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Chung Wah Steel Works Co Ltd v Chan Kwong Kwan

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date12 September 2013
Subject MatterCivil Action
Judgement NumberDCCJ4763/2011
CourtDistrict Court (Hong Kong)
DCCJ4763B/2011 CHUNG WAH STEEL WORKS CO LTD v. CHAN KWONG KWAN

DCCJ4763/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4763 OF 2011

____________

BETWEEN

CHUNG WAH STEEL WORKS COMPANY LIMITED Plaintiff
and
CHAN KWONG KWAN Defendant

____________
Before: H H Judge Wilson Chan in Court
Dates of Hearing: 21-23 May 2013, 29 July 2013, 7 & 22 August 2013
Date of Judgment: 12 September 2013

___________

JUDGMENT

___________

INTRODUCTION

1. The plaintiff claims against the defendant for damages caused by a fire which occurred in the evening on 18 September 2007 (the “Fire”) in a building known as the Tsing Yi Industrial Building Phase II (the "Building").

THE PLAINTIFF’S CLAIM

2. As the name implies, the Building is an industrial building containing various workshops, factories and warehouses. At all material times, a Mr Wong Kin Keung ("Mr Wong ") was and is the owner of Workshop E15 ("Unit E15”) on the second floor of the Building. Mr Wong is and was at all material times a director and shareholder of the plaintiff. At the material time, Mr Wong allowed the plaintiff to occupy and use Unit E15, and the plaintiff alleges that it was a licensee with exclusive possession of Unit E15. Unit E15 was used by the plaintiff as office and factory for its steel work business.

3. At all material times, the defendant was and is the owner of Workshop E16 ("Unit E16") on the second floor of the Building. At the material time, the defendant used Unit E16 as a warehouse for the storage of second-hand furniture, electrical appliances and various other miscellaneous items.

4. Both Unit E15 and Unit E16 consisted of a flat roof. Unit E15 and Unit E16 were adjacent to each other.

5. In the evening on 18 September 2007, the Fire broke out on the second floor of the Building. The Fire caused loss and damage to the flat roofs of both Unit E15 and Unit E16.

6. The Fire Services Department investigated into the cause of the Fire but was unable to find out the cause of the same. The Fire Services Department concluded in its Fire Incident Report dated 18 October 2007 that the cause of the Fire was "unknown".

7. It is the plaintiff's case that the Fire broke out in Unit E16 and escaped and spread onto Unit E15 thus resulting in loss and damage suffered by the plaintiff.

8. It is the plaintiff's contention that the defendant has kept a dangerous thing, i.e. fire, in Unit E16 which was a non-natural use of the premises.

9. Further or in the alternative, the plaintiff alleges that the Fire and its escape were caused by negligence on the part of the defendant.

10. Further or in the further alternative, the plaintiff alleges that the escape of the Fire was caused by nuisance created by the defendant in Unit E16.

11. As a result of the Fire, Unit E15 itself as well as the stock, tools, equipment and fittings therein were damaged. The plaintiff claims against the defendant for damages in the total sum of HK$382,018.

EVIDENCE OF THE PLAINTIFF’S WITNESSES

Yeung Ping Kwai (“Mr Yeung”)

12. Mr Yeung was the Divisional Officer of the Management Group of the Fire Services Department.

13. Pursuant to a subpoena, he attended the trial and produced a bundle of documents in relation to the fire incident in question, including the Fire Incident Report mentioned above and statements taken from the caretaker of the Building and the defendant.

Chu Yiu Hong (“Mr Chu”)

14. On the day of the fire, Mr Chu was a Senior Station Officer of the Fire Services Department and was amongst the first batch of fire-fighters arriving at the scene. He was also the maker of the said Fire Incident Report. He has since retired. He attended the trial under a subpoena.

15. According to Mr Chu, when he arrived, his fire engine stopped to the east of the Building. He observed that the flat roof of Unit E16 was on fire which reached a height of 2 to 3 storeys. At that point of time, he could not see whether the fire had spread to Unit E15.

16. After the Fire was put out, he carried out investigation of the units of the Building. Having regard to the extent of damage caused by the Fire to each of the units, Mr Chu concluded that the origin of the Fire was the flat roof of Unit E16.

17. Mr Chu eliminated all other units as the origin of the Fire. He also added that the goods stored in Unit E12 were classified as dangerous goods but they were not inflammable substances.

18. The cause of the Fire was stated in the Fire Incident Report as “Unknown”. This finding was based on his in situ investigation after the Fire was put out and the statements given by the caretaker of the Building and the defendant. Basically, he concluded that no possible cause could be found as he could not find eye-witnesses or solid evidence to identify the fire source.

19. Mr Chu said that there were 3 essential elements to cause fire breaking out, i.e. heat, oxygen and material. In this case, the material was the foam, PVC and rubber contained in the items stored on the flat roof of Unit E16. The materials stored thereon fuelled the Fire and generated tremendous heat which radiated and penetrated into Unit E15 through the partition board and the exhaust fan on the partition board.

20. Mr Chu added that wind blowing at the time of the Fire was not strong. The main cause of the Fire spreading onto Unit E15 was the tremendous heat generated by the burning of the goods stored on the flat roof of Unit E16.

21. Mr Chu was specifically asked in-chief as to the fire preventive measures that could have been put in place at the outdoor portion of Unit E16. Mr Chu declined to give any suggestion, saying that he had no expertise on such matters.

Mr Wong

22. Mr Wong gave important evidence on the status of the plaintiff in occupying Unit E15. In this regard, Ms Emma Wong, counsel for the plaintiff at trial, agreed that the following is a correct summary of his evidence under cross-examination: --

(1) Mr Wong was the owner of Unit E15, he was in charge of Unit E15;

(2) Mr Wong verbally permitted the plaintiff to use Unit E15 in about 2003;

(3) There was no fixed term for the plaintiff's use of Unit E15, no fee was able by the plaintiff to Mr Wong for its occupation of Unit E15;

(4) The plaintiff's occupation of Unit E15 could be terminated by Mr Wong any time;

(5) If Mr Wong wished to enter Unit E15, he did not need to seek approval from the board of directors of the plaintiff;

(6) If Chung Wah Engineering (Hong Kong) Ltd, a related company, had business affairs, Mr Wong could allow it to occupy Unit E15 jointly with the plaintiff;

(7) The plaintiff had no right to evict Mr Wong from Unit E15; and

(8) The plaintiff could not "replace" Mr Wong as the owner of Unit E 15.

23. Regarding the use by the defendant of Unit E16, Mr Wong said that the defendant has employed a caretaker at night and he has seen the caretaker doing cooking in Unit E16. He also saw the caretaker smoking.

NEGLIGENCE

24. The plaintiff's case on negligence is pleaded under paragraph 5 of the Statement of Claim. In paragraph 5(d), the plaintiff pleaded reliance on the doctrine of res ipsa loquitur.

25. In this regard, Mr Stanley Siu, counsel for the defendant, referred me to the Court of Appeal's decision in Wayfoong Credit Ltd v Tsui Siu-man t/a Wilson Plastics Manufactory [1984] HKLR 259, where the Court of Appeal examined the legal principles of negligence in relation to fire incident cases.

26. In the Wayfoong case, the defendant manufactured plastic dolls on the eighth floor of an industrial building in Kwun Tong. The 5th plaintiff operated a printing press on the ninth floor of that building. One evening when all the workers had left, fire broke out in the defendant's factory. The 5th plaintiff brought an action in respect of damage done to his premises and machinery by heat and smoke from the fire and the water used to put it out.

27. It was not known how the fire started but the extent of...

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