BUSHRA BIBI AND NABELA QOSER the co-administrators of the estate of KHALID, MEHMOOD, the deceased v. METHOD BUILDING & ENGINEERING WORKS LTD (in liquidation) AND OTHERS

HCPI 301/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 301 OF 2012

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REASONS FOR JUDGMENT

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1.  The trial on liability in this action that took place on 27 March 2014 was reduced to a trial on the issue of contributory negligence on the part of Khalid Mehmood, deceased (“the deceased”), the parties having agreed all other the matters in relation to liability, contribution as between defendants, and costs[1]. At the conclusion of the proceedings, I found that the deceased was not guilty of contributory negligence and, pursuant to the agreement that had been reached between the parties, I entered interlocutory judgment in favour of the plaintiffs against the 1^st and 2^nd defendants for damages to be assessed or agreed. I awarded the costs of the action to the plaintiffs against the 1^st and 2^nd defendants, and I also ordered the 1^st and 2^nd defendants to pay the costs incurred by the plaintiffs in pursuing their claims against the 3^rd defendant. In respect of the contribution proceedings, I ordered, by consent, that the 1^st and 2^nd defendants were entitled to contribution from the 3^rd defendant of 33.5% of the damages, interest and costs payable by 1^st and 2^nd defendants to the plaintiffs, but that, as between the defendants, there be no order as to costs. Finally, I made no order as to costs as between the plaintiff and the 3^rd defendant but I directed that 33.5% of the plaintiffs’ costs, that was recoverable by the 1^st and 2^nd defendants from the 3^rd defendant pursuant to my contribution order, was 33.5% of the entirety of the plaintiffs’ taxed costs, inclusive of the costs incurred by the plaintiffs in pursuit of their claims against the 3^rd defendant.

2.  These are my reasons for my conclusion on the issue of contributory negligence.

3.  It is common ground that the deceased was employed by the 1^st defendant to carry out works in relation to the construction of certain aviation fuel facilities in Tuen Mun Area 38 in the New Territories.  The 2^nd defendant was the principal contractor at the site and the 1^st defendant was its sub-contractor in relation to some of the works being carried on at the site.  Those works included grit blasting and painting work of the interiors of the fuel tanks on the site.  The 3^rd defendant was responsible for the supply, installation and maintenance of suspended working platforms (“gondolas”) to be used for the work to be carried out.  In addition, the 3^rd defendant was responsible for training the employees of the 1^st defendant on the proper use of the gondolas.

4.  On 2 July 2009, the project manager of the 1^st defendant, Mr. Joe Cheng, instructed the deceased and his team of three co-workers, including Mr Firdous Khan (“Mr Khan”), to remove rubbish, tools and other materials from inside Aviation Fuel Tank No. 5 (“the Tank”) and to carry out cleaning work inside the Tank, including the work of cleaning the floor of the Tank.   The Tank in question was 43.5 metres in diameter and 24.7 metres high with one opening of 800 mm diameter serving as the only means of access and egress.   There were twelve gondolas installed inside Tank No. 5, with eleven of them installed around the wall of the tank and one of them installed in the middle of the tank.  They were used to facilitate the internal wall finishing work.

5.  The deceased, who was the foreman of the group, and his co-workers started work that morning and manually moved out safety harnesses, brushes, old cans and other items through the entrance.  They resumed work, after lunch, at about 1:10 p.m.  The deceased and Khan entered the Tank and continued the clearing work, whilst the other two transferred the items from the entrance to the ground outside the Tank.  After the clearing work had been done, the gondolas that had been resting on the floor of the Tank had to be raised a certain distance from the ground so to enable cleaning work to be done on that part of the floor of the Tank that was immediately below the gondolas.  Khan was working alone near gondola No. 2. When he looked at the direction of gondola No. 2, he saw the gondola rising and the deceased clinging onto the top of the toe-board of the working platform of the gondola with both his hands while his body hung outside the gondola.  At that moment, the gondola had risen to a height of about 4 metres from the ground but it continued to rise.  The deceased attempted to climb onto the working platform of the gondola by using his leg to stride across the toe-board of the working platform but he failed to do so.  Khan then rushed out from the Tank to seek assistance and also to try to unplug the power supply to gondola No. 2. However, he was unsuccessful and gondola No. 2 continued to rise until it finally stopped when it reached the top of the Tank.  The deceased continued to hold on to the toe-board until he was overcome by fatigue. He then fell some 22 metres and suffered multiple injuries from which he died.

6.  The accident was reported and investigated by Mr. Chu Yan Chung, an Occupational Safety Officer of the Labour Department. When he entered the Tank on the day of the accident, he saw gondola No. 2 suspended at the ceiling of the tank, some 22 metres above the ground.  He also saw that all the other gondolas were suspended at about 1 metre above the ground, as depicted in the photograph taken by him at that time.  Gondola No. 4, which was situated at the entrance to the Tank, was raised to a higher level than the other gondolas.  He also found a wooden stick with a broken end at the scene.  The stick was some 84 cm long and 2 cm in diameter.  The working platform of gondola No. 2 comprised of two sections of rectangular hollow metal framework joined side by side.  The top and intermediate guardrails were 950 mm and 600 mm above the bottom of the platform.  The base of the platform was fenced by toe-boards which were 25 mm in height.  These toe-boards were metal sheets which closely boarded the base of the platform.  There were castors at the base of the platform and two wall rollers were installed at each end of the gondola.

7.  The control box of the gondola was hung at the middle position of the top guardrail.  The control box comprised of an emergency stop switch at the top of the box.  Below that was a three-position control switch to control the up and down direction of the gondola.  Below that was a three-position control switch to control thetilting of the gondola. Below that was a power supply socket.  The second three-position up and down control switch was spring-centred.  Turning the switch to the ‘up’ position would raise the gondola and turning it to the ‘down’ position would lower it.  This switch was spring loaded so that it would return to the ‘centre’ or ‘off’ position automatically when released.  In that ‘off’ position, the climber break would automatically apply.  An inspection of gondola No. 2 on the following day revealed that the three-position control switch was stuck at the ‘up’ position and that the emergency stop button had not been activated. A subsequent inspection by a senior electrical engineer confirmed that the upward movement of the gondola No. 2 at the time of the accident was caused by the defective switch.

8.  The evidence I received from Mr. Luk Ka Kit, who was the responsible person from the 3^rd defendant, was to the effect that the control switch probably jammed because of dust and grit from the works being carried out inside the Tank.  It had been covered up by a plastic or canvas bag to try to protect it from the dust and grit. Clearly, that protection was insufficient.  Indeed, after the accident, the manner of the work adopted inside the aviation fuel tanks was substantially revised and one of the revisions included the provision of a protective cover to the control switches to prevent a recurrence. 

9.  Mr. Daniel Chan, who appeared for the 1^st and 2^nd defendants, informed me that the 1^st and 2^nd defendants did not dispute liability to the plaintiffs in this case, and that they accepted the factual circumstances of the accident as summarised in the Fatal Accident Report dated 29 December 2009 prepared by Mr. Chu Yan Chung, the Occupational Safety Officer of the Labour Department, and in the Brief Facts of the case which had been admitted by the representative of the 1^st defendant when he pleaded guilty on its behalf in Case No. TMS18128/2009 to the offence of failing to provide and maintain a system of work that was, so far as was reasonably practicable, safe and without risks to health of the persons employed at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59.

10.  The account of the accident that I have set out above comes from that Fatal Accident Report.  In addition, I relied on the following statement appearing in the Brief Facts:

“5. … The [deceased] and 1 worker entered the tank and manually moved out the hand tools, construction waste, and miscellaneous items inside the tank. The other two workers stayed outside the tank and assisted to transfer the foregoing materials outside the tank. After that, [the deceased] intended to clean the floor by rising up all the [gondolas] so that the floor could be cleaned. He stood on the floor and used a broken wooden brush handle to push the control switch of [gondola] No. 2 so as to raise the [gondola] to about 1.7 to 1.8 metres above the ground. After the control switch was pushed, it jammed at that position and the [gondola] rose continuously without control. A moment later, the co-worker found that [the deceased] was holding the toe-board of the [gondola] and his body hung outside the [gondola], which was rising from the ground without an operator inside the working platform of the [gondola]. When the [gondola] reached the ceiling which was about 24 metres high, [the deceased] plunged onto the ground. As a result, [the deceased] sustained fatal injury.

6. Occupational safety officer of Labour Department carried out the investigation. The followings were observed:

Summons No.: TMS 18128/2009

6.1 No risk assessment was carried out to identify the hazards associated with the operation of [the gondola] by an operator at the outside of the working platform.

6.2 The associated hazards had not been identified, such as, worker hit by the working platform, fall from working platform and falling materials.

6.3 No emergency procedure for operating [the gondola] at the outside of working platform had been established.

6.4 Insufficient information and instruction provided for [the deceased] and workers to carry out the cleaning work.

6.5 No formal training was provided for [the deceased] to operate the [gondola] at the outside of working platform.

6.6 Supervision was inadequate to his subordinates.

6.7 The defendant failed to provide and maintain a system of work for cleaning of fuel tank that were, so far was reasonably practicable, safe and without risks to health of the person known as Khalid Mehmood.”         

11.  Mr. Chan rightly pointed out to me that these convictions did not support an action for breach of statutory duty. Section 19 of the Factories and Industrial Undertakings Ordinance, Cap. 59, expressly provides that it does not confer a right of action in civil proceedings in respect to a failure to comply with Section 6A, 6B or 6BA; and that it does not affect the extent, if any, to which breach of any other provision is actionable.  Nevertheless, Mr. Chan accepted that the convictions were prima facie evidence of negligence which he did not seek to rebut by calling evidence to the contrary.        

12.  The admission of liability on behalf of the 1^st and 2^nd defendants included an admission that they could be faulted for causing or permitting the deceased to operate the gondola from the outside of its working platform by using a stick to operate the control panel of the gondola while he was standing on the ground outside the gondola.  

13.  The evidence of Mr. Luk was that this was an entirely improper practice.  The proper way to raise the gondola was to stand inside the working platform of the gondola, raise it to the requisite height and then descend from the gondola by means of a ladder placed beside it.  Clearly, no ladders had been provided to the deceased and his co-workers for this, or any other, purpose.  On the contrary, they were expressly instructed to raise the gondolas by using a stick to raise the gondola to the requisite height and, at that moment, to remove the stick which would then enable the control button to return automatically to the ‘off’ position and to stop the gondola from rising any further.  Unfortunately, the control panel of gondola No. 2 was defective on this occasion and the fatal accident occurred.

14.  Having considered all the available evidence, I find that what happened on this occasion was that the deceased, when he removed the stick and saw that the gondola still continued to rise, made a decision on the spur of the moment to try to stop the gondola by climbing onto the working platform and activating its emergency stop button.  It was a split second decision on his part which he executed by holding on to the toe-board of the working platform with both his hands, with the intention of climbing on board the working platform.  However, he soon found that he could not raise his legs over the toe-board to climb into the working platform and he just hung on, panic stricken, as the gondola rose higher and higher.  He hung on for as long as he could.  He must have been in a state of pure terror in those last moments of his life. 

15.  Mr. Chan submitted to me that the deceased, in attempting to climb onto the working platform when the gondola was rising, was taking a grave and obvious risk of falling from a height.  He submitted that the control switch of one of the gondolas in the Tank had malfunctioned before and, as proof, he relied on two previous statements made by Khan.  One was made to the police on 21 July 2009.  He said, in that statement, that the control button of the switch box of the gondola had been out of order on an occasion, about one and a half months before this occurrence, when they had been working on night shift.  He had operated the control button of the gondola, and the gondola went up but did not stop.  He said that the deceased was present at the time and reported the incident to the 2^nd defendant on the next day.  In his subsequent declaration to the Labour Department on 28 August 2009, he said that, in June 2009, while they were carrying out cleaning work, he needed to raise the gondola in order to have a clear head room for cleaning.  He used a stick to push the up/down switch, but the switch jammed.  The gondola rose all the way up to the roof of the tank and stopped there. 

16.  The onus is on the 1^st and 2^nd defendants to establish contributory negligence.  They could have called Khan to give evidence and he could have been cross-examined on that evidence.  They chose not to do so.

17.  I find that I am unable to place any weight on these hearsay statements made by Khan on those two separate occasions; on the one occasion when he stated that the deceased was present and, on the other occasion, when he made no mention of the presence of the deceased.  If the statement given by Khan to the police is to be believed, the 2^nd defendant ought to have had a record of the report allegedly made by the deceased.  No such record was disclosed or produced.  Above all, I find it extremely difficult to place any weight on the hearsay evidence of Khan, given the clear evidence that he has given an untruthful account of the accident. Two days after the accident, he gave a statement to Mr. Lewis Cheng of the 2^nd defendant in which he stated that the deceased was inside working platform of the gondola, and operated the control panel from inside the working platform to raise the gondola. However, the gondola was out of control and kept going up.  The deceased called out for help and, afterwards, used a rope to climb down from the gondola but he fell as he tried to do so.  In a subsequent statement taken by the same Mr Lewis Chengon 11 July 2009, he said that the deceased had raised the gondola from outside the working platform.  He was standing on the floor and used a stick because his hand could not reach the button of the control panel.  The gondola did not stop but continued to rise up.  The deceased then jumped to hold the toe-board of the working platform.  The gondola continued to rise up.  He asked the deceased to release his hands but the deceased did not listen to him.  He then ran outside to try to unplug the electrical connection to the gondola.

18.  Khan gave a similar account to the Occupational Safety Officer of the Labour Department.  I find as a fact that that Khan did tell the deceased to let go of the toe-board and jump down at the time when the gondola was at a height of about 4 metres from the ground.  However, I am not satisfied that the deceased heard him.  I also find that, even if the deceased had heard Khan, he would have been too panic stricken to react rationally to the suggestion to jump from that height.  I am unable to find any contributory negligence on the part of the deceased for failing to jump down from the gondola at the time that Khan had told him to do so or at any earlier time.

19.  I return to the primary submission of the 1^st and 2^nd defendants that the deceased was negligent in attempting to climb into the gondola when it was rising up.  It was submitted that, instead of trying to climb onto the working platform of the gondola, in the attempt to stop it from rising further, the deceased ought to have remained on the ground and reported the matter to the 1^st and 2^nd defendants.  In support of that submission, Mr. Chan rightly pointed to me the following passages from Charlesworth & Percy on Negligence, 12^th ed., at paras. 4-08 and 4-09, which is relevant to the point in question:

“4-08  Dilemma created by another’s negligence. ... Where, negligently, one party places another in a situation of danger, it does not amount to contributory negligence if the other, in reacting, does something which with the benefit of hindsight, was a less than optimum solution. As Lord Hailsham [Swadling v Cooper [1931] A.C. 1 at 9.] put it:

“Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.”

4-09  Clearly, the more agonising the dilemma in which a claimant is placed, the less critical anyone should be of the consequent reaction.  The court will usually balance the risk taken against the consequences of the breach of duty.  This could involve weighing the degree of inconvenience or danger to which a person had been subjected, with the risks incurred in an effort to do something about it. In Sayers v Harlow Urban District Council [[1958] 1 W.L.R. 623 (claimant’s contributory negligence 25 per cent).  See article at 21 M.L.R. 677.] the claimant, finding herself locked in a lavatory cubicle, attempted unsuccessfully to get out by climbing over the top.  As she was trying to return to floor level she fell and injured herself.  It was held that, whilst it was reasonable in the circumstances for her to explore the possibility of escape in the manner she did, she was careless in the process of climbing down by allowing her balance to depend on a rotating toilet roll.”        

20.  The decision in Sayers v Harlow Urban District Council does not assist me.  In that case, the plaintiff made a deliberate and considered decision to try to get out of the lavatory cubicle by balancing on the toilet roll when she attempted, unsuccessfully, to climb over the top of the locked door of the cubicle.  In this case, the deceased made a spur of the moment decision to try to stop the gondola from rising further.  He did so, not on a frolic of his own, but to prevent the gondola from rising to the top where it would have been extremely difficult to access and to retrieve. Unlike the plaintiff in Sayers who had been locked inside the cubicle for 10 to 15 minutes before she attempted to climb out, the deceased did not have plenty of time to think about what he was going to do.  He was faced with a dilemma caused by the negligence of the 1^st and 2^nd defendants and he reacted to that dilemma by acting, in the interests of the 1^st and 2^nd defendants, to protect their property.   He was not acting in defiance of any established practice.  He was trying to reach the emergency button of the control box to stop the gondola, as he had been taught to do.  If he had time to think about what he was going to do, and the possible consequences of a failure to climb onto the working platform, most probably he would not have done what he did.  He made a wrong decision on the spur of the moment.  It was an ill-judged decision, and one that could even be classified as stupid, but it was taken when he was faced with the dilemma created by the negligence of the 1^st and 2^nd defendants.

21.  The common law duty of care is imposed on employers and principal contractors to protect employees, like the deceased, fromreasonably foreseeable injury occurring as a result of human fallibility, lapse in attention, inadvertence, aberrations, and, as occurred in this case, an ill-judged decision, taken on the spur of the moment, to safeguard of the property of his employer, without properly appreciating the severity of the risk involved in the action taken to do so. In the workplace, the greater the risk of serious injury, the higher is the obligation on the part of employers and principal contractors to safeguard employees and workers from injury that may occur a result of human fallibility, lapse in attention, inadvertence, aberrations, or ill judged actions.

22.  If I had found contributory negligence on the part of the deceased in this case, then, contrasting the causal potency and the moral blameworthiness of the acts and defaults of the 1^st and 2^nd defendants[2] against the failure of the deceased to take reasonable care for his own safety, I would have concluded that the fault of the deceased was minimal and that no more than 10% of the blame should be apportioned to him[3].