LEGISLATIVE COUNCIL PANEL ON TRANSPORT
Improvements to
Tuen Mun Road


PURPOSE

We wish to brief Members on the "impossibility issue" and the mediation results concerning this project.

BACKGROUND

2. At the meetings of the Transport Panel held on 23 October 1996, 29 November 1996 and 17 December 1996, Members were briefed about the latest developments of the road project including the mediation proceedings. The Government had agreed to prepare a paper on the impossibility issue to the Transport Panel after the Coroner’s Inquest was concluded.

3. The Coroner’s Inquest was held in early March 1997. A copy of the Mediator’s Decision was then deposited in the LegCo Secretariat in April for Members’ information.

THE INCIDENT

4. On 18 August 1995, a 10-15 tonne piece of rock fell from the slopes above the Tai Lam section of Tuen Mun Road where the Contractor was carrying out slope excavation. The boulder bounced off the lower part of the slope and landed in the middle of the Kowloon bound carriageway ending up in the fast lane, where tragically it was hit by a van. The driver was killed and his passenger injured.

5. Immediately after this incident, the Contractor carried out emergency repair works on certain slopes and then voluntarily suspended some of the works required under the contract while arranging for an inspection of the works to be carried out by an international geotechnical expert.

6. In October 1995, the Contractor served notice on the Government that on the basis of expert technical and legal advice obtained following the incident, parts of the works at the Sam Shing Hui section (SH3 and SH4), So Kwun Wat section (SK1) and Tai Lam section (TL4 to TL7(West)) of Tuen Mun Road were impossible to construct in accordance with the Contract requirements. These requirements are at Annex A. A location plan of the impossible sections is at Annex B.

IMPOSSIBILITY CLAIM

7. Clause 15 of the General Conditions of Contract (GCC) covering impossibility is reproduced as follows -

"Save in so far as it is legally or physically impossible, the Contractor shall execute the Works in strict accordance with the Contract to the satisfaction of the Supervising Officer and shall comply with and adhere strictly to the Supervising Officer’s instructions on any matter relating to the Contract whether mentioned in the Contract or not."

8. The basis of the Contractor’s claim was that -

  1. Clause 3.20 of the Employer’s Requirements prohibits lane closures for rockcutting works;

  2. as such he could not comply with Clauses 4.2(1) and 7.1 of the Employer’s Requirements governing the maintenance of continuous and undisrupted traffic flow and the safety of persons on or adjacent to the site; and

  3. the slope works in question were therefore impossible within the context of GCC Clause 15.

PREPARATION FOR THE MEDIATION

9. In February 1996, the Contractor formally initiated mediation for the impossibility claim in accordance with the Contract provisions. The mediator, agreed to by both parties, is a former High Court Judge specialising for many years in the field of construction and arbitration law.

10. The Contractor employed Masons as his solicitors and appointed two overseas international experts in rock engineering to prepare expert reports in support of the claim.

11. The Government appointed McKenna Minter Ellison as its solicitors for the conduct of the proceedings as well as two international experts in rock engineering to provide evidence in support of its case.

MEDIATION PROCEEDINGS

12. On 13 May 1996, the Mediator was escorted by representatives of both parties to inspect the slopes in question. The subsequent hearing lasted until 22 May 1996 with both parties represented by counsel. Expert witnesses for both sides gave evidence and submitted detailed reports and written statements together with extensive supporting documentation.

13. The Mediator’s Decision and Recommendations run to 32 pages, and a copy of which has been deposited with the LegCo Secretariat. The basic issue that the Mediator had to decide on was whether the slope works under dispute were physically impossible within the context of GCC Clause 15.

14. After having heard and read all the submissions, evidence and documents, the Mediator was satisfied that the Contractor had made out his case on physical impossibility. He therefore concluded that the slope works were physically impossible to construct within the meaning of GCC Clause 15 of the Contract.

CONSIDERATION OF ARBITRATION

15. In accordance with the Contract, the mediation decision shall be binding until varied by subsequent arbitration, and the reference to arbitration shall be made within 90 days of the mediation decision.

16. After thorough discussions and deliberate consideration, Government decided not to pursue arbitration on the following grounds -

  1. AGC advised that, having regard to the overall facts and circumstances, it was most unlikely that the mediation decision would be overturned in any subsequent arbitration, given the nature of the mediation proceedings (which were conducted on an adversarial basis as a mini-arbitration/adjudication) and the status and expertise of the Mediator. Any reference to arbitration would be extremely costly and would take a considerable time to complete, during which time the contested portion of the works would remain at a standstill.

  2. In line with the Mediator’s recommendations, further continuance of the litigation would not be in the interest of the parties, and the possible opportunity to negotiate with the Contractor concerning completion of the works by alternative means would thereby be lost, resulting in further delays in the completion of the climbing lane and slope improvement works.

(Note : The Government subsequently resolved to deal with completion of the outstanding works by means of a separate contract after completion of an independent feasibility study).

CLAIMS RELATED TO THE IMPOSSIBILITY ISSUE

17. On the one hand, there will be savings under this Contract resulting from the unexpended moneys relating to the uncompleted works. On the other hand, as a result of the problems giving rise to the impossibility claim, the Contractor has been required to carry out certain additional works under the Contract for which he is seeking additional payment. These claims, primarily relating to additional traffic diversion, temporary slope stabilisation and acceleration works, are currently being assessed by the Supervising Officer in accordance with the provisions of the Contract. The Supervising Officer is obliged to maintain an independent and impartial role in assessing the claims and certifying any payments which in his opinion are due to the Contractor under the provisions of the Contract. In accordance with the express confidentiality provisions governing this Contract, it would not be appropriate to disclose further information relating to these claims at the present time. The Government’s interests relating to these claims are fully safeguarded under the Contract.

Highways Department

May 1997

Annex A

ER 3.20

(1)

Three full width lanes of at least the same width as the existing lane width must be maintained in both carriageways of Tuen Mun Road at all times except that closure of traffic lanes may be permitted as stipulated in subclause (2) below for the following purposes :






(a)

during initial mobilisation and for delivery of heavy construction plants;






(b)

for initial erection of rock fence/safety fence adjacent to cut and fill slopes; and






(c)

where applicable, for delivery and placing of precast beams.




(2)

Traffic lane closure may be permitted for purposes stated above subject to the approval of the Commissioner of Transport and Commissioner of Police. Single lane closures may be permitted between daytime off-peak hours of 1000 hours to 1600 hours. Two lane closures may be permitted at night between 0000 hours to 0600 hours. The foregoing hours of closures are subject to changes by the Transport Department and the Royal Hong Kong Police Force. The Contractor shall liaise with these Departments to ascertain the allowable closure hours and programme his works accordingly.





(3)

On request of the Royal Hong Kong Police Force, on emergency/operational grounds, the closed lanes/lane should be re-opened immediately.




ER 4.2

(1) The design and performance of the Temporary Works shall take into account the proximity of the Works to Tuen Mun Road and the necessity to maintain continuous and undisrupted traffic of a capacity and level of service compatible with the existing traffic arrangement within each of the four sections.



ER 7.1

Ensure as a priority in all activities connected with the Works, the safety and health of all persons on or adjacent to the Site and in particular that all persons employed on the Works are appropriately trained for their task and in safety and health.

Last Updated on 21 August 1998