Development Control of Buildings in Hong Kong

Transcription

1 BRE 336 PolyTechnic University of Hong Kong Development Control of Buildings in Hong Kong Ch. 5 Construction Safety and Professional Negligence ecyy

2 Outline of Chapter 5 Tort Professional Negligence Care for the Public at Large Construction Safety 3rd Party Insurance Workers Insurance

3 5.1 Professional Negligence Law of Tort - Two Rules: a duty of care is owed by the defendant to the claimant,, and that the defendant is in breach 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.

4 PN Case 1: BEA cladding BEA case (2000) FACV 21/1998 [2000] 1 HKC 1 (see also CACV 185 and 189/1997 at on/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 care onto its new headquarters building in Central.

5 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, being the cost of rectification work to the cladding Details, see

6 PN case 2: Harbour City 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 ( r/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 value of the clients' site. 炒盡!

7 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 and care in the discharge of their duties, and the claim therefore failed. Details, see

8 5.2 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 Rimmington" [2006] 1 AC 459 at , 10, i.e. the nuisance hazard.

9 Care for the Public at Large (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) Ltd v Miller SS Co Pty, The Wagon Mound (No 2) [1967] 1 AC 617 at ; R v Rimmington, R v Goldstein [2006] 1 AC 459 at 468, 7. Three Principles: 1. Both acts and omissions are liable 2. Knew or ought to have know the potential nuisance 3. Immediate and practical control over the cause of the nuisance

10 Public Nuisance Case: Kwok Wing House Kwok Wing House (FACV 4/2007), 26 Oct The court decision is available at DIS=58906&currpage=T, Landlord (IO) is held responsible for tenant s negligence! And the presumption of mens rea is held to be displaced in building works cases, see Ch. 7 UBW and Gammon (Hong Kong) Ltd & Ors v AG [1985] 2 HKC 661, [1985] 1 AC 1 at 14 Details, see 無合約關係, 無直接傷人 無犯罪意圖, 仍然有罪!

11 5.3 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 8.htm

12 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. ook_e.pdf

13 History 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.

14 CoP for Demolition The Draft CoP for Demolition of Buildings was first issued in Feb 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

15 Other relevant provisions under BO B.O. s.4(3): any AP shall supervise the carrying out of the building works in accordance with the SUPERVISION PLAN... B(A)R s.8(3): 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 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

16 5.3.2 Existing Building - Third Part 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 After the Regulation comes into operation, it will be mandatory for all owners' corporations to procure third party risks insurance for the common parts of their buildings.

17 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 agement_procurement_and_insurance/5_3.htm.

18 Insurance Covers APPROVED A&A Works on Common Areas 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);