LAM FONG AND OTHERS v. HUNG WAN CONSTRUCTION CO. LTD.

1984 No. 4942

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This action concerns a fatal accident which occurred on the 27th December 1981 at the construction site of the Ngau Tau Kok House Ownership Scheme Marketing/Housing Complex (Phase II Stage I), On Wah Street, Kowloon, in which a carpenter CHAN Kwok-sum was struck on the head by an object described in the pleadings and in evidence as a piece of grouting block, and died later is hospital. The post-mortem report (at p.11 of the agreed bundle) gives the cause of death as "fracture of the skull with intracranial haemorrhage."

2. The plaintiffs, who are the administrators of the estate of the deceased, sue the defendant company, which was the principal contractor, for damages in negligence and/or breaches of statutory duty and/or of the common duty of care for the benefit of the dependants of the deceased under the provisions of the Fatal Accidents Ordinance (FAO) and for the estate under the Law Amendment & Reform (Consolidation) Ordinance (LARCO). Besides the various particulars of negligence which are pleaded, the plaintiffs rely also on the maxim res ipsa loquitur.

3. In its defence, the defendant company states that the deceased was employed by a sub-contractor WONG Choi-sing to work on the site but it denies, as is averred in paragraph 4 of the statement of claim, that the piece of the grouting material fell from the upper floors of the building(s) at the site. The defendant denies that the accident was caused by the alleged negligence or breach of any statutory or common duty of care.

4. The parties agreed on the quantum of damages in which the defendant company might be liable and left the issue of liability for my decision.

5. Learned Counsel for the defendant company, Mr. FUNG, accepted "fully" that the burden lay on the defendant to establish on a balance of probabilities that they have not acted negligently, or in breach of statutory duties in relation to the fatal accident. As such the defence adduced evidence first.

6. This project was for the construction of domestic and commercial premises. The domestic premises were two separate tower blocks of twenty-nine storeys, rising above a podium housing five levels of car park and commercial premises.

7. It is not disputed that the defendant, Hung Wan Construction Co Ltd., was the principal contractor of this project which started about a year before the accident and the structural work on both tower blocks was completed as was the work on the external walls about a month before the accident.

8. The site foreman of the defendant was LEUNG Kin-ching (D.W.1). His experience on construction sites is of some 20 years and he had worked for the defendant as foreman for about 8 years. He holds a diploma in construction safety issued by the Labour Department in 1974. He also holds three other diplomas in general construction work techniques and construction arrangements. Apart from supervising the progress of the work, he was in charge of the safety measures at the site and those which were employed on this site may be summarised as follows:-

                1.     Bamboo scaffolding covering the entire building;

                2.     Safety netting which was enplaced immediately outside the scaffolding to stop anything which might fall from the building from going outside. As the site was in a built-up area, nylon netting with a smaller mesh, like Ex D4, was used. It was not disputed that this netting comes in standard rolls of a width of 5 feet, so that several lengths of netting have to be joined together for cladding the scaffolding. The site foreman agreed that the efficiency of the netting in stopping bits of debris and concrete falling through depends on how effectively the strips of netting are joined together at the edges. CHEUNG Chiu (D.W.2), who was employed by the masonry subcontractor Chiu Kan Kee, as in charge of the masonry section, said under cross-examination that the strips of netting were tied together with a wire and there was a gap of a fraction of an inch, which he had seen on peeping out by the windows which were still without panes.

9. CHUNG Yiu (P.W.2), who is the Divisional Factories Inspector and inspected the site the day after the accident, i.e. on the 28th December, 1981 accompanied by the site foreman, said that he paid attention to the manner in which the strips of netting were joined to see if there were any void openings between them. He said that he noticed spots where the safety netting was not tied together or did not overlap, thus creating voids. He estimated that there were one to five such voids and he took a photograph - Ex P2 - depicting two such gaps, one being about 12" x 3", the other about 6" x 3".

                  3.     Skirting fans had been installed on the scaffolding for holding falling objects: a flat or horizontal platform was inside the scaffolding, another of iron or zinc plating inclining upward outside it. The horizontal skirting served as a working platform also. There was no dispute that such skirting was at regular intervals. D.W.2 said that with the completion of concreting, the horizontal platform skirting had been removed but not the slanting zinc skirting.

                   4.    Instructions were given to the workers orally and in writing that work was not to be carried out at the upper levels if workers were on the podium. A written notice was displayed outside the site office on which the site foreman wrote in Chinese ："working at the outer wall of the building at the position marked red, when someone is working at the position of the middle section work on the outer wall above cannot be carried out." As an additional measure, the site foreman had instructed the various foremen under his instructions to use a loudhailer to warn workers on the outer walls in case men were seen working on the podium to go back into the building.

10. Under cross-examination, the site foreman said that there were some workers not directly under his supervision who were on occasions not so obedient. He said that the loudhailer was normally hung on a pole or pillar and, besides the foreman Mr. YEUNG, some levellers and carpenters could use it to warn such disobedient workers. WONG Choi-shing (P.W.1) who was the foreman of the carpentary section, also mentioned the loudhailer and CHENG Lap-ping (P.W.3), a leveller, claims to have used it soon after the accident.

                5.     Workers had been instructed to collect all the debris at one stop and dispose it off into a refuse chute which was provided at the extreme end of Block 1 (Marked with a red circle on the sketch at P.60) and served every floor. According to D.W.2, the cleansing work was done by a group of workers of another subcontractor and it was normally done in the evenings.

                6.     In order to see that the various safety measures were enforced, the site foreman relied on two procedures:

(i)    he and a foreman under him patrolled the premises daily - one block in the morning, the other in the afternoon;

(ii)    he held meetings with the foremen of the various workforces or sections to monitor the safety procedures once a month or sometimes once a week. P.W.1 said that such meetings were held every fifteen days.

11. It is not disputed that on occasions small objects, the size of which P.W.1 gave as that of a 'ping-pong' ball, and bits of bamboo would fall. P.W.1 said that this problem was regarded by him and his men as "not very important", as the falling objects were not very big or very heavy. Under cross-examination, he said that objects smaller than the mesh of the netting would go through and fall outside and be caught by the skirting, but larger objects would remain within the scaffolding. He said that this was not an every day occurrence which was confirmed by D.W.2. P.W.1 said that the falling debris or material occurred mostly during concreting of blocks, which he described as "not an unusual occurrence compared to other construction sites" and was something which he, as a construction site worker, would expect. According to D.W.2, such phenomenon of small and large pieces of debris falling used to occur even when they were working on the external walls, which could not be accounted for. The site foreman agreed under cross-examination that occasionally, falling debris formed pockets in the safety netting.

12. P.W.1 agreed that the phenomenon of falling objects on this site was not a serious problem, but he spoke to the site foreman about it fearing that larger and heavier objects might fall. The site foreman said that this was mentioned to him about one month prior to the accident. In his direct testimony, P.W.1 claimed that he complained about 10 days before but admitted under cross-examination that he had told the Coroner at the inquest hearing that the last time he had mentioned this complaint to the site foreman was about one month before the accident. He conceded that his memory might have failed him on this.

13. However, P.W.1 agreed that the site foreman had acted on his complaint and taken remedial action which improyed the situation. D.W.2 said that after they stopped working on the external walls, he did not experience falling objects.

14. The site foreman said that both tower blocks were structurally complete by the 27th December, 1981. D.W.2 said that he had not seen any grouting work being done during the month before the accident as concreting had already been done. He said under cross-examination that, for the carpark to be constructed, the horizontal safety platforms had been removed from the skirting, but not the slanting boards. This would lend support not only to the site foreman but also to P.W.1 who said that concreting of the tower blocks had been completed about a month before the accident since when there had been no falling objects.

15. According to the site foreman tiling working in the kitchens, bathroom and the floors of the apartments started about a month before the day of the accidant from the ground floor progressing upward. This would seem to coincide with the time when concreting of both blocks had finished. This was uncontroverted as was the evidence of both the site foreman and D.W.2 that, by the day of the accident, the tiling work had reached the upper floors of both blocks. The factories inspector supports this also when he said that internal finishing work was being done. None of witnesses could remember the exact level of the upper floors which the tile workers had reached by then.

16. I need mention one other aspect before I move on to the situation on the site as at the day of the accident. This concerns the safety netting. The site foreman said that one section of the wall of Block 1, which he marked in red on the sketch plan at p. 86, was without safety netting. This is the left wall of the wing which faces the hill slope. He explained that the netting was removed at the request of the white-wash spray painters who were waiting that day for the plaster to dry and had complained that the netting obstructed their work. He said that the removal of the netting in the circumstances was a normal procedure to make it more safe for the spray painters. This wall, he said, was about 17 to 18 metres from the spot of the accident.

17. D.W.2 said that netting was removed from the upper half of the wall facing the hill slope which he marked in red on Ex. D1. He said that the wall claimed by D.W.1 to be un-netted was in fact netted. The factories inspector, who visited the site the day after, said that the side of Block 1 facing the scene of the accident was protected by netting but two sides in the corner leading to the side facing the hill slope were not. He marked those two sides in red on the sketch at p. 78. Explaining this on the composite photograph at p. 93, he said that the shorter side was not netted, the taller was.

18. Considering the evidence, I find tile position on the site on the day of the accident as follows:-

19. Turning now to the 27th December, 1981, work started on the site between 7.30 a.m. and 8.00 a.m. as usual. The defendant maintains that there was no work being done on the outer walls and the only work being done that day, according to the site foreman, was: tile laying on the upper floors of both blocks by workers under the supervision of D.W.2; some repair work being done by masons on the watertanks on the roof top of Block 2; pouring of concrete in the podium of Block 2, which was on the same level as the carpenters including the deceased, and some work was proceeding in the ditches on the lowest floor of the car park. D.W.2 said that, besides his tile worker, there were some other masons doing some plaster rectification work on the inside walls, which involved smoothing of socket edges with cement and ash. There were about ten masons in both tower blocks and two mending some holes in the watertanks on the roof tops. Whereas the site foreman said that the men were working inside the watertanks, D.W.2 said that they were on a ladder outside the tanks which are on the inside of the wings, surrounded by slanting walls which he pointed out on the plan at p. 99.

20. The deceased was one of the carpenters enraged in nailing planks on the podium. His foreman, P.W.1, was at the time on the second floor carpark supervising the dismantling of some wooden planks. The site foreman was supervising the work going on in the ditches. The foreman of the masons- D.W.2 -was at the time patrolling the upper floors of Block 2., and the leveller, P.W.3, was working on the fourth floor of the car park.

21. The site foreman said under cross-examination that his foreman had warned workers on the upper floors before the accident through the loudhailer of the workers below. This was not borne out by D.W.2 who said that he was on the upper floors and had no idea of such an announcement. This would indicate that either there was in fact no such announcement or, if there was, it was not loud enough for everyone on the tower blocks to have heard it.

22. At about 11.00 a.m. the attention of P.W.3 was attracted by the accident. He said that he did not witness it directly but when he heard about the accident, he noticed that the injured man was "in the process of falling down". It is not disputed that the spot where the deceased fell was that which is marked 'X' in red on the sketch plan at p. 78 which, according to the factories inspector, is the place where some people are seen gathered on the composite photograph at p. 93. It depicts the frontal view of the side of Block 1 facing the car park space, and the close up photographs are at pp. 94 and 95. The accident spot is about 7 metres from Block 1 and about 20 from Block 2, which is not disputed.

23. The immediate reaction of P.W.3 was to speak in the loudhailer asking the carpenters and the concrete pouring workers at Block 2 to stop working. This was seen to be contradicted by P.W.1 who, upon being told of the accident by a foki, ran up to the scene. He said that the announcement of the accident on the loudhailer by P.W.3 came "several five minutes" after the accident. The site foreman got to the scene within five minutes. He said that he looked for the loudhailer but could not find it. Upon being told by the workers at the scene that something had fallen from upstairs in the vicinity of Block 1 and hit the deceased, and accepting what he was told, his suspicion was directed towards Block l. Failing to find the loudhailer, he shouted in the direction of Block 1, "who is upstairs working that caused things to fall down."

24. It seems to me that the weight of the evidence indicates that the testimony of the leveller with regard to the immediate announcement on the loudhailer is not credit worthy. I take the view that the evidence of the site foreman and of P.W.1 is mutually supportive and I find that the announcement came several minutes after the accident. I shall have occasion to revert to this aspect later but for the moment I find that the loudhailer was not available when the site foreman arrived at the scene.

25. I may say also at this juncture that the observation powers of P.W.3 were lacking and quite imprecise. He did not think about what caused the accident and at no time did he see a broken safety helmet or a piece of concrete grout there. Perhaps one should not be too hard on him and it may well be that his incapacity to observe those articles speaks about his condition at the time. D.W.1 also did not see what had hit the deceased, although he was still there lying unconscious. The site foreman said that he saw the object at the police station. It is obvious that the police arrived sometime afterward and took possession of the helmet and the object. However, the fact that P.W.1 saw both the damaged helmet and a piece of grouting material lying near the deceased was not challenged and it was accepted that the deceased was in fact struck by it.

26. The factories inspector saw the object and the helmet at the Ngau Tau Kok Police Station on the 5th January 1982. He took photographs of both articles and these are at p. 96. These articles were produced at the inquest. In the absence of the object which struck the deceased from the evidence before me, I have to rely on the description which was given by various witnesses.

27. The site foreman gave its dimensions as about 7" to 8" flat ant about the same in diameter. Under cross-examination he said at first that it was made of miscellaneous material which he described as black coloured material, paper and sand. He said it was not concrete but was useless material. Upon being pressed, he agreed that it could be accumulation of droppings from plastering work and further agreed that it obviously was a hardened piece of concrete because the impact had not broken it. He said its shape was similar to the debris that plasterers would leave on the floor and would contain all sorts of other material and bits of rubbish.

28. D.W.2 saw the object in the site office. Under cross-examination, he said it was of grey plaster colour, i.e. the colour of cement mixed with sand and he found that it "consisted" of some paint for spraying the wall. While admitting that in tiling a white cement like substance is used, he denied that the object was a piece of old plaster with white cement splashed on it. When his attention was drawn to a passage in the English translation of his statement which he made to the police on the 1st February, 1982, wherein he had described it as "the rag mixed with some white cement and tile fragments", it being agreed that the reference to "rag" was a mis-translation, D.W.2 said that he had no such memory due to the lapse of seven to eight years. He admitted however that a small piece of paper, the size of his index finger, which he said, was similar to the adhesive tape used to make the window frame edges firm, was sticking to it. He disagreed that it resembled debris that is usually found in newly constructed buildings.

29. P.W.1 described it as a piece of object accummulated from bits and pieces of plaster, which could not have come from any other source than a newly constructed building.

30. The factories inspector (P.W.2) described the object he saw as follows:-

"It was irregular in shape. However, one side was barely flat. On the opposite side it was covered by material which was white in colour. There was also a piece of brownish paper adhering to the block. It should be a piece of paper for tiling. I had seen such paper before. I am not able to decide what the white material looked like. By looking at the object, I thought it was a piece of plaster."

31. I must say that I found the reluctance of the site foreman in testifying about the nature of the object quite remarkable. With his vast experience and the training he has had as evidenced by the diplomas that he holds, I should have expected no such difficulties for him in identifying what it was. Likewise was the foreman of the masons disagreeing with the suggestion that it was a piece of debris usually found in newly constructed buildings. It seems quite clear to me that both these witnesses must have realised that this object was obviously of great importance in these proceedings and their demeanour in testifying about it indicated to me that both were not prepared to associate it with their construction site in any way.

32. However, the weight of the evidence indicates that it was a piece of grouting block which, in the circumstances of this site where plastering and grouting work had admittedly been done, would in all probability be found on such construction sites.

33. There is conflict in the evidence concerning the piece of paper sticking to the grout. It seems to me that, if the backing paper of the tiles is removed after wetting it as D.W.2 explained, then obviously it would be dissimilar in appearance from adhesive tape that he mentioned. I do not think that a man of the calibre of the factories inspector would have confused the two. I accept his evidence and find that the piece of paper which was seen sticking to the grout was in fact the tile-backing paper.

34. Then there is dispute about the white stuff on it. The factories inspector could not decide what it was and D.W.2 rejected the suggestion that it was white cement which he admitted is used is tile laying. Although D .W.2 maintained that it was paint used in spray-painting, I find no evidence that any spray painting had been done internally in any part of either block. The evidence of the site foreman indicated, on the other hand, that the spraypainters were waiting for the plaster to dry up on the external walls. I do not think that it is proper to consider anything of what D.W.2 might have said to the police in his statement, the original Chinese version of which seems to have been destroyed after the inquest hearing. However, in the state of the evidence before me, I find it improbable that anything would get so stained or splashed with paint when the spray-painting had not even started. On this basis, the only other source of the white stuff would appear to be the white cement from the tiling process, and I so find.

35. Next, the fact, which is undisputed, that the impact of the grout broke the safety helmet which the site foreman knew the deceased was wearing at the time indicates the force of the impact. Taking this together with the evidence of the site foreman that his suspicion was directed to the upper floors of Block 1 and his own judgment that the piece of grout should have fallen from a height and taking into account also the proximity of the spot where the deceased fell to Block 1, I find that the irresistible inference from all this evidence, which in my view is overwhelming, is that this lethal piece of grout fell from a height from Block 1.

36. No one saw where it came from or how it fell from a height. The defence maintain that there were no workers on the external walls of both blocks at the material time. P.W.1 said that when he got to the deceased, he saw some workers on the roof of Block 2 and some on the external wall of the same tower. He did not see any in or on Block 1. However, P.W.1 went on to say that there "should" have been workers on Block 2 as it was far from where they were working. I take this to mean by implication that the workers in or on Block 2 posed no threat of danger to the carpenters working on the podium. Thus, Block 2 is excluded from my consideration.

37. Both the site foreman and D.W.2 were emphatic that all debris had been cleared from the floors before the tiling work started. D.W.2 discounted the possibility of his masons working in Block 1 throwing anything like the piece of grout out of the unglassed windows by saying that they would have had nothing like it to throw out. He said that the debris created by the tiling process comprised of cement in granulated form, tile-backing paper and cardboard boxes for the tiles. He said that the plaster rectification work left no debris at all. He was again referred to his statement but for the reason I have already stated I am ignoring what he allegedly told the police. This evidence being uncontroverted sufficiently negatives in my opinion the involvement of any human agency in causing the piece of grout to fall from a height.

38. The defence maintain that the police found nothing suspicious during its investigations on the day of the accident which proceeded on a floor to floor inspection. The site foreman and D.W.2 who accompanied the police found nothing suspicious either. The site foreman did not find any debris on the floors nor was there any on the roof top. He did not find any damage to the safety netting surrounding the scaffolding and he found the zinc sheet fans in place at various levels. The police took no proceedings against the defendant.

39. Regarding the inspection of the site the following day by the officers of the Labour Department, the site foreman said that the department did not make any particular findings and the defendant was allowed to resume work.

40. The report of the Factories Inspector is at pp. 87-96. it is dated 15th January 1982. P.W.2 made two recommendations:-

41. Whereas P.W.2 agreed that paragraph (a) was in general terms and no specific measures were recommended, he insisted that the general included all the specific measures. He agreed, however, that there was no mention in the report of the voids he claimed to have seen in the netting, nor in the contemporaneous notes of his inspection.

42. About the safety measures enforced on the site, the site foreman said that these were more than in other sites and, in cross examination, he said that he had carried out each and every possible safety measure. D.W.2, who claimed to have had 50 years' experience of working on construction sites, considered them as adequate and P.W.1 admitted under cross-examination that they were much better than the safety measures on other comparable sites.

43. Learned Counsel for the plaintiffs, Mr. Ford, submitted at the beginning of his final address that, res ipsa loquitur applying, the defendant had to call credible evidence to show how the accident may have happened without negligence or, alternatively, they must furnish evidence consistent with their having exercised due care.

44. Mr. FUNG, for the defendant, submitted that those formulations concerning the burden of proof were wrong in law and the authorities such as the well-known Woods v Duncan (1946) AC 401 and The Kite (1933) P. 154 make it clear that all the defendant has to establish is that he is not negligent.

45. It seems to me that Mr. Ford's formulation of the burden does not reflect fully what was said in Colvilles Ltd v Devine (1969)1 W.L.R. 475 where Lord Guest expressed the opinion that the defendants "are absolved if they can give a reasonable explanation of the accident and show this explanation was consistent with no lack of care on their part ...... But this explanation oily carries the (defenders) halfway to success. The explanation to be available as a defence must be consistent with no negligence on their part."

46. Lord Donovan explained the onus in this way :-

"It was for the (defenders) to show that the accident was just as consistent with their having exercised due diligence as with their having been negligent. In that way the scales which have been tipped in the pursuer's favour by the doctrine of res ipsa loquitur would .be once more in balance and the pursuer would have to begin again and prove negligence in the usual way."

47. I should perhaps cite one other case which mentions another, a case of a falling brick. I have in mind Ludgate v Lovett (1969)1 WLR 1016 where Harman, L.J., said at pp.   1018, 1019:-

So it follows that, in a res ipsa loquitur case, even though tire defendant cannot explain why or hour the accident happened, it is open to him to satisfy the tribunal that he took all reasonable precautions, or did not, in other words, act in any negligent manner at all."

48. This then is the correct burden on the defendant to avoid liability. I accept Mr. Fung's submission that in a res ipsa loquitur situation the burden is not, as he termed it, "ossified" on any one side. In the words of Lawton, L.J. in Ward v Tesco Stores Ltd (1976)1 W.L.R. 810 , "such burden of proof as there is on the defendants in such circumstances is evidential, not probative." And Mr. FUNG submits vehemently that the defendant has discharged that burden. He relies on the various safety measures which had been taken and the opinion of the various witnesses, including one of the plaintiff, and says, what I say is that it is not just an expression of chauvinism on the part of my client to say that the safety measures employed on the site were very good, but it may be regarded as an objective fact, it being confirmed by various sources, including my learned friend's own witness."

49. Before I come to consider whether in the circumstances Mr. FUNG's contention is borne out, I think I should mention the various references witch were made to the involvement of the other sub-contractors in this project. Whereas he did not go as far as to say that the defendant was not liable for the conduct or actions of those subcontractors, Mr. FUNG did rely on Easson v London & North Eastern Railway Co (1944)1 K.B. 421 in providing a complete answer to negligence arising from the assumption that the piece of grout may have come from the upper floors of one of the two tower blocks. I should make two comments. First, I have already found as a fact upon the evidence as I view it that the piece of grouting material came from the upper parts of Block 1. Secondly, the case of Easson is distinguishable on facts. That was a case where a child, aged four years, fell through a door in the corridor of a train belonging to the defendant company while the train was in motion, and was injured. There being no evidence how the door was opened, it was held that the mere fact that the door was opened was not of itself prima facie evidence of negligence against the railway company. I think that the ratio decidendii is to be seen in this sentence of Goddard, L.J.'s judgment at p. 424:-

"In the present case it seems to me it is impossible to say that the doors of an express corridor train travelling from Edinburgh to London are continuously under the sole control of the railway company in the sense in which it is necessary that they should be for the doctrine of res ipsa loquitur, or a doctrine analogous to it, to apply."

50. The Court went on to hold at p. 425, "The cause of the accident was the opening of the door which must have taken place by some human agency inside the train." Not only is it admitted in this case that res ipsa loquitur applies, so that the defendant had the entire site under its control at all times; it is admitted also that the defendant was solely responsible for all safety measures on it as well. Walsh v Holst & Co Ltd (supra) extended this doctrine further : when the defendant's duty is so extensive that he is answerable for the negligence of his independent contractor, and an accident occurs while the independent contractor is performing the work delegated to him, the plaintiff can invoke the doctrine against both the defendant and the independent contractor. In this case, the defendant as principal contractor would be liable for any negligence in the performance of their duties delegated to the sub-contractors. The defence had not undertaken the burden to explain how or why the accident occurred, and I have taken the view on the evidence that there appeared to be no involvement of any human agency in it. No question of collateral negligence arises here.

51. The position is that the accident remains a mystery and without explanation. Mr. Ford maintains that the evidence showed an unsafe system of work on both blocks. The defence is that all reasonable care having been taken, the defendant has not been negligent and is not liable.

52. I have set out the various safety measures which the site foreman had taken, and I have stated also what the three main witnesses thought of them. The deceased was, nevertheless, struck on the head by that falling piece of grout and the ultimate question must remain whether those safety measures were reasonably adequate. In the words of Morris, L.J. in the case of Walsh v Holst & Co Ltd (supra) the law does not impose unreasonable burdens, but it exacts a standard of care which is directed by the circumstances. The learned judge goes on to say that the seriousness of the consequences must be a factor in assessing the quality of the care which is requisite. I appreciate that this appears in the dissenting judgment, but I see no disagreement in the majority judgments on these general principles.

53. In so far as the situation of the construction site called for greater measure of care is concerned, the site foreman was, on his evidence, quite aware of this. It was for this reason that a safety netting with smaller mesh was used. Whereas the site foreman said that during his inspection with the police after the accident, he did not notice any damage to the netting, there is the evidence of D.W.2 who said that there were gaps of a fraction of an inch in the joints of the lengths of netting which he did not think as significant. The factories inspector who visited the site the following day noticed much larger gaps in the netting at tile joints. He was cross-examined at length and the witness agreed that the presence of those gaps impinged upon the adequacy of the safety precautions, that he did not include these in his contemporaneous notes nor did he mention them in his inspection report or specifically in his recommendations. He disagreed that the reason for omitting all this or for not taking photographs of the other gaps that he had seen when he still had some spare film in his camera was that he did not think they were important. He insisted that they were of the same degree of importance as the other areas of which he had taken photographs. He did say that, because his visit to the site was on the day after the accident, the voids he saw in the netting might not exactly be the ones that were present on the day of the accident.

54. If the site foreman had accompanied the factories inspector, I find it surprising that he should have failed to see the voids, which the former saw. Whatever the infirmities in the evidence of P.W.2 relating to those various omissions that were put to him, one aspect which stands out prominently is that photograph which he took of the two voids it the netting. That surely is just as good, if not better, a contemporaneous record as any. Considering the proximity of that inspection to the day of the accident, I do not see how such voids as are depicted in the photograph - Ex. P2 - could have developed within such a relatively short period of time. I take into account also the demeanour of the site foreman and D.W. 2 about which I commented earlier which, in my opinion, tarnished their veracity. Considering the evidence in its totality I am of the view that the preponderance points to the probability that the voids which the factories inspector saw in the safety netting existed on the day of the accident and were much larger than a mere fraction of an inch which neither the site foreman nor D.W.2 was prepared to admit.

55. There is the issue of the un-netted wall. Mr. FUNG submitted that even if the conflicting evidence about the wall or walls which in fact were un-netted be accepted, the fact remained that the tiling work and the rectification of the plaster was not being done on the side of the un-netted walls but was being performed on the side where the wall was fully protected. That may very well be so, but it does not alter the fact thet there were one or more walls of Block 1 in the vicinity of the podium from the upper parts of which the safety netting had been removed. Also important in my view is the reason which was given by the site foreman. If it was to facilitate spray painting of the outer walls and to ensure the safety of the spray painters, then it would seem that the netting was removed prematurely as the plaster had not fully dried out for the painting job to be undertaken. I take the view that the workers on the podium were thus exposed to a threat of potential danger at the expense of the spray painters who had not even started and were waiting for the plaster to dry up. I find no reasonable explanation for this premature move in removing the safety netting from that area of Block 1 which was in the vicinity where the carpenters were engaged in work. The position would have remained the same in my opinion had the spray-painting been afoot on tine day in question but suspended temporarily, and the carpenters were permitted to work on the podium.

56. I mentioned earlier the non-availability of the loudhailer when the site foreman wanted it. This indicates to my mind that there was no secure place for it from which it could be readily had at any time whenever need for its use arose. There is doubt also about its effectiveness in being heard by people working on the upper floors of the tower blocks.

57. Mr. Ford prayed in aid certain accidents which had occurred on the site before, and some since, the day of the present accident. Mr. FUNG submitted at length that such evidence was inadmissible on the striking similarity rule and also that it was irrelevant when the circumstances in which those accidents arose were not known. Let it be said that this evidence was adduced after the question of any accidents having occurred on the site was raised during cross-examiruation of one of the plaintiff's witnesses. However, I think that there is substance in Mr. FUNG'S arguments. While on this aspect of evidence, Mr. Ford referred to certain portions of testimony which was given during the inquest. Again, Mr. FUNG submitted that such evidence should not be admitted into the consideration of the issues arising in this case. This matter has been the subject of comment many times and courts have always been reluctant to accept such evidence in proceedings which are fundamentally so different from ordinary adversarial trials. I am aware that in Ho Wai Tai v A.G. & another (1979) HKLR 290, a registrar, after considering the case of Calmenson v Merchant Warehousing Cc Ltd, held that such evidence was admissible under the provisions of Sections 47 and 49 of the Evidence Ordinance, but I do not propose to express any opinion on the matter as it was not canvassed fully before me. I will say however that I am inclined to the general view that testimony given at an inquest may legitimately be used for purpose of cross-examination where the same witnesses are called during the trial.

58. The upshot of this discussion is that upon close scrutiny a number of chinks appear in the defendant's safety measures which, though at first right, seemed reasonably adequate but were not continually maintained at that level obviously through lack of sufficient superintendence to ensure that they served the purpose for which they were provided as clearly was their duty to do. The defendant must have reasonably foreseen that the premature removal of the safety netting from the walls in the vicinity of the podium, and the large voids in the netting on Block 1 through which an object of the size of the lethal grout could easily have slipped, particularly when the site foreman knew that falling debris from above occasionally formed pockets in the safety netting, and the, apparent inadequate system of warning through the loudhailer, created a potential danger to the workers on the podium of the magnitude and seriousness that did in fact take place on the 27th December, 1981.

59. For these reasons I find that the defendant has failed to discharge the burden on it on a balance of probabilities and, taking a global view of the entire evidence at the end of the day, as I was invited to do by Mr. FLING, I am of the considered opinion that the defendant has not proved that it was not negligent. I find against the defendant on the issue of liability.

60. With regard to the quantum of damages, it was agreed that the deceased was 36 at the time of his death, earning $4,000.00 per month. The monthly dependancy was agreed at $1 ,000.00 and the multiplier of 13. The FAO damages are agreed at $153,000.00 of which the sum of $49,000.00 being the pre-trial loss of income would carry interest at the rate of 3.875% up till today. The LARCO damages are agreed at $215,000.00 for the lost years, and $22,000.00 for the loss of expectation of life, giving a total of $237,000.00, which is agreed at the round figure of $240,000.00. The damages for loss of expectation of life i.e. $22,000.00, will carry interest at the rate of 2% from the date of the service of the writ until today. The damages under FAO merge with those under LARCO, so that the total award which is agreed will come to $240,000.00. From this, is to be deducted the employees compensation amounting $168,000.00 which was paid in Compensation Case No. 63/83, leaving the net award of $72,000.00.

61. There will thus be judgment for the plaintiffs in the sum of $72,000.00, with costs and interest as aforesaid. Interest on this award from today until payment will be in accordance with S. 49 of the Supreme Court Ordinance.