SO KAI HAU v. YSK2 ENGINEERING CO LTD AND OTHERS

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. PLAINTIFF’S CLAIM

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 3^rd 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 wastes at the demolition site.  On 28 June 2004, a bromotrifluoro-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 16^th floor of an adjacent building and ricocheted downwards onto 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 servants and agents in failing to discover, properly handle and/or remove the Cylinder prior to commencement of the Demolition Works.

II. DEFENDANT’S DEFENCE

3.  The Defendant denies liability.  I shall focus on the lines of defence in the Amended Defence which are relevant for the present purpose.

4.  The Defendant claims that pursuant to various Investigation Orders issued by the Building Authority/Department on/about 5 December 1996 (“Investigation Orders”) which required the then owners of the Building (“Former Owners”) to carry out certain remedial building works to some structural and non-structural parts of the Building that were rendered defective by the Fire, and to investigate and monitor inter alia the structural stability and adequacy of certain structural elements as well as the dilapidation/defects of the Building (“Monitoring Works”), the Former Owners appointed the 1^st Third Party Wellgo Archdecor Consultancy Ltd (“Wellgo”) to be the Authorised Person (“AP”) and the Intended 3^rd Third Party Mr Joseph M K Chow (“Chow”) to be the registered structural engineer (“RSE”) of the Monitoring Works.

5.  The Defendant further claims that Wellgo and Chow “jointly carried out regular monitoring inspections of the Building from about 1997 to 23^rd August 2003 [“Monitoring Inspections”].  They had not at any time during the [Monitoring Inspections] or otherwise discovered and/or reported on the presence of the Cylinder in the Building, whether on the [Premises] or otherwise.  To the contrary, they had in their Monitoring Inspection Reports and in particular in their final such report dated 23^rd August 2003, reported that the 3^rd Floor was free from debris and that all debris on the 3^rd Floor had been cleared away, and that there was no potentially hazardous material on the 3^rd Floor”.

6.  The Amended Defence further avers that Chow was the RSE for the Demolition Works, but at the hearing before me on 15 September 2010 (“Hearing”) Ms Lau, counsel for the Defendant, conceded that such averment was erroneous in that the RSE of the Demolition Works was Ms Helen Kwan and not Chow.

III. THIRD PARTY PROCEEDINGS

7.  On 24 November 2009, the Defendant issued a Third Party Notice (“TP Notice”) and filed a Third Party Statement of Claim (“TP Claim”) against Wellgo and the 2^nd Third Party JMK Consulting Engineers Limited (“JMK”).  The Defendant claims that prior to carrying out the Demolition Works and for the purpose of redeveloping the Building, JMK carried out an appraisal and survey of the Building and its structural elements on commission from the Owner, and prepared the Engineers’ Appraisal Report for Demolition of Existing Building of September 2003 (“Appraisal Report”).

IV. SUMMONS

8.  On 24 May 2010, the Defendant issued a summons for the following reliefs (“Summons”) and filed the 2^nd affirmation of its director Wong Kam Chuen Thomas (“Wong”) in support of such Summons:

(a) leave for the Defendant to amend the TP Notice to join Chow and Mr Daniel Kwan Pok Man (“Kwan”) respectively as the 3^rd and 4^th Third Parties as per the draft amended TP Notice annexed to the Summons (“Draft Notice”);

(b) leave for the Defendant to amend the TP Statement of Claim as per the draft amended TP Statement of Claim annexed to the Summons (“Draft Claim”).

9.  The Draft Notice and Draft Claim aver that at all material times:

(a) Chow was the RSE of the Monitoring Works;

(b) the Monitoring Inspections were jointly done by Mr David Chan (“Chan”) and Chow respectively as the AP and RSE of the Monitoring Works;

(c) Wellgo and JMK then prepared the Monitoring Inspection Reports, and the 40^th (final) Monitoring Inspection Report dated 23 August 2003 (“Final Report”) records that the Premises were free from debris and that all debris had been cleared away.

The Defendant gave particulars of inter alia the alleged acts of negligence on the part of Chow as the RSE of the Monitoring Works (“Particulars”) in:

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

(2) Failing to discover the presence of the Cylinder on the Premises during the [Monitoring Inspections] or otherwise;

(3) Failing to make due enquires with the Fire Services Department and/or the Labour Department about the presence of the Cylinder on the Premises during the term of his appointment as the RSE of the [Monitoring Works];

(4) Failing to report the presence of the Cylinder on the Premises;

(5) Failing to cause the Cylinder to be removed from the Premises prior to causing or permitting the Owner to hand over the Building to the Defendant on 29^th December 2003 for the Demolition Works;

(6) Failing to warn or inform the Defendant of the presence of the Cylinder on the Premises;

(7) Contrary to fact, falsely representing to the Defendant through the aforesaid monthly Monitoring Inspection Reports and in particular the [Final Report] that the Premises were free of debris, that all debris on the Premises had been cleared away, and that there was no potentially hazardous material on the Premises; ……”

10.  Although the Draft Notice and the Draft Claim aver that Chow was appointed by the Owner as the RSE of the Demolition Works and that he was at all material times an occupier of the Premises, Ms Lau conceded that such averments were incorrect and that the Defendant would not rely on any breach of statutory duties and/or breach of the common duty of care as occupier on the part of Chow (“Abandoned Pleas”) at the Hearing.

11.  Kwan was prepared to consent to an order to be made in respect of the Summons.  So on 13 August 2010, by way of paper directions, I granted leave for the Defendant to join Kwan as a further third party and excused his solicitors’ attendance at the Hearing.  Subsequently, upon Wellgo and JMK adopting a neutral stance to the Summons, I also dispensed with their solicitors’ attendance at the Hearing.

12.  At the Hearing, Mr Lau, solicitor for the Plaintiff, confirmed that the Plaintiff would adopt a neutral stance vis-a-vis the Summons.  He declined to address the court on the Summons and was excused from further attendance at the Hearing.  Thus, Chow is the sole remaining party who opposes the Summons.  He has filed his affirmation in opposition on 2 July 2010.

V. UNDISPUTED FACTS

13.  The 36^th Monitoring Inspection Report of 27 February 2003 (“36^th Report”) prepared and signed by Chan of Wellgo and Mr Ng Hon Keung (“Ng”) of Joseph Chow & Partners Limited (“JCP”) respectively as “AP and RSE (acting)” of the Monitoring Works notes that the corresponding Monitoring Inspection by Mr Thomas Choy (“Choy”) of JMK and Chan of Wellgo (whole building) took place on 21 February 2003, and goes on to state inter alia that:

“8.0	3rd Floor down to Ground Floor
8.1	Premises free from debris	NOTE
……
	Debris should be cleared away.	SEE PARA 16.2”

14.  The Final Report prepared and signed by Chan of Wellgo as the AP notes that the corresponding Monitoring Inspection by Choy of JMK and Chan of Wellgo (whole building) took place on 23 August 2003, and goes on to state inter alia that:

“8.0	3rd Floor down to Ground Floor
8.1	Premises free from debris	NOTE
……
	Debris all cleared away.	NOTE”

15.  The Appraisal Report of September 2003 prepared by JMK as the engineering consultant to the Owner sets out the engineering assessment for the demolition of the Building, and states inter alia that:

“ 1.4 Investigation of the [Building] and site conditions has been performed by [JMK], the Structural and Geotechnical Engineering Consultant of the Redevelopment. Structural records of the [Building] and nearby structures were obtained from the Buildings Department. Site inspection for the [Building] and surrounding conditions has been conducted for the purpose of this report.

1.5 There was a tragic fire in [the Building] in Nov. 1996. A regular monthly monitoring inspection has been carried out by [Wellgo] as authorized person and [JMK] as RSE. The previous inspection reports have included the AP&RSE observations on any further deterioration after the fire accident and associated remedial works. The final report dated 23^rd August 2003 is attached in Appendix H.”

16.  The Engineer’s Supplementary Assessment Report of November 2003 (“Supplementary Report”) prepared by JMK summarises the effects of the Fire on the existing structures of the Building, provides supplementary information to justify the structural integrity of the Building, and states inter alia as follows:

“ 1.4 A regular monthly monitoring inspection has been carried out by [Wellgo] as AP and [JMK] as RSE. The previous inspection reports prepared by the AP and RSE have included their observations on the condition survey and monitoring of further deterioration after the fire accident and associated remedial works.”

17.  The letter from Chan to the Buildings Department dated 31 December 2003 states that “[unless] otherwise required, THIS LETTER shall demarcate the cessation of [Chan] as the monitoring A.P. and [Chow] as the monitoring AP/RSE for the captioned Building”.

VI. DEFENDANT’S CASE IN RESPECT OF THE SUMMONS

18.  Wong claims that JMK’s Defence in the third party proceedings pleads that at the material time Chow as the appointed RSE for the Monitoring Works was employed by JCP and not JMK, which allegation appears to be inconsistent with information contained in the Monitoring Inspection Reports and/or other documents which were prepared by Wellgo and/or JMK and provided during the Monitoring Works.  To avoid complication and dispute as to the identity of Chow’s employer and thus who should be vicariously liable for his acts and/or omissions, the Defendant’s counsel has advised that Chow should be joined as a further third party in his personal capacity as the RSE of the Monitoring Works.

19.  Wong further claims that if the Defendant is liable to the Plaintiff for the Accident, Chow should also be liable to the Plaintiff for his acts of negligence set out in the Particulars in the Draft Notice and the Draft Claim, so the Defendant is entitled to claim against him for contribution or indemnity in respect of the Plaintiff’s claim.

VII. CHOW’S CASE IN RESPECT OF THE SUMMONS

20.  Chow claims that he is a civil and structural engineer, the chairman of JCP and an independent non-executive chairman of JMK.  He recalls that after the Fire he was engaged by the Former Owners to investigate the structural stability of the Building pursuant to the Investigation Orders.  The Former Owners accepted (and the Buildings Department approved) his recommendations of temporary propping to various parts of the Building and of regular inspections to monitor the structural safety of the Building.

21.  Chow says that under section 4 of the Buildings Ordinance Cap.123 (“Ordinance”), every person for whom building works are to be carried out is required to appoint an AP as the coordinator of such building works, and if so required a RSE for the structural elements of such building works. Chan and Chow were therefore respectively appointed as the AP and RSE of the Monitoring Works.  

22.  But Chow claims that as the RSE of the Monitoring Works he did not owe any duty towards the Plaintiff (who was engaged in the subsequent Demolition Works) to discover and report on the Cylinder because the presence or absence of such Cylinder at the Premises had no impact on the structural stability of the Building, and the removal of such Cylinder or otherwise would not form any part of the Monitoring Works let alone constitute any structural element in respect of such works for which Chow was appointed the RSE.  Chow argues that the Defendant is mistaken as to the scope of statutory duties imposed on a RSE, and fails to demonstrate a prima facie case in respect of its claim against him for contribution or indemnity in relation to the Plaintiff’s claim.

23.  Still further, Chow points out that he did not personally carry out any Monitoring Inspection.  As shown in the 36^th and Final Reports, such inspections were carried out by Choy of JMK and Chan of Wellgo.  Chow also did not personally sign the 36^th and Final Reports. Chan as the AP of the Monitoring Works signed both reports, and the 36^th Report was also signed by Ng who was at that time acting in Chow’s stead as the RSE for the Monitoring Works.  Chow claims that since he was not personally involved in any way, he did not have any responsibility in respect of the contents of the 36^th and Final Reports.

24.  Chow also cannot understand why JMK’s denial of being Chow’s employer is inconsistent with information in various documents provided under cover of the letter dated 3 June 2010 from the Defendant’s solicitors, or why such pleaded denial justifies the joinder of Chow as a further third party to the present proceedings. Chow asks for dismissal of the Summons.

VIII. PROCEDURE FOR COMMENCING THIRD PARTY PROCEEDINGS

25.  Order 16 rule 1 of the Rules of the High Court (“RHC”) provides inter alia that:

“Where in any action a defendant who has given notice of intention of defend –

(a) claims against a person not already a party to the action any contribution or indemnity; or ……

then, subject to paragraph (2), the defendant may issue a [third party notice] containing a statement of the nature of the claim made against him and, as the case may be, either the nature and grounds of the claim made by him or of the question or issue required to be determined.”

26.  Order 16 rule 2(1) of the RHC provides that an application for leave to issue a third party notice may be made ex parte but the court may direct a summons for leave to be issued.  Where the application is made ex parte, the intended third party will obviously be unable to address the court on whether leave should be granted or not.  But according to Hong Kong Civil Procedure 2010 Vol.1 para.16/2/4 at p.329, even if the court directs a summons for leave to issue, the purpose is to let the plaintiff (rather than the intended third party) to be heard on whether any prejudice has been occasioned by delay.

27.  Order 16 rule 3 of the RHC contains provisions for the issue, service and acknowledgment of service of any third party notice.  The third party should give notice of intention to defend if he wishes either to dispute his liability to the defendant or the defendant’s liability to the plaintiff.

28.  Under Order 16 rule 4(1) of the RHC, “[if] the third party gives notice of intention to defend, the defendant who issued the third party notice must, by summons to be served on all other parties to the action, apply to the Court for directions”.  Order 16 rule 4(3) of the RHC provides inter alia that:

“On an application for directions under this rule the Court may –

(a) if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as to the nature of the case may require to be entered against the third party in favour of the defendant; or

(b) order any claim, question or issued stated in the third party notice to be tried in such manner as the Court may direct; or

(c) dismiss the application and terminate the proceedings on the third party notice;

and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant.”

Since the hearing of any summons for third party directions is an inter partes one that involves all parties to the action, the third party is naturally entitled to address the court on the above matters.

IX. LOCUS STANDI

29.  Ms Lau by her written submissions suggests that Chow’s objections to the intended third party proceedings against him are premature because he has no locus standi to be heard before (a) the issuance of any third party notice against him and/or (b) his acknowledgment of service of any such third party notice.

30.  Here the Defendant has already issued the TP Notice against Wellgo and JMK, so it has not followed the conventional approach of first applying “for leave to issue a third party notice” against Chow.  Instead, it applies for leave to amend the TP Notice to join Chow as a further third party.  Since the inter partes Summons calls upon Chow to appear at the Hearing and to address the court on the exercise of discretion for granting or declining leave to join him as a further third party or otherwise, it lies ill in the mouth for the Defendant to say that Chow is not entitled to be heard on such issue.

31.  Again, the Defendant has not followed the conventional approach of waiting for leave to amend the TP Notice to join Chow as a further third party and for Chow to give notice of intention to defend before issuing an inter partes summons for third party directions to file and serve any third party statement of claim against Chow.  Instead, the Defendant has chosen to apply under the Summons for leave to amend the TP Statement of Claim to include its third party claim against Chow at the same time as it applies for leave to amend the TP Notice to commence its third party claim against Chow.

32.  As explained above, if the Defendant is allowed to join Chow as a further third party, Chow would have been entitled under the conventional approach (if so advised) to oppose any summons for third party directions and/or to resist the Defendant’s application for leave to file and serve third party statement of claim against him (whether by amendment of the TP Statement of Claim or otherwise).  So at the Hearing, Ms Lau confirmed that the Defendant would not argue Chow had no locus standi to oppose the Summons.

X. CONVENTIONAL APPROACH OR NOT?

33.  The next question is whether, procedurally speaking, the court should entertain the Summons which at the same time seeks leave (a) to amend the TP Notice to commence third party proceedings against inter alia Chow and (b) to amend the TP Statement of Claim to plead inter alia its third party claim against Chow, or whether the Defendant should be required to follow the conventional approach of first applying for leave to amend the TP Notice to commence third party proceedings against inter alia Chow. The latter approach means that Chow would not have been given any opportunity to address the court on such issue. Since the former approach by the inter partes Summons enables Chow to do so, he has not suffered any prejudice in this respect.

34.  It is plain from Chow’s affirmation that if the court grants leave for the Defendant to commence its third party claim against him, he will defend such claim. In the circumstances, had the Defendant followed the conventional approach and successfully applied for leave to amend the TP Notice to commence its third party claim against Chow, it would have been a foregone conclusion that Chow would have given notice of intention to defend. Bearing in mind that (a) the pleas in support of the Defendant’s claim for contribution or indemnity against Chow in the Draft Notice are identical to those in the Draft Claim and (b) the Summons allows Chow to oppose the Defendant’s application for leave to amend the TP Statement of Claim (which application is equivalent to a summons for third party directions to file and serve third party statement of claim against Chow), Chow will have the same opportunity under the Summons to challenge the Defendant’s application for leave under Order 16 rule 4 of the RHC as he would have had under the conventional approach.  I am therefore of the view that no procedural injustice is caused to Chow by the Defendant adopting the approach in the Summons.  Instead, Chow has been given an additional opportunity normally not available under the conventional approach to challenge the proposed amendment to the TP Notice.

XI. APPLICATION TO AMEND THE TP NOTICE VIS-À-VIS CHOW

35.  In respect of the Defendant’s application for leave to amend the TP Notice, the court has a general discretion under O16 rule 2 of the RHC whether or not to allow a third party notice to issue.  The practice is that if a prima facie case is made out which will bring the matter within any paragraph of rule 1(1), leave will be granted to issue the notice, and the court will not, in granting leave, consider the merits of the claim but will leave these matters and objections by the plaintiff to be dealt with upon the application for directions under Order 16 rule 4 of the RHC (see Hong Kong Civil Procedure 2010 Vol.1 para.16/2/5 at p.330).

36.  In Carshore v North Eastern Railway Company (1885) 29 Ch D 344, Cotton LJ said as follows at p.346:

“The right to serve notice on a third party is confined by Order XVI., rule 48, to a third party against whom a defendant claims to be entitled to contribution or indemnity. It would be wrong for us on this application to decide whether the Defendants in this case have any right to be indemnified by the person whom they have served, and I do not decide anything on that point. The only question before us is, whether they claim indemnity within the meaning of the rule. They certainly do claim indemnity in their notice. I cannot say that the claim is frivolous, considering the cases which have been cited before us. If it could be shewn that their claim, if substantiated, was not one for indemnity but something else, it would have been different; but this is a claim for indemnity within the meaning of the rule.” (my emphasis)

Fry LJ also said as follows at p.347:

“I am of the same opinion. Whether the claim of the Defendants against Farlow is well founded or not, it is a claim for indemnity. Speller v. Bristol Steam Navigation Company was pressed on us; but in that case the Court saw that the claim which the defendant had on the third party was not a claim for indemnity. That was the ground of the decision. If I had thought that in the present case the Defendants’ claim against Farlow was frivolous I might have come to a different conclusion, but I do not think that it is.” (my emphasis)

37.  In the Draft Notice, the Defendant has pleaded a claim against Chow for contribution or indemnity in respect of the Plaintiff’s claim based on the alleged negligence on the part of of Chow as the RSE for the Monitoring Works (especially in carrying out the Monitoring Inspections and in rendering the Monitoring Inspection Reports) for failing to discover and/or report on the presence of the Cylinder at the Premises.

38.  In my view, assuming that the Defendant’s claim against Chow can be substantiated, it is plain that the Defendant’s third party claim against Chow in the Draft Notice is one for contribution or indemnity in respect of the Plaintiff’s claim within the meaning of Order 16 rule 1(1)(a) of the RHC.

39.  Mr Ip, solicitor for Chow, argues that the Defendant has not shown a prima facie case or alternatively its claim against Chow is frivolous.  However, in attempting to make good such argument, Mr Ip descends into the factual merits of the Defendant’s allegations to contend that (a) the Defendant’s averments are not well-founded and/or (b) on the facts the Defendant has no right to be indemnified by Chow.  But as explained in Carshore, these considerations are inappropriate at the stage of determining whether the court should exercise its general discretion under Order 16 rule 2 of the RHC to grant or decline leave to issue third party notice (or, as in the present proceedings, to amend the TP Notice for commencement of the Defendant’s third party claim) against Chow.

40.  Mr Ip submits that the Defendant should not be allowed to commence third party proceedings “where the result will be to embarrass or delay the plaintiff …… nor where the questions at issue cannot be completely disposed of in the action” (see Hong Kong Civil Procedure 2010 Vol.1 para.16/2/5 at p.330).  However, such passage in Hong Kong Civil Procedure 2010 goes on to say that “[unless] the prejudice to the plaintiff is obviously great, when issue of a summons will be ordered these matters will be considered on the application for directions under r.4, not on the application for leave to issue”.  These matters will be considered in greater detail below, but suffice to state here that I am not satisfied the Plaintiff will suffer such prejudice as to justify refusal of leave for the Defendant to commence third party proceedings against Chow.

41.  In my view, had the Defendant adopted the conventional approach as aforesaid, I would have had no hesitation in granting leave to the Defendant to amend the TP Notice so as to commence third party proceedings against Chow.  But the Defendant has not followed the conventional approach. In the circumstances, I need to go on to consider whether leave should be granted for the Defendant to amend the TP Statement of Claim.  Should I decline to do so (which will necessarily put an end to any third party proceedings against Chow), any leave for amending the TP Notice to commence third party proceedings against Chow will become redundant.  So I now turn to the Defendant’s application for leave to amend the TP Statement of Claim.

XII. APPLICATION TO AMEND THE TP STATEMENT OF CLAIM VIS-À-VIS CHOW

42.  In respect of the Defendant’s application for leave to amend the TP Statement of Claim under Order 16 rule 4 of the RHC, “[the] court must be satisfied that there is a question proper to be tried ……  If the court is so “satisfied”, and the third party denies liability, the directions will be for trial ……” (see Hong Kong Civil Procedure 2010 Vol.1 para.16/4/4 at p.333).

43.  Mr Ip accepts that the purpose of third party proceedings is two-fold: (a) to prevent multiplicity of actions and to enable the court to determine disputes between all parties to them in one action, and (b) to prevent the same question from being tried twice with possibly different results (see also Coles v Civil Service Supply Association (1884) 26 Ch D 529).  The relevant principles are set out in Hong Kong Civil Procedure 2010 Vol.1 as follows:

“The court may refuse to give directions …… if the claim is outside r.1(1); or if the case is one of too great complication or difficulty to be properly tried with the original action ……; or if the plaintiff will be embarrassed, or if the matters cannot be decided in one trial …… if a prima facie case under r.1(1)(a) is made out, or if the case is clearly such as is contemplated by (b) or (c) it will be for the plaintiff or third party to show some special circumstances why the direction should not be given (see para.16/4/7 at p.333)

“In giving directions, the court will have in mind the interests of all the parties. Care will be taken to prevent persons who have been made third parties by the defendant, and who would not be necessary parties to the action as regards the plaintiff, from being subjected to injustice; but care will also be taken that the plaintiff is not subjected to injustice by allowing such third parties to serve defences, etc., as if they had been made defendants by the plaintiff, and so to embarrass the plaintiff and add to his expenses ……” (see para.16/4/8 at p.334)

44.  I now turn to the Defendant’s third party claim against Chow as pleaded in the Draft Claim. Ms Lau confirms that the Defendant’s claim is essentially premised on breach of the common law duty of care on the part of Chow as the RSE of the Monitoring Works, and the alleged acts of negligence are particularised in the Draft Notice and the Draft Claim (see paragraph 9 above). In the circumstances, there is no need for me to consider the arguments in Mr Ip’s written submissions concerning any statutory duties and/or any common duty of care as occupier.

(a) Chow’s arguments

45.  Mr Ip submits as follows :

(a) although at the material time Chow was the RSE of the Monitoring Works, the scope of statutory duties imposed upon him did not extend to non-structural elements (such as discovering the Cylinder amongst the debris at the Premises and causing it to be removed), so he did not owe any duty of care towards the Plaintiff;

(b) the Defendant cannot argue that Chow’s duties should cover the discovery and/or removal of the Cylinder on the basis that the 36^th and Final Reports also deal with non-structural matters because (i) the structural and non-structural elements in such report fell within the respective scope of duties of the AP (ie Chan) and RSE (ie Chow), and (ii) the presence or absence of the Cylinder at the Premises being a non-structural matter was outside the scope of duties of Chow as the RSE of the Monitoring Works;

(c) since Chow (i) did not owe any statutory duty in relation to non-structural matters, (ii) did not personally carry out the Monitoring Inspections and/or personally sign the 36^th and Final Reports, and (iii) was not vicariously liable for any carelessness of any servant or agent, he would not be responsible for the contents of the 36^th and Final Reports, and did not owe any common law duty of care or assume any non-delegable duty of care to the Plaintiff;

(d) even if Chow owed any common law duty of care to the Defendant and was in breach of such duty, the Accident was not caused by his acts of negligence because the Defendant as a registered specialist demolition contractor should not have turned a blind eye to the true state of the Premises or just relied on the statements in the 36^th and Final Reports to the effect that the Premises were free from debris, especially when the Defendant could have checked the state of the site after it took possession of the Building.

46.  Mr Ip further argues that even if the Defendant had failed to allow for any costs of removal of debris from the Premises in reliance of the statements in the 36^th and Final Reports that the Premises were free from debris, the author(s) of such reports would only have been liable to the Defendant for extra expenses for the removal of debris from the site, which is not the same damage for which the Defendant now attempts to claim contribution or indemnity against Chow.

(b) Defendant’s arguments

47.  Ms Lau argues that the fact Chow did not personally carry out the Monitoring Inspections or personally sign the Monitoring Inspection Reports cannot exonerate him because as the RSE for the Monitoring Works Chow (and not his company or firm) owed a personal non-delegable duty to fulfil that office.  He cannot escape liability by delegating the performance of such personal duty to another (eg letting Choy carry out the Monitoring Inspections and Ng sign the 36^th Report) if the duties he undertook were performed negligently.

48.  Ms Lau further submits that it is unclear at this stage what was the precise division of labour between Chan and Chow respectively as the AP and RSE of the Monitoring Works, but prima facie Chow’s scope of duties went beyond the bare essentials of what a person for whom building works are to be carried out is required by section 4 of the Ordinance to engage a RSE to do, ie to deal with the structural elements of such building works.  Ms Lau refers to the 36^th and Final Reports, which cover not only the structural elements of the Building but also other non-structural problems (such as water leakage, guard against mosquito breeding etc), but which do not specify the parts that were Chow’s responsibility and those that were Chan’s.

49.  Ms Lau says there is a genuine dispute between the parties as to the true extent of the scope of duties actually undertaken by Chow in relation to the inspection and monitoring of the Building during the period from 1997 to 2003, which she submits is a proper question to be tried and resolved at trial. She argues that the court has to examine the true extent of the duties undertaken by Chow as well as the circumstances in which and the purpose for which he came to do so in order to determine the true extent of the duty of care he owed to the Plaintiff and/or the Defendant, and whether he was negligent in the manner as paticularised in the Draft Notice and the Draft Claim.  For example, to determine whether Chow should be held liable for damage, if any, as a result of reliance on the representations in the 36^th and Final Reports that the Premises were free from debris and that all debris had been cleared away, Ms Lau submits that the court has to examine the circumstances under which and the purpose for which such reports and in particular such statements therein were made to ascertain if there was the requisite proximity between Chow and the Plaintiff and/or the Defendant such as to place Chow under a duty of care towards them.

(c) Tort of negligence

50.  It is trite that there are 5 essential requirements to the tort of negligence :

(a) the existence in law of a duty of care situation;

(b) the relevant duty is owed to the claimant;

(c) breach of the duty of care by the defendant;

(d) the defendant’s careless conduct caused the damage;

(e) the particular damage to the particular claimant is not so unforeseeable as to be too remote.

51.  Since the main focus of the debate between the Defendant and Chow is over the existence or otherwise of a common duty of care situation, I turn to such issue first.

(d) Duty of care

52.  The law of negligence has evolved since the neighbour principle in Donoghue v Stevenson [1932] AC 562, the two-stage test in Anns v Merton London Borough [1978] AC 728 and the re-interpretation of the Anns approach in Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175.  It is now possible to identify three general approaches to the determination of the common law duty of care:

(a) the tripartite test in Caparo Industries plc v Dickman & ors [1990] 1 All ER 568 which asks whether the damage is foreseeable, whether there is sufficient proximity between the parties, and whether the imposition of a duty of care will be fair, just and reasonable;

(b) the test which asks whether the defendant has “assumed responsibility” to the claimant with regard to the matter from which the damage arises;

(c) the “incremental test” whereby the law should develop novel categories of negligence incrementally and by analogy with prescribed categories.

(e) Caparo test

53.  According to Clerk & Lindsell on Torts 19^th ed (2006) paras.8-16 at pp.391-392, the first criterion under the Caparo test of reasonable foreseeability focuses on the knowledge that someone in the defendant’s position will be expected to possess.  For the risk of harm to be foreseeable, the chance of it materialising must be “real and substantial” and not “so fantastic or farfetched that no reasonable man would have paid any attention to it” (see The Wagon Mound (No 2) [1967] AC 617, 641-642).  The greater the awareness of the potential harm, the more likely it is that this critierion will be satisfied. If the risk of harm is far-fetched, a duty will not arise.

54.  The second element of the Caparo triology, ie proximity, is more elusive.  According to Clerk & Lindsell on Torts 19^th ed (2006) para.8-16 at pp.391-392, it essentially denotes the closeness of connection in terms of time, space and relationship between the claimant and the defendant at the moment of the alleged negligence, and focuses on the broader relationship between the parties that involves physical, circumstantial, causal or assumed proximity from the perspective of both the claimant and the defendant that reflects a balancing of the claimant’s moral claim to be compensated for avoidable harm and the defendant’s moral claim to be protected from an undue burden of legal responsibility.  In this respect, the purpose underlying the defendant’s statements and actions is highly material in determining whether there is sufficient proximity, and ultimately this consideration was determinative in Caparo Industries plc (see Jackson & Powell on Professional Liability 6^th ed (2007) para.2-077 at pp.45-46).

55.  In the case of direct physical harm, the issue of proximity usually does not pose any problem as it may arise as a direct consequence of foreseeability of harm (see Jackson & Powell on Professional Liability 6^th ed (2007) para.2-077 at p.45).  Difficulties usually arise where the defendant’s negligence may be regarded as an indirect cause of the claimant’s injury (eg where the immediate cause was the act of a third party or some natural misfortune in respect of which the claimant contends the defendant ought to have provided protection).  There will be “proximity” if the claimant and the defendant enter into a “special relationship” as a result of (a) the defendant’s assumption of responsibility by voluntary assurances of protecting the claimant from harm or (b) objective imposition of such responsibility by the court from the nature of the parties’ relationship irrespective of their intentions or knowledge.  Where “proximity” is established, the defendant will come under a duty to perform positive acts to protect the plaintiff from harm (Booth and Squires, The Negligence Liability of Public Authorities (2005) paras.3.43-3.44 and 3.55-3-58 at pp.108-109 and 115-117).

56.  However, where the claimant has a high degree of control over a potentially dangerous activity and is relied upon to act carefully, a duty of care will be imposed without the need to satisfy the Caparo test since the defendant will be so closely involved with the creation of a danger that he will be regarded as having directly inflicted any physical injury suffered by the claimant.  In Perrett v Collins & ors [1998] 2 Lloyd’s Rep 255, 262, Hobhouse LJ said in a passage which was subsequently endorsed in Watson v British Boxing Board of Control Ltd & anor [2001] QB 1134, 1158-1159 as follows:

“Where the plaintiff belongs to a class which either is or ought to be within the contemplation of the defendant and the defendant by reason of his involvement in an activity which gives him a measure of control over and responsibility for a situation which, if dangerous, will be liable to injure the plaintiff, the defendant is liable if as a result of his unreasonable lack of care he causes a situation to exist which does in fact cause the plaintiff injury …… Once the defendant has become involved in the activity which gives rise to the risk, he comes under the duty to act reasonably in all respects relevant to that risk, he comes under a duty to act reasonably in all respects relevant to that risk …… Once proximity is established by reference to [this test] ……, none of the more sophisticated criteria which have to be used in relation to allegations of liability for mere economic loss [ie the Caparo test] need to be applied in relation to personal injury, nor have they been in the decided cases.”

But where the levels of control and reliance are lower, to show that a duty of care is owed the claimant needs to satisfy the Caparo tripartite test by establishing a relationship of proximity and proving that it is fair, just and reasonable to impose such duty of care on the defendant.

57.  As regards the third element of fairness, justice and reasonableness, it is said to be a test of “ordinary reason and common sense” (see Minories Finance Ltd v Arthur Young (a firm) [1989] 2 All ER 105, 110) and an “exercise of judicial pragmatism which is …… the same as judicial policy” (see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 365).  “At its narrowest, it focuses on justice and fairness as between the parties. At a broader level, it will consider the reasonableness of a duty from the perspective of legal policy, focusing on the operation of the legal system and its principles.  At a still wider but more controversial level, it may take into account the social and public policy implications of imposing a duty” (see Clerk & Lindsell on Torts 19^th ed (2006) para.8-17 at p.392).  Whilst the courts have shown concern lest there be ever-expanding liability for negligence, they also recognise there will never be any expansion of tort law if there is too much rigidity (see Winfield & Jolowicz on Tort 18^th ed (2010) para.5-16 at pp.176-179).

58.  However, it should be noted that the three elements of the Caparo test are not distinct elements to be separately considered.  The criterion of “proximity” does not offer a precise or scientific “ultimate” test; rather the necessary degree of proximity is the product of the court’s conclusion on what is fair, just and reasonable (see Winfield & Jolowicz on Tort 18^th ed (2010) para.5-17 at p.180).  Further, Lord Oliver in Caparo Industries plc said at p.585 as follows:

“…… Indeed, it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of forseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible. ‘Proximity’ is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”

59.  Lord Roskill in Caparo Industries plc also made similar comments at pp.581-582 as follows:

“….there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the questions whether, given certain facts, the law will or will not impose liability for negligence or, in cases where such liability can be shown to exist, determine the extent of that liability. Phrases such as ‘foreseeability’, ‘proximity’, ‘neighbourhood’, ‘just and reasonable’, ‘fairness’, ‘voluntary acceptance of risk’ or ‘voluntary assumption of responsibility’ will be found used from time to time in the different cases. But, …… such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists and, if so, what is the scope and extent of the duty. ……” (my emphasis)

(f) Incremental test

60.  The perceived difficulty of the Caparo test is that the second and third elements are so broad that it is frequently impossible to tell how they will be answered on the facts of any individual case.  Lord Oliver in Caparo Industries plc recognised these problems and discussed the incremental approach stated by Brennan J in The Council of the Shire of Sutherland v Heyman & anor (1984-1985) 157 CLR 424, 481:

“Of course, if foreseeability of injury to another were the exhaustive criterion of a prima facie duty to act to prevent the occurrence of that injury, it would be essential to introduce some kind of restrictive qualification – perhaps a qualification of the kind stated in the second stage of the general proposition in Anns. I am unable to accept that approach. It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.” ……”

61.  The incremental approach was endorsed by the House of Lords in Murphy v Brentwood District Council [1991] 1 AC 398.  In that case, the three-stage test was not invoked although it was not disapproved. Jackson & Powell on Professional Liability 6^th ed (2007) para.2-040 at p.24 states that the incremental approach has not supplanted the Caparo test.  “It can be seen as providing guidance to the application to the threefold test and a warning of the potential danger of deciding whether a particular duty of care is owed simply by reference to general statements of principle.  It can also be analysed as providing an alternative approach which should lead to the same answer in any given case.”  Indeed, in Islington LBC v UCL Hospital NHS Trust [2006] PIQR P29, Buxton LJ suggested that incrementalism was a “check or guide to the application of the Caparo tests; and that, in particular, if a claimant could demonstrate that his case did no more than incrementally extend an already recognised head of liability, that was a good indication that his claim met the Caparo requirements” (see Clerk & Lindsell on Torts Fourth Supplement to the 19^th ed (2009) para.8-22 at pp.84-85).

(g) Assumption of responsibility

62.  In Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289; [2007] ICR 1469, May LJ commented as follows:

“Although the Caparo approach to causes of action in negligence remains firmly entrenched ……, there are other ways in which the same essential conceptual approach may be articulated …… it is often helpful to ask whether a defendant is to be taken to have assumed responsibility to the claimant. As Lord Nicholls said in Stovin v Wise [1996] A.C. 923 at 932C, proximity is the convenient shorthand for a relationship between the two parties which makes it fair and reasonable one should owe the other a duty of care.”

(see also Clerk & Lindsell on Torts Fourth Supplement to the 19^th ed (2009) para.8-26 at p.86)

(h) Multi-test approach

63.  The tests of assumption of responsibility, proximity and fairness and incrementalism have their own respective strengths. Rather than regarding these tests as rivals, Sir Brian Neill in BCCI (Overseas) Ltd v Price Waterhouse (No 2) [1998] PNLR 564, 583 helpfully suggested that the different approaches as mutually supportive:

“The fact that all these approaches have been used and approved by the House of Lords in recent years suggests:

(a) that it may be useful to look at any new set of facts by using each of the three approaches in turn ……

(b) that if the facts are properly analysed and the policy considerations correctly evaluated the several approaches will yield the same result.” (my emphasis)

(see also Clerk & Lindsell on Torts 19^th ed (2006) para.8-90 at p.448)

64.  Subsequent authorities also favoured the three-path multi-test approach. In Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, Lord Hoffmann commented that there was a tendency for phrases like “fair, just and reasonable” and “assumption of responsibility” to be used as slogans rather than practical guides to whether a duty should exist or not, and that more discrimination was needed to identify the factual situations in which they provide useful guidance.  He indicated that in a case of provision of information, it would be useful to ask the assumption of responsibility question, and the “assumption” relationship was what made it fair to impose a duty.  In service cases, the concept of assumption while perfectly legitimate was less illuminating, and did draw attention to the fact that a duty of care was less ordinarily generated by something which the defendant has decided (see Clerk & Lindsell on Torts Fourth Supplement to the 19^th ed (2009), para.8-91 at p.92).

(i) Discussion

65.  In my view, the first step is to consider the arguability of the Defendant’s contention that the scope of duties of Chow as the RSE of the Monitoring Works extend beyond merely dealing with the structural elements of the Building.  I remind myself that at this stage the Defendant does not have to prove its contentions on the balance of probabilities, but is only required to establish that there is a proper question to be tried.

66.  The starting point is the parties’ common ground that Chow and Chan were respectively appointed as the AP and RSE of the Monitoring Works.  This is the very foundation for Chow’s assertion that the scope of his statutory duties was limited to the structural elements of the Building so that all non-structural matters in respect of the Monitoring Works, the Monitoring Inspections and the Monitoring Inspection Reports (including the statements therein concerning the presence or absence of debris at the Premises as well as any discovery of and/or report on the Cylinder at the Premises or otherwise) were outside his responsibility and instead fell within the responsibility of Chan as the AP of the Monitoring Works.

67.  But attractive as such argument sounds at first blush, one must remember that the Defendant’s intended third party claim against Chow is not premised on breach of statutory duties but on alleged breach of the common duty of care. In this respect, one cannot ignore the following undisputed background facts:

(a) the Investigation Orders required remedial works to be done to some structural and non-structural parts of the Building and investigation/monitoring of the structural elements as well as the dilapidations/defects of the Building (see paragraph 4 above);

(b) it was pursuant to the Investigation Orders that the Former Owners appointed Chan and Chow respectively as the AP and RSE of the Monitoring Works;

(c) the AP and the RSE’s delegate carried out the Monitoring Inspections for the purpose of the Monitoring Inspection Reports (including the 36^th and Final Reports);

(d) the AP and the RSE’s delegate prepared and signed the 36^th Report;

(e) the contents of the 36^th and Final Reports confirm that the Premises were free from debris and that all debris had been cleared away.

68.  For present purpose, it is also important to note that contents of the 36^th and Final Reports do not draw any distinction between the actual duties taken up by Chan and those separately taken up by Chow for carrying out the Monitoring Inspections and for preparing such reports.  Instead, such reports on their face suggest that both the AP (ie Chan) and the RSE’s delegate (ie Ng and/or Choy) together signed the 36^th Report and together carried out the corresponding Monitoring Inspections.  In my view, the contents of the 36^th and Final Reports when considered in light of the background facts set out in the above paragraph give prima facie support for the Defendant’s pleaded assertion in the Amended Defence, the Draft Notice and the Draft Claim that Chan and Chow carried out the Monitoring Inspections “jointly”.

69.  In the circumstances, notwithstanding Chow’s assertion that the scope of his statutory duties as the RSE of the Monitoring Works was limited to the structural elements of the Building pursuant to section 4(1)(b) of the Ordinance, the Defendant has shown a prima facie case that the scope of duties actually undertaken by Chow in respect of the Monitoring Works may well be more extensive than he suggested or that he has assumed responsibility for the condition of the Building/Premises beyond the structural elements.

70.  In this respect, I refer to the letter dated 31 December 2003 from Chan to the Buildings Department declaring the cessation of the respective roles of Chan and Chow in respect of the Monitoring Works (presumably as a result of the Defendant taking over the site on 29 December 2003 for carrying out the Demolition Works).  Interestingly, Chan in such letter refers to himself as the “monitoring A.P.” and to Chow as the “monitoring AP/RSE for the [Building]” (my emphasis).  The latter description raises a question as to whether as a matter of fact Chow has been engaged to carry out the Monitoring Works beyond that for (or has assumed a larger role in respect of such works than) a RSE merely or strictly responsible for the structural elements of the Building.

71.  Further, in the Appraisal Report (September 2003) and the Supplementary Report (November 2003) made after the completion of the Monitoring Inspections in August 2003, reference has been made to the Monitoring Inspection Reports including the observations by “AP&RSE” “on the condition survey” and on the monitoring of “further deterioration” of the Building that do not distinguish between any different or separate roles for the AP and RSE of the Monitoring Works.

72.  I therefore accept there is a proper factual question to be tried as regards the scope of duties actually undertaken by Chow in carrying out the Monitoring Inspections and in preparing the Monitoring Inspection Reports. 

73.  Mr Ip criticises Ms Lau’s submissions for failing to state with clarity the precise division of labour between Chan and Chow as the AP and the RSE of the Monitoring Works (see paragraph 48 above). He submits that a litigant should not be allowed to sue another party based on some mere perception without full investigation, and then depending on information that may be provided by such other party to keep on joining additional parties to the litigation.  It is said that such practice is even more objectionable in the context of third party proceedings given the inevitable delay and prejudice that will be caused to the plaintiff.  I will deal with the issue of prejudice (if any) that may be suffered by the Plaintiff in greater detail below, but suffice to state here that I am not persuaded that the Plaintiff will suffer such prejudice that will prevent the Defendant from proceeding with its third party claim against Chow.  I bear in mind that unlike Chow the Defendant is not privy to the actual terms of engagement between Chow on one part and the Former Owners and/or the Owner on the other part, and the actual division of labour (if any) as between Chan and Chow in respect of the Monitoring Works.  But if the Defendant is able to put forward a prima facie case that Chow’s duties went beyond the bare essentials of dealing with the structural elements of the Building, its third party claim against Chow should not be stifled by reason of its inability at this stage to pinpoint the precise division of labour between Chan and Chow in respect of the Monitoring Works.

74.  Mr Ip further argues that since Chow cannot be responsible for the contents of the 36^th and Final Reports because (a) he did not personally carry out the corresponding Monitoring Inspections (which were carried out by Chan and Choy), (b) he did not personally sign the 36^th Report (which was signed by Chan as the AP and Ng as the Acting RSE), and (c) the Final Report was only signed by Chan as the AP, he consequently did not owe any personal duty of care towards the Defendant and/or the Plaintiff. Mr Ip also submits that Chow cannot be vicariously liable for any acts or omissions by Choy and Ng who were not his servants or agents.  On the other hand, Ms Lau submits that Chow owed a personal non-delegable duty to fulfil his office as the RSE of the Monitoring Works pursuant to engagement by the Former Owners and/or the Owner, but Mr Ip says it is a duty unknown in law in the absence of any personal negligence or vicarious liability on the part of Chow.

75.  I am unable to accept Mr Ip’s submission that a non-delegable duty of care is unknown to law.  A non-delegable duty of care is a category of tort liability to ensure that care is taken in respect of the activity in question, and has the effect of imposing liability on the duty-holder for negligent acts of an intermediate party (who may be an employee or independent contractor or even someone who acts gratuitously for the duty-holder) to whom the former has entrusted or delegated responsibility for performance of those acts.  Fault of the duty-holder is not an essential element even if it is frequently present on the facts of the case.  The matter is put with clarity by Lord Blackburn in Hughes v Percival (1883) 8 App Cas 443, 446:

“…… the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff’s wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved the use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast upon himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.” (see also Winfield & Jolowicz on Tort 18^th ed (2010) paras.20-21 – 20-22 at pp.978-981)

76.  Since Chow was appointed by the Former Owners as the RSE of the Monitoring Works and acted as such pursuant to such appointment, it is arguable that he has assumed responsibility for all obligations pertaining to the fulfillment of such office and/or engagement and that he could not shirk such responsibility by delegating performance of the necessary tasks to others.  There is no doubt that the Monitoring Inspections and the Monitoring Inspection Reports (which include the 36^th and Final Reports) were within the scope of the Monitoring Works for which Chow was appointed and/or engaged as the RSE. Consequently, it must be prima facie arguable that by delegating the signing of the 36^th Report to Ng and the performance of the Monitoring Inspections for the 36^th and Final Reports to Choy, Chow was not absolved from his non-delegable duty of care to take positive action to prevent harm in the performance of such tasks.

77.  Mr Ip submits that any responsibility for the contents of the 36^th Report lies inter alia with Chan and Ng as the respective AP and Acting RSE of the Monitoring Works and not with Chow who was not the RSE during the period when Ng was the Acting RSE (eg when Chow was temporarily out of Hong Kong). But section 4(2) of the Ordinance provides as follows:

“…… Provided that, where …… a [RSE] …… is temporarily unable to act by reason of his illness or absence from Hong Kong, he may nominate another …… [RSE] to act in his stead for the period of such illness or absence.”

Since an acting RSE is nominated by the RSE himself when the latter is merely “temporarily unable to act”, such nomination plainly cannot disturb or oust the original appointment of the RSE or absolve such RSE from responsibility for the obligations of his office. Further, there is much to be said for the suggestion that Mr Ip’s submissions in paragraph 45 above do not detract from the reasonable arguability of the Defendant’s contention as to the scope of duties actually undertaken by Chow in respect of the Monitoring Works.

78.  But I accept even though it may be arguable that the duty Chow owed to the Former Owners and/or the Owner (who appointed and/or engaged Chow as the RSE of the Monitoring Works) was non-delegable, which argument is likely to be relevant in ascertaining the scope of Chow’s duties, it does not necessarily follow that Chow will be responsible to the Defendant (ie a third party) for damage for which it claims contribution or indemnity.  It is still important to ascertain whether Chow owed any duty of care to the Defendant and/or the Plaintiff.

79.  In considering such issue, the particular purpose of the Monitoring Inspections and the Monitoring Inspection Reports (including the 36^th and Final Reports) and hence the particular factual circumstances of the case take on importance.  On the materials before me, it is arguable that the Monitoring Inspections were not limited to recommendations for remedial works but also provided (a) observations by way of oversight as regards the condition of the Building pursuant to regular inspections under the responsibility of the AP and RSE of the Monitoring Works and (b) a continuous monitoring record pursuant to such inspections with responsibility to notify the Former Owners and/or Owner of any deficiencies.

80.  The Monitoring Works completed in/about August 2003 were followed closely by the Appraisal Report of September 2003 and the Supplementary Report of November 2003 in anticipation of the handover of the Building to the Defendant in December 2003 for carrying out the Demolition Works.  The Appraisal Report and Supplementary Report both made reference to the Monitoring Inspection Reports. Against such factual background, it is, in my view, arguably probable that Chow knew the Building would eventually be demolished, and the purpose of the Monitoring Inspections and the Monitoring Inspection Reports was inter alia to advise the Owner of the condition of the Building in anticipation of the Demolition Works.  In such context, there is a prima facie case that the contractor for the Demolition Works as well as its employees to be engaged in such works might rely on the continuous monitoring record of the Monitoring Inspections in the Monitoring Inspection Reports (including the 36^th and Final Reports and the statements therein concerning the absence of debris at the Premises) in the performance of the Demolition Works, which is arguably capable of constituting an essential ingredient in establishing proximity and thus attributing a duty of care on the part of Chow towards the Defendant and/or the Plaintiff.  In my view, there is a proper question to be tried on the issues of proximity and duty of care, and I agree with Ms Lau that scrutiny of the factual circumstances as to the duties actually undertaken by Chow and the purpose for which he came to do so is required to determine the true extent of the duty of care owed by Chow.  I should add here that I am unable to discern any pressing reason of policy against the arguability of such duty of care (and the scope of such duty) owed by Chow, and indeed none has been raised by either Ms Lau or Mr Ip.

81.  Nevertheless, any duty of care is inseparable from the damage for which the claimant claims against the defendant.  Here, the Defendant claims contribution or indemnity against Chow for the damage which the Plaintiff has suffered.  The question is whether the damage as claimed is within the scope of duty breached or, to put it in another way, whether Chow was under a duty to avoid or prevent that particular damage.

82.  Mr Ip submits that in the present proceedings the foreseeable loss arising from any negligent performance of the Monitoring Inspections and/or any negligent preparation of the Monitoring Inspection Reports (including observations and reporting on the absence of debris at the Premises) is limited to additional costs of removal of debris found at the Premises, which is not the “same damage” suffered by the Plaintiff for which the Defendant intends to claim contribution or indemnity against Chow.  

83.  The requirement for the “same damage” in section 3(1) of the Civil Liability (Contribution) Ordinance Cap.377 (which is equivalent to section 1(1) of the Civil Liability (Contribution) Act 1978) has been discussed in Royal Brompton Hospital NHS Trust v Hammond (No 3) [2002] 1 WLR 1397, which is summarised in Jackson & Powell on Professional Liability 6^th ed (2007) para.9-328 at p.479 as follows:

“In order to decide whether the same damage was suffered, it was necessary to analyse the nature of the damage in which the Hospital claimed compensation from each of [the Architects and the Contractor]. It was “the essence” of the claim which had to be identified. The damage alleged to have been caused by the Contractor’s breach of duty was the late delivery of the completed building, and the consequent disruption suffered by the Hospital. The compensation claimed in respect of that damage was liquidated damages and repayment of loss and expense payments. By contrast, the damage alleged to have caused by the Architects’ breach of duty was not delay in completion of the building – nor could negligent certification of extensions of time ever cause such delay. Rather, the damage caused by the negligent certification was the impairment of the Hospital’s ability to obtain compensation for the delay from the Contractor. The issue of the certificates meant that the Hospital faced much greater difficulty in its claim against the Contractor than it would otherwise have done. …… Had the negligent certificates not been issued, the Hospital would not have had to go to arbitration, or at least would have gone to arbitration with the support of the architects. In summary, it was held that the damage suffered by the Hospital as a result of the Contractor’s default was delay in completion of the building, whereas the damage suffered by the Hospital as a result of the Architects’ alleged breaches was the weakening of its position in negotiating a financial settlement with the Contractor in relation to that delay. Thus the Architects and the Contractor were not persons who were liable to the Hospital in respect of the same damage.”

84.  Whilst the question of whether foreseeable loss is of the same type as the loss suffered is a question of fact in each case (see Jackson & Powell on Professional Liability 6^th ed (2007) para.9-286 at p.455), I am persuaded that foreseeable loss arising from breach of duty on the part of Chow in respect of the Monitoring Inspections and the Monitoring Inspection Reports is arguably not limited to additional costs of removal of debris that, contrary to the representations in the 36^th and Final Reports, was found at the Building (including the Cylinder at the Premises).  When the observations from the Monitoring Inspections that resulted in the statements in the 36^th and Final Reports are placed in the context of the then imminent Demolition Works, and given the fact that in the prelude to the Demolition Works the Appraisal Report and Supplementary Report both referred to the Monitoring Inspections and Monitoring Inspection Reports, it is prima facie arguable that Chow had contemplated that the eventual specialist demolition contractor and/or its employees would rely on the observations pursuant to the Monitoring Inspections and/or the monitoring record in the 36^th and Final Reports including the representations therein that the Building was free from debris (which arguably includes the Cylinder as a loose object at the Premises) in planning and carrying out the Demolition Works so as to avoid physical danger to persons engaged in such works.

85.  Mr Ip submits that there was no reliance on the subject representations in the 36^th and Final Reports because the Defendant ought to have conducted its own site inspection upon taking over the Building in December 2003.  On the affidavit evidence before me, I am unable to say that any site inspection by the Defendant would have totally precluded any reliance of the continuous monitoring record of the Monitoring Inspections in the Monitoring Inspection Reports (including the 36^th and Final Reports).  In my view, this is a proper question to be tried, especially when the Appraisal Report and Supplementary Report prepared with a view to the Demolition Works made reference to both (a) the investigation/survey of the site by JMK and (b) the continuous record of the regular Monitoring Inspections. Indeed, the Final Report was exhibited to the Appraisal Report.

86.  In all the circumstances, I am of the view that there is a proper question to be tried that is persuasive of granting leave to the Defendant to amend the TP Statement of Claim to plead its claim for contribution or indemnity against Chow.

(j) Prejudice to the Plaintiff?

87.  According to Hong Kong Civil Procedure 2010 Vol.1 para.16/4/5 at p.333, “in giving or refusing [third party] directions care should be taken that the plaintiff is not unduly embarrassed or put to additional expense, delay or difficulty, for he has nothing to do with the questions which have arisen between the defendant and the third party” (see para.16/4/5 at p.333).

88.  Mr Ip refers to Chea Kam Wing Victor v Kwan Kin Travel Services Limited HCPI 970/2005, Sakhrani J (unreported, 18 December 2006) In that case, the road traffic accident in Taiwan involving Hong Kong tourists occurred on 18 October 2004.  The plaintiff issued a demand letter on 26 April 2005 and a writ of summons on 24 October 2005.  The defendant (ie the Hong Kong tour operator) intimated in its checklist dated 27 February 2006 that it would apply for third party proceedings, but it was only in July 2006 that it successfully applied ex parte for leave to issue a third party notice.  But the defendant did not issue any summons for third party directions despite 2 further checklist review hearings, and the action was set down for trial in the running list on 17 October 2006.  In November 2006, the defendant applied for leave to issue a third party notice against the Taiwanese provider for transportation services and for leave to serve such notice out of jurisdiction. The learned judge held that in relation to the issues on liability in the main action, it was clear that the driver was negligent (so there is no real risk of the court in subsequent proceedings between the defendant and the third party reaching a different conclusion on such issue) and that liability turned on the construction of the exemption clause in the contract between the plaintiff and the defendant (which was irrelevant to the contract between the defendant and third party).  In such circumstances, the inevitable delay in granting the leave sought at such late stage of the proceedings would substantially affect the trial of the main action, and the learned judge dismissed the application.

89.  The circumstances in Chea Kam Wing Victor are a far cry from the facts of the present case.  In that case, the plaintiff opposed the third party proceedings because the application for third party directions was made at the brink of trial. But here the action has not yet been set down for trial, and the Plaintiff though aware of the Summons has chosen to adopt a neutral stance. In fact, the Plaintiff has not complained of any unwarranted delay, embarrassment and/or prejudice caused by the Summons to join Chow and Kwan as further third parties to the present proceedings.

90.  I further note that the Amended Defence already avers the role of Chow as the RSE of the Monitoring Works, the failure in discovering and/or reporting on the presence of the Cylinder in the Building during the Monitoring Inspections, and the representations in the Monitoring Inspection Reports (especially in the 36^th and Final Reports) that the Premises were free from debris and that all debris at the Premises had been cleared away, which inter alia culminate in the plea that the Defendant had no reason to believe that the Cylinder was present in the Building.

91.  Again, it has been pleaded in the current version of the TP Notice that (a) Chow was appointed as the RSE of the Monitoring Works, (b) Chan and Chow as the AP and RSE of the Monitoring Works jointly carried out the Monitoring Inspections, (c) the Monitoring Inspection Reports were prepared pursuant to the Monitoring Inspections, and (d) the Final Report recorded that the Premises were free from debris and that all debris had been cleared away.  The TP Notice goes on to aver that if the Accident was caused by inter alia negligence on the part of Chow as the RSE of the Monitoring Works as per the Particulars in paragraph 9 above, JMK (as the employer of Chow at all material times) would be vicariously liable.

92.  The proposed amendments in the Draft Notice are for (a) joining Chow (who is already referred to in the current TP Notice – see the above paragraph) as the 3^rd Third Party, and (b) adopting the Particulars of negligence in paragraph 9 above for which JMK is said to be vicariously liable as the negligent acts/omissions on the part of Chow as the 3^rd Third Party.  Since the Defendant intends to rely on the same particulars of negligence against Chow as against JMK for vicarious liability and has also raised such allegations as defence in the main action, the facts and circumstances in relation to the Particulars will in any event have to be canvassed at the trial of the main action between the Plaintiff and the Defendant as well as for the third party proceedings between the Defendant and JMK as the 2^nd Third Party. In such circumstances, the intended third party proceedings against Chow may not add much more to the further conduct and/or trial of the present action save and except for the Defendant’s need to establish the existence and scope of the duty of care owed by Chow to the Defendant and/or the Plaintiff based on the same background facts.

93.  Indeed, in Carshore, Cotton LJ said at pp.346-237 that even though it is the duty of the judge to see that nothing is done to cause additional expense or difficulty to the plaintiff, and on the facts the plaintiff had nothing to do with the question of indemnity which had arisen between the defendants and the third party, “the question of forgery arises as well between the Plaintiff and the Defendants, as between the third party and the Defendants, and it may well be left to the Judge to see that the question is properly tried, so that the Plaintiff may not be embarrassed or put to additional expense”.  Fry LJ also said at p.347 as follows:

“It is suggested that the Plaintiff ought not to be embarrassed by the introduction of questions between the Defendants and a third party. Possibly some delay may be caused by the third-party proceedings, but the object of the rule is to enable the Court to try once and for all an issue of fact in which all parties are alike interested. Here all are interested in the question whether the transfer was a forgery, and I think it is best to try it once on the presence of all the parties.”

94.  Mr Ip suggests that since the particulars of negligence against Chow as the RSE of the Monitoring Works are identical to those against JMK for vicarious liability as Chow’s alleged employer as well as to those against Chan in the intended third party claim against him, the court’s decision on liability in respect of Wellgo, JMK and/or Chan will also dispose of the intended third party claim against Chow.  In support of such argument, Mr Ip submits that assuming that Chan (ie the AP of the Monitoring Works) will be joined as a further third party to the proceedings and the court finds that he is not liable, it will be inconceivable for Chow as the RSE of the Monitoring Works who was not responsible for the non-structural elements of the building to be held liable, so there is no real risk of any question being tried twice with possibly different results even if the Defendant decides to pursue its claim against Chow in due course notwithstanding any failure of its claim against Chan.

95.  I am unable to accept such argument First, I repeat the analysis above as to the arguability of the Defendant’s contention as to the actual scope of Chow’s duties in respect of the Monitoring Works which may exceed the bare essentials of the structural elements of the Building. Secondly, on the affidavit evidence before me, it is not a foregone conclusion that the Defendant’s claim against Chan and/or JMK will inevitably fail.  After all, any rejection of a plea of vicarious liability may turn on the relationship between Chow and JMK and not on the primary issue of fact in relation to the alleged negligent acts and/or omissions.  After all, Chow denies he was employed by JMK at the material time. Thirdly, even if the Defendant succeeds in its claim against Chan and/or JMK, there is arguably no issue estoppel or res judicata binding on Chow, who given his present stance is likely contest liability should the Defendant raise a claim against him.  This flies against the object of Order 16 of the RHC which is to avoid multiplicity of proceedings and the embarrassment of having the same question tried twice with possibly different results. Further, in light of the above analysis, I am not persuaded that the spirit of the CJR and the underlying objectives under Order 1A of the RHC require the court to decline leave to the Defendant to proceed with its third party claim against Chow.

96.  Mr Ip submits that if Chow is made a further third party to the present proceedings, he may join Ms Helen Kwan (ie the RSE of the Demolition Works) and perhaps others as fourth parties to the present proceedings, which will inevitably cause further delay and great prejudice to the Plaintiff.  Such argument is premature as it is unclear whether Chow will or will not join fourth party or parties if and when he is joined as a further third party. The scope of responsibility for various parties in respect of the Demolition Works is already in issue in main action and in the existing third party proceedings, and has to be resolved at trial in any event.  I am not persuaded that the risk of adding further parties to the litigation predicted by Mr Ip will so substantially embarrass the Plaintiff or cause such serious delay that the Defendant should be debarred from pursuing its third party claim against Chow.

97.  Even though more than 3½ years have elapsed since the commencement of the present proceedings, and the Checklist Review hearing has not been restored pending the disposal of the Summons, I am satisfied that the Summons is in line with the purpose of Order 16 of the RHC which is to avoid multiplicity of proceedings and to prevent the same question from being tried twice with possibly different results.

XIII. CONCLUSION

98.  In light of the above analysis, I grant leave to the Defendant to join Chow and Kwan respectively as the 3^rd and 4^th Third Parties. In principle, I am also prepared to grant leave to the Defendant to amend the TP Notice and the TP Statement of Claim to inter alia plead its claim against Chow and Kwan respectively.  But since Ms Lau accepts that the Abandoned Pleas in the Draft Notice and the Draft Claim are erroneous, such draft pleadings must be revised to remove the Abandoned Pleas. In the circumstances, I grant the following orders:

(a) leave be granted for the Defendant to join Chow and Kwan respectively as the 3^rd and 4^th Third Parties;

(b) the Defendant do within 7 days from today lodge with the court and serve on the Plaintiff and the 1^st, 2^nd, 3^rd and 4^th Third Parties revised versions of the Draft Notice and the Draft Claim by removing the Abandoned Pleas;

(c) if the Plaintiff, the Defendant and the 1^st, 2^nd, 3^rd and 4^th Third Parties are all agreeable to the revised Draft Notice and the revised Draft Claim, they shall within 14 days of (b) above file a Consent Summons returnable before me to jointly seek leave:

(i) for the Defendant to amend the TP Notice as per the revised Draft Notice;

(ii) for Chow and Kwan to file acknowledgment of service of the Amended TP Notice within 14 days thereafter;

(iii) for the Defendant to amend the TP Statement of Claim as per the revised Draft Claim;

(iv) for further third party directions in respect of pleadings, discovery and witness statements and/or any other relevant matter(s);

(v) for restoring the Checklist Review hearing before the PI Master on a date or within a time period to be suggested in light of the above developments;

(d) if the Plaintiff, the Defendant and/or any or all of the 1^st, 2^nd, 3^rd and 4^th Third Parties are unable to reach agreement over directions concerning the revised Draft Notice and the revised Draft Claim, the Defendant shall within 14 days of (b) above restore the Summons and fix a date with the Listing Clerk for the adjourned hearing before me to be attended by the Defendant and Chow (with 45 minutes reserved) but not earlier than 28 days after today for directions on (i) the revised Draft Notice and the revised Draft Claim, (ii) acknowledgment of service by Chow and Kwan, (iii) pleadings, discovery and witness statements and/or any other case management matter for the third party proceedings, and (iv) the restoration of the Checklist Review hearing before the PI Master;

(e) the Plaintiff and the 1^st, 2^nd and 4^th Third Parties be at liberty to attend the adjourned hearing of the Summons referred to in (d) above, failing which directions may be granted in their absence.

99.  In respect of costs between the Defendant and Chow, there is no reason why costs should not follow event save and except for costs of and occasioned by the Defendant in respect of the Abandoned Pleas.  As conceded by Ms Lau, the fact that Ms Helen Kwan was the RSE of the Demolition Works was evident from documents in the Defendant’s possession and also from Chow’s affirmation.  Yet the Defendant only abandoned the Abandoned Pleas at the Hearing.  In the circumstances, I grant a costs order nisi that (a) Chow do pay the Defendant’s costs of the Summons (excluding costs of and occasioned by the Abandoned Pleas but including all other costs reserved, if any) with certificate for counsel and (b) the Defendant do pay Chow costs of and occasioned by the Abandoned Pleas in respect of the Summons to be summarily assessed.  

100.  For the purpose of summary assessment of costs, I direct that (a) the Defendant and Chow do within 7 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3, (b) the Defendant and Chow do within 5 days thereafter respectively lodge and serve succinct summary of objections to each other’s statement of costs in bullet point format of not more than half a page, and (c) the Defendant shall fix the hearing of the summary assessment of costs to be heard before me with the Listing Clerk within 21 days from today and such hearing shall not be earlier than 28 days after today in case of paragraph 98(b) above or at the same time as the adjourned hearing of the Summons in case of paragraph 98(d) above.

101.  As regards the issues of (a) costs of and occasioned by amendments of the TP Statement of Claim between the Defendant and the 1^st and 2^nd Third Parties and (b) directions for filing and service of the respective Amended Defence of the 1^st and 2^nd Third Parties which have been reserved for paper disposal at the Hearing, I further direct that those issues be adjourned for consideration and, where appropriate, determination on paper at the same time as the disposal of the Consent Summons referred to in paragraph 98(b) above or at the adjourned hearing of the Summons referred to in paragraph 98(d) above.

102.  As regards the various matters between the Defendant and Chan that have been reserved for disposal on paper at the Hearing pursuant to paragraph 2 of my order dated 13 August 2010, I direct that those matters be further adjourned for consideration and, where appropriate, determination on paper at the same time as the disposal of the Consent Summons referred to in paragraph 98(b) above or at the adjourned hearing of the Summons referred to in paragraph 98(d) above.