FONG CHONG CHUEN v. THE BOYS’AND GIRLS’CLUBS ASSOCIATION OF HONG KONG

DCPI 548/2018

[2020] HKDC 360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 548 OF 2018

(Transferred from High Court Personal Injuries Action No 941 of 2016)

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BETWEEN
	FONG CHONG CHUEN	Plaintiff
and
	THE BOYS’ AND GIRLS’ CLUBS ASSOCIATION OF HONG KONG	Defendant

---------------------------

Before: Deputy District Judge K C Hui in Chambers (Paper disposal)

Date of the Defendant’s Submissions: 26 February 2020

Date of the Plaintiff’s Submissions: 12 March 2020

Date of the Defendant’s Reply to the Plaintiff’s Submissions: 18 March 2020

Date of the Defendant’s Supplemental Submissions: 21 April 2020

Date of the Plaintiff’s Response Submissions: 4 May 2020

Date of the Defendant’s Reply to the Plaintiff’s Response Submissions: 12 May 2020

Date of Decision: 16 June 2020

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DECISON

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INTRODUCTION

1.  This Court handed down a judgment dated 15 October 2019 (the “Judgment”) in favour of the plaintiff (“P”) for damages. By a Summons dated 11 November 2019, the defendant (“D”) made an application for leave to appeal against the Judgment pursuant to RDC O 58 r 2(4)(b), and a stay of execution of the Judgment pending the proposed appeal.

2.  In this Decision, I will adopt the definitions and abbreviations in the Judgment.

3.  The brief background of the present case can be summarised as follows.  P was a participant of an orienteering activity organised by D in Sha Lo Tung, Tai Po.  He had an accident during the Activity.  While he was standing on the Bridge near Checkpoint 2 with two other teammates (namely, Wong and Tong), one of the beams of the Bridge broke.  As a result, P fell into the stream below the Bridge and sustained personal injuries.

4.  It was not disputed that D, as organiser of the Activity, owed a duty of care to P.  In the Judgment, I found that D should reasonably have foreseen that at least 3 participants of the Activity would use and be on the Bridge at the same time.  I also found that D’s scope of duty of care included the duty to test and/or ascertain whether the Bridge could hold at least 3 participants before the commencement of the Activity.  Having found that D had failed to do so, I came to the conclusion that P was successful in its claim and entered judgment for damages in his favour.

D’S LEAVE TO APPEAL APPLICTION

5.  Section 63A(2) of the District Court Ordinance (Cap 336) provides that:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that-

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

6.  The threshold for granting leave to appeal is a “reasonable prospect of success” or the “interests of justice” test.  In SMSE v KL [2009] 4 HKLRD 125 at 129, Le Pichon JA stated at §17 that:-

“Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.”

7.  Chu J (as she then was) stated in Wynn Resorts (Macau) SA v Mong Henry HCA 192/2009 (unreported, 10 August 2009) at §19 that:-

“To meet the “reasonable prospect of success” test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.”

8.  D’s summons for leave to appeal included a draft Notice of Appeal which set out 9 proposed grounds of appeal.  I will deal with each of D’s grounds of appeal below according to the issues raised in those grounds of appeal.

(A) Ground 1 §1(a); Ground 5 §6: Necessity of specifically pleading the cause of the collapse of theBridge

9.  D submits that the Court erred in law in finding that the Bridge collapsed because it could not hold the combined weight of P, Wong and Tong.  D makes the point that the Court should not have done so without any plea in the Statement of Claim (“SOC”) that this is the cause.

10.  To deal with this pleading point, reference is made to the SOC:-

(a)  §3-6 plead how the accident happened, ie After P (and Wong and Tong) stood on the Bridge for about 30 seconds, it suddenly collapsed and P fell into the stream beneath, sustaining personal injuries.

(b)  §7 pleads the particulars of negligence and breach of duty of care.  As stated in §9 of the Judgment, at trial P emphasised in particular the following:-

(i) Failing to warn P of the dangers of walking on the Bridge, which was not obvious to him in the circumstances;

(ii) Failing to take reasonable care to ensure that the event is run in such a way that it is reasonably safe in all circumstances for P to participate in;

(iii) Failing to design out any unnecessary dangers of the Activity; and

(iv) Failing to place sufficient warning signs in the vicinity of the accident place or at all to warn the participants of the Activity of the inherent danger of the Bridge.

11.  Although P’s pleaded case is brief, the Court had no difficulty in understanding P’s case.  P’s complaint is that the Bridge was a danger to the participants of the Activity, and that D failed to do what was reasonably required of it in the circumstances to avoid harm to the participants resulting from this danger.

12.  D also had no difficulty in understanding P’s pleaded case.  The material part of its case is pleaded at §5 of its Defence.  As Mr Ismail summarised in §29 of its opening submissions for trial, and recorded §12 of the Judgment, D’s defences were:-

(a)  The collapse of one of the two concrete slabs of the Bridge was not a foreseeably risk and the accident was not reasonably foreseeable;

(b)  The defect of the Bridge was a latent defect and not discoverable by reasonable inspection; and

(c)  D took all reasonable care in the circumstances to ensure P’s safety in the Activity.

13.  In the circumstances, I am unable to accept D’s submissions that the cause of the collapse of the Bridge is a material fact of P’s claim in negligence which must be specifically pleaded.  All that P needed to plead is that (i) the Bridge was a foreseeable danger to the participants of the Activity, (ii) D was under a duty of care to prevent that danger from harming the participants of the Activity, and (iii) D failed to do what is reasonably expected of it.

14.  The Court’s findings and comments on the cause of the collapse of the Bridge at §14 of the Judgment were part of the detailed analysis on whether the risk of the collapse of the Bridge during the Activity was reasonably foreseeable.  In other words, the cause of the collapse of the Bridge was relevant to the issue of foreseeability, and hence the scope of D’s duty of care.  But as mentioned above, the cause of the collapse of the Bridge is not an essential element of P’s pleaded case.  What is essential is the plea of the existence of a duty of care, and the breach thereof.

15.  In determining (i) the scope of the duty of care owed by D to P as pleaded and (ii) the issue of breach of duty, the Court is entitled to consider the evidence and make factual findings. The cause of the collapse of the Bridge is one such findings.  But it does not mean that all factual findings that the Court made must be pleaded in the SOC.

16.  I therefore do not accept D’s submission that the Court was prevented from making any factual findings on the cause of the collapse of the Bridge if the cause was not pleaded in the SOC.  I do not find that the grounds of appeal based on the pleading point are reasonably arguable.

(B) Ground 2: Misunderstanding of D’s case

17.  D submits that the Court misunderstood or misinterpreted its case at §3, 4 and 47 of its closing submissions.  This ground of appeal is directed at §14 of the Judgment which states that:-

“Both parties accepted, as stated in paragraph 10 above, that the Bridge collapsed because one of the concrete slabs could not cope with the combined weight of P, Wong and Tong who had been standing on it for about 30 seconds. But Mr Ismail argues that it is not known whether this is due to some latent defect in the concrete slabs that collapsed.” (emphasis added)

18.  D’s argument is that the Court erred in stating that D “accepted” that the cause of the collapse of the Bridge was that it could not cope with the combined weight of P, Wong and Tong.  D submits that it only accepted that the Bridge collapsed when P, Wong and Tong were on it.  It further argues that its case is that the cause of the collapse of the Bridge was because of a latent defect in the concrete plank.

19.  P submits that on a fair reading of D’s closing submissions (especially §4), D accepted that the Bridge collapsed because it could not cope with the combined weight of the 3 young man standing on it, albeit D contended that why this was so must be proved by expert evidence.

20.  I agree. D’s position is that the Bridge could not bear the combined weight of P, Wong and Tong.  This is no different from saying that the Bridge collapsed because it could not cope with the combined weight of P, Wong and Tong.

21.  Further, D’s argument that the collapse of the Bridge was due to a latent defect in the concrete plank as opposed to overweight is a distinction without a difference in the context of this ground of appeal.  The term “latent defect” simply refers to “a defect that had not been discovered and was not discoverable by the exercise of reasonable care.  So if its existence and the fact that it caused the accident is proved by the defendant, such a defect would by definition be a defence to a claim based on the accident having been caused by a lack of reasonable care on the defendant’s part”: see Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at §26 (emphasis added).  The existence of a latent defect, even if proven, does not displace the Court’s finding that the cause of the collapse of the Bridge was overweight.  It simply means that the overweight was caused by a defect which could not have been discovered by D even acting with reasonable care.  As there is a separate ground of appeal on the issue of latent defect, I will say more on this below.

22.  In any event, I fail to see how the Court’s understanding of D’s case on the cause of the collapse of the Bridge presented in its closing submissions is relevant to the outcome of the appeal.  It is the Court’s finding in §§21-23 of the Judgment that it was within D’s reasonable contemplation that at least 3 participants would stand on the Bridge at the same time.  Therefore, it had a duty of care to check and/or ascertain whether the Bridge would hold 3 people at the same time, or to make sure that no more than 2 people[1] would cross the Bridge at the same time (see §§31 and 44 of the Judgment).  The above conclusions were based on the Court’s finding that D should have reasonably contemplated the risk of the collapse of the Bridge due to the weight of 3 or more participants (see §33 of the Judgment).  I fail to see how the Court’s error, if any, on the understanding of D’s case would render the findings and conclusions summarised above erroneous.

23.  For the above reasons, I am of the view that this ground of appeal has no reasonable prospect of success.

(C) Ground 3: Need for expert evidence

24.  Under this proposed ground of appeal, D submits that the determination of the cause of the collapse of the Bridge required specialist knowledge and experience of an expert such as a civil or structural engineer.  Therefore, the Court is not qualified to make the factual finding that the cause of the collapse of the Bridge was because it could not cope with the combined weight of P, Wong and Tong.

25.  I have dealt with this issue specifically in §46 of the Judgment.  D was content to go to trial without adducing any expert evidence.  In other words, D was content with putting P to proof of his case based on the existing evidence.  It seems to me that it is not in a position to complain at the closing of or after the trial that the Court should hear expert evidence before determining the cause of the collapse of the Bridge.

26.  Moreover, the Court had no difficulty in determining on a balance of probabilities the cause of the collapse of the Bridge, based on the evidence adduced at trial, that (i) fewer than 3 people had walked on the Bridge without incident before the accident, and (ii) the Bridge collapsed when P, Wong and Tong was on it.  D is unable to persuade me why the Court cannot make factual findings based on such evidence, and must resort to expert evidence on, e.g. civil and structural engineering, especially when no other cause of the collapse had been suggested by D.

27.  In §11-12 of D’s written submissions dated 26 February 2020, D also argues that expert evidence is also needed to answer questions such as (i) why the Bridge could not bear the weight of P, Wong and Tong when it was able to bear the weight of 2 adult males previously, (ii) the likelihood of the Bridge collapsing under the combined weight of P, Wong and Tong, and why it was likely or unlikely.  But these questions were not issues in the trial. D never ran the case that as a matter of fact, the Bridge was able to bear the weight of P, Wong and Tong.  Likewise, D never ran the case that had it test-walked the Bridge with 3 persons, it was unlikely that the Bridge would collapse.  Its primary case is that the risk of the Bridge collapsing was not foreseeable, and/or that it has already done what was reasonably expected of it to ensure the safety of the participants, which was rejected in the Judgment.

28.  In my view, this ground of appeal is not reasonably arguable.

(D) Ground 4: Evidence of 3 or more people on the Bridge

29.  This ground of appeal is related to the Court’s finding on the cause of the collapse of the Bridge, and is directed at §46 of the Judgment:-

“Given that 3 participants were on the Bridge when it collapsed, and there being no evidence that some other 3 (or more) persons have stood on Bridge without incident prior to the Accident, I have no difficulty in concluding on the available evidence that it is more likely than not that the Bridge collapsed because it could not hold the combined weight of Wong, Tong and P.” (emphasis added)

30.  D’s argument is that there is evidence from which an inference can be drawn that 3 or more people had crossed the Bridge prior to the accident without causing the Bridge to collapse, including:-

(a)  §6(g) of the Judgment, where the Court found that there were other participants standing ahead of Wong and Tong in front of the Bridge;

(b)  §19(b) of the Judgment, where the Court found that once the participants reached and completed Checkpoint 2, they would naturally walk across the Bridge to go to the next checkpoint;

(c)  §19(d) of the Judgment, where the Court found that there were a fair number of people from different teams that would use the Bridge after completing Checkpoint 2, and that each team of 5 members could likely travel together as a group;

(d)  §21 of the Judgment, where the Court found that it was not difficult to fit 3 people on the Bridge at the same time;

(e)  §27 of the Judgment which refers to evidence from D’s witnesses that they would expect 1, 2, 3 or even 4 people to walk on the Bridge at the same time.

31.  In my view, a distinction should be made between the nature of the evidence in paragraph 30 above, and the evidence relied on by the Court at §46 of the Judgment.  The evidence in paragraph 30 above supports the Court’s conclusion that it is within D’s reasonable contemplation that 3 or more participants would cross the Bridge at the same time for the duration of the Activity.  The Court was making a finding on the reasonably contemplated general usage of the Bridge in the context of assessing whether the risk of the collapse of the Bridge was reasonably foreseeable.  However, this should not be conflated with the issue at §46 of the Judgment which was the likely cause of the Bridge’s collapse. In determining this issue, it was necessary for the Court to base its finding on primary objective facts, as set out in that paragraph, but not on the Court’s other findings on the general expected usage of the Bridge during the whole duration of the Activity.

32.  In other words, the Court’s finding that during the Activity, it was to be reasonably contemplated that 3 or more participants would cross the Bridge at the same time does not mean that 3 or more participants had in fact cross the Bridge at the same time before the accident.  To establish the latter finding, direct factual evidence is necessary.

33.  I am therefore of the view that this ground of appeal is not reasonably arguable.

(E) Ground 5: Burden of proof

34.  D submitted that the Court has erred in placing the burden of proof on D of proving that the risk of the Bridge collapsing was not reasonably foreseeable, and that the combined weight of P, Wong and Tong was not the cause of the Bridge’s collapse.

35.  It seems to me, from §20 of D’s written submissions dated 26 February 2020, that D’s real argument under this ground of appeal is the pleading point, which has already been dealt with in paragraphs 9-16 above.

36.  In any event, it is clear from the Court’s reasoning in the Judgment that it has not placed the burden of proof on D.  The Court correctly asked the question whether the risk of the Bridge’s collapse was reasonably foreseeable, and what the cause of the Bridge’s collapse was on the balance of probability.  The Court did not require D to prove what was ultimately found and concluded in the Judgment.

37.  This ground of appeal has no reasonable prospect of success.

(F) Grounds 6-8: Social value, unduly heavy burden, and balancing exercise

38.  Grounds 6-8 can be considered together. D’s argument, directed at §38-44 of the Judgment, is that the authorities such as Uren v Corporate Leisure (UK) Ltd and Anor [2010] EWHC 46 (QB), [2011] EWCA Civ 66, Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 (QB)and Tomlinson v Congleton Borough Council [2004] 1 AC 46are concerned with whether the defendant had taken such are as in all the circumstances of the case was reasonable.  However, the Court erred in law in treating the issue as one of imposition of a duty of care (see §43 of the Judgment).

39.  In my view, this is merely a matter of semantics.  The Court’s reasoning in the Judgment is clear.  It concluded that (i) the risk of the Bridge collapsing with 3 participants standing on it was reasonably foreseeable, (ii) D had a duty of care to do what is reasonable to prevent such risk of harm, (iii) D had failed to discharge such duty of care because it did not test-walk the Bridge with 3 or more people, or impose measures to prevent more than 2 participants from crossing the Bridge at the same time.

40.  §38-44 of the Judgment stated that the Court was asked to also take into account the social value of the Activity, as well as the unduly heavy burden which would be placed on D, and do a balancing exercise.  The Court carefully did so, and concluded that because the Bridge was at a rather important place in the Activity, that justified the imposition of a duty of care on D to ensure the safety of the Bridge.  In substance, this is no different from saying that the importance and location of the Bridge in the context of the Activity justified D’s taking of such care as found by the Court, ie test-walking the Bridge with 3 or more people, or imposing measures to prevent more than 2 participants from crossing the Bridge at the same time.

41.  What matters in substance is not the characterisation of the issue as one of standard of care as opposed to the imposition of a duty of care in the first place, but the balancing exercise that the Court was asked to do.  The Court has duly taken heed of the principles laid down in the leading authorities, especially the dicta of Lord Hoffman at Tomlinson.  The conclusion that the importance and location of the Bridge outweighed the social value of the Activity and the potential burden on D was clearly explained at §43-44 of the Judgment.

42.  D also challenged the result of the Court’s balancing exercise.  It argued, as it did at trial, that the law of negligence does not require perfection and/or revisiting events with the benefit and wisdom of hindsight.  D’s conduct should not be judged with a retrospective standard.

43.  However, D did not address the “decisive points that tip in favour of P” set out at §43 of the Judgment.  There, the Court was careful to point out the important status of the Bridge in the context of the Activity “as opposed to other places in the Area”.  It is clear that the Court did not conclude that D had the same standard of care regarding each and every inch of the Area where the Activity was held. D was not required to leave no stones unturned in ensuring the safety of the whole Area.  The Court’s conclusion on what D should reasonably have done was specific to the Bridge, and not “20/20 vision”.  It was based on the reasonable foreseeability of the risk of harm to the participants arising from the collapse of the Bridge.

44.  D has not demonstrated how the Court erred in its balancing exercise described above.  I do not find that Grounds 6-8 are reasonable arguable.

(G) Ground 9: Latent defect

45.  The final proposed ground of appeal is in relation to D’s case on latent defect.

46.  D argues that the Court has erred in failing to appreciate the effects of, or overlooked the evidence of latent defect.  The evidence relied on by D is essentially the same as those that it relied on to argue that the risk of the collapse of the Bridge was not reasonably foreseeable.

47.  I dealt with the issue of latent defect at §50 of the Judgment.  In short, I concluded that the cause of the collapse of the Bridge was due to overloading.  In light of such a finding, the Court does not accept that the evidence relied on by D, which does not shed light on the status of the Bridge with more than 2 people standing on it, constituted sufficient evidence from which a latent defect could be inferred.  Put in another way, given the Court’s finding that the Bridge collapsed because it could not bear the combined weight of 3 people, D could not ask the Court to infer that there was a defect which could not be discovered by reasonable care by showing e.g. that the Bridge did not collapse when there were 2 people standing on it.  Such an inference may arguably be drawn if there was evidence, for example, that D had been informed by the AFCD that the Bridge could bear the weight of 3 people.  But there was no such evidence.

48.  I therefore do not accept D’s argument that the Court has misunderstood or failed to appreciate the nature of the evidence on latent defect.  This final ground of appeal is also not reasonably arguable.

(H) “Some other reason in the interest of justice”

49.  D argues that there does not appear to be any appellate level judgments in Hong Kong on negligence claim by participants of a socially desirable activities conducted in the open which carries some risk of injury.  The Court is invited to grant leave to appeal pursuant to section 63A(2)(b) of the District Court Ordinance (Cap 336).

50.  Under this ground, the Court may grant leave to appeal if it is of the view that an issue may be one which should in the public interest be examined by the Court of Appeal or, the case raises an issue where the law requires clarifying: see Hong Kong Civil Procedure 2020, Vol 2, at P4/63A/3.

51.  I agree with P’s submissions that the issues raised in this case are fact sensitive, as was already emphasised at §11, 24, 26 and 33 of the Judgment.  In particular, on the issue of balancing the social value of the Activity and burden imposed on D, there are in fact a number of authoritative English cases which already shed light on the matter.  The balancing exercise is also fact sensitive.

52.  I am therefore of the view that the Court should not grant leave to appeal based on the “interest of justice” ground.

STAY OF EXECUTION

53.  As D recognised, the existence of a reasonably arguable appeal is the minimum requirement before a Court would even consider granting a stay: Star Play Development Ltd v Bess Fashion Management Co. Ltd [2007] 5 HKC 84 at §9.  D does not satisfy this merits threshold.

54.  Furthermore, as this case involves a monetary judgment, the Court will require evidence of an appreciable risk that the respondent to the proposed appeal would not be able to repay in the event of a successful appeal.  There is no such evidence.

55.  I would therefore dismiss the application for stay of execution.

CONCLUSION

56.  For the reasons above, the Court is not satisfied that any of D’s proposed grounds of appeal has a reasonable prospect of success.  The leave to appeal and stay of execution application is dismissed.

57.  I also make an order that P’s costs of this application be paid by D on a party-to-party basis, to be taxed if not agreed, with a certificate for counsel and P’s own costs be taxed in accordance with the Legal Aid Regulations.

58.  I thank Mr Lim and Mr Ismail for their valuable assistance to the Court.

( K C Hui ) Deputy District Judge

Mr Patrick D Lim, instructed by Li & Lai, assigned by the Director of Legal Aid, for the plaintiff

Mr Anthony Ismail, instructed by Clyde & Co, for the defendant

DCPI 548/2018

[2019] HKDC 1305

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 548 OF 2018

(Transferred from High Court Personal Injuries Action No. 941 of 2016)

________________________

BETWEEN

	FONG CHONG CHUEN	Plaintiff
	and
	THE BOY’ AND GIRLS’ CLUBS ASSOCIATION OF HONG KONG	Defendant

________________________

Before: Deputy District Judge K C Hui in Court

Dates of Hearing:  2-4 January 2019

Date of Supplemental Submissions by the Plaintiff:  8 January 2019

Date of Supplemental Submissions by the Defendant:  25 February 2019

Date of Supplemental Reply Submissions by the Plaintiff:  6 March 2019

Date of Judgment:  15 October 2019

________________________

J U D G M E N T

________________________

I.  Introduction

1.  The plaintiff (“P”) participated in an activity organized by the defendant (“D”) in Sha Lo Tung, Tai Po, New Territories on 20 December 2014.  This is the trial on liability for P’s claim for personal injuries suffered by him as a result of an accident (the “Accident”) that occurred during the activity.

2.  The Court was informed that the parties have already settled on the issue of quantum.  The only outstanding issue to be determined by the Court in this lawsuit is therefore whether D is liable for the personal injuries suffered by P.

II.  Background

3.  P was 17 years old at the time of the Accident.  He participated in an activity known as “Team Challenge 36” organized by D on 20 December 2014.

4.  D is a non-profit organization founded in 1936 and experienced in providing social service and activities to the public, with a focus on children and youngsters.

5.  There is little dispute between the parties that:-

(a)  The goals of the activity “Team Challenge 36” included challenging, testing and training the physical / mental endurance, honing team organisation skills of the participants and help building confidence;

(b)  Part of the activity was an orienteering competition (the “Activity”) in the Sha Lo Tung area in Tai Po (the “Area”);

(c)  The Premises is owned by the Hong Kong Government.  D obtained a permit (No. ORE0242/14) (the “Permit”) from the Agricultural, Fisheries and Conservation Department (“AFCD”) to hold the Activity in the Area;

(d)  Participants were required to participate in the Activity in teams.  Each team consisted of 5 persons.  Each team was required to find and visit 5 checkpoints marked on a map provided by D in order;

(e)  The participants could visit the 5 checkpoints using their own choice of route;

(f)  The Activity was in the form of a competition.  The participating teams were ranked according to the time that they took to finish the checkpoints;

(g)  The Activity involved walking and hiking in the country areas;

(h)  D has been organising the Activity once a year since 1998.  It was the third time that the Activity was held in the Sha Lo Tung area; and

(i)  The Activity was a charitable event with a fundraising element.

6.  There is no dispute that the Accident happened.  As to how the Accident happened, P’s evidence is as follows:-

(a)  P belonged to Team 528 which participated in the orienteering Activity on 20 December 2014;

(b)  There were more than one participating team, but he did not know exactly how many;

(c)  When the Accident happened, he was wearing sports outfit and cross-country shoes, but not a helmet;

(d)  During the Activity, staff members of the organiser only stationed at the starting point and there was no staff or medical team following the participants to the checkpoints;

(e)  At about 12 noon, members of Team 528 (including him) arrived at checkpoint 2 (“Checkpoint 2”). Checkpoint 2 was located to the west of a bridge made of concrete slabs (the “Bridge”).  The Bridge consisted of 2 concrete slabs, each having a width of about 35cm and length of about 2 metres.  There was a gap between the two concrete slabs having the approximate width of a human foot[1].  The Bridge was placed across a stream of about 2 metres of depth;

(f)  There were some big trees 2 to 3 metres away from the Bridge, one of which had a sensor hung thereon.  All participants of the orienteering Activity had to tap the chip on their wristband on the sensor on the tree in order to complete Checkpoint 2, after which they would have to move on to the next checkpoint;

(g)  At the time of the Accident, the first 2 members of Team 528, namely, Wong Kin Yat (“Wong”) and Tong Chi Fung (“Tong”), had completed Checkpoint 2 and walked onto the Bridge, with the intention of crossing it and going to the other side of the stream to wait for the other 3 team members to complete Checkpoint 2.  However, there were other participants standing ahead of Wong and Tong in front of the Bridge, blocking Wong and Tong’s way across the Bridge.  Therefore, Wong and Tong had to stand and wait on the Bridge;

(h)  After P tapped his chip at Checkpoint 2, he also walked onto the Bridge, joining Wong and Tong in waiting for the other participants in front of them to clear.  Therefore, at that particular moment, there were 3 persons on the Bridge, i.e. Wong, Tong and P;

(i)  After about 30 seconds of waiting, one of the concrete slabs of the Bridge suddenly broke.  As a result, Wong, Tong and P lost their balance and fell into the stream below the Bridge; and

(j)  P suffered injuries as a result of the fall.

7.  D did not seriously challenge the above evidence during cross-examination and in its closing submissions.  I have no reason to doubt the truthfulness of P’s recollection of the Accident described above, and I accept his evidence.

III.  Duty of Care

8.  D accepts (rightly in my view) that as organiser of the Activity, it owed a common law duty of care to P as participants of the Activity.

9.  §7(a) of the Statement of Claim pleaded a number of particulars of negligence and/or breach of common law duty of care.  At trial, P’s Counsel, Mr Patrick Lim, emphasised in particular the following:-

(a)  Failing to warn P of the dangers of walking on the Bridge, which was not obvious to him in the circumstances;

(b)  Failing to take reasonable care to ensure that the event is run in such a way that it is reasonably safe in all circumstances for P to participate in;

(c)  Failing to design out any unnecessary dangers of the Activity; and

(d)  Failing to place sufficient warning signs in the vicinity of the Accident Place or at all to warn the participants of the Activity of the inherent danger of the Bridge.

10.  Mr Lim submits that it is apparent from the events set out above that the cause of the collapse of the Bridge was that the combined weight of the 3 young men exceeded the weight-bearing capacity of the Bridge.  Mr Lim adds that the Bridge appeared to consist of an old piece of concrete and suffered weathering and material fatigue whereby the weight-bearing strength was compromised.

11.  As Mr Lim rightly points out, whether or not D has discharged its duty of care by e.g. adequate risks assessment is a fact-sensitive question.

IV.  D’s Defences

12.  Against Mr Lim’s arguments, Counsel for D, Mr Anthony Ismail, puts forward the following defences and argues that D should not be liable for P’s personal injuries:-

(a)  The collapse of one of the two concrete slabs of the Bridge was not a foreseeably risk and the Accident was not reasonably foreseeable;

(b)  The defect of the Bridge was a latent defect and not discoverable by reasonable inspection; and

(c)  D took all reasonable care in the circumstances to ensure P’s safety in the Activity.

V.  Foreseeability of risks / taking all reasonable care

13.  It seems to me that the defences raised by D in paragraphs 12(a) and 12(c) above, i.e. the reasonable foreseeability of risks and taking of all reasonable care, can be considered together.  This is because the reasonable foreseeability of the risks will determine the scope of D’s duty of care.  This will in turn determine the question of whether D took all reasonable care in the circumstance to ensure the safety of the participants of the Activity.

14.  During the trial, the parties have entangled themselves in dealing with the cause of the collapse of the Bridge.  Both parties accepted, as stated in paragraph 10 above, that the Bridge collapsed because one of the concrete slabs could not cope with the combined weight of P, Wong and Tong who had been standing on it for about 30 seconds.  But Mr Ismail argues that it is not known whether this is due to some latent defect in the concrete slabs that collapsed.

15.  D characterised the risks in the present case as the risk of the Bridge (or more precisely one of the concrete slabs) collapsing.  Mr Ismail argued that while there are many foreseeable risks, the risk of the concrete slab collapsing was not reasonably foreseeable, and D should not be liable therefor.

16.  In my view, it is appropriate to start the analysis with the scope of the duty of care owed by D to P.  The starting point is D’s acceptance that it owed a common law duty of care to P.  But what exactly is the scope of such duty of care?

(A)  The scope of the duty of care owed to P

17.  The duty of care as accepted by D obliged it to take all reasonable steps to prevent P (as a participant of the Activity) from suffering damage while participating in the Activity in the Area.  In the context of this case, the damage concerned is injuries to the body.

18.  In my judgment, in order to prevent P from suffering bodily injuries while participating in the Activity, D was obliged to ensure that the Area was reasonably safe for the Activity to be carried out in the circumstances that it was carried out, and in the manner as directed by D.  In other words, D was obliged to ensure that the Area was reasonably safe for carrying out the orienteering competition according to the manner and rules as designed and directed by it.

19.  What D was obliged to do to ensure such safety depends on what would reasonably be anticipated to be the likely usage of the Area.  Specifically in relation to the usage of the Bridge, I find that the following are important factors that D should reasonably consider:-

(a)  As mentioned above, there were a total of 5 checkpoints to visit in order to complete the Activity.  From the orienteering map (the “Map”) for the Activity, it can be seen that the start of the orienteering was at a point located at the southern part of the Area.  The first checkpoint (“Checkpoint 1”) is near a grave that is located at the north-eastern side of the starting point.  Checkpoint 2 is located at the west side of the Bridge.  The Bridge was located at the north-western side of Checkpoint 1;

(b)  Although D does not accept that the closest route from Checkpoint 1 to Checkpoint 2 is through the Bridge, D does accept that it is one of routes.  Also, Checkpoint 2 is labelled in the Map as “石橋的西面 Bridge, west side”.  I therefore find that it would be normal to expect participants of the Activity to locate Checkpoint 2 by first locating the Bridge, and that they would approach the Bridge from Checkpoint 1.  Once the participants reached and completed Checkpoint 2, they would naturally walk across the Bridge to go to the next checkpoint.  This also appears to be the strategy adopted by Team 528;

(c)  Furthermore, it is not disputed that the sensor for Checkpoint 2 was hung on one of the big trees 2 to 3 metres away from the Bridge.  In other words, Checkpoint 2 was very close to the Bridge; and

(d)  Although the exact number of people participating in the Activity is unknown, it is likely that there were a fair number of people from different teams that would use the Bridge after completing Checkpoint 2.  Furthermore, each team of participants consisted of 5 members, and it is likely that they would travel together in a group.

20.  Taking into account the above important factors, I find that under the circumstances of the Activity as designed and directed by D, D would reasonably expect that:-

(a)  The route to Checkpoint 2 and the Bridge would be a reasonably popular route that the participants of the Activity would choose; and

(b)  A number of participants would gather around the area of the Bridge from time to time, especially around the big trees where Checkpoint 2 was located.  For example, if 3 teams arrived at Checkpoint 2 at around the same time, 15 people would gather around the area of the Bridge.

21.  As for the usage of the Bridge, it can be reasonably contemplated that at least 3 participants would use the Bridge (i.e. physically present on the Bridge) at the same time.  In reaching this conclusion, in addition to the factors above (especially the size of each team), I also take into consideration that the length of the Bridge was about 2 metres.  It is not difficult to fit 3 people on the Bridge at the same time.

22.  Furthermore, given that (i) Checkpoint 2 is very close to the Bridge; (ii) the likely number of participants that would gather around Checkpoint 2 from time to time; and (iii) time would be taken for each team member to tap the sensor for Checkpoint 2 in turn, I find that it is within the reasonable contemplation of D that at least 3 participants would stand on the Bridge at the same time, either waiting for their team members to complete Checkpoint 2, or for their turn to get to the other side.

23.  I emphasise the words “at least 3 participants” in the last paragraph.  As organiser of the Activity knowing the existence of the Bridge and placing a checkpoint near the Bridge, the risk of participants falling from the Bridge while using it resulting in bodily harm was clearly reasonably foreseeable.  As the Bridge from its outward appearance clearly could not hold a lot of people, in my judgement, in order to discharge its duty of care, it is incumbent upon D to contemplate the reasonable number of participants which would be crossing and/or standing on the Bridge at the same time during the Activity, and to use reasonable means to test and/or ascertain whether the Bridge could hold such a number of participants.  For the reasons discussed above, in my judgment, such number of participants which could reasonably be contemplated by D is 3.[2]

24.  In passing, I would add that the scope of the duty of care is clearly fact sensitive.  My analysis above may be different if, for example, the size of each team is smaller, or the Bridge was not close to any checkpoints or any popular routes.  But given the specific facts of the present case, my conclusion is that D’s scope of duty of care included the duty to test and/or ascertain whether the Bridge could hold at least 3 participants.

25.  D argues that one cannot say one way or the other that it is reasonably foreseeable that there would be 3 persons on the Bridge at the same time because there are so many variables, such as the pace of each individual team member.  D further points out that during cross-examination, P also agreed that he would not expect the Bridge to be blocked because the other teams were running against the clock.  It was a race against time.

26.  Given the factual circumstances and analysis above, I do not agree that D could not reasonably foresee that there would be 3 participants standing on the Bridge at the same time during the Activity.  I do not agree that the variables mentioned by D would render it far-fetched to suggest that at least 3 participants would use the Bridge at the same time during the Activity.

27.  I would also point out that during cross-examination, one of D’s witnesses, Mr Kwok Wing Bun (“Kwok”), a regional manager of the Activity and a member of the technical committee, agreed that he would except 1, 2, 3, even 4 people to walk on the bridge at the same time.  Mr Tsang Hon Kei Jeff (“Tsang”), the Senior Corporate Communications Manager of D and a member of the technical committee set up by D, also gave similar evidence during cross-examination.  Their view is consistent with the above analysis.

28.  As to D’s reliance on P’s agreement during cross-examination, I do not find it helpful in the analysis.  This is because the scope of the duty of care and the foreseeability test is an objective concept.  Furthermore, it is what D as organiser could reasonably foresee, rather than what P could, that matters.

(B)  Steps taken by D for risk assessment

29.  D’s case is that it has made detailed preparation for the Activity before it started.  Specifically, D has carried out a safety assessment of the Bridge:-

(a)  Tsang recalled walking on the Bridge on three occasions on 20 August 2014, 5 November 2014 and 21 November 2014 without any incident or accident;

(b)  Kwok also recalled walking on the Bridge on two occasions on 5 November 2014 and 3 December 2014 without incident or accident; and

(c)  Mr. Yu Ming Shun (“Yu”), a volunteer and independent expert orienteer, also recalled walking on the Bridge at least twice on one occasion in early November 2014 without incident or accident.

30.  Kwok gave evidence that on 5 November 2014, he walked across the Bridge together with Yu without any incident.  He also recalled seeing 2 people walking across the Bridge at the same time without any incident.

31.  I accept the evidence of Tsang, Kwok and Yu.  However, it can be seen from their evidence that D has not tried to test-walk the Bridge with 3 persons at the same time, or otherwise attempted to find out (e.g. from the AFCD) whether the Bridge could hold at least 3 persons at the same time.  Having found that D should reasonably have foreseen that at least 3 participants would use the Bridge at the same time, I find that this is what D should have done, but failed to do.  This, in short, is P’s case against D.

32.  Mr Ismail sought to convince the Court skilfully that even if it is reasonably foreseeable that 3 participants would be crossing the Bridge at the same time, the risk of the Bridge collapsing was not reasonably foreseeable.  He argued that:-

(a)  The Bridge was made of solid material, i.e. 2 concrete slabs;

(b)  The 2 solid concrete slabs showed no obvious signs of danger, e.g. cracking, erosion or spalling.  There is no evidence that the slabs had suffered weathering and material fatigue; and

(c)  No similar accident had happened before.

33.  In my judgment, these are not convincing reasons.  Clearly, when assessing whether the Bridge was reasonably safe for use for the purpose of the Activity, its load-bearing capacity should be one of the major considerations.  Whether or not it was reasonable for D to assume, from the Bridge’s outward appearance and lack of history of accident etc, that it is safe for the expected use for the Activity is fact-sensitive.  To use a hypothetical example, if the Activity would foreseeably involve 100 participants crossing the Tsing Ma Bridge at the same time, D would likely be entitled to assume without checking that Tsing Ma Bridge would be able to hold the weight of 100 participants.  It is only common sense that the risk of Tsing Ma Bridge collapsing under such conditions is fanciful and certainly not reasonably foreseeable, as Tsing Ma Bridge is widely known to be capable of supporting the weight of many vehicles and even a railway.  However, we are not dealing with Tsing Ma Bridge here.  We are dealing with a bridge in a country park area which build and conditions of daily usage were unknown to D.  For example, D could not tell from the appearance of the Bridge whether the concrete was reinforced by steel bars.  Also, as mentioned above, the Bridge was close to Checkpoint 2 and was likely to be part of a popular route. In these circumstances, I do not think that the risk of the Bridge not capable of holding the weight of 3 or more participants could be brushed aside as merely theorical and fanciful, and not reasonably foreseeable.

34.  D also argued that there were other teams which had walked on the Bridge immediately before the Accident without incident.  I do not find this point of much assistance, as there was no evidence on whether 3 or more participants from the other teams had crossed the Bridge at the same time before the Accident.

35.  D also prayed in aid that the Area was owned and maintained by the Hong Kong Government for the use of the general public as a country park.  D needed to get the Permit from the government to use the Area for the Activity, and was obliged by the Permit to maintain “free use” to the Area by the general public at all times during the Activity.

36.  What I understand from D’s argument is that if the Hong Kong Government is content for the Bridge to be use by the general public at all times, D was entitled to assume that it was safe for the Activity.  Again, I do not find this point to be helpful.  The Government was not the organiser of the Activity and was not faced with the aforesaid factual circumstances.  It was D’s obligation, after being permitted to organise the Activity in the Area, to ensure that the Bridge was safe for use for the purpose of the Activity.  Also, there was no evidence of what the Government contemplated would be the normal expected usage of the Bridge as a matter of general public use.  As such, I do not accept that D could rely on the Permit (per se or in together with other reasons put forward by D) to assume that the Bridge was safe for use for the purpose of the Activity.

37.  Mr Ismail cited the well-known decisions of Bolton v Stone [1951] A.C. 850 and The Wagon Mound (No. 2) [1967] 1 A.C. 617 to support his argument that D was not obliged by its duty of care of take precautions against every risk that it can foresee.  He further relied on a more recent English decision of Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 (QB).  These decisions state the well-known principle that a duty of care only arises in relation to reasonably foreseeable risks of damage.  I do not think P has any qualms with this line of cases.  The issue is whether the risk of the Bridge collapsing under the expected reasonable use for the Activity is reasonably foreseeable.  For the reasons given above, my conclusion is “yes”, and D has failed to take reasonable steps to prevent such a reasonably foreseeable risk.

(C)  Social value of the Activity; balancing the risk and costs of preventive measures

38.  Mr Ismail also argued, relying on Uren v Corporate Leisure (UK) Ltd and Anor [2010] EWHC 46 (QB), [2011] EWCA Civ 66, Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 (QB) and Tomlinson v Congleton Borough Council [2004] 1 A.C. 46, that whether one imposes a duty of care in relation to a foreseeable risk is a product of balancing the foreseeability of the risk, the social value of the activity and the costs of preventative measures.

39.  In Tomlinson, Lord Hoffman said at §34 and 37:-

“34. My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.

…

37. This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which Parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury is foreseeable, as it was in Bolton v Stone, it is still in all the circumstances reasonable to do nothing about it.” (emphasis added)

40.  In the same vein, Globe J in Blair-Ford said at §45:-

“…the law of tort must not stamp out socially desirable activities just because an activity carries some risk. Whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach.”

41.  I accept Mr Ismail’s emphasis on the social value and benefit of the Activity.  It was a fun, constructive and charitable event which was aimed at the well-being and whole-person development of youngsters in Hong Kong.  What the Court needs to do is to carefully conduct a balancing exercise in the specific context of the present case.

42.  Against the social benefit and value of the Activity is the foreseeable risk of injury that I have discussed at length above.  Another important factor that Mr Ismail impressed upon the Court is the costs of the preventive measures, and the ensuing “chilling effect” on similar activities in the future if D is to be found liable.  He submits that D would have to identify the dangers in the first place by engaging in structural engineers to see if the Bridge had the capacity to hold 3 or more participants standing on it.  Mr Ismail also argued that D would have to comprehensively survey the Area in toto to look out for all possible dangers and put up warning signs during the Activity.  He submits that the degree of risk does not justify the considerable expenses and effort in the present case.

43.  I find that the various factors in the present case are fairly balanced.  In my judgment, the decisive points that tip in favour of P are that (i) D designed the Activity in a way to place Checkpoint 2 near the Bridge; (ii) D decided to label and identify Checkpoint 2 in the Map by reference to the Bridge; and (iii) the Bridge was likely to be a popular route that the participants of the Activity would choose.  In other words, the Bridge was located at a rather important place in the context of the Activity.  This, in my view, justify imposing a duty of care on D in relation to the safety of the Bridge (as opposed to other places in the Area).

44.  Furthermore, in my view, the preventive measures, viewed in the above context, would not be out of all proportions.  At the very least, D could have easily test-walked the Bridge with 3 people at the same time. D could have asked the AFCD for more information about the Bridge, in particular, its load bearing capacity, if such information is available.  Even in the present situation that D have only test-walked the Bridge with 2 people crossing at the same time, D could have placed personnel at the Bridge during the Activity to ensure that the Bridge was used in the same way as it was previously tested (i.e. ensuring that no more than 2 participants were to cross the Bridge at the same time).  In my view, taking these steps would not impose an unduly heavy burden on D.  Similarly, I do not think that imposing a duty of care on D in this situation will have a chilling effect on other similar activities.

45.  In short, I find that it is fair, just and reasonable that a duty of care be imposed on D in the present situation.

VI.  Causation and Remoteness of damage

46.  D emphasised that there is no expert evidence at the trial to ascertain the cause of the collapse the Bridge.  I do not agree that expert evidence is necessary for this case.  The Court is to determine what, on a balance of probability, was the cause of the collapse of the Bridge.  Given that 3 participants were on the Bridge when it collapsed, and there being no evidence that some other 3 (or more) persons have stood on Bridge without incident prior to the Accident, I have no difficulty in concluding on the available evidence that it is more likely than not that the Bridge collapsed because it could not hold the combined weight of Wong, Tong and P.  If D wants to contend for another cause for the collapse, it is for it to adduce the necessary evidence (including expert evidence) at trial.

47.  That being so, I conclude that there is no issue of causation.  Had D taken steps to ascertain whether the Bridge could hold 3 or more participants, it is likely that D would have found out that the Bridge was not safe for use in such a way, and would have taken steps to either redesign the route or make sure the Bridge would not overload.  Alternatively, having test-walked the Bridge with 2 persons crossing at the same time, P should have ensured that the Bridge was used in such a manner during the Activity.  Either way, the bodily injury to P could have been avoided.

48.  There is also no issue of remoteness of damage.  As a result of him falling into the stream under the Bridge, P suffered from haemorrhoid inside his skull, occipital bone fracture, posterior fossa epidural haematoma and risk wrist sprain.  There is no suggestion that these injuries are not foreseeable as a result of the fall.

VII.  Latent Defect

49.  The issue of latent defect, raised by D as a defence, can be quickly disposed of.

50.  The parties are in agreement that in order to establish this defence, there must be some facts justifying the inference of a latent defect being the cause of the Accident: Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at §21-22.  Given my conclusion above that on the available evidence, it is more likely than not that the Bridge collapsed because it could not hold the combined weight of Wong, Tong and P, it is incumbent upon D to adduce evidence to disprove the abovementioned likely cause, and to suggest an alternative cause which is due to a latent defect.  D has not discharged such an evidential burden in this case.

VIII.   Conclusion

51.  For all the above reasons, I conclude that D has breached its duty of care owed to P.  P’s case of negligence is established.

52.  I will enter judgment for damages in favour of P.  Since the Court has not been informed of the detailed terms of the settlement sum for quantum, the parties are directed to propose to the Court (by way of a joint letter if agreement can be reached) the appropriate terms of the order to be made within 14 days from the date which this judgment is handed down.

53.  Costs should follow the event.  I make an order nisi that P’s costs of this action, including all costs hitherto reserved, be paid by D on a party-to-party basis, to be taxed if not agreed, with a certificate for counsel and P’s own costs be taxed in accordance with the Legal Aid Regulations.

54.  Lastly, I must thank Mr Lim and Mr Ismail for their valuable assistance to the Court.

	(K C Hui)
	Deputy District Judge

Mr Patrick D. Lim, instructed by Li & Lai, assigned by the Director of Legal Aid, for the plaintiff

Mr Anthony Ismail, instructed by Clyde & Co, for the defendant