R. v. LAI TAK YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.402 OF 1995

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J U D G M E N T

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1. The appellant was convicted at the San Po Kong Magistracy of an offence contrary to Regulations 38Q(3) and 68(2)(a) of the Construction Site (Safety) Regulations, Cap.59, namely, as the contractor responsible for a construction site for failing to provide a suitable and sufficient anchorage and suitable fittings for a safety belt. He now appeals against this conviction.

2. The appellant was a decoration contractor. In April 1994, the then owner of the flat at 5th floor of a building in Shek Ku Street, Kowloon engaged the appellant to do certain decoration work. The work involved the repair of certain leakage in the pipes outside the wall of the flat. This necessitated the erection of a scaffolding outside the wall on the 5th floor level. The appellant sub-contracted the scaffolding work to a company called Hon Kee Scaffolding Company. On 21st April, the scaffolding was only partly completed. While erecting the scaffolding, a worker employed by Hon Kee Scaffolding Company fell from the scaffolding at the 5th floor level to the ground and died. His fall was due to the failure of one of the two pins fixing the scaffolding to the external wall, thus causing the worker to lose his balance and fall to his death. At the time of the accident, the worker was wearing a suitable safety belt which, it was found, was either not attached to a suitable and sufficient anchorage or to any anchorage at all. It was agreed by the parties that in the circumstances of this case, it was necessary to use a properly anchored safety belt or a suitable and sufficient equipment of such a design and so constructed and installed as to prevent, so far as practicable, injury to persons.

3. During the trial, apart from the then owner of the flat, two factory inspectors, the proprietor of the scaffolding company, a scaffolding worker who was the brother of the deceased worker with whom he was working at the time of the accident, and a registered safety officer who was accepted as an expert were called to give evidence. The defendant elected not to give evidence. The learned magistrate found on the evidence that the appellant had failed to provide a suitable and sufficient anchorage for the safety belt used by the deceased worker, that since the appellant was under such a statutory duty, he had failed to discharge such a duty, and that he had not discussed safety measures with the sub-contractor before the work. Nor had he acted with due diligence or in any reasonable manner to discharge such a statutory duty. I think the important part of his Reasons for Decision which is under attack is as follow :

"(7) At the time of the accident the deceased wore a safety belt but there was no suitable and sufficient anchorage for the use of the safety belt provided. Because of the frequent change of position necessarily undertaken by the deceased and because of the need to ensure that the existence of a safe anchorage was continuous and not below his work place, only an anchorage consisting of a safety line suspended from a position above the work place was appropriate. (See evidence of expert witness Mr Tsao Fu Wai from transcript P79.) His uncontradicted evidence when considered with the evidence about the length of two independent lifelines provided, which were 20' and 30' in length (transcript P66) and the need for a lifeline of some 20 meters in length secured by a U-shaped bracket attached at the top of the building (transcript P84) established to my satisfaction a failure to provide a sufficient and suitable anchorage. (See discussion of 'provision' of safety measures Health and Safety Redgrave, second edition, at paragraph 9 of the introductory notes.)"

4. Counsel for the appellant submitted that the learned magistrate had erred in law and in fact in making this finding. It was argued that this was contrary to and could not be supported by the evidence and that the learned magistrate had failed to consider sufficiently or at all the expert, Mr Tsao's evidence that "there may be other suitable places for the lifeline to be tied" at p86 of the transcript. It was not in dispute that a safety belt was provided to the deceased worker and that 2 lifelines of 20 feet and 30 feet were also made available to him. It was submitted that the whole question turned on whether there was a suitable and sufficient anchorage for the lifelines to be tied or whether the lifelines were of suitable lengths. Counsel argued that the learned magistrate had erred in finding that the U-shaped bracket was the only suitable place for the lifelines to be tied, which was contrary to what the expert said under cross-examination. It was submitted that since the expert said that there were other suitable places for anchorage, the prosecution had not proved beyond reasonable doubt that the appellant had failed to provide a sufficient and suitable anchorage for the safety belt to be used.

5. Counsel for the prosecution argued that the question before the court was whether there was any suitable and sufficient anchorage for the safety belt of the deceased worker. She submitted that although there were references to various anchorage points by the witnesses including the expert, it was clear that these anchorage points were not suitable or sufficient for attaching the safety belt. Counsel went through the various parts of the evidence regarding the anchorage points as suggested by the witnesses and submitted that according to the witnesses, especially the expert, none of these anchorage points was sufficient or suitable. Counsel submitted that it was therefore quite clear that since there was no such suitable and sufficient anchorage, the appellant must be regarded as having failed to comply with this statutory duty.

6. Regulation 38Q(3) of the Construction Site (Safety) Regulations, reads as follows :

"(3) Where a safety belt is provided under this Regulation the contractor shall also provide a suitable and sufficient anchorage and such fittings therefor; and each such safety belt, anchorage and fitting shall be of such a design and so constructed at to prevent serious injury in the event of a fall to any person using it."

7. In my view, the effect of this regulation is as follows. If it is anticipated by the responsible contractor that a safety belt would be used by the worker, the contractor has a statutory obligation to ensure that there are suitable and sufficient anchorage points to which the safety belt can be attached either directly or indirectly by means of suitable fittings such as lifelines. The purpose of requiring this to be done is to ensure that even in the event the worker falls while he is working from a height, he would still be attached to the anchorage point or linked to the anchorage point so that he may not fall to such a distance as to suffer serious injury or death. Because of the inherently great risk involved in working at a height, the statutory responsibility is, in my view, a heavy one. It may be a very onerous obligation on the responsible contractor, particularly the smaller contractor but I think this policy is not without good reasons. The result is that if there are suitable and sufficient anchorage points readily available or easily accessible at the site, then this statutory obligation is discharged since they can be used by the worker to attach a safety belt to them. If, on the other hand, no suitable and sufficient anchorage points are readily available or easily accessible at the work place, it is the duty of the contractor to provide such anchorage points for the worker. This means that he should make arrangements or take steps to make such suitable and sufficient anchorage points available or accessible to the worker. For if there is no sufficient and suitable anchorage point, it would be meaningless for a worker to have any safety belt. If there are such suitable and sufficient anchorage points but the worker does not see fit to use them and meets with an accident, that is of course his own fault. But the contractor must ensure that there are suitable and sufficient anchorage points for use. In order to convict the appellant, the court must be satisfied beyond reasonable doubt that there was no such suitable and sufficient anchorage and the appellant, as a responsible contractor, had failed to provide the same.

8. In this case , it is not in dispute that a safety belt was used by the deceased worker, that there were lifelines, although not in use at the time, were provided nearby, that the lifelines were of 20 feet and 30 feet in length respectively, and that the fittings for the anchorage including the fittings on the safety belt or the lifelines were suitable and sufficient. The issues to be decided are : whether there was any suitable and sufficient anchorage to which the safety belt can be tied or be linked by mean of lifelines of sufficient lengths and if not, had the appellant made any attempt to provide the worker with the same.

9. Counsel for the appellant submitted that the expert said under cross-examination that according to him "there may be suitable and sufficient anchorage points" and that this was sufficient to show that the prosecution had not prove its case beyond reasonable doubt. In my view, while this must be a factor which ought to be taken into consideration, it would be taking what the expert said out of context to rely solely on this comment. One has to consider the expert's evidence as a whole as well as the evidence of the other witnesses who had been to the scene of accident.

10. The factory inspector Mr Lee said that throughout his investigation after the accident, he did not see any suitable areas for attaching a safety belt. He said that some of the PVC pipes at the scene were not adequate or suitable and the partly completed scaffolding was not strong enough. The subcontractor Mr To said that the safety belt or lifelines could be attached to the iron gate inside the premises. It was not entirely clear from his evidence whether he thought the window frame was suitable because it was a single window with no iron bar. He said that the concrete ledge at the 5th floor level could not be a sufficient anchorage because the scaffolding was above it although the concrete ledge on the floor above might be good enough but that was not easily accessible. Apart from these, he was not sure whether there was any other suitable and sufficient anchorage.

11. The brother of the deceased worker who also worked there at the time of the accident said that he had a safety belt which was attached to the window and the deceased worker had his safety belt initially attached to a pipe. However, during the course of the work, it was necessary for them to move around and therefore there were moments when they had to detach their safety belts from their initial anchorage and re-attach them to other anchorage points. At one stage they attached their safety belt to the scaffolding. He said that on this occasion, the lifelines which were provided were not used because it was a small scaffolding and the use of lifelines would obstruct their work. He suggested that the water closet could be used but he said that the window frame in the toilet was made of aluminium and was therefore not suitable. He also mentioned the iron grille inside the premises, the fire hose grille and other places as suitable anchorage.

12. Mr Tsao, the Registered Safety Officer, referred to the basic criteria in deciding whether an anchorage was suitable or not. Applying these criteria, Mr Tsao took the view that the window frame, the bamboo scaffolding and the gas pipe outside the building were not suitable anchorage points for safety belts to be attached to. In fact, he said that having heard the evidence, photographs and layout of the place, he was of the opinion that there was no suitable anchorage for a safety belt. He also took the view that the water closet, window frame and grille were not suitable even with the use of lifelines. The only suitable anchorage was a U-shaped bracket on to a parapet wall on the top of the roof where a lifeline of sufficient length could be attached. It was at the end of his evidence that he said : "Roof is most suitable. There may be other suitable places." I think this remark must not be looked at in isolation but in the light of his evidence.

13. In my view, from the effect of such evidence, it is quite clear that there was no readily available or easily accessible anchorage points at the place of work. I think the learned magistrate was correct in coming to the conclusion that there was no suitable or sufficient anchorage for safety belts or lifelines linking to safety belts to be attached.

14. It is also clear from the evidence that the appellant did not discuss any safety measures with the subcontractor. Since there was no sufficient or suitable anchorage point on the 5th floor to which the worker's safety belt or the lifelines could be attached, the appellant was obliged to find means of getting such points. There was no evidence showing that the appellant had made any such effort.

15. In the circumstances, I do not think the submissions of counsel for the appellant can be sustained. There is no merit in this appeal and it must be dismissed.