LI XIAO YOU v. FUGRO GEOTECHNICAL SERVICES (HONG KONG) LTD. & OTHERS

HCPI 1287/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1287 OF 1999

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J U D G M E N T

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1. These proceedings arise out of an accident sustained by the plaintiff at work on 20 November 1996. He was employed by the 1st defendant at the site of the Mass Transit Railway Central Station as a geological surveying technician. On that date at about 1.00 p.m., he was taking measurements with a colleague, when a number of plywood boards fell from a tower crane by which they were being transported across the site, one of which struck him and caused severe injuries. The 1st defendant, against whom proceedings have since been discontinued, was a sub-contractor of the 2nd defendant, the principal contractor on the site, and the 3rd defendant and third party was a further sub-contractor. Judgment was entered against the 2nd and 3rd defendants on 21 June 2001, with damages yet to be assessed, and trial of the issue as to apportionment of liability was ordered as between the 2nd and 3rd defendants. It is with this that I am now concerned.

2. The 2nd defendant was, as I have said, the principal contractor on the site, and had sub-contracted to the 3rd defendant the construction of the South West Tower. The tower crane involved in the accident was provided by the 2nd defendant and operated by a driver, Mr Chiu Tsan Kin, who was employed by them. The tower crane was available for use by sub-contractors on the site by arrangement with a foreman.

3. On the day in question, employees of the 2nd defendant needed to transport a number of plywood boards across the site for use in the construction of hoardings, and their foreman, Mr Ng Wah, instructed two of their workmen, Mr Shin Moon Chi and Mr Li Tin Sung, to rig a pallet on which were stacked about 12 boards for transport by the crane. They prepared the load by passing two webbing slings, each about 11.6 metres long and with each end turned back to form an eye, beneath the pallet, meeting at the top of the load with one end passing through the eye. The hook of the crane was then lowered and the ends of the slings attached to shackles on wires connected to the hook. The crane driver was then instructed by hand-held radio to start the lift and it was raised initially about one metre to check whether the load was properly balanced, and for the workmen to strike the slings between the top of the boards and the shackles, with pieces of wood, to tighten the slings round the load. The driver was then further instructed to carry on with the lifting and transportation, and the load was raised and the crane commenced to swing to the right in a clockwise motion. When the load was at about 20 metres high, the boards began to slip off the pallet until all had fallen to the ground below, bouncing off some railings and the rear of a crawler crane, and one striking the plaintiff.

4. Following the accident, there were enquiries by both the 2nd defendant and a Factory Inspector, and two reports compiled, and the 2nd defendant was charged with, and pleaded guilty to, an offence under Regulation 7J of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap 59, of failing to ensure the security of a load.

5. In order to consider where the blame for this accident lies, or in what proportions the blame should be shared, I have to look at what are the possible causes of it, those which the parties have put forward, and which is or are the most likely. The various possibilities may be summarised as follows: (i) careless control of the crane by the driver; (ii) using an improper method of rigging the load; (iii) failure to rig it safely. If the method used to rig it was improper, but the usual method on that site, the question then arises whether the 2nd defendant was at fault for condoning it and whether either or both defendants were in breach of regulations. I will look at the evidence in respect of each of the possibilities.

The crane driver

6. The case of the 3rd defendant may be briefly stated that, as they claim the load was rigged by them properly and safely, it must have been something the 2nd defendant's crane driver did to cause the accident, either by raising the load, or slewing the crane, too fast. There is also a suggestion that the load may have been handled in such a way as to cause it to collide with something, thereby unbalancing the load. The difficulty they face with these allegations is the almost total lack of any contemporary evidence. Of all the witnesses interviewed by the factory inspector and the 2nd defendant's investigators, either on the same day as the accident, or the next day, not one refers to any mishandling of the crane, or any negligent or improper act by the crane driver, including their own workmen. Indeed, Mr Li Tin Sung, one of those workmen, gave evidence before me that the driver had raised the load to one metre as requested for it to be checked, and the slings struck to tighten them, and was then asked to raise it further, which he did, not moving it away until it was raised to above the height of a person. He saw nothing more until he heard a bang. Both he and his colleague Mr Shin were asked by the 2nd defendant's investigator, on the day of the accident, whether the speed of lifting was fast. Mr Li said "not really", and Mr Shin, "not very fast". In his witness statement, Mr Li said that he saw the plywood being raised steadily from the ground.

7. The evidence upon which the 3rd defendant relies as to a collision is the statement by the 2nd defendant's safety officer in their report, where he gives as one of the possible causes of the accident, with several others:

"The height of the plywood load during the slewing operation might not be high enough to avoid its direct impact on the structures in the vicinity or the premature early lowering of the load giving the same result."

However, this was not a finding on the evidence, as there was none to support it, but little more than speculation as to what might have been a cause. The evidence since takes the suggestion no further, and the investigations found no damage to any structure from such a collision. The only damage was minor and that to a crawler crane, which was struck by part of the load falling. There could have been no collision with the crawler crane's jib, which the evidence shows was not near the direction of travel of the load.

8. I have also been shown the transcript of the court proceedings against the 2nd defendant referred to above. In those proceedings, a Mr Sutherland, appearing in person for the company, said in mitigation that the accident had been caused by the load hitting an upright piece of scaffolding and it was an error of judgment by the crane driver. I find this statement totally inexplicable. As I have pointed out, there was no evidence then, and there is none now, that any collision took place, and I can only assume that Mr Sutherland was coming to his own conclusions without referring to the statements of witnesses nor the reports prepared at the time.

9. Similarly there is no evidence at the time of any complaint against the driver Mr Chiu. It is only in the witness statements prepared for this hearing earlier this year that Mr Li, and Mr Ng Wah, claim that complaints about him and his unsafe handling of the crane had been made to the 2nd defendant's site agent. I regret that I cannot accept that evidence. There is no record of such complaint. The 2nd defendant's safety officer, who would surely have been informed, was not aware of it, and it was not mentioned as a possible cause at the time.

10. There is accordingly no evidence here capable of supporting any allegation of wrongdoing by the crane driver and I have to exclude this as a possible cause of the accident.

Rigging of the load

11. The method of rigging a load such as that which was used here involves the slings passing over two sides holding the pile of loose boards together. It relies on the pressure exerted by the weight of the boards, here about 600 kilos, to pull the slings together at the top where they form a triangle meeting at the shackle connecting them to the crane. The tension is increased by the riggers striking the slings to take up any slack where they pass round the load. However, as was pointed out by the factory inspector in his report, the other sides were totally unsecured. And the load was not otherwise secured, resulting in any imbalance during the lifting operation allowing the boards to slide over. Once this movement has started, the imbalance will necessarily increase, and with nothing to prevent them then sliding sideways, a fall is inevitable. This is not rough timber, but plywood, which is relatively smooth, and while it is held together and compacted by pressure of the slings and the weight of the boards themselves, in the absence of a strap passing round the ends, should any imbalance occur during transit, it is easy to imagine how one board sliding could commence a chain reaction. The slings, after all, would only be in contact with all the boards if the pallet is precisely the same width as them, and all the boards are precisely the same size. Is this were not so, then it is only the weight of the boards above keeping each in place.

12. In these circumstances, there is little, if any, room for error, or, more likely, movement and swinging of the load in transit caused by the inevitable slewing of the crane, or possibly, which is not the case here, by the effect of wind. I am therefore driven to the conclusion that this method of securing such a load for transport by crane in inherently unsafe and fraught with danger.

13. However, it is clear from the evidence that this is the usual method employed on many building sites in Hong Kong. Not only do the 3rd defendant's witnesses say that this is the accepted method, and that which they have been taught, but Mr Chiu, the 2nd defendant's own crane driver, with 17 or 18 years' experience, gave evidence that he was familiar with this method and it was usual at this site. There is no evidence that they were ever told not to do so, the safety courses which they attended only referring generally to the importance of rigging loads securely, and only in the case of pipes being told to secure the ends. In spite of the factory inspector's recommendation that such loads should be secured at the ends as well to prevent slipping, and the practice being introduced on this site after the accident, I understand that it is still not regularly done on other sites.

14. It is also the 2nd defendant's case that the workmen who rigged the load did not do so sufficiently securely and safely. There can be no doubt that these were not experienced and trained riggers. They were general unskilled workmen, but who had been taught by their foreman, Mr Ng Wah, how to secure such loads. They had clearly been instructed of the importance of balancing the load, which was one of the things to be checked on the initial raising of the load to one metre, and of securing it tightly, which was the purpose of striking the slings with wood. There is no evidence here that they did not do as they had been instructed, that the slings were not positioned correctly, nor that the load had not been made as safe as this method permitted. Any other view would be mere speculation, and I am satisfied that they did their best with what I consider to be an unsafe method, but that which they had been taught to do.

Liability of the 2nd defendant

15. Mr Cheung, one of two safety officers employed at the site by the 2nd defendant, conceded that, in the safety courses the workmen were not specifically told that loads such as this should have transverse straps or slings as well, but said that he considered the method not acceptable and if he saw it being used, he would stop it and inform the foreman not to do it. I also find this evidence unreliable. As I have already found, the method was the usual one on this site and on many others. Loads such as this must have been a regular occurrence on the site, and between himself and his nine colleagues in the safety team, making regular inspections of working practices, they cannot have been unaware of the method used. Further, in his own declaration to the factory inspector, he describes the same method of slings as being the one usually used, and illustrates it with a diagram, which shows no other strap or sling other than the two supporting the load.

16. It is apparent that, as there had not hitherto been such an accident, and the load itself from a cursory inspection did to look unsafe, they had been lulled into a false sense of security, and did not appreciate the element of the danger from this method. To that extent they had condoned the practice, only prohibiting it afterwards. A classic case of closing the stable door after the horse has bolted. For this they must accept a degree of responsibility.

Breach of regulations

17. The 2nd defendant has already been convicted of failing to ensure the security of the load under Regulation 7J, referred to above. This is, as Mr Bharwaney for the 2nd defendant has pointed out, an offence of strict liability. What of the liability of the 3rd defendant under these regulations? To be liable under this regulation one has to be the "owner" of a lifting appliance. The definition of owner is extremely wide and, as well as the lessee or hirer, includes a foreman or person in charge or having control or management of it. This crane was available for use by the 3rd defendant, as well as others, although owned in the narrow sense of the word by the 2nd defendant. However, in the case of each use of the crane by the 3rd defendant, it is their foreman who is giving instructions to the driver, and controlling what is being done with it. To that extent, they must have, for that limited period, the control or management of it, and can accordingly fall within the definition of owner. On the basis of the same strict liability, they are equally in breach of this regulation.

Conclusion

18. The principal cause of this accident was in my view the inherently unsafe method of securing plywood boards for transport by crane. This was the method which the 3rd defendant had instructed their employees to use, and, it being no part of the 2nd defendant's task to tell their independent contractors how to do the jobs for which they had contracted, subject to safety considerations which I shall come to shortly, a large part of the blame for the accident must accordingly be borne by the 3rd defendant.

19. However, as I have also found above, the 2nd defendant must have been aware of this method and done nothing to prevent it. They were very properly therefore convicted under the regulations, and must also bear a proportion of the responsibility. Under Regulation 38A of the Construction Sites (Safety) Regulations, Cap. 59, they, as the contractor responsible for the site had a duty to ensure that every place of work on the site was, as far as reasonably practicable, made and kept safe for any person working there. This they clearly accepted by the provision of a safety team, regular induction safety courses provided for any workman starting work at the site, and regular inspections of work on the site. By condoning the method of work here, they equally clearly failed to keep the site safe.

20. In the circumstances, I consider that a proper division of responsibility is as to 60% for the 3rd defendant and 40% for the 2nd defendant. There will also be an order nisi for the costs of these proceedings and of this hearing to be borne by the 2nd and 3rd defendants in the same proportions.