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So Kai Hau v Ysk2 Engineering Co Ltd

Judgment Cited authorities 20 Cited in 1 Precedent Map Related
Vincent
Judgment Date31 May 2019
Neutral Citation[2019] HKCA 617
Year2019
Judgement NumberCACV417/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV417/2018 SO KAI HAU v. YSK2 ENGINEERING CO LTD

CACV 417/2018

[2019] HKCA 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 417 OF 2018

(ON APPEAL FROM HCPI NO 1077 OF 2006)

_______________________

BETWEEN
SO KAI HAU Plaintiff
and
YSK2 ENGINEERING COMPANY LIMITED Defendant
and
WELLGO ARCHDECOR CONSULTANCY LIMITED 1st Third Party
(discontinued)
JMK CONSULTING ENGINEERS LIMITED 2nd Third Party
CHOW MING KUEN JOSEPH 3rd Third Party
(discontinued)
DANIEL KWAN POK MAN 4th Third Party
and
WELLGO ARCHDECOR CONSULTANCY LIMITED Fourth Party

_______________________

Before: Hon Kwan VP, Barma JA and Au JA in Court
Date of Hearing: 9 May 2019
Date of Judgment: 31 May 2019

_______________________

J U D G M E N T

_______________________

Hon Kwan VP (giving the Judgment of the Court):

1. This appeal is brought by Wellgo Archdecor Consultancy Limited (“Wellgo”) against the judgment of Bharwaney J on 31 July 2018, given after a five-day trial of the fourth party proceedings brought by JMK Consulting Engineers Limited (“JMK”) against Wellgo to seek contribution in respect of JMK’s liability towards So Kai Hau, the plaintiff in the action (“the plaintiff”).

2. The plaintiff was a site foreman employed by YSK2 Engineering Company Limited (“YSK2”) and was injured on 28 June 2004 in an explosion at a demolition site, which was the Garley Building where a horrific fire disaster claimed the loss of many lives in November 1996. He was injured when a bromotrifluoromethane cylinder (“BTM Cylinder”) shot up like a rocket from under a heap of building debris from the 3rd floor (“3/F”) of the partially demolished building upon the sudden release of gas from within the cylinder, hit the external wall of the adjacent building, and ricocheted downwards back to 3/F. In the course of the explosion, the valve of the BTM Cylinder and building debris blown away by the escaping gases struck and amputated the plaintiff’s left arm at above the elbow level.

3. The judge found that JMK’s liability towards the plaintiff should be no more than 25% of the plaintiff’s claim, which amounts to $2,500,000, being 25% of the settlement of the plaintiff’s claim for damages and interest in the sum of $10,000,000. He found that Wellgo is responsible for 30% of JMK’s liability towards the plaintiff. So judgment was given in favour of JMK against Wellgo in the sum of $750,000 with interest. In terms of the overall apportionment as regards as the plaintiff’s claim, Wellgo’s share is 7.5%. A costs order nisi was made that Wellgo is to pay JMK’s costs of the fourth party proceedings on the District Court Scale.

4. This appeal of Wellgo is in respect of liability only. Wellgo seeks to challenge the holdings that it owed a duty of care to the plaintiff, that it had breached such duty, that its alleged negligence was causative of the accident to the plaintiff, and that it was fair and reasonable to hold it responsible for the accident.

Factual background

5. Bharwaney J’s judgment ran to over 90 pages. It pays to read his judgment with care. I am grateful for his detailed account and thorough analysis of the evidence. The factual background I am about to give is taken from his judgment, supplemented by some of the source materials where references are mentioned in the judgment.

(a) The BTM installation

6. Garley Building was a 16-storey commercial building of 20 years. The registered owner of 3/F, Chinese Arts & Crafts (H.K.) Ltd (“Chinese Arts & Crafts”), had let the premises to a paging company Pacific Link Communications Ltd (“Pacific Link”), which occupied the premises as a paging centre. Pacific Link installed an automatic BTM system on 3/F to protect its computer servers at the paging centre. BTM gas inside the BTM Cylinder would be released when triggered by smoke detectors. When BTM comes into contact with burning substances, it absorbs heat and vaporizes. This vapour blankets and suppresses the fire by excluding oxygen.

7. BTM is widely known to be a toxic substance and warning signs are normally shown in rooms storing BTM cylinders. Upon release of such gas, people must be evacuated immediately. Hong Kong stopped the import of BTM installations for fire suppression since January 1994. A new type of waterless fire suppression system that is non-toxic and environmentally safe is used in Hong Kong. But old BTM installations can still be found. This type of BTM cylinders was not common in 2004 and seldom seen. There are strict rules about the use and disposal of BTM as a controlled substance. Old and unused BTM bottles are collected by specialist companies who recycle the BTM using special equipment.

8. The design and installation of a BTM system must be submitted by an Authorized Person (“AP”) and approved by the Fire Services Department (“FSD”), which has strict guidelines for the use of fixed BTM installations contained in the circular letters about BTM installations issued by FSD to APs, building services consultants and fire service installation contractors.

9. BTM is stored inside BTM cylinders under high pressure. High pressure cylinders should not be allowed to remain in a building without proper maintenance. Corrosion of the valves could cause leakages of the highly pressurised contents and lead to explosion of the high pressured cylinders.

10. The BTM Cylinder, orange in colour and of 1 metre in height and 0.4 metre in diameter and weighing 86.5 kg when empty, was located in an enclosed BTM Bottle Room on 3/F. The valve fitted to the mouth of the cylinder measured 0.309 metre in length, so the total height of the cylinder with the valve was 1.309 metres. The identification plate of the cylinder showed that it used to contain a substance known as “Thorn Halon 301 Fire Fighting”[1], a highly compressed gas which weighed 97 kg in addition to the weight of the cylinder. There was no indicator on the cylinder showing how much gas was in it.

11. A notice was posted next to the door of the room and this stated “B.T.M. GAS BOTTLES ROOM”. Plans for the BTM installation had never been submitted to FSD for its approval and record. The BTM installation on 3/F was not approved by FSD and was not part of the original fire services installation in Garley Building. The installation did not conform to the requirements of BTM installations stated in FSD’s circular letters. The required signage was not placed on the entrance of the BTM room to warn people of the toxicity of BTM.

12. The BTM Cylinder would be classified as dangerous goods under the Dangerous Goods Ordinance, Cap 295, requiring a licence for its storage in any premises. No licence or approval had been granted for the storage of the BTM Cylinder at 3/F. After the Garley Building fire, the BTM Cylinder was left unattended. It had not been serviced and no maintenance work was done on it since the fire on 20 November 1996. Significant corrosion developed on the threads of the valve. The strength of the corroded threads was reduced and corrosive materials developed and filled the space between the threaded joint. The valve was disturbed which caused cracks to be formed on the corrosive materials, resulting in gas leakage from the cylinder. The leakage caused more corrosive materials to be stripped away and the rate of leakage increased as the corrosive materials stripped away. Eventually, the high pressure inside the cylinder forced and pushed the entire valve out from the cylinder and carried away the detached valve assembly and building debris in the vicinity at a very high speed, causing very substantial injury when they struck the plaintiff. He could easily have been killed by the exploding BTM Cylinder and is very lucky to be alive.

(b) The aftermath of the fire in 1996

13. The disastrous fire in Garley Building on 20 November 1996 started in the lift shaft at 2/F and spread to the upper floors through the lift shaft. The fire damaged debris were found on 13/F, 14/F and 15/F levels. After the fire, Garley Building was closed and unoccupied until the building was purchased by Worldfaith Properties Ltd (“Worldfaith”) in the latter part of 2003. It was inspected by various government departments, including FSD and the Buildings Department (“BD”).

14. FSD issued a number of Fire Hazard Abatement Notices to the Incorporated Owners of Garley Building (“IOGB”) in January 1997. The Abatement Notices concerned fire service installations, such as exit signs, portable fire extinguishers, firemen’s lift, automatic fire detection system, fire hydrant and hose reel system, manual fire alarm system, requiring the IOGB to modify, repair or reinstate them within a stated period. The BTM installation on 3/F was known to FSD after the fire. In the Fire Investigation Report of FSD dated 26 November 1996, it was stated under “Others” that “A BTM system, not F.S. mandatory requirement, was found at 3/F computer room but no FS314A was submitted to this office”. No mention however was made of the BTM installation or the BTM Cylinder in the subsequent Abatement Notices.

15. BD issued closure orders on 25 and 28 November 1996 directing that Office 1306, 14/F, 15/F and roof, portions of G/F, 1/F, 2/F and cockloft be closed. Further, BD issued a number of building orders to the registered owners of various floors and the IOGB dated 5 December 1996, requiring various works to be done within specified periods under the supervision of an AP or a Registered Structural Engineer (“RSE”), such as investigation works on the extent of dilapidation or defects and the extent and severity of fire damage; proposal for remedial works; demolition and...

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1 cases
  • Fong Chong Chuen v The Boys" And Girls" Clubs Association Of Hong Kong
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 March 2021
    ...of Tong Yu Tat Anthony, deceased & Ors, CACV 95/2015, 10 May 2016, §§26 to 29 and So Kai Hau v YSK2 Engineering Co Ltd & Ors [2019] HKCA 617, §§72 to 73 [5] With Mr Eric Tsoi [6] Judgment, §10 [7] Transcript, 2 January 2019, p 22 lines I to P ...

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