LIMBU KRISHNA KUMAR v. NEW CHARM MANAGEMENT LTD

HCPI 607/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 607 OF 2008

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REASONS FOR DECISION

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1.  The Defendant is appealing the order of the Master in refusing its application to adduce expert evidence on liability.

2.  The contest was originally between the Plaintiff and the Defendant.  However, after the Defendant had obtained a brief note from the proposed expert, the Plaintiff indicated neutrality, and the 1^st Third Party took over the objection.  The 2^nd Third Party was on watching brief.

3.  I allowed the appeal at the hearing, and give my reasons now.

4.  The Plaintiff was a security guard assigned to a private residential estate where the Defendant was the estate manager.

5.  On 5 September 2005, the Plaintiff was injured by mosaic tiles falling off a building tower.

6.  The site of the falling tiles was underneath a canopy protruding 3 to 4 ft from the base of the balcony of the penthouse on 48/F.

7.  The Plaintiff sued the Defendant and relied on:

(1)    res ipsa loquitur;

(2)    negligent inspection and/or non-inspection.

8.  The Defence averred:

(1)    latent defect;

(2)    inapplicability of res ipsa loquitur by reason of poor workmanship and supervision and/or design fault.

9.  The Defendant third partied the building contractor (1^st Third Party) for poor workmanship, and the architect (2^nd Third Party) for design fault and/or specifications and/or poor supervision.

10.  The short note from the proposed building expert stated that:

(1)    the break or failure was between the rendering and the building surface rather than the rendering and the tiles;

(2)    the rendering (27 to 30 mm) was too thick;

(3)    the rendering on the tile was smooth, indicating insufficient mechanical key (grooves on the wall for better adhesion);

(4)    chemical tests should be conducted to find out the concrete mix and/or contamination by foreign matters;

(5)    the distance between the site of the falling tiles and the ground level is outside the normal range of infra-red scanning.

11.  Mr Chow, for the Defendant, submitted that the test indicated by the proposed expert is normal material testing not involving any state of the art technology or complications.

12.  Mr Wong, for the 1^st Third Party, objected to the expert report:

(1)    Most of the observations are factual and common sense;

(2)    The reasons for any alleged failure on the tiling can be found on the Building Maintenance Guidebook issued by the Buildings Department;

(3)    The Defendant did carried out infra-red scanning and/or hammering to find out whether similar defects existed.

13.  Mr Chow submitted that the underneath of the canopy was only accessible from the balcony of the unit on 47/F right below the penthouse.  On the day after the accident, the Defendant erected bamboo scaffolding at all similar canopies, and the scanning and/or hammering might have been done at the 47/F balcony or the scaffolding.

14.  Tiles are normally applied to vertical surfaces, but the fallen tiles were applied to the underneath of a canopy of quite substantial area.  A question may arise as to the design, and/or whether special rendering is required given the particular design.

15.  I think there is prima facie evidence of design fault and/or workmanshipas indicated by the proposed expert, not only on issues in the main action but also in the Third Party proceedings.

16.  It is hardly surprising that the reasons stated by the proposed expert could generally be found in the Buildings Department Guidebook, but the question is application to the facts of the case.  It would only be common sense if the 1^st Third Party were admitting faulty workmanship by reason that the tiles should not be falling off just after 4 years, but their position seems to be the contrary.

17.  Considering the issues involved in the main action as well as the Third Party proceedings, it would be necessary and proportionate to obtain the expert evidence as analyzed here (with material testing).

18.  Hence, the appeal was allowed.

19.  I directed that a joint report be obtained within 3 months, giving also the Plaintiff and the 2^nd Third Party the opportunity to instruct their own expert, if so advised.  The 2^nd Third Party indicated they would join in the expert report, and the Plaintiff should indicate whether to do so within 14 days.

20.  There shall be a Case Management Conference on 30 September 2010 at 12 noon.

Costs

21.  Mr Chow submitted that had the Plaintiff signed a consent summons for the admission of the expert report, the 1^st Third Party would have no occasion to object. 

22.  Be that as it may, the 1^st Third Party could nevertheless raise the same objection come the application to admit the expert evidence in the Third Party proceedings.

23.  The Defendant’s preparation for the first day of the hearing was inchoate, resulting in the adjournment for the brief note from the proposed expert.  Hence, I made no order as to costs qua all parties on day 1.

24.  For day 2, I made no order as to costs in relation to the Plaintiff and the 2^nd Third Party, but the 1^st Third Party shall pay costs summarily assessed at $24,000 to the Defendant.

25.  I thank counsel and solicitor for their submissions.