Court holds that building surveyor’s duties extended beyond period of appointment

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 [2018] 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.

Background

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.

Parties

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.

Court’s decision

The Court held as follows:

1. It was reasonably foreseeable that demolition workers carrying out the work of demolishing the building would be endangered by the BTM Cylinder if it was full or nearly full of gas and remained on the site during those works.  Also, if the cabinet door inside the BTM Bottle Room was swung open and remained so, it would obstruct the view of the BTM Cylinder, so that it was reasonably foreseeable that Daniel Kwan, JMK and YSK2 would negligently fail to appreciate the presence of the BTM Cylinder, despite their regular inspections, with the result that no steps would be taken by the Demolition Team to safely remove it prior to commencement of demolition works.
2. It was within the reasonable contemplation of David Chan that demolition contractors and their employees, including the Plaintiff, would enter Garley Building in order to carry out demolition of the entire building, and it was reasonably foreseeable that such workers would be endangered by the BTM Cylinder if it remained on site during the demolition. It was fair, just and reasonable to impose a duty of care on David Chan to take reasonable care to protect demolition workers, like the Plaintiff, working in Garley Building, from obvious danger, even though such workers would not enter the building to carry out such works until many months after David Chan had ceased to be AP for Garley Building. This duty included a duty to take reasonable steps to ascertain whether or not potentially dangerous structures or objects were dangerous. The greater the potential for harm, the more likely it was that a duty would be imposed and the danger imposed by the unattended BTM Cylinder was extremely serious. 
3. Although David Chan had genuinely believed that he had made a proper and reliable assessment that the BTM Cylinder was empty or nearly empty, he departed from the standard of care reasonably expected of him, as AP for Garley Building, by failing to take the reasonable step of engaging a specialist contractor to assess whether the potentially hazardous BTM Cylinder was hazardous. What are and are not reasonable steps to take in any particular case, to safeguard persons from harm, requires an exercise of balancing cost and benefit. The benefit of a particular precaution turns on the likelihood and severity of harm: the greater the likelihood of harm, the greater the severity of harm, the greater the benefit of precaution. In this case, the degree of likelihood of harm from the BTM Cylinder, which had been unattended for five years, was high and the severity of harm from an exploding BTM Cylinder, which could cause death or very serious bodily injury, was very great. On the other hand, the cost of the precaution, was minimal, if not nil, as the BTM Cylinder, even if it had been empty, had to be removed eventually from Garley Building, before demolition works were commenced by a specialist contractor, at a cost of HK$5,000 to HK$6000. The degree of likelihood of harm from the BTM Cylinder that was full or nearly full and severity of harm from an exploding BTM Cylinder, far outweighed the cost of engaging a specialist contractor. 
4. The same conclusion may not have been reached if the claim being brought was in respect of property damage rather than personal injuries. Here, the Plaintiff had suffered a very substantial injury and could easily have been killed. The Court felt compelled to reach the conclusion that it was fair, just and reasonable to impose a duty of care on David Chan by the recognition that “the right to bodily integrity is the first and most important of the interests protected by the law of tort [and includes] the right not to be subjected to bodily harm or injury”.
5. The subsequent tortious conduct of Daniel Kwan, JMK and YSK2 did not break the chain of causation. Whilst they should have discovered the presence of the BTM Cylinder and removed it prior to commencing demolition works, it was reasonably foreseeable that they would negligently fail to spot it, resulting in the BTM Cylinder continuing to be a danger to demolition workers like the Plaintiff. One must not lose sight of the fact that the BTM Cylinder was under David Chan’s “watch” for a considerably longer period than the time when Daniel Kwan, JMK and YSK2 had responsibilities in respect of Garley Building. This was a case of multiple torts and multiple tortfeasors, whose responsibility for the ultimate damage that each of them caused, ought to be apportioned between them.  Although the removal of the BTM Cylinder by YSK2’s employees probably disturbed the valve assembly and contributed to the subsequent explosion, that act of removal, did not break the chain of causation, but rather increased the causative potency of YSK2’s negligence, which would be a relevant consideration in the apportionment of liability.

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%.

Comments

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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张国杰

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