ACTION NO. 2196 OF 2000
Date of Judgment: 30 March 2001
_______________
J U D G M E N T
_______________
1. The Plaintiff is the owner of a property on Victoria Peak known as No. 7 Pollock's Path. It is situated on the south side of Pollock's Path. The front of the 4 storey house erected on the property faces north towards Victoria Harbour.
2. Behind the house but still on the Plaintiff's property there is a driveway or access road some 52.9 metres long which enables the occupants of houses No. 12 and No. 8 to gain access to their properties from Pollock's Path. This road or driveway has been referred to during the trial as the "access ramp" and therefore, although this description does not give a particularly accurate impression of the roadway, I will use that term in my judgment. Behind the Plaintiff's house the access ramp is supported by a caisson retaining wall and at its western end by a reinforced concrete L-shape retaining wall. Metal railings run for much of the length of the access ramp on its northern side.
3. Although the access ramp is situated on the Plaintiff's land, the owners of No. 8 and No. 10 Pollock's Path have a right of way over it. This right of way was referred to when by a Memorandum of Agreement in 1955 the government amended the conditions of regrant of No. 7 Pollock's Path to its owner. It stated:
"(a) that the existing right of way over the private road situate at the Southern boundary of Rural Building Lot 671 and shown hatched green on the plan hereto annexed is exclusively reserved to and for the benefit of the Lessees of Rural Building Lots Nos. 540 and 513;
(b) that the within named Lessee is and shall be relieved from the liability for upkeep and maintenance of the said private road; and
(c) that so far as hereby modified the terms and conditions of renewal (No. 4784) shall remain in full force and effect."
4. These proceedings have come about because the Defendant which is the owner of No. 10 Pollock's Path wishes to redevelop its site on which a house known as "Sky High" formerly owned by the Hong Kong Bank once stood, and build 5 houses. Such a project has involved the demolition of the previously existing building on the site and has and will involve site formation for the new houses and then the construction of those houses. Since at present the only already built means of access to No. 10 (or at least to its upper portion where 3 of the houses would be constructed) is the access ramp, this would mean that construction machinery and materials as well as earth and rubble would be transported via the access ramp.
The first proceedings
5. This is not the first time this project of the Defendant and the use of the access ramp has resulted in court proceedings. In March 1998 after the Defendant started demolition work on the site the Plaintiff sought and obtained an ex parte injunction from Seagroatt J in HC Action 3919/98 restraining the Defendant "(i) from being at or entering upon the Plaintiff's property .... save to pass along the right of way granted to the 1st Defendant under the Crown lease of the subject property; (ii) severing, removing or defacing or damaging any building or structure on the subject property and (iii) leaving, placing or dumping debris or other construction materials on the subject property." Some of the Plaintiff's complaints at that time were different to its present complaints. One, however, was similar and that related to the dismantling of some of the railings along the access ramp so that large lorries could use the ramp. At that stage a stretch of railing had been dismantled to facilitate use of the access ramp by 5.5 ton vehicles.
6. That ex parte order was replaced by undertakings given by the Defendant to court which were embodied in a consent summons which was made an order of the court on 4 July 1998.
7. On 9 July 1999, the parties settled the action and entered into a Deed of Undertaking taking whereby the Defendant undertook to the Plaintiff to carry out those things which were already undertaken by the Defendant to the court in the order of 4 July 1998 ("the deed of undertaking"). The undertakings given on 9 July 1999 were to refrain from:
"a) Being at or entering upon the Subject Property save to pass along the right of way granted to Pearl Fame under the Government Lease of the Subject Property;
b) Severing, removing, defacing or damaging any building or structures on the Subject Property; and
c) Leaving, placing or dumping debris or other construction materials on the Subject Property.
d) infringing the airspace above the subject Property.
e) building or erecting anything on the Subject Property."
These proceedings
8. This was not to be the end of the matter. On 26 November 1999 the Defendant's architect wrote to the Plaintiff stating that the Defendant's contractor would shortly commence site formation and foundation works and recommending that the Plaintiff engage an independent surveyor to ascertain the existing condition of the Plaintiff's property before work started. There then followed further correspondence between the Defendant's architect and the Plaintiff's solicitors as to whether the Defendant would pay for any monitoring of the works by the Plaintiff's surveyor beyond a pre-commencement report by a surveyor on the Plaintiff's behalf. This correspondence did not specifically relate to the access ramp.
9. On 6 December 1999, the Defendant's contractor started preparatory work for site formation on the site. A number of items of heavy machinery (such as bulldozers, back hoes and excavators) were moved onto the site. According to Mr Pat Chun Wing, the project director of the Defendant's holding company, if the machinery weighed less than 24 tonnes it was unloaded from a transporter at the bottom of the access ramp and then travelled up the access ramp on wood placed on the ramp to protect its surface. Two items of machinery which weighed more than 24 tonnes did not use the access ramp but an unauthorised haul road direct from Pollock's Path onto the site.
10. Sometime in January or February 2000 the Defendant's contractor started to use 24 ton lorries in the site formation work. These vehicles gained access to the site via the access ramp.
11. Despite a stipulation by the Defendant in the tender documents that the contractor should not remove the Plaintiff's railings running along the access ramp, the railings along part of the right of way were altered by the contractors' workers or subcontractors. This was done by cutting off the upper part of the railings and rewelding them with an L-shaped support further away from the edge of the access ramp so as to facilitate large trucks using the ramp.
12. Having discovered the alteration to the railings and cracks in the paved surface of the right of way which they believed were the result of the use of the access ramp by heavy trucks, the Plaintiff's directors caused their solicitors to write to the Defendant on 12 February 2000 complaining that these actions constituted trespass and breach of the undertaking of 9 July 1999. The solicitors also enclosed a letter from the Plaintiff's architects suggesting that the use of the driveway by such heavy vehicles might affect the structural frame of the access ramp which would affect the stability of the slope.
13. The Defendant's architects immediately instructed the Defendant's contractor to re-instate the railings and apologised for the damage to the right of way. They stated that epoxy had been applied to repair the cracks and that steel plates had been placed on the surface to prevent further deterioration to the road surface. They also stated that their geotechnical consultants would assess the stability of the right of way and that the contractors would install monitoring points along the right of way.
14. Despite this reply, the Plaintiff sought and obtained an ex parte injunction from Deputy Judge Chu (as she then was) on 1 March 2000. The application by the Plaintiff was supported by a preliminary geotechnical report from Dr Roger Sze of Roger Sze and Associate Ltd. This report stated that there had been severe damage to the road surface and that although no major cracks could be found on the surface of the L-shaped retaining wall and there was no sign of immediate instability of the caisson wall, the design surcharge loading on the caisson wall was only 11.5 KPa which was mainly for private cars or light goods vehicles with maximum permitted gross weight not exceeding 5.5 tonnes. Dr Sze recommended that to avoid further damage to the retaining walls and the surface of the access ramp only vehicles with a maximum permitted gross weight not exceeding 5.5 tonnes should be allowed to use the ramp.
15. The order of Deputy Judge Chu restrained the Defendant from:
"(i) passing and re-passing in vehicles with a gross weight in excess of 5.5 tonnes along the right of way granted to the Defendant ....;
(ii) severing, removing, re-locating, defacing or damaging any structures constructed on the Access Ramp;
(iii) further damaging the Access Ramp whether by cracking, breaking, dislodging or howsoever otherwise damaging its surface cement; and
(iv) leaving or placing further steel protection plates or other construction materials along the Access Ramp or on any other part of the Subject Property."
16. On 20 March 2000, Waung J by consent extended Deputy Judge Chu's injunction until further order.
17. Pursuant to an undertaking given by counsel to Deputy Judge Chu on 1 March 2000 the Plaintiff issued the Writ in this action on the following day, 2 March 2000.
18. In its Statement of Claim the Plaintiff alleges that a number of actions of the Defendant amount to both breach of the Deed of Undertaking and Trespass. They include:
(i) the alteration and damage to the railings
(ii) damage to the road surface of the access ramp
(iii) the placing of steel protection plates along the access ramp
(iv) injecting epoxy into cracks on the surface of the access ramp.
19. The Plaintiff further alleges that the Defendant's right of way is limited by reason of the physical characteristics of the access ramp, including in particular the design surcharge loading of the caisson wall which supports it, to use by vehicles not exceeding a gross maximum weight of 5.5 tonnes and that user by vehicles over such weight constitutes trespass.
20. The Plaintiff seeks inter alia an injunction restraining a repetition of the alleged trespasses and breaches of the deed of undertaking, including the use of the access ramp by vehicles of gross maximum weight over 5.5 tonnes and damages for the alleged breaches of deed and for trespass.
21. The Defendant admits the alteration and damage to the railings and that it was wrongful but it alleges that before the issue of the writ it had offered to reinstate them. It also admits placing steel protection plates on the ramp and injecting epoxy into the road surface but denies that it was wrongful on the grounds that the Defendant had a duty to repair and maintain the access ramp. The Defendant denies damaging the road surface of the access ramp and contends that the alleged damage was caused by pre-existing latent defects or damage by wear and tear. Furthermore it contends that the design surcharge loading of 11.5 KPa is sufficient for standard highway (HA) loading and suitable for vehicles with gross maximum weight exceeding 5.5 tonnes.
22. The most significant part of the relief sought by the Plaintiff is the injunction restraining the Defendant from utilising vehicles of gross maximum weight exceeding 5.5 tonnes.
23. The principles of law relating to user of a right of way are well-established. In the case of an express grant of a right of way the court must construe the right of way from the date of the grant. The court must construe the words used but also the material circumstances such as the physical characteristics of the right of way. An express grant of a right of way which is unrestricted in its terms, is restricted by the physical limitations of the track in question.
24. The principles applicable were considered in Milner's Safe Company Ltd. v. Great Northern and City Railway Company 1907 Ch D 208 at 221 and in Todrick v. Western National Omnibus Co. Ltd 1934 Ch D 190. As Farwell J said in the latter case (at P. 206)
"In considering whether a particular use of a right of this kind is a proper use or not I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made: see United Land Co. v. Great Eastern Railway, per James LJ; and in my judgment a grant for all purposes means for all purposes having regard to the consideration which I have already mentioned. It would be ridiculous to suppose that merely because the grant was expressed to be for all purposes it entitled the owner of the dominant tenant to attempt to use it for something for which it obviously could not be used."
25. It is also well established that a person who has a right of way upon another's land and acts in excess of his right is a trespasser.
The words granting the right of way
26. It is apparent that prior to 1948 there was already in existence a right of way situated at approximately the same location as the access ramp. In 1948 the three owners of No. 7, No. 8 and No. 10 Pollock's Path entered into an agreement binding on their successors and assigns regarding the right of way and its repair (see Memorial No. 185 078). The agreement referred to the right of way as being over and along "a private road .... used by the parties thereto as a means of ingress and egress" to their properties. There was no reference to the right of way being usable by specific categories of persons nor was there any specific reference to vehicular traffic.
27. In 1952 the Government regranted No. 7 Pollock's Path to the owner. That regrant was amended in 1955 by the Memorandum of Agreement to which I have referred. It referred to the "existing right of way" over the private road and relieved the owner of No. 7 from liability for its upkeep and maintenance.
28. In 1960 there was a grant of No. 10 Pollock's Path. By this grant the Hong Kong Government granted to the owner of No. 10 inter alia:
"... free and uninterrupted right for the said Lessee its tenants servants visitors workmen and other persons authorized by the said Lessee in that behalf from time to time and at all times during the continuance of this demise for all purposes connected with the proper use and enjoyment of the said demised premises to pass and repass on along over by and through those portions of the Remaining Portion of Section B of Rural Building Lot No. 1 (i.e. No. 7) aforesaid and the Remaining Portion of Section E of Rural Building Lot No. 1 (i.e. No. 6) coloured green on the said plan and thereon marked "Right of Way".
29. I am satisfied that the reference to the right of way being "for all purposes connected with the proper use and enjoyment" of the premises contemplated the use of the right of way by vehicular traffic. Although not necessary for the conclusion I have reached, support for this conclusion is provided by the fact that the right of way was the only means of access to No. 10 Pollock's Path and the grant specifically reserved to the Crown the right of access to the property "with or without horses, carts, carriages and other necessary things" for the propose of quarrying.
30. Furthermore the grant being for "all purposes connected with the proper use and enjoyment of the premises" and the right to develop the property being a proper use and enjoyment of the premises, I am satisfied that the passage of construction vehicles fell with the express terms of the right granted to the owner of No. 10. It is significant that the grant was not confined to "necessary" purposes which might have given rise to the argument that it was not necessary to use construction vehicles on the road, since permission could be sought to obtain alternative access directly from Pollock's Path.
31. I therefore find that the express wording of the grant of the right of way contemplated vehicular traffic and was sufficiently wide to cover the use of the access ramp by construction vehicles including those of 24 tonnes.
Physical characteristics
32. It is necessary therefore to look at the physical characteristics of the time of the grant of the right of way in order to decide whether they imposed physical restrictions on the grant.
33. One of the matters upon which there has been agreement between the parties is as to the absence of or at any rate the extreme paucity of any evidence of the physical characteristics of the right of way prior to the development of the house that now stands on the site of No. 7 Pollock's Path in the mid 1970s
34. It would appear that, prior to the construction of the house of No. 7, the right of way was bordered on its northern side by a natural slope which ran down to Pollock's Path. In the 1970s that slope was cut in order to form a site for the house which now stands on No. 7 Pollock's Path. It is common ground that the present caisson and retaining wall was designed by the firm of Andrew Jean and Associates, Architects and Engineers ("Andrew Jean") between 1975 and 1978 to support the right of way as part of that development.
35. This trial has focused on the loads designed for by Andrew Jean at the time on the basis of an inference that he would have designed the caisson and retaining wall to support the traffic load to which the existing right of way applied.
36. Andrew Jean's designs would have had to be and were approved by the Buildings Department which would have had the relevant plans and design calculations before it. Those contemporary plans and the calculations of Andrew Jean were ultimately produced in evidence and the experts gave their comments on them.
37. It is accepted by both parties, and it is apparent from the calculations, that in designing the caisson and retaining wall Andrew Jean provided for an equivalent surcharge on the right of way of a uniform load of 11.5 KN/m2 or 11.5 KPa. There was no express reference in Andrew Jean's calculation to the 11.5 KPa being a traffic loading. The principal matter in dispute in this trial has been as to whether that 11.5 KPa was to cater for a traffic loading and if so whether that traffic loading would include the use of the access ramp by vehicles over 5.5 tonnes in particular 24 ton trucks.
38. The Plaintiff's case is that the design load of 11.5 KPa was wholly or mainly designed to cater for "dead" loads other than traffic leaving insufficient capacity to sustain the effect of 24 tonne trucks using the roadway. The Defendant's case is that the design loading of 11.5 KPa was more than sufficient according to the standard of design used at the time to accommodate the use of the access ramp by 24 tonne trucks.
Dimensions of vehicles using the right of way
39. A physical characteristic that might, if raised on the pleadings, be relevant to whether there is any restriction upon an otherwise unlimited right of way is its width. In Todrick's case for instance the court was particularly concerned with the width of the vehicles using the road. In the early part of the trial Miss Cheng for the Plaintiff argued that the court, having looked at the maximum permitted weights for vehicles classified as "light goods vehicles" (5.5 tonnes) and "medium goods vehicles" (24 tonnes) under the Road Traffic (Construction and Maintenance of Vehicles) Regulations Cap. 374 was entitled to look at the maximum permitted dimensions for such classes of vehicles in deciding whether the user of this right of way was restricted to vehicles of gross maximum weight of 5.5 tonnes.
40. After hearing argument I ruled that the dimensions of the vehicles entitled to use the right of way had not been raised on the pleadings as they then stood. Nor incidentally was it the basis for the interlocutory injunction. Miss Cheng was not in a position to say that all goods vehicles of a gross weight of 24 tonnes were of certain dimensions. She could only point to the maximum dimensions for light and medium goods vehicles permitted by law (which incidentally did not differ as to width). There was nothing therefore to preclude 24 tonne vehicles (not to mention for instance 8, 10 or 15 tonne vehicles) falling within the same dimensions as a 5.5 tonne vehicle, to which dimensions the Plaintiff appeared to take no exception. On the face of the pleadings (see paragraph 13 of the Statement of Claim) the Plaintiff was maintaining that by its physical characteristics the right of way along the access ramp was restricted to the use of vehicles of gross maximum weight not exceeding 5.5 tonnes. It was not for instance alleging in the alternative that the right of way was restricted to vehicles falling within the maximum permitted dimensions for light goods vehicles. The Plaintiff was therefore alleging that the weight of vehicles over 5.5 tonnes precluded their use on the access ramp not their dimensions.
41. My ruling does not mean that the Defendant would be entitled to use vehicles of whatever dimensions on the right of way if the right of way was able to sustain the loading imposed by such vehicles. There can be no doubt for instance that the Defendant would not be entitled to use vehicles which damage the Plaintiff's railings or otherwise exceed the width of the right of way granted to the Defendant.
Stability of the access ramp
42. The principal issue is this case therefore has been the stability of the access ramp by virtue of its retaining structures (the caisson and retaining wall).
43. Although in the Statement of Claim the Plaintiff alleges that the right of way is restricted to use by vehicles with a gross maximum weight not exceed 5.5 tonnes and the Defendant simply contends that there is no such restriction, for practical purposes the court is concerned with whether vehicles of a gross maximum weight of 24 tonnes should be permitted to use the right of way. This is the maximum weight of vehicles which the Plaintiff seeks to use on the right of way. Mr Chan for the Defendant informed the court that the Defendant was prepared to undertake to the court not to use vehicles of greater weight on the access ramp.
44. The court has received a considerable amount of expert evidence concerning the stability of the access ramp and whether the use of trucks of 24 tonnes gross weight would exceed the design load of the retaining structures (the No. 7 caisson and retaining wall). This has involved consideration of a number of matters including:
(i) the effect, if any, of the retaining wall belonging to No. 8 Pollock's Path on the other side of the access ramp (the No. 8 wall) on the No. 7 wall;
(ii) the nature of geology of No. 7 Pollock's Path;
(iii) the effect of the use of such trucks on the rock anchors supporting the No. 7 wall;
(iv) the effect of vibration, dynamic loading and frictional and centrifugal loads.
45. In so far as geotechnical evidence is concerned the expert evidence put before the court from the Plaintiff consisted of the oral evidence of Dr Roger Sze and his two written reports dated February and March 2000 and a subsequent written report by two geotechnical experts, Drs S Cheung and T Law of Atkins China Ltd dated July 2000.
46. On the other hand the Defendant relied upon the oral evidence of Dr Brian Littlechild, formally of Ove Arup and Partners, whose report dated 19 September 2000 and an earlier report of Ove Arup dated June 2000 were before the court. There were also before the court two reports of Paul Tong and Associates of 23 February 2000 and 8 March 2000. Paul Tong and Associates were the registered structural engineers responsible for the geotechnical aspect of the works being carried out by the Defendant and responsible for what is known as Category I supervision of the works in order to satisfy the requirements of the Building Department.
47. In assessing the evidence before the court I have borne in mind that Drs S Cheung and T Law of Atkins China and the persons who compiled the reports of Paul Tong and Associates and the early report of Ove Arup were not subjected to cross examination. I have borne in mind also the critical comments of Dr Littlechild on the earlier report of Ove Arup and the position of Paul Tong and Associates in relation to the development of 10 Pollock's Path.
48. Mindful of these factors, it is nonetheless fair to say that it is only Dr Roger Sze who has expressed any substantial concern for the stability of the access ramp as a result of its use by 24 ton trucks. Dr Roger Littlechild and the reports of Paul Tong and Associates and the early report of Ove Arup of June 2000 conclude that the access ramp is capable of accommodating such use. Even the geotechnical engineers who compiled the report obtained by the Plaintiff from Atkins China Ltd accepted that the design surcharge load of the retaining wall would normally accommodate 24 ton vehicles operating on top of the retaining wall and state that "while some of the concerns on long term stability of the retaining walls raised by Roger Sze and Associates are debatable one of them definitely need attention" and they go on to refer the need to seal the cracks in the road surface to prevent corrosion of the rock anchors.
49. A significant feature of the evidence of all the experts who attended the scene is that none of them observed any signs of instability or distress in the No. 7 wall. Even Dr Sze conceded that he could see no sign of immediate instability. This is despite the fact that the access ramp supported by the No. 7 caisson and retaining wall has obviously been used for vehicular traffic over the past 22 years (there is for instance a garage at No. 8 Pollock's Path and a vehicle can be seen at that address in the photograph exhibit D1). This absence of signs of distress is also despite the fact that a very substantial mansion known as Sky High (depicted in the photograph exhibit D1) was built in the early 1980s on the site of No. 10 by the Hong Kong and Shanghai Banking Corporation. The construction of that building must have involved the use of the access ramp as that was the only means of access. Dr Roger Sze attempted to explain this by stating that based on his local experience it was unlikely that the construction of that house had involved the use of heavy machinery because of relatively cheap labour at that time and that concrete would have been mixed on the site. Dr Sze, however, conceded in cross-examination that he left Hong Kong in 1980 to pursue his studies and did not return to work here until 1995. I prefer the evidence of Dr Littlechild, who was a practising engineer in Hong Kong at the relevant time that 24 ton trucks were commonplace in the construction industry at that time and that it is likely that ready mixed concrete would have been used for such a building. I conclude that it is probable the vehicles in excess of 5.5 tonnes used the access ramp during the construction of Sky High in 1980s (though the actual extent of such user must be a matter of conjecture) without producing any sign of distress in the No. 7 caisson and retaining wall.
50. A further feature which has significance in relation to the issues raised in this trial has been the role and attitude of the Buildings Department. It was involved not merely in approving the design of the No. 7 caisson and retaining wall but also for instance later in investigations into the stability of the No. 8 wall. The plans and calculations submitted to them would have made it clear that it was dealing with what is described in the calculations as a "conduit Road" providing the only means of access to No. 8 and No. 10 Pollock's Path. From those documents and subsequent investigation into the stability of the No. 8 wall it would have been apparent that the access ramp was used by vehicular traffic and that that usage would be likely to include vehicles such as removal vehicles, ambulances, and fire engines. It is also likely to have been within their contemplation, bearing in mind the limited life-span of buildings in Hong Kong, that at some stage the buildings to which the access road gave access would be redeveloped and the access ramp would have to bear construction vehicles. There is nonetheless no suggestion that the Buildings Department has ever raised any concern about the stability of the No. 7 caisson and retaining wall even after the standard for normal highway loading (HA loading) has apparently been increased to 20 KPa, nor have they or any other government authority sought to impose any weight limit on vehicles using the access ramp.
The principal expert witnesses
51. This trial has to a great extent involved examination of the conflicting evidence of the parties' geotechnical expert witnesses, Dr Roger Sze called by the Plaintiff and Dr Brian Littlechild called by the Defendant.
52. Although I shall deal with their evidence more specifically in relation to the particular issues raised I shall make a few general observations about their evidence at this stage.
53. Dr Sze's experience and in particular local experience during the relevant period appeared considerably more limited than Dr Littlechild, bearing in mind that he left Hong Kong to pursue his studies in 1980 and only returned to work here in 1995. Dr Littlechild on the other hand started practice as a geotechnical specialist in the United Kingdom in 1972 and commenced working in Hong Kong in January 1978. Dr Littlechild's experience with rock anchors which are the principal means of support of the No. 7 caisson and retaining wall is very considerable. Dr Sze on the other hand has never designed or built such anchors in Hong Kong and indeed was unaware if ground anchors had been used in permanent structures since 1978.
54. Dr Sze's first report in February 2000 in which he recommended limiting the use of the access ramp to vehicles of 5.5 tonnes gross weight was based on the proposition that the surcharge of the wall should be 20 KPa for normal highway loading (HA loading) whereas the design surcharge loading on the wall was 11.5 KPa "which was mainly for private cars or light goods vehicles which permitted gross weight not exceeding 5.5 tonnes". This report formed the basis of the Plaintiff's application for an interlocutory injunction.
55. His second report of March 2000, having read the reports of Paul Tong and Associates, accepted that the appropriate design standard for normal highway loading was 10 KPa, but went on to suggest that in the case of this access ramp it should have been designed for abnormal highway loading (HB loading). The additional loadings that he claimed necessitated this classification were dynamic loading and excessive frictional and centrifugal loads.
56. When he came to give evidence he referred to dynamic loading and excessive frictional and centrifugal loads but the emphasis of his evidence was on issues which were either newly raised or only obliquely raised in his reports which he claimed rendered the design surcharge of 11.5 KPa inadequate for the passage of 24 ton trucks. The most significant of these was his theory of the effect of the No. 8 wall on the No. 7 caisson and retaining wall. The calculations he put forward purported to provide a logical basis for his proposition that the access ramp could support 5.5 ton vehicles but no heavier. I was unconvinced by his explanation that he had implicitly referred to this issue in his report. Other issues which fall within this category were the effect of vibration, the possibility of wedge failure and toppling, and the effect of kaolin. The impression I was left with was that Dr Sze was searching for arguments to justify the conclusion he had reached in his earlier report. I did not form the impression that these issues had been investigated adequately by Dr Sze if they were to form the basis for conclusions.
57. On the other hand I found Dr Littlechild to be a more convincing witness. I bore in mind his former connection with Ove Arup and Partners which firm had been engaged as a consultant by ELE, the Defendant's contractors for 10 Pollock's Path. He was frank about this connection and I did not form the impression that his professional independence was compromised by it. He was for instance very frank in his views of the earlier Ove Arup report.
58. I accepted that his professional experience had involved him in contact with Government Authorities in Hong Kong and, although not specifically a highway expert as such, his expertise in geotechnical matters and particular retaining walls and rock anchors qualified him to give evidence on the issues in this trial.
59. He was an enthusiastic witness and sometimes gave long answers to questions but I did not form the view that this was as a result of losing his objectivity rather than a desire to explain unfamiliar matters to those with no experience of them.
60. That does not mean that there were not matters in his evidence which are not open to criticism. He was cross examined by Miss Cheng with her considerable technical knowledge over several days. There were for instance matters upon which his evidence was initially confusing, in particular in relation to normal HA loading, but it must be borne in mind that it was not apparent that this was an issue even after the evidence of Dr Sze until it was raised in cross-examination. I accepted Dr Littlechild's explanation that it was a mistake which led him to attribute the reference to HA loading in para. 3.2.1 of his report to the Building (Construction) Regulations B(C)R 1975 rather than BS 5400 published in 1978. A number of the issues newly raised by Dr Sze had to be dealt with at short notice. It is true that Dr Littlechild had not visited the site nor sought to obtain Andrew Jean's calculations prior to making his report, but it must be borne in mind that he regarded his function at that stage to resolve the issues which had arisen between the reports of Dr Sze on one hand and those of Paul Tong and Associates on the other. It is true also that in his report he made reference to the access ramp as being Pollock's Path. I accepted his evidence that this was simply a mistake as to name and not as to the nature of the location upon which he was called upon to advise. I was impressed that he considered that he had a professional responsibility for the safety of the No. 7 caisson and retaining wall which went beyond his responsibility as an expert witness.
61. I turn now more specifically to the factual issues that have arisen in this trial.
62. Bearing in mind my findings regarding the absence of any restriction upon the right of way in the wording of the grant, the burden of proving that the physical characteristics of the right of way preclude its use by 24 ton trucks must lie upon the Plaintiff.
63. It is the Defendant's contention that the right of way can sustain the passage of 24 ton trucks by virtue of the fact that it was designed by Andrew Jean to sustain normal traffic loading known as HA loading.
HA loading
64. There has been no serious dispute that if the access ramp was designed to sustain HA loading then it is capable of sustaining the passage of 24 ton trucks in this case.
65. There was a change of definition of HA loading between BS153: Part 3A: 1972 which stated that "normal loading (Type HA) approximately represents the effect of 3 vehicles, each 22 tonnes (220 KN) in weight closely spaced in each of two carriageway lanes followed by 10 tonne (100 KN) and 5 tonne (50 KN) vehicles" and BS5400 which stated that "for loaded length of up to 30 meters the loading (HA) approximately represents closely spaced vehicles of 24 ton laden weight in each of two traffic lanes."
66. In relation to the access ramp we are not dealing with closely spaced vehicles, or with vehicles travelling in more than one carriageway still less with vehicles travelling at the speed one might expect on a normal highway. Miss Cheng herself expressly stated that HA loading would include use by 24 ton vehicles (see page 74 of the transcript).
67. There was no dispute between the experts that HA loading at the relevant time was 10 KPa. During the course of examining Dr Sze in chief Miss Cheng herself expressly stated that there was no dispute that for highway structures HA loading was 10 KPa and Dr Sze agreed (see pages 41 and 74 of the transcript).
68. It was somewhat surprising therefore that Miss Cheng should cross-examine Dr Littlechild with a view to suggesting that HK loading was not 10 KPa. This, however, was perhaps understandable because Dr Littlechild had cited BS 153 Part 3A 1972 as evidence supporting his evidence regarding HA loading. BS 153 had however referred to HA loading as comprising (i) a uniformly distributed lane load and (ii) a knife edge load. It was suggested to Dr Littlechild that he had ignored the requirement to take into account a knife edge load. Dr Littlechild's explanation was that BS 153 related to the design of bridge structures and that the element of knife edge loading did not have to be taken into account in the design of retaining walls. He was also cross-examined about BS 5400 and it was suggested to him that the nominal load of 10 KPa had to be multiplied by a factor of 1.5 to produce the design load for HA loading. Dr Littlechild's explanation again was the same; that BS 5400 was a bridge code and that did not apply to the design of retaining walls where the practice was to use the nominal load of 10 KPa unfactored for HA loading but to include a factor of safety in the design of the retaining wall as Andrew Jean had done. I was satisfied that Dr Littlechild's arrival in Hong Kong in 1978 and his immediate experience on arrival qualified to give evidence as to the practice at that time. Dr Littlechild's evidence was that he regretted citing BS 153 but he only done so because he had been unable at that time to find any direct contemporaneous written authority for 10 KPa. In the course of his evidence he was able to produce an extract from 1982 Geoguide (1st edition) issued by the Geotechnical Control Office which related to the design of retaining walls that included a table apparently issued by the Public Works Department in 1977 setting out the suggested surcharge loads to be used in the design of retaining structures. For non major rural roads, access roads and carparks it suggested HA loading with an equivalent surcharge of 10 KPa.
69. In the light of Dr Sze's evidence accepting the HA loading was 10 KPa and in the absence of evidence of any expert that Dr Littlechild's evidence was incorrect I was satisfied that his evidence regarding HA loading in the design of retaining walls was correct.
Was the access ramp designed for vehicular traffic at all?
70. While the gist of the evidence of Dr Sze was that if the design surcharge of 11.5 KPa was purely for traffic the design was adequate for the passage of 24 ton trucks, the presence of other load factors meant that only part of the 11.5 KPa was available to cater for traffic loading sufficient for the passage of 5.5 ton trucks, Miss Cheng's submissions went further. She suggested that the access ramp was not designed for vehicular traffic at all or that vehicular traffic was not permitted to use it. These propositions not only run counter to the evidence of Dr Sze, her own expert but also the Plaintiff's pleaded case the effect of which was that the access ramp was capable of use by vehicles up to 5.5 tonnes.
71. It was not suggested to Dr Littlechild or at least not directly, that no vehicular traffic should use the ramp.
72. The effect of these propositions would be far reaching. There is no doubt that vehicular traffic currently uses the ramp inter alia to proceed to and from the residence of the French Consul at No. 8 Pollock's Path.
73. In support of the proposition that the access ramp was not designed for vehicular traffic Miss Cheng pointed out that in the design calculations the words "uniform surcharge height of soil on conduit road: 2 feet" appear.
74. There is no dispute that the total saturated weight of 2 feet of soil is 240 lbs/square feet which is equivalent to a surcharge load of 11.5 KPa.
75. It is argued therefore by Miss Cheng that the design surcharge loading of 11.5 KPa provided for by Andrew Jean was simply to cater for a surcharge resulting from an alleged 2 feet of soil on the access ramp above the height of the caisson wall.
76. If that was correct it would mean that the Geotechnical Control Office (GCO) approved plans for support to an access road which would not cater for any load being put on the access ramp. This would be not only illogical but highly unlikely. The use of the term "conduit road" in the calculations would have clearly indicated that the Buildings Department were dealing with a road and not a footpath. I do not believe that they would have been ignorant of what must have been the physical reality of the access ramp at that time. I accepted Dr Littlechild's evidence that rusting metal straps seen exposed through the surface of the concrete of the concrete slabs on the northern side of the access ramp in its upper part are likely to have formed part of the support for railings bordering the access ramp prior to the construction of House No. 7 and the No. 7 caisson and retaining wall. This would indicate that the width of the access ramp and the nature of the road surface (concrete slabs) was at least similar to the present position. The GCO is likely to have been aware that the ramp was a cul-de-sac and provided the only access to No. 10 and No. 8. Furthermore it is common ground that the GCO which had then become the Geotechnical Engineering Office (GEO) investigated the stability of the retaining wall of No. 8 Pollock's Path (the No. 8 wall) which runs along the southern side of the access ramp in 1988. It would have been readily apparent that the access ramp was being used by vehicular traffic. Even if satisfied that the No. 8 wall rested on bedrock (as I am satisfied is likely to have been the case) they would have looked at the stability of the No. 7 wall on the other side of the access ramp.
77. Dr Littlechild's evidence, which I accept, is that even Andrew Jean's calculations themselves indicate the 2 feet of soil above the height of the caisson wall was not treated as a surcharge (I noted that it is not apparent in any event that the height of this soil was 2 feet). Dr Littlechild pointed out that if this alleged 2 feet of soil had been treated as a surcharge the pressure triangle for soil in the diagram would not have started on the same level as the right of way as it did. General soil pressure would not have been calculated using the figure of 7.32 representing the height from the bottom of the caisson wall to the ground level. Nor would the surcharge of 11.5 KPa have been depicted as being on top of the soil rather than parallel with the top of the caisson wall.
78. I consider that Dr Littlechild's ultimate view is probably right, that the design surcharge of 11.5 KPa adopted by Andrew Jean was based on the fact it was equivalent to a notional rather than actual 2 feet of soil and that the reason he based it on 2 feet of soil was simply that it was a convenient design tool to cater for a variety of loads that might be imposed on the road. That figure would also been more than enough to cater for HA loading.
79. In support of both propositions, namely that the road was not designed for vehicular traffic and that the vehicular traffic was not entitled to use it, Miss Cheng cites the Building (Private Streets and Access Roads) Regulations Cap. 123. She bases her argument on the proposition that the "carriageway" as defined in regulation 2 of the Regulations was 2.6 metres in width at its narrowest and the requirements in regulation 5(1)(a)(ii) and regulation 6(2) which fall with Part II under the heading "Planning of Private Streets and Access Roads". They provide for a minimum width of the carriageway of a cul-de-sac of 5 metres and 2.75 metres for access roads.
80. Where a cul-de-sac is an access road I am satisfied that the minimum width of an access road is the width applicable.
81. It was common ground as a result of measurements taken at the site visit to the access ramp that it was 2.6 meters wide if that part of the road surface was ignored where it slopes to form a gutter but 2.8 meters wide if that area is included. In my view the area which slopes to form a gutter is part of the road "used or intended for use by vehicular traffic". While it may not be necessarily intended that the wheels of vehicles should be driven in this area it is common experience that relatively shallow gutters such as these are so used. Even if it was not the case it is manifest that the superstructure of a vehicle may use areas of the road that its wheels do not touch.
82. Nothing in any case has been pointed out to me to suggest that the GCO of the Buildings Department were informed that the access ramp was less than 2.75 metres wide. They were informed as I have already mentioned that it was a "conduit road". That it was a road used by vehicular traffic would have been readily apparent to them. It would clearly have been obvious to Andrew Jean and he would have designed for it.
The effect of the No. 8 wall
83. It is common ground that the No. 8 retaining wall which appears in a number of photographs (including Exhibit P2(9)) was already in existence of the time of the design of the No. 7 caisson and retaining wall by Andrew Jean in 1975-8. At its eastern and highest portion there is a building erected on top of it.
84. It is also common ground that, from the plans submitted to the Buildings Department in relation to the design of the No. 7 caisson and retaining wall, the Buildings Department would have been aware of the presence of this wall. In the calculations submitted by Andrew Jean to the Buildings Department there is no reference to any loading imposed by the No. 8 wall on the No. 7 caisson and retaining wall.
85. Dr Sze conceded that even in 1975 if there had been any loading imposed on the No. 7 caisson and retaining wall by the No. 8 wall the Buildings Department would have required that to be taken into account.
86. It is further agreed between the parties that if the No. 8 wall had been built upon bedrock it would have imposed no load on the No. 7 caisson and retaining wall.
87. It was Dr Sze's evidence that, although he had not investigated whether the No. 8 wall was built upon bedrock, he had taken the view that at that time the wall was built the builders might not have founded it on bedrock. He said that there was a common practice that local builders "may not" fully comply with the Building Regulations in particular the depth of foundations because it was cheaper to have a shallow foundation than a deep one. Bearing in mind that there was no evidence of when the wall was built still less who had built it, this alleged "common practice" did not appear to take the question of whether the No. 8 wall was founded on bedrock beyond speculation. Nonetheless an important part of Dr Sze's evidence was based on the hypothesis that it was not built on bedrock and he produced a calculation (Ex P4(A9)) which is described as an estimation of "the likely possible surcharge" from the No. 8 wall on the No. 7 caisson and retaining wall. He first calculated what he described as the surcharge the No. 8 wall would impose on the No. 7 caisson and retaining wall and then converted it into what he maintained was an equivalent surcharge on the right of way of 6.4 KN/m2 or KPa. After deducting this 6.4 KPa from the design load for the caisson wall of 11.5 KPa he maintained that the balance of 5.1 KPa would be sufficient to allow 5.5 ton vehicles to use the access ramp.
88. It was argued that further factors suggested that the No. 8 wall was not founded on bedrock: the fact that in his calculation of pressure on the No. 7 caisson and retaining wall Andrew Jean treated what was under the surface of the right of way as soil and by extrapolation of an angle which appears to be a rock line on one of the design drawings exh. P4(A8).
89. It was Dr Sze's evidence that it would have been obvious that the No. 8 wall imposed a surcharge on the No. 7 caisson and retaining wall. If that is so and the loading is as significant as he now alleges, it is difficult to understand why he made no reference to it in his report and in particular he first report. He claimed that it was implicit in his first report. I doubt if that is so. Even if it were the case it is difficult to understand why he should not have made the point expressly in view of its supposed importance.
90. I prefer Dr Littlechild's evidence that it was likely (save at one point whether No. 8 wall was very low and would impose an insignificant load) that the No. 8 wall was founded on bedrock or that even if it was not (and Dr Sze's projection of the rock face was correct) the angle of the load spread from the retaining wall would not result in any significant load reaching the No. 7 caisson and retaining wall before the load spread reached bedrock. I also considered that there was a considerable force in his criticisms of Dr Sze's calculations as exh. P4(A9). Quite apart from the correctness of the nature of the formula used Dr Sze ignored the weight of the soil behind the No. 8 wall (of which he claimed he was unaware) and the building on top of the No. 8 wall.
91. If the No. 8 wall did impose a significant load on the No. 7 caisson and retaining wall that would have been a very significant part of the calculations submitted by Andrew Jean to the Buildings Department. The absence of any such calculation is a strong indication that it did not impose any such load. Moreover the Buildings Department would have been satisfied of that. The suggestion that that might have been because that was taken into account by the equivalent surcharge of 11.5 KPa on the right of way appears to me to be a most unlikely hypothesis. If the No. 8 wall did impose a horizontal pressure on the No. 7 caisson and retaining wall than there would have been no reason for Andrew Jean not to indicate it as such, rather than convert it into an equivalent surcharge on the right of way, a calculation which it is apparent from the evidence is not a standard formula and the nature of which has been the subject of considerable controversy in this trial.
92. I accepted Dr Littlechild's view that a projection of what is described expressly as the "rock line" in the drawing (exh. P4(A8)) would lead to the inference that the No. 8 masonry wall was founded on bedrock. The isolated angle which Dr Sze has used as the basis his projection of the rock line appears to be a most unlikely basis for projecting where the rock line ran. There is no apparent reason why there should be a sudden change in the angle of the bedrock at that point. Moreover I accept Dr Littlechild's evidence that nobody would have done two measurements of the rock surface so close together so as to be able to fix the angle of the rock at that line. The bore holes at the foot of the No. 8 wall during the investigation into the stability of that wall are consistent with (if not conclusive evidence of, because of their length) the No. 8 wall being founded on bedrock.
93. The fact that Andrew Jean treated the material under the right of way for the purpose of his calculations as soil does not indicate that the No. 8 wall was founded on soil. It was simply a conservative means of doing the calculation. It is readily apparent from the drawing (exh. P4(A8)) that there would only have been a small depth of soil in any event under the right of way in relation to the height of the No. 7 caisson and retaining wall.
Wedge failure and toppling
94. Both Dr Sze and Dr Littlechild gave evidence about the geology of the site and the existence of joint sets at the site.
95. It is common ground that when the Buildings Department approved the design of the No. 7 caisson and retaining wall they would have been aware of at least the potential existence of such joint sets.
96. It was not entirely clear from Dr Sze's evidence whether he was saying that because of the absence of any direct reference to joint sets in Andrew Jean's calculations such joint sets must in some way (which he did not explain) have been taken into account in the equivalent surcharge of 11.5 KPa on the right of way or that he was saying the presence of joint sets was otherwise material to the weight of vehicles which should be allowed to use the right of way. If the latter he failed to show there was any significant difference between the effect of 5.5 and 24 ton vehicles.
97. Once again the issues of wedge failure and toppling receive no or only passing reference in Dr Sze's reports, which would be surprising if these issues were significant.
98. Furthermore, I found the limited nature of Dr Sze's observations of the site surprising if he considered these factors to be of concern. Initially in cross-examination he said he could not remember if he saw more than one joint set. Bearing in mind that, as he himself conceded, one set of subvertical joints cannot cause wedge failure, (as opposed to toppling), this observation perhaps indicated that his evidence was based on supposition based on the general reference to faults in the geological map rather than his observations. I formed the impression that he was basing much of his evidence on what he thought he could see in the photographs rather than a detailed site investigation.
99. At a very late stage in his evidence he referred to the recent concern over the presence of kaolin in joints particularly in the light of two recent landslips in Hong Kong including the one at Shum Wan Road. He said that the significance of kaolin may not have been considered by Andrew Jean. That he should mention this issue for the first time at such a late stage was again surprising if he considered it significant, bearing in mind that he had been the design team leader involved in the investigation and design of rehabilitation measures after the Shum Wan Road landslip.
100. Dr Sze did admit that water pressure, which is the principal mechanism for slope failure had been taken into account in Andrew Jean's calculations. He also admitted that the design of the rock anchors had been designed to take into account wedge failure.
101. I preferred the evidence of Dr Littlechild to that of Dr Sze on these issues. His evidence was that neither wedge failure nor toppling were issues in this case. In so far as wedge failure is concerned his evidence was that it was the horizontal force of water pressure that precipitated such failure. In this case because the site was at the top of a hill the surface of which was mostly paved and the fact that water could have escaped from major cracks below Pollock's Path, combined with the insufficiently continuous nature of the joints and the fact that even if some kaolin was present in the joints, such joints were strong enough by reason of their tightness and roughness, the possibility of wedge failure could be discounted. In so far as toppling is concerned, toppling was very rare in Hong Kong. There had to be very steep joints before toppling could occur and the joints on this site were not sufficiently steep.
102. I find therefore that Andrew Jean's designs did take into account the geology of the site and that the design surcharge of 11.5 KPa was not calculated to take into account the factors of joints. I accepted Dr Littlechild's evidence that, in so far as one can be certain, wedge failure and toppling are not a cause for concern in this case. The Plaintiff has not shown that the use of the access ramp by 24 ton vehicles would be likely to precipitate wedge failure or toppling or any other failure in the slope or joints.
Vibration
103. The oral evidence of Dr Sze was to the effect that on visiting the site on 21 February he had carried out a detailed investigation into vibration and concluded from his experience that it was likely to cause structural damage.
104. It was curious, therefore that when subsequently writing his first report he referred to his observations on his site visits and made no reference either to vibration or its effects. When asked about this he said it was implicit in his report when he referred to excessive loading on the access ramp. He maintained that an expert reading his report would know that vibration had an effect on his assessment. I was not convinced. In any event he knew by the time that the report was dispatched that it was intended for submission to court in support of an application for an injunction.
105. Even in his second report he made no mention of his own investigations but in relation to vibrations simply stated "The owners of No. 7 feels the vibration when a lorry passes the access ramp".
106. Surprisingly the "detailed inspection" he claimed to have carried out did not include any scientific measurement but simply his own assessment.
107. He referred to the Mass Transit Railway Standard B35 which stated that the Peak Particle Velocity (PPV) from blasting should not exceed 25mm per second and in any operation that induced prolonged vibration should not exceed 15mm per second when measured with a vibrograph. Dr Sze said that from his experience the PPV on the access ramp would be between 5-10mm per second but at its peak it "could" exceed 15mm per second.
108. The evidence of Dr Sze was unscientific and even on his evidence there was no evidence of prolonged PPV exceeding 15mm per second.
109. I considered that if he had felt the vibration and though it significant Dr Sze would have recommended a vibrograph reading. His explanation that he recommended monitoring the structural movement of the access ramp as a substitute was not convincing if he genuinely considered structural damage was likely to occur as a result of vibration. Monitoring the structure would only produce evidence of damage after it had occurred. Moreover it is difficult to understand why he should recommend a test that would not produce immediate evidence that the vibration was likely to cause structural damage.
110. Even on its face Dr Sze's evidence does not suggest a probability of structural damage arising from vibration. I accepted Dr Littlechild's evidence that the only proper way to measure vibration is by means of a vibrograph and that the normal Hong Kong standard which is designed to ensure there is no damage to property is 25mm per second and that international experience is that substantially higher vibrations do not cause damage to structures.
111. I find that the vibration caused by the passage of 24 ton trucks on the access ramp will not cause structural damage.
Dynamic loading and frictional and centrifugal loads
112. In paragraph 2 of his second report Dr Sze stated that the dynamic loading occasioned by frequent braking as a vehicle went down the access ramp and excessive frictional and centrifugal loads when lorries approached the bends in the access ramp justified the access ramp being designed for HB (abnormal) rather than HA normal loading.
113. Dr Littlechild dealt with those points in paragraph 4.7 and 4.8 of his report. I prefer the views of Dr Littlechild.
114. Even Dr Sze agreed that any dynamic loading would only be caused by breaking of vehicles and that its extent would depend on the speed of the vehicle. He agreed that vehicles would proceed down the access ramp at very slow speed. He could provide no basis for his statement that "the dynamic loading is usually 5-8 times greater than the static loading of the lorry" other than his experience. If that proposition was accurate it would require an extraordinary load bearing capacity in a retaining wall. In any event I accept Dr Littlechild's evidence that while braking would impose some load on a retaining wall, the design of a retaining wall only requires the application of loads which act normal to the wall and therefore at right angles to the direction of travel. Braking loads are by definition applied in the direction of travel. I accept also that the standard for HA loading includes provision for any dynamic loading.
115. Dr Sze accepted also that the centrifugal loads would be less if speeds were lower. I accept Dr Littlechild's evidence that whereas centrifugal loads may have to be taken into account in the design of bridges (and even then speed may be relevant) HA loading takes into account both centrifugal and frictional loads in so far as the design of retaining walls is concerned.
116. I accept Dr Littlechild's evidence therefore that these loads would be provided for by the 10 KPa standard for HA loading.
Rock anchors
117. It is common ground that the principal means of support of the No. 7 caisson and retaining walls are rock anchors. Each of the 32 caissons is supported by a rock anchor which runs back under the right of way into the rock face.
118. In paragraphs 3.2 and 3.3 of his report Dr Sze expresses his concern about the possible long term damage that may be caused by excessive loading on the access ramp. He itemises the damage that may occur.
119. Dr Sze's concerns are based on the supposition that the use of the access ramp by 24 ton trucks would constitute excessive loading. In view of my finding that the access ramp was designed for HA loading the use of its access ramp by 24 ton trucks was provided for. Dr Littlechild in any event commented on each of those concerns in paragraphs 4.11 and 4.12 of his report. It is not necessary for me to repeat this evidence.
120. I have already commented on the very considerable extent of Dr Littlechild's experience in the field of rock anchors and the absence of such experience on the part of Dr Sze. I prefer Dr Littlechild's evidence regarding the effect on the rock anchors caused by the use of the access ramp by 24 ton trucks to the evidence of Dr Sze. I am satisfied on the evidence that even if the current design standard for HA loading has increased to 20 KPa, the use of the access ramp by 24 ton trucks is unlikely to cause damage to the rock anchors or to the rock face in which they are embedded, provided there is no deterioration in the condition of the rock anchors.
121. There is no suggestion that at present there has been any deterioration in the condition of the rock anchors. Indeed as I have already stated Dr Sze himself stated that there are no signs of distress on the No. 7 caisson and retaining wall. Dr Littlechild said that on his visits to the site including visits during the trial he looked out for any evidence of movement that might be a precursor to loss of stability. He could see no such signs. He was satisfied that the rock anchors were capable of sustaining HA loading. He stressed, as I have mentioned, that as the only expert with experience in rock anchors, he had a particular responsibility in this regard.
122. What Dr Littlechild was not saying was that the behaviour of the rock anchors need not be monitored. He gave evidence in some detail as to the way these rock anchors were likely to have been constructed bearing in mind the design drawings and the protection which would have been afforded to them against corrosion. He concluded that even though they may not have been enclosed in a plastic sheath corrosion was unlikely to be a problem because the anchors are very short, very steep and inserted in rock inside concrete but he was not dismissing the possibility of corrosion. Ground anchor failures have occurred in Hong Kong. Dr Littlechild himself has been responsible for monitoring anchors on other projects in which he has been involved including the Hong Kong Bank Building at 1 Queen's Road.
123. It is the need for long term monitoring that has resulted in the Buildings Department being reluctant since the design of this access ramp was approved from approving ground anchors save in exceptional cases as permanent building work. (see the Buildings Department Practice Note 50 first issued in 1978) (Exh. P7(B))
124. In my view it is the duty of the Defendant to ensure the long term monitoring of the ground anchors on the right of way. This is a duty it has not hitherto recognised. That duty arises from the Crown lease of 9 July 1960 which imposes upon it, with others, the duty to "uphold maintain and repair the road or path .... and everything forming portion of or appertaining to such road or path ..." The fact that the burden upon the owners of 10 Pollock's Path may have been increased by permission having been granted to erect No. 7 caisson and retaining wall is a matter between the Defendant and the Government. In conclusion therefore I find that the current condition of the rock anchors impose no impediment to the access ramp being used by 24 ton trucks but the Defendant has a long term duty to monitor the condition of the rock anchors.
Damage to road surface: cracking
125. From an early stage after the commencement of the use of the right of way by 24 ton trucks the subject of cracks to the road surface has been a cause of complaint by those acting on behalf of the Plaintiff.
126. Until the granting of the interlocutory injunction in these proceedings the Defendant effected repairs to such cracks on the access ramp by the use of epoxy and concrete and protected cracked surfaces by placing steel protection plates on the road surface.
127. The Defendant's primary position in this trial has been a denial that it caused damage to the access ramp. Its alternative position is that there were latent defects in the road surface or the road surface had been damaged by normal wear and tear prior to the use of the access ramp by the 24 ton trucks in question.
128. There was a considerable amount of evidence about cracks to the road surface; and cracks to the road surface were visible on the occasion of the site visit at the start of the trial.
129. As a matter of background it is apparent that there were a considerable number of what witnesses referred to as "old cracks" in the road surface. Indeed much of the evidence was directed to whether the cracks were old cracks (presumably existing before the use of the access ramp by 24 ton trucks) or new cracks (which had presumably occurred after such use commenced). It is also apparent that the road surface of the access ramp consisted of a number of concrete slabs. Some of these slabs had suffered no damage whatsoever. The damage slabs tended to be those which had metal straps exposed in the concrete at the edges. I find that Dr Littlechild is probably right when he says that those slabs predated the construction of the No. 7 caisson and retaining wall. The metal straps which had presumably become exposed by wear over the years were embedded in the concrete slabs and had formed part of the support for railings which had existed on the north side of the access ramp before the late 1970s.
130. This finding has some significance because it tends to show that damage was caused to concrete slabs which were already of considerable age and, as the exposure of the metal straps shows, had suffered considerable wear.
131. The fact that newer slabs without metal straps had not suffered any damage tended to indicate that concrete slabs built at the time of or subsequent to the construction of the No. 7 wall were built to sustain the loading imposed by 24 ton trucks. The fact that older slabs which predated the construction of the No. 7 wall had become cracked did not indicate that they had not been able originally to sustain such a load, but simply that the wear and tear over the years had made them vulnerable to damage. I find therefore there is no force in the submission that the cracks to the road surface are an indication that the No. 7 wall was not built to sustain the weight of 24 ton trucks or that the right of way had not, prior to that, extended to 24 ton trucks.
132. In my view there is abundant evidence suggesting that the use of 24 ton trucks had further damaged these older vulnerable and already cracked concrete slabs and the curb.
133. Nigel Ko of Francis Lau and Co. (Surveyors) Ltd paid three visits to the site on 11, 14 and 26 February 2000. During these visits he noticed the cracking and other damage to the access ramp. I am satisfied that the photographic evidence (exh. P1) shows that damage was caused to the access ramp during the course of the 15 days between his first and last visit. A photograph (Photograph 8) taken on 11 February shows that a portion of the curb had been broken off but there was no further damage to the curb in that immediate area. Photograph 14, taken on 14 February, shows that portion of the curb in the course of repair. Further photographs taken on 26 February (Photographs 5, 6 and 7) show not only that the repaired piece of curb was again missing but that the curb immediately above on the slope had been displaced. Amongst the other cracks he referred to in his report, he referred to cracks which appear in photographs 11, 21 and 22. These cracks, he says, he only noticed on his last visit on 26 February. Although he fairly conceded that he could not be sure they were not there on his previous visit on 14 February, I find bearing in mind their prominence on 26 February and that the purposes of his earlier visit included ascertaining the condition of the access ramp, that those cracks had probably either first occurred between 14 February and 26 February or at least their condition had worsened between those two visits. Bearing in mind that it was over the period in question that the 24 ton trucks were using the ramp, I consider it probable that the damage to the curb and these cracks were attributable to the use of the access ramp by 24 ton trucks.
134. The conclusion that the 24 ton trucks were causing additional damage to the concrete slabs was supported by other evidence. Madam Ling Bo Yee who occupies No. 7 Pollock's Path said she noticed more damage to the road surface at this time. The Defendant's architects, Chows Architects Limited expressed the Defendant's apologies to the Plaintiff's solicitors for the damage to the right of way in a letter of 17 February 2000. Indeed three days earlier they had written to their contractor insisting he reinstate the right of way. The laying of the metal plates on the damaged areas in the road itself suggests that the Defendant's contractors were aware that the lorries were causing additional damage to the road. The report of Paul Tong and Associates of 23 February 2000 spoke of "new signs of surface deterioration due to vehicular traffic". Paul Tong and Associates Category I supervision report for the period 1 February 2000 to 29 February 2000 while commenting that there were "no obvious signs of settlement" commented that the road surface of the right of way was "deteriorating due to frequent use of construction vehicles". There was also the evidence of Dr Sze that he had observed what appeared to be new cracks although his evidence appeared to differ from his report as to the proportion of new cracks to old. In evidence he had said that he had not counted the exact number of new cracks as he knew that would be done by Francis Lau and Co. but from what he observed there were more new cracks and old cracks. In his second report, however, he had stated that he had carried out "two detailed site inspections" on 14 February and 21 February 2000 and "nearly all the cracks are recently formed".
135. While accepting that the passage of 24 ton trucks had caused the cracking in some of the concrete slabs I have mentioned, I prefer the evidence of Dr Littlechild to that of Dr Sze as to the significance of such cracks. I accept Dr Littlechild's evidence that the cracks observed in the concrete slabs were not significant in relation to the stability of the caisson wall. I believe that if Dr Sze had thought that they indicated instability in the caisson and retaining wall he would have said so in his report.
Conclusion regarding stability of No. 7 caisson and retaining wall
136. In the light of the matters I have referred to above I am satisfied that the design loading of 11.5 KPa was a design sufficient to cater for normal traffic (HA) loading and that the HA loading is sufficient to cater for the passage of 24 ton trucks. The Plaintiff has not satisfied me in particular through the evidence of Dr Sze that any of the design loading of 11.5 KPa was designed to accommodate other features of the site or loads thereby reducing the capacity of the access ramp to bear normal traffic loading.
137. I am satisfied that it is a reasonable inference that the physical characteristics of the right of way of the time of its grant were not such as to limit the right of way to vehicles of gross maximum weight of 5.5 tonnes or less as suggested by the Plaintiff.
138. In her closing address Miss Cheng has suggested that the court should nonetheless grant the injunction sought by the Plaintiff because of the evidence that the current standard for HA loading is 20 KPa. Mr Chan indicated that he was taken by surprise by this submission. The thrust of Dr Littlechild's evidence was the access ramp was designed for HA loading which was 10 KPa at the material time and that the access ramp was and is still capable of sustaining the passage of 24 ton trucks. If it had been a Defendant's contention that even if the access ramp had been designed for HA loading a change in the design standard meant that it was no longer save the 24 ton trucks, then that should have been put clearly and expressly to Dr Littlechild. It was not. The witness was not asked for the rationale behind the change in the standard of HA loading and whether that rationale had any relevance to this access ramp. It does not follow from a change in design standard that the previous standard is not capable of dealing with the situation for that it was designed in normal circumstances. One factor that may well have resulted in a revision of the standard for HA loading is the large increase in the numbers of heavy goods vehicles using public roads. That is a factor which appears to have influenced a revision in the UK (Extract from the U.K. Department of Transport Standard BD 37/88) (Appendix 5 to Ove Arup report of 20 June 2000). In this case there is no suggestion that more than one 24 ton truck would be using the access road proceeding in one direction, still less would other 24 ton trucks be proceeding in the opposite direction at the same time. Moreover they would not be proceeding at high or indeed normal highway speed but slowly. I have also borne in mind that there is no suggestion that the Buildings Department has decreed that roadways designed to sustain HA loading before the change in standard are unsafe for normal traffic loading and the fact that there is no evidence that any past user (which included the use by heavy vehicles) has produced any signs of instability in the No. 7 caisson and retaining wall.
139. The Plaintiff has therefore failed to establish grounds for the injunction it seeks restricting the use of the access ramp to vehicles with gross weight less than 5.5 tonnes. I decline to make such an order.
140. This evidence of the change in standard coupled with the universally accepted need to monitor ground anchors does however emphasis the vital need for monitoring the No. 7 caisson and retaining wall and the ground anchors which support it. The importance of this obligation justifies the making of a court order that the Defendant do forthwith at it own cost set up check points to monitor the vertical and horizontal movements of the caisson wall and L-shaped wall of the subject property in the manner sought by the Plaintiff. I make such an order.
141. There has been no dispute that the dismantling and relocation of the Plaintiff's railings by the Defendant's contractor at the western end of the access ramp amounted both to trespass and breach of the Defendant's undertaking of 9 July 1999. I so find. I find the damage to the curb along the access ramp visible in photographs 3, 4, 5, 6, 7, 8 and 9 falls within the same category. I order that the Defendant forthwith restore and/or repair the Plaintiff's railings to their original form and position before they were severed, relocated or adjusted by the Defendant, his servants or agents. I order that the Defendant be restrained from further severing, removing, relocating defacing or damaging any structures belonging to the Plaintiff on the access ramp. For the avoidance of doubt, the surface of the roadway is not a structure for this purpose.
142. I am not satisfied that the alleged damage to the Plaintiff's railings higher up the access ramp were caused by the Defendant or their contractors. The evidence of Madam Ling was that major renovation was carried out to the building at No. 7 Pollock's Path between 1996 and January 2000. It would appear that the work involved re plastering which is likely to have been done from the access ramp. The minor damage to the railings higher up the ramp which included leaving cement droppings on the Plaintiff's railing is likely to have been caused by this process rather than by any act of the Defendant.
143. In view of my previous finding that the Defendant's right of way includes its use by vehicles of gross weight of 24 tonnes and the damage to certain of the concrete slabs was as a result of their pre-existing vulnerability, I do not find that the cracking occasioned to these slabs by the use of heavy vehicles amounted to a trespass particularly in the light of the Defendant's obligation to repair. It is implicit in the granting of a right of way to the Defendant together with an obligation to maintain and repair the right of way that the user will ultimately result in the access ramp needing repair. The Defendant's user up to that point does not amount to an actionable wrong. On the evidence I am satisfied that the Defendant took reasonable steps to fulfil its obligation to maintain and repair the road surface bearing in mind that construction works were continuing at No. 10 Pollock's Path and that it intended to reservice the entire access ramp after the conclusion of its building works. That is implicitly recognised in para (3) of the prayer in the Statement of Claim. I do not find that the use by the Defendant of epoxy or its other repairs were inappropriate means of fulfilling its obligation which was to ensure that the right of way was kept in a state of repair reasonably suitable for user by pedestrians and vehicular traffic. Taking into account its obligation to "uphold" the road I do not consider that the use of metal plates or steel plates over cracked areas in the concrete slabs amounted to a trespass. None of these matters relating to the road surface in my view amount to breach of the Defendant's undertaking of 9 July 1999. The reference "building or structure" in that undertaking does not in my view relate to the road surface. Furthermore I do not believe that the parties would have intended that the undertaking be construed as detracting from the Defendant's duty to "uphold, maintain and repair" the road.
144. For these reasons I decline to make the order sought by the Plaintiff in subparagraphs (1)(iii) and (iv) of the prayer to the Statement of Claim.
Costs
145. The majority of issues in this trial have been decided in favour of the Defendant. There were, however, issues such as whether the Defendant's vehicles had caused cracking to road surface and whether the Defendant was under an obligation to monitor the ground anchors that I have decided in favour of the Plaintiff. I have borne in mind the offer by the Defendant to give certain undertakings in particular as to monitoring the stability of the No. 7 caisson and retaining wall but I consider that the failure of the Defendant to ensure that its undertakings of 9 July 1999 (which had previously been an order of the court) were complied with, provided grounds for the Plaintiff seeking orders from the court which were of vital significance to its property and the safety of people using that property. I make the following order nisi as to costs which will take effect unless within 14 days either party applies to be heard on the question of costs, that the Defendant's costs be taxed and 2/3 be paid by the Plaintiff.
|
(P K M Longley) |
|
Deputy High Court Judge |
Representation:
Ms Teresa Cheng, SC, instructed by Messrs Paul K C Chan & Co., for the Plaintiff
Mr Kenneth Chan & Mr Raymond Tsui, instructed by Messrs Siao, Wen & Leung, for the Defendant