SZE CHE SAU AND OTHERS v. DRAGAGES ET TRAVAUX PUBLICS (HK) LTD AND OTHERS

                 HCPI 849/2003, 850/2003, 851/2003,
100/2004, 433/2004, 442/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOs. 849 OF 2003, 850 OF 2003,

851 OF 2003, 100 OF 2004, 433 OF 2004 and 442 of 2005

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J U D G M E N T

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Introduction

1. On 29 May 2001 at the construction site of the bus depot building for the Kowloon Motor Bus Co. Ltd (“KMB”) at Hing Wah Street West, Kowloon, Lot No. KX 1992 (“the site”) whilst concreting workers were placing concrete at Level 5 (“L5”) a concrete beam supporting the prefabricated concrete platform from which they were working suddenly collapsed.  This caused the 1^st, 2^nd, 3^rd, 4^th and 6^th plaintiffs in the consolidated action to fall through, together with the collapsed concrete slabs and debris, to the level below namely, to Level 3 (“L3”).  As a result they suffered serious personal injuries.

2. At the material time Chau Kwok Fong (“the deceased”) was assigned to wash the concrete floor at L3.  As a result of the collapse of the beam at L5 and the falling concrete slabs and debris onto L3, the deceased was buried by the rubble.  He sustained severe personal injuries which eventually resulted in his death.  The 5^th plaintiff is the administratix of the estate of the deceased. 

3. The project at the site was the construction of a new bus depot for KMB.  This involved the erection of a 3 level main structure to accommodate double decker buses parking at Levels 1, 3 and 5.  There was also to be an office building of six storeys.

4. By an order made by Master B. Kwan on 18 May 2005 it was ordered that the actions be consolidated up to and including the determination of liability.  It was also ordered that if, when the question of liability is determined and each of the plaintiffs has succeeded against the defendants then the question of quantum of damages for each plaintiff shall be dealt with as the court may direct.

5. At the pre-trial review on 17 October 2005 it was ordered by Suffiad J that there be a split trial in this matter.

6. The 1^st defendant (“D1”) is a construction company incorporated in Hong Kong and was the principal contractor of the site at all material times.

7. D1 has admitted liability to the plaintiffs.  By a consent order made on 20 December 2006 it was ordered that judgment on liability be entered against D1 in favour of the 1^st to 6^th plaintiffs in the consolidated action with an order for costs in the plaintiffs’ favour.

8. The 2^nd defendant was a subcontractor of D1 engaged for the erection of the scaffolding namely, the falsework and the placement of precast beams and columns.  Interlocutory judgment on the issue of liability was entered against the 2^nd defendant by the 1^st to 5^th plaintiffs in September 2004 and by the 6^th plaintiff in November 2005.

9. The 3^rd defendant was the subcontractor of the 2^nd defendant engaged for the erection of the scaffolding namely, the falsework and the placement of precast beams and columns.  The 1^st to 5^th plaintiffs entered interlocutory judgment on the issue of liability against the 3^rd defendant in December 2004.  By an order made on the first day of trial on 26 February 2007 the 6^th plaintiff was given leave to discontinue the action against the 3^rd defendant.

10. The 4^th defendant Ng Kam Tong (“Ng”) was at all material times the executive director of the 6^th defendant Chung & Ng Consulting Engineers Limited (“CN’’).  Ng was the registered structural engineer (“RSE”) of the project after the original RSE Yu Chung Yeung (“Yu”) resigned on 22 May 2001.  The 1^st to 5^th plaintiffs discontinued their actions against Ng in September 2004 and the 6^th plaintiff discontinued the action against Ng in November 2006.

11. The 5^th defendant Wong Hang Fai (“Wong”) was an engineer employed by CN and who acted as the representative of the RSE at the site.  He was also the resident engineer (“RE”) at the site.  The 1^st to 5^th plaintiffs discontinued their actions against Wong in September 2004 and the 6^th plaintiff discontinued his action against Wong in October 2004.

12. The 7^th defendant Sun Hung Kai Engineering Co. Ltd. (“SHK”) was employed by KMB to, inter alia, provide architectural services and to act as the authorized person and RSE in relation to the project at the site.  The only plaintiff to bring an action against SHK was the 6^th plaintiff.  The action against SHK was discontinued in November 2006.

13. By a notice claiming contribution and/or indemnity dated 6 October 2005 D1 sought contribution or indemnity against Ng and CN and against the 2^nd, 3^rd and 7^th defendants towards such sums as may be awarded to the plaintiffs. 

14. Leave was given to D1 to withdraw the notice claiming contribution and/or indemnity against Ng by an order made on 3 November 2006.  Leave was given to D1 to withdraw the notice claiming contribution and/or indemnity against the 2^nd, 3^rd and 7^th defendants by orders made on 24 January 2007.

15. After the plaintiffs’ claims were discontinued against Ng, leave was given to D1 by Suffiad J at the 3^rd pre-trial review on 22 December 2006 to issue a third party notice against Ng, such notice to stand as D1’s statement of claim.  By the third party notice issued on 15 January 2007 D1 claimed against Ng for contribution or indemnity in respect of the plaintiffs’ claims and costs on the ground that the accident was caused wholly or contributed by his negligence and/or breach of common duty of care and breach of statutory duty as set out therein.

16. The trial on liability commenced on 26 February 2006.  At that time the only parties before the court were the plaintiffs, D1 and D6 and the third party Ng.  It was ordered by consent that there be a joint trial of the main action, the contribution proceedings by D1 against CN and the third party proceedings brought by D1 against Ng.

17. On the third day of trial, 28 February 2007, the plaintiffs and the remaining defendant CN settled the action.  By a consent order made on that day the plaintiffswere given leave to discontinue the action against CN on terms that CN pay costs to the plaintiffs as set out in the order. 

18. As CN was no longer a defendant in the main action, an order was made by consent on 1 March 2007 whereby it was ordered, inter alia, that the amended notice by D1 claiming contribution and/or indemnity against co-defendant do stand as the third party notice against CN and that the amended consolidated defence of CN do stand as the defence of CN in the third party proceedings.  It was also ordered that Ng be named as the 1^st third party and CN as the 2^nd third party.  It was further ordered that the amended consolidated defence of CN be substituted by the substituted defence of Ng and CN in the terms of the substituted defence attached to the consent order.

19. As the trial of the main action had already commenced, the remaining parties before the court namely, D1, Ng and CN were anxious to proceed with the trial of the third party proceedings without requiring any further directions to be made.

20. The trial continued on that basis and the parties that remained before the court were D1, Ng and CN.

The Issues

21. There are two main issues:

(1)       Are Ng and CN or either of them liable in tort to the plaintiffs for the pleaded causes of action?

(2)       If liability is established, what is the apportionment of liability on the part of D1 on the one hand and Ng and/or CN on the other hand?

22. Mr Bharwaney, for D1, at the outset of the trial accepted that D1 was liable in tort to the plaintiffs.  For that reason, judgment in favour of the plaintiffs on the issue of liability was entered against D1 before trial.  Mr Bharwaney made it plain that although it was accepted that D1 was liable, it was D1’s case that Ng and CN were also liable in tort to the plaintiffs and D1 was seeking an apportionment of liability.  

23. Mr. Bharwaney accepted that D1 was more to blame for the accident than Ng and CN.  In his closing submissions he submitted that liability should be apportioned at 60% on the part of D1 and 40% on the part of Ng and CN.

24. Mr Pirie, for Ng and CN, disputed any liability in tort to the plaintiffs on the part of either Ng or CN and maintained this stance from start to finish.  In his closing submissions Mr Pirie submitted that in the alternative, if the Court found liability on the part of his clients, the apportionment of liability on the part of his clients should be a maximum of 20%.

The witnesses

25. I heard evidence from two experts relied on by D1.  They were Dr Eddie Lam Siu Shu (“Dr Lam”) and Mr Dennis Pho Tjie Tjao (“Pho”).  I also heard evidence from Ng.

26. I was impressed with Dr Lam and Pho and have no hesitation in accepting their evidence.  I cannot say the same for Ng.  I find that Ng was an evasive, untruthful and unreliable witness.  Where Ng’s evidence is at variance with the evidence of Dr Lam and Pho, I much prefer their evidence to that of Ng.

27. Apart from the witnesses who gave evidence before me, there was also placed before me two reports into the incident at the site resulting in the personal injuries of the 1^st, 2^nd, 3^rd, 4^th and 6^th plaintiffs and the death of the deceased.  The first was the report of the Buildings Department (“the BD”) dated 29 June 2001 (“the BD report”) and the second was the Report to the Coroner on the Labour Department’s investigation dated 29 August 2001 (“the LD report”).

28. In arriving at the conclusions and findings in the BD report and LD report, the BD and the Labour Department (“the LD”) conducted a thorough investigation into the causes of the collapse.  In particular, the staff of the BD and the LD conducted joint interviews of 69 witnesses in total.  The particulars of the witnesses interviewed are contained in the list at Appendix A of the LD report.  There was also placed in the bundles before me some of those witnesses’ statements and declarations to the BD and LD staff.

29. The findings and conclusions contained in the BD and LD reports were arrived at as a result of extensive investigations.  That being so, in my view considerable weight ought to be attached to their findings and conclusions, save where I have otherwise indicated below at paragraph 93.

The project

30. There is no dispute that KMB was the owner of the site.  SHK was responsible for the overall management and control of the project at the site.  SHK appointed CN to look after all civil and structural matters related to the project.

31. D1 was the principal contractor of the project.  Erection of the falsework at L3 and L5 was performed by the subcontractor and the subsubcontractor namely, the 2^nd and 3^rd defendants, respectively.

32. The superstructure consisted of two portions namely, the workshop and the carpark portion.

33. The workshop portion was constructed by the traditional cast in situ method of construction.

34. The carpark portion was constructed by the prefabrication method.  A full description of the method of construction is contained in Appendix D of the LD report and it is not necessary to repeat the same here.  Suffice it to say that the method involved placing and assembling precast concrete beams.  Precast primary concrete beams referred to as PB1 (“PB1”) were placed in the longitudinal direction and precast concrete secondary beams of two types referred to as PB2 (“PB2”) and PB3 (“PB3”) respectively, in the transverse direction.  

35. For the carpark portion there were three types of precast concrete beams namely, PB1, PB2 and PB3.  PB1s were first stitched to the precast concrete column to form the first skeleton frame of the superstructure.  Then PB2s were directly laid on the flanges of the two adjoining PB1s.  Between two columns and in the direction of PB2 was installed a PB3 which was temporarily supported by the supporting tubular towers (“the falsework”).  The falsework is fully described in Appendix E of the LD report.

The accident

36. Having placed the PB3 on the falsework the workers proceeded to the placement of concrete planks one by one to cover the void spaces between the PB3 and the adjacent PB2s.  There were 14 precast concrete planks (“the planks”) involved in the incident.

37. In the morning of 29 May 2001, concreting work of the floorslab of the carpark portion on L5 started from gridline No. 6E to 7E and proceeded towards gridline 6A to 7A.  The concreting work was carried out by workers of Kin Ching Engineering Co. Ltd (“Kin Ching”) under the supervision of D1’s foreman.  Premixed concrete was pumped up by a pump truck parked inside the site on L1 and conveyed to L5 through metal piping.  At about 2.50 pm concrete was laid near the junction of Column 97 (“C97”) and PB3 beam at gridline 7B to 7C.  Suddenly the falsework failed and collapsed under the weight of the beam, the supporting planks, the reinforcement bars and the concrete being laid.  As a result, the beam collapsed with one of its ends and the planks fell down onto L3 together with the injured workers namely, the 1^st, 2^nd, 3^rd, 4^th and 6^th plaintiffs.  The deceased who was also employed by Kin Ching was on L3 at the time doing cleaning work.  He was crushed by the collapsed structures and debris.

The RSE and the RE

38. On the evidence it seems to me to be clear that CN and Ng assumed the role as the consulting structural engineers from an early stage in the construction at the site. 

39. At the time of the accident Ng was already named officially as the RSE with his appointment on 22 May 2001.  Prior to that Yu was the RSE until he resigned on 22 May 2001.  However, as found in the BD report, Ng actually carried out monthly inspections on the site on behalf of the original RSE Yu since the commencement of the works in January 2001.  Yu in his declaration made on 11 June 2001 said that before he resigned as RSE on 22 May 2001 he was the RSE but he was only responsible for signing as the RSE for the works.  CN were appointed as his representative.  He also said CN would communicate directly with D1 and send copies of their correspondence to him for his information.

40. In the letter from SHK to CN for the attention of Ng dated 25 October 2000 one of the conditions imposed by SHK was:

“ Before you officially take over as the RSE, you will take over in full duties as the structural engineer including attending coordination meetings and answering all queries that may be raised by concerned parties.  In this respect you are expected to answer these letters/queries direct on our behalf.”

41. Ng confirmed in evidence that the letter referred to him as the structural engineer.

42. I find that Ng was the de facto RSE from the commencement of the works in about January 2001 and on 22 May 2001 he became the RSE in name.  It is not surprising that there was no formal handover of documents when he took over formally from Yu on 22 May 2001 as the RSE as he had been acting as the de facto RSE even before that time.  In any event, at the time of the accident he was already in name and in substance the RSE.

43. It is not disputed, and I find, that Wong was the representative of the RSE as well as the RE at the site from the commencement of the works in about January 2001.  He was also the person with the duties of T2, T3 and T4 in the site safety supervision of the building works at the site.

The Technical Memorandum

44. The Technical Memorandum for supervision plans issued by the Secretary for Planning, Environment and Lands under section 39A of the Buildings Ordinance (Cap. 123) (“the TM”) sets out the principles, requirements and operation of supervision plans for construction in Hong Kong.  Detailed guidance on the application of the TM and the preparation of supervision plans are provided in the Draft Code of Practice for Site Safety Supervision (“the draft Code”) issued by the BD in December 1997.  As stated in the foreword to the draft Code:

“The Code is now issued as a draft document.  It will be replaced by a finalized edition when it has been reviewed through experience gained in its application.”

45. The letter from the BD addressed to the 6^th plaintiff’s former solicitors dated 26 October 2004 makes it plain that the Building Authority took the view that when the site safety supervision plan was first submitted on 4 January 2001, at that time the draft Code was the applicable code.  The Code of Practice issued in November 2000 (“the new Code”) only came into effect on 19 April 2001 and was not applicable to the site safety supervision at the site at the time of the accident.  Dr Lam was of the view that although the Code of Practice was issued in 2000, it was relevant to look at the draft Code and not to the new Code.  Pho referred also to the new Code of Practice.  Although Pho was of the view that the obligations in respect of the RSE and the contractor were the same under both Codes, I find that it is relevant only to consider the draft Code and not the new Code as the new Code was not applicable to the site safety supervision at the site at the time of the accident as confirmed by the Building Authority.

46. Mr Pirie accepted that the draft Code was applicable at the time.  He conceded that if there were material breaches of the draft Code by the RSE and Wong as the representative of the RSE then liability in common law negligence would have been established against his clients and they would be liable to D1 for contribution and the Court would then have to apportion liability.

47. Under paragraph 3.1 of the TM, site safety supervision is defined as:

“ the necessary supervision required to check that the carrying out of liability works ......., including ................................. temporary works pertinent to all stages of building works ................... and the working environment are safe, such that the hazards from these works are controlled and risks to workers on site, all persons around the site ...................... are mitigated;”

48. A supervision plan i.e. a plan setting out the plan of safety management of building works or street works, comprises of an outline safety supervision plan and a detailed safety supervision plan (paragraphs 4.1 and 4.6 of the TM).  It is important to bear in mind that under the TM, contractors, authorised persons, RSE and the technically competent persons (“TCP”) they appoint shall “each have a role to play in site safety management” (paragraph 5.1).

49. It is provided by paragraph 5.1.2 of the TM that:

“ The site safety management functions of the RSE and his stream are-

(a) ………………………………………………….

(b) to verify that conditions on site are consistent with assumptions made in the design of the permanent works and in the design of those method statements and temporary works which are shown on the prescribed plans; and

(c) to supervise, in accordance with the frequency set out in the supervision plan, that the method statements and temporary works shown on the prescribed plans are adhered to.”

50. Thus it is clear that the site safety management functions of the RSE and his stream included the temporary works which are shown on the prescribed plans.

The draft Code

51. As the draft Code states, the supervision plan sets out a system for safety management of building works (paragraph 1.2).  The supervision plan is to be put into operation by qualified and experienced professional and technical personnel i.e. TCPs (paragraph 1.3).

52. Safety management under the draft Code addresses two types of supervision, quality supervision and site safety supervision (paragraph 1.4).

53. The draft Code also explains how TCPs may best be deployed and how their duties may be combined and the specific tasks of TCPs in carrying out site safety supervision (paragraph 4.2).

54. ^{Section 5 of the draft Code sets out the responsibilities of each TCP in the site safety management structure.  Guidance is given on the division of responsibility for temporary works between the contractor and the RSE (paragraph 5.1).}

^{55. The chain of responsibility is clearly spelt out at paragraph 5.2 as follows:}

“ The AP, RSE and RGBC/RSC are at the head of the organizational structure and have overall responsibility and accountability for their respective functional streams. They will each appoint a Representative who is the highest grade TCP within their respective supervision streams and who is required to take the senior role in the site safety management structure.  In the chain of responsibility, therefore, the appointed Representatives are accountable to the AP, RSE or RGBC/RSC…………………………………………..”

56. TCP grades are from T1 to T5 and their responsibilities are set out at paragraph 5.3.  

57. It is important to note that a T4 has to: 

“ check that specified aspects of site work comply with the design requirement where these are related to site safety and with the supervision plan including method statements, precautionary and protective measures.  Check that systems are in place and followed, to record that site safety supervision has been properly executed.”

58. According to the site safety supervision plans submitted to the Building Authority on 4 January 2001, the RSE’s TCPs for T4, T3 and T2 were the same person namely, Wong.  Thus the duties of T4, T3 and T2 were all to be carried out by Wong.  The supervision plan also specified the frequency of inspection by the RSE’s T4 at twice every week.

59. The RSE’s Safety Management Structure with the duties and responsibilities of the RSE’s representative are listed at paragraph 5.12 of the draft Code.

60. As regards temporary works which includes the erection and supervision of the falsework which collapsed on 29 May 2001, the division of responsibility between the RSE and the contractor, in this case D1, are spelt out are paragraphs 5.19 and 5.20.

61. Paragraph 5.19 provides:

“ The Contractor has the sole responsibility to ensure the integrity of the temporary structure itself and the associated fixing methods.”

62. Paragraph 5.20 provides:

“ The division of responsibility between RSE and Contractor for temporary works is detailed below:

Case 1         When the prescribed plans stipulate temporary works and the sequence of construction or method statements are also shown on prescribed plans, both the RSE and the Contractor have the responsibility of supervising the carrying out of the works in accordance with the approved plans.    

Case 2…………………………………………

Case 3…………………………………………..”

63. It was the opinion of both Dr Lam and Pho that the supervision of the temporary works namely, the falsework which collapsed was within the situation in Case 1 as set out above (“Case 1”).  I accept their evidence and find that the supervision of the falsework was within the situation in Case 1.  This was not disputed by Mr Pirie.  Ng also accepted this in evidence although he said that he did not appreciate at the time that he was interviewed by the BD and LD staff shortly after the incident that the situation in Case 1 was engaged.

64. It is clear, and I find, that the RSE and D1 each had their own responsibility and obligation of supervising the carrying out of the temporary works namely, the falsework in accordance with the approved plans.

65. Under Section 4(3) of the Buildings Ordinance (“the BO”), a RSE has the obligation to:

“(a) supervise the carrying out of the building works ................... in accordance with the supervision plan;

(b) notify the Building Authority of any contravention of the regulations which would result from the carrying out of any work shown in any plan approved by the Building Authority in respect of the building works .................................., and

(c) ..............................................................................................”

66. And by Regulation 37(2) of the Building (Administration) Regulations (Cap. 123) the duty of the RSE is to:

“ give such periodical supervision and make such inspections as may be necessary to ensure that the structural works ......................................... are being carried out in general accordance with the provisions of the Ordinance and regulations, the plans approved in respect thereof by the Building Authority, the supervision plan prepared in compliance with the technical memorandum issued under Section 39A of the Ordinance (if required) and as order made or condition imposed, pursuant to any provision of the Ordinance or regulations in that behalf, by the Building Authority.”

67. Dr Lam made it clear in evidence, which I accept, that Wong as the RE and the representative of the RSE had the duty to go on site and check that the contractor’s TCPs had done their work.  It was his job to supervise the work of the contractor and not just to check that the forms of the contractors TCPs had been completed.  Dr Lam said that Wong did not have to check each and every falsework but he needed to carry out inspections on a fair amount of falsework that had been erected to make sure that the contractor’s TCPs had carried out their safety supervision.  I accept Dr Lam’s evidence.

The approved plan

68. The relevant approved plan for the temporary works is the plan at page 799 of Bundle CB2 which was issued by Ove Arup & Partners and signed by Yu as the RSE on 24 October 2000.  The plan was approved by the Building Authority on 21 December 2000 (“the approved plan”).

69. The approved plan shows the construction sequence and the method of construction.  Stages 1 to 5 are set out in the approved plan.  According to Ng, this was one of 50 approved plans by the Building Authority in relation to the project at the site.

70. Ng accepted that the approved plan was a prescribed plan and that the duties on the RSE were as set out in Case 1 namely, to be responsible for supervising the carrying out of the works in accordance with the approved plan.

71. The approved plan set out the construction sequence for each of the stages 1 to 5.  Under stage 2 it was stated:

“1. ERECT PRECAST R. C. COLUMN.

2. BOLT COLUMN ANCHOR BARS IN RC PEDESTAL AND SECURE COLUMN.

3. ERECT TEMPORARY SUPPORT FOR PB1 BEAM TO LEVEL 3.

(TEMPORARY SUPPORT TO BE SELF STANDING AND LATERALLY BRACED TO EXISTING STRUCTURE TO MAINTAIN UP TO STAGE 5.)”

72. Stage 3 deals with the construction sequence of the PB1 beams and the erection of the temporary support from L3 to L5 for PB1 beams and for connecting the PB1 beams to the precast columns.  Stage 4 deals with the removal of temporary support for PB1 beam after the desired strength had been achieved.

73. Stage 5 is important.  Under stage 5 it is stated:

“1.  ERECT SECONDARY BEAMS (PRECAST BEAM PB2 AND PB3) AT BAY M.

2. ERECT PRECAST CONCRETE PLANKING BETWEEN SECONDARY BEAMS.

3. CAST THE SECONDARY BEAMS/PRIMARY BEAMS CONNECTIONS AND THE SLAB TOPPING WITH IN SITU CONCRETE (ALL RECESSES FILLED WITH IN SITU CONCRETE).

4. REMOVAL OF REMAINING LATERAL BRACING.

5. REPEAT WORKS SEQUENCE FOR BAY (M+1) FROM STAGE 3 TO 5.”

And in the drawing in respect of stage 5 it is also stated that the temporary support for PB3 beams were to be of proprietary products : 32T capacity.

74. It was the opinion of Dr Lam and Pho, which I unhesitatingly accept, that the approved plan clearly showed that the temporary supports for the PB3 beam were required to be of a proprietary product, self standing and laterally braced with a loading capacity of 32T.  They were both of the opinion that the requirement for all temporary supports, and not just those for PB1 beams, were that they be laterally braced to existing structure like a column.

75. Dr Lam and Pho both denied the suggestion made to them by Mr Pirie that in respect of the temporary support for PB3 beams the requirement was that it be laterally braced to the in situ structure cast in advance shown in the bottom sketches of the approved plan.  Ng also gave evidence that the requirement of lateral bracing under the approved plan was bracing to the in situ structure cast in advance shown in the bottom sketches of the approved plan.

76. I have no hesitation in preferring the evidence of Dr Lam and Pho to that of Ng whose evidence I reject.  It is, in my view, untenable to suggest that temporary supports or falseworks for beams erected along gridlines which may be 50 m away from the in situ structure cast in advance could be laterally braced to such structure.  It was suggested by Ng in evidence that this may have been a requirement by the BD although in his experience he had never seen a falsework laterally braced to a structure that far away.  Dr Lam explained that the cast in situ structures were too far away and members in the centre would not have the assistance from those structures.  Pho also said, and I accept, that the only reinforced concrete structure that the falsework could be laterally braced to was the column as that was the closest structure that it could reach.

77. It is also pertinent to refer to the police statement of Hui Hok-keung a structural engineer of the BD made on 10 March 2003.  He said that his structural comments on the approved plan included providing for temporary supports with working capacity of 32T and that these supports should be self standing and laterally braced to “existing (completed reinforced concrete structures) structures”.  In answer to Question 10 he made it plain that the description of temporary support in stage 2 was also applicable to stages 3 to 5 as it was mentioned in stage 2 that the temporary support system would be maintained up to stage 5.  

78. I find that the words in brackets in stage 2 in the approved plan namely, “temporary support to be self standing and laterally braced to existing structure to maintain up to stage 5” applied to all temporary supports and not just those for PB1 beams.  I find that the approved plan clearly shows that the temporary supports for the PB3 beams were required to be of proprietary products, self standing and laterally braced to existing structure like columns and with a loading capacity of 32T.

The method statement

79. According to the requirements set out in the TM, D1 prepared and submitted various method statements for different stages of construction works at the site.  The method statement that is relevant in these proceedings is the one relating to temporary supports namely, the falseworks which was amended on 9 April 2001 with the sequential no. 19 and Revision number A (“the MS 19A”).  The MS 19A was prepared by Labardin, method engineer of D1 and reviewed internally by others including a safety manager.  A copy was sent to CN for their comments.  This was noted by Ng in his handwriting with the words “no adverse comments” and dated 23 April 2001.  At that stage D1 was going to use the proprietary product RMD Rapidshor system (“RMD”) for the falsework for PB1 and PB4 beams, and the proprietary product SGB Titan system (“SGB”) for the falsework for PB3 beams.

80. SGB was in fact used for the falsework for PB3 beams before it was replaced by RMD.

81. Dr Lam said, and I accept, that SGB and RMD were substantially different in shape and structural form.

82. Ng said that he knew before the accident that there was going to be a change from SGB to RMD for the falsework for PB3 beams but that he had not seen any design drawings before the accident.  After the accident he saw these in Wong’s office at the site.

83. It is not disputed that there was no method statement prepared or submitted prior to the accident showing the change of SGB to RMD for the falsework for the PB3 beams.  There were also no working drawings for the erection of the replaced RMB falsework for the PB3 beams.  Thus, there were no working drawings for supervisors to refer to on the site.

84. The reason for the change from SGB to RMD for the falsework for the PB3 beams appears to be due to insufficient supply of SGB.  Jack Chan Kin Sing (“Jack Chan”), who was D1’s site agent, said in his declaration of 6 June 2001 that the change to RMD was approved by D1 around 20 April 2001.  The diagonal bracing for the 16 sets ordered were probably delivered on or after 27 April 2001 according to the ‘Take Off Sheet’ annexed to Dr Lam’s report.  I infer from that and find that the replaced RMD falsework for PB3 beams was first erected on the site on or after 27 April 2001.

85. Wong did not give evidence before me.  However, in his declaration to the BD and LD staff made on 12 June 2001 he said that D1 did not inform him about the change from SGB to RMD.  He also said that in early May 2001 at the site the project manager Vincent Yuen told him that a demonstration of the erection of RMD for PB3 was underway.  He asked him if the design and calculation of those supports had been checked and prepared for his comments.  Yuen sent D1’s engineer Reynold Chong to Wong’s office to give him an explanation.  Chong went to see Wong and told him that he had checked the design calculation of the RMD falseworks, that there was no problem and that a revised method statement was underway.  However, it is not disputed that D1 did not submit or provide Wong with a revised method statement prior to the accident.  

86. It is not disputed that the erection of the replaced RMD falsework for the support of the PB3 beams was performed by the subcontractor and subsubcontractor of D1.  However, under Case 1, D1 as the contractor had the sole responsibility to ensure the integrity of the falsework.  This is also not disputed.

87. On 20 May 2001 a total of 10 falsework towers were set up at gridline 7 on L5.  Of these, 6 towers were moved from gridline 5 to the required locations while the remaining 4 were newly erected.  As the LD found, these 4 towers including the one that collapsed were erected by the workers of the 3^rd defendant.  The 4 towers formed 2 sets of twin towers at gridline 7B to 7C as shown in sketch 5 attached to the LD report.

88. Mr Pirie relied on the statement made by Jack Chan in his declaration made on 6 June 2001 and submitted that the falsework that collapsed was not newly erected but complete or near complete as it was moved from another location.  In his said declaration, Jack Chan in answer to Question 30, said that the collapsed falsework was not newly erected but “should be moved from PB3” at gridline 5.  This was not accepted by the LD in its findings and conclusions.  

89. In my view, Jack Chan’s account is not reliable.  I bear in mind that the LD relied on declarations made by the workers who actually themselves erected the falsework which collapsed.  In my view, their account would have been more reliable than Jack Chan’s.  I find that the falsework which subsequently collapsed was newly erected and not one that was moved from another location.  In my view, the LD correctly found that the collapsed tower was newly erected and not one moved from another location.  

90. In my view, it is also clear, and I so find, that the falsework that collapsed on 29 May 2001 had been erected on 20 May 2001 and had been standing there for about 10 days before the collapse on 29 May 2001.

Missing diagonal braces

91. As found by the LD in the LD report at paragraph 28, the falsework should have been fitted with three diagonal braces on each of its four faces.  As found by the investigators, no braces were fitted at all on the two faces of the collapsed tower perpendicular to the PB3 beam at the time of the accident.  Its twin tower on the other side of column 97 was similarly fitted.  Hence, 50% of the required diagonal braces were missing and omitted from the falsework which collapsed.  This is not disputed.

92. A most helpful illustration of what the falsework with the missing diagonal braces would have looked like is shown in Sketch 1 attached to the LD report at page 707 of Bundle CB2.  This shows that both sides of the falsework at column C97 had the missing diagonal braces.  By contrast the falsework at column C98 did not have any missing diagonal braces as was found by the investigators after the accident.  This is also not disputed. 

93. At paragraph 28 of the LD report it is stated that based on the available information the collapsed tower was fitted with all diagonal braces on all faces up to 26 May 2001.  I am unable to accept this finding in the LD report.  Dr Lam disagreed with this part of the LD report.  It was his view that the collapsed falsework might not be fitted with all bracing members on all faces up to 26 May 2001.  He explained in evidence that the people who put up the concrete planks were the same group of workers who erected the falsework.  He did not think that the workers would remove diagonal braces which would make the falsework dangerous for their fellow workers.  

94. I find that it is highly unlikely that the falsework which subsequently collapsed was properly erected with sufficient diagonal braces and that right up to 25 or 26 May all the faces had diagonal braces.  It is more likely, and I so find, that when erected on 20 May 2001 the falsework for PB3 beam already had 50% of the diagonal braces missing.  The reason for this was that D1 did not order sufficient quantities of braces for the replaced RMD.  D1 only ordered 16 sets of braces for the replaced RMD for falsework for PB3.  These braces were of a different dimension than the braces suitable for the RMD for falsework for PB1 beams.

95. Mr Pirie also relied on the statement by Jack Chan in his declaration made on 27 July 2001 that on or about 25 or 26 May 2001 he did inspect the falsework which subsequently collapsed and that he found nothing wrong at that time.  The inference sought to be drawn is that as he found nothing wrong at the time of his inspection, someone must have removed the missing braces after that time.  I am unable to accept the statement made by Jack Chan in the said declaration.  This was a self serving statement of Jack Chan who did not give evidence before me.  I reject his account that he did inspect the falsework on 25 or 26 May and found nothing wrong with it.  He was, in my view, trying to minimize his blameworthiness for the collapse.  His account is, in my view, unreliable and I place no weight on it.

96. Save for the part of paragraph 28 of the LD report which Dr Lam did not agree with as set out above, both experts Dr Lam and Pho agreed with the findings of the LD investigating team as set out in the LD report. 

Lack of lateral bracing

97. On the expert evidence, it is clear, and I find, that there was no lateral support from the falsework to existing structures like the column.  Pho also said, and I find, that was not a single falsework at the site was laterally supported to existing structures like columns.  As Pho said, and I so find, such lateral support would have provided strength for the movement of the falsework.  The replaced RMD was designed to be laterally braced around the column as shown in the drawing attached to the design calculations dated 27 April 2001 at page 231 of Bundle PB3.

32T loading capacity

98. The approved plan clearly required the falsework to have a loading capacity of 32T.

99. It was the duty of D1 as the contractor to ensure that the falsework as erected has this loading capacity.  It was also the duty of the RSE as part of his duty of supervision to ensure that the falsework had the loading capacity of 32T.

100. Both Dr Lam and Pho said in evidence that there were no working drawings and detailed calculations for them to be satisfied that the replaced RMD for PB3 beams had the loading capacity of 32T.

101. There is no dispute that there were no working drawings for the replaced RMD falsework for PB3 beams.  Although Ng said that the RMD system had the loading capacity of 32T I am unable to accept that the falsework which collapsed had the loading capacity of 32T.  According to Dr Lam and Pho, whose evidence I accept, when they examined the MS 19A and the RMD design calculations dated 27 April 2001 they were unable to find substantiation in the documents provided that the loading for each leg of the falsework had the capacity of 80 kn so that 4 legs had the total loading capacity of 32T.  According to them there was no proof provided why each leg of the falsework could carry a load of 80 kn and hence there was no proof that 4 legs could carry a load of 32T.  I prefer their evidence to that of Ng whose evidence I reject.

102. Furthermore, according to the report of D.  Hartley, RMD’s Technical director, D1’s requirements for the total load to be carried by RMD was 26T. 

103. In the design drawings and revised calculations for the replaced RMD for PB3 from the supplier of RMD to Reynold Chong sent by fax dated 3 May 2001 the calculations show that the total loading for PB3 was 260kn or 26T and not 32 T as required by the approved plan.

104. Robert Dover, the managing director of the supplier of RMD also confirmed in his declaration of 13 June 2001 that the design of the RMD system required by D1 was 260 Kn or 26T per tower and their design and drawings were based on the loading required by D1.

105. It seems that the supplier of RMD was asked by D1 to provide RMD with a loading capacity of 26T rather than 32T which was required by the approved plan. 

106. I am unable to see how Ng or Wong could have been satisfied that the falsework had the loading capacity of 32T.

The main causes of the collapse of the falsework

107. In my judgment, on the evidence of Dr Lam and Pho, the missing diagonal braces on the collapsed falsework and the lack of lateral bracing to the column were the main causes of the collapse. 

108. As set out in the LD report at paragraph 54, the omission of the diagonal bracing pieces should have been easily spotted when comparing with the falsework at the other supporting end of the collapsed beam where diagonal braces were provided in all vertical faces.  But no one noticed and reported the omission.

109. Ng, however, said in evidence that it was not easy to spot the missing diagonal braces at the site.  Ng did not himself inspect the site and he cannot say what Wong did or did not see.  He did, however, accept that as a RSE if he saw the falsework with missing diagonal braces as shown in Sketch 1 at pg 707 of bundle CB2 he would be concerned about immediate danger of collapse.  He even went so far as to say that even if one brace was missing there would be immediate danger.  But he maintained that it was not easy to detect that diagonal braces were missing at the site.  I do not believe him.  I reject this evidence of Ng and prefer the evidence of Dr Lam and Pho.  Wong as the RE was required to be on the site at all times.  The falsework was erected on 20 May 2001, as I have found, and it was standing there right up to the time of the accident without lateral bracing to a column and with 50% of diagonal braces missing.  I find that a reasonably competent engineer would have spotted these omissions easily.  I also accept, as Dr Lam said, that there was a lot of space between the columns and the falsework on the site.  It is clear that the site was accessible with no difficulty for anyone walking around to inspect the falsework.  Had Wong done his job he would have had no difficulty in spotting the missing diagonal braces and should have stopped the works from proceeding until the matter was rectified.  Dr Lam said, and I accept, that Wong as a qualified engineer and the RE would know that it was dangerous to carry on the work with the missing diagonal braces.

Liability of D1

110. D1 was also convicted of the offence of failing to ensure safety of place of work in contravention of Regulation 38A of Construction Sites (Safety) Regulations (Cap. 591) at the magistrates’ court on 3 April 2003.

111. The question of D1’s liability is not in issue.

112. In my judgment D1 was right to concede at the outset that it was liable in tort to the plaintiffs.  Mr Bharwaney in his closing submissions accepted that D1 was liable in common law negligence as well as for breach of statutory duty.  He accepted that D1 was also liable:

(1)       as an occupier of the site and was in breach of the common duty of care under the Occupiers Liability Ordinance (Cap. 314) (“the OLO”);

(2)        under section 7 of the Occupation Safety and Health Ordinance (Cap. 509) (“the OSHO”);

(3)        under section 40(2A)(b) and section 40(2B)(a) of the BO.

113. As found by the experts there were no working drawings for the replaced RMD falsework.  D1 as the principal contractor should have provided proper working drawings on the site for the workers to erect the falsework and for supervisors to ensure proper erection of the replaced RMD.  D1 did not do so.  D1 also failed to order sufficient quantities of diagonal braces for the replaced RMD falsework for use at the site.  D1 required the supplier of RMD to provide RMD with a loading capacity of 26T instead of 32T as required by the approved plan.

114. By paragraph 5.19 of the draft Code D1 had the sole responsibility to ensure the integrity of the falsework and D1 was in breach of its duty.

115. D1 was also in breach of its duty to supervise under paragraph 5.20 of the draft Code as it did not properly supervise the proper erection of the replaced falsework.  The falsework did not have a loading capacity of 32T.  Not a single falsework at the site was laterally braced to columns.  50% of diagonal braces was missing from the falsework which collapsed.  And some of the other falsework at the site also had diagonal braces missing as found by the LD in its report at paragraph 29. 

116. There was also a failure by D1 to properly inspect the falsework before concreting began.  As I have found, the collapsed falsework was erected on 20 May 2001 and had been standing there for about 10 days before the accident without lateral support to the column and with 50% of its diagonal braces missing.  Yet no one reported any non-conformity with the approved plan.  Even at the morning inspection at the site before concreting began on 29 May 2001 there was a site walk with safety officers of D1 as well as with Jack Chan to inspect the site.  There was no report of any non-conformity with the approved plan.  Any reasonably competent inspection would have easily revealed that diagonal braces were missing and that lateral bracing to existing column was not provided as required by the approved plan.  It seems to me, and I so find, that there was gross negligence on the part of D1.  This is not disputed by Mr Bharwaney.

Liability of Ng and CN

117. Mr Bharwaney submitted that CN and Ng were also liable for common law negligence and breach of statutory duty. The breaches of statutory duty he relied on were:

(1)    as an occupier of the site, under the OLO;

(2)    under section 7 of the OSHO;

(3)    under sections 40(2A)(b), 40(5) and 40 (2B)(a) of the BO.

118. Mr Pirie accepted that a material breach of the draft Code on the part of CN and Ng would amount to negligence.

Was there negligence on the part of CN and Ng?

119. Ng, CN and Wong clearly owed a duty of care not to cause personal injury to those whom they could reasonably foresee might be injured as a result of their negligence.  (paragraph 8-078 Jackson & Powell on Professional Negligence 5^th Edn).  It is accepted that CN would be vicariously liable for the acts and omissions of Ng and Wong.

120. It seems to me to have been established that Ng as the RSE and Wong as the RSE’s representative at all times, as well as being the RE on the site, were negligent and in breach of their duty of care.

121. Ng said in evidence that he did not realize at the time of his declarations to the BD and LD staff that Case 1 under paragraph 5.20 of the draft Code was engaged.  As he did not realise that Case 1 was engaged at the time, it seems to me that neither he nor Wong physically checked the falsework to ensure that they complied with the approved plans.  Ng said that he did not see the design drawings and calculations for the replaced RMD for PB3 until after the accident at the site.  I find that Ng and Wong could not have been satisfied at the time of the accident that the falsework which collapsed had the loading capacity of 32T.  The calculations of RMD, which Ng did not even see prior to the accident, only showed a loading capacity of 26T which was what was required by D1 contrary to the approved plan.

122. Wong also said in his declaration that as a RE his duties did not include safety supervision of the falsework.  In answer to Question 18, he said that Ng agreed with him that the safety of all the falsework fell within the responsibilities of the contractor rather than him, and that he was not required to check the safety of the falsework at the site.  This statement of his shows clearly that he was unaware of his obligations under Case 1 as the representative of the RSE.

123. Wong also did not check the calculations.  He did not report any non-conformity with the approved plans.  The reason for this is that he failed to carry out his obligations and breached his duty of care to supervise the works.  He was the RSE’s representative and the RE on the site at all times.  Although the falsework that collapsed was standing there for about 10 days before it collapsed he failed to inspect the same.  He also failed to inspect it before concreting began.  Had he inspected the falsework, he would easily have discovered that it was not laterally braced to the column and that 50% of the diagonal braces was missing.  Any reasonably competent engineer would have discovered this.  The fact that Wong did not report any non-conformity with the approved plan demonstrates clearly that he was in breach of his duty to supervise the falsework that was erected. 

124. There can be no doubt that the falsework which collapsed was in a dangerous condition and was quite clearly unsafe.

125. Both Dr Lam and Pho said that the accident could have been prevented if CN, Ng and Wong had fulfilled their obligations.  It seems to me that Ng as the RSE and Wong as the representative of the RSE, could have stopped the works from proceeding until the dangerous condition of the falsework had been rectified and the accident would not have happened.  By the same token, it seems to me that if D1 had also fulfilled its obligations the accident could also have been prevented.

126. I find that there was gross negligence on the part of Wong and Ng.  CN is vicariously liable for their negligence. 

127. I find that negligence has been proved against Ng and CN.  As negligence has been established against Ng and CN that is sufficient, in my view, to go on and apportion liability between D1 on the one part and Ng and CN on the other part.  However, D1 also relies on the breaches of statutory duty against Ng and CN as pleaded by the plaintiffs in the consolidated statement of claim.  In my view, liability for breach of statutory duty does not make any difference to the apportionment of liability but as this has also been relied on, I shall go on to consider liability for breach of statutory duty.

OLO

128. In my view, CN and Ng were also occupiers of the site as they were in a position to stop the works from proceeding.  They had a sufficient degree of control over the site to be able to ensure the safety of the plaintiffs and the deceased who came on the site as visitors.  I find that there was also a breach of the common duty of care.

OSHO

129. Section 7 of the OSHO provides that:

“(1) If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of premises must ensure that-

(a) the premises…………………

(b) …………………………………..

(c) …………………………………..

are, so far as reasonably practicable, safe and without risks to health.”

130. “Occupier” is defined in section 3 as including,

“ a person who has any degree of control over the premises or workplace….. ”

131. The employer of the injured plaintiffs and the deceased was Kin Ching.  The site was not under the control of Kin Ching.

132. I have already held that CN and Ng were occupiers of the site under the OLO and in my judgment they would also be occupiers of the site under the OSHO.

133. By failing to ensure that the premises were, so far as reasonably practicable, safe and without risks to health, Ng and CN are in my judgment also liable for damages for breach of statutory duty under section 7(1) of OSHO.

BO

134. D1 relies on the breaches of the BO as pleaded in the consolidated statement of claim.

135. Section 40(2A) provides that:

“ Any person for whom any building works…….are being carried out and any.....................………… registered structural engineer ……………………………………….. directly concerned with any such works who-

(a) ………………………………………………………………

(b) diverges or deviates in any material way from any work shown in a plan approved by the Building Authority under this Ordinance; or

(c) …………………………………. shall be guilty of an offence……………..”

136. And section 40(5) provides that:

“ Any person, being a person directly concerned in or with any building works……..who permits the commission of any offence specified in this section shall be deemed to be guilty of such offence ……………...……………….”

137. Section 40(2B) provides that:

“ Any person (whether or not……….a registered structural engineer………….) directly concerned with ……………….other form of building works who-

(a) carries out or has carried out such works, or authorizes or permits or has authorized or permitted such works to be carried out, in such manner that it causes injury to any person ………..; or

(b) …………………………………………………….. shall be guilty of an offence …………………..”

138. Ng was both the RSE and a person directly concerned in or with the building works at the site.  It seems to me that the falsework which collapsed did diverge or deviate in a material way from the approved plan in that it failed to have lateral bracing to existing structure like a column, it failed to have a loading capacity of 32T and it had missing diagonal braces.  By failing to properly supervise the erection of the falsework in breach of his obligation under Case 1, Ng has authorized or permitted the works to be carried out in such manner that it caused injury to the plaintiffs and the deceased.  In my judgment Ng is also liable for damages for breach of statutory duty under the BO and CN is vicariously liable for the tort of Ng.

Apportionment

139. Although Ng and CN are liable in common law negligence as well as for breaches of statutory duty, as I have said the breaches of statutory duty do not take the matter further.  It seems to me that the question of the apportionment of liability between D1 on the one part and Ng and CN on the other part would still be the same even if there were no breaches of statutory duty.

140. Section 3(1) of the Civil Liability (Contribution) Ordinance (Cap. 377) provides that:

“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any person liable in respect of the same damage (whether jointly with him or otherwise).”

141. And section 4(1) provides:

“ Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

142. It is common ground that D1 may recover contribution from Ng and CN as they are liable to the plaintiffs in respect of the same damage.  And it is clear that the amount of contribution shall be such as may be found by the Court to be just and equitable having regard to the extent of Ng and CN’s responsibility for the damage.

143. As to the proper basis of apportionment I was also referred to paragraph 4.25 Clerk & Lindsell on Torts 19^th Edn where it is stated:

“There was some initial controversy as to the proper basis of apportionment. Hilberry J. took “responsibility” to refer to the extent to which each tortfeasor caused the damage, and not to their relative culpability.  Hallett J., on the other hand, declined to follow this interpretation, and it is now well-established that neither element should be disregarded.  For example, in Downs v Chappell a negligent defendant was required to contribute equally with a fraudulent defen­dant on the basis that the negligence had a greater causative impact.  Hobhouse L.J. said that: “It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance.  A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact.” 

144. The apportionment of damages is substantially a matter of discretion.  The Court must apportion the damages between the parties who are actually before the Court.  It is not relevant to have regard to the possible negligence of some other person, not a party to the proceedings, whose fault may have contributed to the damages suffered by the injured plaintiffs and the deceased (paragraph 4.25 Clerk & Lindsell).

145. It is common ground that the question of apportionment is between D1 on the one part and Ng and CN on the other part.  These are the only parties actually before the court and it is not relevant to consider whether any other person not a party to the proceedings may have contributed to the damages suffered.

146. It is accepted by D1 that the major blameworthiness for the accident lies with D1 with 60% liability on its part and 40% on the part of Ng and CN.

147. Mr Pirie submitted that as D1 did not provide adequate working drawings, failed to order sufficient quantities of diagonal braces for the replaced RMD for use at the site, failed to properly inspect the erection of the falsework to ensure compliance with the approved plan, D1 should be liable to the extent of 80%.  He submitted that Ng and CN should only be liable to the maximum extent of 20%.

148. In my judgment having regard to their respective responsibilities and their breaches it is just and equitable to apportion liability at 30% on the part of Ng and CN and 70% on the part of D1. 

149. As requested by Counsel, I shall leave it to Counsel to agree the minutes of order on the above apportionment of liability.  Failing agreement on the minutes of order, there shall be liberty to apply before me as to the order to be made.

150. I also make an order nisi that the costs of D1’s contribution proceedings and the third party proceedings be costs to D1 against Ng and CN as it seems to me that liability on the part of Ng and CN was disputed throughout the proceedings.  As liability has been established against them costs should follow the event.