CHAN KING WAN AND OTHERS v. HONEST SCAFFOLD GENERAL CONTRACTOR CO. LTD. AND ANOTHER

HCPI 1267 & 1269/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOS. 1267 & 1269 OF 1996

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(Actions consolidated by the Order of Mr. Registrar Betts dated 5th February)

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J U D G M E N T

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1. These two actions arise out of the death of two scaffolders, Leung Hoi Sung then aged 50, and Leung Kit Chuen then aged 39 on 13th December 1993 when the temporary scaffold they were constructing outside the bay window of a bedroom on the 22nd Floor of Unit D in Block 12 of South Horizons, Ap Lei Chau became detached from the building and fell to the street below.

2. With the consent of the parties, I ordered that the issues of liability and quantum be tried separately, and in the event of liability being established against either or both of the Defendants, that the issue of quantum should be tried by a Master.

3. There is very little factual dispute regarding the circumstances surrounding the deaths of the deceased. The 2nd Defendant, Kai Tai Construction and Engineering Company Limited was the principal contractor responsible for the construction of the South Horizons Development. Block 12 had been completed and handed over to the developer in December 1992. Practical completion of that block had taken place in June 1993. By agreement, the 2nd Defendant as the principal contractor was responsible for rectification of defects found in Block 12 during what was known as the "defects liability period" between June 1993 and May 1994.

4. On 13th December 1993 as a result of this agreement, the 2nd Defendant was responsible for rectification of water seepage to the bay window of the bedroom of the flat in question on the 22nd Floor.

5. The 2nd Defendant sub-contracted the work of erecting a temporary scaffold outside this bay window, which its employees or contractors would subsequently use to effect the necessary repairs, to the 1st Defendant, Honest Scaffold General Contractor Company Limited. The two deceased were both directors and employees of that company. The 1st Defendant company had been set up by the two deceased and Madam Yip Siu Yin, another director, in 1986. All three held equal shares in the company. The two deceased already had many years experience in the scaffolding trade; Madam Yip had experience in accounting. It was agreed that she should be responsible for the office side of business, and two deceased would be responsible for the scaffold construction work of the business. At Madam Yip's suggestion all three directors and shareholders became employees of the company. The two deceased were responsible for selecting all the material necessary for their work, including the bamboo and ties.

6. The job to be performed on the 22nd Floor of Block 12 was just one of very many performed by the 1st Defendant for the 2nd Defendant at the South Horizons Development. The 1st Defendant had already constructed more than a 100 similar structures which were commonly known as "hanging scaffolds" or in engineering terms as "trussed out scaffolds" for the 2nd Defendant.

7. On the morning of 13th December 1993, the two deceased had gone to the South Horizons Development with Mr. Ng Wai Tak, a daily waged employee of the 1st Defendant, who was responsible for passing the bamboo and other materials to the deceased from inside the building while they constructed the scaffold. At the Development they were met by Mr. Yeung Yuen, the foreman of the 2nd Defendant, who handed them a piece of paper with the work they were required to do that day. They started by dismantling two temporary scaffolds before being taken to a flat by Mr. Yeung when they erected their first scaffold. Mr. Yeung left and later returned and took them to the flat in question on the 22nd Floor. He then left.

8. No independent life line to which the deceased could attach safety belts was erected by the 2nd Defendant.

9. The two deceased then started to erect the scaffolding while Ng Wai Tak passed them materials.

10. Initially, the deceased would fix two eyelet pins to the outside of the building on either side of the bottom of the bay window using a fastening gun. Two bamboo poles were attached to the anchorage points with three strands of 1mm wire (wire coils). A platform about 0.63m deep was then constructed from these two poles. Small bamboos attached to the bottom of the platform at right angles to it, rested on the 3-inch window sill outside the window. Two long vertical poles known as "rakers" were then attached to the platform at an angle so that they rested where the outside wall met the roof of the bay window of the flat beneath. This work was effected without the deceased venturing outside the window. The deceased then both climbed onto the platform in order to affix similar wire coils to two further anchorage points which were affixed to the wall above the window in order to complete the structure.

11. It was at this stage after the deceased had climbed out onto the platform and when Ng Wai Tak's back was turned that the structure fell.

12. Neither of the deceased was wearing a safety belt or harness. There were no safety belts available in the flat on the 22nd Floor. There was evidence that the deceased had two safety belts in the vehicle which they had used to travel to the Ap Lei Chau Development. There was evidence also that the 2nd Defendant had safety belts in its site office at the development. Not only were the deceased not wearing safety belts but there was no place to which safety belts could safely be anchored. As I have said, no independent life line had been installed from the roof which would have been a normal point of anchorage for scaffolding workers doing such work. No alternative anchorage such as an eyebolt fixed into the soffit of the bay window had been installed.

13. I am satisfied from the evidence that the window frame itself would have been an unsuitable anchorage point from its configuration, the fact that it was made from aluminium but more particularly from the fact that it could have come detached if it suddenly had to bear the force of a falling man.

14. Mr. Cheng Foon, an occupational safety officer of the Labour Department, inspected the structure very soon after the accident as it lay in the street below. It was apparent from examination of the structure and the four anchorage points found around the window that at least one of the two upper wire coils had already been attached before the accident, as well as the bottom two coils and that all had broken. The four anchorage points around the window were intact. Therefore, the immediate cause of the detachment of this structure from the building was the failure of the wire coils.

15. It was the evidence of Dr. Lingard, the Plaintiff's expert, which I accepted, that the fracturing of the wire coils was probably not the primary cause of structure falling. It is more likely that something happened to disturb the immediate stability of the structure which provided enough force to cause the wire coils to fracture. One can only speculate to what this primary cause might have been. It is unlikely to have been a break in the bamboo as there was no sign of such breakage in the structure after it had fallen to the ground. It could have been one or both of the "rakers" slipping or some other parts of the structure coming loose. It may have been simply that one of the deceased had slipped.

16. Dr. Lingard gave evidence of his views of the structural safety of this structure when completed on the reasonable assumption that when constructed, it would have resembled another structure constructed by the deceased which had been photographed. Although if properly constructed, he considered it could sustain weights of 500kgs to 700kgs and was apparently a well known design amongst local bamboo scaffolders, he did not consider it would have been safe by engineering standard as it had no fail safe capability. In its uncompleted state, he considered it extremely hazardous for anyone to venture onto it. There was a serious risk of something unexpected occurring, as happened in this case. If anything went wrong with the vertical support (in this case a "raker"), there was nothing left to protect the workers. He commented that he was horrified that anyone should go out on such a partially completed structure without the safety belt and hardness. There was no real dispute about this evidence.

17. Where there was a dispute was whether or not Mr. Yeung, the 2nd Defendant's foreman, had informed the deceased that there were belts and life lines available in the site office. His evidence was that he had and that every time he took the deceased to the site of a particular job including the flat in question he had told them to wear belts and take safety precautions and had received assurances from the deceased that they would comply. He even went so far in evidence as to suggest for the first time that on the day of the accident he had told them to connect several safety belts together and attach them round the window frame.

18. I did not find Mr. Yeung a convincing witness. Mr. Ng Wai Tak, who I did find a convincing witness, had been at the site with the deceased on many of the 100 or so occasions when the deceased had built similar scaffolds. While he fairly conceded that he was not paying attention he had no recollection of Yeung ever telling them to wear safety belts. Indeed, I accepted Mr. Ng's evidence that just before taking them from the flat where they had erected the first scaffold that day to the flat where the accident occurred, Mr. Yeung would have been able to see the deceased working outside on a scaffold without safety belts.

19. I can place no weight on Mr. Yeung's evidence in this regard. Mr. Ng's evidence was that only on one occasion had he ever seen the deceased wearing safety belts and that was when they were working from the top of a roof where there was no foothold. If Mr. Yeung had been so concerned about safety as to warn the deceased about the need to wear belts, he would have noticed that it was not the practice of the deceased to wear belts or harnesses. I think it is likely that Mr. Yeung left the question of safety precautions to the deceased themselves.

The claim against the 1st Defendant

20. The Plaintiff's claim against the 1st Defendant is based on negligence, breach of an implied term in their contract of the employment and failure to discharge the common duty of care under the Occupier's Liability Ordinance, Cap. 134. I do not propose distinguish between the various types of claim because for practical purposes they are co-terminous.

21. There is nothing to suggest that the materials used in the construction of the platform were themselves faulty. But there can be no doubt that the system of work adopted by the deceased was unsafe. It involved them climbing onto a structure which had no fail safe capacity, without any form of safety belt or harness, and indeed, without any point on to which they could safely anchor such a belt or harness if they chose to use them.

22. The question for the court is whether the 1st Defendant can be held liable for this state of affairs bearing in mind the deceaseds' own position with the 1st Defendant and their role in causing the accident by choosing the method of work they did and failing to wear safety belts or harnesses.

23. The 1st Defendant was a limited company and could only act through its directors and/or servants. Insofar as the erection of these scaffolds and the adoption of safety measures are concerned, the evidence shows that these matters were left entirely to the two deceased. Madam Yip took no part in this part of the company's activities. The 1st Defendant cannot be liable for breach of duty to the deceased if they quite properly left these matters to the deceased who were competent and experienced men (see Richardson v. Stevenson Clarke Ltd. [1969] 3 All ER 705 which related to the selection of equipment).

24. The evidence, in my view, shows that it was reasonable for the company to leave these matters to the deceased. They were both apparently competent men of very many years scaffolding experience, not only in this company but with previous employers (see evidence of Madam Yip). I find that the proper test to be applied in a case such as this was set out by Pearson L.J. in Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414. Although that case concerned alleged breach of statutory duty by the employer, the principles are, in my view, equally applicable to the breach of duty alleged by the Plaintiff in this case. Pearson L.J. said that the important and fundamental question was: "Whose fault was it?" He went on:

"If the answer to that question is that in substance and reality, the accident was solely due to the fault of the Plaintiff, so that he was the sole author of his own wrong he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee Plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions; the employer may have employed for this purpose some insufficiently experienced men, or he may in the past have acquiesced in some wrong behaviour on the part of the men. Therefore, if one finds the immediate and direct cause of the accident was some wrongful act to the man, that is not decisive. One has to enquire whether the fault of the employer (under the statutory regulations) consists of and is co-extensive with the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee and was a cause of the accident, the employer has some liability."

In this case, I find that there was no fault on the part of the 1st Defendant which went beyond or independent of the wrongful act of the deceased. I had already said that I find it reasonable to leave the construction of this scaffold and the adoption of safety measures to the deceased.

25. It has been suggested by Mr. Bharwaney that it would have been reasonable for the 1st Defendant to have insisted on the deceased undergoing a safety instruction course and for the advice of an engineer to be sought on the suitable design and method of construction for the scaffold in the circumstances.

26. I do not consider the 1st Defendant was in breach of duty to the deceased by failing to warn them of the dangers of going onto a part completed structure without safety harnesses or belts. An instruction course was not necessary to warn the deceased of the dangers inherent in what they were doing. They were obvious to anyone, especially to an experienced scaffolder.

27. Insofar as failing to seek the advice of an engineer is concerned, it has to be borne in mind that the accident happened to scaffolders when the scaffolding was in the course of erection. Even if an engineer had been consulted, he would not necessary have designed a scaffold upon which it would be completely safe to venture at any stage of construction without a safety belt or harness.

28. It is undoubtedly possible to design a scaffold suitable for the task which would not involve a workman going out onto it until it had its full load bearing capability. Dr. Lingard produced a design for such a scaffold. It would have involved considerable expense. It would have involved removing the window frames, both of the room in the flat in question and the one underneath. It is certain to have damaged the decoration of both rooms. Even if an engineer had been consulted, I think it unlikely that he would have recommended such a scaffold for this particular minor job when both the flat in question and the one underneath were occupied.

29. I consider that an engineer would properly have recommended a design that resulted in the completed structure being safer than this one would have been. That might well have involved the use of brackets attached the building which was an accepted method of construction in 1993 and is common place today. But the fixing of the brackets would involve an operation exposing the worker to considerable risk unless he was safeguarded by a harness or belt. In short, I consider that a reasonable method of construction for a scaffold in the circumstances would probably involve risk to the scaffolder from which he could only be safeguarded by a harness or safety belt.

30. I find that the Plaintiffs are not entitle to recover damages against the 1st Defendant because as between the deceased and the 1st Defendant, the fault from this accident was that of the deceased and there was no fault on the part of the 1st Defendant which went beyond or was independent of the deceaseds' fault.

The 2nd Defendant

31. The Plaintiffs claim against the 2nd Defendant is based upon negligence, breach of contract, breach of occupier's liability and breach of statutory duty.

32. No argument was addressed to me about any contractual relationship between the deceased and the 2nd Defendant. I assume there was none and that for this reason this aspect of the claim has not been pursued.

33. The principal issue trial between the Plaintiff and the 2nd Defendant in this trial has been breach of statutory duty. Although in their Statement of Claim, the Plaintiffs' alleged breaches of Regulation 38D(1) and (2) of the Construction Sites (Safety) Regulations, Cap. 59 and Mr. Bharwaney at one stage said that he would be seeking to rely upon Regulation 38B of those Regulations, he ultimately conceded that those regulations did not have application to a scaffold under construction. What he relies upon are breaches of regulations 38Q(2), 38Q(3) and 38Q(5) of the Regulations which relate to the prevention of falls and provision of safety belts or nets.

34. Regulation 38Q places responsibility for carrying out its provisions on the "contractor responsible for a construction site". No serious issue has been taken with the Plaintiffs' allegation that the 2nd Defendant was the contractor responsible for a construction site.

35. I am satisfied that the place where the accident occurred was still a "construction site" within the meaning of Regulation 2 of the Construction Sites (Safety) Regulations, Cap. 59 and that being the principal contractor undertaking work there, the 2nd Defendant was the contractor responsible for the construction site.

36. Regulations 38Q(2) and (3) are conditional upon a safety belt being required by virtue of Regulation 38Q(1). That regulation only applies when it is impracticable for the contractor to comply with all or any of the requirements of the Regulations 38A, 38B, 38L, 38M, 38N, 38P of the Regulations. I find that it was impracticable for the 2nd Defendant to comply with all those regulations. Therefore, the obligations arose on the part of the 2nd Defendant to provide each workman with "a suitable safety belt" under Regulation 38Q(2) and "a suitable and sufficient anchorage and suitable fittings therefore" under Regulation 38Q(3).

37. At the time of the accident, the deceased as I have found were not wearing safety belts nor was there any suitable and sufficient anchorage, even if they had been wearing them. There was, of course, evidence which I have no reason to doubt that there were safety belts and life lines at the site office. While I cannot exclude the possibility that Mr. Yeung had at some time in the past informed the Plaintiff of the availability of these items, I do not believe it probable that he had done so in the recent past and in particular on the day of the accident.

38. In so far as the obligation to provide workmen with safety belts is concerned, I consider it would be an unduly restrictive interpretation of Regulation 38Q(2) to require the 2nd Defendant physically to hand over safety belts to workmen. It would be sufficient to make it known to workmen where such safety belts were available. However, I consider that the requirement to provide "a suitable and sufficient anchorage and fittings therefore" requires more of a contractor. It would not be sufficient for the 2nd Defendant to provide the means whereby the workmen could themselves make a suitable and safe anchorage, e.g. by telling them where they can find the life line. It must itself provide the anchorage. Here, there was no anchorage either in the form of life lines from the roof or eyebolts to which the belts could be anchored.

39. I find, therefore, that even if there is a possibility that Regulation 38Q(2) was satisfied, the 2nd Defendant failed to comply with Regulation 38Q(3).

40. But even if I had not been so satisfied, there can be no doubt that the 2nd Defendant failed to comply with Regulation Q(5) which required it to take all reasonable steps to ensure that no workman remain on any dangerous place on the construction site without wearing a safety belt provided to the workman.

41. I did not accept Mr. Yeung's evidence that he warned the deceased to wear safety belts or that they assured him that they would do so. Even if he or they had, it would have been incumbent on him to take reasonable steps to ensure that the belts were being worn. He did nothing to satisfy himself of that requirement either on the day of the accident or on the 100 or so other occasions the deceased had built similar scaffolds.

42. I, therefore, find the 2nd Defendant was in breach of the statutory duties imposed on it by Regulations 38Q(3) and (5) of the Construction Sites (Safety) Regulations, Cap. 59.

43. I am satisfied the breach of those duties caused the deaths of the two deceased. There is no reasons to suppose that if suitable anchorages had been provided in the form of life lines or eyebolts and the deceased had warned by someone on behalf of the 2nd Defendant to wear belts or harness that they would have disregarded such instructions or warnings.

44. In the light of this finding, it is unnecessary for this Court to consider whether the 2nd Defendant was in breach of any further duties at common law or under the Occupier's Liability Ordinance, Cap. 314. I would only comment that I would have considered it artificial to deem the 2nd Defendant to be an occupier of the partially constructed scaffold being erected by the deceased. In any event, the defence under S.3(3) of the Ordinance would have been available to it.

Contributory negligence

45. During the course of submissions, I have been referred to a number of previous cases and it has been submitted that the deceased were either more or less negligent than those injured or killed in those cases. Reference to previous cases can be of considerable assistance to a court but it must be borne in mind that the circumstances of each case is different. The court should not find itself enmeshed in attempting to reconcile the case before it with or distinguish it from other cases on the facts.

46. What the court must do is to look at all the circumstances of the case before it, and consider not only "the causative potency of a particular factor but also its blame worthiness" (per Lord Denning in Davies v. Swan Motors Company (Swansea) Limited [1949] 2 K.B. 291.

47. The Construction Sites (Safety) Regulations, Cap. 59 place a primary responsibility on the principal contractor to ensure that those working in dangerous places on a construction site wear safety belts and that they provide the necessary anchorage point.

48. In so providing, the law no doubt reflects the fact that workers, such as scaffolders often have other priorities than their own safety, such as mobility, speed and cost. They may too become enured to risk by constant exposure. The principal contractor may well be the best person to ensure that the cost of providing essential safety is incorporated into a construction project. In this case, the 2nd Defendant failed to provide the anchorage points to which the deceased could have attached safety belts if they had wished. They failed to provide any supervision.

49. Bearing these factors in mind, I find nonetheless that there was substantial contributory negligence on the part of the deceased. The dangers they faced were obvious. They were mature men of very considerable previous experience in scaffolding. It was indeed their specialisation and had been for many years. They were not lowly employees in the company constrained by their position not to complain or to ask the principal contractor to erect life lines. They could have done so and there was no reason to suppose that such a request would have prejudiced the continued use by the 2nd Defendant of their company's services. Being themselves responsible for the way they worked, they could have fixed an eyebolt into the soffit of the window from which they were working. This was not an isolated incident when the pressure of work constrained them from adopting safety measures. It was their usual everyday working pattern.

50. Bearing in mind the circumstances of the case, I am of the view that both deceased were equally responsible between themselves for the accident which caused their death and that their joint responsibility for the accident was 40%. I give judgment for the Plaintiff against the 2nd Defendant in both actions. I order that damages be assessed by a Master and that the 2nd Defendant pay 60% of those damages to the Plaintiffs.

51. I make the following order nisi as to costs that unless either party makes application to the court within 14 days, the Plaintiffs' costs be taxed and paid by the 2nd Defendant. The costs of the 1st Defendant to be taxed and paid by the Plaintiffs.