This article will explore the potential liability of different parties to victims of excessive lead intake. The victims of leaded water have to prove that it is more likely than not that the following parties have been negligent in ensuring the safety of drinking water.
Duty of care and breach of duty
The WSD has a statutory duty to “ensure the proper administration and management of the waterworks, and to make due provision for the security thereof” pursuant to section 4(1)(d) of the Waterworks Ordinance (Cap.102) (“WO”). The HA, as the landlord owner and manager of public housing estates, also owes a statutory duty to “manage any housing… having regard to the interests, welfare and comfort of the tenants, owners or occupiers thereof” pursuant to section 4 of the Housing Ordinance (Cap.283).
It is unlikely that the government can exonerate itself from its statutory duties by contracting out the construction or installation of water pipes to main contractors and licenced plumbers. Pursuant to regulations 5 and 6 of the Waterworks Regulations (Cap.102A) (“WR”), for instance, the WSD shall grant permission to contractors for constructing and installing inside services, as well as inspect and approve the same. In other words, even after contracting out the installation of inside services to contractors, the government still owes a duty of care of ensuring that the water is safe for drinking.
According to the Report, no checking had been conducted on whether solder joints contained lead; and usual tests of water by government hitherto had never included heavy metals (four types of metals in particular). Therefore, it would appear that the government has breached its duty of care.
The main contractors and the licenced plumbers
The standard of care of the main contractors/licenced plumbers is the standard that would be exercised by a reasonably prudent main contractor/licenced plumber. Regulation 20 of the WR states that every pipe shall be of the British Standard (“BS”). The Report’s findings show that the lead contents of the solder joints tested were 33%-41% which were well above the limit for lead-free solder stipulated in the BS of 0.07%. It is arguable that no reasonably prudent main contractors/licenced plumbers would have deviated from the WR and the BS, and therefore the main contractors/licenced plumbers responsible for constructing and installing the water pipes with leaded solder joints have breached their duties of care.
Causation: are identified health problems caused by breach of duties?
What can you get as damages?
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2015