other government departments about the presence of the BTM System (including the Cylinder) in the BTM Room at the Premises, but they had no duty to and did not make enquiries with such government departments about their disposal or removal.

59.  Wellgo averred they had no duty to and did not cause the BTM System (including the Cylinder) to be removed from the Premises prior to the handover of the Building for the Demolition Works and/or termination of the engagement of Wellgo’s Mr Chan as AP.  Wellgo claimed:

(a) the IO had no intention or sufficient funds to complete any remedial work under the Investigation Orders;

(b) it was the statutory duty of the AP for the Demolition Works to ascertain and cause the removal of such fire-fighting service before commencement of any demolition works in accordance with regulation 3(1) of the Regulations;

(c) it was the prescribed duty of the AP for the Demolition Works that if hazardous materials were present, (i) they shall be removed and cleared according to the statutory requirements administered by the Environmental Protection Department, FSD, LD and other government departments in accordance with paragraph 2.1.1(C)(2) of the Draft Code, and (ii) further investigation/removal by specialist of such hazardous material or contamination shall be referenced in accordance with paragraph 2.3 of the Draft Code.

60.  Wellgo claimed that before they handed over the Building to Mr Kwan and the demolition team, it was at all material times sealed off with no access save with the permission of their Mr Chan.  Even though the FSD’s officers did enter the Building on many occasions and carried out periodic inspections from 8 July 2002 to 29 December 2003, the FSD never informed Wellgo and/or Mr Chan of discovery of hazardous or potentially hazardous material in the Building, or requested them to remove the BTM System (including the Cylinder) from the Premises or any part thereof.

61.  Wellgo claimed they had no duty to and did not warn/inform the Former Owners, IO, YSK2, the plaintiff, Mr Kwan and/or JMK of the presence of the BTM System.  Wellgo admitted that the Final MI Report stated the Premises were free from debris and all debris at the Premises had been cleared away, but denied Wellgo and/or Mr Chan had made any false representation to JMK or any person as alleged or at all.

62.  Wellgo further claimed as follows:[10]

“The appointment of [Wellgo’s Mr Chan] as the AP to deal with [the Investigation Orders] and to provide [MRI Services] of the Building is contained in and/or evidenced by a letter from [the IO] to the BD dated 30^th March 1998. As the scope of duties of [Mr Chan and/or Wellgo] was not well defined, [Wellgo] will rely on the common or normal professional practice of an AP in Hong Kong to show that [Mr Chan and/or Wellgo] had no implied duty to:-

(i) report the presence of [the BTM System] (including [the
Cylinder]) in the [MI Reports] or any of them including the [Final MI Report];

(ii) cause [the BTM System] (including [the Cylinder]) or any
part thereof to be removed prior to the handover of the Building to the AP for Demolition and the cessation of [Mr Chan’s] appointment as the AP; and

(iii) warn or inform the owners of the Building, [IO], [YSK2],
 the Plaintiff and/or [JMK] of the presence of [the BTM System] (including [the Cylinder]).”

63.  Further or alternatively, it was argued that at all material times Mr Chan’s and/or Wellgo’s reasonable but undisclosed evaluation was that (a) all the BTM gas in the Cylinder which formed part of the BTM System should have already been fully discharged due to the Fire, and (b) even if all/some BTM gas had not been discharged from the Cylinder during the Fire, its presence at the Premises should not be considered as an over-storage of dangerous goods.

64.  Further or alternatively, Wellgo averred that the Accident was solely caused and/or contributed by negligence and/or breach of statutory duty and/or breach of common duty of care on the part of YSK2, JMK, Mr Kwan and/or the person who had improperly removed/disposed of the Cylinder from the BTM Room.  In this respect, Wellgo adopted the allegations (a) in the plaintiff’s Amended Statement of Claim in the main action insofar as the same were directed at YSK2 and (b) in YSK2’s Amended Statement of Claim in the third party proceedings insofar as the same were directed at JMK.  Wellgo complained it was the AP for the Demolition Works who, prior to the commencement of the Demolition Works, failed to cause the removal of the BTM System (including the Cylinder) in the BTM Room at the Premises pursuant to the Regulations and the Draft Code.

65.  On 12 November 2012, JMK filed their Re-Amended Reply in the fourth party proceedings to dispute Wellgo’s pleaded case.  It was alleged that “one of the purposes of the monitoring inspections and reporting” was to advise the IO or owners of the Building the condition of the Building in anticipation of the Demolition Works, and that the Regulations and Draft Code applied to Wellgo.

66.  JMK did not admit that Mr Chan’s appointment as AP to deal with the Investigation Orders and to provide MRI Services in respect of the Building was contained in and/or evidenced by a letter from the IO to the BD dated 30 March 1998. JMK went on to aver that:

“…… common or normal professional practice of an APin Hong Kong has no relevance in these proceedings because the [MRI Services] provided by [Wellgo] were not of a common or normal nature required to be undertaken by an AP. Such services were deemed necessary and required only due to the serious fire previously occurred in the Building and the owners’ intention to demolish the Building. Further, the fact that [Wellgo] well knew:

(i) the presence of [the Cylinder] which had remained unattended since [the Fire];

(ii) that its presence would be hazardous to any visitors of the building including the demolition contractor and its workers;

(iii) that [Wellgo] had made regular reports on their monitoring and inspection of the Building without mention of the presence of [the Cylinder] and yet reporting that the Building were free of debris and that all debris on the Building had been cleared away;

(iv) those matters set out in paragraph 9 of the Fourth Party Notice;

(v) that the Building would be demolished; and

(vi)  that a specialist contractor would be engaged to carry out the demolition works made the situation unique on its own and even less common or normal for AP services.”

67.  JMK claimed that following the Monitoring Inspection by Wellgo’s Mr Chan and Mr Thomas Choy (whose employment was transferred to JMK on 1 April 2003) on 23 August 2003, the Final MI Report dated 29 August 2003 was issued to the BD and copied to inter alia Mr Thomas Choy  and the IO.  The Final MI Report was part of the project documentation/information that had been assigned/transferred by the IO to the Owner, which JMK (who was retained by the Owner for provision of RSE consultancy services in relation to the Demolition Works) could use.

68.  JMK did not admit that the IO had no intention or sufficient funds to complete any remedial works under the Investigation Orders.  The cost of removal of the Cylinder would be to the order of not more than $10,000.00. Had the presence of the Cylinder been made known in the MI Reports so that the Owner and/or IO would have been alerted and would have informed their consultants (AP/RSE for the Demolition Works) and contractors, the Cylinder would likely have been identified, investigated and removed before commencement of the Demolition Works.  In any event, YSK2 and other parties engaged in the Demolition Works would then have been aware of the presence of the Cylinder and would have taken necessary precaution when handling the Demolition Works thereby avoiding the Accident.  JMK averred that Wellgo’s Mr Chan did not point to JMK the presence of the Cylinder at the Premises, and JMK did not notice the presence of the Cylinder in the Building.

69.  The main action, third party proceedings and fourth party proceedings had not been set down for trial.

V. SUMMONS

70.  On 28 September 2012, Wellgo issued a summons (“Summons”) for leave to adduce expert evidence on the subject of common professional practice of an authorised person or “authorized person services” under the Building Ordinance Cap 123 (“Ordinance”) in Hong Kong on the question of liability in the fourth party proceedings with consequential directions for obtaining relevant expert report(s). Wellgo’s proposed expert is Prof Barnabas Chung or Mr Tsang Cheung Chuen.

71.  In the Summons, the proposed expert issues were set out as follows (“Expert Issues”):

“(a) Was an AP employed to deal with [the Investigation Orders] and to provide [MRI Services] of the Building required to meet the requirements provided in (i) [the Regulations] and (ii) [the Draft Code] 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 Regulations] and (ii) the Draft Code under the common or normal professional practice of an AP in Hong Kong?

(c) Was [JMK] required to report the presence of [the BTM System] (including [the Cylinder]) in [the Appraisal Report] or otherwise for the purpose of the structural appraisal of the Building for demolition purpose?

(d) Whether it was reasonable for [JMK] to rely on any of the [MI Reports] including [the Final MI Report] for the structural appraisal of the Building for demolition purpose?

(e) Was an AP employed to deal with the [the Investigation Orders] and to provide [MRI Services] of the Building required to report in any of [the MI Reports] including [the Final MI Report] the presence of [the BTM System] (including [the Cylinder]) on [the Premises] 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 System] (including [the Cylinder]) on [the Premises] 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 Investigation Orders] and to provide [MIR Services] of the Building required to remove or cause the removal of [the BTM System] (including [the Cylinder]) on [the Premises] 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 System] (including [the Cylinder]) on [the Premises] 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 [Wellgo’s Mr Chan] 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?”

In their letter to JMK’s solicitors dated 12 September 2012, Wellgo’s solicitors indicated that Wellgo would be prepared to consider modifying or amending the Expert Issues to be considered by the relevant expert(s) if JMK had any comments thereon.  But there was no response from JMK who chose to oppose the Summons.

72.  The hearing of the Summons came before Master Li on 5 February 2013 and was adjourned part-heard to 25 March 2013.  By the Master Decision, Master Li granted the Order dismissing the Summons and a costs order nisi that Wellgo do pay JMK’s costs of the application with certificate for counsel to be taxed if not agreed.  On 14 May 2013, Wellgo lodged a Notice of Appeal against the Master Decision to set aside the Order and to seek leave for Wellgo to adduce expert evidence as sought in the Summons “with such order for directions as the Court deems appropriate” and with costs here and below. The hearing of the appeal came before me on 11 September 2013 (“Hearing”).

VI. APPEAL FROM MASTER

73.  It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[11]

VII. LEGAL PRINCIPLES

74.  The fundamental characteristic of expert evidence is that it is opinion evidence in respect of a recognised expertise.  I repeat my observations in Ngai Ping Kwan v Choy Yat Hung[12] citing the guidance by Bharwaney J in Fung Chun Man v Hospital Authority & anor.[13]  Although these cases concern expert medical evidence, the broad principles elicited therefrom are also applicable for expert evidence on liability.  Since there is no quarrel between Mr Li SC and Mr Yeung over the applicable broad principles, I do not propose to refer to the abundance of authorities cited by counsel even though I have carefully considered them.

75.  In summary, expert evidence must be relevant, necessary and of probative value, ie it is likely to be of real assistance to the determination of the issues or, to put it in another way, it must be reasonably required to enable the court to resolve the issues in dispute.  The expert is to help the court in reaching its decision with technical analysis and opinion inferred from factual evidence, and the court’s role is to decide the ultimate issue based on the totality of the evidence, both lay and expert, adduced by the parties.

76.  The starting point is that there needs to be matters at issue which require expertise for their observation, analysis and reference. Obviously, expert evidence is often sought in disputes requiring detailed scientific or technical knowledge in any area, but it can be called in relation to any factual dispute where there is an acknowledged body of expertise governed by established principles and rules of conduct, which is relevant to an issue to be decided by the court, and which is outside the experience of the judge.

77.  It is not always easy to decide whether expert evidence is appropriate.  But taking into account the objectives as explained above, the court has to consider whether it is relevant to a matter which is in dispute between the parties and whether it is reasonably required to resolve such dispute in the proceedings.  One area where expert evidence is common is cases involving allegations of professional negligence because a pre-requisite to such allegations is the ability to demonstrate that the conduct complained of would not be in accordance with the standard to be expected of a reasonably competent professional in that particular area or field.  Expert evidence in professional negligence cases essentially serve two functions, ie (a) it sets out and explains the relevant technical matters and (b) it assists the court in deciding whether the acts/omissions of the defendant professional constitute negligence by setting out the state of the knowledge at the material time and standard ordinarily observed in the profession.

78.  However, in some cases the mistake may be so plain and obvious that it is unnecessary to apply any particular professional expertise to decide whether the defendant professional has failed to exercise the reasonable care and skill expected of an ordinary man of his profession.

79.  Expert evidence will also not be necessary where on the proven facts of the case the judge can form his own conclusions without the assistance of an expert, or where the expert evidence purports to deal with matters that are actually for the judge to decide.  Sometimes, the matter may not be a matter for expert evidence because it may well be an issue of fact where it suffices for the parties and/or their witnesses to give lay evidence.

80.  The court also has regard to other circumstances, eg potential disruption to the trial or other milestone timescale set by the court, the prejudice to the other parties, the explanation given for a late application, and these matters will have to be considered and weighed in light of and against the underlying objectives under Order 1A of the Rules of the High Court (“RHC”).

81.  There are further considerations, eg expert evidence may not be admissible if the expert’s qualifications or experience are not sufficiently relevant to the issues, or the expert is not qualified to deal with those issues, or the expert lacks sufficient independence.  But where expert evidence is otherwise useful, the court may allow the party or parties to nominate another expert.

82.  Whilst it is true that the spirit and effect of the Civil Justice Reform require the court to look more closely at the need for expert evidence, ultimately the court in the exercise of its discretion strives to do justice between the parties and to secure the just resolution of the dispute in accordance with the substantive rights of the parties.  The burden is on the party seeking to call expert evidence to show that it will be of assistance to the judge.

VIII. MASTER DECISION

83.  Mr Li SC has helpfully summarised the reasons for the Master Decision as follows:

(a) the questions posed for the experts are questions of common sense, and they are factual issues which can be resolved by the court;

(b) there cannot be admissible “expert” evidence;

(c) the duties of an AP have already been defined in the Regulations and the Draft Code;

(d) the issues do not require special knowledge to answer;

(e) there has been no application by other parties to adduce expert evidence, and in particular there was no application by Wellgo previously when it was the 1^st third party in the present action.

In short, the learned master agreed with and adopted the submissions made by Mr Yeung for JMK.

IX. PRELIMINARY MATTER

84.  Mr Yeung complained that Wellgo had failed to disclose their employment contract with the Former Owners and/or IO for the provision of AP services, and that the only written document disclosed so far was the letter from the IO to the BD dated 30 March 1998 (ie about 10 months after Mr Chan was appointed as AP).[14]

85.  But notwithstanding such complaint, JMK has not taken out any application for specific discovery against Wellgo.  At the Hearing, Mr Li SC informed the court Wellgo did not have any further document that contained or evidenced Mr Chan’s terms of engagement as AP, and I granted directions for Wellgo to file/serve an affidavit within 14 days to verify their List of Documents filed on 19 June 2013 and their Supplemental List of Documents filed on 3 September 2012.  On 19 September 2013, Wellgo filed Mr Chan’s affirmation in compliance with such directions.

X. DISCUSSION

86.  The starting point is that JMK’s claim against Wellgo was not based on contract but on tort, and in particular it is based on allegations of professional negligence on the part of Mr Chan as AP for the Remedial/Monitoring Works (for which Wellgo was vicariously liable),[15] which Mr Li SC summarised as follows:

(a) failing to deal with and/or remove the Cylinder from the Building prior to handing over the Building to YSK2 for the Demolition Works;

(b) failing to report the presence of the Cylinder to the relevant government authorities and to make enquiries with them about its proper removal;

(c) failing to report the presence of the Cylinder at the Monitoring Inspections or otherwise;

(d) failing to warn or inform the owners of the Building, YSK2 and JMK about the presence of the Cylinder.

87.  Wellgo denied liability on the basis that Mr Chan’s and hence their role was limited to providing MRI Services to prevent danger to the public pending the demolition of the Building, and to seeking extension of time to deal with the Investigation Orders because the IO had no intention (or insufficient funds) to carry out the remedial works under the Investigation Orders, which works would become redundant upon demolition of the Building.  In particular, Wellgo denied they (including Mr Chan) had anything to with the Demolition Works, so even though they knew of the presence of the BTM System (including the Cylinder) at the Premises they had no duty to and did not report on their presence, notify or make enquiries with the government authorities and/or remove them before the handover of the Building or the termination of Mr Chan’s appointment as AP.  In particular, Wellgo denied they or Mr Chan was obliged to report on the general condition of the Building or to notify the owners of the Building and/or IO of any deficiencies.

88.  Plainly, the first major battle between JMK ad Wellgo in the fourth party proceedings is the scope and extent of Mr Chan’s professional duties as AP for the provision of MRI Services (according to Wellgo) or for the Remedial/Monitoring Works (according to JMK) under the Investigation Orders.  This is a mixed question of ascertaining the contractual engagement of Mr Chan as AP and determining Mr Chan’s (and hence Wellgo’s) duty of care vis-à-vis visitors and future visitors of the Building in the context of their contractual engagement and the relevant factual matrix.

89.  In my view, the judge in ascertaining the answer to this question will benefit from both lay and expert evidence.  First of all, the terms of the contractual engagement are not clearly spelt out in the letter from the IO to the BD dated 30 March 1998, which appears to be the only available documentary evidence in this respect.[16]  Question necessarily arises as to how in the common practice an AP so instructed in 1997-2003 would have viewed the extent and scope of his duties.  In the present case, one cannot adopt a blinkered approach by looking solely to Mr Chan and ignore the interactions with other professionals whose work all concerned the Building at the same, different and/or overlapping stages before/during the Demolition Works. The period from Mr Chan’s appointment as AP in 1997 to the occurrence of the Accident in 2004 is not a short one, and I am not persuaded this is a simple open-and-shut factual issue as Mr Yeung and the learned Master would have us believe.

90.  Mr Yeung argued that the common professional practice of an AP had no bearing on the issues in face of the guidance in the Draft Code, which he submitted would be sufficient to assist the court on how to deal with hazardous material (such as the Cylinder) found in a demolition site.  But there is dispute between Wellgo and JMK as to the applicability of the Draft Code to Mr Chan and Wellgo.  Bearing in mind that the purpose of the Draft Code as stated in paragraph 1.1.1 therein is to outline “good practices for planning and implementation of demolition of various building works in Hong Kong ……”, question immediately arises as to whether MRI Services under the Investigation Orders (according to Wellgo) or the Remedial/ Monitoring Works (according to JMK) come within the scope of “planning and implementation of demolition of various building works in Hong Kong ……” envisaged by the Draft Code, especially (a) when JMK was tasked to carry out the Survey and prepare the Appraisal Report and (b) when AP and RSE were appointed particularly for the Demolition Works.  In my view, this alone provides justifiable basis for adducing expert evidence on the common practice of AP to ascertain whether within the profession Mr Chan’s scope of duties would have required compliance with the Draft Code.

91.  Mr Yeung also contended that part of the duties of an AP prior to commencement of demolition works was well defined in section 3(1) of the Regulations such that it would be unnecessary for an expert to say anything in this regard:

“Before the demolition is commenced, the authorized person appointed in respect of the demolition works shall –

(a) cause all gas, electricity, water and other meters to be removed from the building and, save in so far as the same be used in the demolition works, cause the supply of gas and electricity to the building to be disconnected; and

(b) cause any fitting attached to the building in connexion with any tramway service, system of street lighting, supply of electricity or other service be removed.” (my emphasis)

I am not persuaded by Mr Yeung’s submissions. Section 3(1) of the Regulations makes it quite clear that it refers to the obligations of the AP appointed in respect of the demolition works. There is no dispute that Mr Kwan was the AP appointed in respect of the Demolition Works, and even on JMK’s case Mr Chan was appointed as AP for the Remedial/Monitoring Works. There is a real issue as to whether section 3(1) of the Regulations is applicable to Mr Chan (and Wellgo) at all.

92.  That being the case, at this interlocutory stage of the proceedings, I see no or no sufficient basis to shut out Wellgo’s defence contention that they were not liable for demolition-related matters. Should such defence succeed at trial, the parties as well as the judge will have to go on and canvass the nice question as to Mr Chan’s (and hence Wellgo’s) scope of duties possibly without reference to the Regulations and the Draft Code, which possible scenario serves to highlight the need to look towards the common practice of AP.

93.  Nevertheless, Mr Yeung reminded that section 2 of the Ordinance defined an AP 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 supervisor”, and (even though there were many aspects of the Ordinance which would be irrelevant to the issues in the fourth party proceedings) section 4(3) of the Ordinance provided that any AP, any RSE and any registered geotechnical engineer appointed or nominated under section 4(1) or 4(2) for carrying out building works or street works shall:

“(a) supervise the carrying out of the building works or street works, as the case may be, in accordance with the supervision plan;

(b) notify the Building Authority of any contravention of the regulations which would result from the carrying out of any work show in any plan approved by the Building Authority in respect of the building works or street works; and

(c) comply generally with this Ordinance.”

But I cannot see how such provisions will be of assistance in resolving the question of whether or not expert evidence is required.  These provisions deal with the statutory duties of registered APs, RSEs and geotechnical engineers, and not with their duty of care in tort under common law.  They certainly do not lend assistance in ascertaining the professional duties of Mr Chan as AP for the Remedial/Monitoring Works (according to JMK) or for MRI Services under the Investigation Orders (according to Wellgo).

94.  Next, Mr Yeung submitted that in JMK’s pleadings in the fourth party proceedings, JMK did not allege that Wellgo was in breach of the common practice of AP, but rather they relied on specific breaches of duty which Mr Chan as AP should have regard to.[17]  Mr Yeung argued that since the particulars of negligence were well pleaded, there would not be any need for any expert evidence on liability.

95.  In my view, such argument misses the point because at this interlocutory stage of the proceedings, one cannot view the matter solely through of the prism of JMK’s pleaded case.  Wellgo as defendant is entitled to raise a defence on the basis that the alleged duties on which the claimed breaches are premised are outside the scope of duties envisaged under the common practice of AP.[18]  In my view, this points clearly to the need for expert evidence.

96.  In this respect, Mr Li SC draws assistance from Lee Chun Mui v Securicor Gurkha Services Limited & ors.[19]  In that case, the plaintiff was a security officer employed by the 1^st defendant.  The 1^st defendant’s offices were undergoing extensive refurbishment, and as the plaintiff went to relieve the receptionist during lunch break she lost her footing on a staircase, fell down and suffered injuries.  She sued the 1^st defendant and the contractor carrying out the works as the 2^nd defendant.  Both defendants joined the architect as the 2^nd third party.  The complaint against the architect was that it had not carried out its contractual duties properly and that it had been guilty of negligence. This was denied by the architect.

97.  DHCJ Carlson noted that “the substance of the third party proceedings is that the architect has not done its duty properly and what one sees is the sort of plea that one would expect to find in an action for professional negligence against an architect”.  He considered the third party proceedings required “detailed investigation of the professional obligations and duties of the architect ……”[20]  Whilst the learned judge accepted that (a) not every case of professional negligence would require the appearance of an expert, (b) much depended on the complexity of the issues, and (c) the ultimate question as to whether the defendant’s conduct conformed with the standard of reasonable care demanded by the law and not whether such conduct accorded with the practices of his profession or some part of it was one for the court, he acknowledged that in most cases in which professionals were alleged to have fallen below the required standard of skill and care the court would be assisted by expert evidence as to either or both of (i) matters of scientific or technical fact and (ii) the standards ordinarily observed in his profession.[21]  The learned judge held that the issues in (ii) above would be the sort of matters upon which a judge would need help in the third party proceedings before him:

“12. …… An expert will be required to consider the contractual duties of the architect; have regard to how the architect purported to perform those duties; carefully consider the allegations of negligence and then speak to what the recognised practices are within the profession and how a reasonably competent architect would be expected to perform the architect’s duties in this case, with particular regard to the management of this staircase in the course of the refurbishment.

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

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

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

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

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

98.  This is echoed in Jackson & Powell on Professional Liability where it is said that “save in those (relatively rare) cases in which the issue of breach of duty can properly be decided as a matter of ordinary common sense, expert evidence that the reasonably competent professional would not have committed the act or omission complained of will be essential for a finding of breach of duty and, it has been suggested, for a claim for professional negligence to be properly pleaded”.[22]

99.  Mr Li SC submitted that the factual matrix in the present case was even more complicated than that in Lee Chun Mui since there were many more involved professionals tasked to deal with various aspects in relation to the Building.  I agree with Mr Li SC that the issues on liability as between JMK and Wellgo will be aided by expert opinion on the common practice of AP, and it is not a case that one can simply look at the factual matrix and decide the various issues raised by JMK’s allegations of negligence against Mr Chan and Wellgo.

100.  But Mr Yeung contended otherwise, saying that Lee Chu Mui was distinguishable because the issues in the present case were simply and purely factual and would be answered by using one’s common sense.  It is argued that it should be clear to Mr Chan “as an ordinary reasonable man” the Cylinder of compressed air would be dangerous in a demolition site if not properly handled and left unattended for more than six years, and serious harm and damage would be caused to persons (including workers) at the demolition site should there be an explosion. Bearing in mind that Mr Chan knew the Building would eventually be demolished, Mr Yeung suggested that the above sufficiently demonstrated on plain common sense and without need for expert evidence that Mr Chan (who was tasked to carry out MRI Services) had failed to exercise reasonable care and skill in identifying, handling and reporting in the MI Reports or otherwise that debris (which must include the Cylinder) had been left at the Premises.  Mr Yeung submitted that to state in the 1^st MI Report that all tenancy fixtures and furniture together with fire damaged debris had been removed, to state in the MI Reports (including the Final MI Report) that the Premises were free of debris and that all debris had been removed, to remind JMK and Mr Kwan at the handover meeting on 29 December 2003 to pay attention to site safety without mention of the presence of the Cylinder sufficiently evidence breach of duty of care on the part of Mr Chan (Wellgo) so there was no need for expert evidence to assist the court to come to such conclusion.

101.  As explained in Jackson & Powell on Professional Liability, one of the exceptions where expert evidence is not required is when “it is not necessary to apply any particular professional expertise in order to decide whether the defendant has failed to exercise the skill and care expected of an ordinary member of his profession”.[23] The cases cited therein, eg Worboys v Acme Investments Ltd,[24] Royal Brompton Hospital NHS Trust v Hammond (No 7)[25] and Michael Hyde & Associates Ltd v JD Williams & Co Ltd, [26] are all case-specific and has no direct bearing on the present situation.  But the common factor amongst these cases is that the act or omission complained of is so glaringly obvious that expert evidence is not necessary to assist the judge.  I agree with Mr Li SC that the “common sense approach” can only be applied in the most straightforward cases of professional negligence. But short of a plain and obvious mistake, it is useful to bear in mind the salutary reminder by Judge Seymour QC in Royal Brompton Hospital NHS Trust that what the judge cannot do “…… is to substitute [his] own view for that of a professional person of the appropriate discipline on any matter in respect of which any special skill, training or expertise is required to make an informed assessment”.[27]  The court is not in a position to provide a view on any matter in respect of which any special skill, training or expertise is required to make an informed assessment.[28]

102.  I am not persuaded that the present case is one that can be resolved by the “common sense approach”. Rather, it falls within the category of cases contemplated by DHCJ Carlson in Lee Chun Mui where expert evidence would be useful.  The question here is not whether Mr Chan and/or Wellgo could have reported on the presence of or could have arranged to remove the BTM System (including the Cylinder), but whether Mr Chan (and hence Wellgo) owed JMK and/or other visitors or future visitors to the Premises a duty of care to do so and whether failure to do so amounted to breach of duty.

103.  In my view, Mr Yeung’s arguments in paragraph 100 above again suffer from the problem of simply looking at matter through the prism of JMK’s case without sufficiently taking into account the defence raised by Wellgo and the issue in dispute that needs to be resolved.  Given the complex factual matrix involving various professionals with different or overlapping tasks in different or overlapping periods, I am not persuaded that the dispute can be resolved simply by common sense or mere factual evidence, or that expert evidence from AP with experience in MRI Services on accepted standards/ practice within the profession is either unhelpful or mere personal opinion.

104.  Mr Yeung tried to suggest that the present factual matrix is simple because there is no evidence the FSD and BD were aware of the presence of the Cylinder when Wellgo handed over the Building to YSK2 in December 2003 for the Demolition Works.  Mr Yeung further suggested that although the FSD and BD were aware of the presence of the BTM System (including the Cylinder) in 1996-1997, thereafter the BD received sporadic MI Reports from Wellgo notifying that tenancy fixtures and furniture and fire damaged debris had been removed and carted away from the Premises and that the Premises had been cleared of debris. Mr Yeung therefore argued in the circumstances “it is logical to infer that the BD would come to the belief that the [Cylinder] had been cleared off the [Premises]”.

105.  But on the pleadings there is dispute as to whether the aforesaid inference as suggested by Mr Yeung should be drawn, and it is Wellgo’s case that the FSD and BD were aware of the presence of the BTM System (including the Cylinder) and they had not instructed Mr Chan/Wellgo to remove the same. Such dispute of fact needs to be resolved at trial. Mr Yeung has cited to me learned texts on the legal meaning of tenant fixtures and furniture,[29] but the question here appears not to be their strict legal meaning but their use and meaning as understood in the profession in the context of providing MRI Services.

106.  Mr Yeung also suggested that whether or not other professionals were negligent would not affect the question whether Wellgo was negligent, and in any event the apportionment of liability would be a matter for the court and not expert evidence.  Such submissions, in my view, miss the point that it is not the liability of the other professionals that is directly relevant, but given the involvement/roles of the other professionals, the scope of duties of Mr Chan (and hence Wellgo) must be determined in light of such factual matrix, which exercise (in my view) would be aided by not only lay evidence but also expert evidence as to the common practice of AP as to what ordinarily would come within the scope of an AP’s duties in carrying out MRI Services and/or in undertaking works such as the Remedial/Monitoring Works.

107.  Mr Yeung also suggested this was not a case where expert evidence would be required to explain special terms or terminology that ordinary persons would be incapable of understanding without the assistance of experts.  But in my view, this is not the only type of assistance from experts which will be beneficial to the judge.  As explained in paragraph 97 above, expert evidence is also relevant for describing the standards ordinarily observed in a relevant profession.

108.  It appears from the Master Decision there was concern as to whether there would be any relevant or admissible expert evidence. Insofar as Master Li was concerned that there might not be body of opinion of general and approved practice of AP carrying out MRI Services, I am not persuaded it has been shown to me to be the case.  In Jackson & Powell on Professional Liability,[30] Oliver J’s observations in Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [31] has been cited to show that even in those circumstances expert evidence may still be relevant:

“It is thought that this does not prevent the court from receiving assistance from expert witnesses in cases where there is no general approved practice or specific school of thought by reference to which the defendant’s conduct can either be justified or condemned as negligent. In such cases, the court may still be assisted by the evidence of an expert witness as to how, in his experience and opinion, an ordinarily competent member of his profession would have acted in the position of the defendant. This may be quite different to the manner in which he personally would have acted.”

As explained in paragraph 81 above, I agree with Mr Li SC that if expert evidence is otherwise needed and the experts proposed by Wellgo are unsuitable, it does not mean the court will therefore shut out expert evidence altogether. It is up to the parties, upon any leave being granted to adduce expert evidence, to adduce relevant and admissible expert evidence from an appropriate expert.

109.  It has been suggested that the common practice of an AP in Hong Kong has no relevance because the situation Mr Chan (and hence Wellgo) found himself in was unique. Mr Li SC countered such argument by saying that unless one knew what the common practice of an AP in Hong Kong was, it would not be possible to say whether the services provided by Mr Chan as AP were uncommon or unique, but even if there were no general and approved practice in the particular works undertaken by Mr Chan the court might well still be “assisted by the evidence of an expert witness as to how, in his experience and opinion, an ordinarily competent member of his profession would have acted in the position of the defendant”.[32]

110.  But I am not persuaded that the situation Mr Chan found himself in and/or the Accident against the backdrop of the aftermath of the Fire is so unique that the common practice of AP is irrelevant or there is no such common practice.  The particular circumstances of each case are necessarily case-specific or fact-sensitive, but it does not mean there is therefore no common practice/standard of the care and skill expected of an ordinarily competent professional in the relevant field that may be applicable to such situation. In my view, the scope of duty and the standard of acceptable practice on the part of Mr Chan cannot be dictated solely by the facts of the present case without any consideration of the common practice of AP which, as Mr Li SC submitted, may help set a benchmark to assist the court in determining his scope of duties.

111.  It has been suggested that the present situation is unique because Mr Chan (and hence Wellgo) knew of the presence of the BTM System (including the Cylinder) and did nothing when he could have reported and/or arranged to remove the same. As explained in paragraph 102 above, the question here is not whether they could have reported on the presence of or could have arranged to remove the BTM System (including the Cylinder), but whether Mr Chan (and hence Wellgo) owes JMK and/or other visitors or future visitors to the Premises a duty of care to do so and whether failure to do so amounts to breach of duty. I am not convinced that Mr Yeung’s arguments detract from the need to have expert evidence.  In fact, these are the very matters which the judge may need to consider with the assistance of expert evidence, especially when JMK has chosen to premise their claim against Wellgo on professional negligence. In my view, the disputed issues in this case cannot be resolved simply as a matter of finding of fact or decision on law.

112.  Mr Yeung has also invited the court to note there has been no application by any party in the third party proceedings to adduce expert evidence on the common practice of AP.  It is true that when Wellgo was first joined in the present action as the 1^st third party they never made any similar application for adducing expert evidence.  But the third party proceedings against Wellgo have been discontinued before the present action has been set down for trial, so one cannot be sure whether a similar application would not have been brought upon more mature consideration had those proceedings not been discontinued.  As regards other parties in the third party proceedings, there is nothing before this court to explain why they did not seek expert evidence, but one must bear in mind JMK and Mr Kwan were engaged in works preparatory to the Demolition Works or  the Demolition Works themselves.

113.  As explained above, the present action has not been set down for trial, and there is no order that debars any further expert evidence. Whilst expeditious progress of litigation must be a relevant consideration, just resolution of the dispute between the parties on the basis of necessary and relevant evidence that is of probative value is equally important. Wellgo has now pleaded the fullness of their case in the fourth party proceedings, and both parties are at liberty to support and refute the claim as crystallised in the pleadings by proper evidence at trial, and in my view such evidence includes expert evidence.

114.  In the circumstances, I find myself in disagreement with Master Li, and consider that expert evidence as to the common practice of AP with interest in monitoring, inspection and reporting works and/or in building orders requiring remedial and/or monitoring works is relevant, necessary and of probative value in the fourth party proceedings.

XI. CONCLUSION

115.  I therefore allow the appeal by setting aside the Order, and grant leave for JMK and Wellgo to adduce expert evidence on liability at the trial of the fourth party proceedings by one expert from each party in respect of the common practice of AP with interest in monitoring, inspection and reporting works and/or building orders requiring remedial and/or monitoring works. Since JMK has not nominated any expert as yet, it is impossible for this court to now grant case management directions for obtaining the relevant expert report.

116.  I hereby direct that Wellgo shall within 14 days from today attend before the listing clerk to fix a directions hearing before the PI Master with half hour reserved (“Directions Hearing”), and that paragraphs 2-7 of the Summons be adjourned to be heard at such hearing. For the purpose of the Directions Hearing:

(a) within 14 days from today, JMK and Wellgo shall respectively nominate their expert and serve on each other the name of their nominated expert with his/her curriculum vitae;

(b) no later than 7 days before the Directions Hearing, JMK and Wellgo shall jointly submit to the PI Master a joint statement as to which of the Expert Issues are agreed or agreed as modified, which of the Expert Issues are disputed (together with their own respective formulations of the disputed Expert Issues), and any further expert issues that need to be addressed by the experts in their expert report;

(c) JMK and Wellgo shall be prepared to address on the best mode for obtaining the expert report save and except that JMK and Wellgo shall send joint instructions based on a common set of documents and a common set of agreed/directed expert issues to the experts for such purpose.

117.  In respect of (b) above, I have carefully considered Mr Yeung’s written submissions on each of the Expert Issues, and find they do not dissuade me from my conclusion that expert evidence is required. On such basis, these matters are best left to be dealt with by the PI Master at the Directions Hearing when considering the common set of appropriate expert issues to be put to the experts.

118.  In respect of (c) above, bearing in the mind that the Building has been demolished and no site inspection can now be done, any expert report can only be prepared on the basis of the pleadings, witness statements and documentary material. It is therefore questionable whether the cumbersome approach of provisional reports, without prejudice meeting and final reports as proposed in the Summons is required. Consideration should be given as to whether the experts can simply be asked to review the common set of documents and compile a joint report setting out their agreements and disagreements on the common set of agreed/directed expert issues.

119.  There is no reason why costs should not follow event.  I therefore grant a costs order nisi to the effect that costs of the paragraph 1 of the Summons and of the Appeal be paid by JMK to Wellgo to be taxed if not agreed, and costs of paragraphs 2-7 of the Summons be reserved for consideration and, where appropriate, determination by the PI Master.

XII. POSTSCRIPT

120.  The court file reveals that on 27 March 2013 Wellgo issued a notice against JMK claiming contribution or indemnity under Order 16 rule 8 of the RHC.  In the fourth party proceedings, JMK stands as plaintiff and Wellgo stands as defendant. It is not easy to understand why a contribution notice that is normally applicable between co-defendants is applicable to the situation of JMK and Wellgo as they are plainly not co-defendants within the fourth party proceedings.  Careful consideration should be given as to whether it is more appropriate for Wellgo to counterclaim against JMK for contribution and indemnity and to properly plead the basis of such counterclaim.

121.  The court file also reveals that on 27 March 2013 Wellgo as the fourth party issued a notice against Mr Kwan as the 4^th third party claiming contribution or indemnity under Order 16 rule 8 of the RHC. This is even more difficult to understand.  Mr Kwan is a party to the third party proceedings and not party to the fourth party proceedings at all. Wellgo is a party to the fourth party proceedings and not a party to the third party proceedings at all.  In short, Wellgo and Mr Kwan are parties to different proceedings in the present action.  One therefore wonders why a contribution notice normally issued as between co-defendants within the same set of proceedings is applicable as between Wellgo and Mr Kwan.  Careful consideration should be given as to whether leave should be sought to issue fifth party proceedings so that (if leave is granted) Wellgo’s claim against Mr Kwan is properly pleaded.

122.  These matters are not before me at the Hearing, and I direct that these matters be addressed at the Directions Hearing before the PI Master.  To facilitate this, I further direct that (a) Wellgo shall serve notice of the Directions Hearing and copy of this Decision on Mr Kwan, and (b) Mr Kwan shall attend the Directions Hearing to address on the contribution notice referred to in the above paragraph.

123.  In any event, the aforesaid contribution notices by Wellgo against JMK and Mr Kwan are unsatisfactory in that it fails to give any clue as to the basis of Wellgo’s claims against JMK and Mr Kwan for contribution and/or indemnity and, more significantly, no directions have been sought to elicit what is their defence to such claims.  The PI Master should look into this at the Directions Hearing, and ensure that these procedural matters should be attended to as expeditiously as possible bearing in mind the situation of the plaintiff who has suffered a grave injury and is yet to resolve the issue of liability for the Accident.