POON BOON CHE v. CHAN KAM FOOK AND ANOTHER

No. 155 of 1986
(Civil)

HEADNOTE

Occupiers Liability Ordinance (Cap. 314) - statutory duty of care owed to servant of a contractor lawfully working on premises - Common law duty of care owed by one contractor to the servant of another - injury to worker in the course of unloading metal rods from a lorry.

Personal injuries were sustained by the plaintiff while employed by the first defendant in the unloading of metal rods from the lorry of the third defendant, a subcontractor, on land occupied by the second defendant. Having commenced proceedings in the High Court claiming damages for negligence and breach of statutory duty against all three defendants he signed judgment against the first defendant, in default, for damages to be assessed and sought to recover also against the second and third defendants. Judgment was given in favour of those defendants. The plaintiff appealed.

On appeal held (dismissing the appeal):

1) That the statutory duty of the second defendant, as occupier, was to take such care as in all the circumstances was reasonable to see that the plaintiff would be reasonably safe in using the premises, here an open space, for the purpose of unloading metal rods.

2) That there was no evidence to suggest that the premises were in any respect unsafe for such purpose.

3) That on the neighbour principle the third defendant owed the plaintiff a duty to take reasonable care for his safety.

4) That there was no sufficient evidence to show that the system of working or the appliances used, whether or not supplied by the third defendant, were dangerous or involved a breach of that defendant's common law duty.

IN THE COURT OF APPEAL

No. 155 of 1986
(Civil)

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J U D G M E N T

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Kempster, J .A.:

1. During the evening of 1st April 1982 the plaintiff in these proceedings, Poon Boon Che, was approached by Chan Kam Fook, the first defendant, with an invitation to participate on a daily basis in the loading and unloading of metal rods at a wage of $200 per day. He had carried out such work for the first defendant before and accepted the invitation. On the following day he went with the first defendant to a godown in Kwun Tong which was occupied by China Steel works Ltd., the second defendants, and there helped to load bundles of rods, the property of those defendants, on to a lorry equipped with a fixed crane provided by Foung Kwong Yim, the third defendant. Later that day he helped to unload the bundles at a site in Kam Tin also occupied by the second defendants. In the course of that operation he sustained injury to the fingers of his right hand.

2. The plaintiff has claimed from all three defendants damages resulting from his injuries and, indeed, on 27th November 1984 signed judgment against the first defendant in the High Court for damages to be assessed. In the statement of Claim it is alleged in the alternative that the first defendant was the plaintiff's employer at the material time. On 12th November 1986 Deputy Judge Leonard held that the plaintiff's claim as against the remaining two defendants failed; a finding against which the plaintiff appeals to this Court.

3. The plaintiff, through Mr. Mumford, submits that the trial Judge erred in law in failing to find firstly that the second defendants were in breach of the common duty of care which, as occupiers of the premises at Kam Tin and by reason of the provisions of the Occupiers Liability Ordinance, they owed him and secondly in failing to find that the third defendants were in breach of the duties which, on the neighbour principle, they owed him at common law to provide a sound block to facilitate the adjustment of the sling around the load, a point only faintly pleaded and argued below, and to insist that two slings should be employed to raise and lower loads of no more than one bundle of rods at a time.

4. Accepting the evidence of the operator of the crane the Judge held that the second load to be dealt with at Kam Tin fell and injured the plaintiff's hand when the block upon which it was resting disintegrated. This is not a finding with which, in my opinion, we are entitled to interfere on the basis of the probabilities. The evidence of the plaintiff disclosed that at the material time the block was resting on other bundles of rods and that there were spaces between them. Thus the load may have born with particular force upon an unsupported portion of the block and, by fracturing it, caused the load to fall. Put another way the judge was entitled on his view of the credibility of the witnesses whom he had heard and seen and on the totality of the evidence to come to the view he did as to the cause of the accident. Further, it does not follow from the Judge's conclusion that the block, which the plaintiff had tested, was demonstrably unsuitable for the purpose for which it was being used. Accordingly, it matters not whether it was provided by one or other of the defendants or by the plaintiff himself though the evidence of the operator of the crane, which the trial Judge, who made no finding in this particular regard, accepted in relation to the circumstances of the accident, is wholly inconsistent with the suggestion that it was provided by the third defendant. The appeal as against the third defendant in the context of the block must fail. So, in my view, it must in the context of the number of slings to be used for securing the loads and of the number or bundles to be included in them. On a realistic approach to the evidence such suggestions constitute counsels of perfection far removed from the day to day and, until the date of the accident at least, apparently safe practice of workmen and crane operators in Hong Kong. No witness, expert or otherwise, went so far as to assert that the system of working adopted by the plaintiff and the crane operator was dangerous.

5. That, it appeared at one stage of the argument, was the end of the appeal as it was then conceded that the plaintiff could not succeed against the second defendant as occupier if he failed to show negligence on the part of the third defendant. But the plaintiff appeared, to me at least, to resile from this concession as the hearing proceeded and I will, accordingly, do my best to consider how he seeks to challenge the findings of the trial Judge in relation to the second defendant in the light of that defendant's statutory obligations as occupier of the open land upon which the rods were unloaded. No claim is or has been made on the basis that the second defendant was in breach of any common law duty of care owed to the plaintiff; a claim, which, as: the terms of section 2(2) make plain, may, in appropriate cases, be made in addition or as an alternative to a claim under the Ordinance. Marney v Scott[1]; Wheeler v Copas[2]; Kealey v Heard[3].

6. The common duty of care owed by the second defendant to the plaintiff is defined in section 3(2) of the Ordinance as:

- a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.

Thus the second defendant was obliged to ensure that the open land was reasonably safe for the purpose of unloading metal rods. By contrast with the fitness of the hold of the vessel Avisglen for unloading operations described in Gaffney v Aviation & Shipping Co. Ltd.[4] there is not a whisper of evidence to suggest that the premises were unsafe for this or any other purpose whether the matters canvassed in section 3(3) are considered or not. No more did the plaintiff sustain injury by reason of the second defendant's failure to ensure that work on the premises had properly been carried out by an independent contractor. Section 3(4)(b).

7. I leave open the question as to whether or not the plaintiff's injuries resulted from any of the breaches of duty alleged against either the second or third defendants.

8. For the sake of completeness and to provide the plaintiff with a minimal crumb of comfort I would add that, again in my opinion, a claim for damages against the second defendant at common law would have failed. It has not been suggested on appeal that the first defendant was not properly entrusted with the arrangements for the loading, unloading and transport of the metal bars from Kwun Tong to Kam Tin which involved sub-contracting much of the work to the third defendant. Further, not being expert in the carriage of goods, it could hardly have been held that the second defendants should have supervised or interfered with the system of working of or the appliances used by men who were. No more could the second defendant reasonably have been held negligent in failing to appoint a skilled foreman to supervise one simple and isolated operation.

9. For the foregoing reasons I would dismiss the appeal.

Cons, V.-P.;

10. I agree with my Lord that the appeal should be dismissed and there is nothing that I can usefully add to the reasons which he has already

Power, J.;

11. I also concur and have nothing to add.