Development Control of Development Control of Development Control of Development Control of Buildings in Hong KongBuildings in Hong KongBuildings in Hong KongBuildings in Hong Kong

ecyY 2012 - 2013

BRE 336PolyTechnic University of

Hong Kong

Ch. Ch. Ch. Ch. 5555 Construction Safety and Construction Safety and Construction Safety and Construction Safety and Professional NegligenceProfessional NegligenceProfessional NegligenceProfessional Negligence

Outline of Chapter Outline of Chapter Outline of Chapter Outline of Chapter 5555– Tort

• Professional Negligence• Care for the Public at Large• Construction Safety

– 3rd Party Insurance – Workers Insurance

5555....1111 Professional Negligence Professional Negligence Professional Negligence Professional Negligence• Law of Tort - Two Rules:

– a a a a duty of careduty of careduty of careduty of care is owed by the defendant to the is owed by the defendant to the is owed by the defendant to the is owed by the defendant to the claimantclaimantclaimantclaimant, and , and , and , and

– that the defendant is in that the defendant is in that the defendant is in that the defendant is in breach of that dutybreach of that dutybreach of that dutybreach of that duty.... • The standard test of breach is whether the defendant has

matched the abilities of a reasonable person. • But, by virtue of the services they offer and supply,

professional people hold themselves out as having more than average abilities.

• In Hedley Byrne & Co Ltd v Heller & Partners Ltd the rule was established that irrespective of contract, if someone who possesses a special skill undertakes to apply that skill for the assistance of another person who relies upon that skill, a duty of care will arise.

PN Case 1: BEA claddingPN Case 1: BEA claddingPN Case 1: BEA claddingPN Case 1: BEA cladding• BEA case (2000) FACV 21/1998 [2000]

1 HKC 1 (see also CACV 185 and 189/1997 at http://legalref.judiciary.gov.hk/lrs/common/ju/ju_body.jsp?DIS=9972&AH=&QS=&FN=&currpage=),

• The Bank employed the P&T as the architect and SE and the 1st defendant as cladding sub-contractor to erect external marble cladding with reasonable skill and carereasonable skill and carereasonable skill and carereasonable skill and care onto its new headquarters building in Central.

BEA case (cont'd)BEA case (cont'd)BEA case (cont'd)BEA case (cont'd)• After completion in 1982, defects were found (I

remember that there was a falling marble incident) in 1993,– A number of panels showed signs of

compression cracking. – The problem might have been due to

inadequate provision of support at each floor level and a general lack of movement joints.

• In CACV 185/1997, the architects (P&T) were ordered to "pay BEA HK$38,502,951.85 being the cost of rectification work to the cladding

• Details, see http://hk.myblog.yahoo.com/ecyyiu/article?mid=4666

PN case 2: HarbourPN case 2: HarbourPN case 2: HarbourPN case 2: Harbour CityCityCityCity• Wharf.. v. Eric Cumine.. (1987) HCA 13431H/1983 and

CL 48/1985, • This case was appealed to the Court of Appeal in (1989)

CACV000052/1988 (http://legalref.judiciary.gov.hk/doc/judg/word/vetted/other/en/1988/CACV000052_1988.doc) and then to the Privy Council and is reported in [1991] 52 BLR 8, [1991] 2 HKLR 154

• "This was a claim against architects for professional negligence. The clients alleged that the architects had failed to ensure maximization of the development failed to ensure maximization of the development failed to ensure maximization of the development failed to ensure maximization of the development valuevaluevaluevalue of the clients' site.

炒盡!!!!

Harbour City case (cont'd)Harbour City case (cont'd)Harbour City case (cont'd)Harbour City case (cont'd)• The loss of exemption is 16,254 sq. m. of

gross floor area. I would have assessed the damages as I was asked to do, 16,254 sq. m. at an average of $6,500 per sq.m.: $105,651,100."

• HELD : On the facts, the architects had exercised a reasonable degree of skill exercised a reasonable degree of skill exercised a reasonable degree of skill exercised a reasonable degree of skill and careand careand careand care in the discharge of their duties, and the claim therefore failed.“

• Details, see http://hk.myblog.yahoo.com/ecyyiu/article?mid=2951, http://hk.myblog.yahoo.com/ecyyiu/article?mid=2960

5555....2222 Care for the Public at Large Care for the Public at Large Care for the Public at Large Care for the Public at Large

• Public nuisance, similar to negligence, is an evolving area in tort.

• "A state of affairs which constitutes a public nuisance is one which endangers the lives, safety, health, property or comfort of the public; or obstructs the public in the exercise or enjoyment of any right that is common to members of the public. This is a proposition derived from a number of definitions approved by Lord Bingham of Cornhill in R v R v R v R v Rimmington" Rimmington" Rimmington" Rimmington" [2006] 1 AC 459 at 469-470, §10, i.e.“the nuisance hazard”.

Care for the Public at Large Care for the Public at Large Care for the Public at Large Care for the Public at Large (cont'd)(cont'd)(cont'd)(cont'd)

• "Public nuisance is actionable as a tort by an individual who has been caused particular damage over and above the damage suffered by the public at large." Overseas Tankship (UK) Overseas Tankship (UK) Overseas Tankship (UK) Overseas Tankship (UK) Ltd v Miller SS Co Pty, The Wagon Mound Ltd v Miller SS Co Pty, The Wagon Mound Ltd v Miller SS Co Pty, The Wagon Mound Ltd v Miller SS Co Pty, The Wagon Mound (No 2)(No 2)(No 2)(No 2) [1967] 1 AC 617 at 635-636; R v Rimmington, R v Goldstein [2006] 1 AC 459 at 468, §7.

• Three Principles:– 1. Both acts and omissions are liable1. Both acts and omissions are liable1. Both acts and omissions are liable1. Both acts and omissions are liable– 2. Knew or ought to have know the 2. Knew or ought to have know the 2. Knew or ought to have know the 2. Knew or ought to have know the

potential nuisancepotential nuisancepotential nuisancepotential nuisance– 3. Immediate and practical control over the 3. Immediate and practical control over the 3. Immediate and practical control over the 3. Immediate and practical control over the

cause of the nuisancecause of the nuisancecause of the nuisancecause of the nuisance

Public Nuisance Case: Kwok Wing HousePublic Nuisance Case: Kwok Wing HousePublic Nuisance Case: Kwok Wing HousePublic Nuisance Case: Kwok Wing House

• Kwok Wing HouseKwok Wing HouseKwok Wing HouseKwok Wing House (FACV 4/2007), 26 Oct 2007. • The court decision is available at

http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=58906&currpage=T,

• Landlord (IO) is held responsible for tenant’s negligence!• And the presumption of mens reamens reamens reamens rea is held to be displaced

in building works cases, see Ch. 7 UBW and Gammon Gammon Gammon Gammon (Hong(Hong(Hong(Hong Kong) Ltd & Ors v AGKong) Ltd & Ors v AGKong) Ltd & Ors v AGKong) Ltd & Ors v AG [1985] 2 HKC 661, [1985] 1 AC 1 at 14

• Details, see http://hk.myblog.yahoo.com/ecyyiu/article?mid=1378

無合約關係，無直接傷人、無犯罪意圖，仍然有罪!!!!

5.3 Construction Safety5.3 Construction Safety5.3 Construction Safety5.3 Construction Safety• Buildings Ordinance:

– Buildings Department (1996) Code of Practice Site Safety Supervision Plans (SSSP)

– Buildings Department (1998/2004) Code of Practice Demolition

• Construction Site (Safety) Ordinance:– Labour Department's publications on

construction Safety– http://www.labour.gov.hk/eng/public/content2_

8.htm

Construction Safety (Cont'd)Construction Safety (Cont'd)Construction Safety (Cont'd)Construction Safety (Cont'd)• REDA & HKCA (2005)

– Construction Site Safety Handbook; Contractual Provisions for the Pay for Safety Scheme;

– Construction Site Safety Manual; and – A Practical Guide to Construction Site Safety

Management.• http://www.safetypartnering.com/smd/pdf/handb

ook_e.pdf

History of SSSPHistory of SSSPHistory of SSSPHistory of SSSP• Serious construction accidents (such as the

demolition accident in Nathan Road Wing On) aroused the concern on Site Safety Supervision and Demolition Practice

• SSSP was first introduced under the Buildings (Amendment) Ordinance in 1996

• Section 16(3)(bc) of the Buildings Ordinance was added, the BA may refuse to give his consent to the commencement of demolition works where an Authorized Person has not lodged a supervision plan for the works.

CoP for DemolitionCoP for DemolitionCoP for DemolitionCoP for Demolition• The Draft CoP for Demolition of Buildings was

first issued in Feb. 1998– To provide guidance on safe and good practices for

demolition works– For compliance with the requirements of the relevant

provisions of the Building (Administration) Regulations and Building (Demolition Works) Regulations

• The CoP for Demolition of Buildings was then issued in 2004

Other relevant provisions under Other relevant provisions under Other relevant provisions under Other relevant provisions under BOBOBOBO

• B.O. s.4(3): any AP … shall supervise the carrying out of the building works … in accordance with the SUPERVISION PLAN.SUPERVISION PLAN.SUPERVISION PLAN.SUPERVISION PLAN...

• B(A)R s.8(3): DEMOLITION PLAN DEMOLITION PLAN DEMOLITION PLAN DEMOLITION PLAN shows (a) construction and condition; (b) site condition; (c) equipment and procedure; (d) support; (e) precautionary measures; and (f) support to affected areas.

• B(A)R s.8(4): STABILITY REPORTSSTABILITY REPORTSSTABILITY REPORTSSTABILITY REPORTS must be accompanied.• B(Dem Works) Reg.• PNAP 71: demolition works requires (a) application for approval; (b)

application for consent; (c) supervision plan; (d) technical competent person; and (e) application for completion of works.

• CoP (draft) for demolition of buildings

5555....3.23.23.23.2 Existing Building - Existing Building - Existing Building - Existing Building - Third Third Third Third Part InsurancePart InsurancePart InsurancePart Insurance

• On 7 November 2007, the Legislative Council passed a resolution to amend the Building Management (Third Party Risks Insurance) Regulation.

• It is expected that the Regulation will come into effect in 1 January 2011.

• After the Regulation comes into operation, it will be mandatory for all owners' corporations to procure third party risks third party risks third party risks third party risks insuranceinsuranceinsuranceinsurance for the common parts of their buildings.

Third Party Insurance (cont'd)Third Party Insurance (cont'd)Third Party Insurance (cont'd)Third Party Insurance (cont'd)• The new section 28 of the Building Management

Ordinance (Chapter 344) as amended requires all owners' corporations (OCs) to procure and keep in force in relation to the common areas/parts of the building a policy of third party risks insurance.

• The Regulation sets out the detailed requirements for OCs to procure third party risks insurance.

• The Home Affairs Department of the Hong Kong SAR Government provides further details of the building insurance requirements at http://www.buildingmgt.gov.hk/en/financial_management_procurement_and_insurance/5_3.htm.

Insurance Covers APPROVED Insurance Covers APPROVED Insurance Covers APPROVED Insurance Covers APPROVED A&A Works on Common AreasA&A Works on Common AreasA&A Works on Common AreasA&A Works on Common Areas

• http://www.hklii.hk/hk/legis/en/reg/344B/s3.html• s1 a policy is required to insure the assured corporation

in respect of any liability that may be incurred by the assured corporation in respect of the death of, or the bodily injury to, any person.

• But it does not cover, among others, the following:– s2(c) any liability arising out of a breach of any duty imposed by

law in relation to— – (i) any building within the meaning of the Buildings Ordinance

( Cap 123) erected in contravention of that Ordinance; or – (ii) any building works, or street works, carried out in

contravention of the Buildings Ordinance ( Cap 123);