WONG SAN WA v. REALTY CHENG & PARTNERS CONSTRUCTION LTD AND ANOTHER

HCPI 490/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.490 OF 2001

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J U D G M E N T

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Notes

1. This matter arises from the plaintiff's claim against the defendants for personal injuries sustained by him when he was working at a construction site in Java Road demolishing a wall panel of an Urban Council Complex when it collapsed and fell on him. He claims against the 1st defendant as his employer and the sub contractor of the demolition works as well as against the 2nd defendant being the main contractor involved in the demolition works.

2. The plaintiff's claim has been settled as between the plaintiff and the defendants upon the defendants agreeing to pay to the plaintiff the total sum of $2,031,503.22 in full and final settlement of the plaintiff's claim against them but on a without admission of liability basis.

3. The defendants have taken out Third Party proceedings against the Secretary for Justice (as representative of the Director of Architectural Services) on the basis that it was the Architectural Services Department ("the ASD") of the Hong Kong Government which had designed the collapsed wall and that either the design was faulty or that the ASD had failed to properly supervise the construction of the collapsed wall to ensure that it complied with the design.

4. In turn the Secretary for Justice has taken out Fourth Party proceedings against the actual contractors who were responsible for the construction of the wall in question on the basis that if there was faulty construction of the wall, the Fourth Party was responsible and therefore liable for it.

5. I am now only concerned with the Third Party and Fourth Party proceedings in this matter.

Background

6. The accident in this case to the plaintiff took place on 6 June 1998 in the afternoon at about 4 p.m. on 2nd floor of the Urban Council Complex at Java Road, a multi-storey building. At the time the building itself was not being demolished. However, four walls on the roof garden of the 2nd floor were being demolished for the installation of air conditioners.

7. The wall in question stood alone on the roof garden of the 2nd floor. The two sides and the top of the wall were not attached to any other part of the building. Only the base of the wall in question was attached to the floor of the roof garden. From the measurements taken by the Occupational Safety Officer of the Labour Department, Mr Chow Kwok Fai, of the collapsed wall after the accident (see Appendix 1 attached to his report dated 26 March 1999) it would appear that this wall was some 4.38 metres long, and 2.65 metres tall (paragraph 8 (f) of same report refers).

8. In the middle part of the wall are two openings which, before the demolition works started, were filled with glass blocks for decorative purposes. These two openings in the middle part of the wall are side by side to each other. All the glass blocks originally in these two openings had been removed before the demolition works to the wall began.

9. Therefore when the demolition works to this wall started, only two empty large openings in the middle part of the wall was present next to each other. The different parts of this wall separated by these two large openings in the middle of it has been variously referred to as 'segments' or 'panels' or 'piers' by the different experts or expert reports in this case. For ease of reference, I shall adopt the references used in the diagram attached to the reports of the Safety Officer from the Labour Department, the report of the Factory Inspector and also to that of Leung Chat Min, Senior Structural Engineer.

10. From that diagram, it can be clearly seen that Panel 1, Panel 2 and Panel 3 form the wall in question. Panel 4 on that diagram is in relation to a separate wall. Panel 1 and Panel 2 were the panels which collapsed onto the plaintiff in this accident. Panel 3 and Panel 4 were demolished at an earlier time and were not involved in the accident.

11. Before going into the issues in the Third Party and Fourth Party proceedings, it should be noted that since the main action between the plaintiff and the defendants has been settled between them (without the Third or Fourth Party being party to that settlement), the defendants in opening this case has stated the factual basis for the settlement which is as follows.

12. The plaintiff's case against the defendants was on the footing that he had been instructed by the foreman of the defendants to demolish the wall panel by undercutting the concrete from the bottom. On the other hand the defendant's case had always been put on the footing that the defendants have never, whether by their foreman or anyone else, given any instructions to the plaintiff to undercut the concrete of the wall panel from the bottom. Instead the defendants say that at all times it was made known to the plaintiff that the defendants required all its workers carrying out the demolition of the wall to demolish the wall panels from top to bottom. It is also the defendant's case that the plaintiff had not followed those instructions given by the defendants because it was a quicker and easier way to do the demolition work in the way it was done by the plaintiff. In so doing the plaintiff was guilty of contributory negligence.

13. However, the defendants accept that they were liable to the plaintiff because they failed to properly supervise the plaintiff in the demolition work by failing to stop the plaintiff from demolishing the wall in the way that it was done by the plaintiff and therefore, on that basis, they had settled the plaintiff's claim. It is the defendants' stance that the settlement was a reasonable settlement even if 20% to 30% contributory negligence was taken into account.

14. In this context, I should perhaps deal with a preliminary issue before embarking on the main substantive issue of the Third Party Claim, namely the entitlement of the Third Party to contribution.

Defendants' entitlement to contribution

15. The main action between the plaintiff and the defendants was settled by way of a Tomlin Order without admission of liability by the defendants. The defendants' claim for contribution from the Third Party is based on Section 3(4) of the Civil Liability (Contribution) Ordinance, Cap.377 which provides:

"A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established."

16. The factual basis of the plaintiff's claim is set out in paragraphs 7 and 8 of the Statement of Claim. There it is pleaded that before the accident, the plaintiff and his co-worker were seen by the 1st defendant's foreman adopting the undercutting method but they were not stopped from using that method. At about 2.00 p.m. on the day of the accident, the plaintiff and his co-worker undercut Panel 1 and Panel 2 with the result that only 15 cm width of the base of Panel 1 remained uncut. At 4.00 p.m. after the plaintiff and his co-worker resumed work after the tea break, the said two panels collapsed and resulted in injuries to the plaintiff.

17. Assuming that factual basis of the plaintiff's claim could be established, the defendants would have been liable to the plaintiff and would be entitled to invoke Section 3(4) of the Civil Liability (Contribution) Ordinance as against the Third Party in their attempt to recover contribution.

The Third Party claim

18. The basis of the Third Party Claim had already been alluded to above. In practical terms, the defendants are saying that the design and/or construction of the wall in question was faulty in that there were insufficient reinforcing steel bars to support the two wall panels which collapsed on the plaintiff and that if there had been sufficient reinforcing steel bars present, the panels would not have collapsed even if the wrong method (of undercutting from below) was adopted.

Capacity in which the Third Party is sued

19. The Secretary for Justice was joined as the Third Party in a representative capacity for and on behalf of the Director of Architectural Services being the head of the ASD. In that capacity the Director of Architectural Services is sued in his representative capacity as the head of the ASD and not in his personal capacity. (See Chun Yat Nam v. Attorney General for and on behalf of the Commissioner of Police, CACV No.92 of 1994 (unreported) and Li Yuk Ching v. Secretary of Justice sued on behalf of the Director of Urban Services, HCPI No.724 of 1995 (unreported).)

The evidence

20. In so far as the factual evidence relating to the demolition and the collapse of Panel 1 and Panel 2 of the wall was concerned, this came from Koon Loi Yat ("Koon") , the foreman of the 1st defendant.

21. In summary, his evidence was that the 1st defendant had decided on the method to adopt in demolishing the wall in question. That method was to demolish and remove the concrete from the top of the wall downwards towards the base of the wall. This method was put down in writing in a Method Statement, submitted to the ASD and approval obtained for the method to be adopted.

22. The method of demolishing each block from the top was also made known to all the workers involved in the demolition work including the plaintiff and the Method Statement was posted up on all the walls to be demolished with this method.

23. Up to the time of the accident, the plaintiff and his co-worker had been adopting the method as contained in the Method Statement. However on the day of the accident, Koon was on leave and he did not observe the method of demolition used by the plaintiff and his co-worker when they were demolishing Panel 1 and Panel 2 which ultimately collapsed.

24. It was only after the accident that Koon realized that the plaintiff and his co-worker had deviated from the method that they were told to employ in demolishing the wall in question but had instead undercut the concrete at the base of the wall.

Expert evidence

25. The main dispute between the parties in the Third and Fourth Parties Proceedings revolved around the expert evidence called by each of them.

26. The experts differed in their opinions as to whether the wall in question was technically a load bearing structure, a column or a panel.

27. All three experts went into great detail in calculating, each using different formulas, as to the number of steel reinforcements that should have been used in the wall in question. Moreover, they differed as to the different formulas to be used in calculating wind force.

28. I am however of the view that before one needs to resolve all the differences of opinion expressed by the experts as to the different calculations and formulas to be adopted, the overriding issue which has to be decided is the issue of causation.

29. The defendants rely on the expert evidence of its expert Mr George Tsui ("Mr Tsui") of Messrs George Tsui and Associates. The underlying basis of the expert opinion given by Mr Tsui is that the wall in question was a load bearing and therefore a structural wall. As such it should have very much more steel reinforcement bars than was actually found.

30. However, at the same time, Mr Tsui conceded that when the wall was designed by the ASD, there was no duty on those who designed it to have designed it with a view to ensuring that it would be safe when it was being demolished. Nor for that matter would the designer design the wall taking into consideration that it would be demolished by using the undercutting method. That is just plain common sense.

31. Mr Tsui also gave evidence that while the undercutting method is a recognized method of demolishing a wall, he went on to say that in employing such a method of demolishing a wall, it should be by way of what he called "controlled destabilization" of the wall. There are two aspects to such controlled destabilization. Firstly, that if the wall had the requisite numbers of steel reinforcements, those steel reinforcements will have to be gradually cut away such that the wall could eventually be pushed down. In other words a gradual but deliberate act of destabilization. Secondly, that "controlled destabilization" called for proper shoring externally of the wall so that when the wall is being cut and destabilized, it will not collapse on its own but only when it was intended for the wall to be pushed down. This he termed it as a "controlled collapse".

32. Once this premise is reached, it is apparent that the issue of causation must be decided before anything else. In other words what caused the wall in the present case to collapse onto the plaintiff?

33. Before turning to deal with the issue of causation, I should add at once that if it becomes necessary to resolve the differences in opinion of the various expert witnesses, then I accept the evidence of the experts called by the Third and Fourth Parties (as opposed to the opinion of Mr Tsui) that the wall in question was not a load bearing structure for the reasons given by them. In particular the collapsed wall, before its collapse stood alone and did not support any other part of the building, nor did it transmit the weight or any other part of the building down to the foundations of the building. In that sense it was not a structural wall and therefore not load bearing.

34. Since the ultimate opinion of Mr Tsui was predicated on this premise (of the wall in question being a load bearing wall), it follows from what I have said above that I do not accept Mr Tsui's opinion that there was insufficient steel reinforcement contained in the wall in question.

35. It should also be noted that nobody was able to produce any plans or drawings (whether approved or otherwise) showing the required amount of steel reinforcements for the wall in question when it was built. This, according to the Fourth Party's expert whose evidence I accept, is further indicative of the fact that the wall in question was not considered to be a load bearing structure by those who designed or built it. For in those circumstances, it is quite normal for the architect simply to give oral instructions as to how such a non-load bearing wall is to be built without any plans or drawings whether approved or not.

Causation

36. One major issue for me to determine is the cause of the accident. The defendants' claim against the Third Party is put on the basis that the cause of the accident was due to the faulty design and/or construction of the wall in question in that it did not have sufficient steel reinforcement.

37. On the evidence before me I have come to the conclusion that the cause of the collapse of Panel 1 and Panel 2 of the wall in question was caused by the wrongful action of the plaintiff and his co-worker in unilaterally adopting the undercutting method instead of the method prescribed and made known to them by the 1st defendant as contained in the Statement Method submitted by the defendants to the ASD and approved by them. Furthermore, in so adopting the undercutting method, the plaintiff and his co-worker failed to ensure that there was sufficient shoring or support for the wall thereby failing to ensure what the plaintiff's expert Mr Tsui termed as "controlled destabilisation" when undercutting the two panels which ultimately collapsed.

38. In coming to this conclusion I have taken into account the following matters :

(1) The wall in question, after its construction, stood for some eight years with nothing to suggest that it was in any way unstable or unsafe;

(2) The demolition of the wall was not due to it being unsafe or dangerous in any way but for the purpose of renovation and expansion of the complex and for air conditioning installation;

(3) The undercutting of the concrete undertaken by the plaintiff and his co-worker was a deliberate act of their own in direct contravention to the method that they were told to adopt;

(4) In carrying out that undercutting method (done with a view to ultimately pushing down the wall), no steps had been taken to ensure the safety of the wall while being undercut in that no shoring of any kind to that wall was put in place, thus destabilizing the wall but not in a controlled manner.

Decision

39. For the reasons given, the defendants have not shown that the cause of the collapse of the wall in question was due to any fault of the Third Party or that the Third Party was in any way negligent towards the plaintiff.

40. Moreover, the designers of the wall could not have foreseen that the wall would be demolished by using the undercutting method in such an unsafe manner without shoring and therefore cannot owe any duty to the plaintiff for doing what he did.

41. It is irrelevant whether the plaintiff was entirely outside of the scope of what he was told to do by the 1st defendant when he chose to undercut the wall or whether the defendants actually instructed him to do what he did. That issue can only be between the plaintiff and the defendants. It cannot affect the Third Party claim or for that matter the Fourth Party claim.

42. In view of the conclusion which I have arrived at on causation, it is unnecessary for me to go into any details of the Fourth Party claim since that claim can only be a live issue if the Third Party was found to be liable to the defendants in the Third Party Proceedings.

43. Accordingly, the Third Party claim by the defendants against the Third Party is dismissed and likewise the Fourth Party claim brought by the Third Party against the Fourth Party is also dismissed.

Costs

44. There will be costs order nisi as follows :

(a) the defendants pay the costs of the Third Party in defending the Third Party proceedings;

(b) the defendants also pay the costs of the Fourth Party in its defence of the Fourth Party proceedings; and

(c) all the above costs to be taxed if not agreed.