LAM FONG AND OTHERS v. SO HOO YUEN t/a WUI LOONG SCAFOLD & MATCHED BUILDERS AND OTHERS

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HEADNOTE

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When one is concerned with something as hazardous as working at height on a scaffolding, the common duty of care owed to an employee by his employer generally requires the employer to take the time and trouble to identify, locate, obtain, provide him with, instruct him in the proper use of and instruct him to use the best safety belt system among those in common use at the time.

If an employee has been provided with a safety belt which would probably have saved him if he had worn it, then his failure to wear it may - depending on the circumstances - constitute a failure to take reasonable care for his own safety and amount to contributory negligence even if it was not of the best type in common use at the time and even in the absence of instructions to wear the same.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This case arises out of an accident in which a man fell to his death from a bamboo scaffolding which he and several of his co-workers were dismantling at the time.

2. The accident took place on January 25, 1983, at Dragon View Court, a high-rise residential development in Macdonnell Road. Substantial refurbishment works had been going on there.

3. Such works included the painting of the external walls. The painting contractor's obligations to the incorporated owners of the building included the erection and eventual dismantling of the necessary scaffolding. But they sub-contracted that to someone specializing in that kind of thing.

4. The man who died was an employee of the scaffolding sub-contractor. His personal representatives are the plaintiffs. They sued the scaffolding sub-contractor as the 1st defendant and the painting contractor as the 2nd defendant.

5. Third party proceedings had been brought by the painting contractor against the incorporated owners who, in turn, have brought their insurers in as a fourth party. As between themselves, the third and fourth parties have come to terms. The third party proceedings have been set down for hearing before me early next month.

6. At the time of the accident, the deceased - a 39 year old man with many years' experience in scaffolding work - had positioned himself at the second floor level of the scaffolding at the face of Block A of the building. Several co-workers of his - about seven of them - were also on the scaffolding.

7. The deceased wore a safety helmet. Some of his co-workers also wore safety helmets. Others did not. Neither the deceased nor any of his co-workers wore a safety belt.

8. All of the deceased's co-workers were working at levels higher than the one at which he was working. At the 7th and 8th floor levels actual dismantling was being done. About three men were engaged in that. Spread out below them but above the deceased were about four men who were engaged in passing the dismantled bamboo poles downwards by hand until they reached the deceased. From where he was, the deceased would lower the poles to the ground and position them so that they leaned against the building.

9. The scaffolding - made up of long bamboo poles bound together - was braced against the building by relatively short bamboo "putlogs". It was the task of those engaged in the dismantling to cut the poles and the putlogs free of their binding and pass them down. Putlogs were not passed down on their own. They were bound to the poles which were passed down.

10. This is how - as I find the facts proved if not admitted - the accident happened: A putlog of about 3 to 4 feet in length and about 1 1/2 inches in diameter fell and hit the deceased. He was on the outside of the scaffolding and facing the building but looking upwards. The putlog hit him in the region of his forehead, which was not protected from falling objects by his helmet as he was looking up. The blow to his head caused him to fall to the ground sustaining injuries from which he died - if not instantaneously - then at least by the time he arrived at the hospital to which he was rushed.

11. How did the putlog come to fall? The 1st defendant, the scaffolding sub-contractor, has abandoned the allegation which he once made that the putlogs had been tampered with and loosened by painters engaged by the 2nd defendant, the painting contractor. In any event, I find that the putlog in question fell outside the scaffolding rather than between it and the building. Given that - and given the unchallenged evidence that the putlog which fell was only about 3 to 4 feet long and that the distance between the scaffolding and the building was about 3 feet - I consider the probability to be this: The putlog did not fall simply upon coming loose while in position bracing the scaffolding against the building. Rather it fell either because a dismantling worker dropped it or because he had not properly secured it to a pole which was being or about to be passed down.

12. In the absence of some good excuse - and none has been offered - dropping the putlog would be negligent. The same is true of failing to secure it to a pole properly. Having regard to my view of the probability as to how the putlog came to fall, it is unnecessary to consider what the position would be if it simply came loose while in position. For the sake of completeness, however, I should perhaps just say this: The installation of the scaffolding, including the putlogs, was done by the 1st defendant's employees. So it would not help him if that is how it happened. All that it would point to is negligence on the part of an employee of his at an earlier stage, namely, the one at which the putlogs were being installed.

13. It is common ground that it was the fall to the ground which killed the deceased and that a safety belt - if he had worn one, which he had not - would have saved him from the fall and therefore death.

14. While the deceased's co-workers who witnessed the accident, and gave evidence as the first and second witnesses for the plaintiff, impressed me as thoroughly honest and as reliable on essential matters, the witness called by the 1st defendant, his son who used to manage his scaffolding business, did not favourably impress me at all. I do not accept his evidence that he made about ten safety belts available to the workers who, including the deceased, numbered about eight. On the other hand, the evidence for the plaintiffs is itself to the effect that some safety belts were made available. The 1st witness for the plaintiffs said that one or two safety belts were made available. But he also thought the number of workers involved was about five or six, when about eight is the number I find probable. All things considered, I think it more probable than not that more than one or two safety belts were made available but that there were not enough for each and every worker to wear one. I do not accept that any instructions to wear safety belts were given to any of the workers.

15. For the 1st defendant, Mr Lo drew my attention to that part of the speech of Viscount Kilmuir L.C. in McWilliams v. Sir William Arrol & Co. Ltd. (1962) AC 295 where the Lord Chancellor said (at pp. 300-301) :-

"Finally, it was submitted that if the deceased's hypothetical refusal to wear a safety belt must be recognised as the effective cause of his not wearing one and hence of his death, the failure of the respondents to provide a safety belt should not be ignored as a causative factor. The answer in my view must be that there are four steps of causation: (1) a duty to supply a safety belt; (2) a breach; (3) that if there had been a safety belt the deceased would have used it; (4) that if there had been a safety belt the deceased would not have been killed. If the irresistible inference is that the deceased would not have worn a safety belt had it been available, then the first two steps in the chain of causation cease to operate.

On the second submission, that the first respondents should have exhorted or instructed the deceased to use a safety belt, I considered carefully the argument based on the extent of the danger. I have, however, come to the conclusion that it fails. There was a strong feeling among steel erectors that safety belts were certainly cumbersome and might be dangerous except in very special circumstances which did not . obtain here. This being so, I bear in mind the words of Lord Radcliffe in Qualcast (Wolverhampton) Ltd. v. Haynes [1959] AC 743 at P. 752: 'One [word of caution] is that, though indeed there may be cases in which an employer does not discharge his duty of care towards his workmen merely by providing an article of safety equipment, the courts should be circumspect in filling out that duty with the much vaguer obligation of encouraging, exhorting or instrtucting workmen or a particular workman to make regular use of what is provided.' "

It will be noted that the Lord Chancellor referred to evidence in that case of a strong feeling among the workers concerned that, save in very special circumstances which did not obtain there, safety belts were not only certainly cumbersome but might even be dangerous. There is no evidence of that sort in the case before me. Indeed both of the deceased's co-workers who gave evidence said - and I believe them - that they would have worn a safety belt if they had been instructed to do so. It seems to me, as a matter of inference, more probable than not that the deceased would also have worn one if he had been instructed to do so. I see no basis for concluding that he was unlikely to be at least as prepared to be careful as those two gentlemen were. If anything, he was more prudent than they were. He at least wore a safety helmet. Neither of them did even though, like him, they had persons doing dismantling work above them.

16. It is true that the type of safety belt provided was not of the type which runs on a life-line along which the wearer may move but onto which the belt locks in the event of a quick movement such as would occur if he were to fall. And it is also true that only that type was wholly suitable for general use on scaffoldings. Nevertheless, the specific task which the deceased was performing at the time was one for which the type of safety belt provided - albeit in inadequate numbers and without instructions to use the same - was acceptable. He had to move from side to side along three squares formed by horizontal and vertical poles. By anchoring the lanyard of the safety belt to the horizontal pole of the middle square, he could do that without undue restriction to his mobility. And he would have been safe unless the pole gave way. There is no evidence that such a mishap as at all likely.

17. It is not necessary for the plaintiffs to fault the 1st defendant for failing to provide safety belts of the life-line type. But if they had to, I think they would be able to do so. There is acceptable evidence (from a safety expert called as the last witness for the plaintiffs) that such safety belts were in common use even back in January 1983. It is true that even the factory inspector - who investigated the accident and whom the plaintiff called - was not sure if they were even available in Hong Kong then. But I am satisfied that they were. When one is concerned with something quite as hazardous as working at height on a scaffolding, the common duty of care owed to an employee by his employer generally requires the employer to take the time and trouble to identify, locate, obtain, provide him with, instruct him in the proper use of and instruct him to use the best safety belt system among those in common use at the time.

18. In my judgment, the 1st defendant failed to take reasonable care for the deceased's safety in failing to provide enough safety belts for each and every worker, including him, and in failing to give any instructions to use them. By reason of that failure, the deceased was not saved from the consequences of being hit by an object which fell as a result of negligence for which the 1st defendant is vicariously liable. The plaintiffs are, in my judgment, therefore entitled to succeed against the 1st defendant but not the 2nd defendant. As I see it, no blame attaches to the 2nd defendant for any of what happened to the deceased.

19. There remains the question of contributory negligence. For the plaintiff, Mr Ramanathan, is content to take the principle in the form in which it is succinctly stated in para. 1-145 at p. 102 of the 16th edition of Clerk & Lindsell on Torts:-

"A person is guilty of contributory negligence whenever he ought reasonably to have foreseen that, if he did not act as a prudent man, he might hurt himself; and in his reckenings he must take into account the possibility of others being careless."

20. Further, Mr Ramanathan conceded that a prudent man in the deceased's position would have worn one of the safety belts provided. Nevertheless, he argued, the deceased ought not to be held contributorily negligent or more than 5 to 10% so at the most.

21. For the 1st defendant, Mr Lo argues that the deceased was contributorily negligence and was about 40% so.

22. In all the circumstances, I find the conclusion that the deceased was to some extent contributorily negligent unavoidable. I make no secret of the fact that I have very considerable sympathy for the deceased and would have been happy to avoid that conclusion if I felt able to escape from it. But I do not.

23. So the question becomes one as to the extent to which the deceased was the author of his own misfortune. That extent is , I think, relatively slight. The principal blame undoubtedly falls on the 1st defendant's shoulders. He is, to begin with, vicarously liable to the negligence which resulted in a putlog dropping onto the deceased. Then we have the fact that he had failed to instruct the deceased to wear the safety belt which would have saved him from the consequences of that. True it is that the deceased was still at least at some fault for not wearing one, but - in addition to the absence of such instructions - there is this consideration: By not providing safety belts of a type and in numbers which would have enabled each and every worker to wear - and make proper use of - one, the 1st defendant must have lowered safety consciousness in general -  and "safety belt consciousness" in particular - on site.

24. All things considered - and very anxiously considered I might add - I hold the deceased 15% contributory negligent, holding the 1st defendant 85% to blame for the deceased's fall to the ground and its tragic consequences.

25. The plaintiff's claim against the 2nd defendant is dismissed. So is the claim brought by the 1st defendant against the 2nd defendant for an indemnity, contribution, recovery in respect of the employees' compensation paid and so one. The 1st defendant is not entitled to any relief against the 2nd defendant. The 2nd defendant has taken out process for - but does not in the result need - an indemnity or contribution from the 1st defendant. So no such relief is ordered.

26. As far as damages and interest thereon are concerned, the same have been agreed, subject to liability between the plaintiff and the defendants. I consider the agreement in that regard reasonable and in the interests of the infants involved; and I approve the agreement and make my awards of damages and interest on the basis thereof.

27. The agreement, in so far as the estate is concerned, is for: (i) $4,545.00 for funeral expenses with interest at 5% per annum from the date of the accident to today; (ii) $30,000.00 for loss of expectation of life with interest at 2% per annum from the date of the service of the writ to today; (iii) $217,106.00 by way of pre-trial lost years award (arrived at after deducting $100,000.00 employees' compensation already paid) with interest at 5% per annum from the date of the accident to today; and (iv) $302,191.00 by way of the post-trial lost years award, which of course carries no pre-judgment interest.

28. In so far as the award under the Fatal Accident Ordinance, Cap. 22, is concerned, the agreement is for $26,508.00 with interest thereon at 5% per annum from the date of the accident to today for the benefit of the deceased's mother, his only dependant whose award under the Ordinance is not extinguished by the award for the estate.

29. I give judgment in accordance with the agreement which I have recited for the plaintiff against the 1st defendant subject to the 15% reduction which results from my finding in regard to contributory negligence.

30. It only remains for me to thank counsel for their assistance and to invite them to address me on costs.

[Argument on costs]

31. On the plaintiffs' claim I do, this : I award the plaintiffs their costs against the 1st defendant. I award the 2nd defendant its costs against the plaintiffs; and I order that the costs which the plaintiffs are entitled to recover against the 1st defendant include the costs which they have to pay the 2nd defendant. There is a fear that the 1st defendant may be insolvent. I hope that is not so. But with that danger in mind and bearing in mind all the circumstances - which include the fact that the 2nd defendant is the only party proved to be completely right - the order which I have announced is the order which I consider appropriate in the exercise of my discretion.

32. Moving on to another matter, the parties invite me to determine the proportion of the hearing spent on the claim between the plaintiffs and the defendants on the one hand and the contest between the defendants on the other hand. I declare that 85% of the hearing was spent on the plaintiffs' claim and 15% thereof was spent on the contest between the defendants seeking contributions or indemnities against each other. I award the costs relating to that contest between the defendants to the 2nd defendant against the 1st defendant.

33. The 2nd defendant asks for liberty to apply within 30 days in regard to the costs of the Third Party proceedings in so far as they may wish to argue that those costs or some of them should be borne by the plaintiff and/or the 1st defendant. The plaintiff and the 1st defendant oppose the giving of such liberty. But in order to preserve the position, I think I should grant such liberty. In doing so I am neither encouraging nor discouraging the exercise.

34. All the costs I have awarded will be taxed on a party and party basis if not agreed. There will also be an order for the taxation of the plaintiffs' costs under the Legal Aid Regulations.