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Few would dispute that a contracted building surveyor has a duty to report obvious damage, and to take reasonable care to protect persons entering the building from obvious danger during the period of his appointment. In So Kai Hau v YSK2 Engineering Company Limited & Ors  HKCFI 1803, the court had to consider whether this duty of a building surveyor should extend beyond his appointment and cover workers of subsequent contractors.
After the Garley Building Fire in 1996, a bromotrifluoromethane cylinder (BTM Cylinder), which was most likely installed by a previous tenant, was left unattended. David Chan of Wellgo Archdecor Consultancy Limited (Wellgo), was appointed as the Authorised Person (AP) to deal with certain building orders. He assessed the BTM Cylinder to be empty or nearly empty, without assistance from specialist contractors, and left it in its original position. After Wellgo’s engagement ended, workers of YSK2 Engineering Company Limited (YSK2) moved the BTM Cylinder from its original position, and allowed demolition debris to be stacked on top of it. The BTM Cylinder should have been removed before commencement of demolition works by a specialist contractor, but was not.
On 28 June 2004, the BTM Cylinder shot up from under a heap of building debris of the partially demolished Garley Building, following the sudden release of pressurised gas from within the cylinder. A site foreman employed by YSK2 (the Plaintiff), sustained personal injuries as a result of the explosion and his left arm was amputated above the elbow.
The Incorporated Owners of Garley Building had engaged Wellgo to monitor, inspect and report to the Buildings Department for the purpose of seeking extensions of time to execute repair works under various Building Department Orders, pending a new owner stepping in to demolish Garley Building. As mentioned above, David Chan of Wellco was appointed as AP to deal with only certain Building Orders. On 11 September 2003, the Incorporated Owners of Garley Building sold the land on which Garley Building was built to Worldfaith. Worldfaith appointed (i) Daniel Kwan as AP for demolition, (ii) JMK consulting Engineers Limited (JMK) as the Structural and Geotechnical Engineer Consultant for demolition, and (iii) YSK2 as contractor to carry out the demolition works. These three parties are referred to collectively as “the Demolition Team” or “Third Parties” below.
Issues in dispute
The Court had to decide whether Wellgo was liable to make a contribution to the compensation payable to the Plaintiff, which question rested on whether David Chan owed a duty of care to the Plaintiff and was in breach of it.
The Court held as follows:
The Court decided that as between YSK2, JMK and Daniel Kwan, YSK2 should bear the greatest liability because it was the Plaintiff’s employer and the casual potency of its negligence was greater. It also decided that Wellgo should not bear a greater responsibility than Daniel Kwan in failing to safely remove the BTM Cylinder before demolition works because Daniel Kwan was in overall charge of the demolition works and must therefore bear greater responsibility than JMK, the Registered Structural Engineer for the demolition, responsible for the structural elements of Garley Building.
The Court apportioned liability for the HK$10million damages as follows: YSK2 and Daniel Kwan were liable for 75%, JMK for 17.5%, and Wellgo for 7.5%.
In determining the duty to protect persons who were likely to enter premises to carry out works after the defendant has ceased to be engaged, from obvious danger, foreseeability of harm alone is not enough. A relationship of sufficient proximity between the plaintiff and defendant is also required. The relationship of proximity rests upon the purpose for which the professional was engaged and whether the professional had become involved in an activity which gave him a measure of control over, and responsibility for, the safety of the class of people which includes the plaintiff.
Professionals, such as architects, surveyors and engineers may be found to owe a duty of care to subsequent contractors, even after the professional’s contract has ended, if they knew of the type of works to be carried out by the subsequent contractors. However, as David Chan was appointed as AP to deal with certain building orders rather than the demolition, one would have thought his “neighbours” should only include persons accessing Garley Building to deal with the Building Orders, rather than other persons such as the Demolition Team and demolition workers whose access was unrelated to David Chan’s scope and period of engagement. Indeed, the judge found that David Chan did not owe any duty to warn the subsequent Demolition Team, so it is unclear why then he would owe any duty to the Plaintiff, who seems to be even more remote from the Demolition Team.
Further, it is not without controversy that an abandoned BTM Cylinder kept in the original position could properly have been recognised as an “obvious risk”. Unless this finding was valid, no duty of care could have been attributed to Wellgo.
It is also rather puzzling that subsequent tortious omissions of specialist demolition contractors and professionals, skilled in demolition works to discover and remove harzardous materials, which they undertook to do under the relevant draft Code of Practice for Demolition Works, were considered to be multiple torts, such that the Third Parties would have to contribute to the claim, rather than considered to be the legal causes of the injury or categorized as independent acts breaking the chain of causation, thus freeing the professionals who first came to the scene from liability. This is especially so in “pure omission” cases where, the professionals under the previous contract (such as David Chan) did not do any positive acts creating the risk in the first instance. It is difficult to follow the Court’s reasoning that David Chan, who had no experience of acting as AP of demolition projects and did not hold himself out as such, should be taken to have reasonably foreseen that the subsequent professional Demolition Team employed by the subsequent owner would negligently fail to discharge their legal and contractual duties.
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