CHUNG YUEN YEE v. SAM WOO BORE PILE FOUNDATION LTD AND OTHERS

HCPI 1053/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1053 OF 2006

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REASONS  FOR  DECISION

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1.  This case was referred to me by the PI Master on the clarification of the issues on liability and the expert evidence thereon, and thereupon the estimate of length for the trial.

2.  The 4 Defendants are related and have common witnesses, but they formed into 2 camps and are separately represented: the 1^st, 3^rd and 4^th Defendants on one side, and the 2^nd Defendant.  I directed  the contribution proceedings be consolidated and heard together with the main action.

3.  At the hearing, parties agreed that upon clarification of the issues, only 4 days instead of 6 are required (including quantum).  I take the opportunity to list out for easy reference what issues are indicated to be argued and what to be abandoned, in order that time may be saved at trial.

4.  The operation involved lifting a forklift onto a lorry by the crane mounted on the lorry.  The deceased transportation worker was crushed to death by the forklift falling off the crane.

5.  The Plaintiff alleged that the deceased was employed by the 2^nd Defendant but paid by the 1^st Defendant; a foreman of the 4^th Defendant instructed the deceased to assist in lifting the forklift, and the crane lorry was operated by an employee of the 3^rd Defendant.

6.  The fork lift was attached to the crane by 2 metal chains (“Chain A” and “Chain B”).  The chains were rigged around the forklift, and the hooks at the end of the chains were attached to a link of the respective chains.

7.  The Plaintiff case is that a link in Chain A snapped, resulting in disruptive force causing the hook in Chain B to become detached.  The Plaintiff averred that broken link was defective, as the Labour Department inspector examined the cross-section of the ends of the broken link found after the accident and observed that one end is shiny (indicating fresh cut), and the other end was 3/5 shiny and 2/5 dull (indicating a notch or crack).

8.  Ms Ng, for the 1^st, 3^rd and 4^th Defendants, accepted that the chain was broken, but not admitted that the broken link came from the chain.  It is also denied that the chain belonged to any of the Defendants (c/f the crane operator said the chain came with the lorry).  Further, it is averred that the accident was caused by the improper rigging of the chain by the Plaintiff, causing excessive movement during the lift and a hit between the chain and the sideboard of the lorry (postulated by the defence expert on liability but denied by the crane operator).

9.  Mr Hung, for the Plaintiff, clarified the issues as follows:

(1) None of the convictions under the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (Cap. 59J) will be relied on;

(2) Allegation of excessive load will not be relied on;

(3) If, which is denied, the Plaintiff was not provided with the any chain, the Defendants failed to provide a safe system or work;

(4) Whether the chain hit the sideboard of the lorry before the fall;

(5) Improper rigging by the Plaintiff is not disputed and the issue will lie in contributory negligence.

10.  The broken link was seized by the police, and no attempt has been made to recover it for this action.  The Plaintiff’s expert on liability mentioned that it was not physically examined by him.  The parties agreed that a simple material integrity test might shed light on the matter.

11.  I directed the Plaintiff to obtain the broken link from the police and report on its availability within 2 weeks.  If it is not available, the case is to be set down in the Fixture List with 4 days reserved.

12.  If the broken link is available, the respective experts will jointly examine and conduct the material testing and provide a joint report within 2 months, and unless there be application for further Pre-trial Review, the case be set down for trial within 6 weeks thereafter.

13.  I directed that the respective experts on liability be called (subject to dispensation by the trial judge) to assist on the subject of loss of equilibrium in lifting by reason of the angles of the chains and the force.

14.  I ordered the costs of this Pre-trial review be in the cause, with Legal Aid taxation for the Plaintiff.