LIU CHI KEUNG v. WONG TO SHUT AND ANOTHER

HCPI 108/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 108 OF1996

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(Actions consolidated by the Order of
the Hon. Mr. Justice Seagroatt dated 25th May 1998)

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J U D G M E N T

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1. On the 12th December 1990 in the late morning the Plaintiff suffered grave injuries as a result of being overcome by fire smoke as he tried to escape from the premises where he was working on the second floor of the Hung Fook Industrial Building. He tried to escape by using the front staircase to descend. He was caught between the first and second floors and overcome by smoke and fumes. His injuries included damage to his brain. He brought an action by his wife acting as his next friend in view of his disability, against the occupiers of the first floor of the building and against his employers, occupiers of part of the second floor, in July 1992. In December 1993 he commenced proceedings against two businesses which were the principal contractor and its sub-contractor engaged in the removal of a metal structure by means of, in particular, oxyacetylene equipment, from the external wall of the Kin Sang Industrial Building which was opposite the building in which the Plaintiff worked. It was separated from it by a lane which was only six or seven feet wide.

2. In due course these two actions were consolidated (by me) in May 1998. In fact there is no reason why the Defendants in the second action should not simply have been joined as the third and fourth defendants to the original action.

3. The trial of the consolidated action was due to commence before me on the 20th October. However the Plaintiff and the Second Defendant (his employer) reached a settlement of the action which I was asked to approve. By this time the First Defendants had ceased to be involved in the action following a payment into court of $1,000,000.00 on the 20th April 1998; the 3rd and 4th Defendants had ceased to take any part in the action for some time. They were unrepresented. It was accepted that at present they were "men of straw".

4. The overall settlement reached for the Plaintiff's benefit was a payment of $18.6m. in full and final settlement. It included the $1m. paid into court by the 1st Defendant, thus representing a payment of $17.6m. by the 2nd Defendants, $12m. of which had already been paid into court.

5. Leading Counsel for the Plaintiff has set out in a comprehensive and helpful memorandum why approval of the settlement is recommended. This is a claim with many heads of damages. I have read the medical reports and statements from other disciplines submitted in support of the claim. I have no doubt that it is a proper settlement and one which I should therefore approve. I do so on the basis that there is no contributory negligence. The allegation against the Plaintiff is not a realistic one.

6. Leading Counsel has also explained the basis of the agreement that the 2nd Defendants will pay the Plaintiff's costs on a party and party basis. In normal circumstances I would have expected the agreement to include payment of common fund costs - had I had to give judgment I would have ordered common fund costs. However I understand and respect the basis of the agreement as to costs and approve that aspect as well.

7. Judgment has been entered against all four defendants. Senior Counsel for the Second Defendant, Mr. Dennis Chang, who are the only Defendants represented and continuing to take part in proceedings, has asked that I make findings of degrees of negligence on the part of the Defendants no doubt with a view to these Defendants enforcing contribution in the event of any or all of the other Defendants acquiring any assets or income. Whilst at first I was reluctant to indulge in what is in all likelihood an academic exercise, preferring to give the Second Defendants liberty to apply, I have been persuaded that it would be fairer, nonetheless, to do as requested. After all the Second Defendants have in fact submitted to judgment so that the unhappy Plaintiff does not have to go through a trial and he can start about ordering his life with some purpose and more ease. These Defendants are therefore entitled to have such an assessment and I propose to do it on the basis of all the statements, reports and other documentation available.

The demolition contractors

8. I shall refer to them hereafter as the 3rd and 4th Defendants. Their workmen were using oxyacetylene equipment to cut the air-conditioning compressor situated on the outer wall of the 6th floor of the Kin Sang Industrial Building. Although it appears that there was a principal contractor and a sub-contractor, both businesses were working together on the demolition. There was scaffolding on the exterior of the Hung Fook building which, by reason of the narrow 6 feet to 7 feet gap between the two buildings, afforded sufficient access to the workmen for their task on the building opposite. Although the 3rd Defendant seems to suggest that no work was carried out on the date of the fire because there was no oxygen for the cutting equipment, painters on the Hung Fook Building and others did see on the 12th December at about 11 a.m. when the fire broke out that oxyacetylene cutters were at work, with the sparks falling on the outer walls and windows of Hung Fook Building. I am satisfied that the cutting was taking place at the time that the fire broke out and that sparks and hot metal were falling down onto the window ledges whether there was debris and other combustible material. There was no effective screen or means of catching those sparks and metal scraps. The use of a water hose seems to have been perfunctory and more of an optimistic gesture.

9. It is not unusual in Hong Kong to see oxyacetylene welding and cutting operatives not only failing to use a screen or mask to protect themselves, but also failing to prevent sparks and molten or hot metal falling to the ground, sometimes amongst passers-by. There is therefore an indifference to the risks involved. This is clear negligence and the 3rd and 4th Defendants were negligent on this occasion. It was entirely foreseeable that falling sparks and molten metal would ignite combustible material which is what happened on this occasion.

The First Defendants - Full Yue Bleaching

10. It is impossible to be sure what combustible material was first ignited or where this was. These Defendants occupied the 1st Floor of Hung Fook Building. One of the exhaust fans within the factory area was noticed to be on fire. Cotton yarn was attached to the exhaust fans which was alight, and this quickly spread to the stacked bales of yarn below or near to the fan.

11. There was obviously no fire alarm system on the factory premises. The fire doors were ineffective in that they failed to prevent the spread of smoke from the burning material on these Defendants' premises stacking upwards.

12. The development of the fire, and consequently of the build up of smoke spreading upwards, was facilitated by the presence of inflammable toxic materials on the premises. This in due course led to convictions of the First Defendants for storing dangerous goods without a licence. In particular hydrogen peroxide aids combustion and its vapours are toxic.

13. The real fault on the part of these Defendants apart from the presence of combustible materials and the illegal storage of potentially toxic substances, lies in the ease with which highly toxic material escaped upwards. The doors with direct access to the stairwell up which the smoke travelled quickly were not serving their purpose. Dr. Eric Mullen in his report came to the conclusion that the doors did not meet the requirements and were not fully closed. Video evidence obtained on the day after the fire demonstrated that only one of the four doors could close automatically. The notices, required to be affixed to both sides of the doors warning that they should be kept closed, were absent.

14. There was a clear fire hazard on the First Defendants premises. Inadequate precautions were taken to prevent the spread of fire and its toxic effect. Regulations were ignored. Spread of fire was facilitated by reason of this neglect. As a consequence the risk to others higher in the building was aggravated.

The 2nd Defendants - The Plaintiff's Employers

15. These Defendants had a duty to provide a safe place of work. They also had a general duty of care as occupiers of the 2nd Floor premises and towards all employees and other invitees. That extended to full compliance with fire regulations.

16. There did not appear to be any fixed fire-drill or regularity of practice. The earlier fire in November ought to have resulted in this being instituted. The event had illustrated what is an ever present risk. The somewhat ad hoc arrangements, depending largely on individual judgment, were inadequate. Although fire doors were described as being kept in a good condition there is no certainty that they were kept closed. On the basis of the evidence it is probable that the 'smoke' door at the front of the premises was not kept closed.

17. However the Plaintiff was overcome by the smoke stacking up from the 1st Floor and the fault of his employers lies in the complete absence of a system and drill which protected their employees. It was entirely understandable that the Plaintiff would use the same exit as on the occasion of the fire in the previous month.

Liability as between the Defendants

18. The 3rd and 4th Defendants bear collective responsibility - it is impossible to distinguish between them - for causing the fire in the first instance. I assess their degree of negligence at 40%.

19. The 1st Defendants undoubtedly facilitated the development and spread of the fire. It allowed combustible material to exist on and outside the premises. It took no effective precautions. They must bear the greatest degree of responsibility which I assess at 50%.

20. The 2nd Defendants were at fault though only to the limited degree indicated which I assess to be 10%.

21. Accordingly I order contributions from the 1st, 3rd & 4th Defendants to these degrees toward the judgment sum and costs of the Plaintiff. Appropriate orders for costs in respect of the contribution proceedings follows.