CHAU YUEN HEUNG v. JEKCO ELEVATORS LTD

HCPI 956/2015

[2023] HKCFI 2750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 956 OF 2015

________________________

________________________

________________

J U D G M E N T

________________

1.  This is an action commenced by the plaintiff for injuries sustained by her as a passenger in a lift which malfunctioned. The defendant was at the time the contractor responsible for the maintenance of the lift. The defendant denied liability and joined the management company and the owners of the building where the lift was, holding them responsible as the third parties. The main action between the plaintiff and the defendant has since been settled. This is the trial of the defendant’s claim against the third parties for contribution or indemnity towards its liability for the plaintiff’s damage.

THE SCENE AND THE PARTIES

2.  Fook Yip Building, 53-57 Kwai Fung Crescent, Kwai Chung, New Territories is a 29-storey commercial/industrial building (“the Building”). At all material times, the 1^st third party (“Hon Hing”) was the manager of the Building, and the 2^nd third party (“the Owners”) owned, and still own, the common parts of the Building of which the lifts formed parts (and where appropriate, the two will be referred to below collectively as “the Third Parties”).

3.  At the material times, there were 8 lifts serving the Building. Of them, lifts nos 4 and 8 were passenger lifts. The former served all the floors whereas the latter served the first 15 floors of the Building. Both were of the same brand and model. The then Hong Kong agent of the brand was Chevalier (HK) Ltd (“Chevalier”). Chevalier installed the lifts in 1986 and the lifts commenced operation in about 1987. Chevalier also became the first lift contractor of the Building.

4.  In July 1997, Holake Hong Kong Lifts Ltd (“Holake”) took over from Chevalier and became the lift contractor of the Building until the end of December 2007.

5.  In January 2008, the defendant (“Jekco”) was contracted by Hon Hing on behalf of the Owners to be the succeeding lift contractor of the Building for a 2-year term (“the 2008 Contract”). Upon the expiry of the term, Jekco succeeded in its tender for another 2-year term from April 2010 (“the 2010 Contract”). In April 2012, Jekco succeeded in its tender for a lift renovation contract in respect of 4 of the cargo lifts and another 3-year term of maintenance contract in respect of all the lifts (“the 2012 Contract”). However, Jekco’s last term was terminated early at the end of November 2013 after the accident in question.

THE LIFT

6.  Behind the lift doors on each floor of the Building was the lift shaft (or well) in which the lift car (or cage) travelled between the floors. Opposite the lift car inside the lift well was the balancing counterweight in the form of a stack of metal plates. The counterweight was designed as the deadweight of the lift car plus half of the maximum load of the lift car, and thus heavier than the lift car when the passenger load was less than half of its maximum capacity. In operation, the lift car and the counterweight ascended and descended in opposite directions.

7.  When a passenger pressed a button inside the lift car for a particular floor, the command was sent to the traction machine control panel in the machine room at the top of the lift well. A corresponding signal from the control panel would power the motor to drive the gear box. The gear box would turn the traction sheave which drove the suspension cable rope, causing the lift car to ascend or descend to the designated floor.

THE ACCIDENT

8.  On 9 November 2012, the plaintiff was taking lift no 4 (“the Lift”) of the Building from the 18^th Floor to the Ground Floor. When the lift car descended to around the 10^th Floor, it suddenly shot up until it hit the structural ceiling of the lift shaft at the top floor. Upon the impact, the interior metal ceiling of the lift car fell off, injuring the plaintiff. She was trapped inside the lift car until rescued by the firemen.

ACCIDENT INVESTIGATION

9.  On the day following the accident, a team from the Electrical and Mechanical Services Department (“EMSD”) headed by investigating engineer, Mr Ng Tak Hei (“Ng”), attended the scene.

10.  Upon visual check, the EMSD investigation team and the representative of Jekco had the following findings:

(1)  The counterweight buffer was hit by the counterweight, and all suspension ropes were slackened due to the overshot of the Lift.

(2)  The shaft of the traction machine was broken near the position of the traction sheave as viewed from the gearbox opening.

(3)  The traction sheave was found in an inclined position.

(4)  2 bolts detached from the traction machine were found in the traction machine room.

11.  The investigation team collected relevant information, including the maintenance logbook in respect of the Lift. There is no dispute that the maintenance log was not complete for all the years since 1987. However, the information revealed that due to recurrent oil leakage problem, the traction shaft was disassembled and sent to the machine workshop in October 2011. The traction shaft was found to have a sleeve inserted to the solid core of the shaft. The oil leakage was located at the gap between the shaft and the sleeve, which was believed to have come about after long period of operation of the Lift. The leakage was then sealed by applying the shielded arc welding method. The Lift resumed operation in late October 2011. However, the oil leakage recurred in mid-December 2011. The traction shaft was again disassembled and sent to the workshop, this time for sleeve replacement. The oil leakage was eventually eradicated. The accident happened about 11 months later.

12.  After the accident, the broken traction shaft and its associated gearbox were sent to the EMSD Headquarters for detailed examination. For the absence of record of the original weight of the lift equipment, the EMSD also requested Jekco to arrange the weighing of the lift equipment by a surveyor. The total weight of the lift car, the counterweight, hoisting ropes and compensation chain of the Lift was found to be 4,325kg (±10kg). Net of the hoisting ropes and compensation chain, Jekco calculated the weight of the lift car and the counterweight to be about 1,648kg and 2,170kg respectively.

13.  In the further examination in December 2012, the independent expert observed circular machining marks and crack propagation on the solid core of the traction shaft, and the fracture surface exhibited typical fatigue morphology. The broken shaft was tested by ultrasonic technique for its cross section profile. It showed that the core of the shaft was originally cast and machined to form one solid piece. However, at some stage, the surface portion of the shaft was trimmed from a diameter of 100mm to 90mm to create a step with its face retracted from the bearing location apparently to make room for the insertion of the sleeve mentioned above. The sleeve was then inserted and its two ends welded to the original shaft so as to serve as the seating for the bearing.

14.  Subsequent to a draft investigation report in February 2013 and consideration of further evidence, Ng released his final investigation report dated 21 May 2013 (“FIR”), setting out the following possible scenario of the accident:

(1)  On the day of the accident, the traction shaft broke and caused the lift car of the Lift to ascend at over-speed until it hit the structural ceiling of the lift shaft.

(2)  The traction shaft had been trimmed from its diameter of 100mm to 90mm to create room for the insertion of the sleeve. Fatigue crack originating from the outer edge of the traction shaft was caused by stress concentration from damage induced when the original shaft was trimmed.

(3)  It appeared that the sleeve was added in an attempt to extend the length of the 105mm diameter section to seal up the gap between the bearing and the traction shaft, and thereby to prevent oil leakage.

(4)  The failure of the traction shaft was caused by improper modification works that damaged the integrity of the shaft, and stress concentration at the weak point increased with the development of propagation of fatigue crack after certain period of operation.

(5)  Based on the statements of the personnel from Hon Hing and the successive lift maintenance contractors, ie Chevalier, Holake and Jekco, the EMSD found no evidence that would prove which contractor trimmed the traction shaft since the commencement of operation of the Lift. Holake confirmed that no record, document and detail of maintenance personnel could be submitted to the EMSD. EMSD could only provide the cause of the incident, but not evidence of who trimmed the traction shaft since the commencement of operation the Lift over 26 years ago.

15.  The FIR continued to explain the further action taken and the recommendations made:

(1)  Jekco was requested to submit summary report on the condition of the existing traction machine of the same model (ie lift no 8) with checks on, amongst other things, record of abnormal noise and occurrence of oil leakage.

(2)  The Owners should disassemble the traction machine of the same model (ie lift no 8) for further investigation as the abovementioned alteration on the traction shaft would have a great possibility of causing occurrence similar to the accident.

(3)  Apart from the product manufacturer, no registered contractor would be allowed to undertake such alteration or modification of the proprietary products such as the traction shaft, and such alteration would adversely the safe operation of the lift.

(4)  The Owners are recommended to install ascending over-speed protection device to the lifts.

(5)  The traction machine of the Lift must be replaced.

THE PROCEDURAL HISTORY

16.  Upon the early termination of the 2012 Contract after the accident, Jekco first commenced action in the District Court against Hon Hing in 2014 for payment in lieu of notice of termination as well as outstanding service fees in respect of the 2 passenger lifts of the Building (DCCJ 744/2014). Hon Hing denied liability and put forward a counterclaim. The action was eventually settled in August 2014.

17.  In September 2015, the plaintiff commenced the present action against Jekco for her injury sustained in the accident. Whilst accepting the occurrence of the accident as a matter of fact, Jekco disputed liability.

18.  Jekco then filed a third party notice against the Third Parties, which also accept the occurrence of the accident as a matter of fact but dispute liability to Jekco.

19.  In February 2022, the plaintiff’s claim was settled upon her acceptance of sanctioned payment in the sum of HK$1,500,000 (on top of the employees’ compensation received in the sum of HK$586,328.07).

20.  What remains is the action by Jekco against the Third Parties for indemnity or contribution pursuant to the Civil Liability (Contribution) Ordinance, Cap 377 (“CLCO”) and/or under the common law.

THE PARTIES’ RESPECTIVE CASES

21.  In her claim against Jekco, the plaintiff attributed the accident and her injury to Jekco’s negligence and breach of common duty of care owed to her as a user of the Lift. It was contended that Jekco as the responsible repair and maintenance contractor of the Lift had failed to address the risk of danger arising out of the trimmed traction shaft. Amongst other things, Jekco was said to have:

(1)  failed to adequately or at all to replace the traction machine of the Lift in time when knowing it was defective and dangerous in that the traction shaft had been trimmed from 100mm to 90mm;

(2)  allowed improper modification works to be done on the traction machine eventually causing the traction shaft to be broken;

(3)  allowed the surface of the traction shaft to be trimmed from 100mm to 90mm to make room for insertion of the sleeve, which resulted in stress concentration effect on the fatigue crack;

(4)  failed to assess the risk of trimming the traction shaft and the consequential effect on the operation of the Lift which Jekco knew or ought to have known;

(5)  allowed and effected improper welding[1] at both ends of the sleeve onto the traction shaft such that the property of the steel in the shaft was weakened thus resulting in the failure of the same;

(6)  failed to advise the Third Parties to install an ascending over-speed protection device or unintended car movement protection device in the Lift to prevent the kind of accidental movement in the accident;

(7)  caused, permitted or allowed the Lift to remain in use in the above dangerous condition;

(8)  failed to provide a safe operating system of the Lift;

(9)  failed to warn the plaintiff of the dangers in using the Lift and exposing her to a danger or a foreseeable risk of injury which Jekco knew or ought to have known.

22.  Jekco denied knowledge about the trimming of the traction shaft or that it was the cause of the accident. Specifically, it contended that the traction shaft with the sleeve was its ex-factory state, and the accident was not reasonably foreseeable.

23.  Jekco also contended that the Third Parties had contracted Holake to carry out renovation works to the Lift in 1997 and 2002, which caused significant increase in the load of the lift car by about 380kg[2]. Those constituted major alterations which should have, but had not, been reported to the EMSD. Nor has the same been communicated to Jekco. It was in 2010 when Jekco discovered addition of counterweight which caused it to enquire with Hon Hing, but Hon Hing allegedly misled it to believe that all those had been approved by the EMSD. The resultant significant increase in the total load of the Lift caused metal fatigue to the traction shaft and eventually the accident. Hence the Third Parties were to blame.

24.  Jekco contended that in any event, it had advised and quoted for the replacement of the traction machine and installation of rope grippers, which, had the Third Parties accepted and proceeded with, would have prevented the accident.

25.  Along the same line, Jekco maintains in its claim in the third party action. Specifically, the Third Parties are said to have:

(1)  failed to report to the EMSD the renovations to the Lift in 1997 and 2002[3], which significantly increased the weight of the lift car and counterweight by a total of 1,000kg, and which amounted to major alterations compromising the integrity of the traction shaft;

(2)  failed to inform Jekco of the particulars of those major alterations to the Lift since its commencement as the lift contractor in 2008, but misled it to believe that the alterations had been approved by the EMSD;

(3)  failed to accept Jekco’s proposal and quotation for the replacement of the traction machine and installation of rope grippers, which would otherwise have prevented the accident;

(4)  failed to follow the Guidelines for Modernising Existing Lifts (“the Guidelines”) distributed to all the lift owners in Hong Kong, including the Owners, in November 2011 for implementation of lift enhancement and modernisation solutions.

26.  In its defence to the third party claim, the Third Parties contend that the accident was caused by the improper modifications to the traction shaft which compromised its integrity, and thus increasing the stress concentration at its weak point. The Third Parties deny the alleged increase in the counterweight and the total load of the Lift as a result of the renovations of the lift car in 1997 or 2002. They also deny that such renovations required reporting to the EMSD or that they had ever misled Jekco into believing that such renovations had received EMSD approval.

27.  In any event, Jekco is said to have carried out its work on the traction shaft in the repair without regard to the state of the traction shaft and the counterweight, which it knew or ought to have known. Whilst Jekco recommended the replacement of the traction machine, it had failed to advise the Third Parties that it would be unsafe to operate the Lift in the circumstances or to advise the Third Parties to suspend the operation of the Lift unless and until the replacement of the traction machine.

28.  In reply, Jekco further contends that Hon Hing instead relied on its own engineering managers and engineers with the relevant qualifications and expertise to oversee and to examine the work carried out by it and its predecessors. The Third Parties deny that as a matter of fact. Further, the Third Parties engaged Jekco, which was expected and indeed represented itself to be competent and to possess all the necessary qualifications, expertise and knowledge in performing its duties and obligations under the various contracts, which the Third Parties did not have, the Third Parties were entitled to, and did, rely on Jekco for the discharge of their common law and statutory duties as the manager and the owners in ensuring the safety of the Lift.

29.  The Third Parties counterclaim against Jekco for damages for its negligence and/or breach of the 2012 Contract.

ISSUES

30.  In view of the undisputed fact that immediate cause of the accident was the breakage of the traction shaft of the Lift, there are the following broad issues in dispute in the third party action:

(1)  Whether the breakage of the traction shaft, and thus the accident, was the result of its having been trimmed or the increase in the total load of the Lift brought about by the renovations of the Lift in 1997 and/or 2002;

(2)  Whether Jekco and/or the Third Parties knew or ought to have known the trimming of the traction shaft and/or the increase in the load of the Lift as well as their impact on the safety of the Lift;

(3)  Whether Jekco and the Third Parties were in breach of their respective duties in respect of the safety of the Lift on account of the trimmed traction shaft and/or the increase in the counterweight;

(4)  Whether Jekco is entitled to claim contribution or indemnity against the Third Parties in respect of its liability to the plaintiff’s damage and, if yes, to what extent;

(5)  Whether the Third Parties are entitled to their counterclaim against Jekco and, if yes, the quantum.

THE WITNESSES

31.  On behalf of Jekco, Mr Chan Tak Wah (“Chan”) testified. Chan was an engineer, and at the material times director and general manager of Jekco mainly responsible for liaison and contractual matters with clients.

32.  Jekco had arranged to call another director, Mr Keung Yuk Hon (“Keung”), as a witness. Keung was at the material times the person in charge of the technical and engineering aspects of Jekco’s operation. Keung had his witness statement filed in 2017, but unfortunately passed away in 2018. As a result, Chan sought to adopt in his evidence what Keung stated. Counsel for the Third Parties questioned this approach. To the extent that they were matters either personally known by or reported to him at the material times, that in my view is permissible subject to weight.

33.  Under subpoena, Ng, who was responsible for the investigation and the FIR of EMSD mentioned above, also testified.

34.  The Third Parties called the property manager of the Building at the time, Mr Yeung Yiu Kei (“Yeung”) of Hon Hing, to give evidence. Mr Leung Man Lok (“Leung”) also testified. Leung was an engineering supervisor of Man Shine Development Company Limited (“Man Shine”), which was Hon Hing’s contractor responsible for providing daily repair and maintenance service to the Building at the material times.

35.  All the parties have engaged their respective engineering experts to provide their opinion on liability. The experts engaged on behalf of Jekco and the third parties are respectively Professor Andrew YT Leung (“Prof Leung”) and Ir Kong Sin Ming (“Ir Kong”). They compiled their respective provisional expert reports in 2019, which were followed by their mutual comments in June 2019. On 19 August 2019, they compiled their joint expert report.

36.  Following the direction of the court in April 2021, a tripartite expert meeting among the experts engaged by all 3 parties of this action was held on 3 September 2021, which led the tripartite joint expert report dated 21 September 2021 (“the Tri-P Report”). Following the settlement of the main action, the expert evidence on behalf of the plaintiff in the report remains relevant insofar this has to be related to for understanding the evidence of the experts for the remaining parties for the purpose of the third party action.

37.  The Tri-P Report contained at its end a section on the post-meeting opinion expressed by Ir Kong. This prompted Prof Leung to render his further report dated 21 June 2022 (“the 6/2022 Report”). In response of that, Ir Kong rendered his further report dated 22 July 2022 (“the 7/2022 Report”).

38.  Both experts testified at the trial.

CAUSE OF THE BREAKAGE OF THE TRACTION SHAFT

39.  Jekco and the Third Parties accept the FIR finding that the immediate cause of the accident was metal failure leading to the breakage of the traction shaft. They differ as to whether that was in turn the result of the trimming of the shaft core surface, as contended by the Third Parties, or the increase in the total weight of the Lift incidental to the renovations of the Lift in 1997 and 2002, as contended by Jekco. In either scenario, they point fingers at each other for the consequential liability[4].

The state of the traction shaft

40.  There is dispute as to whether the trimmed traction shaft with the sleeve as found was its ex-factory state or the result of subsequent alteration or modification. Jekco contends that it was the former. If Jekco is right, there would be no real issue of trimming as the same would have been part of its original manufacture state.

41.  Jekco’s case that the traction shaft with the sleeve was its original ex-factory state is essentially premised on the expert opinion of Prof Leung. In the Tri-P Report, Prof Leung opined that the shaft with the insertion of the sleeve no doubt must have existed for the Lift, and probably the whole batch of such product including lift no 8, when they were ex-factory and supplied by the manufacturer. Ir Kong (and the expert for the plaintiff) held a different view. While Ir Kong’s view aligned with that of Ng, Ng in court fairly explained that he could not be certain about whether or not the state of the traction shaft as found after the accident was ex-factory.

42.  There was indeed no record of trimming of the traction shaft in the maintenance logbook in respect of the Lift. Nor did the EMSD have such record. One needs to turn to the other available evidence.

43.  Jekco admittedly discovered the state of the traction shaft as found much earlier than the accident. It happened in the course of its repair of the traction shaft for oil leakage in October 2011. Keung in his statement to the EMSD back in March 2013 specifically referred to the discovery that the traction shaft was not in one piece but with the sleeve. Though he had no idea if the sleeve was part of the original design of the shaft, he did suspect that it was not. Only that Keung did not possess sufficient materials then to verify.

44.  Keung’s EMSD statement was taken in the presence of Chan. Chan repeated in his evidence similar suspicion in respect of the state of the traction shaft of the Lift as found, but added that Hon Hing never mentioned to Jekco whether the shaft had been modified. In court, he testified that he came to realise that the traction shaft appeared to be slimmer after the sleeve on it was removed during the repair in 2011. That was the first time he had ever encountered a traction shaft in a cylindrical shape with a sleeve, as his experience was that the ordinary shape of lift traction shaft, albeit different in dimensions, should be tier-shaped without sleeve. Worth-noting is that such observation actually aligned with the opinion of the plaintiff’s expert, who explained in the Tri-P Report that all lift practising engineers should have the technical know-how to realise that the traction shaft must be one solid piece instead of 2 pieces.

45.  Admittedly what appealed to Keung and Chan when discovering the state of the traction shaft with the sleeve in late 2011 was never investigated. What Keung and Chan then might not possess in terms of materials for verification of the state of the traction shaft, assuming that they were ever minded to do so, was subsequently obtained by the EMSD during the post-accident investigation. As appended to the FIR, the EMSD referred to what was said to be the geometry and design drawing of the model of the traction shaft of the Lift. The drawing indeed showed that the traction shaft’s ex-factory state should be in one-piece without the sleeve.

46.  There was also the EMSD statement of Mr Lo Chi Kwong (“Lo”) back in April 2013. Lo was at the time senior manager of the repair and maintenance division of Chevalier. He confirmed that Chevalier was then the sole agent of the brand of the Lift as well as the supply of its parts and components in Hong Kong. He confirmed that the ex-factory state of the traction shaft of the model in question was in one piece, and it was so when the Lift was installed. No modification to the traction shaft had been done.

47.  In the Tri-P Report, Ir Kong agreed that the drawing appended to the FIR represented the original design, diameter and geometry of the traction shaft, and the same had been modified by way of trimming in order to accommodate the insertion of the sleeve. Amongst other materials, Ir Kong had the support of the EMSD statement of Lo mentioned above.

48.  On this, counsel for Jekco submits that even Ir Kong did not think that the drawing represented the original design and geometry of the traction shaft. That in my view was not an accurate reading of Ir Kong’s evidence. Ir Kong saw the need to obtain from Chevalier detailed drawing instead of the sketch referred to. However, Ir Kong’s observation that the sketch was not drawn to scale could not be understood as acknowledgement of lack of reliability of the drawing as evidence of the original design and geometry of the traction shaft.

49.  Subsequent to the Tri-P Report, the EMSD disclosed its email correspondence with Chevalier back in November 2012, whereby Chevalier supplied the drawing of the design and geometry of the model of the traction shaft of the Lift referred to in the FIR. Chevalier in the email indeed confirmed that what the drawings depicted was the ex-factory state of the model of the traction shaft in question. In particular, the traction shaft was in one piece without the sleeve.

50.  In view of the further information, including the EMSD email with Chevalier mentioned above, Prof Leung in the 6/2022 Report added what he described as a proviso to his opinion in the Tri-P Report. He opined that the issue of whether or not the traction shaft of the Lift had been trimmed was wholly academic because the concern was when and who had done it, and whether the Third Parties had known or should have known about the trimming, bearing in mind that similar trimming and sleeve was also found on the traction shaft of lift no 8. It would appear that he held on to his view that the state of the traction shaft as found was ex-factory.

51.  In his oral evidence, Prof Leung further explained his stance. He found the evidence was insufficient to convince him that someone would have had reason to trim the original one-piece traction shaft and to insert the sleeve. To him, Lo’s EMSD statement mentioned above did not suffice. He also doubted the source and veracity of the drawing of the traction shaft design and geometry referred to in the FIR. It was only when confronted with the email from Chevalier to EMSD mentioned above that he was prepared to acknowledge the possibility that the traction shaft with the sleeve as found might have been the result of modification instead of its ex-factory state.

52.  Whether the state of the traction shaft discovered by Jekco during repair in late 2011, and as found after the accident in 2012, was its ex-factory state or the result of trimming of the shaft and insertion of the sleeve is a matter of fact to be found by this court. On the balance of probabilities, the evidence, in my judgment, suffices to show that it is more likely than not that the traction shaft of the Lift was in one-piece without the sleeve ex-factory, and its diameter had at one stage been trimmed to enable the insertion of the sleeve to match the bearing so as to seal up any gap. I so find as a matter of fact.

The state of the counterweight

53.  It is common ground that the weight of the Lift and the counterweight had bearing on the operation of the traction shaft. In the FIR, Ng did not attribute the metal failure and breakage of the shaft to the load, or any exceptional or unauthorized load, which the traction shaft in its operation had been subjected to before the accident. However, that was not because the relevance of the load of the Lift was left out of EMSD’s investigation.

54.  As mentioned, EMSD requested Jekco to find out the weight of the lift equipment after the accident, as there was no record of the weight as of the time of installation. EMSD also noticed the state of the counterweight, and wrote to Hon Hing in January 2013 to enquire about noticeable increase in the counterweight in the case of lift no 8 to ascertain its impact on the safety of the lifts. Ng had also considered the EMSD statements, as he stated so, before the final version of the FIR was released in May 2013.

55.  In court, Ng confirmed that he did consider the factor of the added weight and counterweight of the Lift, which might have been brought about by the works done to the Lift by the successive contractors prior to the accident in 2012. The works were set out by Yeung in a table (“the Table”) when giving his EMSD statement. Amongst the works recorded, those specifically referred to by Jekco for the purpose of its claim were those carried out by Holake in 1997, 2002 and 2006. The EMSD had record of the works carried out in 2006 but not those in 1997 or 2002. It should be noted that the impact of the renovation works in 2006 has by the time of the trial been removed from the core of Jekco’s case.

56.  It was after such investigation that Ng concluded the FIR with no specific mention of any causative link between the weight or counterweight of the Lift occasioned by the renovation works and the breakage of the traction shaft. As mentioned, Ng also stated in the FIR that the materials in hands caused him to report that EMSD was unable to find culpability on the part of any contractor, which in context could only be understood to be referring to the improper modification of the traction shaft. Had the renovation works in 1997 and 2002 and their impact on the load of the Lift, which were known to be carried out by Holake, been found to be a cause of the accident, there would have been no reason for its lack of mention in the FIR. In court, Ng further actually explained that the renovations recorded in the Table appeared to have been ordinary repair and maintenance. It should be noted that both the expert for the plaintiff and Ir Kong shared the opinion that those works should not have had material negative impact on the safety of the Lift.

57.  The Table was compiled with express reference to another 27 pages of documents, which were in fact expenses application forms of Hon Hing in respect of the works carried out. Those forms contained the details of such renovation works including those in 1997 and 2002 (“the 27 Pages”). According to Hon Hing, their production was not requested by EMSD during the investigation. The 27 Pages subsequently formed the subject matter of further discovery, which also brought about the original 3 parties’ argument in respect of the most recent amendment of Jekco’s pleading and further expert evidence. Hence the hearing before Hon Marlene Ng J, and her decision dated 23 April 2021.

58.  The relevant renovation works carried out by Holake in 1997 and 2002 were respectively described in the expenses application forms in the following terms:

In 1997

“客機機身三邊傍板重新裝設防火板” (or reinstallation of 3 fire-proof laminated panels on the back and side walls of the lift car);

“客機機身後幅傍板上半部安裝玻璃鏡片一件” (or installation of a glass mirror on the upper half of the back wall of the lift car);

“客機機身天花包鏡面不銹鋼片及安裝射燈5套” (or wrapping of a stainless steel panel with mirror finish and installation of 5 sets of spotlights on the ceiling of the lift car);

“客機機身企柱及模頭包鏡面不銹鋼片” (or wrapping of stainless steel panels with mirror finish on the columns and beams of the lift car);

“客機機身門傍邊兩幅防火板材料後貼為鏡面不銹鋼” (or sticking of stainless steel panels with mirror finish at the back of 2 fire-proof laminated panels of the door side of the lift car);

In 2002

“更換…升降機內殘舊之膠地板工程” (or replacing the worn out vinyl floor of the lift car).

59.  Prof Leung and Ir Kong considered the details and extent of those renovation works to the Lift in 1997 and 2002. The experts differed in respect of whether and, if yes, how much weight and counterweight had been added as a result of those renovation works. They also differed in respect of whether and, if yes, what impact that had had on the safe operation of the Lift and thus the causation of the accident.

60.  In the Tri-P Report, the experts appeared to have identified addition of about 10 pieces of counterweight. Each piece of counterweight weighed about 50kg. Hence 500kg in total. Jekco in its pleaded claim contends that the weight of the lift car was increased by 380kg and balancing increase in the counterweight to the same extent. In its reply, Jekco contends that the weight and the counterweight of the Lift were increased by 1,000kg, suggesting the increase in the weight of the lift car was 500kg. However, in his oral evidence, Prof Leung estimated that the increase in the weight of the lift car consequential upon the renovation works could be 300kg, and therefore with the corresponding increase in the counterweight the total load would have increased by 600kg instead. Margin of tolerance, in my judgment, may not suffice in reconciling the differences. Yet this tends to ring the bell for caution in terms of certainty of the expert opinion in this respect.

61.  Verification of the addition of 10 pieces of counterweight consequential upon the renovation works in 1997 and 2002 is not straightforward. Apart from the lack of documentary record, none of the experts actually had the opportunity of actually examining the counterweight. All they turned to was the state of the counterweight as depicted in the photographs taken inside the lift well. The exercise became one of judging by the colour and shade variations amongst the counterweight pieces as depicted in the photographs. The 10 pieces of counterweight mentioned above were viewed as different in terms of colour and shade from the other pieces under them in the stack. Hence the speculation that they were added at different time(s) subsequent to the those beneath them.

62.  Prof Leung’s elaboration in court also confirmed the uncertainty of the 1,000kg total weight increase. He referred to that as somehow the discussion amongst the experts when various other weights were mentioned. He acknowledged the difficulty of judging by the colour and shade of the counterweight pieces. He could only categorise the exercise as one of common sense but did not rule out its speculative nature.

63.  Unlike the experts, Ng had personally viewed the state of the counterweight after the accident. He could not be specific in his observation in this respect except for that about the top 2 pieces of the counterweight. He described those 2 top pieces as relatively shiny and reflective under lighting condition, which suggested that they did not bear much rust, and hence their relatively recent addition. Such new evidence caused the parties in the trial to factor in the possibility that the addition of the 2 pieces might be related to the renovation work to the Lift in 2002.

64.  In his reports, Ir Kong had stated his opinion that the 10 pieces of counterweight might have been added at the time when the Lift was installed. Taking into account Ng’s evidence, Ir Kong revisited his previous opinion and explained in court that he would be prepared to accept that the renovation work to the Lift in 2002, ie the replacement of the original vinyl to marble flooring, might have entailed the addition of the top 2 pieces of counterweight noticed by Ng. This also explains why counsel for the Third Parties submit that the state of the counterweight as at the time of the accident may be categorised into 3 layers in terms of noticeable colour and shade variation, of which the top layer consisted of those 2 pieces distinctly noticed by Ng.

65.  That attracted criticism by counsel for Jekco that Ir Kong was tailoring his opinion as the trial went. The criticism in my judgment is not warranted, bearing in mind the inherent nature of the basis for the experts’ opinion in this respect explained above and the fact that such personal observation of Ng about the state of the counterweight came to light only during the trial. If anything, the experts were expected to consider if their opinion previously stated called for revisit in view of the new evidence at the trial so as to assist the court.

66.  In any event, counsel for Jekco indeed proceeded in his submission on the basis that if the top 2 pieces of counterweight were attributable to the 2002 renovation works, the remaining 8 pieces should be attributable to the 1997 renovation works to the Lift. Even on this basis, the history of additions of the 8 pieces of counterweight is far from clear. Merely by viewing the colour and shade depicted in the photographs, one cannot further tell which and when those various pieces were added.

67.  First, the ex-factory lift equipment from the manufacturer came accompanied by its counterweight stack before installation. Depending on the extent of decoration to be added to the bare lift car, further counterweight would then be sourced and added. This was confirmed by Chan in his evidence. In other words, that would entail different counterweight pieces to be added to the original stack that came with the ex-factory lift package before the new and decorated lift commenced operation. Ir Kong expressed a similar understanding of the practice.

68.  Then subsequent renovation of the lift or its decoration could happen, as it did in the present case. However, whether and, if yes, how much counterweight needed to be added would depend on the change to the weight of the lift occasioned by the renovation works. Such change must be the net weight increase as renovation could entail replacement instead of pure addition of the fixtures and installations to the lift car. Ir Kong also expressed a similar view of the situation.

69.  Ir Kong drew inference from the fact that there was no EMSD record of such alteration, though this should be considered with caution, bearing in mind that the modification of the traction shaft was equally not documented in the EMSD record. Further, amongst the 27 Pages, including those regarding the Lift in 1997 as set out above, difference was apparently consciously struck when describing the works involving mere additions and those involving replacements. On this basis, one perhaps could not rule out the probability that those carried out to the Lift in 1997 could result in some net increase in the deadweight of the lift car.

70.  Indeed, both experts provided their estimations of the impact of the renovation works in 1997 on the net weight of the lift car. However, the line to be drawn between educated estimation and speculation in this respect is fine. Prof Leung seemed to accept that. Importantly, the details of those renovation works documented in the 27 Pages, without more, do not serve to show which of the experts’ estimations is probably more accurate.

71.  Apart from the recent addition of the top 2 pieces of counterweight, to what extent one manage to tell whether or not the so-called middle layer or the 8 pieces of counterweight might consist of those added upon the decoration of the Lift when installed and those added as a result of the renovation works to the Lift in 1997, is just uncertain. Jekco has to discharge the burden of substantiating its claim, including the weight issue as alleged. In the circumstances, I find that it fails to do better than showing that the state of the counterweight as found might consist of additions so added at different times for different reasons.

Causation

72.  What is certain however is that the Lift with its trimmed traction shaft had been operating subject to such weight of the lift car and the counterweight as found for a considerable number of years by the time of the accident. This constituted the circumstances in which causation of the breakage of the traction shaft, and hence the accident, should be considered.

73.  It is common ground that the breaking strength of the traction shaft refers to its strength in withstanding the bending and torsion in its operation being subject to the load generated when the lift car was loaded and unloaded. On the basis that the diameter of the traction shaft had been reduced from 100mm to 90mm (ie by 10%), Prof Leung opined that its remaining strength would be reduced to about 65% of its original state. In the Tri-P Report, Ir Kong opined that the reduction was 10%. He corrected that in his post-expert joint meeting opinion, and stated that the 10% reduction in diameter of the traction shaft should have caused reduction in the strength of the traction shaft by over 30%. Ng agreed with that in court. In other words, the experts were basically ad idem in this respect. However, they differed on the impact of such reduction in the strength of the traction shaft on the safety of the Lift in the present case.

74.  The FIR recorded the finding that the fatigue crack was originated from the outer edge of the traction shaft that had been trimmed, and the cause of the fatigue crack was the stress concentration effect from the damage induced when the original shaft was machined away to create room for insertion of the sleeve. The improper modification works compromised the integrity of the traction shaft and thereby increased the stress concentration at the weak point in its daily operation.

75.  In line with the FIR, Ng explained in court that problem originated from the trimming of the traction shaft. The trimmed traction shaft had to bear tensile and shear strength in its operation in excess of what its original state was designed to manage. That accelerated the occurrence of metal fatigue even assuming the load remained unchanged.

76.  In court, Ir Kong essentially expressed a similar view about the impact of the trimming of the traction shaft. Ir Kong opined that oil leakage faced with by Jekco months prior to the accident was a symptom of problem in the operation of the traction shaft. However, Jekco failed to possess the technical knowledge and information to identify and to address the problem properly. Hence the accident.

77.  Prof Leung stated in the Tri-P Report his opinion that the addition of weight and counterweight occasioned by the 1997 and 2002 renovations to the Lift was the sole cause of the accident. He seemed to have changed when he stated in his subsequent report that the accident was caused by the compound action of the trimming of the traction shaft and the additional load of the Lift, and that neither of the two factors alone would have caused the failure. At the trial, Prof Leung maintained that with its remaining strength, the trimmed traction shaft would still have remained safe but for the increase in the total load of the Lift as a result of the renovation works to the Lift in 1997 and 2002.

78.  As discussed, the probability that counterweight might have been added when the Lift was installed could not be ruled out. This was followed by probable additions occasioned by the subsequent renovations such as those in 1997 and 2002 in question. However, the extent of the increase attributable to these probable occasions (perhaps except for the renovation in 2002) is far from certain. What one may say with certainty is the fact that the Lift with its trimmed traction shaft had been operating subject to such total load of the Lift as found for a number of years.

79.  Prof Leung opined that the reduced strength of the traction shaft should still be within its endurance stress limit and thus safe. The lack of prior accident, in his opinion, was testimony. Problem in the form of oil leakage arose out of decades of frictional process on the traction shaft which created gaps between the shaft and the sleeve. That, in his opinion, did not constitute safety issue of the traction shaft. In court, Prof Leung added that he saw no immediate safety concern about the traction shaft in such condition. It was only when crack was detected that the shaft would be said to be close to failing.

80.  In substantiating his opinion that the traction shaft, albeit trimmed, would have remained safe but for the increase in the weight and counterweight of the Lift, Prof Leung entered into repeated calculations with a view to demonstrating that the stress level of the trimmed traction shaft would still have been within its design’s endurance limit.

81.  The calculations were initiated by the expert for the plaintiff, who tried to demonstrate that the increase in weight occasioned by the renovation works to the Lift in 1997 and 2002 was insignificant and should not have caused metal fatigue of the traction shaft without trimming. The increase in weight had minor contribution towards the fatigue condition compared with the trimming of the shaft. Prof Leung disagreed in terms of the total load adopted in the calculations and the lack of account for the cyclic stress concentration effect. That led to Prof Leung’s calculations first set out in his 6/2022 Report. It was according to his calculations that Prof Leung, as mentioned above, concluded that the traction shaft failure was due to the compound action of trimming and weight increase, and either trimming or weight increase alone would not have caused the failure.

82.  In the 7/2022 Report, Ir Kong expressed doubt about Prof Leung’s calculations. As discussed, and found by this court, the extent of increase in the weight of the lift car, and thus the counterweight, attributable to the renovation works in 1997 is uncertain. That does not lend weight to the assumed increase in the weight adopted by Prof Leung in his calculations. Ir Kong opined that even assuming the calculations were correct, the heavy use of the Lift during its daily operation would have meant that the yield stress of the Lift would have been exceeded for numerous times daily. In that case, the shaft would have been expected to change into a deformed shape permanently. Certain signs would have surfaced such as abnormal vibration and noises in the operation of the Lift as well as the tendency of the shaft and its associated components such as machine bearing to fail. The operation of the Lift would have been suspended for being unsafe. However, he found no evidence of such signs of the plastic deformation of the shaft.

83.  Unexpectedly Prof Leung sought to revise his calculations in the middle of his oral evidence, which ended up with those as now set out in and produced as Exhibit D1. He adopted a lesser increase in the counterweight, which could not be explained by taking into the 2 pieces of addition amounting to 100kg noticed by Ng as mentioned above. He adopted a lesser total load and yield stress as well. He explained in court that yield stress adopted in the original calculations was based on the assumption that the traction shaft was made of a particular type of steel. Yet for the purpose of revising his calculations in court, he decided to change the parameters by adopting the lesser yield stress.

84.  That caused query by Ir Kong as, according to him, the usual material of traction shaft was low carbon steel or mild steel with average yield strength closer, if not slightly higher than, that adopted by Prof Leung in his original calculations. The revision to the lesser yield stress was therefore not followed. Prof Leung explained that he did so by consciously leaving out of his calculations factors such as stress concentration and cyclic stress. The results fit what he had in mind, and allowed him to work his way backward. The experts acknowledged that factors such as stress concentration and cyclic stress, which Prof Leung removed from his revised calculations, could account for ±5-10% deviations. Even factoring those back in, the yield stress would still have been less than the case of the type of steel of which traction shaft was normally made.

85.  Ir Kong also pointed out various other difficulties in accepting the revised calculations on the basis of the known and unknown circumstances surrounding the Lift at the time. This court sees the force of the argument on behalf of the Third Parties that one should guard against tendency of effective manipulation of parameters for the purpose of certain perceived outcome when not all the variables in the entire computation were certain.

86.  Ir Kong gave another reason why one should be on guard about relying on Prof Leung’s calculations to determine the causation of the accident. Essentially, Ir Kong pointed out the reality of factoring in the usage of the lift at the design stage for safety and therefore certain margin other than what the calculations might seek to demonstrate would be expected. A buffer of 30-40% in the design, he opined. That sounds convincing. At least insofar as passengers’ lifts are concerned, the bare lift equipment to be installed would be delivered accompanied with counterweight as part of the package. As discussed, other counterweight would be added at the installation stage in accordance with the weight increase occasioned by the specific interior fittings and decorations to be added to the lift. That the design of the lift would cater for such weight buffer in the first place, as Ir Kong suggested, sounds convincing. This also lends weight to the probability that addition to the counterweight so occasioned at the installation stage might not have been offensive to the tolerance and thus safety of the lift.

87.  I share the scepticism about placing the extent of reliance on the calculations tendered by Prof Leung in the manner as mentioned for the purpose of drawing the conclusion contended by Jekco, namely the traction shaft of the Lift, albeit trimmed as found, would have been safe but for the increase in the counterweight occasioned by the renovation works in 1997 and 2002. The same is the case for the purpose of determining the duties of the parties arising out of knowledge about the state of the counterweight and the traction shaft, which will be discussed below.

88.  Jekco fails to prove on the balance of probabilities the extent and timing of the addition of the counterweight brought about the renovation works to the Lift in 1997 as alleged. Now the expert opinion of Prof Leung on the basis of his calculations left one with reasonable queries than definite answer in respect of the link between the increased load and premature metal failure as the alleged sole cause of the breakage of the traction shaft of the Lift in the present case. This court must question how far the evidence adduced by Jekco manage to tell us about the causation of the accident in more concrete terms than first, the trimmed traction shaft compromised its integrity and strength in withstanding the total load of the Lift; and second, as once stated in Prof Leung’s own opinion, that the traction shaft failed as a result of the compound effect of trimming of the shaft and the increase in load.

DUTIES

89.  Jekco was not accountable for the trimming of the traction shaft or any increase in the total load of the Lift. However, the fact was that the Lift with its trimmed traction shaft had been operating subject to the total load of the Lift as found at the time of the accident for some time by the time when Jekco took over as the lift contractor in January 2008. The situation was allowed to continue until the accident happened in 2012. That was the starting point in considering the respective duties on the part of Jekco and the Third Parties as well as which of the two sides was in breach in causing the accident.

The Third Parties

90.  Pursuant to the management agreement and sub-deed of mutual covenant concerning the Building, Hon Hing as the management company agreed to manage and to provide services for the whole of the Building as provided in the deed, and Hon Hing should have all the rights, powers and authorities and should perform all such duties and functions as were provided in the deed. Those included keeping the lifts of the Building in good repair and condition and replacing any parts thereof when Hon Hing considered to be necessary.

91.  As for statutory duty, it became clear at the trial that at the material times, the LESO was the applicable legislation. It was repealed after the accident by the Lifts and Escalators Ordinance, Cap 618 (“LEO”) on 17 December 2012. The Owners, as such of the lifts of the Building, were subject to the LESO at the time of the accident in respect of the safety of the lifts.

92.  Whilst Hon Hing, as the manager of the Building, was strictly outside the ambit of “owner” of the lifts for the purpose of the LESO, it was a party having occupation, management or control of the lifts as a matter of fact, which gave rise to the common law duty of ensuring the safety of the same as premises to which the lawful visitors of the lifts, including the plaintiff, would have access.

93.  Jekco argues that the Third Parties were at the material times also under the duties as the “responsible persons”, which came to be defined under the LEO and the 2012 version of the Code of Practice for Lift Works and Escalator Works (“the Code”), the latter being introduced to give guidance as a result of the changes brought about by the LEO. It became clear at the trial that it was the 2010 version instead of the 2012 version of the Code that was applicable in the present case.

94.  That aside, the 2012 version of the Code provided that the “responsible persons” under the new provisions have the ultimate responsibilities for the upkeep of a lift in a proper state of repair and safe working order (see Part 3, clause 3.1.2). Insofar as that is concerned, it does not appear that the Third Parties ever deny that their duty vis-à-vis the users of the lifts was non-delegable even under the current state of the law. What they contend is that they had therefore contracted and delegated the execution of the repair and maintenance of the lifts to competent registered contractors, including Jekco, with the provision of the necessary advice and operation for the compliance with the statutory and common law duties on their parts. It should be noted that the 2012 version of the Code indeed follows by stating that the “responsible persons” are required to cause registered contractors and registered engineers to respectively maintain and examine the lifts to fulfil the statutory requirements. That was what the Third Parties had done.

Jekco

95.  Jekco first undertook its duty as the contractor responsible for the repair and maintenance of the lifts of the Building both as the lifts were in January 2008 and in accordance with the terms of the contracts entered with Hon Hing for and on behalf the Owners.

96.  Counsel for Jekco suggests that it is common ground that the 2008 Contract and the 2010 Contract had lapsed by the time of the accident and therefore only the 2012 Contract is relevant. No doubt the Third Parties’ counterclaim is for breach of the 2012 Contract. However, that does not render the previous contracts irrelevant, as their terms provided the measure of the contractual duties on the part of Jekco in respect of ensuring the safety of the Lift in the circumstances surrounding the Lift and prevailing at the time.

97.  The terms of the contracts were set out in the tender documents. For the following purpose, the “tenderer” or “successful tenderer” in the provisions will be referred to as the contractor in the explanation.

98.  Under the 2008 Contract, Jekco had the following general duties:

Clause 3.10.2:

“在執行本公司合約時，倘中標判商或其僱員因任何疏忽行為引致本公司之動產或不動產或代管之財產受損壞或損失，或引致本司遭受控告而被索償引致本公司蒙受任何損失，中標判商須負全部負任，並補償本公司因而引起之一切損失。”

Essentially, in the event of loss and damage arising out of property damage, prosecution or claim against Hon Hing as a result of the negligence of the contractor or its employees, the tenderer should be wholly responsible and undertake to compensate Hon Hing.

Clause 4.1.4:

“服務範圍：8部升降機相關設施之檢査／保養／維修等。”

Essentially, the contractor’s service included inspection, maintenance and repair of the 8 lifts and their related facilities.

Clause 4.3:

“更新工程及保養工作須遵從『香港法例第327章升降機及自動電梯 (安全) 條例』及機電工程署或政府其他有關部門所制定之作業備考管制，並應符合機電工程署所編訂之「升降機及自動梯檢驗測試及保養實務守則」及「安全使用升降機及自動梯」之要求，中標判商代表升降機／電梯之業主執行上述法例所訂之工作及職責。”

Essentially, the improvement and maintenance work should be executed in compliance with the LESO (Lifts and Escalators (Safety) Ordinance (Cap. 327) (“LESO”) and the practice guidelines published by the EMSD and other Government departments as well as the requirements under the EMSD code of practice. The contractor should execute the work and duties under the LESO for and on their behalf of the Owners.

Clause 4.4:

“升降機／電梯保養工程投標商必須為香港機電工程署註冊之升降機承建商 (Registered Lift Contractor) 及具備認可升降機／電梯工程師 (Registered Lift Engineer) 之專業資格人士執行訂明之工作，方可合乎投標要求，而有關牌照副本須隨本標書夾附以便本公司査閱。”

Essentially, the contractor must possess the professional qualification of registered lift contractor and registered lift engineer for the discharge of their relevant duties.

Clause 4.6:

“中標判商在獲悉中標後，管業處將安排中標判商與現時大廈之升降機保養商進行會議。中標判商在獲得現時大廈升降機保養商同意後，需安排技術人員視察／檢查有關升降機系統之運作 (包括機械部份，電器部份及電子控制部份)，以確定升降機之裝置運作情況，並於進行此工序後一星期內，提交詳細報告書及建議書給予本公司作存案及跟進之用。”

Essentially, upon successful tender, Hon Hing would arrange the meeting between the (new) contractor and the current lift contractor. With the current contractor’s consent, the (new) contractor should arrange inspection and examination of the lifts, including their engineering and electronic parts, to ascertain their operation condition as well as report to Hon Hing within a week.

Clause 4.7:

“承辦商需要負責1-8號升降機 (高層及低層) 控制組件包括控制櫃及相關之電力及安全裝置，及完成後簽發證明書 (FORM 7)，測試報告及升降機操作手冊一式2份及呈交到本公司。新裝設之電腦控制系統，必須可為多部升降機作聯組控制 (分別為高層、低層及消防升降機，共8部)，及包括升降機箱內照明及通風之自動節能裝置；而於保養期內，本處有權要求承辦商不限次數修改控制程式，以附合大廈之使用及用量要求。保養之裝置包括但不局限以下項目：電腦控制系統 Elevator controller，變壓變頻升降機驅動器 VVVF Lift Drive, 控制櫃Control Cabinet，升降機箱控制板 Control Panel (Lift Cart),升降機箱內及升降機大堂㩒手板及顯示屏 Lift Car and Hall Call Panel and Dot Matrix Display (Lift Car & Each Lift lobby)，升降機控制纜 Elevator Controller cable and 遙遠監察系統 Remote monitoring system。”

This set out the various parts of the new control system of the lifts which the contractor agreed to provide.

Clause 4.9:

“如因為中標判商的工作疏忽或錯誤而引致任何損失或引致傷亡，中標判商必須承擔全部責任。中標判商承諾補償本公司因中標判商的疏忽或錯誤而蒙受的直接損失及費用。”

Essentially, the contractor should be solely liable for any loss, damage and personal injuries arising out of its negligence and mistake in its work. It agreed to indemnify Hon Hing against any loss and expenses caused by such negligence or mistake.

Clause 4.11:

“所有維修工作的進行程序及守則，必須達致、符合香港機電工程署所訂的最新要求及準則。”

Essentially, the repair and maintenance work procedures carried out should accord with the latest requirement and standards set down by the EMSD.

Clause 4.16:

“中標判商須每月一次派遣工程師與管業處開會, 檢討有關大廈之升降機系統狀況及跟進有關維修及改善工程，有需要時，須提交書面報告。”

Essentially, the contractor’s representative should meet with the management office monthly to review the condition and progress of repair and improvement works of the lifts and, if necessary, to table written report.

Clause 4.17:

“在落標前，投標商必須前往大廈作實地視察，對工程範圍及現場環境深入了解，但需先與大廈管業處聯絡以便作出安排。”

The contractor must arrange with the management office to conduct a site visit so as to acquaint itself with the scope of work and site condition prior to tender.

Clause 4.25:

“所有更換或後加之工程必須達致、符合香港機電工程署所訂的最新要求及準則，或政府其他有關部門所制定之作業備考管制及有關之法例。”

Essentially, replacement and additional works must satisfy the latest requirements and standards set by the EMSD or other code of practice of other relevant authorities and legislations.

Clause 5.7:

“中標判商需不另收費負責下列人工及物料：………任何非人為破壞而須維修／更換零件【包括：機械部份，電器控制部份及電子控制部份】。任何非人為破壞而須維修／更換機件【包括：運作鋼纜，運作電纜，運作摩打，運作滑輪組，光管及燈及啤呤等】。”

Essentially, the contractor should be responsible for the supply of work and materials free of charge, including any repair or replacement of parts necessitated other than human damage (such as engineering and electronic control), repair or replacement of mechanical parts (such as operation wires and ropes, motor, pulley, fluorescent tubes and bearing).

Clause 5.9:

“上述保養費為全保保養即正常使用下的自然損耗 (包括鋼纜及馬達) 將免費更換。”

Essentially, the agreed service charge should cover the provision of comprehensive maintenance of normal wear and tear (including wire/ropes and motor) and free replacement.

99.  Under the 2010 contract, Jekco had the following general duties:

Clause 4.1:

“升降機／電梯保養工程投標商必須為香港機電工程署註冊及認可之升降機承建商 (Registered Lift Contractor) 及具備認可升降機／電梯工程師 (Registered Lift Engineer) 之專業資格人士執行訂明之工作，方可合乎投標要求，而有關牌照副本須隨本標書夾附以便本公司査閱。”

This essentially repeated clause 4.4 of the 2008 Contract.

Clause 4.2.4:

“服務範圍：8部升降機（其中客運升降機4部及貨運升降機4部）及其相關設施之檢查／保養／維修等。”

This essentially repeated clause 4.1.4 of the 2008 Contract.

Clause 4.6:

“中標判商在獲悉中標後，管業處將安排中標判商與現時大廈之電梯保養商進行會議。中標判商在獲得現時大廈電梯保養商同意後，需安排技術人員視察／檢查有關升降機及扶手電梯系統之運作﹙包括機械部份，電器部份及電子控制部份﹚，以確定升降機及扶手電梯之裝置運作情況，並於進行此工序後一星期內，提交詳細報告書及建議書給予本公司作存案及跟進之用。”

This essentially repeated clause 4.6 of the 2008 Contract.

Clause 4.7:

“承辦商需要負責所有升降機 (所有層數) 控制組件包括控制櫃、相關之電力及安全裝置、所有機械系統與電子控制系統之保養，及包括升降機箱內照明及通風裝置；而於保養期內，本公司有權要求承辦商修改控制程式，以附合大廈之使用及用量要求。保養之裝置包括但不局限以下項目：控制系統 Elevator controller, 升降機驅動器 Lift Drive, 控制櫃Cabinet, 升降機箱控制板 Control Panel (Lift Cart), 升降機箱內及升降機大堂㩒手板及顯示屏 Lift Car and Hall Call Panel and Dot Matrix Display (Lift Car & Each Lift lobby), 升降機箱內門及各樓層外門操作器 Inner Door & Outer Door Operator (Lift Car & Each Lift lobby) and 升降機控制纜 Elevator Controller cable。”

This essentially repeated the scope of maintenance under clause 4.7 of the 2008 Contract.

Clause 4.9:

“如因為中標判商的工作疏忽或錯誤而引致任何損失或引致傷亡，中標判商必須承擔全部責任。中標判商承諾補償本公司因中標判商的疏忽或錯誤而蒙受的直接損失及費用。”

This repeated clause 4.9 of the 2008 Contract.

Clause 4.11:

“所有保養及維修工作的進行程序及物料等，必須達致符合香港機電程署所訂的最新要求及標準。”

This repeated clause 4.11 of the 2008 Contract.

Clause 4.16:

“在落標前，投標商必須前往大廈作實地視察，對工作範圍及現場環境深入了解，但需先與大廈管業處聯絡以便作出安排。”

This repeated clause 4.17 of the 2008 Contract.

Clause 4.18:

“若因中標公司過失或失誤導致升降機服務嚴重延誤或停止，中標公司須承擔因此而引起之相關責任及損失。”

Essentially, the contractor should be responsible for any loss arising out of any delay or cessation of the lift service due to its mistake.

Clause 5.9:

“中標判商需不另收費負責供應及更換自然損耗的物料及設施，包括但不局限下列人工及物料： ………任何非人為破壞而須維修／更換零件【包括：機械部份，電器控制部份及電子控制部份】。任何非人為破壞而須維修／更換機件【包括：運作鋼纜，運作電纜，運作摩打，運作滑輪組，升降機門閘刀，光管、燈及啤呤等】。”

This essentially repeated the combined effect of clauses 5.7 and 5.9 of the 2008 Contract.

100.  In addition, Jekco was contractually obliged to comply with the relevant statutory duties at the material time:

Clause 4.1:

“升降機／電梯保養工程投標商必須為香港機電工程署註冊及認可之升降機承建商 (Registered Lift Contractor) 及具備認可升降機／電梯工程師 (Registered Lift Engineer) 之專業資格人士執行訂明之工作，方可合乎投標要求，而有關牌照副本須隨本標書夾附以便本公司査閱。”

This essentially repeated clause 4.4 of the 2008 Contract.

Clause 4.4:

“保養工作須遵從『香港法例第327章升降機及自動電梯 (安全) 條例』及機電工程署或政府其他有關部門所制定之作業備考管制，並應符合機電工程署所編訂之「升降機及自動梯檢驗測試及保養實務守則」及「安全使用升降機及自動梯」等要求，中標判商代表升降機／電梯之業主執行上述及最新法例所訂之工作及職責。”

Clause 5:

“中標判商其保養工作須遵從『香港法例第327章升降機及自動電梯（安全）條例』及合約期內由機電工程署或政府其他有關部門所制定之作業備考管制，並應符合機電工程署所編訂之「升降機及自動梯檢驗測試及保養實務守則」及「安全使用升降機及自動梯」之要求，中標判商代表升降機／電梯之業主執行上述法例所訂之工作及職責，並負責以下之工作包 括但不局限下列：

接管現有裝置至合約中止或到期日移交有關裝置給僱主…”

Clauses 4.4 and 5 essentially repeated clause 4.3 of the 2008 Contract.

101.  Under the 2012 contract, Jekco had the following duties:

Clause 4.2:

“升降機／電梯保養工程投標商必須為香港機電工程署註冊之升降機承建商 (Registered Lift Contractor) 及具備認可升降機／電梯工程師 (Registered Lift Engineer) 之專業資格人士執行訂明之工作，並在註冊後最少5年有關升降機維修、保養及翻新經驗，方可合乎投標要求，而有關牌照副本及工作履歷須隨本標書夾附以便本公司査閱。”

Apart from repeating similar term as set out in clause 4.4 of the 2008 Contract and clause 4.1 of the 2010 Contract, there was now the additional requirement that the contractor possessed not less than 5 years of experience in lift repair, maintenance and renovation.

Clause 4.11:

“中標判商在獲悉中標後，管業處將安排中標判商與現時大廈之電梯保養商進行會議。中標判商在獲得現時大廈電梯保養商同意後，需安排技術人員視察／檢查有關升降機系統之運作 (包括機械部份，電器部份及電子控制部份)，以確定升降機之裝置運作情況，並於進行此工序後一星期內，提交詳細報告書及建議書給予本公司作存案及跟進之用。”

This contained similar terms as in clause 4.6 of the 2008 Contract and clause 4.6 of the 2010 Contract.

Clause 4.12:

“如因為中標判商的工作疏忽或錯誤而引致任何損失或引致傷亡，中標判商必須承擔全部責任。中標判商承諾補償本公司因中標判商的疏忽或錯誤而蒙受的直接損失及費用。”

This contained similar term as in clause 4.9 of the 2008 Contract and clause 4.9 of the 2010 Contract.

Clause 4.17:

“在落標前，投標商必須前往大廈作實地視察，對工程範圍及現場環境深入了解，但需預先與大廈管業處聯絡以便作出安排。”

This contained similar term as in clause 4.17 of the 2008 Contract and clause 4.16 of the 2010 Contract.

Clause 5.1:

“保養合約適用 獲承接「福業大廈」升降機「全保合約」保養工程判商 (以下簡稱：中標判商)，其保養工作須遵從『香港法例第327章升降機及自動電梯 (安全) 條例』及合約期內由機電工程署或政府其他有關部門所制定之作業備考管制，並應符合機電工程署所編訂之「升降機及自動梯檢驗測試及保養實務守則」及「安全使用升降機及 自動梯」之要求，中標判商代表升降機／電梯之業主執行上述法例所訂之工作及職責，並負責以下之工作包括但不局限於下列:”

This contained similar term as in clause 4.3 of the 2008 Contract and clauses 4.4 and 5 of the 2010 Contract.

Clause 5.2:

“中標判商須安排技術人員進行以下各項有關升降機之檢査及法定保養工作，並制定定期檢査／保養時間表供大廈管業署審批：如必須長時間暫停客運升降機進行保養工程時，爲避免貨運升降機停頓太久而影響客戶正常使用。是項保養工作必需獲大廈管業處安排在指定日期進行，而中標判商必須遵從。保養工作包括檢査、清潔、抹油及調校升降機但不局限於以下內容：

5.2.1 每兩星期1次檢査、清潔、抹油及調校升降機。

5.2.2 每年1次對升降機作全面檢査 (包括機械部份，電器部份及電子控制部份)。

5.2.3 每年l次定期試驗安全設備。

5.2.4 每5年1次安全設備滿載試驗及空載測試，超載感應器和制動器調較及應本公司因應實際情況之要求而進行。

＊倘上列檢査部份須向機電工程署申報，中標判商須知會本公司及須作安排。”

This essentially set out in detail the regular maintenance to be provided by the contractor, including:

(1)  Biweekly inspection, cleaning, lubricating and adjustment of the lifts;

(2)  Annual comprehensive inspection, including that of the mechanical, electrical and electronic parts;

(3)  Annual test of the safety devices.

Further, the contractor should advise Hon Hing of any need to arrange for the reporting of any of the above work to the EMSD.

Clause 5.5:

“中標判商需不另收費負責下列人工及物料：－

5.5.1 潤滑油添加劑。

5.5.2 鋼纜防腐添加劑。

5.5.3 機器運作機油／偈油。

5.5.4 抹油棉威士／威士布。

5.5.5 升降機身內和樓層指示燈／按手控制裝置及其他有關維修必須使用之物料。

5.5.6 任何非人爲破壞而須維修/更換零件【包括：機械部份，電器控制部份及電子控制部份】。

5.5.7 任何非人爲破壞而須維修／更換機件【包括：運作鋼纜，運作電纜，運作摩打，運作滑輪及機器等大型零件等】。”

This set out the scope of the work and materials to be provided by the contractor free of charge, including those as in clause 5.7 of the 2008 Contract and clause 5.9 of the 2010 Contract.

Clause 5.8:

“中標判商在獲悉中標後，管業處將安排中標判商與現時大廈之電梯保養商進行會議。中標判商在獲得現時大廈電梯保養商同意後，需安排技術人員視察／檢査有關升降機系統之運作（包括機械部份，電器部份及電子控制部份），以確定升降機之裝置運作情況，並於進行此工序後一星期內，提交詳細報告書及建議書給予本公司作存案及跟進之用。”

This contained similar term as in clause 4.6 of the 2008 Contract and clause 4.6 of the 2010 Contract.

Clause 5.10:

“中標判商需要負責1、2、5及6號升降機 (所有層數) 控制組件包括控制櫃、相關之電力及安全裝置、所有機械系統與電子控制系統之保養，並包括升降機箱內照明及通風裝置和對講機；而於保養期內，本處有權要求承辦商修改控制程式，以附合大廈之使用及用量要求。保養之裝置包括但不局限以下項目：控制系統 Elevator controller, 升降機驅動器 Lift Drive，控制櫃 Control Cabinet，升降機箱控制板 Control Panel (Lift Cart), 升降機箱內及升降機大堂拎手板及顯示屏 Lift Cart and Hall Call Panel and LCD Display (Lift Cart & Each Lift lobby)，升降機箱內門及各樓層外門操作器 Inner Door & Outer Door Operator (Lift Cart & Each Lift lobby) and 升降機控制纜 Elevator Controller cable.”

This contained similar term as in clause 4.7 of the 2008 Contract and clause 4.7 of the 2010 Contract.

Clause 5.12:

“如因爲中標判商的工作疏忽或錯誤而引致任何損失或引致傷亡，中標判商必須承擔全部責任。中標判商承諾補償本公司因中標判商的疏忽或錯誤而蒙受的直接損失及費用。”

This contained similar term as in clause 4.9 of the 2008 Contract and 4.9 of the 2010 Contract.

Clause 5.17:

“在落標前，投標商必須前往大廈作實地視察，對工作範圍及現場環境深入了解，但需先與大廈管業處聯絡以便作出安排。”

This contained similar term as in clause 4.17 of the 2008 Contract and 4.16 of the 2010 Contract.

Clause 7.4.3:

“保養工作：基本責任：中標判商必需按標書內所有內容及細則等執行工程。”

Clause 7.5:

“保養工作：提供1-8號客／貨運升降機之全保保養服務：按照第5.0所述事項，為福業大廈提供1-8號客／貨運升降機全保保養服務。”

Clauses 7.4.3 and 7.5 essentially provided that the contractor should carry out the maintenance work in respect of the 8 lifts in accordance with the terms of the contract.

102.  Likewise, the 2012 contract contractually required Jekco to comply with the following statutory duties:

Clause 4.2:

“升降機／電梯保養工程投標商必須為香港機電工程署註冊之升降機承建商 (Registered Lift Contractor) 及具備認可升降機／電梯工程師 (Registered Lift Engineer) 之專業資格人士執行訂明之工作，並在註冊後最少5年有關升降機維修、保養及翻新經驗，方可合乎投標要求，而有關牌照副本及工作履歷須隨本標書夾附以便本公司査閱。”

This was similar to clause 4.4 of the 2008 Contract and clause 4.1 of the 2010 Contract.

Clause 4.14:

“所有維修工作的進行程序及守則，必須達致符合香港機電工程署所訂的最新要求及準則。”

Clause 5.1:

“中標判商其保養工作須遵從「香港法例第327章升降機及自動電梯 (安全) 條例」及合約期內由機電工程署或政府其他有關部門所制定之作業備考管制，並應符合機電工程署所編訂之「升降機及自動梯檢驗測試及保養實務守則」及「安全使用升降機及自動梯」之要求，中標判商代表升降機／電梯之業主執行上述法例所訂之工作及職責。”

Clause 5.14:

“所有維修工作的進行程序及守則，必須達致、符合香港機電工程署所訂的最新要求及準則。”

Clause 5.23:

“升降機安全裝置及設備更新／提升

所有升降機之保養工作必須達致、符合香港機電工程署所訂的最新要求及準則，或政府其他有關部門所制定之作業備考管制及有關之法例。

投標商需於投標前到地盤視察各升降機房及升降機，並識別現有升降機狀況是否符合現行機電工程署有關升降機安全裝備之要求，中標判商有責任於合約期內，將有關不合格之裝備提升至法例最新之要求而不可另收費用，當中包括轉動部份之安全罩，升降機頂圍欄等設備。”

Clauses 4.14, 5.1, 5.14 and 5.23 contained terms similar to clauses 4.3, 4.11 and 4.25 of the 2008 Contract as well as clauses 4.11, 4.4 and 5 of the 2010 Contract. Clause 5.23 also provided that the contractor had the duty before tender to conduct a site visit and to ascertain if the pre-existing condition of the lifts satisfied the safety requirements published by the EMSD. The contractor had the duty during its term to bring the condition of the lifts which was below standard up to the latest requirements under the legislation without further charge.

103.  Section 11J of the LESO provides:

“A registered lift contractor…shall –

(b) supervise the carrying out of any lift works…which he is engaged to carry out;

(c) ensure that any lift works…which he is engaged to carry out are carried out by a person specified in section 29A(1), (2), (3), as the case may be;

(d) carry out any lift works…which he is engaged in accordance with the provisions of this Ordinance;

(da) ensure that the design and construction of the lift…concerned complies with section 27I;

(e) in carrying out lift works…, ensure that adequate safety precautions are taken to prevent injury to any person;

…”

104.  Section C, clause 2.3 of the Code (2010) provided that the registered contractor would have to carry out periodic maintenance and accident investigation, keep the equipment in good working condition and ensure that the requirements of the LESO are complied with. Clause 4.1 of the Code defines what maintenance and repair works respectively would include:

“Maintenance includes the inspecting, cleaning, oiling and adjusting of a lift…in order to keep the equipment and their accessories in good working order and prevent faults from occurring….Repair works cover the fault attending and fault finding activities as well as the action and work to restore the equipment or accessories to good working condition.”

105.  As provided in the various contracts with Hon Hing, it was also the contractual duty of Jekco to comply with its statutory duties as well as to perform in compliance with the statutory duties on the part of the Third Parties for and on their behalf.

106.  Apart from acting in accordance with the terms of its contract, where Jekco undertook the provision of services for Hon Hing which relied on it for such services, Jekco must assume the common law duty to Hon Hing (and the Owners) to exercise the necessary skill and care in providing such services: see Charlesworth & Percy on Negligence (14^th ed) §2-100; Haseldine v CA Daw & Son Ltd [1941] 2 KB 343.

BREACH

107.  On the basis that the physical cause of the accident is said to have been the state of the counterweight occasioned by the renovation works to the Lift in 1997 and 2002, and hence before its term as the lift contractor, Jekco contends that the accident was the result of the following breach of duties on the part of the Third Parties:

(1)  failing to report to EMSD the major alterations of the Lift involving the increase in the load of the Lift incidental to the renovation works in 1997 and 2002;

(2)  failing to inform Jekco of the same when it took over as the lift contractor;

(3)  failing to accept the recommendation of Jekco to replace the traction machine and/or to install rope grippers to the Lift;

(4)  failing to follow the Guidelines.

Reporting major alterations of the Lift

108.  Regarding commencement of major alterations in lift works, section 33 of the LESO provides:

“Where any lift works which consist, either wholly or in part, of major alterations are to be carried out in respect of any lift and…, the registered lift contractor…, as the case may be, engaged to carry out such lift works…, shall, as soon as practicable and, in any event, before such works are commenced, in writing notify the Director of the works which are to be carried out.”

109.  It is common ground that work involving increase in the deadweight of the lift car would fall within the scope of major alterations for the purpose of the LESO: see section 4(b).

110.  Section 13 of the LESO provides for the reporting procedure in respect of lift works involving major alterations:

“(1) Where any lift works which consist, either wholly or in part, of major alterations have been carried out in respect of any lift…, the owner of the lift…shall before the normal use and operation thereof is resumed, cause the lift…to be examined and tested by a registered lift engineer…, as the case may be, so far as may be necessary to determine that those parts of the lift…affected by such lift works…are in safe working order.

(2) When the registered lift engineer…, as the case may be, is satisfied that such parts of the lift…are in safe working order, he shall deliver to the owner of the lift…a certificate in the specified form, and the owner shall deliver the certificate, and pay the prescribed fee, to the Director within 7 days of the receipt of the certificate by the owner.

(3) On receipt of the certificate and the prescribed fee under subsection (2), the Director shall-

(a) if he is satisfied that such parts of the lift or escalator are in safe working order, by notice in the specified form permit the use and operation of the lift or escalator to be resumed;

(b) if he is not so satisfied, refused or permit the use or operation of the lift or escalator to be resumed;

(4) The Director shall be deemed to have permitted the use and operation of the lift or escalator to be resumed unless, within the period and in the manner prescribed by section 14(1), he notified the owner thereof that he refuses to permit the use or operation of the same to eb resumed.”

111.  The Third Parties were undoubtedly aware of the renovation works to the Lift in 1997 and 2002. The renovation works were carried out when Holake was the responsible registered lift contractor of the Building. One would reasonably expect the Third Parties to have to rely on Holake for information, advice and action in respect of any part of those works falling within the ambit of major alterations and thus entailing the need for examination by a registered lift engineer. If such examination by a registered lift engineer was required and thus caused to be carried out through the registered lift engineer, the certificate envisaged under section 13(2) would have been issued. The duty of the Owners upon receipt of the engineer’s certificate would be to deliver the same to the EMSD and to pay the prescribed fees in compliance with section 13(2). The Owners would not be in a position to do so without the certificate.

112.  Insofar as works done to the Lift is concerned, the EMSD indeed recorded an instance of such report in 2006 when Holake was the responsible lift contractor of the Building. In other words, there is no reason for suspecting that Holake was unaware of such statutory requirement. There is no evidence to suggest that the Owners either disregarded or failed to act according to any such advice by Holake in respect of the renovation works to the Lift in 1997 and 2002. Nor is there evidence to suggest that a registered engineer’s certificate had been issued in respect of such works which either Holake had failed to deliver to the Third Parties or the Third Parties had failed to deliver the same to the EMSD to complete the reporting duty.

113.  In the circumstances, Jekco cannot attribute blame to the Third Parties for breach of the statutory duty under sections 13 and 33 of the LESO for its purpose in these proceedings, when it is not proved that the Third Parties then possessed what would have necessary to enable the Owners to comply with such reporting duty at the relevant times.

114.  In any event, Jekco fails to make good its cause of claim on the basis of the alleged breach of the statutory duty to report. The physical cause of the accident is said to have been the state of the counterweight. As found above, the precise extent of any increase in the counterweight occasioned by the renovation works, which was in fact offensive, is uncertain. In the circumstances, it is not established how the duty to report the major alterations in those renovation works per se, had it been complied with at the relevant times, would have prevented such physical cause from existing and hence the eventual accident. Any suggestion in this respect, which is not actually made, would have been conjecture in the absence of particulars and evidence.

115.  What the evidence however tells is the state of the counterweight, which is said to be the physical cause of the accident, was patent to Jekco when it took over as the lift contractor in 2008.

The state of the counterweight as it was

116.  According to Jekco, its workmen first discovered on or about 15 March 2010 the state of the counterweight as it was found after the accident. According to Chan, that happened on the occasion when Jekco’s workmen happened to enter the lift well to fix the lighting problem inside. That was also when some of the photographs depicting the lift well and the counterweight referred to by the experts were taken.

117.  However, that could hardly be the only or even the first occasion when Jekco had to send its workmen into the lift well. Pursuant to the terms of the consecutive contracts with Hon Hing mentioned above, Jekco was required to carry out inspection of all the lift systems at the commencement of each of the term of its contract as well as annually. That began in January 2008. That is not to mention the other repair and maintenance throughout the years since 2008 inside the lift well. Ir Kong gave evidence in respect of similar requirement and duty of the contractor. In court, Chan also confirmed the same.

118.  In other words, where the counterweight is said to consist of additions incidental to the renovation works to the Lift mostly in 1997 and some in 2002, its state as of 2008 should be patent when Jekco took over its maintenance. As Chan acknowledged in his oral evidence, such state of the counterweight should be patent during inspection or repair inside the lift well since 2008, not only 2 years later in 2010. Should there be any observation or concern about such state of the counterweight, as Jekco alleges, that should not have arisen only when its workmen happened to work on the lighting inside the lift well in March 2010.

119.  As the Lift had been operating subject to the state of the counterweight as found for years by the time when Jekco came to notice that, one can therefore understand why the Third Parties argue that by complaining about their failure to inform it of what would have been concern about the state of counterweight, Jekco is effectively reversing or shifting its duty as the lift contractors back to them. Jekco should have been under the duty to alert the Third Parties to the situation even before March 2010.

120.  There is no dispute that Hon Hing kept the 27 Pages in respect of the renovation works to the lifts in the record. However, as discussed, that would not put the Third Parties on notice of any incidental adjustment in the counterweight or the duty envisaged under the LESO unless so advised at the time. Ir Kong also opined, and I accept, that it would not be reasonable to expect the property manager and owners of the building, who did not possess the technical knowledge about the operation of the lift, to see to the compliance with the statutory duties and obligations imposed on a registered lift contractor. Since January 2008, it had become the contractual obligation of Jekco, for instance under clause 4.4 of the 2010 Contract and clause 5.1 of the 2012 Contract, to execute the work in compliance with the statutory duties for and on behalf of the Owners.

121.  The basis for Jekco to hold a different view is that Hon Hing is said to have its own engineers and engineering manager to oversee the work of Jekco. Reference is made to the fact that Man Shine belongs to Nam Fung Group, which runs, amongst others, property development business. Reference is also made to the fact that engineers from Man Shine were present when statements were taken from the personnel of Jekco at the EMSD after the accident.

122.  That Hon Hing had its general engineering personnel is not disputed. One of the witnesses, Leung, was from Man Shine which was the contractor responsible for providing daily repair and maintenance service to the Building at the material time. However, there is no evidence to substantiate the assertion that such general contractor and its personnel were somehow qualified, let alone put in place, to oversee the work of the registered lift contractor of the Building such as Jekco. When the accident happened at the time when Jekco was the responsible lift contractor, that Hon Hing would cause engineers either from Man Shine or its group of companies to attend the statement taking at the EMSD as part of the post-accident investigation is not evidence of Jekco’s assertion in respect of their alleged roles during its term.

123.  Chan also suggested that Hon Hing’s engineer had been present in their representatives’ management meeting, and he witnessed that the engineer would converse with the Chairman of the management committee about the matters spoken of by Chan and Keung in relation to the lifts. It was suggested that Hon Hing’s engineer had obvious influence on the management committee. However, it became clear from the evidence that Chan was unable to tell what was allegedly conversed between Hon Hing’s engineer and the members of the management committee. The suggestion of Chan was in my judgment no more than conjecture.

124.  Importantly, the question of what had or had not happened before Jekco’s time aside, the dispute for the present purpose must be resolved on the basis of the state of affairs which Jekco knew or ought to know when and since it took over as the registered lift contractor of the Building in 2008. The EMSD indeed repeatedly emphasised the significance of the duty of a lift contractor taking over the maintenance of lifts from another contractor and the demarcation of the contractors’ liabilities in relation to the safe operation of the lifts undergoing transfer of maintenance. By its Circular Nos 7/98 (issued in April 1998), 9/2002 (issued in May 2002) and 8/2004 (issued in August 2004), the EMSD consistently reminded that upon the transfer, the registered lift contractor, which was taking over the maintenance of the lift, had to ensure that it had the necessary expertise, adequate manpower and resources for the provision of the maintenance service to ensure public safety. The contractor had to confirm in writing to the EMSD that adequate competent lift workers and registered engineer were employed to carry out periodic maintenance, periodic test and examination of the lift. The registered contractor’s staff should possess the necessary knowledge, expertise and skill to carry out the lift works, and would have no difficulty in obtaining spare parts and essential components for the repair and maintenance of the lift in safe working order. The registered contractor also had to be well aware of the required expertise, manpower and technical information for proper maintenance of the lifts. It had to carry out periodic test/examination for each lift to be taken over for maintenance, and to submit a test/examination report to the EMSD following the format in the Code for every lift within 2 weeks from the date of transfer of maintenance.

125.  Pursuant to the successive contracts entered into with Hon Hing on behalf of the Owners, Jekco also contractually undertook the duty to inspect and to report on the condition of the lifts at the commencement of each contract term. In view of the positive and independent duties on its part, Jekco’s reference to the relatively short time for taking over from Holake and the lack of what it preferred to be proper manner of handover would not be an answer. Nor would its blame on the failure of the Third Parties to inform it of the renovation works to the Lift in 1997 and 2002.

126.  Prof Leung’s opinion in this respect, which endorsed the stance of Jekco, must be viewed with scepticism in view of its independent duty as the succeeding lift contractor. Contrary to his opinion, it was, in my judgment, not a matter of whether he believed that a registered contractor would not have agreed to take over the maintenance of the Lift had it been informed of those prior renovation works. It was what a registered contractor was supposed to do, and would have done, in view of the state of the Lift as of the time when the contractor agreed to and did take over its maintenance from its predecessor. Inspection, examination and investigation of the state and condition of the lift on an “as is” basis were its independent duties in any given case.

127.  As the lift contractor, the initiative was on Jekco to ensure the safety of the lifts of the Building and to enable the Owners to comply with their duties under the law. As Ir Kong pointed out, it was for the contractor to seek information from the management company or the owners, including consulting the maintenance logbook. The contractor should know whether and, if yes, how much time needed to be sought for compliance. For instance, EMSD Circular No 8/2004 mentioned above provided that extension of time for submission of test report was possible. The fact was that Jekco did submit its first report in respect of the Lift on 26 March 2008. The reference to the short time window for handover from Holake, which Prof Leung endorsed in his opinion, in my judgment is immaterial and no excuse.

128.  Jekco certified that the Lift, in its state when it took over as the lift contractor of the Building, was safe. Prof Leung opined that that was reasonable when Jekco had no idea about the counterweight additions. However, it was according to Jekco that the state of the counterweight caused it concern in March 2010. Had there been cause for concern, the same state of the counterweight would have been patent to Jekco upon and since it had taken over in 2008. Notwithstanding that, Jekco concluded and thus certifying that the Lift was safe annually ever since until the accident. Such conclusion must also be scrutinized in view of the admitted discovery on the part of Jekco about the state of the traction shaft as well subsequently in late 2011.

129.  Jekco allegedly rested its concern upon enquiry with Hon Hing’s representatives about the state of the counterweight in March 2010. Putting aside why no concern or enquiry about the state of the counterweight was raised since January 2008, even the evidence of Chan in respect of the enquiry in March 2010 turned out to be doubtful.

130.  According to Chan, upon enquiry, Hon Hing confirmed that the state of the counterweight consisted of additions incidental to the renovation works to the Lift which had been approved by EMSD in accordance with the proper procedure. He personally made such enquiry with Leung of Man Shine. However, it became clear from the evidence, including that of Leung, that it could not be Leung as he had not commenced working for Hon Hing until August 2011. When confronted, Chan changed to refer to a Mr Yeung who, according to the evidence, could only be Mr Gary Yeung of Hon Hing. Yet even Yeung had not commenced working for Hon Hing until the end of October 2012. Eventually, Chan shifted into vagueness about such alleged oral confirmation by Hon Hing. That hardly helps in terms of reliability of his evidence and the substantiation of Hon Hing’s alleged representation in respect of the state of the counterweight.

131.  In any event, one queries whether such alleged enquiry and answer by mere say-so by the representative of Hon Hing, if ever happened, would have sufficed for the purpose of Jekco’s discharge of its duty. There is no evidence that Jekco sought to consult the maintenance logbook or record of approval documentation at the time. Indeed, there is no dispute that Jekco would have found that record of such works in the form of the maintenance logbook or EMSD record was lacking. However, Chan admitted that Jekco had its registered engineer. There is no evidence of report and consultation with its registered engineer about the discovery.

132.  On balance, it is not established that the Third Parties were in fact aware of the additions to the counterweight incidental to the renovation works to the Lift in 1997 or 2002. Nor is there basis for inferring that either of them ought to have known that. There is also no basis for finding that the Owners are to blame for failure to comply the statutory duty in respect of reporting the renovation works as major alterations.

133.  Further, as discussed, the really relevant question is whether any concern about safety arose out of the state of the counterweight as it was patent to Jekco. Whether or not Jekco should have known about the state of the counterweight since it had taken over as the lift contractor of the Lift in 2008, the fact was that it never actually formed the view that any safety concern arose, and hence its certification of its safety ever since.

134.  Even assuming that Jekco had had such safety concern but gathered from Hon Hing that the renovations to the Lift had been approved by the EMSD, the mere word of Hon Hing in answer would not have afforded Jekco with any basis for treating itself as discharged from its independent duty to properly investigate and to verify as reasonably expected of it as a registered lift contractor as well as under clauses 4.4 and 5 of the 2010 Contract, clause 4.12 of the 2012 Contract, the EMSD Circulars mentioned above as well as clauses 2.3 and 4.1 of the Code (2010). I prefer the expert evidence of Ir Kong to that of Prof Leung in this respect. If any safety concern should arise out of the state of the counterweight as found in March 2010 at the latest, it was the duty of Jekco to address that irrespective of whether what might have accounted for such a state was known.

Discovering further the state of the traction shaft

135.  If there was ever any concern about the state of the counterweight or the same somehow being put to a rest for the time being in March 2010, as Jekco alleges, the picture should become more complicated upon also discovering the state of the traction shaft in late 2011.

136.  By pleading, Jekco denied knowledge before the accident about the traction shaft of the Lift having been trimmed. The experts (including that for the plaintiff) in the Tri-P Report agreed that it was impossible for the maintenance contractor to discover that the shaft of the traction machine had been trimmed in the course of routine maintenance. However, the state of the traction shaft, be it trimming, alteration or modification, should be detectable when the part was actually disassembled under repair. Indeed, in the present case, such repair was called for to address the repeated oil leakage problem of the traction machine.

137.  The oil leakage started in 2011, the third occasion of that happened on 11 October 2011. Visual inspection of the traction shaft on the following day did not reveal any defect. On 13 October 2011, Hon Hing wrote to Jekco to complain about the Lift’s repeated oil leakage problem, and requested for a report on or before 18 October 2011. The report came on 17 October 2011 whereby Jekco categorized the oil leakage as a normal wear and tear problem, and explained the remedial steps taken to address it.

138.  On 18 October 2011, Jekco issued a quotation to Hon Hing for the replacement of the traction machine, saying that:

“但電梯牽引機因物料老化因素，有一定的使用壽命。其中4#電梯日前就因此出現減速箱滲油情況。所以敝公司建議更換4#電梯的牽引機”

Essentially, Jekco explained that due to ageing of its components, the traction machine had a certain lifespan. The oil leakage problem of the Lift was the result of that. Replacement of the traction machine of the Lift was therefore recommended.

139.  On 20 October 2011, Jekco further removed the shaft of the traction machine of the Lift for ultrasound test. The contractor informed Keung on the following day that the traction shaft was not a single piece, but had a sleeve inserted at the seat of the bearing. As mentioned, Keung had suspicion about the form and state of the shaft. Nevertheless, he and Jekco’s contractor resolved to use shielded arc welding to seal up the gap between the sleeve and the traction shaft with a view to containing the oil leakage.

140.  On 27 October 2011, Jekco issued another quotation to Hon Hing for the replacement of the traction machine of the Lift, setting out the same reason and recommendation as before. This was followed by Jekco’s report dated 15 November 2011 on the repair done.

141.  The oil leakage recurred in mid-December 2011, entailing the disassembly of the traction machine of the Lift again for examination by Jekco’s contractor. This time Jekco and its contractor resolved to cast a new sleeve in replacement of the existing sleeve with a view to sealing off the gap between the shaft and the sleeve. In other words, Jekco adopted the state of the traction shaft and repaired it on an “as is” basis. The last repair did manage to stop the oil leakage. However, the accident happened in less than a year later.

142.  Jekco’s pleaded denial of knowledge about the state of the traction shaft prior to the accident cannot be maintained as a matter of fact. However, it is submitted on behalf of Jekco that the Third Parties were also aware of the trimming of the traction shaft beforehand. The basis is that Ir Kong in his oral evidence agreed that such kind of alteration work to the traction machine should entail the suspension of the lift service, which the Third Parties should have known. I do not see the logic. That the work involving trimming of the traction shaft would entail the suspension of the lift service could not possibly afford the inference that suspension of the lift service had to do with such work. As counsel for the Third Parties put it, there could be many repair and maintenance reasons entailing the suspension.

143.  Further, the letters from Hon Hing concerning the condition of the Lift during late 2011, including its plea to the EMSD for assistance in view of the apparent repeated failure of Jekco to cope with the problem, tend to suggest that the Third Parties genuinely had no idea about what was wrong with the Lift or its traction machine at the time.

144.  Keung and, from Keung, Chan came to realise during the repair in October 2011 that the diameter of the traction shaft had been trimmed, and that it differed from the state of traction shaft so far encountered by them. Chan confirmed that in court. Notwithstanding the suspicion about the state of the traction shaft, Jekco did not investigate by obtaining the original geometry of the traction shaft from the manufacturer. In court, Chan explained that he held a different view of the matter from that of Keung. He also sought to explain the apparent lack of investigation by enquiry with his predecessors. He referred to his experience and belief that such enquiry, if made, would not be entertained by what he described as his company’s competitor in the business.

145.  Section 26 of LESO provides that:

“(2) Where, upon any examination under section 21 or 22 or upon any examination in accordance with an order under section 25, the registered lift engineer or registered escalator engineer, as the case may be, is not satisfied that the lift or escalator and all machinery and equipment connected therewith is in safe working order and where, upon any test under section 23 or 24 or upon any test in accordance with an order under section 25, the registered lift engineer or registered escalator engineer, as the case may be, is not satisfied that the safety equipment provided for the lift or escalator is in safe working order, he shall—

(a) if he is of opinion that any further use or operation of the lift or escalator would be, or would be likely to be, dangerous, forthwith report the fact that he is not so satisfied to the Director and to the owner of the lift or escalator; or

(b) if he is of opinion that no immediate danger will arise from the further use and operation of the lift or escalator, report the fact that he is not so satisfied to the owner of the lift or escalator, and where—

(i) within a period of 14 days from the date of such report, the lift or escalator and all machinery and equipment connected therewith or the safety equipment provided for the lift or escalator, or both, as the case may be, has been put in safe working order to his satisfaction, shall give his certificate in the manner provided by subsection (1)(a); or

(ii) upon the expiration of such period the lift or escalator and all machinery and equipment connected therewith or the safety equipment provided for the lift or escalator, or both, as the case may be, has or have not been put in safe working order to his satisfaction, shall forthwith report that he is not satisfied that the lift or escalator and all machinery and equipment connected therewith or the safety equipment provided for the lift or escalator, or both, as the case may be, is or are in safe working order to the Director.”

146.  The Third Parties relied on Jekco as the lift contractor to consider and advise whether and, if yes, what of the Lift might call for the attention of the registered engineer. It followed from its lack of pursuit in investigating the trimmed traction shaft that Jekco did not consider the need to alert the registered engineer to their discovery of the operation of the Lift with the state of its traction shaft. Had that been done, what section 26 of the LESO entails would have been triggered, and a proper assessment of the situation would have been carried out. As mentioned, Chan admitted in court that Jekco had registered lift engineer under its wing at the material times.

147.  More importantly, Jekco adopted its approach without regard to the state of the counterweight which it had also known since March 2010 at the latest, and which admittedly had potential bearing on the traction shaft of such a state in the daily operation of the Lift. When it is now contended that the load created by the state of the counterweight of the Lift was the culprit for the breakage of the traction shaft, what Jekco did or did not do upon also discovering the suspicious state of the traction shaft only invites scepticism.

148.  Jekco proceeded to repair by adopting the state of the traction shaft with the sleeve as discovered without consultation with the manufacturer. In court, Chan was asked but was not quite able to give a satisfactory explanation for adopting such course of action. First, that such course of action would be considered as more prudent than replacing the problematic yet significant part with the original new part sourced from the manufacturer does not sound convincing. Second, Chan explained that it would take time to obtain the supply of original part. However, the fact was that Jekco did not even consider that as an option and therefore never actually enquired with the manufacturer about that. Third, according to Lo’s EMSD statement in 2013 mentioned above, there was no problem of Chevalier in arranging supply of replacement parts for the lift of the kind in question. Last, and importantly, had such enquiry been made, chances are that the shaft with the sleeve was suspected to be not its original design could have been verified and rectified.

149.  Reflective of Jekco’s thinking at the material time, Chan in his evidence sought to explain that the Lift had been certified safe by the successive registered engineers to be safe in the years before Jekco took over as the lift contractor in 2008. When Jekco took over, the safety of the Lift was again certified by the registered engineer. Chan testified that in view of the fact that the Lift had been operating in such condition without accident for years, Jekco would hardly be expected to suggest otherwise to the Third Parties once it had taken over as the lift contractor. Prof Leung supported such a stance in view of the lack of crack on the traction shaft upon the ultrasound test. As mentioned, Ng and Ir Kong held a different view.

150.  I prefer Ir Kong’s view to that of Prof Leung in this respect. Lack of prior accident or surfacing of metal fatigue in the form of crack in the trimmed traction shaft up to the test in late 2011 was not indicative of whether and, if yes, when the shaft in such a state would be taking its toll after that moment. This was particularly so when the evidence of metal fatigue in the form of crack in the trimmed traction shaft would not be detectable unless the traction machine happened to be disassembled and the shaft submitted to a similar test. That was no different from leaving that to chance.

151.  Prof Leung did calculate the chance of failure of the traction shaft in its trimmed state. However, insofar as Jekco as the lift contractor was concerned, the appreciation of safety concern hardly had anything to do with the kind of calculations proposed by Prof Leung. As Prof Leung indeed opined, calculation of stress and stress intensity as well as whether the traction shaft had exceeded its stress endurance limit would be matters beyond the ability of a surveyor, and should be one for a scientist in mechanical engineering. In any event, despite the calculations proposed by Prof Leung and the view of his and Jekco, the shaft did break in about 10 months afterwards as a matter of fact. Whether and, if yes, what should and could have been done to ensure the safety of the Lift should depend on the state of knowledge about the circumstances and how those circumstances were reasonably appreciated by the responsible party(ies) at the material time. Reasonableness hardly depends on the calculations proposed by Prof Leung.

152.  If Jekco in its role as the registered lift contractor under its statutory, contractual and general common law duty mentioned above is allowed to rely on the certification of safety of the Lift by the past lift contractors and the lack of previous accident, one wonders why the Third Parties, as lay parties which contracted and put Jekco in its role as well as relied on it for the execution of the maintenance of the Lift in compliance with the statutory duty on their behalf, would have been in a less advantageous position to plead the same on the basis of the conclusion of the lift contractors. What basis Jekco now has for seeking to place the blame for the accident on the Third Parties, one may ask.

Jekco’s recommendations

153.  Jekco did take the initiative to recommend to the Third Parties for the replacement of the traction machine. Whilst that exceeded the scale of the necessary replacement recommended by Ir Kong, one may say that had the Third Parties resolved to adopt Jekco’s recommendation in time, the accident would have been prevented. However, before liability arises from the Third Parties’ failure to do so, one must look at the context in which they were advised to consider the recommendation.

154.  In Yau Po Shan v The Express Lift Co Ltd & Anor[2019] HKDC 1495, the plaintiff was injured in the lift when it suddenly plunged and jerked twice before stopping below the lobby floor. She sued both the lift contractor and the management company of the building. It was found that the accident was caused by the failure of the relay for drive motion signaling. The court found that the lift contractor was negligent in failing to inspect and to maintain the relay properly despite knowledge about the condition of the relay 20 months prior to the accident. The court found that the management company was not liable as the lift contractor had never suggested to it that it was unsafe and dangerous to allow the lift to operate without replacing the relay. The circumstances pointed out by the court were:

“130. One should, I think, first observe the followings about the contents of the Report:

(1) D1 [the lift contractor] had never suggested in it that the lifts of the Estate were unsafe or dangerous to be used or that they should be replaced at once without delay.

(2) The recommendations were put forward as renewal (更新) or improvement (改善) (the Lift has, after all, not been replaced for at least 18 years).

…

131. One year after the Report, the overall test status of the Lift, one further observes, was still marked “pass” in the Test Report. The items to be followed up did not include the recommendations in the Report. Hence, there seems to be no cause or urgency even by Mar 2011 to implement these recommendations at substantial costs. Even allowing for the happening of the 5 Incidents in Oct 2011, one wonders objectively whether reasonable time had expired by the Accident for D2 to follow them up with the IO.”

155.  In its recommendation and quotations for the replacement of the traction machine mentioned above, Jekco never actually alerted the Third Parties to any safety concern that could arise out of allowing the Lift to continue to operate on the traction shaft in its suspected non-original but trimmed state with the sleeve when the state of the counterweight, which had potential bearing on the operation of the shaft in such a state, was also known to Jekco. By failing to accept the recommendation in those terms, the Third Parties did not disregard any safety risk to which they were not alerted. The circumstances, in my judgment, do not enable Jekco to put the blame on the Third Parties for such failure.

156.  There is dispute between the parties as to whether Jekco, if it considered that it should be done, could have proceeded to replace the traction machine anyway. This depends on the terms of the contract between the parties, which is a matter of construction. Properly construed, clause 5.9 of the 2010 Contract provided that Jekco agreed to supply work and material for the replacement of machinery parts of the Lift occasioned by wear and tear and not by human act/damage. Similar provisions existed under clauses 5.5.6 and 5.5.7 of the subsequent 2012 Contract. Though the construction of the terms of the contract is strictly a matter for the court, Prof Leung stated a similar understanding of these terms of the contract in his written opinion. He took the view that the state of the traction shaft was the product of human act.

157.  However, Jekco denies any contractual obligation at all to replace for free the traction machine come what may, ie even in the event of normal wear and tear. In this respect, what Chan put forward in his evidence however was no more than his personal view of whether such obligation was reasonable with reference to what his company charged monthly fee. Clearly, commercial wisdom has no place in construing the terms of a concluded contract as a matter of fact. Nor has any view of the court as to whether and, if yes, what would have been reasonable for the contracting parties.

158.  That said, what Prof Leung qualified in his opinion in this respect mentioned above is not without basis as a matter of fact. What led the Third Parties to argue with reference to the contractual obligation of Jekco to proceed with the necessary repair and replacement instead of leaving it to the Third Parties to decide is Jekco’s own case that the problem that needed to be addressed at the material time was ordinary wear and tear of the traction machine. As such, the contractual provisions would have supported the Third Parties’ argument. However, the fact as found, which the Third Parties accept, was that the traction shaft had been improperly modified, and hence human act/damage for the purpose of the relevant contractual provisions. There is therefore no need to labour further on this aspect of the dispute between the parties. The Third Parties would have been responsible for paying for the repair.

159.  The Third Parties contend that had Jekco alerted them to the problem and advised them properly, the problem should have been addressed by replacement of the shaft and, pending that, suspension of the operation of the Lift. Such stance has the support of the opinion of Ir Kong. That in my view would also have aligned with what the governing statutes mentioned above and the common law duty on both sides would expect in the circumstances.

160.  However, the experts differ in their opinion as to whether the traction shaft could be replaced instead of the entire traction machine. Prof Leung approached this issue on the basis that the traction shaft was an integral part of the traction machine which could not be singled out for replacement. The proposition, it appears to me, was not adequately investigated when the traction machine was made of various components with various integral significance. One should note that in the Tri-P Report, Prof Leung actually joined the other experts in agreeing that the traction shaft should be replaced, albeit in the context of curbing the oil leakage problem.

161.  It should not have to be a matter of debate between the experts but a matter of factual investigation. As mentioned, Lo of Chevalier in his EMSD statement confirmed that his company as the Hong Kong agent of the manufacturer of the model of the Lift had by then no difficulty in sourcing and supply of the machinery parts from the manufacturer for the purpose of repair and maintenance for the Lift. There is no evidence of actual enquiry at any time since the accident about whether the original traction shaft could have been sourced for the purpose of repair. As to the actual repair, the incidental statutory requirements to ensure its propriety and safety would have set in.

162.  Ir Kong opined that the traction shaft should and could have been replaced. With the replacement of the bearing, the cost was estimated to be about HK$30,000 as opposed to over HK$100,000 for the entire traction machine. Further, replacement of the entire traction machine would have entailed more complexity and considerations as well as time, but that was not considered to be necessary in the circumstances of the present case. On balance, I prefer the opinion of Ir Kong to Prof Leung in this respect.

163.  All the circumstances considered, I do not find that the Third Parties should be to blame for apparently failing to adopt the recommendations of Jekco for the replacement of the traction machine. On the contrary, the Third Parties have cause for complaint against Jekco, which they relied on, for failing to properly and adequately advise what potential safety concern arising out of the state of the traction shaft and the counterweight, both of which were patent to Jekco since late 2011, as well as how to address such concern.

164.  Jekco asserts that the Third Parties were also advised to install rope grippers during a meeting at a restaurant during the Chinese New Year of 2012. According to Chan, rope grippers were recommended for the 2012 improvement works. Leung denied such advice. The improvement works which Jekco was contracted in 2012 to provide related to the 4 cargo lifts instead of the Lift. There is lack of contemporaneous evidence documenting such alleged advice as opposed to the recommendation and quotations for the replacement of the traction machine of the Lift discussed above.

The Guidelines

165.  The Guidelines made it clear that they aimed to help the “responsible persons” for lifts to implement enhancement and modernization solutions in the context of the LEO. As mentioned, the provisions under the LEO regulating the duties of the “responsible persons” as defined, ie the Third Parties included, had yet to come into effect as at the date of the accident. The recommendations of the Guidelines which the Third Parties are said to have failed to follow are also not particularized clearly, if at all, as a matter of pleading.

166.  In any event, the Guidelines repeated the duties of the “responsible persons” for lifts under the LEO to (i) ensure regular maintenance by a registered ift contractor; (ii) to proactively identify improvement needs for existing lifts through the process of regular maintenance; and (iii) if any of the improvement needs is identified, to implement modernisation works to enhance the safety, reliability and comfort of the existing lifts. On this basis, recommendations for the enhanced solutions were put forward. That said, the Guidelines also made clear that the “responsible persons” had full discretion as to whether or not to adopt the recommended enhanced solutions. Should they decide to do so, they were advised to consult their registered lift engineer for a review.

167.  By letter dated 15 November 2011, the EMSD copied to Jekco the Guidelines distributed to lift owners. The letter advised Jekco as the lift contractor to make reference to the Guidelines and encouraged the owners and property management to improve the safety performance of their lifts and to review the feasibility of modernising the existing lifts. The enhancement solutions proposed did not include the replacement of problematic or potentially problematic parts of the lifts but the installation of modern safety devices. Further, the letter from the EMSD to Jekco was dated the day when Jekco had already made its recommendation and issued its quotations for the replacement of the traction machine. In other words, none of those was done in the context of the Guidelines. This should also be apparent from the wordings of the recommendations and quotations issued to the Third Parties.

168.  Importantly, nothing in the Guidelines suggested departure from the situation that whilst the Third Parties were under their duties as the owners and property management in respect of the safety of the lifts, it remained for the lift contractor which they engaged to advise them on the implementation of the enhancement solutions. In other words, there is no basis for taking a different view of the matter as discussed above, namely that the Third Parties had contracted and delegated to reasonably competent registered lift contractors, including Jekco, to perform the duties in respect of the maintenance of the Lift to ensure its safety in compliance with the applicable statutes and guidelines on behalf of the Third Parties. The Third Parties did not possess the relevant technical knowledge and expertise, precisely for which they had to and did rely on the registered lift contractors for such compliance.

Conclusion

169.  All the circumstances considered, I do not find that as a matter between Jekco and the Third Parties, the latter are to blame and should be liable for contribution towards the former’s liability in respect of the damage to the plaintiff as a result of the accident.

170.  Thought may arise to the effect that Jekco somehow walked into a trap where the state of the Lift had latent safety issues attributable to its predecessor(s) as the registered lift contractor(s) of the Building. I think by now the counter-argument should be clear.

171.  First, the statutory and common law duty on the part of the lift contractor discussed above clearly arose on the part of the lift contractor on the basis of the state of the lift as of the time of takeover of the maintenance responsibilities. Such duty is independent from the contractor’s predecessors. In the absence of proof of knowledge about the state of the lift on the part of the owners or property management, which has been withheld from the lift contractor, the contractor would be expected to possess the necessary expertise and resources to satisfy itself whether or not the lift, as it then was, was safe. If not, it would be its duty to advise the owners and the property management.

172.  Second, it follows from the above that Jekco’s claim in the present action is peculiar. Whilst, as it is never denied, the Third Parties were under their non-delegable duty of care as the parties in occupation and control of the Lift to the plaintiff as its passenger, the plaintiff chose not to claim against them. Had she done so, one would have expected that the Third Parties would join Jekco as the third party for contribution and indemnity on the basis that the Third Parties had entrusted and delegated to it the execution in discharge of the duty to ensure the safety of the Lift. In the circumstances so far discussed, I am not surprised that the plaintiff decided not to direct her claim against the Third Parties.

173.  Third, now faced with the plaintiff’s claim, Jekco seeks indemnity or contribution in respect of the same damage from the Third Parties. This is the reverse of what one would have expected. The Third Parties contend that Jekco is effectively shifting the blame for what happened in its execution of the duty to ensure the safety of the Lift back to them. All the circumstances considered, I agree.

ENTITLEMENT OF JEKCO TO CLAIM UNDER THE CLCO

174.  The above conclusion very much disposes of Jekco’s claim in the third party action. That said, a couple of contentions in respect of the right of the parties to seek contribution or indemnity in respect of any damage caused to the plaintiff deserve some discussion.

The CLCO

175.  The Third Parties raise an argument in respect of the entitlement of Jekco to premise its claim on the CLCO. If accepted, such argument, it appears, could have entitled the Third Parties to mount a striking out, which has admittedly never been taken out.

176.  Section 3(1) and (4) CLCO states:-

“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.”

177.  In issue is the proviso or assumption under section 3(4) for the purpose of founding the third party liability. In Li Shiu To v Cheung Pik Ng (No 2) [2018] 1 HKLRD 934, the court explained:

“26. In respect of the concept of a person being liable in respect of a certain damage suffered by another, s. 2(3) of the Ordinance provides that:“A person is liable in respect of any damage for the purposes of this Ordinance if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise).

…

31. In short, the function of the statutory assumption is to ensure that there is a reasonable cause of action by the plaintiff against the defendant such as to (1) make the defendant liable in law to the plaintiff in respect of the damage, and (2) enable the defendant to further make a claim for contribution in respect of the same damage against a third party despite the fact that there was a settlement between the defendant and the plaintiff.

32. At the end of s.3(4) of the [CLCO] is a proviso, ie ‘provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.’…This is, as was said by both the Law Reform Commission of Hong Kong and the UK Law Commission, to emphasise amongst others, the bona fide element of the settlement. An example was given to illustrate the purpose of the proviso:

“Thus if D1 settles with P in a situation where D1 was clearly not liable to P, even if P could establish the facts relied upon, D1 could not claim contribution from D2…”

33. On a proper interpretation of s.3(1) and (4), D1 must prove among other things, that TP is liable to P (in the sense that P is entitled to recover compensation from TP) and that such damage is the same damage for which D1 is allegedly liable to P. Section 3(1) is subject to the following provisions of s.3, including s.3(4) which requires the settlement to be bona fide.”

178.  Hence, the key in section 3(4) is that the claim for contribution or indemnity must be premised in respect of the damage on the basis of the facts asserted by the plaintiff to found his claim against the defendant. This explains why the court in Li Shiu To accepted the argument that the defendant does not need to prove in the third party action such facts which presumably overlap with those in the main action. In the case of settlement between the plaintiff and the defendant, such facts on which the cause of claim in respect of the damage in question are to be identified would depend on the circumstances. The court in Li Shiu To, endorsing the judgment of Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, explained:

“36. …At [69] of the judgment, Lord Hobhouse had this to say:

[69] Section 1(1) of the 1978 Act requires the person claiming a contribution to prove that he was a ‘person liable in respect of’ the damage suffered by the injured party. But subsection (4) qualifies this where the person claiming the contribution has made a bona fide settlement or compromise of the claim against him, in which case all he need prove is that he would have been liable ‘assuming that the factual basis of the claim against him could be established’. This raises the question: how is the factual basis of the claim against him to be identified? The answer to this question must obviously depend upon the circumstances. The claim may have been settled or compromised without the commencement of legal proceedings or it may only be settled later after the exchange of pleadings or during the trial. Some proceedings may be governed by strict procedural rules; others may allow a party to inform the other of the factual basis of his claim with greater informality. Pleading may be dispensed with. In the Commercial Court factual allegations can be particularised informally in a number of ways.

[70] In the present case the factual allegations in the pleading were more than sufficient to lay the factual basis for a liability of the partnership under section 10 of the Partnership Act 1890 in the tort of deceit. So, once it is appreciated that it is a case of the vicarious liability of the partnership for the tort committed by one of the partners in the course of the partnership business no further problem arises under this head. But I would not wish it to be thought that material other than pleadings may never have to be looked at. The variety of circumstances to which I have already referred demonstrates this. Further, if the state of the pleadings is to be decisive, a defendant wishing to compromise a case may have to insist that the claimant first amend his pleading so as to make express the basis of claim which justifies the settlement, even though neither would be taken by surprise nor able later to resist appropriate amendments. The purpose of subsection (4) is to facilitate bona fide settlements without prejudicing the rights of the paying party to claim a contribution from another. Of course the factual basis for the claim has to be identified in order to enable the remainder of section 1 to be applied but it would be mistaken to introduce inappropriate formalities into the criterion required by the subsection.

Lord Hobhouse’s statement was the context of the liability of a defendant to the plaintiff in the main action, as opposed to the liability of the third party to the plaintiff in the contribution proceedings.

37. On a proper construction of the statutory provisions, I agree with [counsel for D1]. Their construction tallies with the legislative intent expressed in para.45 of the UK Law Commission Report, especially the first of the three points therein. Accordingly, D1 does not have to prove his own breach of duty because of the statutory assumption, but he has to prove other elements of the dishonest assistance claim against TP.”

179.  In Li Shiu To, the plaintiff commenced the main action against the 1^st defendant, as the executor, for failing to collect and distribute part of the deceased’s estate. The 1^st defendant joined the third party into the proceedings. The main action was then settled between the plaintiff and the 1^st defendant. Subsequent to the settlement, the 1^st defendant filed a statement of claim in the third party proceedings. Whilst maintaining his pleaded defence in the main action, which denied factual basis of the plaintiff’s case as well as any knowledge or conduct in breach of his duties, the 1^st defendant claimed against the third party for dishonest assistance. The problem of the 1^st defendant’s claim for contribution was pointed out by the court:

“38. As in all situations where assumptions are made, those assumptions can be displaced by evidence to the contrary. The court is not precluded from considering materials beyond pleadings in the main action: Dubai Aluminium, [70]. And, as in all cases, even those in which he relies on the statutory assumption, a party is bound by his own pleadings.

39. In the present case, the [third party statement of claim] was filed after the settlement….[The 1^st defendant]’s express denial (in the Main Action, the third party proceedings and his witness statements) that the 801 Shares fell within the Estate meant that there could not be a failure to collect them in. Hence it could not be said that [the 1^st defendant] had put himself in a position of conflict, thereby causing loss of the Estate’s property by reason of the 1989 Acts. In fact, as Mr Joffe stated in his oral closing submission, if [the 1^st defendant] had amended the [third-party statement of claim], [the 1^st defendant] would be contradicting his own witness statement.”

180.  In the present case, insofar as liability is concerned, Jekco denied by pleading the contentions of the plaintiff in respect of the cause of and liability for the accident, and contended that the Third Parties should be solely liable. Notwithstanding that, nothing prevented Jekco from settling with the plaintiff, which it did.

181.  However, when it comes to his entitlement under the CLCO to claim for contribution or indemnity against the Third Parties in respect of the same damage in case of settlement of the main action, Jekco would have been expected to claim against the Third Parties on the basis of the facts founding the claim and its liability in the main action, which are assumed to have been established. In Li Shiu To, the court referred to the UK Law Commission’s Law of Contract: Report on Contribution (Law Com No 79) (1977) and explained:

“51… As to liability, D1 would have to establish that D2 [the third party] was liable to P, and the case against D2 would presumably, be much the same whether it was advanced by P in the main proceedings or by D1 in his claim for contribution.”

182.  That is not strictly what Jekco premises for its third party claim. Jekco maintains its denial of the factual contentions of the plaintiff that founded her claim against it. This started with the denial that the cause of the accident was the trimmed state of the traction shaft and Jekco’s failure of its duty incidental to that. In other words, Jekco is denying the very factual premise giving rise to its liability to the plaintiff for asserting its entitlement to lodge the third party claim under the CLCO. Jekco maintained such stance in its factual and expert evidence at the trial of the third party action.

183.  In the circumstances, I can see the force of the Third Parties’ argument that if the claim against them for contribution or indemnity is premised on section 3(4) of the CLCO, then either that it is questionable whether the settlement of the main action may still be said to be bona fide or that Jekco’s case in the third party proceedings displaces the assumption which would have entitled it to lodge the third party claim for contribution or indemnity in respect of the same damage.

184.  The Third Parties also argue that the contribution sought by Jekco against them would not be just and equitable. It would appear that the basis of the argument does not differ materially from the circumstances of the case already discussed above. Contractually, the parties have also agreed on terms to regulate their rights in this respect. By clauses 4.12 and 5.12 of the 2012 Contract, the parties contractually agreed that Jekco would be fully responsible for any loss, damage or injury arising out of its negligence and mistake in work. Jekco further agreed to indemnify Hon Hing against direct loss or expenses incurred as a result of Jekco’s such negligence and mistake.

The Control of Exemption Clauses Ordinance, Cap 71 (“CECO”)

185.  Jekco relies on section 7(1) of the CECO and contends that the Third Parties may not exclude or restrict its liability for personal injuries resulting from negligence by the contractual provisions mentioned above. Section 7(1) provides:

“A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal liability resulting from negligence.”

186.  In my judgment, the reliance on the section is misplaced for the reason that there is simply no such issue of exclusion or limitation of liability being sought by the Third Parties.

187.  In Thompson v T Lohan (Plant Hire) Ltd [1987] 2 All ER 631, the court explained (at 638J-639A) the application of the equivalent UK provision (section 2(1) of the Unfair Contract Terms Act 1977), and had this to say:

“All that has happened is that [the defendant] and the third party have agreed between themselves who is to bear the consequences of [the defendant’s employee]’s negligent acts. I can see nothing in s 2(1) of the 1977 Act to prevent that. In my opinion, s 2(1) is concerned with protecting the victim of negligence, and of course those who claim under him. It is not concerned with arrangements made by the wrongdoer with other persons as to the sharing or bearing of the burden of compensating the victim. In such a case it seems to me there is no exclusion or restriction of the liability at all. The liability has been established by Hodgson J. It is not in dispute and is now unalterable. The circumstance that the defendants have between themselves chosen to bear the liability in a particular way does not affect that liability; it does not exclude it, and it does not restrict it. The liability to the plaintiff is the only relevant liability in the case as it seems to me, and that liability is still in existence and will continue until discharge by payment to the plaintiff.”

188.  In the present case, whilst the CECO precludes the Third Parties from excluding their liabilities for negligence towards the plaintiff (which, as discussed, was non-delegable), it does not preclude the Third Parties from contracting with the lift contractor for the latter’s indemnity of their liabilities.

189.  It follows that assuming that the Third Parties had been faced with a claim by a plaintiff for breach of their non-delegable duty, it would have been consistently the contractual right of the Third Parties to seek indemnity in respect of such damage against Jekco on the basis of the latter’s negligence pursuant to clause 4.9 of the 2008 Contract, clause 4.9 of the 2010 Contract as well as clauses 4.12 and 5.12 of the 2012 Contract.

ALTERNATIVE SCENARIO

190.  For the sake of completeness, in the event I am wrong above so that the Third Parties should nevertheless be liable, I am of the view that their fair share of responsibility should not exceed 20% of the liability to the plaintiff in respect of her damage.

THE COUNTERCLAIM

191.  It was Jekco which was in breach. The Third Parties counterclaim against Jekco for negligence and/or breach of the 2012 Contract in failing to repair or replace the traction shaft of the Lift and thus causing the accident and damage to the Lift. They claim that Jekco should be fully liable for the cost and expenses for the subsequent repair of the Lift pursuant to clauses 4.12 and 5.12 of the 2012 Contract.

192.  The Third Parties also claim against Jekco for contractual compensation for the cessation of service of the Lift at the daily rate of HK$1,000 during the period between the date of the accident, ie 9 November 2012, and the date when the EMSD certified the resumption of service of the Lift, ie 9 October 2014.

193.  Jekco contends that the Third Parties did not put forward such counterclaim herein in Jekco’s action DCCJ 744/2014 subsequent to the accident, which was settled. In any event, the cost of repair claimed is excessive and/or partly for improving and upgrading the Lift. Further, the period of suspension of the use of the Lift exceeds the usual time for repair as well as that claimed in DCCJ 744/2014.

DCCJ 744/2014

194.  In DCCJ 744/2014 commenced in February 2014, Jekco claimed against Hon Hing for the latter’s early termination of the 2012 Contract at the end of November 2013. It claims for accrued but outstanding service fees up to the termination as well as one month’s service fee in lieu of notice of termination. As to that, Hon Hing contended that such payments had in fact been made and received by Jekco, which was therefore not entitled to the claim the same.

195.  Jekco also claimed for outstanding cost of test done to lift no 8 and consolidation works done to the Lift at the instruction of Hon Hing subsequent to the accident. As to the former, Hon Hing denied liability on the basis of alleged promise by Jekco not to charge for the test if the same was rejected by the EMSD, which turned out to be the case. As to the latter, Hon Hing denied liability as a matter of contract.

196.  By way of counterclaim, Hon Hing claimed against Jekco in DCCJ 744/2014 for repayment of overpaid service charges in respect of the period of suspension of the Lift after the accident. Such claim was premised on the alleged implied term of the 2012 Contract.

197.  Subsequently, the proceedings in DCCJ 744/2014 was settled. Whilst there was a confidentiality agreement between the parties, the terms of the settlement were disclosed as obviously relevant for the purpose of the parties in the present action.

198.  The order by consent in August 2014 recorded that Hon Hing would pay a sum of HK$90,000 (inclusive of interest and costs) to Jekco, and the parties would discontinue their claim and the counterclaim respectively. Further the parties agreed to “waive any further rights to commence any further claims against each other in relation to and/or arising from the subject dispute of the present proceedings”.

199.  Jekco contends that Hon Hing did not put forward in its counterclaim in DCCJ 744/2014 the claim now set out in the Third Parties’ counterclaim in the present action. Jekco does not say how that should affect the Third Parties’ entitlement as a matter of law. The question, it seems to me, is whether or not the counterclaim in the present third party action amounts to further claim against Jekco in relation to and/or arising from the subject dispute of DCCJ 744/2014.

200.  Whilst it was premised on the contract between the parties, the subject dispute of DCCJ 744/2014 was Jekco’s entitlement to its contractual service fees and outstanding service charge upon early termination of the 2012 Contract as well as the related entitlement of Hon Hing to recover from Jekco contractual service fees paid during the period of suspension of the Lift after the accident. Whilst reference to the accident was pleaded by Hon Hing, no issue of loss and property damage consequential upon the accident was raised.

201.  The circumstances do not impress me that the Third Parties should be prevented by reason of the settlement of the subject dispute in DCCJ 744/2019 or some form of issue estoppel, which was not really advanced in Jekco’s contention, from advancing its counterclaim for consequential loss and damage for breach of contract and negligence causing the accident.

The repair cost

202.  Insofar as the claim is based on clauses 4.12 and 5.12 of the 2012 Contract is concerned, in view of the finding that the accident was attributable to the traction shaft having been improperly modified from its original state, which was human act or damage, Jekco was under no contractual obligation to repair for free as in the case of normal wear and tear. Counsel for the Third Parties accepted that during closing.

203.  The Third Parties produced the invoice from the subsequent contractor responsible for repair of both the Lift and lift no 8, evidencing their cost of replacement/improvement at the sum HK$1,035,261.60. On the basis that the two passenger lifts were of the same design and model, half of the cost is taken to be incurred for the Lift, ie HK$517,630.80. Of that, the Third Parties claim a sum of HK$244,750 for the following repair of the Lift:

(1)	The traction machine	HK$112,800
(2)	Counterweight installation	HK$10,000
(3)	Buffer	HK$12,000
(4)	2-in-1 safety edge	HK$3,800
(5)	CCTV system	HK$4,000
(6)	Lift cage and frame renovation	HK$102,150

204.  On the basis of the expert opinion of Ir Kong, replacement of the traction shaft, had it been done, would have cost about HK$30,000. The Third Parties should be entitled to claim only the extra cost of repair.

205.  Jekco argues that the repair cost was excessive. It does not appear to be the case if this is compared with the quotation of Jekco after the accident in 2013. Jekco argues that the repair involved improvement. I can see the possibility of that in respect of items (4) and (5) of the repair in view of lack of findings or evidence of such damage. As to (6), the finding was that the interior ceiling of the lift car dropped upon the accident.

206.  In the circumstances, I do not allow items (4) and (5) but would allow a lump sum of HK$20,000 for part of item (6). Hence the amount of HK$154,800 – 30,000 = HK$124,800.

Contractual penalty

207.  The Third Parties rely on clause 5.19 of the 2012 Contract for their claim for contractual penalty. The clause provided that:

“若因中標判商過失或失誤導致升降機服務嚴重延誤或停止，中標判商須承擔第3.4項「逾期完工罰款」之責任 (每天港幣1,000元正)。”

Essentially, in the event of serious delay or cessation of the lift service due to the mistake or negligence of the contractor, the contractor should be responsible for the penalty set out in clause 3.4.

208.  There seems to be no dispute that the reference to clause 3.4 in clause 5.19 was a typographical error as the provision fitting the description should be clause 3.5 instead, which read:

“逾期完工罰款：每天港幣$1,000 (只適用於改善工程)”

209.  The combined effect of clauses 5.19 and 3.5 was that Jekco agreed to abide by the contractual compensation obligation under clause 3.5 in the event of delay or cessation of service of the lifts due to its mistake or negligence. Clause 3.5 set out the calculation of the compensation at the daily rate of HK$1,000.

210.  Jekco points out that clause 3.5 made it literally clear that this applied in respect of improvement works only. Indeed, clause 3.5 formed part of the terms of the 2012 Contract concerning the improvement works to the 4 cargo lifts and not the passenger lifts. However, when it came to clause 5, which was the part concerning the maintenance of all the lifts of the Building, clause 5.19 expressly required Jekco to undertake similar obligation to compensate according to the calculation set out under clause 3.5. In other words, clause 5.19 governed the performance of the part of the 2012 Contract concerning maintenance of all the lifts by incorporating clause 3.5, and thus making it applicable for such purpose.

211.  The dispute in respect of the quantum of contractual compensation for cessation of use of the Lift lies in the period of cessation. The Third Parties say that was from the date of the accident, ie 9 November 2012, to the certified resumption of the operation of the Lift on 9 October 2014. Jekco says what Hon Hing alleged in DCCJ 744/2014 was a much shorter period.

212.  In DCCJ 744/2014, what Hon Hing claimed by way of counterclaim was repayment of overpaid service charges to Jekco in respect of the period of suspension of the Lift. The period covered the date of the accident up to 28 November 2013. However, that was the date referable to the premature termination of the 2012 Contract. It was on this basis that Hon Hing counterclaim for overpaid service charge under the 2012 Contract up to its termination. In other words, that was not referable to, or excluded, the suspension of the operation of the Lift beyond that as a matter of fact. Nor was that referable to the contractual damage provision.

213.  Insofar as suspension of service of the Lift is concerned, any perceived reasonable repair period is not determinative as resumption of service would have to be subject to the EMSD approval. Indeed, the EMSD issued Form LE8 certifying the resumption of the service of the Lift only on 9 October 2014. There is no contrary evidence. Therefore, the contractual compensation would have to be assessed at the daily rate up to that date.

214.  Other than the above, there is no contention in respect of the enforceability of the contractual provision on the basis of genuine pre-estimation of damage or penalty. Nor is there contention that credit should be given between the claim for repair cost and the agreed compensation for suspension of service of the Lift.

Conclusion

215.  The Third Parties succeed in proving their counterclaim. That would be a sum of HK$124,800 + 700,000 = HK$824,800.

ORDER

216.  The claim by Jekco against the Third Parties is dismissed.

217.  Judgment is entered on the counterclaim in the total sum of HK$824,800 with interest at the judgment rate from the date of the counterclaim (28 February 2018) until payment.

218.  Following this event, I make a nisi order that Jekco shall pay the Third Parties their costs of the third party action, including any costs reserved, to be taxed if not agreed with, for the avoidance of doubt but with no disrespect, certificate for one counsel. In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order.

Mr Wong Chi Kwong, instructed by Paul C K Tang & Chiu, for the defendant

Mr Gary K H Chung and Ms Flora Lam, instructed by Cheng, Yeung & Co, for the 1^st and 2^nd third parties

HCPI 956/2015

[2021] HKCFI 1095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 956 OF 2015

________________________

________________________

________________________

DECISION

________________________

I. INTRODUCTION

1.  The plaintiff (“P”) was an employee of an estate agency who worked on the 18^th floor of Fook Yip Building, 53-57 Kwai Fung Crescent, Kwai Chung, New Territories (“Building”). The defendant (“D”) was the maintenance contractor of the 8 lifts at the Building (collectively, “Lifts”).

2.  It was P’s case that at/about 9:35pm on 9 November 2012 she took Lift No 4 (“Lift”) at the 18^th floor of the Building to go to the ground floor. When the Lift descended to about the 10^th floor, it suddenly accelerated in an over-speed and uncontrolled manner until it hit the lift shaft structures at/about the 28^th (top) floor and then came to a stop. P claimed the sudden impact caused the metal ceiling of the Lift to fall off, and her neck, shoulders, back and right foot were struck by unknown objects (“Accident”). P was subsequently rescued from the Lift.

3.  On 10 November 2017, D and the Electrical and Mechanical Services Department (“EMSD”) carried out visual check of the overall Lift system, and found (a) the counterweight buffer was hit by the counterweight (“CWT”) and all suspension ropes were slackened due to overshoot of the Lift, (b) the broken shaft of the traction machine (“Traction Shaft”) was found near the position of the traction sheave as viewed from the gearbox opening, (c) the traction sheave was found in an inclined position, and (d) 2 bolts detached from the traction machine were found in the machine room.[1]

4.  The broken Traction Shaft with associated gearbox were sent to EMSD headquarters. Pursuant to EMSD’s request, D arranged for a third party surveyor Victory Harmony Limited (“Victory”) to conduct a weight test to measure the total weight of the lift equipment acting on the traction sheave. The total weight of the lift car (“LC”), CWT, hoisting ropes and compensation chain of the Lift was found to be 4,325kgs with tolerance ±10kgs.[2]

5.  Further examination was done on 3 December 2012 by an independent expert. As recorded in EMSD’s Final Investigation Report dated 21 May 2013 (“FIR”) prepared by E&M engineer Mr Ng Tak-hei (“Mr Ng”) of EMSD’s General Legislation Division, according to measurement of the exposed section of the Traction Shaft and examination of the fracture surface, the following were inter alia observed: (a) circular machining marks, (b) crack propagation on the solid core of the shaft, and (c) clear signs of heat damage around the outer ring of the shaft.[3]

6.  According to D (as recorded in paragraph 4.4 of FIR):

7.  Mr Ng opined in FIR as follows:

8.  On 8 September 2015 P commenced the main action against D for negligence and/or for breach of the common duty of care by D, its agents and/or servants, and on 12 June 2017 P filed her Amended Statement of Claim (“ASoC”). D accepted that an accident happened on 9 November 2012 when the Lift carrying P as passenger (who intended to go from the 18^th floor to the ground floor of the Building) ascended until it stopped upon impact at the top of the lift shaft, but D disputed liability by filing its Amended Defence on 5 July 2017 (“ADefence”).

9.  On 28 September 2017, D filed a Third Party Notice (“TPN”) against 1^st TP and all owners of the Building (“2^nd TP”) (collectively, “TPs”). According to the order of Master Roy Yu dated 9 November 2017, the TPN stood as D’s statement of claim in the third party proceedings. TPs also admitted that P met with an accident on 9 November 2012 when she took the Lift, but they disputed liability by filing their Amended Defence and Counterclaim (“AD&C”) on 27 August 2019. On 5 September 2019 D filed its Amended Reply to the AD&C (“AReply”), and on 10 October 2019 TPs filed their Amended Rejoinder to the AReply (“ARejoinder”).

10.  According to the 4^th affirmation of D’s solicitor Tang Chi Keung (“Tang”) filed by D on 7 October 2020 to support the D/TPs Expert Summons referred to in paragraph 37 below (“Tang 4^th Aff”), a core issue in dispute in the third party proceedings was whether there had been major alterations to the Lift that increased the overall load/weight of LC and CWT, which 1^st/2^nd TPs failed to inform EMSD / D prior to 2008[4] and which compromised the Lift’s Traction Shaft.

11.  By the order of Master Roy Yu dated 9 November 2017, (a) TPs were granted liberty to appear and to take part at the trial of the main action as the trial judge shall direct and they shall be bound by the result of such trial, and (b) subject to direction by the trial judge, the question of TPs’ liability for contribution or indemnify to D be tried after the trial of the main action.

12.  On 14 March 2018 P filed a summons for leave to join TPs as the 2^nd/3^rd defendants in the main action, but on 17 April 2018 Master Roy Yu granted leave for P to withdraw such summons.

13.  The present action had been set down for trial. The pre-trial review was scheduled to be heard on 10 December 2021, and the trial was scheduled to commence on 9 March 2022 with 8 days reserved.

II.     FACTUAL WITNESSES

14.  The factual witnesses at trial would be (a) P (who had given 2 witness statements dated 21 November 2016 and 29 April 2017), (b) D’s director and general manager Mr Chan Tak Wah (who had given 2 witness statements dated 12 January 2017 and 7 March 2019, “Mr Chan”), (c) D’s director Mr Keung Yuk Hon (who gave a witness statement dated 2 May 2017, “Mr Keung”),[5] and (d) 1^st TP’s property manager Mr Yeung Yiu Kei (who gave a witness statement dated 12 March 2019, “Mr Yeung”).

15.  According to Mr Yeung’s witness statement dated 12 March 2019 (“Yeung Witness Statement”),

“6. [The Building]的8部升降機[ie Lifts]約於1986年左右由[Chevalier]負責安裝，並於1987年左右開始運作。於1987年6月至1997年7月期間，[Chevalier]為[the Building]的升降機[ie Lifts](包括[the Lift])的保養承辦商，並負責提供檢查/保養/維修服務。於1997年7月至2007年12月31日期間，由[Holake]接管升降機的檢查/保養/維修服務工作。由2008年1月1日起，由[D]負責升降機的檢查/保養/維修服務工作，直至2013年11月29日。上述幾間升降機公司均以全保形式為[the Building]提供升降機的檢查/保養/維修服務工作。

7. 據本人所了解，[Holake]曾於2006年7-8月期間為[the Lift]進行更換控制組件工程，包括更換電腦控制系統、變壓變頻VVVF升降機驅動器、控制櫃、升降機箱內及升降機大堂㩒手板及顯示屏、升降機控制纜及遙遠監察系統。當中沒有進行任何更換牙箱主軸、主軸燒焊或改裝主軸等工程。於完成上述工程後，[Holake]於2006年9月7日簽署當時[EMSD]指定的表格7。

8. 另外，據本人所了解，因[the Lift]主要的用途是客運，所以為著其美觀裝飾的關係，[the Lift]的內部牆身是裝上玻璃鏡及雲石地台，但因事隔太久，[1^st TP]及[2^nd TP]並沒有存留相關紀錄。無論如何，當升降機承辦商投標前及中標後，它們理應了解[the Building]的8部升降機[ie Lifts]曾經作出的翻新工程。況且，根據保養合約的條款，升降機承辦商要為[the Building]的8部升降機[ie Lifts]作定期保養及檢查，及定期試驗安全設備/年檢，包括安全設備滿載試驗及超載感應系統試驗等。” (my emphasis)

16.  Mr Yeung’s statement dated 16 January 2013 to EMSD with annexures (“Yeung EMSD Statement”) were attached as appendix 1 to the Yeung Witness Statement dated 12 March 2019. In the former statement, Mr Yeung stated as follows:

“問7: 記錄有沒有顯示[Lift] 有沒有作出更新工程, 如裝修等?

答7:    有文件記錄的有由[Holake] 於1997年更換[the Lift] 地下外門及內門同時更換地膠及旁板。另外, [D] 未有大型更新工程, 而[Chevalier] 由於新安裝未有為[the Lift]做任何更新工程。”

III.   EXPERT REPORTS ON LIABILITY

17.  On 16 May 2016, Master Leong granted leave for P and D to adduce expert evidence on liability from Ir Lo Kok Keung (“Ir Lo”) for P and Professor C K Cheung (“Prof Cheung”) for D. On 28 January 2019, Master Roy Yu granted leave for D to replace Prof Cheung with Professor Andrew YT Leung (“Prof Leung”).

18.  On 28 January 2019, Master Roy Yu directed P and D to cause Ir Lo and Prof Leung to address the following issues in their expert reports on liability:

By such order, Master Roy Yu also granted directions for exchange of solo provisional expert reports on liability to be followed by a without prejudice meeting between Ir Lo and Prof Leung both of whom would then compile a joint report.

19.  By the same order, Master Roy Yu granted leave for D and TPs to adduce expert evidence on liability from Prof Leung for D and Ir Kong Sin Ming (“Ir Kong”) for TPs, and for such experts to address on the issues in paragraph 18(a)-(b) above. Directions were also granted for exchange of solo provisional expert reports on liability to be followed by a without prejudice meeting between Prof Leung and Ir Kong both of whom would then compile a joint report.

20.  For the main action, on 1 and 5 March 2019 Ir Lo and Prof Leung compiled their respective provisional expert report (“Lo Report” and “Leung 1^st Report”), and on 19 March 2019 Ir Lo and Prof Leung compiled their joint expert report (“Lo/Leung Jt Report”).

21.  For preparation of the Leung 1^st Report, a copy of the Yeung EMSD Statement was given to Prof Leung. The Leung 1^st Report stated as follows:

“Section 6. Possible Scenario of the Incident

9. It was said in Section 6.1 of the FIR that ‘The broken of the traction machine was the cause of the lift cage to be ascending over-speed unintentionally until hitting the structural ceiling’. I agree with that because [CWT] was heavier than [LC] plus a passenger so that [LC] ascended due to gravity of [CWT].

10. It was said in Section 6.2 of the FIR that ‘The fatigue crack was originated from the outer edge of the shaft that had been trimmed from 100mm to 90mm. The cause of the fatigue crack was due to the stress concentration effect from the damage induced when the original shaft was machined away to create the room for insertion of sleeve’.

11. Fracture has two main stages: crack initiation and propagation. While it is correct to say that stress concentration initiates the crack, stress concentration is not necessarily created by machine damage, it can be created by improper design. In this case, it is the L-shaped radius made by the vertical surface of the 155mm diameter and the horizontal surface of the 90mm diameter after trimming, i.e., the radius at the meeting point of the vertical and horizontal surfaces. Stress concentration occurs when the radius is small. In that case stress concentration can also be created by perfect machining. If Section 6.2 of the FIR were correct, crack could be initiated any place along the machine trimmed shaft and not necessary where it actually fractured.

12. Another important stage is propagation that is determined by an S-N curve. S is the stress level suffered and N is the frequency of S occurrences. There is an S level that will never trigger propagation that is called the endurance limit, below which most mechanical design adhere to. When S exceeds the endurance limit, it is a matter of time that fracture will occur. From his email on 20 December 2012, [Mr Ng] indicated that there was an increase of the load of the counterweight of lift no 8.

13. There is also a photograph, photo 1, showing 10 new bricks added to the old bricks at 50 kg a brick. The increase was 500 kg before the engagement of [D] as the maintenance contractor. The increase in [CWT] should also increase the weight of [LC], that is 380kg for optimal balance. The total increase is 880kg. It was reported in Section 4.6 of the FIR that the total weight of [LC], [CWT], hoisting ropes and compensation chain of [the Lift] was found to be 4,325kg ± 10kg. After deducting the weights of hoisting ropes and compensation chain as calculated by Alex Ng of [D] on 11 December 2012, the weight of [LC] is 1,648kg and [CWT] 2,170kg, totalling 3,818kg. The total original weight should be 3818 – 880 = 2938kg. Therefore, the total increase of load that the shaft was suffering was 880 / 2938 = 30% which is substantial to move S away from the endurance limit. I conclude that the propagation leading to fracture over the years was due to S exceeding the endurance limit by the increased load.”

22.  In the Lo/Leung Jt Report, both Ir Lo and Prof Leung agreed with section 6.1 of FIR, and Prof Leung reiterated his observation in paragraph 9 of the Leung 1^st Report (see paragraph 21 above).

23.  In the Lo/Leung Jt Report, on section 6.2 of FIR, Prof Leung repeated his views in paragraphs 11-13 of the Leung 1^st Report (see paragraph 21 above), and Ir Lo opined as follows:

“3(6). I agree EMSD’s findings in Section 6.2 of FIR. If no welding work on the sleeve ends welded to the main shaft (traction shaft), there would be no high temperature to affect the strength of steel property and main shaft would not break during long period of operation. But after sleeve replacement with two times of welding work on both ends of the sleeve welded to the main shaft respectively on October 2011 and November 2011, the main shaft was broken after a short period (12 months) of operation. It was evident that the strength of the steel was weakened due to the welding work. The welding heating temperature (over 1000ºC) which would damage the property of the steel, consequently weaken the strength of main shaft, resulting in a risk of failure of the main shaft. It was obviously the worker adopted inappropriate repair work method. In practice, one should adopt interference fit by heating the sleeve until inner diameter expand to reach the tolerance limit and put on the main shaft completely inserted into the sleeve and allow the sleeve to cool down by natural.”

24.  In respect of section 5.3 of FIR that stated “[a] sleeve was then inserted, figure 3. The sleeve was machine into a step like feature with a chamfer (sic) so that its larger outer diameter was 115mm, smaller outer diameter was 100mm and its inner diameter was 90mm. The two ends of the sleeve were then welded to the original shaft, and this sleeve served as the seat for bearing”, Prof Leung opined as follows:

“(1) Welding is meant to strengthen a component; (2) If welding were the main cause of fracture, it should have broken at the 90mm diameter welding position rather than the 115mm position which was 25mm away from the failure point; (3) From Ref 1 that the temperature distribution at distance:

0mm 2500^oC

7mm 900^oC

19mm 400^oC

28mm 250^oC

Therefore, at distance 25mm from weld point in this case, it had practically no effect at all.

The root cause of failure was the additional load of 880kg to the shaft rather than temperature.” (my emphasis)

25.  For the third party proceedings, on 6 and 3 May 2019 Prof Leung and Ir Kong compiled their respective provisional expert report (“Leung 2^nd Report” and “Kong Report”). On 14 June 2019, Prof Leung and Ir Kong respectively gave written comments on each other’s provisional expert report (“Leung Comments” and “Kong Comments”). On 19 August 2019, Prof Leung and Ir Kong compiled their joint expert report (“Leung/Kong Jt Report”).

26.  For preparation of the Leung 2^nd Report, a copy of the Yeung EMSD Statement was given to Prof Leung. In the Leung 2^nd Report, Prof Leung reiterated his views in paragraphs 9-13 in the Leung 1^st Report. In the Leung/Kong Jt Report, it was stated as follows:

“6. How did the material alterations to [the Lift] in or about 2006 relate to the metal fatigue found in [FIR] of EMSD.

6.1 Kong opined that the material alterations to [the Lift] in or about 2006 had no relation to the metal fatigue found in the FIR of EMSD according to the report of [Holake] on 13/7/2006.

6.2 Leung opined otherwise as [Mr Ng] of EMSD noted the weight increase of Lift 8 in an email of 20/12/2012 and the EMSD informed [1^st TP] in a letter dated 2/1/2013 that the EMSD noted Lift 8 which had the same design and model as [the Lift] had increased counterweight which might have compromised the integrity of the traction shaft. [1^st TP] was asked by the EMSD on 18/1/2013 to confirm if [CWT] of Lift 8 has also been increased. In the Supplemental Witness Statement of [Mr Chan], the material alteration to [the Lift] in or about 2006 should have included the increase of [CWT]. The total increase of 880kg was quite substantial to trigger the metal fatigue found in the FIR.

6.3 Kong disagreed the above statement 6.2. The letter from EMSD to [1^st TP] did not state any material alteration to [the Lift]. The said material alteration as suggested by [Mr Chan] in his Supplemental Witness Statement including the increase of dead weight of [CWT] and [LC] decoration have not been included in the Contract of modernisation among Holake and IO. Moreover, the total increase of nearly 1000kg in statement 6.2 should be further proved.

6.4 Further, as shown in the Ground Floor Plan in respect of the project of ‘Proposed Factory Building and Extension of Cold Storage Building at K.C.T.L. 341 Kwai Chung N.T.’ (now known as [the Building]) (‘the Plan’) recently obtained from the Building Department and provided by the parties, both [the Lift] and Lift No.8 were built as passenger lifts (For parties’ reference, ‘P. Lift 4’ mean ‘Passenger Lift 4’ and ‘Lift For D P’ mean ‘Lift For Disable And Passenger’ as mentioned in the Plan).

7. Other issues not mentioned in FIR that the experts have some disagreements

7.1 The welding temperature damage on the metallic material that was resolved at the expert meeting as not important.

7.2 The influence of the addition of nearly 500kg decoration weight and 500kg [CWT] on [the Lift] remains an issue to check with manufacturer if the original design had such allowance.”

IV.     PROCEDURAL HISTORY

27.  According to the Tang 4^th Aff, Tang claimed he/D did not know that major alterations had been done to the Lift prior to 2006. Mr Chan’s 2^nd witness statement dated 7 March 2019 stated that on 15 March 2010 D discovered addition of 10 counterweight bricks for the Lift (paragraph 14), and that during investigation of the Accident on 9 November 2012 EMSD’s Mr Ng in the presence of D’s Mr Keung/ Mr Chan and 1^st TP’s Mr Hugo Leung Man Lok and Mr Yeung also counted an increase of 10 counterweight bricks said to weigh about 500kgs for each of the Lift and also Lift No 8 of the Building (“Lift 8”).

28.  Tang also noted the Yeung Witness Statement stated the Lift was mainly a passenger lift and for cosmetic reasons glass mirrors had been installed on its interior walls plus marble flooring, but due to lapse of time TPs had not kept any related records of such renovation works (paragraph 8) (see paragraph 15 above).

29.  The Tang 4^th Aff claimed that since D had limited knowledge of major alterations to the Lift, and there were lack of records to show by whom, when and how major alterations were done, D filed a summons on 17 July 2019 to require TPs to verify their List of Documents filed on 21 September 2018. On 29 July 2019, Master Roy Yu directed TPs to so verify their List of Documents by affidavit and to file/serve supplemental list of documents (also to be verified by affidavit) to disclose newly acquired documents within 28 days. On 21 August 2019, TPs filed Mr Yeung’s 3^rd affirmation to verify TPs’ List of Documents filed on 21 September 2018 and their Supplemental List of Documents filed on 21 August 2019.

30.  The Yeung EMSD Statement with annexures as attached to the Yeung Witness Statement had as its annexure 6 a table titled “福業大廈升降機主要維修記錄”[8] concerning 18 items of maintenance done to the Lifts from April 1995 to May 2019 (“Table”). At the last column of the Table corresponding to those 18 items were various references from “P1” to “P27”. Whilst other columns of the Table described the nature of information set out in those columns, eg date, maintenance item, contractor and fees, there was no such description for the last column of the Table. According to the Tang 4^th Aff, D after some time and as a result of meticulous examination of the Table discovered these references, which D suspected might be references to 27 pages of documents (“27 Pages”).

31.  So on 17 January 2020, D’s solicitors (“DSols”) wrote to TPs’ solicitors (“TPSols”) to request for copy of the 27 Pages. On 5 February 2020, TPs provided the copy 27 Pages to D. Tang claimed pages 2-5 of the copy 27 Pages gave details of renovation/upgrading works done to the Lift in/about September 1997, which showed Holake as maintenance contractor carried out the works set out in paragraph 83(a)(i)-(v) below. Further, page 7 of the copy 27 Pages showed that in/about May 2002 the plastic floor tiles of the Lift were replaced, and paragraph 8 of the Yeung Witness Statement confirmed they had been replaced with marble tiles.

32.  The Tang 4^th Aff noted the Leung 2^nd Report explained the development of fatigue fracture had 2 main stages, ie crack initiation and propagation (paragraph 11), and propagation is determined by the S-N curve whereby S is the stress level suffered and N is the frequency of S occurrences (paragraph 12) (see paragraph 21 above). Prof Leung further explained the S level that will never trigger propagation is the endurance limit below which most mechanical designs adhere to, but when the S level exceeds the endurance limit it will be a matter of time for the fatigue fracture to occur. In paragraphs 6.2, 6.3 and 7.2 of the Leung/Kong Jt Report (see paragraph 26 above), the experts opined on how material alterations to the Lift related to metal fatigue as found in FIR. In essence, Prof Leung opined that material alterations to the Lift increased its total weight by 880kgs, which increase was quite substantial to trigger metal fatigue as found in FIR, but Ir Kong was of the view that the suggested total increase of nearly 1,000kgs should be further proved.

33.  On 21 February 2020, D first raised with P/TPs the issue of obtaining supplemental joint expert reports on liability, but there was no reply. On 17 April 2020, D informed P/TPs it had provided the 27 Pages to the Department of Justice (“DoJ”) on behalf of EMSD. On 13 May 2020, DoJ replied to confirm that Mr Ng had not seen the 27 Pages when he prepared FIR. On 22 May 2020, D sent DoJ’s reply to P/TPs.

34.  On 29 May 2020, as a result of TPs’ disclosure of the 27 Pages, D raised interrogatories to obtain further information from 1^st TP. On 3 July 2020, 1^st TP filed/served its Answer thereto by way of Mr Yeung’s affirmation (“Answer”) which, in short, revealed that Mr Yeung was responsible for compiling the 27 Pages but such documents had not been submitted to EMSD:

35.  On 7 July 2020, DSols and TPSols attended a hearing before this court in relation to a matter arising from the third party proceedings, and at such hearing this court raised some issues concerning the future conduct of the present action. On 31 July 2020, DSols wrote to inform P’s solicitors (“PSols”) about the issues raised by this court, and to propose a temporary stay of the main action pending final determination of the third party proceedings. On 24 August 2020, PSols indicated agreement to such proposal.

36.  TPs claimed that upon careful consideration they disagreed with D’s proposal to temporarily stay the main action and to first proceed with the third party proceedings. Instead, TPs proposed that the main action and the third party proceedings be tried together so that the issues of liability between P and D and between D and TPs be adjudged by the court at the same time. TPs acknowledged it was unlikely P would be found liable for contributory negligence, but noted P still carried the burden to prove her case against D in order to hold D liable for the injuries she suffered, and TPs’ consequent liability to D for contribution/ indemnity (if any) would depend on inter alia D’s liability/culpability to P, ie if P failed to establish liability against D, then no issue of contribution/ indemnity by TPs would arise. TPs were concerned that if the third party proceedings were heard and/or resolved before the main action, then even though D disputed liability vis-à-vis P, determination of D’s claim in the third party proceedings would not determine the issue of liability between P and D (ie whether D was negligent and/or caused / contributed to the Accident) which would remain alive until determination by the court in the main action. TPs therefore considered it would save time and costs for both the main action and the third party proceedings to be tried together so that the issue of liability between P and D and the issue of contribution/indemnity between D and TPs could be duly determined by the court in one go.

37.  Given TPs’ stance, DSols in further correspondence with TPSols requested TPs to consent to D’s proposed amendments to the TPN and to cause Prof Leung / Ir Kong to prepare a supplemental joint expert report. When TPSols did not respond, D filed a summons on 14 September 2020 (“Amend TPN Summons”) for leave to amend the TPN in the manner marked in red as per the draft annexed thereto (“Draft ATPN”) with proposal for directions concerning consequential amendments to other pleadings in the third party proceedings. On 7 October 2020 and upon counsel’s advice, D filed a summons (“D/TPs Expert Summons”) for Prof Leung and Ir Kong to compile a supplemental joint expert report on liability for the third party proceedings to address on the following issue with proposal for consequential directions on exchange of provisional solo expert reports, arrangement for further without prejudice meeting of the experts, and compilation of their supplemental joint expert report on liability:

“How did the material alterations to [the Lift]

(a) in or about September 1997 including the following:- (i) installation of 3 fire-proof laminated panels on the back and side walls of [LC]; (ii) installation of a glass mirror on the upper half of the back wall of [LC]; (iii) installation of a stainless-steel panel and 5 sets of spot lights on the ceiling of the [LC]; (iv) installation of stainless-steel panels with reflective surface on the columns and beams of [LC]; (v) installation of 2 new lift doors made of stainless-steel panels with reflective surface; and

(b) in or about May 2002, for the replacement of the plastic floor tiles of the Lift by marble flooring

relate to the metal fatigue found in [FIR] of [EMSD].”

On the same day, D filed the Tang 4^th Aff in support of the D/TP Expert Summons.

38.  The Tang 4^th Aff claimed that by then documents were available to show when/how major alterations carried out prior to 2006 (ie the 27 Pages) caused substantial increase in the total load / weight of the Lift, which was important as (a) paragraph 12 of the Leung 2^nd Report explained that propagation of fatigue crack is determined by the S-N curve whereby S is the stress level suffered and N is the frequency of S occurrences, and (b) the experts on liability should give consideration to the major alterations actually done to the Lift in September 1997 (ie about 9 years earlier than 2006) with increased frequency of usage of the Lift with additional load/weight since 1997 (rather than since 2006).

39.  Later on, P revised her stance to the effect that the trial in the main action should proceed unless D was prepared to let interlocutory judgment to be entered or to undertake to let interlocutory judgment to be entered in favour of P immediately after the trial of the third party proceedings.

40.  On 20 October 2020, DoJ replied to DSols that EMSD had no record of any notification or application submitted to EMSD for renovation of LC of the Lift in 1997 and 2002.

41.  At the call-over hearing on 22 October 2020, I adjourned the Amend TPN and D/TPs Expert Summonses for argument, and granted leave for D (if so desired) to file/serve similar summonses in the main action for leave to re-amend the ADefence and to obtain supplemental joint expert report on liability.

42.  On 2 November 2020, D filed a summons (“Amend ADefence Summons”) for leave to re-amend the ADefence in the manner marked in green as per the draft annexed thereto (“Draft RADefence”) with proposal for directions concerning consequential amendments to other pleadings in the main action. On the same day, D filed a summons (“P/D Expert Summons”) for Ir Lo and Prof Leung to prepare a supplemental joint expert report on liability for the main action to address on the issue set out in paragraph 37 above with proposal for consequential directions on exchange of provisional solo expert reports, arrangement for further without prejudice meeting of the experts, and compilation of the supplemental joint expert report on liability.

43.  The Amend TPN and D/TPs Expert Summonses (collectively, “Third Party Proceedings Summonses”) as well as the Amend ADefence and P/D Expert Summonses (collectively, “Main Action Summonses”) were heard by this court on 11 February 2021 (“Hearing”).

44.  I now turn to the parties’ pleadings and draft amended pleadings to put the Third Party Proceedings Summonses and Main Action Summonses in context, but I will only focus the parts pertinent to the applications before the court.

V.     P’s CLAIM

45.  P claimed D held itself out as a company that specialised in lift repair/maintenance in Hong Kong, so D owed the following duties to all users (including P) of the Lift that D repaired/maintained:

46.  P claimed the Accident and her injuries were caused by D’s negligence and/or breach of common duty of care particularised as follows, and she further or alternatively relied on the doctrine of res ipsa loquitur:

VI.     D’s DEFENCE

47.  D claimed the Lift was installed by Chevalier in November 1986, and it started operation on 17 June 1987. Chevalier and Holake were the maintenance contractors of the Lifts from June 1987 to July 1997 and from July 1997 to 31 December 2007 respectively.

48.  D averred that in/about November 2005 Holake contracted to carry out renovation/upgrading of the Lift.[10] “[LC of the Lift] was also renovated with the addition of granite flooring, false ceiling and new walls over the original walls in order to change the Lift from a cargo lift to a passengers lift.” In subsequent investigation of the Accident, Holake did not produce any record, document or detail of the maintenance personnel for the period from July to December 2007. When D as maintenance contractor took over maintenance of the Lift as from 1 January 2008, neither Holake nor 1^st TP  informed/notified D of details concerning any major alteration even though (a) the Code of Practice for Lift Works and Escalator Works (“Code”) in 2002 and in previous editions issued by EMSD required Chevalier/Holake to keep logbooks of maintenance records and required RLC to notify EMSD of major alterations to the Lift, and (b) EMSD should have kept records of major alterations to the Lift by Chevalier/Holake. D claimed that after taking over as maintenance contractor, it properly repaired/maintained the Lift in accordance with the Code (including its updated edition) that gave guidance on matters relating to safety of lifts/escalators,[11] and it had kept proper maintenance record of the Lift, which record indicated D had not done any renovation/modification works to the Lift.

49.  D claimed that on/about 15 March 2010 D’s maintenance staff noted additional counterweight pieces had been attached to the Lift, and upon inquiry D was informed by 1^st TP’s staff there had been renovation works to LC of the Lift with approval obtained from EMSD in accordance with proper procedure, and upon such confirmation by 1^st TP D did not further investigate into the matter.

50.  D acknowledged its scope of work as maintenance contractor included maintenance of the traction machine of the Lift. On 26 September 2011, D carried out maintenance work on the traction machine of the Lift, including replacement of oil gasket seal. On 3 October 2011, the Lift resumed operation. On 4 October 2011, the traction machine had oil leakage problem, so D took the Traction Shaft to the workshop to have the oil seal replaced. On 7 October 2011, the Lift resumed operation. On 11 October 2011, oil seepage was found through the side of the sheave of the traction machine of the Lift. On 12 October 2011, D took the sheave component to the workshop for inspection, but no visual defect was found. On 20 October 2011, D took the Traction Shaft to the workshop for detailed inspection, and discovered a sleeve on the Traction Shaft with oil leakage found between the Traction Shaft and the sleeve. One end of the sleeve was then soldered to the Traction Shaft to seal the oil leakage. On 23 October 2011, the Lift resumed operation. In mid-December 2011, the traction machine again had oil leakage. D replaced the sleeve of the Traction Shaft without any soldering, and the problem of oil leakage was eventually eliminated. But D did not know the outer edge of the Traction Shaft had been trimmed, and/or the diameter had been reduced from 100mm to 90mm, which might have caused the fatigue crack. As shown in D’s maintenance records, D never made any alteration/modification to the Traction Shaft before the Accident on 9 November 2012.

51.  FIR did not indicate D had done any alteration/modification to the Traction Shaft[12] and/or D was responsible for the Accident. Further, apart from the lift manufacturer, EMSD would not have allowed any other RLC to undertake alteration/modification of the traction shaft of a lift.

52.  On/about 9 November 2012, EMSD’s engineers including Mr Ng inspected the Lift.[13] Subsequent investigation showed the Lift and Lift 8 were of the same model,[14] and there was a sleeve on the traction shaft of each of the Lift and Lift 8 both of which had modification works done before the Accident with loads of the counterweights increased. Since D did not carry out any modification/improvement works to the Lift since taking over maintenance work on 1 January 2008, so 1^st TP must have engaged the previous maintenance contractor(s) to carry out such modification/improvement works.

53.  Upon EMSD’s instructions, D engaged Victory to survey the weight of the Lift system, and it was found the total weight was 4,325kgs (see paragraph 4 above). Mr Ng noted such total weight and appended the survey report to FIR without any further comments. In its letter dated 14 March 2017, EMSD confirmed the Lift had been modified in 2006.

54.  Mr Ng in FIR stated that EMSD could not find any evidence of personal blame or culpability on D’s part, and that even though alteration/modification of major equipment had adversely affected the safe operation of the Lift, there was no evidence to indicate D, its staff or agents had done any alteration/modification to the Lift before the Accident or was in any way in breach of the Code.[15] After the Accident, EMSD did not give D any warning and did not take any action against D in its capacity as RLC.

55.  D therefore denied (a) it caused, permitted or allowed the alleged trimming of the Traction Shaft and/or was responsible for the Accident, (b) it had any knowledge of the alleged trimming of the outer edge of the Traction Shaft and the alleged reduction of its diameter from 100mm to 90mm, (c) the 2 ends of the sleeve were welded to the Traction Shaft at high temperature, (d) it could have discovered the alteration/ modification of the Traction Shaft from maintenance works to the Lift, (e) it could have foreseen the development of fatigue crack in Traction Shaft, and/or (f) it could have taken any measure to prevent the Accident. D also denied the doctrine of res ipsa loquitur was applicable to the Accident.

56.  D claimed that on/about 18 and 27 October 2011 it advised 1^st TP to replace the traction machine of the Lift and provided quotations to 1^st TP, but 1^st TP did not accept such advice/quotations. In/about November 2011, Guidelines for Modernising Existing Lifts (“Guidelines”) were distributed to lift owners and managers including the Incorporated Owners of the Building (“IO”) and/or 1^st TP, and the Guidelines aimed to help Responsible Persons for lifts (“RPs”) as defined in the Lifts and Escalators Ordinance Cap 618 (“LEO”) to implement enhancement/ modernisation solutions. D claimed the IO and 1^st TP as RPs had full discretion to decide whether or not to adopt the recommended enhancement solutions in the Guidelines, but D was only a RLC as defined under LEO and not a RP of the Lift. Further, at/about Lunar New Year in 2012 D proposed installation of rope grippers to the Lifts, but 1^st TP did not accept such proposal.

VII.    D’s CLAIM AGAINST TPs

57.  By the TPN, D claimed that if it were adjudged liable to P, it would be entitled to contribution/indemnity against:

58.  D reiterated its allegations in the ADefence, and averred that the 1^st and/or 2^nd TPs were negligent as follows:

VIII.   TPs’ DEFENCE (AND COUNTERCLAIM)

59.  TPs denied the relevance of the LEO and further denied they were RPs of the Lift under the LEO, and they pointed out that the Lifts and Escalators (Safety) Ordinance Cap 327 (“LESO”) (repealed on 17 December 2012) was still applicable at the time of the Accident and the LEO (particularly sections 12-15 thereof concerning RP’s duties) did not come into full operation until 17 December 2012. But TPs agreed that section 33 of LESO required the RLC engaged to carry out major alterations to any lift to notify EMSD of such lift works that were about to be carried out.

60.  TPs agreed (a) the Lift was installed in/about 1986 and should have started operation in/about 1987, (b) Chevalier was the maintenance contractor from June 1987 to July 1997, (c) Holake was the maintenance contractor from July 1997 to 31 December 1997, and (d) in/ about 2006 Holake contracted with TPs to (and Holake did) carry out improvement and upgrading works to the Lift (which was all along a passenger lift and never changed from a cargo lift to a passenger lift).

61.  1^st TP had power/duty under Clause 7.2(r) of the SDMC inter alia to enter into contracts and to engage/employ professional advisers, consultants and contractors touching or concerning the Building or the management thereof on behalfof 2^nd TP. In 2007, 1^st TP on behalf of 2^nd TP invited tenders for the Full Maintenance Contract for the Liftsfor the period from 1 January 2008 to 31 December 2009 (“2008 Contract”). On 31 December 2007, 1^st TP notified D that its tender for the 2008 Contract was successful. After expiry of such contract, D continued to be responsible for maintenance of the Lifts (including the Lift), and by a letter dated 23 April 2010 by 1^st TP on behalf of 2^nd TP, D was awarded upon tender the Full Maintenance Contract for the Liftsfor the period from 1 April 2010 to 31 March 2012 (“2010 Contract”). By a letter dated 25 April 2012, 1^st TP on behalf of 2^nd TP awarded D upon tender the Improvement Works for Cargo Lifts Nos. 1, 2, 5 & 6 and Full 3-Year Maintenance Contract of the Buildingfor the period from 1 April 2012 to 31 March 2015 (“2012 Contract”).

62.  TPs referred to various express terms in the 2008, 2010 and 2012 Contracts (collectively, “Contracts”), and averred that from 1 January 2008 to the date of the Accident D was contractually responsible for and in charge of inter alia the examination, maintenance and safety of the Lift, the discharge all statutory duties to ensure safety and safe operation of the Lift, and full compliance with all statutory requirements including but not limited to the LESO and the relevant Code as the RLC, registered lift engineer (“RLE”) and/or for and on behalf of TPs.

63.  TPs averred that D by submitting tenders for and being awarded the Contracts claimed to have necessary qualifications, expertise and knowledge in performing all duties/obligations under the Contracts, but on the other hand TPs did not possess relevant qualifications, expertise and knowledge, and relied on D to ensure safety and safe operation of the Lift and full compliance with all statutory requirements in relation thereto. If D required any information concerning the Lift,[16] it was for D to approach its predecessor Holake to obtain all needed information, and unless requested by D, TPs would not know what information D would require. Anyway, TPs had never refused any request to provide D with any information concerning the Lifts.

64.  Further, upon being awarded the Contracts D was required thereunder to carry out full/thorough examination of all 8 Lifts including the Lift, and from time to time D carried out regular examinations of the Lifts, so D ought to have been aware of alteration works done to the Lift and/or any safety issue relating thereto. Anyway, D admitted that at least by March 2010 (ie more than 2½ years before the Accident) it was aware that additional counterweight pieces had been attached to the Lift, and there had been renovation works to LC of the Lift.

65.  TPs admitted EMSD’s letter dated 3 January 2017 stated they had not received any notification of increased load/weight of the Lift’s CWT, but EMSD explained there was no requirement to notify EMSD for changing the load/weight of the CWT. Further, EMSD by letter dated 14 March 2017 stated the Code (2012 Edition) was not applicable to any modification of the Lift in 2006. But even if there had been any requirement to notify EMSD for changing the load/weight of the CWT (which TPs denied), it was the duty of Holake as RLC and not TPs (who had no knowledge of any such requirement for notification or in any absence of such notification) to notify EMSD in 2006.

66.  TPs denied the alteration works in 2006 had anything to do with the Accident. Further, the “alteration/modification of major equipment” in paragraph 7.3 of FIR only referred to modifications to the Traction Shaft. Paragraph 6.4 of FIR stated the failure of the Traction Shaft was caused by improper modification works that damaged the integrity of the shaft and thereby increased stress concentration at the weak point. As stated in FIR, D disassembled the Traction Shaft and applied shielded arc welding method to remedy an oil leakage problem in October 2011, and D again disassembled the Traction Shaft for sleeve replacement in mid-December 2011. TPs claimed the Accident was caused or contributed by D’s alteration/modification works to the Traction Shaft in 2011 and/or by D’s negligence and/or breaches of the Contracts in failing to (a) identify any safety issue relating to the Traction Shaft, (b) remedy/prevent the failure of the Traction Shaft, and/or (c) prevent the occurrence of the Accident.

67.  TPs put D to proof that the Guidelines were distributed to lift owners including TPs in/about November 2011. Anyway, D was required by the Contracts (and TPs relied upon D under the Contracts) to discharge all statutory duties to ensure safety and safe operation of the Lift and full compliance with all statutory requirements for all Lifts including the Lift.

68.  TPs claimed that by virtue of clauses 5.5 and 5.23 of the 2012 Contract D undertook/agreed to repair/replace any defective part of the Lift (other than caused by deliberate damage), to ensure full compliance with all safety requirements for the Lifts, and to upgrade all substandard equipment to satisfy the latest statutory requirements free of any further charge. As D was obliged to repair/replace the traction machine of the Lift at its own expense under the 2012 Contract, TPs did not accept D’s quotations dated 18 and 27 October 2011 to pay for replacement of the traction machine of the Lift. If replacement of the traction machine of the Lift was allegedly necessary to ensure safe operation of the Lifts (which TPs denied), D was required to replace the same under clauses 5.5 and 5.23 of the 2012 Contract free of further charge, and D was negligent and/or in breach of the 2012 Contract in failing to so replace such traction machine. Anyway, D had not advised TPs it would be unsafe to operate the Lift without replacing such traction machine or otherwise suspending or causing to be suspended the operation of the Lift in the absence of such alleged replacement of the traction machine.

69.  TPs denied that at/about the Lunar New Year in 2012 1^st TP declined to accept D’s proposal to install rope grippers to the Lifts. TPs claimed D had not submitted any such alleged report/proposal to TPs. But if the alleged installation of rope grippers was necessary to ensure safe operation of the Lifts (which TPs denied), D was required to install the same under clause 5.23 of the 2012 Contract that required D to ensure full compliance with all safety requirements for the Lifts and to upgrade all substandard equipment to satisfy the latest statutory requirements free of any further charge, and D was negligent and/or in breach of the 2012 Contract in failing to install the alleged rope grippers. In any event, D had not advised TPs it would be unsafe to operate the Lift without the alleged installation of rope grippers or otherwise suspending or causing to be suspended the operation of the Lift in the absence of the alleged installation of rope grippers.

70.  Further, D was precluded under clauses 4.12 and 5.12 of the 2012 Contract from claiming any contribution/indemnity from TPs as D was responsible to the full extent for any personal injury, loss and damage arising from D’s negligence or mistake, and should undertake to compensate TPs for any direct losses/expenses arising from any such negligence or mistake. It was said D was precluded from claiming any contribution/indemnity from TPs in the third party proceedings if P was able to establish any negligence or mistake on D’s part in respect of the Accident. But in the event of P failing to establish any negligence or mistake on D’s part in respect of the Accident, no issue of any contribution/indemnity from TPs shall arise. In the premises, the third party proceedings against TPs were misconceived.

71.  It is unnecessary for present purposes to describe TPs’ counterclaim against D in the third party proceedings.

IX.     D’s REPLY

72.  D claimed 1^st/2^nd TPs were the owners of the Lift as defined in LESO. Regardless whether the Lift was a passenger or cargo lift, renovation, improvement and upgrading of the Lift in November 2005 or in/about 2006 were major alterations under section 4 of the LESO as there was increase in the load/weight of LC/CWT of the Lift by about 1,000kgs that compromised the integrity of the Traction Shaft. Pursuant to section 13 of the LESO, if there were major alterations to a lift, the owner should cause the lift to be examined by a RLE, who should then deliver a certificate in prescribed form (including details of inter alia “Counterweight Safety Gear Tests and Counterweight Inspection”) to the owner, who in turn should submit it to EMSD for record within 7 days after receipt.

73.  D denied that TPs did not have relevant qualifications, expertise and knowledge and/or that TPs relied on D to ensure safety and safe operation of the Lift as well as full compliance with all statutory requirements in respect thereof, and averred that 1^st TP had project director(s) and/or engineer(s) who would examine and/or inspect the work done by D or its predecessors.

74.  D disagreed that it should approach Holake for information about the Lift and/or that TPs were not in a position to know what information D required. D averred 1^st TP should have kept a logbook for the Lift in prescribed form, and such logbook (which should record all inspections, maintenance and alterations of the Lift carried out by all lift maintenance contractors including D and its predecessors) was required by EMSD to be retained by the owner of the Lift as defined under the LESO.

75.  EMSD’s letter dated 2 January 2013 informed 1^st TP that Lift 8 (with same design/model as the Lift) had increased counterweight which might have compromised the integrity of the traction shaft, and asked 1^st TP to confirm if the Lift’s CWT also had been increased. D claimed it could be inferred that TPs had not submitted the certificates in prescribed form for major alterations to the Lift and Lift 8 at the end of 2005 or early 2006 to EMSD. In 2010, D’s staff was misled by 1^st TP’s staff into believing major alterations of the Lift in 2005/2006 had received proper approval from EMSD. D noted EMSD’s letters dated 3 January 2017 and thereafter did not address the issue of whether renovation/upgrading of the Lift in/about November 2005 amounted to major alterations as defined in section 4 of the LESO.

76.  D claimed it never carried out alteration/modification of the Traction Shaft, and remedial work that D carried out was to stop the oil leakage and to prevent damage to the Traction Shaft. D also claimed repair/replacement of the traction machine of the Lift was not within the terms of the 2012 Contract for the maintenance of the Lift even though such contract included upgrading of and major alterations to Lifts Nos 1, 2, 5 and 6 (but not to the Lift or Lift 8).

77.  D averred TPs owed P tortious liability for negligence, so by virtue of section 7(1) of the Control of Exemption Clauses Ordinance Cap 71 (“CECO”), TPs could not exclude/restrict their liability for personal injury resulting from negligence.

78.  It is unnecessary for present purposes to deal with D’s defence to TPs’ counterclaim in the third party proceedings.

X.   TPs’ REJOINDER

79.  TPs admitted 2^nd TP (but not 1^st TP) was the owner of the Lift as defined in the LESO. But TPs denied (i) any improvement/ upgrading works to the Lift in November 2005 or in/about 2006 were major alterations as defined under section 4 of the LESO, (ii) there was increase of about 1,000kgs in the load/weight of the Lift’s LC/CWT and/or (iii) the integrity of the Traction Shaft was compromised. TPs averred that:

80.  TPs admitted the provisions in sections 13(1)-(2) of the LESO, but denied 1^st TP had any project director(s) and/or engineer(s) who would examine/inspect the work done by D or its predecessors. TPs averred they did keep/maintain or cause to be kept/maintained a logbook pursuant to section 27B of the LESO which only required details of works carried out in accordance with sections 12, 13, 19, 21, 22, 23 and 24 thereof and in accordance with an order under section 25 thereof to be entered by RLE and RLC, including D and Holake. The logbooks were in prescribed form as approved by EMSD, and were provided by TPs’ lift contractors including D and Holake. The current logbook was kept/ maintained at the management office of the Building for RLE and RLC, including D and Holake, to enter necessary information. Old logbooks were previously kept/maintained at a storeroom of the Building, but D had not asked TPs for inspection of the same. Upon taking over from Holake, D should have obtained from Holake all information in connection with the Lift necessary for discharge of its contractual/ statutory duties, and D was negligent and/or in breach of its contractual/ statutory duties in having failed to do so.

81.  TPs denied that in 2010 D’s staff was misled by 1^st TP’s staff, and TPs repeated their pleas in the AD&C.

82.  TPs claimed section 7(1) of CECO would not have prevented them from relying on the terms of the 2012 Contract to preclude D from claiming any contribution/indemnity from them in the third party proceedings. TPs did not seek to rely on any contractual term to exclude or restrict any liability for personal injury towards P (if any) which TPs denied.

XI.   DRAFT ATPN

83.  The proposed amendments in the Draft ATPN were essentially as follows:

XII.    DRAFT RADEFENCE

84.  The proposed re-amendments in the Draft RADefence were essentially as follows:

XIII.   PLEADINGS AND EXPERT EVIDENCE

85.  Mr Lin, counsel for TPs, submitted that:[17]

86.   Whilst Mr Wong, counsel for D, and Mr Shum, counsel for P, had little disagreement with the above propositions as broad principles, what truly mattered would be the application of such broad principles (if relevant) to the present case-specific context of the main action and the third party proceedings that required interaction among pleadings, discovery and expert evidence.

87.   Here, there was fairly little dispute over the circumstances of the Accident (see paragraphs 2, 8 and 9 above). Rather, the disputed issues on liability turned almost entirely on technical matters with the initial issue being the cause for the Lift to uncontrollably ascend in over-speed to hit the lift shaft structures at/about the 28^th (top) floor when it was supposed to descend to the ground floor. This was a factual albeit technical issue, but was probably easily answered as Mr Ng, Ir Lo, Prof Leung and Ir Kong all accepted it was due to the fracture failure of the Traction Shaft.[19] The anterior issue on liability was the finer question of what caused the Traction Shaft to suffer fatigue fracture and become broken (“Causation Issue”), which issue must be determined by the trial court so as (a) to ascertain the scope of (i) the relevant tortious duty of care that D owed to P (if any) and (ii) the relevant tortious duty of care and contractual/statutory obligations (if any) that TPs owed to D (if any), and (b) whether there had been any breach thereof. In my view, although the Causation Issue would be a factual question for the trial court, such issue would turn almost entirely on technical matters, which explained why all parties in the main action and the third party proceedings obtained expert reports on liability (and causation).

88.   Generally speaking, on technical/skilled matters (whether engineering, medical or other disciplines), experts on liability (and causation) at trial have (a) an explanatory/didactic function in educating the lay court on technical facts/matters pertinent to the relevant issue(s) in dispute,[20] and (b) a further function in giving opinion to assist the lay court in deciding whether acts/omissions of the responsible person(s) and/ or party(ies) would constitute negligence and/or breach of contract. But where the claim/defence in the litigation turn essentially on technical/ skilled matters rather than lay facts, the experts on liability (and causation) have another important (but not often emphasised) function at the pre-trial stage, ie their expert opinion on liability (and causation) will be required for the parties to properly shape their respective pleaded case.

89.   If formulation of a party’s case depends on lay facts/matters, such party is expected to properly plead all material facts in his pleadings based on factual materials known or available to him from enquiries, discovery and witnesses. Not so if such party’s case depends on technical/ skilled matters. Whilst he may have some knowledge or may have made some preliminary investigation (if he is in the same profession, trade or discipline) to raise a prima facie case on his pleadings,[21] his pleaded case cannot be complete until he has to hand his expert report on liability (and/or causation) that will enable him to frame and plead the fullness of his case on technical/skilled matters that have to interface with the eventual expert evidence to be adduced at trial.[22] Thus, in a case where the issue of liability (and/or causation) turns on technical/skilled matters, the usual course is for each party to commission solo expert report on liability (and/or causation) to aid proper formulation of his pleadings, which therefore explains why, say, parties in medical negligence cases are required to serve “any expert medical report relied on as to liability and causation” with their pleadings.[23] There is no carte blanche for obtaining/adducing expert evidence on liability (and/or causation), but leave of the court will be readily granted where the party(ies) satisfy(ies) the court that such expert opinion on liability (and/or causation) is necessary, relevant and of probative value for the just and proper resolution of the parties’ dispute.

90.   But that is not the end of the matter. More expert reports may have to be obtained in the course of pre-trial case management,[24] but as alluded to in the above paragraph, leave of the court is required for commissioning such supplemental, additional and/or joint expert reports on liability (and/or causation) that are intended to be adduced as expert evidence at trial. As and when such supplemental, additional and/or joint expert reports become available, each party should revisit his pleadings to see if necessary amendments are required so as to properly plead/aver the fullness of his case on liability (and/or causation) to be pursued/adduced at trial.[25] Notwithstanding the laudable underlying objectives under Order 1A rule 1 of the RHC, a party who applies reasonably promptly to amend his pleadings upon evolution of expert opinion on liability (and/or causation) as the litigation develops (in contra-distinction to matters inherently within his own knowledge but has not previously pleaded) should not be judged too harshly. Whilst case management considerations are quintessentially relevant in the post-CJR era, they should be viewed in relevant cases through the prism of the necessary involvement of expert evidence, and the constraint that the expert renders his opinion independently rather than at the whim of the litigant.

91.   This brings me to another facet of the formulation of a party’s case where the issue of liability (and/or causation) turns on technical/skilled matters and hence on expert opinion on liability (and/or causation), namely, that such expert opinion is good insofar as the factual assumptions upon which it rests are satisfactorily proved at trial. [26] So it behoves a party who wishes to adduce expert opinion on liability (and/or causation) to inter alia (a) provide full/accurate factual assumptions for his expert to found his opinion, and (b) adduce sufficient evidence to prove such factual assumptions at trial. If (i) such factual assumptions are incomplete/inaccurate or (ii) are not satisfactorily proved at trial, the expert opinion that rests on unconvincing factual foundation may weaken or crumble, which cannot bode well for the relevant party in a case that turns on technical/skilled matters.

92.   Consequently, it is imperative for a party who has to frame his pleaded case by drawing on expert opinion as to liability (and/or causation) to provide all necessary factual assumptions for his expert to render full/accurate opinion to facilitate such party to properly plead the technical material facts. In gathering such necessary factual assumptions, the first port of call must the relevant party’s own knowledge, information and documents,[27] but this exercise extends to other information/ documents.[28] In this respect, witness statements and discovered documents from other party(ies) in the litigation are another important source of relevant/necessary documents to form factual assumptions for the expert on liability (and/or causation) to render full/accurate opinion, which in turn enables the relevant party to properly plead his case.

93.   This exercise is aided by the well-known Peruvian Guano test for determining the “relevance” of discoverable documents.[29] On such test of “relevance”, the real question is whether the documents to be discovered are relevant to the issues between the parties to the litigation or, putting it in another way, to the “questions in the action”.[30] There has been suggestion that the issues or questions must be those identified in the pleadings, but it has been held in Thorpe v Chief Constable of Greater Manchester Police[31] that matters can be “in question” or be the subject of controversy between the parties even though not expressly raised on the pleadings. At p 833, Neill LJ said as follows:

“…… It is clearly established, however, that ‘the matters in question’ cover wider ground than the issues as disclosed in the pleadings. Thus a party is obliged to disclose any document which it is reasonable to suppose contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead to a train of inquiry which may have either of these two consequences. It follows that discovery is not necessarily limited to documents which would be admissible in evidence.”

94.   Often in cases where the question of liability (and/or causation) turns on technical/skilled matters, the claimant lacks knowledge or full knowledge of the matters that may form relevant and useful factual assumptions for his expert on liability (and/or causation). P in the present action would be a prime example; she probably had no idea or not much of an idea about the Traction Shaft let alone all the technical niceties that went to its properties, function, operation, maintenance and failure.[32] Here, P was content to merely sue D, so she largely relied on factual assumptions drawn from FIR. But using a hypothetical example as illustration, had P chosen to join TPs as further defendants in the main action (as she had once thought to do at an earlier stage – see paragraph 12 above), she would probably have to rely on statement evidence and/or discovered documents from D and TPs to form factual assumptions for Ir Lo to render his expert opinion, and eventually to prove those factual assumptions at trial. And likewise in the third party proceedings, D maintained (even though TPs disagreed) its knowledge of any renovations/upgrading in relation to the Lift before 2008 (when it took over as maintenance contractor of the Lifts) was not much better in view of alleged paucity of information from Holake/TPs, so it was also reliant on proper disclosure of information/documents by TPs and/or on enquiries with EMSD.

95.   It will descend into an unhelpful circular argument for a party to argue that discovery is not required to be made unless the pertinence of certain documents has been precisely identified in the pleadings, but the other party (having no idea of the existence of such documents that may advance his case or may lead to a train of inquiry which may have such consequence on a “question in the action” albeit not precisely identified in the pleadings) cannot in the absence of discovery put the same as factual assumption to his expert on liability (and/or causation) to obtain expert opinion that will in turn allow such other party to plead a full/clear case that precisely raises the issue. This leaves the other party between a rock and a hard place, ie he cannot get discovery of useful documents unless he precisely identifies the issue in the pleadings, but he cannot so plead unless he has those documents for seeking expert opinion, which, if favourable, will allow him to plead the issue.

96.   In my view, neither substantive nor procedural law would so prejudice a party, and the clear/obvious solution is the Peruvian Guano test for discovery as explained above. It must be remembered that quite unlike the court which deals with legal liability and causation by making findings and drawing inferences on the balance of probabilities, professional/skilled experts deal with technical certainty so that if they are unable to give opinion with certainty or if there is insufficient basis to give opinion on any expert issue, they have to frankly say so in their expert reports,[33] which again highlights the importance of providing full/ accurate factual assumptions for the experts.[34] Using the medico-legal example in footnotes 33-34 above, the defendant may not know about the plaintiff’s childhood disease/injury, and will not be able to tell his own medical expert or to plead the same , but if the defendant disputes causation and suggests that the impugned surgery cannot be the likely or only cause of the indexed medico-legal incident, the plaintiff will have to make discovery of the documents referred to in footnote 34 above on Peruvian Guano basis because he is required to disclose all documents that may fairly lead to a chain of inquiry on the issue of causation, and more so if general expert opinion is already available to the effect that pre-existing disease/injury is a common possible cause for the weakened state of the relevant body part.

97.   The above discussion assumes that after obtaining relevant discovery a party may provide new or revised factual assumptions to his own expert on liability (and/or causation) for further opinion and, depending on the opinion to be obtained, may then apply for leave to amend his pleadings. But it becomes more complex when there are already court-imposed expert directions for the parties’ solo experts on liability (and/or causation) to have a without prejudice meeting and/or to compile a joint report setting out their agreements and disagreements. It is true that, unlike the situation of a joint approach to expert evidence by having the parties’ respective experts compile a joint report (as in the case of joint medical expert reports on the quantum issue here), parties can still communicate privately with and have access to their own experts on liability (and/or causation) both before and after the without prejudice meeting.[35] But, as explained in Fung Chun Man v Hospital Authority & anor,[36] a party who wants to adduce at trial any further or supplemental expert opinion from the expert on liability (who must first reduce his opinion in writing in an expert report) has to seek leave of the court to do so. This is particularly so when after the 1^st round of solo expert reports on liability (and/or causation) by the parties’ experts, the court has already seized case management control over expert evidence by exercising its discretion to grant expert directions that (a) limit the scope/ issues of the expert evidence on liability (and/or causation) to be adduced, and (b) require the experts to engage (and here they have already so engaged) with each other in a without prejudice meeting to work out their agreements/disagreements on the issues in (a) above to be set out in a joint report. In such circumstances, a party who wishes to bespeak further expert evidence that travels beyond the constraints imposed by court-ordered issues/ambit of expert evidence will require leave of the court, and the court in debating whether leave should be granted will consider (i) the cogency/usefulness of the proposed further or supplemental expert issues in helping to resolve the disputed trial issues in the litigation, and (ii) other case-specific case management considerations such as cost, proportionality, fairness, delay and other underlying objectives.

98.   With the above considerations in mind, I turn to the applications before me.

XIV.   AMEND TPN AND D/TPs EXPERT SUMMONSES

99.   It appeared that the essential purpose of the proposed amendments in the Draft ATPN was to introduce the averments that in/about September 1997 and May 2002 TPs contracted with and assigned Holake to renovate/upgrade the Lift (see paragraph 83(a) above) resulting in significant increase in the load/weight of LC of the Lift by about 380kgs (see paragraph 83(b) above), but TPs failed to report to EMSD such major alterations in/about 1997/2002 (rather than in/about 2006 as originally pleaded) (see paragraph 83(c)-(d) above), such that D had no knowledge of such major alterations (which were not notified to EMSD, not in the logbook for the Lift and not notified by Holake/TPs).

(a)  D’s contentions

100.   Mr Wong submitted that the proposed amendments in the Draft ATPN did not raise any new case. D already pleaded in the TPN (a) there were major alterations to the Lift prior to 2008 (including those that involved increase in the load/weight of LC/CWT) that compromised the integrity of the Traction Shaft, and (b) TPs failed to inform D of such major alterations (see paragraphs 58(b) and 72-75 above). It was said that given the previous incomplete state of TPs’ discovery, D was led to assume the major alterations involving increase in the load/weight of LC of the Lift were carried out in/about 2006 being the only disclosed pre-2008 renovations notified via Form 7 to EMSD (see paragraphs 15 and 53 above), but D was at the material time unaware because it was not so informed and there was no certificate to such effect submitted to EMSD (see paragraphs 34(a) and 72 above). It was only through D’s determined forensic enquiry that TPs quite recently disclosed/discovered the 27 Pages, which in turn revealed more detailed information as to the renovations/upgrading of LC of the Lift in 1997/2002, and which led to the Amend ATPN Summons for putting D’s already pleaded case on the Causation Issue in its proper temporal context. Mr Wong argued the proposed amendments were material to the issues of liability and/or causation between D and TPs, but they were nothing more than to bring the TPN in line with documentary evidence recently revealed by TPs.

101.   Mr Wong submitted the proposed amendments were prima facie supported by the following, which tended to show that it was the excess load/weight of the Lift that caused the fracture failure of the Traction Shaft, but that D should not be faulted because it had no knowledge of the same in the absence of notification by Holake/TPs and/ or lack of records with EMSD (when there should have been such notification/records available to D):

(b)  TPs’ contentions

102.   On the other hand, Mr Lin submitted that in paragraph 6.2 of the Leung/Kong Jt Report Prof Leung opined that (a) material alterations in 2006 should have included increase in the load/weight of CWT of the Lift by 500kgs (with corresponding increase in the load/weight of LC of the Lift by 380kgs for “optimal balance”), and (b) the total increase in weight of 880kgs for the Lift was substantial enough to result in the fatigue fracture found in FIR, so D’s present proposal to plead it was the 1997/2002 renovations rather than the 2006 renovations that increased the load/ weight of the Lift was a new/distinct case “inconsistent” with Prof Leung’s present opinion, and D’s present attempt in the D/TPs Expert Summons to obtain supplemental expert report(s) on liability was a 11^th hour effort to move litigation goalposts to include the 1997/2002 renovations.

103.   But Mr Lin also argued that D should not be allowed “to shift its case to “tailor-make” its pleadings in order to fit [Prof Leung’s] opinion so that it would sound more “probable” or “supported””, which was impermissible “reverse engineering”, especially when the Yeung EMSD Statement[37] that was already available to D (and indeed also to Prof Leung) showed Holake had carried out renovations in 1997 to “更換[the Lift]地下外門及內門同時更換地膠及旁板” such that D had plenty of opportunity since the discovery of such statement in December 2016 (see footnote 37 above) to investigate into the matter of the 1997 renovations.

104.   It was said that D’s attempt to adduce further expert evidence on its new case was in effect nothing more than speculative “fishing expedition”. Mr Lin argued the 27 Pages would not support D’s proposed amendments because they did not say (a) the additional counterweight bricks were added to CWT of the Lift during the 1997/2002 renovations and/or (b) the 1997/2002 renovations increased the total load/weight of LC of the Lift by 380kgs. Mr Lin also argued that the proposed amendments were vague and lacking in particulars as to, say, (i) what was the actual increase in load/weight of LC of the Lift as a result of the 1997 renovations and the 2002 renovations, and (ii) what was the causal link between the Accident and the increase in load/weight of LC of the Lift by about 380kgs, so the proposed amendments were embarrassing and prejudicial to TPs, and it would be no answer for D to say TPs could later seek further and better particulars.

105.   Mr Lin submitted that D’s attempt to blame TPs for the Accident via the proposed amendments was “a non-starter and [was] bound to fail” as D admitted (see Mr Chan’s 2^nd witness statement dated 7 March 2019) it was aware in March 2010 there had been renovations to the Lift with additional counterweight pieces added by the former maintenance contractor. Mr Lin contended that:

“…… In the premises, it is quite unclear how D could claim contribution and/or indemnity against [TPs] by alleging that [TPs] had failed to report the 1997 and 2002 Renovations to the EMSD and failed to inform D about the particulars of the major alterations prior to 2008. All along, D was required under the Contracts to thoroughly examine and be aware of the alteration works that had been carried out to the Lift and all the safety issues relating to the Lift. ……”

106.   Mr Lin further argued that in any event D’s present averments as to the 2006 renovations in the TPN and the proposed amendments in relation to the 1997/2002 renovations were immaterial/ unnecessary for determining the dispute between D and TPs in the third party proceedings: (a) if D successfully resisted P’s claim in the main action, no issue of contribution/indemnity would arise, but (b) if D were found liable to P in the main action (ie D was under a duty to discover/ identify safety issues in relation to the Lift, but was negligent in failing to discover the alterations to the Lift and/or to identify any safety issue in relation to the Traction Shaft), still no question of contribution/indemnity would arise because by such finding of duty D could not blame TPs for not having informed D. Mr Lin submitted that “[from] another perspective, if the Court finds that [TPs] were under a duty to inform D of the alterations made to the Lift, then D would not be negligent in its failure to discover the alterations and the safety issue arising therefrom in the first place”.

107.   Thus, Mr Lin contended that the proposed introduction of the 1997/2002 renovations to the TPN would raise new focus/dimension, but such proposed averments were speculative and unnecessary/irrelevant for the third party proceedings, which D should not be allowed to plead at such late stage when TPs would have great difficulty in investigating into the matter (since the 1997/2002 renovations went back more than 18-23 years) and in scrambling up a response in the run-up period until trial, and when a great deal of effort would have to be expended in amending pleadings and in obtaining further expert reports, and possibly in adducing further statement evidence and in commencing fourth party proceedings against Holake with risk of vacating the trial dates.[38]

108.   I pause here to note there was just under a year until the trial, and in the authorities referred to in footnote 38 above the proposed amendments to pleadings were first raised shortly before or almost at trial (Chan Kwan Yin Shirley & anor), 8 days before trial (Tang Wai Lam, the sole executor of the estate of Siu Mak Cheung, deceased), and 5 weeks before trial (Chan Ying Wai). In Li Shiu To, no trial date had been fixed, and the proposed amendments were allowed.

109.   Further, none of the proposed amendments in those cases were dependent on discovery from the other party(ies) and/or consequent expert evidence, and there was either no or no good reason for delay in the relevant applications to amend pleadings:

110.   Returning to Mr Lin’s submissions, he contended it was unfair for D to say TPs were late in disclosing the 27 Pages that related to the 1997/2002 renovations since discovery was limited to relevant matters in question by reference to the pleadings, and D did not plead the 1997/2002 renovations in the main action and/or in the third party proceedings for documents pertaining to such renovations to fall within the scope of discovery. In any event, the Yeung EMSD Statement that was already disclosed in December 2016 (see footnote 37 above) stated “[Holake] 於1997年更換[the Lift] 地下外門及內門同時更換地膠及旁板”, so “[if] it is D’s case that the 1997 and 2002 Renovations had increased the weight of [LC] of the Lift, they could have pleaded the same as early as when they issued the [TPN] back in September 2017”, and the court should not be sympathetic to D’s present applications made at a late stage that would raise new dimension/focus and that would shift the litigation goalposts despite time/opportunity having been made available for D to put forward the fullness of its case.[39]

(c)  P’s contentions

111.   Mr Shum made submissions to support TPs’ opposition of the Third Party Proceedings Summonses because Mr Wong fairly acknowledged that if these summonses were dismissed, D would not be able to pursue the Main Action Summonses.

112.   Mr Shum submitted notwithstanding D’s argument that TPs’ late discovery of the 27 Pages revealed for the first time alteration works in 1997/2002 (ie prior to 2006) would have increased the load/weight of LC of the Lift, which D believed to have bearing on the issue of liability between D and TPs, there was no expert evidence on liability (whether in draft form or otherwise) to support such new case, which in the absence of supporting evidence was wholly speculative. It was said at this late stage the court would require some supporting evidence before D would be allowed to amend its pleadings to add a new case.

113.   Mr Shum argued that in fact D’s bare belief was contradicted by D’s letter to 1^st TP dated 28 November 2012 to the effect that it carried out regular checking/maintenance of the traction machine of the Lift and completed the 5-year load test of the Lift on 13 February 2012 under the supervision of its registered engineer with no abnormality found, so Mr Shum suggested it was incredulous for D to assert in 2021 (and without supporting evidence) that the 1997/2002 renovations adding load/ weight to the Lift was the “possible” cause of the Accident.

114.   Mr Shum acknowledged “[it] is a substantive right of a party to bring his full case before the Court provided he can do so without prejudice to the other party that cannot be compensated by costs”, but he argued that “if the new case he seeks to advance is weak or appears unlikely to succeed, then that factor must weigh in the balancing exercise between the need to ensure a just and proper adjudication of the real dispute between the parties and the need to ensure cost effectiveness and economy, expedition, proportionality, fairness between the parties and the proper use of the Court’s resources”.[40] Mr Shum urged the court to be wary of allowing a party to amend pleadings to raise a new case and to serve additional factual/expert evidence once a case has reached the stage of setting down (and here trial dates had been fixed). Mr Shum submitted the Amend TPN Summons should not be allowed in light of these principles, the prejudice to TPs (even though the trial was just under a year away), fairness, justice, expediency and saving of time/costs, especially when P had incurred substantial time/costs and endured a long wait for trial.

115.   Mr Shum noted the order of Master Roy Yu dated 28 January 2019 did not direct the parties’ experts on liability to address on how the material alterations to the Lift in/about 2006 related to the metal fatigue found in FIR; rather, such order only asked the experts on liability to state whether or not they were in agreement with particular contents of FIR. It was said such expert directions would not justify obtaining supplemental joint expert report. Further, given D’s admitted discovery of additional counterweight bricks to CWT of the Lift in 2010, which should have “led to a reasonable chain of inquiry which in all likelihood would have revealed the problems and issues therewith”, Mr Shum submitted D should have looked into and made enquiries on its new case long before 2020. Mr Shum therefore argued that the D/TPs Expert Summons should also be dismissed.

(d)  Discussion

116.   In my view, consideration of the Draft ATPN must start with a proper understanding of P’s expert evidence on liability in the third party proceedings. The Leung 2^nd Report:

117.   In respect of (e) above, although Ir Kong (a) in paragraph 4.3.3 of the Kong Report suggested that (i) D “allowed to implement the wrong method by fixing the old sleeve to the main shaft with high welding temperature and subsequent heat treatment of new sleeve to the main shaft by local factory”, and (ii) “[those] procedures may adversely affect the material property of main shaft and led to failure of the shaft eventually”, and (b) in the Kong Comments on paragraph 15 of the Leung 2^nd Report opined that “the welding heat is the possible cause of the failure since the welding temperature was over 1000ºC as estimated so that the sleeve and shaft can be joined together” with the result that “both ends with weld joint of sleeve had damaged the shaft” (and heat damage was shown on the broken portion of the Traction Shaft seen in the photographs in FIR), Prof Leung and Ir Kong eventually agreed in paragraph 7.1 of the Leung/Kong Jt Report that “the welding temperature damage on the metallic material that was resolved at the expert meeting [ie without prejudice meeting between the experts] as not important”.

118.   The Kong Comments on paragraph 15 of the Leung 2^nd Report opined that “[the] reason for the broken end of the shaft at the portion of diameter of 115 mm was due to the stress concentration at that part after trimming of shaft as well as high welding temperature”, but in light of the agreement between Prof Leung and Ir Kong evident in paragraph 7.1 of the Leung/Kong Jt Report as explained in the above paragraph, Ir Kong’s current opinion on the cause of fracture failure of the Traction Shaft was essentially “stress concentration at that part after trimming of the shaft” (my emphasis).

119.   On this, (a) Prof Leung noted that trimming of the Traction Shaft was not recorded and it was reasonable for D to assume that the first sleeve existed in the original design (see paragraph 116(c)-(d) above), which went to D’s case that it did not know and would not have known about the trimming of the Traction Shaft so that there was no breach of duty in identifying the trimming and safety issues arising therefrom and that it could not have taken any measure to prevent the Accident (see paragraphs 55 and 58 above), and (b) whilst Prof Leung in paragraphs 10-11 of the Leung 2^nd Report (see paragraphs 10-11 of the Leung 1^st Report in paragraph 21 above) agreed stress concentration could cause fatigue crack initiation, he opined that stress concentration was not necessarily created by machine damage and could be created by improper design (eg “[stress] concentration occurs when the radius is small”) notwithstanding perfect machining, and here it was borne out by “the L-shaped radius made by the vertical surface of the 155mm diameter and the horizontal surface of the 90mm diameter after trimming, i.e., the radius at the meeting point of the vertical and horizontal surfaces” (which trimming D averred it did not know and would not have known about), so Prof Leung (disagreeing with Ir Kong) was of the view that crack initiation could take place at any place along the machine-trimmed Traction Shaft and not necessarily at the spot where it actually fractured.

120.   More importantly, Prof Leung opined that fatigue crack initiation alone was not enough to result in fracture failure of the Traction Shaft because for such failure to occur there must have been crack propagation (ie crack growth). According to Prof Leung’s explanation of the S-N curve in paragraph 12 of the Leung 2^nd Report (see paragraph 12 of the Leung 1^st Report in paragraph 21 above), fracture will occur as a matter of time when S (ie stress level) that exceeds the critical threshold of the endurance limit is coupled with N (ie frequency of S occurrences). Ir Kong had no objection on the aforesaid S-N curve for consideration of the endurance limit.[41] So, in relation to the Lift, the question was whether there was such increase in the load/weight of the Lift that (a) the stress intensity exceeded the endurance limit (b) over a period of time caused crack growth/propagation leading to fatigue fracture of the Traction Shaft.

121.   For Prof Leung, in respect of (a) above, quite irrespective of the 1997, 2002 and 2006 renovations, there was objective expert basis for the view that there had been increase in the load/weight of the Lift to move S beyond the endurance limit. According to paragraph 13 of the Leung 2^nd Report (see paragraph 13 of the Leung 1^st Report in paragraph 21 above), as seen in “Photo No 1” of FIR,[42] Prof Leung noted 10 new counterweight bricks at 50kgs each, so there had been increase of 500kgs in load/weight to CWT of the Lift. Prof Leung opined that for “optimal balance” the load/weight of LC of the Lift had to correspondingly increase by 380kgs, so from an engineering perspective there would have been total overall increase in the load/weight of the Lift by about 880kgs, which increase as compared to the total load/weight of the Lift (2,938kgs) based on Victory’s weight measurements represented 30% increase in the load/weight on the Traction Shaft that Prof Leung opined was substantial enough to “move S away from the endurance limit”. For Prof Leung, in respect of (b) above, usage of the Lift with such increased load/weight over the years (whether since 2006 and logically more so if usage was since 1997/2002) would have caused crack growth and eventual fatigue fracture of the Traction Shaft resulting in the Accident.

122.   Thus, there was already expert opinion from Prof Leung that there must have been increase in the load/weight of LC of the Lift because such increase was inevitable from the engineering perspective to achieve “optimal balance” against the known addition of 10 counterweight bricks to CWT of the Lift. Indeed, Ir Kong also agreed there was increase in the load/weight of LC of the Lift to “counterbalance” the counterweight fillers (or bricks) of CWT of the Lift except that (a) he opined there should be equivalent additional load/ weight (say, 500kgs rather than 380kgs) for LC to “counterbalance” equivalent additional load/weight (say, 500kgs) for CWT, but (b) since there was no site measurement/indication as to the mass of the counterweight fillers (bricks) he opined the additional load/weight of the counterweight fillers (bricks) to CWT of the Lift might be about 300kgs “so as to counter balance [LC] decoration”.[43] Taking Ir Kong’s views in (a)-(b) above together, they suggested that if the increase of the load/ weight of CWT of the Lift as a result of the addition of the counterweight fillers (bricks) might be about 300kgs, then equivalent additional load/ weight for LC of the Lift might also be about 300kgs.

123.   Thus, the consensual opinion by both Prof Leung and Ir Kong appeared to be that there should have been corresponding increase in the weight/load of CWT and LC of the Lift for “counterbalancing” or “optimal balancing” purpose, and given the known increase of 10 counterweight fillers (bricks) to CWT of the Lift, the essential difference between Prof Leung and Ir Kong appeared to be whether the actual increase in the load/weight of LC of the Lift was 380kgs or it might be 300kgs (see paragraphs 121-122 above). Further, Ir Kong accepted that an increase “in dead weight of lift is a kind of major alteration by [LESO or LEO]”, and “formal application of resumption permit by lift contractor via submission of Form 7 [under LESO] or LR7 [under LEO] was required”.[44]

124.   Thus, in my view, there had not been shifting of D’s expert opinion or indeed D’s case, which was that overall increase in the load/ weight of LC/CWT of the Lift[45] caused S to exceed the endurance limit and over the years crack growth/propagation eventually led to fracture failure of the Traction Shaft. Thus, D’s case was that but for the aforesaid crack growth/propagation (in respect of which D claimed there was no breach of duty/contract on its part), fatigue fracture of the Traction Shaft would not have occurred.

125.   Given the currently available and essentially consensual expert opinion in the third party proceedings of engineering “counterbalance” and/or “optimal balance” between increase in the load/ weight of LC of the Lift and that of CWT of the Lift, the next relevant matter would be to identify as factual assumption for the experts rather than expert opinion by the experts the event/activity would have resulted in increase in the load/weight of (a) CWT and (b) LC of the Lift.

126.   As for (a) above, notwithstanding the difference of opinion between Prof Leung and Ir Kong as to whether the additional load/weight to CWT of the Lift should be 500kgs or 300kgs (see paragraphs 121-122 above), the factual assumption for the increase in the load/weight of CWT of the Lift posed little problem because the addition of 10 counterweight fillers (bricks) to CWT of the Lift was seen in “Photo No 1” in FIR and referred to in paragraphs 9 and 14 of Mr Chan’s 2^nd witness statement dated 7 March 2019.

127.   As for (b) above, given that Prof Leung and Ir Kong consensually opined there would have been some increase in the load/ weight of LC of the Lift despite their difference over whether it should be 380kgs or might be 300kgs (see paragraphs 121-122 above), the relevant factual assumption was to identify the event/activity that might result in such increase in the load/weight of LC of the Lift for the experts on liability to assess/validate their opinion based on skilled knowledge and experience. Of course, TPs put D to proof of such alleged event/activity at trial, but at this stage the court was not concerned with ultimate proof at trial but with the availability of information/documents for the experts on liability to harness as factual assumptions and for D to responsibly plead its case.

128.   On this, Ir Kong in the Kong Comments on paragraph 13 of the Leung 2^nd Report noted no relevant Form 7 / LE7 had been submitted to and there was no record with EMSD (even though “increasing in dead weight of lift is a kind of major alteration by [LESO or LEO] ……”),[46] and he opined the additional load/weight to LC of the Lift was likely to have been added during the installation stage upon final testing and the commissioning period with full load testing and measurement.[47]

129.   But Prof Leung opined it was the renovations/modifications to the Lift that increased the load/weight of the LC (which increase in dead weight of the Lift was, according to Ir Kong, “a kind of major alteration by [LESO or LEO]”) prior to 2008 (since D who took over as maintenance contractor in 2008 did not carry out such renovations/ modifications), but they were not reported to EMSD and/or made known to D.

130.   Given (a) the objective evidence that the load/weight of CWT of the Lift was increased by the 10 counterweight fillers (bricks), and (b) the consensual expert opinion that the load/weight of LC of the Lift was increased for “counterbalance” or “optimal balance” purpose, and more importantly, given (c) the existence of the 1997, 2002 and 2006 renovations (as clearly known by now) that took place after 1987 when the Lift commenced operation and before 2008 when D became the maintenance contractor, and (d) the absence of any notification/report to EMSD of any major alterations as to increase in dead weight of the Lift (whether by way of statutory forms or otherwise), I find the professional surmises of Ir Kong (ie increase in the load/weight of LC of the Lift was done during the installation/commissioning periods) and Prof Leung (ie such increase in the load/weight of LC of the Lift was done during post-operation renovations) based on their technical/skilled understanding as to the installation, commissioning operation, renovations and modifications of lifts to be arguable,  and much would turn on evidence/ proof to be adduced by the parties at trial and the court’s eventual factual findings (if any) as to when increase in the load/ weight of LC of the Lift took place, and why there had not been any relevant notification/application to EMSD, which factual findings would determine the vitality of the factual assumptions on which differing expert opinion rested.

131.   But on the anterior question of formulation of proper factual assumptions for the experts, the starting point must be that there was no factual information/documents at all that showed the additional load/ weight to LC of the Lift was “added during the installation stage upon final testing and commissioning period with full load testing and equipment”. Indeed, paragraph 7.2 of the Leung/Kong Jt Report stated that “[the] influence of the addition of nearly 500kg decoration weight and 500kg counter weight on [the Lift] remains an issue to check with manufacturer if the original design had such allowance” (see paragraph 26 above).

132.   At the time when D framed its third party claim in the TPN, post-operation renovations to the Lift prior to 2008[48] known to D with documented particulars and/or submission of relevant statutory forms to EMSD (bearing in mind that it was D’s case that the overall increase in the load/weight of the Lift amounted to major alterations) were the 2006 renovations. So in the TPN D (against the background of the matters in paragraph 130(a)-(d) above (except for the 1997/2002 renovations which D claimed not to have particular knowledge at that time)) specifically referred to such 2006 renovations but at the same time complained about the non-notification about the increase in the load/weight of the Lift.

133.   Although the Yeung EMSD Statement and Mr Yeung’s witness statement dated 12 March 2019 referred to replacement of the floor panels of the Lift with marble flooring (see paragraphs 15-16 above), there was no particularised information as to what was the precise scope/ ambit of such works and what materials were used as the former statement merely referred to replacement of “地下外門及內門” and “旁板” of the Lift in 1997, but the latter statement mentioned mirrors were added.

134.   It was suggested that discovery in March 2010 of the additional counterweight fillers (bricks) to CWT of the Lift should have led to a reasonable chain of enquiry which in all likelihood would have revealed the problems/issues therewith (see paragraph 115 above). Whilst the question whether in March 2010 D had any statutory, common law or contractual duty to undertake such chain of enquiry and whether such enquiry if undertaken would have revealed the problems/issues therewith as alleged might be matters for trial, it was all along D’s case that it could not have and was not required under common law or the Contracts to discover for itself the 1997/2002 renovations done to the Lift, especially when there should have been documentary trail with EMSD for major alterations to alert D. It is not for this court at this stage to form any definitive view on such dispute.

135.   Further, I am unable to see how D could have done more when it prepared its pleadings, served statement evidence and instructed its expert on liability in the third party proceedings on the basis that it was led to believe it was not possible to make further investigations because (a) EMSD had no record of the 1997 renovations, and (b) even though the Yeung EMSD Statement claimed there was documentary record of such renovations, the subsequent Yeung Witness Statement dated 12 March 2019 confirmed the relevant documentary records were no longer retained due to long lapse of time. In my view, there was at that stage paucity of particulars for D to responsibly plead that the 1997 renovations contributed to significant increase in the load/weight of the Lift. Indeed, D did not even know then that some renovations took place not in 1997 but in 2002. Bearing in mind that from an engineering perspective there would have been increase in the load/weight of LC of the Lift to “counterbalance” or “optimally balance” the additional load/weight to CWT of the Lift, with no evidence of pre-operation increase in the load/weight of the Lift, and with paucity of particulars for the 1997/2002 renovations, it was little wonder that Prof Leung and/or D relied on the then available factual assumption of the 2006 renovations for the increase in load/weight of the Lift, but complained of lack of notification to EMSD and/or to D.

136.   But the specific statement in the Yeung Witness Statement dated 12 March 2019 that renovations to LC of the Lift were no longer retained due to long lapse of time was in fact wrong because TPs all along retained the 27 Pages that included documents pertaining to the 1997/2002 renovations, which error was compounded by the fact it was Mr Yeung himself who prepared the Table and who collated/compiled the 27 Pages. This only came to light through the forensic diligence of Mr Tang (see paragraphs 30-31 above) even though, I must say, the absence of any description as to the information in the last column in the Table might not have alerted a less enquiring mind of the possibility of 27 pages of supporting documents that were yet to be sighted.

137.   The now available 27 Pages revealed detailed particulars of the scope/ambit of works, materials used and costs expended in the 1997/2002 renovations, so now there would be basis for D to responsibly plead the fracture failure of the Traction Shaft on the basis of such renovations. It was said that such proposed plea was vague and “fishing” because the 27 Pages did not precisely say the increase in the load/weight of CWT of the Lift was added in 1997/2002 or that the 1997/2002 renovations increased in the load/weight of LC of the Lift by 380kgs. But proof was not necessarily by direct evidence. If the new pleas were allowed, I believe D would be asking the court to infer and conclude from the overall circumstances, including (a) the load/weight of CWT of the Lift was increased by 500kgs (according to Prof Leung’s opinion) prior to 2008, (b) the load/weight of LC of the Lift was increased by 380kgs for “optimal balance” (according to Prof Leung’s opinion), (c) the very nature of the 1997/2002 renovations suggested the works would have increased the load/weight of LC of the Lift (according to the 27 Pages but subject to further opinion by the experts on liability), and (d) there was no information that increase in the load/weight of LC of the Lift was made during the installation/commissioning periods, that the increase in the load/ weight of LC of the Lift in (b) above would have been caused by the 1997/2002 renovations in (c) above. Even without further expert report from Prof Leung, I am unable to say such plea was speculative or embarrassing; indeed, I go further to say that such plea was arguable, but whether it would succeed to convince the trial judge would be a matter for trial.

138.   I also do not agree the proposed amendments raised any new focus/dimension. It had always been D’s case and the tenor of Prof Leung’s opinion that the additional load/weight to CWT/LC of the Lift caused crack growth/propagation and eventual fatigue fracture failure of the Traction Shaft, and that it was the additional counterweight fillers (bricks) that increased the load/weight of CWT and the pre-2008 renovations that increased the load/weight of LC. The problem for D and Prof Leung was that prior to discovery of the 27 Pages they had not been provided with fullness of information as to the 1997/2002 renovations for D to responsibly plead them as material facts and to provide them as relevant factual assumptions for Prof Leung for him to assess his propositions and to render his full opinion. It was for Prof Leung to give opinion (if he could) on whether from an engineering viewpoint the scope/ambit of works, materials used and costs incurred in 1997/2002 renovations as shown in the 27 Pages could enlighten whether the load/weight thereby added to LC of the Lift would be about 350kgs or at least would sufficiently move S beyond the endurance limit. Had the 27 Pages been available to D at an earlier time, I have no doubt they would have been provided to Prof Leung and Ir Kong, and as experts on liability they would/should assist the court by saying whether the information therein would allay some/all of their stated queries and/or concerns (as expressed in their current expert reports) as to whether such increase in the load/weight of LC of the Lift (when they had already opined there would have been some increase in weight/load of LC of the Lift due for “counterbalance” or “optimal balance” purpose) could be technically established. To say there was a shift in focus/dimension from the 2006 renovations to the 1997/2002 renovations was to lose sight of the above-mentioned foundation of D’s case and the tenor of Prof Leung’s opinion made a time when they were constrained by non-discovery of the 27 Pages pertaining to the 1997/2002 renovations that restricted the existing pleaded case of D and the factual assumptions for Prof Leung.

139.   On the above analysis, I disagree that the proposed amendments were “inconsistent” with Prof Leung’s opinion or alternatively it was tailor-made to “fit” Prof Leung’s opinion to make it sound more “probable” or “supported”. In my view, it could not have been any “reverse engineering” because as explained above, quite irrespective of the 1997, 2002 and 2006 renovations, Prof Leung was able to and did opine from an engineering perspective there had been increase in the load/weight of LC of the Lift by 380kgs, and the pertinence of these renovations was for correlation of factual assumptions to such engineering expert opinion and for facilitating pleading of material facts to permit proof of such assumptions at trial. The so-called “inconsistency” and/or “reverse engineering” was because D was hobbled by the non-availability of the 27 Pages until quite recently.

140.   But Mr Lin submitted TPs had no obligation to make discovery of the 27 Pages, which he claimed was irrelevant on D’s existing pleadings. I disagree. In my view, the 27 Pages plainly pertained to a “matter in question” in the present action, ie how the increase in the load/weight of the Lift came about, which increase in load/weight was, on D’s case, what led to the eventual fracture failure of the Traction Shaft. On the Peruvian Guano test requiring disclosure of documents that may fairly lead to a chain of inquiry on such “matter in question”, the 27 Pages were plainly discoverable as tending to show there were earlier renovations that added load/weight to the Lift, which might show crack propagation (ie increased load/weight of the Lift that would move S away from the endurance limit and longer period of usage of the Lift with additional such load/weight since 1997 instead of 2006 that would add to N frequency), especially when the existence of the 27 Pages were known to TPs but not to D. It was no answer for TPs to say D could have made its own enquiries when the Yeung Witness Statement dated 12 March 2019 erroneously stated documentary records of such earlier renovations were no longer retained. Since the 27 Pages were properly discoverable, then quite irrespective whether it took D a while to put a finger on the same, TPs in the first place had an obligation to discover such documents as being relevant in the Peruvian Guano sense, and could not defer such disclosure and complain about delay and lateness when D later stumbled on such documents.

141.   Mr Lin submitted the proposed amendments were unhelpful in that they would be irrelevant (a) if D successfully defended P’s claim in the main action then no issue of contribution/indemnity would arise, but (b) if D were found liable to P in the main action then D could not blame TPs for its own liability to P (see paragraph 106 above). If Mr Lin were right in such argument, then D’s pleadings as to the increase in the load/weight of the Lift (irrespective whether D relied on the 2006 renovations or the 1997/2002 renovations) would have been without merit at all. Yet not only was there no attempt to strike out such existing pleas, TPs engaged D in pleadings (even up to the ARejoinder), statement evidence and expert evidence in the expectation that such dispute would be tried in due course. Under the TPN, it was D’s case that if D were liable to P, D failed in its duty to P because TPs had been negligent vis-à-vis D. P might argue D had a duty to discover the problems or safety issues with the Lift and to take appropriate remedial steps, but D (if found liable to P) claimed it was unable to discharge its duty to P because TPs kept it in the dark. Whether TPs could successfully resist such claim by asserting it had no such duty to D and/or no breach of such duty (if any) would be a matter for trial. Here, at issue before me was not the fundamental cause of action in the third party proceedings but whether D should be allowed to rely on the 1997/2002 renovations rather than the 2006 renovations for its claim.

142.   By reason of the above analysis, I disagree with Mr Shum’s submissions in paragraphs 112-113 above that the proposed amendments were speculative and not supported by any expert opinion. Instead, I find the existing expert evidence supportive of D’s contention that there was increase in the load/weight of the Lift, and the recent discovery of the 27 Pages allowed D to now responsibly plead its proper case. The fact D wrote to the 1^st TP on 28 November 2012 in the manner set out in paragraph 115 above would not necessarily establish the proposed amendments were hopeless since such letter must be read in the context of D’s case that (a) in 2010 the 1^st TP assured D of the propriety of the addition of the 10 counterweight fillers (bricks) to CWT of the Lift, (b) in 2010 D did not know the full particulars of the 1997/2002 renovations and the 27 Pages were not yet available to D, and (c) D expected what it believed to be major alterations of increase in dead weight of the Lift to be notified to EMSD but there was no such notification/certificate/report. I cannot say the proposed amendments which set out D’s case more fully in light of further discovery from TPs would be unlikely to succeed.

143.   In my view, D should be allowed to amend the TPN in the manner marked in red as per the Draft ATPN. P claimed it was far too late to force TPs to scramble up a response. But I note there was just under a year until trial, which would be time enough for D/TPs to obtain further expert report on the 1997/2002 renovations in light of the 27 Pages. In any event, as explained in Part XVI below, the parties at the Hearing agreed to obtain a tripartite joint expert report by Ir Lo, Prof Leung and Ir Kong covering broad expert issues that should have been canvassed by them as experts on liability. In such circumstances, I am unable to see how TPs would be prejudiced by the need to obtain further expert report. As explained in Part XIII above, expert opinion is only as good as the vitality of the underlying factual assumptions. In my view, in light of the present expert opinion of Prof Leung and Ir Kong as explained above, it would be plainly relevant and necessary for such experts to consider the recently disclosed 27 Pages with detailed particulars of the works/ materials for the 1997/2002 renovations in fully formulating their views to assist the court.

144.   As for Mr Lin’s allusion to prejudice that might arise from investigation into the 1997/2002 renovations, I find that D issued the Third Party Proceedings Summonses with reasonable alacrity after it had access to the 27 Pages, obtained TPs’ Answer to its interrogatories and unsuccessfully approached TPs for consent to such applications. Mr Yeung who compiled the Table and the 27 Pages was an available witness. If he had any further recollections about such renovations, it would not be difficult and there would be time for him to supplement his existing statement evidence. Mr Yeung had confirmed that TPs’ other documentary records (if any) were no longer available. The current logbook for the Lifts is obviously available. Earlier logbooks were stored in a storeroom of the Building (see paragraph 80 above). Enquiries with EMSD had been exhausted. In the year ahead, there would be time enough for D to make enquiries with and seek discovery against Holake if needed.

145.   Whilst I agree the trial that had been set down to commence on 9 March 2022 is a milestone event which this court is most unlikely to move or vacate notwithstanding the current developments (and any attempt by TPs to pursue fourth party proceedings must take this into account), it must be remembered that under section 6 of the Limitation Ordinance Cap 347 time would still run for TPs to commence proceedings to claim contribution against Holake if so required after the trial in the present action, but to debar D from raising the proposed amendments will permanently truncate the fullness of D’s third party claim. Thus, even taking into account the case management considerations and underlying objectives (including the real possibility that TPs might not be able to pursue fourth party proceedings in the present action) as well as the need for fair and just resolution of disputes, I find it necessary and just to allow the proposed amendments in the Daft ATPN and to allow the 1997/2002 renovations be put to the experts in the third party proceedings and to seek their further opinion thereon.

XV.   AMEND ADEFENCE AND P/D EXPERT SUMMONSES

(a)  D’s contentions

146.   Mr Wong explained that due to P’s change of heart not to temporarily stay the main action pending resolution of the third party proceedings (presumably following TPs’ refusal to adopt such approach) and TPs’ recent disclosure of the 27 Pages, D found it necessary to further amend the ADefence to set out the material facts outlined in Part XII above, which proposed re-amendments were in line with the proposed amendments to the TPN. Mr Wong submitted that for similar reasons a supplemental expert report should be obtained from Ir Lo and Prof Leung to address on the increase in the load/weight to LC of the Lift in relation to the 1997/2002 renovations, which D claimed to be major alterations that were not notified to EMSD / D.

(b)  P’s contentions

147.   Mr Shum submitted that the Amend ADefence Summons merely sought to plead the 1997/2002 renovations as allegedly having contributed to the cause of the Accident, and that it appeared D believed the 1997/2002 renovations in addition to those in 2005 would have a bearing on the liability of D/TPs, ie D was not saying the 1997/2002 renovations were the sole cause of the Accident in 2012 (ie after the Lift was in regular use at least for 10 years since the 2002 renovations).

148.   This point could be easily dealt with. Whilst D retained its averments in respect of the 2005/2006 renovations in the Draft ATPN and Draft RADefence, it was made clear in those draft pleadings that it was the 1997/2002 renovations and not the 2005/2006 renovations that increased the load/weight of LC of the Lift (see paragraph 83(b) and (d) and paragraph 84(b) above). All along, D pleaded that “[LC] was renovated with addition of granite flooring and false ceiling and new walls to change the Lift from a cargo lift to a passenger lift” (see paragraph 83(b) and 84(b) above), but that was without the benefit of detailed particulars evident from the 27 Pages. Upon the availability of the 27 Pages, D was able to plead the particularised renovations in 1997/2002 in place of the pre-existing averments, and to rely on the actual renovations in 1997/2002 for its assertion that there had been an increase in the load/weight of LC of the Lift. In short, the proposed re-amendments were to bring D’s pleadings in line with the now available documentary evidence.

149.   Mr Shum next argued the proposed amendments were irrelevant to P’s claim against D in the main action. It was said the Lift was not safe for use at the time of the Accident, and P basically claimed D in holding itself out as an experienced maintenance contractor failed to maintain the Lift in safe condition for use by lift-users, and therefore it was in breach of or failed to discharge its common law tortious duties to lift-users, which breach/failure caused the Accident. In particular, P claimed (a) D was negligent in failing to replace the traction machine of the Lift when it knew the diameter of the Traction Shaft had been trimmed from 100mm to 90mm to allow insertion of the sleeve, which trimming resulted in stress concentration and metal fatigue that caused the facture failure of the Traction Shaft that led to the Accident, and (b) suggested D knew these matters as it was D who requested TPs to replace the traction machine and the Traction Shaft. So if it were found at trial that (i) it was the trimming of the diameter of the Traction Shaft from 100mm to 90mm to allow insertion of the sleeve that resulted in stress concentration and metal fatigue that caused the fracture failure of the Traction Shaft, and (ii) D was negligent in failing to cause the traction machine to be replaced/repaired to render the Lift safe for use, then D would have been liable to P and whether there were other contributing causes of the Accident and/or contributing tortfeasors jointly and severally liable together with D were irrelevant when the main action (in contra-distinction to the third party proceedings) was not concerned with the apportionment of liability among contributing causes/tortfeasors.

150.   Mr Shum argued that the Main Action Summonses appeared to be attempts in the main action to mirror the Third Party Proceedings Summonses and the proposed amendments in the Draft ATPN to cast blame on TPs (and/or others) for not making known the 1997/2002 renovations to D as possible cause of the Accident, but the proposed amendments were irrelevant in the main action in the sense that if P failed to prove its pleaded case against D on negligence/causation in relation to the traction machine, P’s claim would fail irrespective of the proposed amendments, which proposed amendments would only serve to unnecessarily increase costs/efforts for P and lead to disproportionate time/costs to be expended in the main action. Mr Shum submitted such argument was reinforced by the fact P would not be contributorily negligent (indeed there was no plea to such effect in the Draft RADefence), so the apportionment of liability among contributing causes/tortfeasors which might be pertinent for the third party proceedings had no bearing in the main action that concerned one issue, ie whether D was liable to P in the manner as pleaded. On such basis, it was said to be expedient to limit issues and expert evidence in the main action, and the Main Action Summonses should be dismissed.

(c)  Discussion

151.   In my view, Mr Shum’s arguments focused on P’s claim, ie the alleged cause of the fracture failure of the Traction Shaft due to trimming and D’s alleged duty to replace the traction machine, but at this pre-trial stage this court cannot take such a blinkered view without keeping in mind D’s defence.

152.   I can deal with one matter shortly. In relation to P’s allegation that D was negligent in failing to replace the traction machine, it was D’s case that it did suggested that to TPs who declined such suggestion (see paragraph 56 above). This was a factual issue that had been pleaded.

153.   As regards P’s claim the fatigue fracture of the Traction Shaft was caused by the trimming of such shaft resulting in stress concentration and metal fatigue, D in its ADefence denied P’s claim, put her to proof, and claimed it had no knowledge of the trimming of the Traction Shaft. This was bolstered by Prof Leung’s opinion that it was reasonable for D to be unaware of the modification by trimming to allow insertion of the sleeve and to assume that the sleeve was the original design.

154.   But additionally D wished to positively aver that even though the trimming and/or reduction in diameter of the Traction Shaft might lead to fatigue crack (see paragraph 50 above), the fatigue fracture failure of the Traction Shaft was caused by the increased load/weight of the Lift for which it was not liable (ie crack propagation as referred to by Prof Leung). This was not mere finger-pointing at a co-tortfeasor for contribution/indemnity and/or a matter of apportionment of liability; rather it was D’s contention that P’s claim against D would fail not merely P would fail to prove her case but because D was able to establish a distinct “but for” element (for which D claimed it was not liable) without which the fatigue fracture of the Traction Shaft would not have occurred. I see no reason why D should not be allowed to plead such positive defence, which had already been alluded to in the ADefence but which now required revision to set out its fullness due to the recent availability of the 27 Pages.

155.   For reasons discussed in Part XIV above, I am not persuaded that the defence put forward in the proposed re-amendments to the ADefence were without merit. I have discussed at length Prof Leung’s opinion in the Leung 2^nd Report and in the Leung/Kong Jt Report. The same or similar opinion was given by Prof Leung in the Leung 1^st Report and the Lo/Leung Report. It would be useful to cite his succinct observation in item 4(4) of the Lo/Leung Report that “[the] root cause of failure was the additional load of 880kg to the [Traction Shaft] ……” (see paragraph 24 above). Mr Shum reminded that the Lift remained in use for at least 10 years after the 1997/2002 renovations, but I do not see such submissions as detracting from the merits of the proposed re-amendments for Prof Leung opined it was a combination of S level and N frequency (ie the length of time that the Lift with its additional load/weight was in use) that led to the propagated fracture failure of the Traction Shaft.

156.   Mr Shum complained about the lateness of the proposed amendments, but I have found such delay was not due to D’s own making but due to the late availability of the 27 Pages that finally allowed it to responsibly plead the proposed re-amendments and to put such documentary evidence to the experts on liability. It was true that P would have some investigation to make and perhaps some discovery to seek, but in this case D had made clear it did not have information as to the 1997/2002 renovations, and there was the fortuity of the third party proceedings such that any further information/documents from those proceedings would be made available in the main action. It had been agreed at the Hearing that documents/witnesses in both the main action and the third party proceedings would be common evidence in both proceedings (although the disputed issues to be resolved would be different). As for further expert evidence, I reiterate the matters in paragraph 139 above and Part XVI below. Taking into account the need for just resolution of disputes and other case management considerations and underlying objectives, bearing in mind there was just under a year to trial, I find it necessary and just to allow the proposed re-amendments in the Daft RADefence and to allow the 1997/2002 renovations be put to the experts on liability in the main action and to seek their further opinion thereon.

XVI.   EXPERT REPORTS

157.   As explained in paragraphs 18-19 above, Master Roy Yu directed the parties in the main action and the parties in the third party proceedings to render expert reports on following issues:

158.   To start, FIR contained technical/skilled opinion by Mr Ng. But normally it is not necessary for any party to seek leave to adduce Mr Ng’s opinion in FIR at trial as expert evidence because each party (if it wished) would have obtained leave to adduce her/its own comprehensive expert evidence on liability and causation, and FIR (including Mr Ng’s opinion therein) would be part of the background in relation to the investigation of the Accident which the experts on liability would refer to in setting out their own findings and their own opinion on liability and causation.

159.   The experts in their solo reports were expected to conduct comprehensive review information/documents provided to them and to give their own comprehensive opinion (and reasons therefor) on liability and/or causation. If there are any aspects of the expert issues in respect of which they were unable to give opinion with any certainty or at all, they would be obliged as experts to say so and give explanations in their reports.

160.   This is important because, as I have explained in paragraph 88 above, experts on liability and causation serve a dictatic function apart from giving expert opinion. Here, I would have expected the experts on liability to have explained (on instructions, information and documents available to them and so far as they were able) inter alia the structure of the Lift system, its original design, current structure, modifications, properties, installation, commissioning, function/operation of relevant parts/equipment, examinations, maintenance, repairs and major alterations, and to have further explained who was responsible for what matters (in light of the contractual, industry/trade, EMSD and statutory requirements). I would also have expected the experts on liability and causation to give an account of the failure of the Lift that caused the Accident, and to explain (as far as they could) the immediate cause(s) for such failure, the facts/ matters concerning the Lift system that led to those immediate cause(s), and what acts/omissions by which responsible person(s)/party(ies) resulted in the direct/indirect causes of such failure. In doing so, the experts might refer to FIR to illustrate and/or elaborate their own views on the above matters, but their comments on certain parts of FIR could not replace their primary duty as experts on liability and causation to set out their own views.

161.   Then I would have expected the experts on liability and causation in the main action to explain the standard of care expected of a professional maintenance contractor under statutory requirements, relevant terms of contract and common obligations in the trade/industry under the usual Bolam requirements, and to give opinion whether D had failed to meet such threshold. Likewise, the experts on liability and causation in the third party proceedings would also have been expected to address on the above matter, and also (if they could from their skilled knowledge/ experience in dealing with lifts in buildings owned by lift owners and managed by property managers) on what corresponding duties/obligations lift owners and property managers owed under statute, contractual terms and/or industry/trade.

162.   Once the experts on liability and causation have completed their solo reports, if so directed by the court, I would have expected them to attend without prejudice meeting and to engage with each other in working out their agreements and disagreements, and to set out their consolidated opinion in a joint report. The joint report should set out the matters agreed, and identify the areas of disagreement, set out the respective expert opinion on each area of disagreement and their reasons for disagreement. Where concession was made with revision of views expressed in earlier solo reports, this should be made clear in the joint report with reasons given.

163.   Expert opinion on liability and causation to be useful to the lay trial court should follow the above approach. To simply critique certain parts of FIR avoids the dictatic function of expert opinion, and raised uncertainty as to (a) whether the experts on liability/causation agreed or disagreed with other parts of FIR that might form the underlying factual or engineering basis upon which Mr Ng gave his opinion, and (b) whether the experts’ own opinion on liability and causation was based on their own findings and views in contra-distinction to their mere opinion on Mr Ng’s technical/skilled opinion.

164.   But the narrowed approach adopted in paragraph 157 above led the experts on liability and causation to look upon their task as a critique of Mr Ng’s comments in sections 5-7 of FIR. Consequently, as evident from the Leung/Kong Jt Report, Prof Leung and/or Ir Kong asked EMSD to provide information/proof of various matters in those parts of FIR,[49] asked for clarification on “weld” referred to in FIR and “燒低溫銅焊” referred in paragraph 9 of Mr Keung’s witness statement dated 2 May 2017,[50] and sought technical information/drawing of the original geometry of the Traction Shaft from the original manufacturer and comparison thereof with other Lifts in the Building.[51] This was borne out even more starkly in paragraphs 4.2.1-4.2.5, 4.2.7, 4.2.7 and 4.2.11 in the Kong Report, which question-raising exercise formed the bulk of his “opinion” on sections 5-7 of FIR. These concerns illustrated other similar ones that generally beset the existing expert reports (including those in the main action), and there was no present need for this court to be exhaustive given counsel’s agreement to obtain further tripartite expert report on liability and causation (see paragraph 168 below).

165.   Further, because the experts on liability and causation in compiling their reports were asked to focus their comments on sections 5-7 of FIR rather than on their own opinion on liability and causation in the manner explained in paragraphs 159-162 above, they often stopped short giving reasoned opinion on relevant expert issues. An illustration can be found in paragraphs 5.1 and 5.3 of the Leung/Kong JT Report where Leung opined that the sleeve (revealed by ultrasound examination in October 2011) could not have been discovered on normal inspection, and Kong disagreed by saying D was required to carry out full/thorough examination of all Lifts of the Building and from time to time to carry out regular examination of the Lift, and as “a professional lift contractor who was engaged to provide professional lift maintenance services under the Contracts, [D] should have sufficient technical knowledge, expertise and support to verify the case of the main shaft problem”. But these assertions (rather than reasoned opinion) by the experts would not tell the court (a) what was required to be done on a “normal inspection”, (b) why by reason of the configuration of the Traction Shaft and/or the work to be done on a “normal inspection” D would not have noticed (as Prof Leung claimed) or would have noticed (as Ir Kong asserted) the insertion of the sleeve and the trimming of the shaft, (c) whether D should have discovered the trimming of the Traction Shaft when the sleeve was discovered in October 2011 or whether the sleeve/trimming should/could  have been discovered earlier and the reason therefor, and (d) what D should have done when it discovered the sleeve in October 2011 or had the sleeve/trimming been discovered earlier. To say D as a professional lift contractor should have sufficient technical knowledge, expertise and support to verify such matters would not tell the parties/court much.

166.   Although paragraph 4.3.3 of the Kong Report stated “the worn sleeve and main shaft should be replaced properly so as to rectify the oil leakage and maintain sufficient strength of the motor shaft during the period of 21 October 2011”, this was not repeated in the Leung/Kong Jt Report, and it was unclear whether this meant (a) the whole Traction Shaft with sleeve should be replaced by a new one or (b) repairs could be done to fix the old sleeve to the Traction Shaft if “high welding temperature” and “heat treatment” were not involved. If the interpretation was (a) above, its vitality would turn on a factual dispute over whether replacement was proposed and/or declined. But if the interpretation was (b) above, there was further uncertainty because the Leung Comments on paragraph 4.3.3 of the Kong Report disputed use of “high welding temperature” and “heat treatment”, and in paragraph 7.1 of the Leung/ Kong Jt Report Kong agreed “[the] welding temperature damage on the metallic material …… was resolved at the expert meeting as not important”. Prof Leung and Ir Kong did not elaborate further on “not important”, which seemed to suggest Ir Kong no longer maintained paragraphs 4.2.8 and 4.3.3 of the Kong Report and the Kong Comments on paragraph 15 of the Leung 2^nd Report. The above matters were put forward as illustration of similar concerns in various aspects of the available expert reports.

167.   Another concern that drove the need to revisit the available expert reports was the case management approach adopted towards obtaining expert reports in the main action and in the third party proceedings. Since Prof Leung as D’s expert on liability for both the main action and the third party proceedings was required to give his full and comprehensive opinion to the court, it is difficult to see how his opinion in the Leung 1^st Report and the Lo/Leung Jt Report could be shut out from the third party proceedings, and how his opinion in the Leung 2^nd Report and the Leung/Kong Jt Report could be shut out from the main action, when his opinion in those reports touched on the same or similar subject matter. It was even more worrying if there was segregation of Prof Leung’s viva voce evidence at trial for the main action and for the third party proceedings given the real risk of different/conflicting evidence and outcomes.

168.   All of the above matters cried out for a tripartite expert report by Ir Lo, Prof Leung and Ir Kong on the expert issues in dispute along the lines as explained in paragraphs 159-162 above. I am glad to say that at the Hearing Mr Shum, Mr Wong and Mr Lin all agreed to such approach, and they also sensibly agreed for the trial court to try the main action and the third party proceedings together with lay/factual evidence adduced for common use at both sets of proceedings, but leaving counsel to submit on and the trial court to determine the common and distinct issues in the main action and in the third party proceedings.

169.   For the new tripartite report to be obtained, the parties should sensibly agree on a common bundle of documents for use by the experts on liability, joint instructions to such experts that give guidance on the proper approach to compilation such tripartite expert report, and joint expert questions to be put to such experts. With opportunity now to prepare a comprehensive tripartite expert report, the parties experts on liability should also be reminded to incorporate all their opinion in the tripartite joint report so as to obviate the need to cross-reference to their various earlier reports and thus save parties’ efforts/time at trial (but without prejudice to the parties’ right to cross-examine the experts on their earlier reports). It would also obviate the need to debate the status and admissibility of the “provisional” Lo Report, Leung 1^st/2^nd Reports and Kong Reports as well as the Leung/Kong Comments. The experts, if they could, should also be asked to prepare a bilingual glossary of relevant technical terms since Chinese technical terms were used in the factual witness statements but the experts’ reports were compiled in English.

170.   That leaves one further matter for consideration, ie what would be the status of FIR at trial. At present, there were no directions for leave to adduce Mr Ng’s opinion expressed in FIR as expert opinion at the trial in the present action. I note D had issued a writ of subpoena ad testificandum against Mr Ng. Could any party call Mr Ng to give opinion evidence without expert directions? Could the party who called Mr Ng to give evidence cross-examine him? The need for viva voce evidence from Mr Ng should be re-visited by the parties after the tripartite joint expert report on liability is obtained. If Mr Ng should be called to explain his views in FIR, would allowing him to adopt FIR as his evidence in chief and all parties to cross-examine him be a fairer approach in the particular context of this case when the parties’ experts on liability have all commented on parts of FIR?

XVII. CONCLUSION

171.   In respect of the Amend TP Summons, I grant the following orders in the third party proceedings:

172.   In respect of the Amend TPN Summons, there be a costs order nisi that (a) 1^st/2^nd TPs shall pay D costs of and occasioned by the Hearing insofar as it concerned the Amend TPN Summons to be taxed if not agreed, and (b) save for (a) above, costs of and occasioned by the amendments (including costs of the Amend TPN Summons) be paid by D to 1^st/2^nd TPs (including all costs reserved, if any) to be taxed if not agreed.

173.   In respect of the Amend ADefence Summons, I grant the following orders in the main action:

174.   In respect of the Amend ADefence Summons, there be a costs order nisi that (a) P shall pay D costs of and occasioned by the Hearing insofar as it concerned the Amend ADefence Summons to be taxed if not agreed, (b) save for (a) above, costs of and occasioned by the amendments (including costs of the Amend ADefence Summons) be paid by D to P (including all costs reserved, if any) to be taxed if not agreed, and (c) P’s own costs be taxed in accordance with Legal Aid Regulations.

175.   As for the D/TPs Expert and P/D Expert Summonses, D had generally succeeded on such summonses as I have allowed D to obtain further expert report on liability in relation to the 1997/2002 renovations. However, in light of the matters raised in Part XVI above, it would be more appropriate to obtain a rolled-up tripartite joint expert report on liability and causation that addressed the matters in Part XVI above and also the 1997/2002 renovations. I therefore direct the parties to jointly write to the court within 14 days from the date of this order to propose case management directions at the formal order under the D/TPs Expert and P/D Expert Summonses.

176.   I grant a costs order nisi under the D/TPs Expert Summons that (a) 1^st/2^nd TPs shall pay D costs of and occasioned by the Hearing insofar as it concerned the D/TPs Expert Summons to be taxed if not agreed, (b) save for (a) above, costs of and occasioned by P/D Expert Summons (including all costs reserved, if any) be costs in the cause of the third party proceedings.

177.   I grant a costs order nisi under the P/D Expert Summons that (a) P shall pay D costs of and occasioned by the Hearing insofar as it concerned the P/D Expert Summons to be taxed if not agreed, (b) save for (a) above, costs of and occasioned by the P/D Expert Summons (including all costs reserved, if any) be costs in the cause of the main action, and (c) P’s own costs be taxed in accordance with Legal Aid Regulations.

XVIII. POSTSCRIPT

178.   It is an underlying objective of the RHC for the courts to encourage settlement. Trial dates have been set in this case, and the aim of this decision is to deal with the outstanding case management steps to ready the case for trial. That said, I hope that the above discussion will also help the parties see more clearly not only their own respective stance, but also the stance/evidence of the other parties to help them take stock of the present litigation. As fairly acknowledged by the D and TPs, P is unlikely to be contributorily negligent. The parties may therefore wish to find an opportune moment (whether before or after the tri-partite expert report on liability is obtained) to consider mediation, or (if they had been to mediation and failed) to re-consider further mediation in the light of the updated litigation scene.