Question

Leon was an employee of Building Future Limited (BFL). BFL was a construction company which always acted as a contractor for a major developer, Reliable Development Limited (RDL), in Hong Kong. RDL had a construction site in Yuen Long (the site), and it needed a worker to operate a crane, so RDL instructed BFL to send staff to the site. However, BFL ran out of staff, and Leon was the only available staff. Therefore, BFL sent Leon to the site to operate the crane. Steven lived in Yuen Long and had a car. Steven always parked his car in an open space close to the site. One day, when Steven saw Leon operating the crane, Steven asked the site manager, Bonnie, who was the staff of RDL, whether the operation was safe. Bonnie told Steven that the operation was safe and there was nothing to worry about. However, one day, when Steven went to the open space to take his car, a load of metal bars was dropped on Steven's car from the crane (operated by Leon), and as a result, Steven was injured, and the car was damaged. Upon investigation, it was discovered that Leon did not have a licence to operate the crane, but Leon told BFL he had a licence. There was also a notice outside the construction site stating, Danger. Do not get close. RDL is not liable to any form of loss if you get close to the site. It was evident that Steven knew the existence of the notice. Advise Steven. You should support your answer with relevant case law/legislation (Base on Hong Kong Legislation)

Answer 1

Steven may have a claim for negligence against Building Future Limited (BFL) and Reliable Development Limited (RDL) since duty of care was potentially breached. However, the enforceability of RDL's exclusion clause could limit Steven's ability to recover damages. Scrutiny under Hong Kong law, such as the Control of Exemption Clauses Ordinance (Cap 71), will determine whether the clause is fair and reasonably applied.

Step-by-step explanation:

The situation described presents a potential case of tortious liability in the area of negligence and occupier's liability, along with challenges regarding the enforcement of exclusion clauses. Under the Hong Kong legislation, a party injured due to the negligence of another can seek compensation; however, the enforceability of the exclusion clause displayed by RDL could potentially limit Steven's ability to recover damages. Duty of Care by BFL and RDL to ensure the safety of individuals near the site may have been breached, particularly since Leon was unlicensed to operate the crane. Moreover, reliance on the site manager's assurance can be considered under the Misrepresentation Ordinance (Cap 284).

Though the exclusion clause aims to limit liability, Courts in Hong Kong traditionally approach such clauses with scrutiny, especially when considering whether the clause was fairly and reasonably brought to the attention of the person affected. Given that Steven was injured and his property was damaged despite being outside the construction site, there is also a possibility to challenge the exclusion clause's fairness and reasonableness under the Control of Exemption Clauses Ordinance (Cap 71).

As for Steven's awareness of the notice, his knowledge does not necessarily negate RDL's responsibility, especially if negligence can be established. A crucial aspect would be determining whether the notice meets the requirement of being a sufficient warning and whether RDL has taken reasonable steps to mitigate dangers arising from the construction activities. The standard applied here would be that of a 'reasonable person'. The fact that Leon falsely claimed to have a licence to operate the crane further exacerbates the negligence claim against BFL and possibly RDL for failing to conduct appropriate due diligence.

To conclude, Steven may have grounds to seek damages due to negligence, while the effectiveness of the exclusion clause to bar his claim may be questioned based on the specifics of the case and relevant statutes such as Cap 71. Steven should consult a legal professional in Hong Kong to explore his options based on the circumstances and the applicability of tort and contract law principles.