LAO KUAI FONG v. SO CHI KEUNG t/a YAU HOP BAMBOO SCAFFOLDING CONTRACTORS AND OTHERS

1983, No. 3058

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The 17th June 1981 was a day without any strong wind. At about 4:20 in the afternoon, on the roof of a 12-storeyed building at No. 4 Ho Tin Street, Tuen Mun, the Hoi Industrial Building a tower under construction, with a base of 2.1M (7') x 2.4M (8') then reaching 18.2M (60'), toppled over the edge of the roof parapet wall down to the ground. some 46.5M (153½') below. Three workmen came down with the partially completed bamboo tower and fell to their death

2. There was no eye-witness to the accident except for Mr. Lai Tak Wah who was a metal worker in Ho Tin Street near the Hoi Cheong Industrial Building. He noticed nothing unusual before the fall of scaffolding bamboo tower over the roof, followed by the three workmen. He did, however, see the three workmen working on the scaffolding bamboo tower before it fell.

3. The three deceased workmen were Fung Pat, Chau Kwok Kwong and Poon Wing Hung. I shall refer to them as "Fung", "Chau" and "Poon" respectively. Fung had been a scaffolder for some 39 years. Chau began scaffolding, work at the end of 1979. At the time of his death, Fung was earning $160 a day while Chau $140. Poon was an apprentice.

4. The personal representatives of Chau and Poon commenced proceedings against their former employer So Chi Keung. Poons claim is in High Court Action No. 3058 of 1983 and Chau's claim is made in High Court Action No. 3575 of 1984. In these two actions, the former employer, So Chi Keung, joined Fung as the Third Party in their respective third party proceedings. These two actions have been consolidated, but counsel have chosen to keep the pleadings separate.

5. The personal representatives of Fung also instituted an action against his former employer in High Court Action No. 3693 of 1984.

6. The Letters of Administration of the estates of Chau and Poon, deceased, were, so the court was informed, granted in 1983. The third party proceedings in these consolidated actions were commenced in May 1985. These third party proceedings are solely founded on a claim in tort, and they are both time-barred by the now repealed but then operative section (3)(b) of the Law Amendment and Reform (Consolidation) ordinance, Cap. 23. Therefore in substance, the court is called upon to determine the, claims by the respective estates of Fung, Chau and Poon deceased, against their former employer So Chi, Kung subject to contributory negligence, if any, as alleged.

7. So Chi Keung has throughout been the sole proprietor of his own firm. His brother So Chi Ming worked for him at the material time. He was to solicit business negotiate for the price, supply the material required and inspect the work in progress. As to the method of construction and safety measure, So Chi Ming was expected to discuss with the experienced skilled scaffolder, Fung. The firm of so chi Keung has been in the scaffolding building business for several generations and has been under his personal management for some 20 years.

8. So Chi Keung himself was also in charge of "obtaining contracts", but in this case on the 13th June 1981, So Chi Ming, his brother, contracted with Ng Wah Engineering Co. for the erection of a bamboo scaffolding tower of some 83' in height (25.3M) with a base of 7' (2.1M) x 8' (2.4M) for $4,500. The work was expected to take 3 to 4 days.

9. On the 15th June, the three deceased workers went with So Chi Ming to the roof of Hoi Cheong Building. The bamboo scaffolding tower to be erected was for putting a chimney on the roof by the said Ng wah Engineering Co. On that day, the location of the chimney and the dimensions of the bamboo scaffolding tower were given to Fung by So Chi Ming. According to So Chi Ming's statement, the work only started on the 16th June and he was present supervising from 9:00 to 9:30 a.m. Fung, being the only experienced skilled scaffolder in a team of three, was specifically put in charge by So Chi Ming. In the evening at about 6 p.m., Fung returned to the firm for dinner with So Chi Keung and So Chi Ming. So Chi Ming discussed the construction of the tower with Fung and enquired if building materials were sufficient. Fung disclosed that the tower reached a height of more than 30' (some 9M). As So Chi Ming "was afraid that it was windy at such a height, (he) asked Fung Pat to tie it with wire when he worked on the next day". Fung had not expressed any personal concern as to the stability of the tower, but "he said that it would be more secure if the scaffold was tied with wire". According to So Chi Ming, as he "had previous experience of building chimney and climbing up scaffold to work", he told Fung "to attach wire to scaffold for safety sake". Therefore, evidently it was not Fung who felt any real need for wiring support. To So Chi Ming's enquiry, Fung merely responded that there was not sufficient material and agreed that wiring would provide added security. So Chi Min left it to Fung as to how and where the wire was to be fixed, but So Chi Ming was quite adamant that Fung "promised (him) he would put in wire". According to So Chi Ming, Fung could not countermand his instructions to use wire.

10. Next day, the 17th June, some more bamboo poles were delivered to the roof together with 3 coils of wire and 4 bundles of nylon strips. There is no evidence of the time of such delivery. What were not included in the delivery are : instruments for cutting the wire, nuts and bolts for securing the wire to a safe anchorage point and drills/explosive bolts for preparing anchorage points on or in the concrete

11. By the time of the accident, the bamboo scaffolding tower had reached a height of 18.2M (60'). It was a 4-sided bamboo tower tied together by nylon strips. It stood on four main posts described as main, standards at each corner. In between every two there were two subsidiary posts, not necessarily touching the ground and therefore not bearing weight. There were 26 parallel horizontal bamboo poles on each side called "ledges" and these ledges were reinforced by five cross bracings called "Kau Char Cheung" all the way up. Material was inadequate on the 16th June when the base standards were erected as more was delivered the next day. For whatever reasons two of the main base standards were 100mm (4') in diameter and the other two were 50mm (2') in diameter.

12. There was a water tank on the roof of some 6M (20') in height: with iron railings on top.

13. Mr Kwok, the Labour Department Inspector, visited the scene on the day of the accident. From his observation largely of remnants of nylon strips and poles, he drew two sketches at p p 75 and 76 of Bundle A. From these observations, he postulated that there were nine bamboo ties, five attached to the railings on top of the water tank, to the scaffolding outs the parapet wall, another one to the water pipe on the roof level in the same direction and the remaining bamdoo tie to another roof water pipe in the opposite direction. It must be accepted, in my opinion, that the possibility of there being more bamboo ties cannot be ruled out, but it would seem that there were no bamboo ties facing the said bounded by the two bigger main base standards, nor in the opposite direction

14. The traditional method of erecting a free standing bamboo scaffolding tower is, I find, to have (1) two contraptions in the form as drawn in D1"; subject to variations in size and measurement, at each corner of the 4-sided free standing tower, reaching somewhere around 30' in height and spreading out about 90 apart, called "Tang Cheung"; (2) bamboo structures in the form of "P6" called "Kau Char Cheung" with occasional diagonal bamboo reinforcement called "Chair Chiang" tied vertically onto the poles and horizontal ledges; and (3) above the converging contact the Tang Cheung"on top with the tower, sets of wire beginning at that level and upwards, at intervals of 12'to 30'. The wiring, a set of four, should be from each corner and any one wire could take a suitably different bearing to accommodate the anchorage point. Anchorage point must be safely secured to either a strong permanent fixture at embedded into the concrete with the aid of a drill or explosive bolt. Wiring may substitute "Tang Cheungs" even at a lower level. I further find that once the 4-sided free standing tower of a base similar to the one under construction reached 28'-30' in height, "Tang Cheungs" or in their place, wiring must be installed. Above that, sets of wire at the desired intervals would have to be attached to the tower.

15. Mr Wellman is an engineer and his proposed scaffolding tower for the chimney with a base of 20^' x 20 and internal bracings has certainly much to commend itself, but in my view, further rigidity has not been proved to be necessary for any freestanding bamboo scaffolding tower constructed according to the traditional way. As a matter of fact the firmness and workmanship of the tower were best illustrated in the photographs taken after its fall which show virtually the entire structure still in one piece.

16. I am satisfied that tower like the one under consideration or any free standing tower with whatever base can be safely constructed according to the common practice of the trade traditionally followed. The features in that practice are matters of necessary precaution to be taken in the erection of a free standing bamboo tower of those or some other dimensions, and, in my view, if adopted, they are all that would be required of a reasonably careful and prudent man. In reality these proper safety measures have been habitually practised by persons in the scaffolding trade for generations. In my judgment, the high standard of care commensurate with the gravity and imminence of the risk of a free standing tower and its erection would be regarded as wholly discharged if these safety guidelines are observed.

17. Thus, the crux of the matter lies in the support and stability of the tower in question

18. Mr Wellman's design would certainly give further rigidity and stability to the bamboo frame which would probably be more resistant to structural twisting and/or bending. In turn, less stress would be exerted on the smaller 50mm (2') main base standard damaged in this case. However, I have accepted that with the recommended wiring, sufficient rigidity and stability would be achieved.

19. I shall deal with the effect of bamboo ties. Possibly there were more. Mr Kwok's inspection of the scene was fairly thorough, and if there had been more bamboo ties, as probably there were, they could not have been very much more.

20. So Chi Ming specified the use of wire. There was hardly any warrant for using or contemplating the use of rope. Only wire, not rope was delivered to the site Mr. Choi Keung, the scaffolding instructor from Construction Industrial Training Authority was adamant that ropes are shown in some of the photographs, which could be used for stabilizing the tower, but his evidence on the ropes is, to say the least, highly unsatisfactory. He agreed that the string in the middle photograph on p. 120, Bundle A, could probably be for pulling up material The same string, so Mr Choi conceded, is shown in the middle photograph on p.123 Bundle A and therein marked "2". But he maintained that what are marked "1" and "3" in that middle photograph on p. 123 are parts of the same rope and that what is marked "4" there is yet another rope. He claimed that from his observation"1"/"3" and "4" are different from the one shown on the top right hand side photograph on p. 121 and that what is marked "3"on the left hand side top photograph on p. 121 is different from the string in the middle photograph on p. 120. In the top left hand side photograph on p. 121, Mr. Choi identified two more ropes, marked "1" and "2". In essence, from the photographs Mr. Choi detected 5 ropes and one string. Possibly Mr. Choi could mean 6 ropes if the one lying on the ground in the top right hand side photograph on p. 121 was regarded as different from the one marked "3" in the top left hand side photograph on the same p. 121.

21. Dealing first with the top left hand side photograph on p. 121, it is fairly obvious that the article marked "1" is a bamboo and the one marked "2" is a nylon strip. Checking against the other photographs, particularly the top right hand side photograph on p. 121 and the middle photograph on p. 120, it can be seen that the rope or string marked "1" and "2" in the middle photograph on p. 123 and the one marked "3" on the top left hand side photograph on p. 121 are parts of the same string. "3" and "4" in the middle photograph on p.123 are clearly bamboos "1" and "3" in the middle photograph on p. 123cannot be from the same rope - "3" is certainly no continuation of "1". There was, I find, no rope at the scene except for a string or strings for hauling up material. Lastly, Mr choi keung couid not say from the photographs that any of these alleged rope bad been tied down and, if so, where the anchorage point was

22. Mr Kwok, the inspector from the Labour Denartment, saw no rope for stabilizing the tower. He also found no anchorage point.

23. Mr Fung Ah Shing is the present Chairman of the Hong Kong and Kowloon Scaffolders Mutual Respect Union. He has been such for three terms. He visited the scene on the 18th June 1981 and saw no wire or rope for stabilizing the tower

24. Mr Cheung Chun Yee, the proprieter of^-Ng Wah, gave a statement : he visited the scene on the 17th June 1981 about 1 p.m. during the construction and saw no wiring tie.

25. There were no tools, equipments for providing any anchorage delivered or found at the scene after the accident. Wire was specifically instructed to be used and 3 reels of wire were delivered on the 17th June. When Mr. Kwok visited the scene after the accident on the 17th June, he saw the same coils of wire unused on the roof.

26. In conclusion, I find that there was no wire or rope affixed to the free standing tower for its support/stability or at all.

27. The bamboo ties described as "Lai Munks" were put up as a matter of expedience, using available material, for providing some temporary support to the tower.

28. Mr So Chi Ming instructed wire to be used for stabilization. Fung was not instructed to erect "Tang Cheungs". I accept that the scaffolding team could not ignore the instructions and arbitrarily erect "Tang Cheungs". The diagonal pole shown on the middle photograph on p. 123 is a "Mau Pole". Mr Choi suggested that it reached 30' high to the tower from its base. I prefer Mr Fung's estimate from the photographs that it reached a height of only '14'. Mr Fung Ah Shing described this vertical "Mau Pole" as one of the two "Lai Munk" poles at different levels for keeping erect and in position, during the initial stage, the main base standard to which other bamboos might then be added or tied. Mr Choi found a couple of "Mau Poles" in the photographs, but I accept the evidence of Mr Kwok that he found no sufficient material for the erection of any proper "Tang Cheungs" on the roof. Mr Kwok also detected no sign of any "Tang Cheung" on his visit. I find that there was no "tang Cheung" erected or, on the balance of probabilities, even attempted.

29. Consequently, I accept the accuracy of the sketch drawn, by Mr Kwok at p.75 of Bundle A subject to the missing "Mau pole" served as "Lai Munk" for one of the main base standards as shown in the middle photograph at p. 123 and possibly subject also to a few more, but not too many, bamboo ties.

30. Mr Kwok further advised that for a tower of these dimensions, the 4 main base standards should be in fir poles and if fir poles were not available, then bigger poles should be used. He further testified that it was unsafe to use poles of different sizes for the 4 main base standards.

31. Mr. Bharwaney must be correct when counsel submitted that the real complaint in this case is that wire was not used as instructed. Instructions were given by So Chi Ming to have wire put up on the workmen's return to work the next day, the 17th June. The tower had reached 30', and Mr So Chi Ming had decided, from his previous personal experience, that wiring support was needed for stability. Fung was an experienced old hand, and there is no reason to suspect that as the tower rose, he would not himself, at some stage, suggest one or the other traditional supports, althugh he was then not too concerned. On being instructed to use wire on his return to work the next day, he only commented "that it would be more secure if the scaffold was tied with wire" If Fung had carried out his instructions and put up wiring in the traditional way with which he ought to be familiar, on my findings no accident would have occurred.

32. I further find, apart from the lack of support by wire, the using of different size main base standards with two of 50mm as being negligent. In this case "Tang Cheungs" were not contemplated and the bamboo ties were insufficient. In the opinion of Mr Wellman, a force of as little as 49 lbs, equivalent to a very slight wind, or a shifting from the centre of gravity for even l'2" would topple a stricture such as this assuming that there was no lateral support. In my judgment, the accident was caused, wholly or partly in conjunction with other possible factors, by the instability so created or aggravated.

33. I further accept the postulation of Mr Wellman made on the height of the parapet wall and its distance to the tower that the 3 workmen must have been on the tower some 30' above at the time of the accident.

34. It has been conceded that So Chi Keung owed a duty of care to his workmen either by himself, his brother or Fung. Mr Chan, counsel for the defendant, Submitted that there was no negligence in this case in which the traditional method of erection had been resorted to. In my findings, the traditional means had not been wholly followed, such as in providing lateral support by wire or rope with the optional "Tang Cheungs" at a lower level and in using equal size main base standards for a fair distribution of weight bearing. The contention of Mr Chan, on behalf of So Chi Keung, must therefore fail. The parties are ad idem on the authorities as to liability and I need not repeat them.

35. Not only were fir poles not chosen as the main base standards, different size poles were used. The defendant must have failed to provide sufficient and proper material, and I so find. The defendant also failed to provide adequate epuipments for cutting wire and preparing anchorage points. The tower as partially "erected was not a safe place of work, and these deceased workmen were working on an unsafe structure. Later, I shall deal with the defendant's lack of any or any effective supervision in his negligent construction of the bamboo tower without any or any proper wiring standing on different size main base standards.

How is blame to be shared between So Chi Keung and Fung, the deceased skilled scaffolder in charge? The speech of Lord Reid in Ross v. Associated Portland Cement Manufacturers Ltd.⁽¹⁾ said of what is to be expected of an employee thus:

"The owner of a factory who has given proper instructions and has provided proper equipment cannot make provision against disobedience either of his own servant or of the servant of a contractor who is working in the factory. But it is his responsibility to see that proper instructions are given and proper equipment is available. Whether the work is to be done by a person fully skilled in that type of work he may say go and plan out the work and come back and discuss the matter if you have any difficulty: or cannot find the equipment you need'. ........... No account has been taken of the reluctance which a man in Ross's position would naturally feel in going to a chief engineer uninvited to ask for extra equipment the provision of which would entail at least some delay and expense........(The employer's chief engineer) cannot be absolved from all blame because he ought not to have been content to use makeshift equipment, but it appears to me that the failure of the (employer) to take any step to see that proper equipment was available contributed a great deal to the accident."

36. Fung was a skilled, experienced scaffolder. He was specifically instructed to put in wire on his return to work the next day but was not provided with the necessary paraphernalia. There was no cutting tool and there were no instruments for preparing and securing anchorage points. In hind sight, it must be counsel of perfection that he should have instantly stopped work and reported the same to his employer or So Chi Ming with a request for proper tools and equipments. Fung was paid at a daily rate as a permanent/casual worker. There is no evidence as to whether suspension of work would or would not affect his pay or draw adverse criticism from his former employer. It was not unreasonable for him to expect So Chi Ming to visit the site on the 17th June. Such expectation coupled with a probable reluctance on the part of a workman like Fung to stop work set the scene for his inaction. All this is but theoretical guesswork. However, it is always easy to be critical after the event. Fung was working at the material time, and for a man on the job, he could be more readily forgiven for not making a correct or wiser instantaneous decision. As a matter of fact, it is unclear as to precisely when the wire was delivered to the site. Besides, it was not a particularly windy day. He did put in some makeshift support in the form of the bamboo ties or "Lai Munks". Probably he did the best he could with the available material without much ado or stopping work. In the light of his own impression the night before "that it would be more secure if the scaffold was tied with wire" and not that it would be unsafe not to have it done, it would be highly inappropiate, in my view, to hold Fung responsible for any large portion of the blame. The situation must have been the same for the smaller main base standards.

37. So Chi Ming should have visited the site on the 17th June and supervised the immediate installation of the lateral wire support. So Chi Ming gave specific instructions to Fung. It is fairly apparent that he relied on his own judgment at least as much, if not mote, than the expertise of his scaffolder in charge, particularly when So Chi Ming had previous personal experience and was evidently concerned on the night before. He should have ensured that the scaffolding team were suitably equipped and that his instructions for safety measure were duly obeyed.

38. To do the best I could, I would apportion as to 70% to the defendant and 30% to Fung. Chau was a new hand. By time, he was not fully-qualified, joining the trade only at the end of 1979, although his daily wage was only $20 short of that to Fung. However, Fung was the man put in charge and not Chau, and instructions to use wire were given to Fung. There is no evidence how knowledgeable Chau was or whether he was aware of the wiring instructions. Contributory negligence on the part of Chau has not simply been established. Poon was an apprentice. He had every reason to be on the scaffolding even at that height for passing material despite his having the use of a string. According to Mr Choi Keung, hauling up of material was to be in a small bundle, two short poles at a time. It can be appreciated that handing up of bamboos, especially long poles by hand would be more efficient if not more practical. Poon was not even allowed to tie the nylon strips. There is no evidence that. Poon had, in any way, acted contrary to instructions or against the interest of the team. Poon could not in my view, be said to be himself negligent.

39. Subject to apportionment of the awards on account of minor interests and approval of the court, quantum is a matter of agreement between counsel: $300,000 for Fung's claim; $600,000 for Chau's claim and $400,000 for Poon's claim. I have been assured by counsel for the plaintiffs that the agreed quantum would not lead to complication. Subject to this, I grant judgment in the sums of the agreed quantum accordingly. The third party proceedings are statute-barred, and I need proceed no further. As for the Fung's claim, $300,000 is to be reduced by 30%. Subject to what counsel have to say, costs should follow the event in favour of the plaintiff in each action against the defendant and in favour of the Third Party in the third party proceedings.

(1) [1964] 1 WLR 768 at p. 778;

(2) [1964] 2 AER 425 at p. 456 Letters A/B - E.