LEE YAU CHEUNG v. SETO KING TUNG AND OTHERS

1983, No. 1355

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Background

1. The Plaintiff in this case was a building construction worker. On 5th March 1980, he was injured on a building construction site at Tsuen Wan (the site). He now sues the 1st Defendant, a firm which was the main contractor, and the 2nd Defendant, the formwork sub-contractor, who constructed the large piece of formwork which fell upon and injured him. The Plaintiff was not employed by the Defendants but by another sub-contractor who undertook the concrete reinforcement steel binding work. The Defendants deny liability and in addition, the first Defendant says that if it is found to be liable, it should be indemnified by the 2nd Defendant, which the 2nd Defendant denies.

2. At the time of the accident, the 5th March 1980, the Plaintiff was employed as a casual steel binding construction worker at the site. The building under construction was to go up to 26 storeys but by the 5th March, it had reached the 12th storey, the floor of which had been concreted and formwork for the walls and pillars between the 12th and 13th floors being in the process of construction. The formworkers and the steel binding workers worked in coordination for the purpose.

3. There was nothing exceptional about the weather on the morning of the 5th March, and the Plaintiff went to work as usual, as did other workers employed at the site. About 11:30 that morning, the weather deteriorated very rapidly. Clouds rolled in, it began to rain very heavily, and the wind got up. The workers of their own accord left the 12th floor to shelter on lower floors. The Plaintiff was the last to leave. When he got near a staircase at the corner of the building, he noticed that the wind was bringing down a large piece of formwork. He could neither retreat or advance in time, so he lay down but despite that was hit by it, sustaining injuries.

Formwork Construction Process

4. It is not in dispute that the formwork that fell upon the Plaintiff was blown dorm by the wind. What is in dispute is whether the formwork was sufficiently secure. In my finding, the formwork in question was that for a wall known as wall D (having been so marked upon building plans); it adjoined a staircase at one corner of the site.

5. The 2nd Defendant was experienced in formwork having started out as an apprentice in 1965 and having been a contractor for some 4 or 5 years prior to the accident. On the site, he used the same methods as he had on several other sites. The procedure for the erection of formwork for an external wall was for the outer board of the formwork to be first constructed. It was secured in a vertical position by struts on the outside fixed to the scaffolding; and on the inside by a few permanent struts and other temporary ones. On the inside of the outer board would be steel reinforcing rods coming up through the floor, and in the position where wall D was to be erected, rising, in my finding, to a height of about 4 feet. Wall D itself, and consequently its formwork, were to be of a height of 13 feet. Following the erection of the outer board, steel binding workers would place reinforcing steel rods on the inside of the board and bind them. When they had done so, formworkers would complete the formwork in which concrete could be poured by erecting the inside board, securing it on the inside by struts nailed to the board about 3 feet up and at the other end to the concrete floor. They would also bolt the two boards together making the formwork with the enclosed reinforcing steel very secure.

6. The number of struts fixed would be determined by the workers concerned. If the 2nd Defendant, the site foreman or the architect's representative thought them insufficient, they could and occasionally did require the formworkers to affix additional struts. Sometimes workers would remove struts which got in their way and if he noticed, the site foreman would require these to be replaced. The 2nd Defendant supervised his workmen and looked at the work. The site foreman, Mr. Seto Fu, also inspected the formwork during its erection and after completion, and was assisted in that task by about 10 setting-out surveyors. Before concrete could be poured, the formwork had to be approved by the site foreman and the architect's representative.

7. The materials for construction of the formwork were supplied by the 1st Defendant, but of course, individual boards and planks were chosen by the 2nd Defendant's workmen.

8. The primary if not the sole objective of the Defendants was to provide an effective mould for the concrete, able to withstand the weight of the tons of concrete and steel, and the pressure of the liquid concrete without distortion or leakage. Safety of workers and others figured very little, if at all. The 2nd Defendant's contention is that he conformed to the 1st Defendants' instructions and supervision which he claims were provided in the most minute detail. The 1st Defendant only mentioned safety as an after thought.

Res ipsa loquitur

9. The Plaintiff's claim is founded upon the Defendants' negligence or failure of their common duty of care, and to establish this, the Plaintiff relies first of all upon the maxim res ipsa loquitur. I adopt as the law in point the following passages from paras. 5 - 59 and 5 - 60 of the 7th edition of Charlesworth and Percy on Neglience:

                 "The maxim comes into operation:

Likewise, the 15th edition of Clerk and Lindsell on Torts says at para. 10 - 113:

"There must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant's negligence must be determined on that evidence. "

10. In the present case, it is known and is not disputed that the wind blew down the piece of formwork, and a great deal is also known about the weather conditions that prevailed and about the way in which the formwork was erected. Mr. Bharwaney for the Plaintiff has stressed that the Defendants have done nothing to establish the cause of the accident; there is no evidence of any sort of investigation of the cause of the accident. He points to Lord Normand's dicta that the maxim "is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be with the knowledge of the defendant. Barkway v. South Wales Transport Company Ltd. [1950] 1 All ER 392 - 399, cited at para. 5 - 57 7th edition Charlesworth and Percy on Negligence. I do not read those words as authority for application of the maximum where there is sufficient information of the cause of the accident, but merely as an explanation of the reasons for the maxim. In my view, the facts are sufficiently known and the maxim does not come into operation. But before I consider the evidence of negligence, it is helpful to first examine the defences of Act of god and inevitable accident, raised by the Defendants.

Act of God

11. The Defendants contend that the storm was an Act of God. In my finding, and quite clearly upon the evidence, the rainstorm was exceptional; that was not seriously disputed. It came on very suddenly, and got so dark that witnesses speak of being afraid, of the sky seeming to fall in, and of not being able to see across the street from the site. Mr. Li, the Chief Experimental Officer at the Royal Observatory, testified from his records that one inch of rain fell in 10 to 15 minutes, making it one of the ten most severe storms in his experience in terms of rainfall. Witnesses also spoke of the wind whipping up in a few minutes and exceeding typhoon 8 strength, and not only blowing down the formwork but also some scaffolding. Hail, which is unusual, was also recorded in parts of the New Territories.

12. Curiously, there is no evidence of such exceptional winds having occurred anywhere else in Hong Kong at that time. To overcome that, Mr. Lau for the Defendants sought to establish that the site was struck by a tornado, an intense whirlwind known more in the United States of America than in Hong Kong, and a great deal of inconclusive evidence was drawn from Mr. Li on the point. According to Royal Observatory records, only 2 tornados have ever struck Hong Kong, and while he considered that conditions at that time were right for a tornado, Mr. Li doubted there had been one in the absence of any evidence. Not one single person had seen anything like a wind funnel stretching from the clouds to the ground, that is the characteristic of a tornado. I have no hesitation in rejecting the occurrence of a tornado.

13. There is also no evidence or even a suggestion that the heavy rain caused or even significantly contributed to the accident. It, therefore, has to be considered whether the strong winds were an Act of God. As I have said, these got up very quickly, in 5 minutes or so, and were said to be stronger than witnesses had experienced when a typhoon signal 8 had been hoisted. That signal is hoisted when sustained winds exceeding 63 kilometres per hour are expected or occur.

14. It is said at para. 13 -21 of the 7th edition of Charlesworth and Percy on Negligence that

                 "To be an Act of God, an occurrence must be:

15. In Nugent v. Smith [1876] 1 C.P.D. 423, the view of the trial judge adopted by the House of Lords was that an Act of God is

"Such a direct, and violent, and sudden and irresistible act of Nature as could not by any amount of ability have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted".

I would accordingly respectfully agree with the views of Barker J. in Star Ferry v. Owners of the Argonaut [1980] HKLR 921, when, after reviewing Nugent v. Smith and other relevant authorities, he held that:

"In my judgment, an Act of god is an accident, due to natural causes, directly and exclusively without human intervention which could not by any amount of ability have been foreseen, or if foreseen, could not by the exercise of all reasonable skill and care have been avoided. But many of the cases speak of the occurrence, the manifestation of nature, as having to be extraordinary. The difficulty is to know what is meant by 'extraordinary'. Literally it means "out of the extraordinary" but does not advance matters a great deal. Clearly, it does not mean unique. Nor can it mean something which happens regularly. It must refer to something in between. The mere fact that it has happened before, and may happen again, in my opinion does not prevent it being an Act of god. It must however not be an ordinary accidental circumstance. It must be something overwhelming. Whether a particular occurrence amounts to an Act of God must be a matter of fact, depending upon the circumstances of the case. "

It is not without relevance that the accident Barker J. went on to hold was an Act of God, was caused by Typhoon Hope which produced gusts of 200 kilometres per hour at the Star Ferry Pier (the site of the accident) and 229 kilometres per hour at Tate's Cairn, and was the most severe typhoon to strike Hong Kong since the infamous Typhoon Rose.

16. I would also refer to the following passage in para. 13 - 22 of the same edition of Charlesworth and Percy:

"The defence was not established where there had been an exceptional storm, a rainfall of extraordinary violence; an exceptionally heavy snow storm; a very high wind; an extraordinarily high tide; an action of a rat gnawing a hole, thereby allowing water to penetrate. Today, the only circumstances, in which the defence would be likely to succeed in the United Kingdom, would be if some catastrophe happened as a result of an earthquake, a volcanic eruption or a tidal wave of vast proportions. "

17. Reverting to the facts of this case, the evidence of Mr. Wong, the Architect's representative, who although not qualified as an architect in Hong Kong, had qualified in China in 1938 and had been in the trade in Hong Kong since then is of importance. As the Architect's representative on the site, he carried out inspections for the Architect and inspected and approved formwork before concrete could be poured. He had vast experience and was thoroughly familiar with building construction. His evidence was that partially constructed formwork was not very stable until consolidated by and with the formwork of the floor above, and could be blown down by even light winds. I see no reason to reject his disinterested evidence, which was not challenged in the foregoing respect. However he did not deal specifically with the question of an outer board being blown down inwards after the adjoining steel work had been bound and completed. On the evidence I doubt whether that would be possible. In my finding upon all the evidence before me, the steel work had not been erected to any significant height. The inner board had not been erected and the outer board for wall D was blown down by wind that has not been shown to have been particularly severe or exceptional. Indeed I am not satisfied by the evidence that on the probabilities the winds referred to by the witnesses were exceptionally severe or overwhelming.

18. I accept the evidence of Mr. Li that while there is no record of a typhoon ever having struck Hong Kong in the month of March, thunderstorms are by no means uncommon, and produce strong winds; moreover that the winter monsoon which affects Hong Kong in March, does produce winds that have exceeded 63 kilometres per hour. Mr. Seto Fu, the 1st Defendants' principal witness, who was also the site foreman, himself considered that sudden changes of weather, thunderstorms and squally winds like those experienced on 5th March 1980 often occur between spring and summer. Indeed, on the 27th February 1980, only a week before, just such strong winds occurred and blew down similar formwork on the floor immediately below, i.e. the 11th floor.

19. Notwithstanding therefore that the forecast for that and the preceding day might not have been calculated to alert the building trade to the danger of severe and strong winds (albeit thundery and squally showers were repeatedly forecast), in my finding, the thunderstorm and squally winds cannot be said to have been unforeseen.

20. But to proceed to the other limb of the relevant criterion, can it be said that the accident could not have been avoided by the exercise of all reasonable skill and care? It was conceded, and I find that measures to strengthen formwork by providing additional supporting struts were normally taken during the typhoon season. The 2nd Defendant conceded that these should have also been taken in spring because of thunderstorms and associated squally showers. But such measures were not taken. Furthermore, other steps could also have been taken like evacuating all workmen when squally thunderstorms threatened, and not leaving it for them to act on their own initiative. I accordingly have no hesitation in finding that the defence of Act of God fails.

Inevitable Accident

21. The Defendants also rely upon the defence of an inevitable accident. The essence of this defence, the burden of proving which lies upon the Defendants, is that the consequence complained of could not have been avoided by the exercise of reasonable care and skill.

22. In my finding, there were reasonable steps the Defendants could have taken to guard against the accident. They could have strengthened the formwork as was done in the typhoon season. There is no evidence that such strengthening would not have sufficiently withstood the conditions experienced on 5th March 1980. They could have also instituted safety procedures to evacuate workers in squally conditions or to keep them away from incomplete formwork.

23. It was contended for the Defendants that the manner in which the formwork was erected was common practice in the trade and therefore strong evidence of reasonable care in the performance of that operation (see Charlesworth and Percy 7th Edition para. 6 - 13). The 2nd Defendant testified that he used the same methods at the site as he did upon the several other sites with which he had been involved. That falls far short of evidence that those methods were common practice in the trade or industry. Furthermore, I would be slow to accept such evidence of reasonable care in the face of the countervailing evidence presented to me.

24. I accordingly reject the defence of inevitable accident.

Reliance by 1st Defendant upon Appointment of an independant contractor

25. The 1st Defendant also relies upon the defence afforded by section 3(4)(b) of the Occupier's Liability Ordinance (cap. 314) which provides that:

"Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction .... by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. "

26. In my judgment, the 1st Defendant as occupier, clearly acted reasonably in entrusting the formwork to a contractor, and had taken reasonable steps to satisfy itself that the 2nd Defendant was competent, but it failed utterly in not taking steps to see that the work was properly done vis a via the safety of visitors and the danger to them. This defence cannot therefore avail the 1st Defendant.

Whether Claim against 2nd Defendant time-barred

27. The Plaintiff originally instituted proceedings only against the 1st Defendant, and first became aware of the 2nd Defendant's involvement when the 1st Defendant served its Third Party notice on 30th June 1983. The statement of claim was amended to include the 2nd Defendant on 4th October 1984. By his defence, the 2nd Defendant contends that that amendment is time-barred. However, section 27(4)(b) of the Limitation Ordinance (Cap. 347) provides that the relevant period of limitation is three years from the date of the Plaintiff's knowledge. I am satisfied that the date of the Plaintiff's knowledge is the let July 1983 and that accordingly the amendment is not statute-barred.

Negligence or Failure of Defendants in their Common Duty of Care

28. Reverting then to the issue of negligence, which has, of course, to be established before any onus upon the Defendants arises in relation to the defences considered. In my finding, both the let Defendant and the 2nd Defendant were occupiers of the material parts of the site. Both the Defendants accordingly had the 'common duty of care' to the Plaintiff as a visitor, that is provided for in section 3(1) of the Occupier's Liability Ordinance.

29. The 1st Defendant may well also owe to the Plaintiff substantially the same duty of site management and co-ordination that Hunter J. refers to at page 14 of his as yet unreported judgment in Yeung Kam Fuk v Len Shing Construction Co. and others, 1982 No. 6612; but it is not necessary to rely upon that approach, the let Defendant being an occupier. In my judgment, in concerning themselves almost totally with the suitability of the formwork for the formation of concrete structures and disregarding the steps that could and should have been taken towards securing the safety and avoiding danger to visitors, they failed in the common duty of care and are liable to the Plaintiff for the injuries and damage he sustained. It has been agreed between the parties that only the issue of liability need be determined at this stage, and I will accordingly proceed to the Third Party claim.

Third Party Claim

30. The 1st Defendant claims a right to be indemnified or to be paid damages by the 2nd Defendant on the grounds that it relied upon him as a sub-contractor for the formwork or alternatively that he was the occupier within the meaning of the Occupier's Liability Act. The 2nd Defendant denies these claims and in particular says that he carried out the formwork in accordance with the 1st Defendant's instructions.

31. I reject the 2nd Defendant's evidence that through its servants the 1st Defendant gave him instructions in the minutest detail, down to the number of nails to be used.

32. On the other hand, I do not accept that the 1st Defendant relied upon the 2nd Defendant to ensure that the formwork was safe in the context of the common duty of care to visitors. On the evidence, the 1st Defendants gave very little if any thought to that aspect. And as to reasonable steps that could have been taken in a respect of the danger to or safety of visitors, these lay more, indeed almost wholly, within the control of the 1st Defendant. It was the 1st Defendant which remained in overall control of the site and it was, for example, hardly for the 2nd Defendant to be arranging for the evacuation of workers employed by other subcontractors. Furthermore, the 1st Defendants' servants by all accounts did during construction inspect and later check the formwork. These considerations could not have escaped to Mr. Lau when he suggested that a 75% - 25% apportionment of the damages might not be inappropriate in the event of my finding against the 1st Defendant. Having regard to the foregoing considerations and all the circumstances, I think that a 20% contribution by the 2nd Defendant would be more appropriate and I would so order.

33. Accordingly, I would find for the Plaintiff on the issue of liability, and upon the Third Party claim, I would allow the 1st Defendants' claim only as far as 20% of the damages. I will now hear the parties as to costs, and any orders sought.