YIP SUEN PUN v. WONG KA KEE t/a C&K ENGINEERING CO AND OTHERS

HCPI 848/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 848 OF 2003

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J U D G M E N T

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Introduction

1.  This is an action for personal injuries arising out of an accident that took place at about 4 pm on 18 November 2000 on a construction site at No.115-117 Caine Road, Hong Kong (“the Site”).  The Plaintiff, Mr Yip Suen Pun, was seriously injured when a refuse chute at the Site collapsed and struck him.

2.  The Plaintiff sued a number of parties, namely:

(i) his employer, Wong Ka Kee trading as C&K Engineering Co. (the 1^st Defendant), who was a sub-contractor on the Site;

(ii) the main contractor, Yu Wing Construction & Investment Co. Ltd. (the 2^nd Defendant);

(iii) the sub-contractor responsible for installing the refuse chute, Lexicon International Ltd. (the 3^rd Defendant);

(iv) the owners of the Site, Pacific Jumbo Development Ltd., Rich Line Enterprises Ltd. and Kinsan Development Ltd. (the 4^th, 5^th and 6^th Defendants respectively); and

(v) the project manager of the Site, Henderson Real Estate Agency Ltd. (the 7^th Defendant).

3.  At trial, the 1^st, 2^nd, and 4^th to 7^th Defendants were jointly represented.  The 3^rd Defendant was separately represented.

4.  During the first day of the trial, I was informed by Mr Anthony Cheung, counsel for the Plaintiff, and Mr Erik Shum, counsel for the 1^st, 2^nd and 4^th to 7^th Defendants, that their respective clients had settled the action on the terms contained in a draft consent order.  Under the terms of that consent order, the 1^st, 2^nd and 4^th to 7^th Defendants consented to judgment against them jointly and severally in the sum of $10,750,000.00 together with costs.

5.  The trial therefore proceeded only as against the 3^rd Defendant.  The Plaintiff alleges that the accident and his resulting injuries were caused by the negligence and/or breach of statutory duty of the 3^rd Defendant and/or breach of the common duty of care of the 3^rd Defendant as occupier of the refuse chute. 

6.  The 3^rd Defendant denies liability.  However, the parties informed me that quantum was agreed in the sum of $13,800,000.00 (that sum excluding the employees’ compensation already paid to the Plaintiff), so that judgment would be entered in that sum in the event that I held the 3^rd Defendant liable to the Plaintiff.

The Accident and the injuries sustained by the Plaintiff

7.  The Plaintiff was employed at the Site as an electrician.  At the time of the accident, he was preparing wire ducts on the 1^st Floor podium of the residential building being erected on the Site, near the swimming pool that was under construction and about 10 feet away from the bottom end of a refuse chute that had been installed on the side of the building at the Site.

8.  At about 4 pm on 18 November 2000, without warning, the refuse chute collapsed from the 12^th Floor level downwards with the result that the Plaintiff was struck by falling parts of the refuse chute and building debris.  Although he was wearing a safety helmet at the time, the force of the collapsing materials knocked the Plaintiff to the ground and partly buried him.  He lost consciousness temporarily and was rescued by emergency services, who took him by ambulance to the Accident and Emergency Department of Queen Mary Hospital.

9.  The Plaintiff, who was aged 31 at the time of the accident, was found to have sustained multiple fractures and injuries including multiple fractures of his spine at C6, T5 to T10, a closed fracture of the left radius and ulna and also of the left tibia and fibula, fractured ribs with right pneumothorax and bilateral haemothorax with pneumonia, and a laceration over the left eye.

10.  As quantum has been agreed, it is not necessary to set out the details of the medical treatment received by the Plaintiff since the date of the accident.  However, it is right to record that his injuries were extremely serious such that he is now paraplegic; he has no sensation from his trunk downwards; he suffers from upper back pain after prolonged sitting, left hand weakness, numbness and pain, and is dependent on a wheelchair for ambulation.  In addition, he suffers from impaired lung function, neurological impairments including loss of sensation, paralysis of his legs, urinary and bowel incontinence, sexual impotence, blurred left eye sight and psychological problems.  The medical expert reports indicate that the Plaintiff’s condition is permanent.

The Refuse Chute

11.  By an agreement dated 27 October 2000 between the 3^rd Defendant and the 2nd Defendant, the 3^rd Defendant agreed to supply and install a refuse chute at the Site.  Although the contract was dated 27 October 2000, the 3^rd Defendant began the supply and installation of the refuse chute on 10 October 2000, when the refuse chute from the 10^th Floor to the ground level was installed.  Thereafter, the refuse chute from the 16^th Floor to 10^th Floor was installed on 17 October 2000; from the 20^th Floor to 17^th Floor on 31 October 2000; from the 28^th Floor to 20^th Floor on 8 November 2000; and finally, from the 33^rd Floor to 29^th Floor on 18 November 2000.

12.  The contract between the 2^nd Defendant and the 3^rd Defendant was only for the supply and installation of the refuse chute.  Clause 10 of the printed contract, which would have required the 3^rd Defendant to provide repair and maintenance for one year upon completion, was deleted.  Similarly, clause 5 of the attached printed conditions making the 3^rd Defendant responsible for repairs during a warranty period was deleted, as was clause 6 of those conditions requiring the 3^rd Defendant to designate a representative or foreman to stay at the construction site to receive instructions from the 2^nd Defendant.

13.  The refuse chute consisted of a series of plastic cones or sections, one end of which was narrower than the other, so that they could be joined together to form a type of funnel, into which building debris could be inserted and thus removed from higher floors of the building.  There were three cones for each floor of the building and one of these three cones had an opening into which building debris could be inserted.  The refuse chute was secured to the exterior of the building by means of metal brackets affixed to the side of the building by anchor bolts.  For every six cones, that is to say on alternate floors, there was one pair of brackets securing the refuse chute to the side of the building.  Each bracket was affixed to the exterior of the building by means of three anchor bolts (each bolt being 4 inches long): two bolts were attached to the vertical exterior wall of the building, one bolt was attached to the underside of the window ledge.  Each of the cones weighed approximately 11kg so that a set of six cones weighed approximately 66kg.

14.  The uppermost cone of a set of six cones rested on a pair of brackets attached to the exterior of the building by means of a pair of metal handles or “ears” on either side of the top end of the cone.  The cones within a set of six were attached together by means of a chain, which was connected to the metal handles or “ears” on each of the cones.  However, the lowest cone in the set of six was not connected by chain to the top cone of the next lower set of six cones and simply rested in the top opening or mouth of the uppermost cone of that next lower set.

15.  The refuse chute was installed by the 3^rd Defendant’s foreman, Mr Li Ping Kuen, who worked with two other workers of the 3^rd Defendant.  According to his declaration given to the Occupational Safety Officer who compiled the Accident Report relating to this accident, Mr Li went to the Site to identify the position where the refuse chute would be installed before proceeding to design and manufacture the necessary brackets.  These would differ from site to site and so the brackets for this refuse chute were specifically welded for use on this Site alone.  They were newly made and painted to prevent rust.  The entire refuse chute consisted of new materials.

16.  After each stage of the refuse chute was installed, payments were made by the 2^nd Defendant to the 3^rd Defendant against delivery notes signed by the 2^nd Defendant’s foreman.  The 2^nd Defendant duly made full payment to the 3^rd Defendant for the refuse chute in the sum of $55,210.00 pursuant to the contract.

The parties’ respective submissions on liability

17.  The Plaintiff’s case is that the 3^rd Defendant was negligent in three respects, namely:

(i) in designing inadequate brackets and bolts on which the refuse chute was mounted;

(ii) in failing properly to inspect and test the refuse chute after it was completed; and

(iii) assuming there was any misuse or blockage of the refuse chute, in failing to report and improve on the refuse chute as installed.

18.  As regards breach of statutory duty, the Plaintiff relies on the common duty of care under the Occupiers’ Liability Ordinance (Cap.314) and also on s.7 of the Occupational Safety and Health Ordinance (Cap.509), on the basis that the 3^rd Defendant was the occupier of the refuse chute system.

19.  Finally, the Plaintiff prays in aid the doctrine of res ipsa loquitur.

20.  For its part, the 3^rd Defendant denies negligence and advances a number of submissions, which I shall address below.

21.  In relation to the allegations of breach of statutory duty, the 3^rd Defendant denies that it was an “occupier” under the Occupiers’ Liability Ordinance or the Occupational Safety and Health Ordinance on the basis it never had a sufficient degree of control over the Site.

22.  Finally, the 3^rd Defendant denies that the doctrine of res ipsa loquitur has any application in this case.

Was there negligence on the part of the 3^rd Defendant?

23.  In his written closing submission, Mr Lawrence Cheung, counsel for the 3^rd Defendant, submitted that there was no negligence on the part of the 3^rd Defendant because (in summary):

(i) the design of the refuse chute was adequate to hold the weight of the refuse chute and debris inserted into it during normal and proper use;

(ii) the inspection of the refuse chute after its completion was adequate;

(iii) the 3^rd Defendant alerted the 2^nd Defendant to the need to keep the refuse chute clear of blockages and the chains properly fastened;

(iv) the refuse chute had been used at the Site for over a month without incident and other refuse chutes previously installed by the 3^rd Defendant and used in many past projects had an accident-free history;

(v) the collapse of the refuse chute was caused by the blockage and/or misuse of the refuse chute by the 2^nd Defendant rather than the insufficient strength of the bolts used to mount the brackets on the exterior of the building;

(vi) the fact of the settlement of the action between the Plaintiff and the other Defendants supports an inference that the accident was not caused by the negligence of the 3^rd Defendant;

(vii) the misuse of the refuse chute and the failure to provide a receptacle underneath the mouth of the refuse chute to collect falling refuse (in spite of the Plaintiff’s complaint to his foreman about this) indicates negligence on the part of parties other than the 3^rd Defendant.

24.  In considering the issue of negligence, it is first necessary to consider if it is possible to determine the cause of the collapse of the refuse chute and, if so, to identify that cause.

The cause of the collapse

25.  An Accident Report complied by the Labour Department after the accident found that:

(i) the refuse chute was still mounted on the side of the building from the 12^th Floor to the 33^rd Floor;

(ii) there were no brackets found on the side of the building at the 12^th Floor and below, i.e. at the 2^nd, 4^th, 6^th, 8^th, 10^th and 12^th Floors, but six holes were found at each of these floors (2 pairs on the vertical wall of the building and 1 pair on the bottom of the window sill);

(iii) some tiles around the holes on the 12^th Floor were damaged;

(iv) a bracket was found hanging on the bamboo scaffold at the 6^th Floor level with three anchor bolts in their sheaths (which appear to be nuts into which the bolts were screwed) still mounted on it;

(v) other brackets were found on the 1^st Floor in good condition, whereas the individual sections of cones were found deformed.

26.  The cause of the collapse of the refuse chute is highly material to the question of whether there is any liability on the part of the 3^rd Defendant.  The 3^rd Defendant’s case is that the refuse chute was properly designed and constructed and only collapsed because of misuse resulting in a blockage of building debris.  It was contended that the blockage must have caused an accumulation of debris so that the weight of the accumulated debris became too great for the brackets to support and consequently pulled the anchor bolts loose and thus caused the collapse of the refuse chute.  On the other hand, the Plaintiff’s primary case is that the refuse chute collapsed because the anchor bolts were not sufficiently strong to support the refuse chute.

27.  The Plaintiff gave evidence but, having been on the podium level at the time of the accident, he was not in a position to know whether the refuse chute was blocked on a higher floor immediately before it collapsed.  In his witness statement, he had indicated that, because he heard no noise from the refuse chute, he thought it was not in use at the time although he was aware that the refuse chute had been in use from time to time before the day of the accident.  In cross-examination, he agreed that he had not heard any noise from the refuse chute immediately before it collapsed and accepted that one of the reasons for that might have been because it was blocked.  The Plaintiff gave evidence that, two days after the accident, his foreman, Mr Li Chung Nin, told him that there was a big piece of debris blocking the refuse chute on the 12^th Floor.  He also gave evidence that Mr Li Chung Nin had told him that he was struck by big pieces of falling cement and bricks, similar to the type of debris he himself had seen being disposed of through the refuse chute before the accident.

28.  The only other witness at the trial, Mr Kevin Kong Wing-keung, a director of the 3^rd Defendant, was not at the Site on the day in question and therefore could not give direct evidence about the state of the refuse chute at the time of the accident or as to the type or size of building debris which was being inserted into the refuse chute.

29.  On the other hand, the declarations obtained by the Occupational Safety Officer who compiled the Accident Report suggest that the refuse chute had not been used for oversized pieces of building debris.

30.  In his declaration, Mr Cheung Chun Tat, a general worker employed by the 2^nd Defendant, stated that he and another worker were engaged in clearing “mud and gravel and refuse” on the 22^nd Floor of the building on the day of the accident.  They dumped about 10 wheelbarrows-full of mud and gravel into the refuse chute during the morning before lunch.  They then resumed work after lunch and dumped a further 30 wheelbarrows-full of mud and gravel into the refuse chute by about 3.15 pm.  After a tea break, when they resumed work at about 3.50 pm and had shovelled a wheelbarrow-full of mud and gravel into the refuse chute, they heard noise from below and were instructed to stop shovelling any further rubbish into the refuse chute.  Mr Cheung stated that the refuse shovelled into the refuse chute consisted of mainly mud and gravel and stone fragments; the largest gravel was only approximately 7 inches long.  He stated that the other refuse such as larger gravel, plastic bags, cement bags, wood strips and plastic pipes would be carried away by bulldozer and would not be shovelled into the refuse chute.

31.  Mr Li Chung Nin, the Plaintiff’s foreman, declared that on the day of the accident he heard noise coming from the refuse chute intermittently and believed it was in use.  He also stated that when he rescued the Plaintiff, the Plaintiff was under sections of the refuse chute connected by chains and there was “only a small quantity of mud and gravels (sic), sand and stones”.  He said that, prior to the accident, there was only mud and gravel and sand and stone fragments approximately one metre high underneath the mouth of the refuse chute but there were no wood strips, mud and gravel bags.

32.  Counsel for the 3^rd Defendant submitted that, in the light of the volume of debris inserted into the refuse chute by Mr Cheung and his colleague on the 22^nd Floor, the relatively low height of the pile of refuse underneath the refuse chute prior to the accident suggests that there was a blockage higher up the chute.  Whilst this is a possibility, it is equally possible that the loose debris earlier disposed of via the refuse chute was removed from ground level: the Plaintiff gave evidence that once a heap of debris had accumulated, it would be shovelled into a truck and then removed.

33.  The Accident Report stated that blockage of the chute “seemed not to be possible”.  It concluded that, since fallen brackets were found with anchor bolts still attached to them, a strong force must have pulled the brackets from the wall.  It concluded that the collapse was “believed” to have been caused by the force of falling debris from the 22^nd Floor having “induced a great impact force along the chute” thereby pulling out the brackets at the 12^th Floor and below in a chain reaction.  Under the heading “Prevention Recommended”, the report concludes with the statement: “The contractor responsible for the site should take all steps to ensure that the refuse chute is securely mounted on the wall for the purpose of removing debris.”

34.  Counsel for the 3^rd Defendant submitted that the Accident Report was inconclusive and was not reliable.  However, I am not prepared to discount the Accident Report as unreliable or inconclusive for the following reasons.

35.  Whilst the language in the report is tentative, the clear message conveyed by it is that blockage of the refuse chute was not thought to have occurred and that instead the cause of the collapse was the insufficient strength of the anchor bolts on the brackets to withstand the force of debris being thrown into the refuse chute.  It is noteworthy that the recommendation for prevention of a similar accident was directed to ensuring that the refuse chute was securely mounted rather than to ensuring that no blockage occurred.

36.  Moreover, counsel for the Plaintiff drew my attention to the fact that the Order made on the check list review directed that there be no expert evidence as to liability “save in the form of the report of the Occupational Safety Officer namely Fung Sik-lun dated 13 February 2001 and/or the oral evidence of the said Occupational Safety Officer”.  In the circumstances, if the 3^rd Defendant wished to challenge the reliability of the Accident Report, it could have required its author to attend at the trial to give evidence.  Similarly, Mr Cheung and Mr Li Chung Nin (the Plaintiff’s foreman) could have been called to give evidence in relation to their declarations made to the Occupational Safety Officer and to elicit evidence to support a contention that, for example, oversized pieces of cement were inserted into the refuse chute and that this might have caused a blockage.

37.  In the absence of direct first-hand evidence that there was a blockage of the refuse chute caused by inappropriate-sized pieces of refuse having been inserted into it, and in the light of the evidence in the declarations as to the nature of the refuse that appears to have been inserted into the refuse chute on the day of the accident, I am not satisfied that there is sufficient evidence on which I could find that the refuse chute became blocked on the day of the accident so that the accumulation of refuse in the refuse chute was the proximate cause of the collapse.  On the contrary, I find, on a balance of probabilities, that the cause of the accident was (as believed to be the case in the Accident Report) that the force of the falling debris from the 22^nd Floor was such that it pulled the bolts of the brackets at the 12^th Floor and below from the exterior wall of the building where they were affixed, thus leading to the collapse of the refuse chute.

Whether the design and installation of the refuse chute was adequate

38.  The Plaintiff’s primary case against the 3^rd Defendant was that the 3^rd Defendant was negligent in its design of the mounting supports and anchor bolts for the refuse chute.  In the light of my conclusion as to the cause of the collapse of the refuse chute, the inference of negligence is hard to resist: the mounting supports and anchor bolts were designed by the 3rd Defendant’s foreman, Mr Li Ping Kuen; Mr Li and his co-workers employed by the 3^rd Defendant were responsible for installing the refuse chute.

39.  The 3^rd Defendant was clearly aware of the need to design and install a refuse chute of sufficient strength to withstand the rigors of the use to which it would be put at the Site.  A document entitled “Method Statement” was provided by the 3^rd Defendant to the 2^nd Defendant and provided or explained to the 3^rd Defendant’s own workers.  That document recorded the need to “fix the mounting supports by anchor bolts at the required flooring” and that this was to “ensure it can support the loading of the rubbish chute system”.  The 3^rd Defendant’s witness, Mr Kong, accepted in cross-examination that, in designing the mounting supports and length and size of the relevant bolts to be used, Mr Li should also have taken into account the loading created by a blockage at least for a temporary period.

40.  For its part, the 3^rd Defendant submits that the fact that:

(i) the refuse chute above the 12^th Floor remained intact after the accident, and

(ii) the Occupational Safety Officer who compiled the Accident Report did not detect any faults with the mounting supports and anchor bolts of the refuse chute on the higher floors,

provides evidence from which it can be inferred that the design and workmanship of the lower part of the refuse chute was consistent with the upper part and was adequate.

41.  I do not think that the fact that the refuse chute above the 12^th  Floor remained intact indicates that there was no negligence in the design or installation of the lower portion which collapsed.  The evidence is that the debris being disposed of on the day of the accident was inserted into the refuse chute on the 22^nd Floor.  It would appear likely that the refuse chute collapsed at the 12^th Floor level and below because that was the point where the force of the debris inserted at the 22^nd Floor level was sufficient to cause the mounting brackets and anchor bolts at the 12^th Floor and below to be pulled loose.  In any event, it does not follow that the way in which the mounting brackets and anchor bolts were installed on the 12^th Floor and below was equally as secure as on the higher floors.

42.  In this regard, it is pertinent to note that shortly after the accident the 3^rd Defendant dismantled the refuse chute without replacing the collapsed portion.  Mr Kong’s evidence was that the 2^nd Defendant’s site agent, Mr Kwok Hak Chung, told him at a meeting on 21 November 2000 that the Labour Department was not happy about the refuse chute and so the 3^rd Defendant was instructed by Mr Kwok to dismantle the remaining part of the refuse chute.  This supports the inference that the refuse chute was not used after the accident but also weighs against any inference that the rest of the refuse chute above the 12^th Floor was thought to be safe after the accident.

43.  The efficient and safe disposal of debris from a construction site is a matter of obvious importance.  Given that it involves the dropping of materials from what in this case was a considerable height, it is also a potentially dangerous activity.  Clearly, it is important that a refuse chute of this nature must be sufficiently robust in design and in the way it is installed to cope with the force of building debris passing through it on the way to ground level.  This is the very purpose for which the refuse chute was erected and it is clear that this particular refuse chute was not sufficiently robust in design, or in the way it was installed, for that purpose.

44.  In the light of what I have found to be the cause of the collapse of the refuse chute, I conclude that the 3^rd Defendant was negligent either in the design of the refuse chute in that the mounting brackets and anchor bolts were not sufficiently strong and secure for the weight of debris to be disposed of through the refuse chute or, alternatively, in the installation of the refuse chute in that the refuse chute was not securely mounted on the exterior of the building in such a way that the mounting brackets and anchor bolts would be able to withstand the force of falling debris.  Had longer or more bolts been used to secure the mounting supports to the exterior wall of the building, the refuse chute might not have collapsed.  Had a different design been used whereby, for example, there was a pair of mounting supports on every floor rather than every second floor, the weight of cones to be borne by each pair of mounting supports would have been considerably less.  Any of these simple modifications might well have prevented the collapse of the refuse chute and, consequently, the Plaintiff’s injuries.

Whether the refuse chute was properly inspected after installation

45.  The Method Statement also noted that the 3^rd Defendant’s staff should “inspect the finished rubbish chute system together with the contractor”, i.e. the 2^nd Defendant.  The 3^rd Defendant was therefore clearly aware of the need to perform an inspection of the refuse chute.  In his declaration made in connection with the Accident Report, Mr Li Ping Kuen did say that after completion of the installation, he examined the refuse chute visually and, after he was sure the installation was proper, he notified the site foreman to examine and accept the work.

46.  Counsel for the 3^rd Defendant submitted that the 2^nd Defendant’s site agent, Mr Kwok, signed on delivery notes after the installation of the different stages of the refuse chute to indicate his acceptance of the quality of the refuse chute.  This was done after a visual inspection carried out by Mr Kwok together with Mr Li.  Reference was made to clause 9 of the contract which provided: “Upon completion of the work, [the 3^rd Defendant] shall submit to the office of [the 2^nd Defendant] a certificate of quality and quantity signed by [the 2^nd Defendant’s] person-in-charge of the construction site for the purpose of settling payment.”  It was also submitted that the refuse chute was designed and installed by Mr Li in accordance with the drawings of the architect, who must have been aware of the refuse chute.  Therefore, it was submitted, the refuse chute must have been adequately designed and installed.

47.  I do not think that these matters assist the 3^rd Defendant.  It is clear that the purpose of the 2^nd Defendant’s site agent in signing the delivery notes was to acknowledge the completeness of the installation of the refuse chute and that what was supplied was what had been ordered.  This was in turn for the purpose of approving payment to the 3^rd Defendant and there is no evidence that the examination involved any kind of test to verify the strength of the mounting brackets or anchor bolts, or a test of the robustness of the refuse chute by means, for example, of a trial disposal of building debris.  The 2^nd Defendant’s architect’s drawings did not indicate any particular design for the refuse chute, which was a matter for which the 3^rd Defendant was entirely responsible.

48.  Counsel for the 3^rd Defendant submitted that it was impossible to go beyond a mere visual inspection and that Mr Li exercised reasonable care in carrying out his examination in the way he did.  I do not agree.  Given the potential danger inherent in the use of the refuse chute, I consider that some form of testing could and should have been conducted to ascertain the strength of the mounting supports and anchor bolts and to demonstrate that this was sufficient to meet the likely forces that would be inflicted on the refuse chute when in use.  In my opinion, the 3^rd Defendant was negligent in this regard as well as in respect of the design and installation of the refuse chute.

Whether there was misuse of the refuse chute by the 2^nd Defendant

49.  In the light of my finding as to the cause of the collapse of the refuse chute, I do not find that there was misuse of the refuse chute by the 2^nd Defendant or its employees.

50.  Counsel for the 3^rd Defendant submitted that the lack of a receptacle under the refuse chute was careless.  I agree that the absence of any kind of receptacle to collect building debris as it fell to the bottom of the refuse chute is an inefficient way of using the refuse chute because it would require debris to be collected into some other container at ground level in order to be taken away from the Site.  I can also see that the lack of a receptacle might even be said to be careless.  However, even if it was careless, the lack of any receptacle at the bottom of the refuse chute had no causal connection with the Plaintiff’s injuries.  In fairness to him, Counsel for the 3^rd Defendant acknowledged this but he submitted that carelessness in the use of the refuse chute in this way might indicate carelessness in the use of the refuse chute by inserting oversized debris that might cause a blockage.  I do not agree that the one conclusion follows from the other but, as I have found that blockage was not the cause of the collapse of the refuse chute in any event, it is not necessary to consider this point further.

The accident-free history of the 3^rd Defendant’s refuse chutes

51.  Counsel for the 3^rd Defendant relied on the fact that:

(i) the 3^rd Defendant’s refuse chutes have been installed and used without incident in many other previous projects, and

(ii) this particular refuse chute had been used without incident for over a month,

should be taken into account in considering the issue of negligence.  In support of this submission, he relied on the authority of Cathay Pacific Airways Limited v. Wong Sau Lai, unreported, FACV 1 of 2006, 23 May 2006 per Bokhary PJ at §§34 to 36, applying Michaels v. Browne & Eagle Ltd. [1955] 2 Lloyd’s Rep. 433 where, at p. 437, McNair J said:

“In each case it is a question of fact which has to be decided in a practical manner, whether the employer has exercised reasonable care and skill in the provision of the system of work in fact provided, and in deciding this issue the absence of accidents over a course of years, the absence of any complaint by Trade Union officials or by factory inspectors, are very relevant evidence although, of course, by no means conclusive.”

52.  It is important to recognise that these authorities deal with the relevance of an accident-free history of a particular system of work.  In the present case, the issue is whether there was negligence in the design and installation of this particular refuse chute at the Site.  In any event, Bokhary PJ held in the Cathay Pacific case (a case concerning the system whereby bottles were stored in a bar cart on an aircraft) that the factor of an accident-free history was “a rather limited one”.

53.  I am not persuaded that the fact that the 3^rd Defendant has previously designed a number of refuse chutes which have been used without incident assists the 3^rd Defendant in this case.  The evidence was that the brackets and mounting bolts used for the refuse chute at the Site were specially designed for this particular Site after Mr Li had carried out an inspection and determined where the refuse chute would be positioned.  This would necessarily involve a decision as to the location of the anchor points on the exterior wall of the building.  If this is the method of design at other construction sites (as is likely the case), I am unable to see why evidence of the accident-free use of the individually designed refuse chutes at those other sites is evidence that there was no negligence in the design of this refuse chute at the Site.

54.  Nor am I persuaded that the fact that this refuse chute was used for over a month before the accident shows that it was properly designed and installed.  The refuse chute was designed to be used throughout the entirety of the construction project until such time it was no longer needed, at which time it would be dismantled.  I do not see how the fact that it was used without incident for over a month before the accident absolves the 3^rd Defendant from liability given that the refuse chute was required to be used for considerably longer.

The relevance of the settlement with the other Defendants

55.  Counsel for the 3^rd Defendant submitted that the fact of the settlement of the action between the Plaintiff and the 1^st, 2^nd and 4^th to 7^th Defendants spoke to the fact that, if the accident were caused by the negligence of the 3^rd Defendant due to a design or installation defect, the other defendants would not have consented to judgment in the substantial sum they did.

56.  I do not consider this to be a point of any substance.  Different bases of liability were pleaded against the 1^st, 2^nd and 4^th to 7^th Defendants, each of whom stood in a quite different relationship to the Plaintiff as compared with the 3^rd Defendant.  Those bases of liability have not been adjudicated upon but it may be inferred that the 1^st, 2^nd and 4^th to 7^th Defendants took the view that liability to the Plaintiff would be established on one or more of those other bases.  The fact of an acknowledgment of culpability on the part of the 1^st, 2^nd and 4^th to 7^th Defendants is not therefore inconsistent with the co-existence of liability on the part of the 3^rd Defendant in respect of the design and installation of the refuse chute.  If the 3^rd Defendant is also liable to the Plaintiff, the 1^st, 2^nd and 4^th to 7^th Defendants might seek contribution from the 3^rd Defendant as a joint tortfeasor in respect of the judgment entered against them, at which point it would be necessary to determine the respective proportions of liability as between the Defendants.

Conclusion on the issue of negligence

57.  As indicated above, I conclude that the 3^rd Defendant was negligent in respect of the design and installation of the refuse chute, as well as in respect of the inspection of the same after its installation.  I therefore hold the 3^rd Defendant liable to the Plaintiff in negligence in respect of the injuries he sustained in the accident.

Was the 3^rd Defendant an occupier?

58.  In the light of my conclusions as to negligence, it is strictly unnecessary for me to address this alternative basis of liability on the part of the 3^rd Defendant.

59.  However, for the sake of completeness, I would add that I am not satisfied that the 3^rd Defendant was an occupier of the refuse chute at the time of the accident.  Although the 3^rd Defendant’s employees were at the Site installing the upper sections of the refuse chute on the day of the accident, the evidence of Mr Li Ping Kuen in his declaration was that he had completed that task and left the Site at around 3 pm, before the accident occurred.

60.  In any event, although he was a visitor to the Site, the Plaintiff was not a visitor to the refuse chute itself.  He was not injured whilst, for example, using the refuse chute system or whilst passing through or around it, as a worker might in relation to a bamboo scaffold.  The 3^rd Defendant was not an occupier of the Site and I did not understand it to be the Plaintiff’s case that it was.

Res ipsa loquitur

61.  Bokhary PJ held in Sanfield Building Contractors Ltd. v. Li Kai Cheong (2003) 6 HKCFAR 207 at §2, that res ipsa loquitur is not a doctrine but merely a mode of inferential reasoning.  At §3, he said:

“This mode of inferential reasoning applies only to accidents of unknown cause.  But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known.  As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause.”

62.  As I have found the cause of the collapse of the refuse chute was the force of the falling debris from the 22^nd Floor being such as to have pulled the bolts of the brackets at the 12^th Floor and below from the exterior wall of the building where they were affixed, I do not consider that there is any room for the application of the res ipsa loquitur mode of inferential reasoning in the present case.

Conclusion

63.  I hold the 3^rd Defendant liable to the Plaintiff for negligence and I therefore adjudge the 3^rd Defendant liable to the Plaintiff in the agreed amount of $13,800,000.00.  There shall be judgment accordingly. 

64.  The parties informed me that the agreed quantum included interest up to the date on which judgment was entered.  Interest as from the date of judgment will, of course, accrue on the judgment sum at the judgment rate of interest.

65.  No contribution notices have been brought to my attention, so the question of any apportionment of liability as between the Defendants does not arise at this stage.

66.  As to costs, I see no reason why the costs of the action should not be paid by the 3^rd Defendant to the Plaintiff and I make an order nisi accordingly.