LAW YUET KWAI v. SECRETARY FOR JUSTICE & ANOTHER

HCPI 430/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.430 OF 2001

---------------------

----------------------

------------------------

J U D G M E N T

------------------------

1. This judgment relates to Third Party Proceedings between the defendant and the Third Party herein.

2. In the main action the plaintiff brought this claim on behalf of the dependants and the estate of the deceased, Chan Ah Man, who died from an accident which occurred when he was working on the marine dockyard on Stonecutter's Island on 11 May 1998.

Background

3. The Marine Department accepted a tender by the Third Party in October 1997 for the Third Party to manufacture nine Mardep Type-B buoys and towers, 30 marticulture drums as well as other miscellaneous components. In turn, the Third Party sub-contracted with Guangzhou Hangtung Shipbuilding and Shipping Co. Ltd ("Hangtung") to manufacture the same. In the course of the manufacture and production, the Marine Department sent inspectors to check and inspect the quality and progress of the products. Such inspections were accompanied by representatives of the Third Party as well as those of Hangtung and took place at the shipyard of Hangtung.

4. A total of seven inspections were carried out, the last one being on 9 February 1998. The goods under the contract were delivered and received by the Marine Department on 20 February 1998 and payment was made to and received by the Third Party by 6 March 1998.

5. When the accident happened on 11 May 1998 involving buoy M099, that was the last of that batch of nine Mardep Type-B buoys being fitted with a battery before its deployment for use in Hong Kong waters. All the other eight had previous to the date of the accident been fitted with batteries and had been deployed for use at sea.

6. The accident occurred when a pulley support or U-bar, as it was commonly referred to throughout the trial, came off the buoy tower of buoy M099 knocking the deceased off the top of that buoy where he was working causing him to fall onto the ground below where he knocked his head against the angled iron leg of another tower lying on the ground thereby fracturing his skull and from which he died some two hours later the same day.

7. At the time of the accident, the deceased together with other workers were in the process of lifting a battery weighing about 150 kg. from the ground up to the body of the buoy M099 to be installed into the battery compartment of the buoy in order for the buoy to be ready for deployment at sea. A pulley attached to the U-bar was used for the process of lifting the battery up to the top body of the buoy where the battery compartment was situated. Workers on the ground were pulling on the rope attached to the pulley. The other end of the rope was attached to the battery which was being lifted up the body of the buoy. When the U-bar became detached from the tower plate, the U-bar, pulley, rope and battery all fell to the ground the force of which knocked the deceased off the top of the buoy.

8. The main action between the plaintiff and the defendant has already been disposed of. Liability for the accident was admitted by the defendant and I made an assessment of the damages in the matter in the total amount of $2,257,007 on 9 October 2002.

The Third Party Claim

9. The defendant brings this third party claim against the Third Party as the supplier of buoy M099 being the subject matter of the accident to the plaintiff.

10. The cause of action alleged by the defendant are breach of contract and negligence.

11. In so far as breach of contract is alleged, the defendant's pleaded case is that the third party was in breach of its contract to supply buoy M099 to the defendant as follows :

(a) that the U-bar was only 10 mm in diameter and not 16 mm as specified in the contract; (however in the Reply to the Defence of the Third Party, it was pleaded that there was an oral agreement with the manufacturers of the buoy, being the agent of the Third Party, to change the dimension and material of the U-bar from 16 mm mild steel to 12 mm stainless steel);

(b) That the U-bar was secured to the underside of the tower plate by welding and not by bolts and nuts as specified in the contract; and

(c) that the Third Party knew that the U-bar was used as a pulley support.

12. In so far as negligence is relied on, the pleaded case of the defendant was that the U-bar was inadequately or improperly attached to the underside of the tower plate by the welding process.

13. The defence raised by the Third Party was that there was no breach of contract by the Third Party and that all nine buoys were manufactured in accordance with the contract specifications supplied. Negligence is also denied in that the defendant either knew or ought, by its inspection, to have known that the U-bars were welded on to the underside of the tower plate and raised no objection thereto.

14. Moreover, the Third Party has put the defendant to strict proof that the tower from which the U-bar fell off in the accident to the plaintiff was a tower manufactured and supplied by the Third Party or its agent, Hangtung.

15. From the pleadings in this case, it can be seen that there are five factual issues in dispute between the parties which can be summarised as follows :

(a) was the contractual specifications for the U-bar changed or altered by oral agreement between the inspectors and Hangtung;

(b) was the welding of the U-bar to the underside of the tower plate a matter that was either known to or accepted by the inspectors and/or the Marine Department;

(c) whether the tower, the subject matter of the accident, was manufactured and supplied by the Third Party and/or Hangtung;

(d) the cause of the accident which led to the death of the plaintiff; and

(e) whether the U-bar was adequately or properly welded to the tower of buoy M099.

I shall deal with each of these disputed issues in turn.

The Specification of the U-bar

16. It is not disputed that the contractual drawing and specification of the U-bar supplied to the Third Party (by the Marine Department) and who in turn supplied them to Hangtung showed that the U-bar should be of 16 mm mild steel.

17. However, it was the evidence of Chau To Yiu (DW4) and Tse Kwok On (DW5), both of them inspectors sent by the Marine Department to the Hangtung shipyard to inspect the buoys being manufactured, that on the last but one inspection held on 22 January 1998, they had suggested to Hangtung initially to change the material of the U-bars for all nine buoys from mild steel to stainless steel. However, when the reply came back from the Hangtung people that after checking, Hangtung only had 12 mm stainless steel in stock for the U-bar, both DW4 and DW5, after some discussion between themselves, decided to and orally agreed with Guan Jin Fu of Hangtung to have the U-bar changed to 12 mm stainless steel.

18. It was also clear from the cross-examination of DW4 and DW5 that after the inspection on 22 January 1998, they had never reported such change to the dimension and material of the U-bar to their superior or for that matter anyone else in the Marine Department nor had they sought approval from anyone for their actions agreeing to such changes with the Hangtung people. That remained the position right up to the time of the accident.

19. That evidence from DW4 and DW5 was strongly challenged by the Third Party. The evidence from the Third Party in this respect came from Huang Chiu, an assistant engineer involved in the manufacture of these nine buoys under the supervision of Weng Ze Jin. His evidence was quite simply that all the U-bars of the nine Mardep Type-B buoys were manufactured and produced in accordance with the specifications as per the contract drawings and there had been no change to either the dimensions or the material of the U-bars. If there had been he would have known of them since he had been actively involved in their production.

20. The Third Party also relies on the evidence given by Guan Jin Fu of Hangtung (TPW1) that he had never entered into any discussion with DW4 or DW5 relating to the U-bar and that his limited role in the manufacture and production of these buoys was that he was consulted due to a difference of opinion between the inspectors and Huang Chiu relating to the studs of the manhole cover of the buoys. He settled that dispute by giving instructions for the studs to be replaced by stainless steel ones. Other than that he had no further dealings in this project relating to the manufacture and production of the buoys.

21. In his final submission, Mr Ramanathan who appeared for the Third Party levelled much criticism as to the evidence given by DW4 and DW5 in this respect. Those criticism can be summarised as follows :

(a) neither DW4 nor DW5 attempted to seek approval from their superiors when they returned to Hong Kong after the inspection of 22 January when they orally agreed to the changes in specifications of the U-bar;

(b) the changes to the specifications of the U-bar were not contained in the outstanding item lists given to Hangtung;

(c) neither DW4 nor DW5 told the Shipping Safety Officer Ho Wai Sang of such changes in specifications to the U-bar even after the accident when they knew that Ho was instructed by the Director of Marine to investigate into this accident. This resulted in the report from Ho containing the wrong information since Ho was under the impression that the U-bar ought to have been as per the contract drawings and specification;

(d) even when DW5 was asked for a report in April 2001as to the inspection relating to the tower and U-bar, his report of 5 May 2001 only stated the change in material (from mild steel to stainless steel) of the U-bar with no mention of the change from 16 mm to 12 mm. When cross-examined on this his explanation was simply that it was not asked of him;

(e) such concealment of the changes to the specification to the U-bar even permeated to the Third Party Notice issued in January 2001 wherein the drafter of the Third Party Notice was under the impression that the U-bar should have been of 16 mm diameter; and

(f) it was only in the Reply to the Defence of the Third Party and in the witness statements of DW4 and DW5 was it made apparent that DW4 and DW5 had orally agreed with Hangtung to change the specifications of the U-bar to 12 mm stainless steel.

22. I accept all the criticism levelled at DW4 and DW5 by counsel for the Third Party. However in my view, those criticism show that there was a very serious attempt by DW4 and DW5 to cover up the fact that they had made such an oral agreement with Hangtung to change the dimension and specification for the U-bar.

23. I find from that evidence that DW4 and DW5 well knew that they were the inspectors in relation (inter alia) to these nine Mardep Type-B buoys and that they were not given any authority to make or agree to any changes to the dimensions or specifications as contained in the contract drawings. It may well have been that they had meant well when they asked for the U-bar to be changed to stainless steel intending that it would not be as susceptible to rusting when deployed on the ocean sea water. They also probably thought no one else would be the wiser to such changes effected by them since they were the inspectors from whom the approval for the buoys were to come. That would probably have been the case had it not been for the accident to the deceased and the subsequent investigation ordered into the matter.

24. It must also be appreciated that as much as their attempt to cover up this change in dimension and specification of the U-bar made them out to be unreliable witnesses, at the same time, there can be no good reason for DW4 and DW5 to ultimately come out and practically admit in their witness statement to doing something for which they had no authority and for which they did not seek approval subsequently unless it was true and they were all along trying to hide that from everyone else including their superiors in the Marine Department.

25. This attempt at covering up such unauthorised doings of theirs also explain why these changes to the U-bars were not recorded down on the outstanding item lists given to Hangtung on 22 January 1998. It also explain the actions of DW4 and DW5 after the accident and while the investigation was being carried out.

26. Ultimately when they could cover it up no more without a satisfactory explanation, they had to come out into the open admitting what they had done in making this oral agreement for such changes to the U-bar but without authority or approval from their superiors.

27. In finding that there was a cover up by DW4 and DW5, I have not overlooked the inspection report prepared by DW4, nor the evidence of DW4's superior, Mok Fuk Kam (DW7). The evidence however shows that the inspection report was kept by DW4 at all material times until it was asked for by DW7 after the accident occurred. In all the circumstances I am unable to rule out that the entry in the inspection report relating to the change of specification for the U-bar was only made by DW4 after the accident took place when he knew that it was no longer possible to hide such change of specification from his superior any longer.

28. In so far as DW7's evidence is concerned, I am not particularly impressed with his evidence, especially his inability to make known such change in specification to the U-bar (after he became aware of it) to those conducting the internal investigation into this accident. Again that points to the direction that DW7 may well have assisted in such cover up after he became aware of the change of specification to the U-bar initiated by DW4 and DW5.

29. In accepting DW4 and DW5's evidence as to the change of specification to the U-bar I have also taken into account two other matters in arriving at that finding.

30. Firstly, it was not disputed by the Third Party that the U-bar which fell off from the tower, the subject matter of the accident, was made of stainless steel. Indeed that concession came from counsel for the Third Party during the hearing when defence counsel offered to call evidence as to the U-bar being made of stainless steel.

31. Secondly, in the initial pleading (i.e. before leave was given to Mr Ramanathan on the first day of trial to amend the Defence of the Third Party) it had all along been the pleaded case of the Third Party that the dimensions of the U-bar in question had been changed from 16 mm to 12 mm as a result of instructions or representation from the defendant. No explanation at all was forthcoming from Lam Chiu Bun (TPW3) when he was asked in cross-examination as to how that came to be pleaded initially.

32. On this disputed issue therefore, I accept the evidence of DW4 and DW5 and I reject the evidence of Huang Chiu. I find as a fact that there was an oral agreement for the U-bars to be changed from 16 mm as per the contract drawings to 12 mm stainless steel. I also find that the oral agreement for this change was effected between DW4 and DW5 on behalf of the defendant and Guan Jin Fu on behalf of Hangtung as the agent for the Third Party.

33. I also reject the evidence of Guan Jin Fu relating to this issue. I find that he played a much greater role in the manufacture and production of the buoys than he cared to admit. This can readily be seen by the fact that he had signed his name on one of the outstanding item list dated 9 February 1998 but he was unable to explain why his signature would appear on that list if he was right in saying that he was only consulted as to the studs in relation to the manhole covers.

Was the welding of the U-bar known to and accepted by the Inspectors

34. The contract drawing and specification for the attachment of the U-bar to the underside of the tower plate shows that it should be attached by bolts and nuts.

35. The evidence on this issue on behalf of the defendant again came from DW4 and DW5, the two inspectors. Their evidence was that on the two last inspections (i.e. 22 January and 9 February 1998) they failed to notice that the U-bar was not attached to the tower plate by bolts and nuts despite their inspection of the U-bar. Had they been aware of that they would have requested Hangtung to change it back to conforming with the contract drawing by using bolts and nuts.

36. There was no direct evidence from the Third Party that there was any discussion between the inspectors and the Hangtung people as to how the U-bar should be attached. The only evidence adduced by the Third Party came from Huang Chiu whose evidence was that he had discussed with Weng Ze Jin, his supervisor on the project, that the bending width of the U-bar was not sufficient for bolts and nuts to be used to attach the U-bar to the tower plate. Therefore, he was told by Weng Ze Jin to use welding as the form of attachment. He had expected Weng Ze Jin to have informed the customer of this as it was not his duty to speak to the customer on such matters.

37. It is interesting to note that after the accident, when the other eight buoys from this batch which had already been deployed, was recalled to have the U-bars refitted by bolts and nuts, the bending width of the refitted U-bars were somewhat larger than the contract drawings and specifications. This, therefore, tends to support the evidence given by Huang Chiu as to why the U-bars for this batch of buoys were welded on instead of using bolts and nuts.

38. Unfortunately, Weng Ze Jin was not called as a witness because he was no longer employed in Hangtung at the time of trial.

39. Be that as it may, I find the evidence given by DW4 and DW5 wholly unsatisfactory on this aspect, especially their answers in cross-examination when asked in connection with this part of their evidence. They had inspected the U-bar on the last two inspections. On the penultimate inspection (i.e. 22 January 1998) they requested for the U-bar to be changed from 16 mm mild steel to 12 mm stainless steel. Even if they had not seen that the U-bar was welded on that penultimate inspection, there was no reason for them not to make a thorough inspection on the last occasions, if only to see that their requested changes had been effected. Yet both of them answered in cross-examination that they only took a cursory look, opting instead to rely on Guan Jin Fu's assurance that the changes to the U-bar had been made.

40. Initially, they had both tried to explain that because the tower plate had been painted on the last two inspections therefore they were unable to see that the U-bar had been welded on. This line was quickly abandoned by them when the Third Party produced a replica in court of the U-bar being affixed to the underside of the tower plate by bolts and nuts and even when that was painted over, the two nuts which protruded from the underside of the tower plate holding the two ends of the U-bar in place were easily and clearly visible.

41. There was also evidence in this case that other buoys made by other manufacturers and used by the Marine Department but unrelated to these nine Mardep Type-B buoys, the U-bars were in fact welded on to the underside of the buoy tower.

42. From all the evidence in this case, I cannot accept the evidence of DW4 and DW5 that they did not know that the U-bar was welded on to the underside of the tower plate. They either knew or ought to have known that to be the case from their inspection of the buoys and tower before the Marine Department took delivery of these nine buoys. Their failure to object to the welding or to request that to be changed back to nuts and bolts sufficiently precludes the defendant from complaining of the method employed to affix the U-bars to the tower plates.

Whether the tower in question was supplied by the Third Party

43. On this issue, the Third Party has put the defendant to strict proof that the tower in question, notwithstanding that it was mounted on buoy M099 at the time of the accident, was in fact a tower manufactured by Hangtung.

44. The Third Party relies on a number of matters which are shown on the photographs in relation to the tower, the subject matter of the accident, to say that the tower was not one which was produced by Hangtung. They rely also on the evidence of Huang Chiu. Those details of the tower in question shown on the photographs and relied upon by the Third Party are as follows :

(a) the position of the U-bar before its collapse is shown to face the opening of the tower and not towards the ladder;

(b) the last rung of the ladder of the tower in question has been cut away;

(c) the cable exit hole of the tower in question appear to have rough edges suggesting that it may have been cut with an acetylene torch;

(d) the fallen U-bar was only of about 10 mm diameter;

(e) There was only one manguard hoop on the tower in question and not two;

(f) some of the day mark lugs on the tower in question appear to be bent; and

(g) uneven marks appearing on the middle part of the side at the top part of the tower in question.

45. It should be said at once that items (e), (f) and (g) above, although initially relied on by the Third Party at the hearing, were no longer relied on in the final submission of the Third Party's counsel. It may well be because items (f) and (g) were conceded by Huang Chiu in his cross-examination as no longer holding good and that in so far as item (e) was concerned, one of the photographs produced in evidence did show that one manguard hoop which had been cut was lying on the ground immediately beside buoy M099 shortly after the accident indicating that it may well have been the second manguard hoop cut off from the tower in question, possibly at some time before the accident.

46. The evidence of Huang Chiu relied on by the Third Party relating to this issue was that firstly, the "U" of the U-bar of the towers made by Hangtung all faced the ladder such that when viewed from the open side of the tower, the two arms of the U-bar would be seen in one line. The reason for so constructing the U-bar according to Huang Chiu was that the U-bar would be able to better withstand the force exerted on it from the rope in lifting the battery.

47. I am not convinced by that explanation of Huang Chiu for two reasons. The force that would be exerted on the U-bar by the rope lifting the battery would mainly be a downward force, albeit at a slight angle, but not a sideways pull as seem to be suggested by Huang Chiu when he was questioned on this aspect. Secondly, even Huang Chiu conceded that the normal practice of lifting a battery using the U-bar would be for a pulley to be hooked on to the U-bar. A swivel between the hook and the pulley would allow for the pulley to be able to swivel around in any direction. In those circumstances, it becomes immaterial which side of the tower the U-bar would face.

48. Even when looking at all the photographs (including the blown up photographs) showing the towers when they were still in the shipyard of Hangtung under various stages of production, it is impossible to tell from those photographs that all the U-bars of all nine towers produced by Hangtung faced in the same direction as claimed by Huang Chiu. There was certainly no such specification contained in the contract drawings and specifications.

49. I am therefore not disposed to making a finding that the U-bar of all nine towers produced by Hangtung faced the side of the ladder.

50. As for the cable exit hole, Huang Chiu gave evidence that the cable exit hole was made by a drilling machine by Hangtung and as such the hole would be smoothly drilled around the edges. This evidence was not challenged by the defendant. The edges of the cable exit hole of the tower in question was shown by photographs to have very rough edges. This was one of the basis upon which the Third Party says that the tower was not made by Hangtung.

51. Looking at all the evidence in this case, my view is that the rough edges on the cable exit hole is not and cannot be decisive of this issue. This is particularly so since I do accept and will be making the finding that there were additional works done to these towers after they were delivered to the Marine Department at Stonecutter's Island, in particular the cutting away of the last rung of the ladder and also the cutting off of one of the two manguard hoops originally on all nine towers when manufactured by Hangtung.

52. As for the last rung of the ladder which had been cut, there is conflicting evidence adduced by the defendant. While some of the witnesses seem to suggest that the last rung of the ladder would obstruct them in opening or closing the battery compartment, others say that they have never been so obstructed. Still another witness seem to suggest in his witness statement that the last rung of the ladder was cut to facilitate the tower from being fitted to the buoy.

53. Again from the last rung of the ladder being cut, there is nothing decisive to show that the tower was not manufactured by Hangtung.

54. As already indicated above, I do however find that there was additional works done to these towers after they were delivered to the Marine Department. This is clearly borne out by the photograph showing that one of the manguard hoops was cut and lying on the ground beside buoy M099. It is not necessary for me to go into the reasons why such additional works was done to brand new towers. It is sufficient for present purposes that I find that there were such additional works. These additional works very likely included the cutting of the last rung of the ladder. It may well have also affected the smooth edges of the cable exit hole since in installing the beacon light and battery, cables had to be passed through the cable exit hole.

55. What in my view is more decisive in so far as this issue is concerned is my earlier finding that there was a request by the inspectors for Hangtung to change the material and dimensions of the U-bar from 16 mm mild steel to 12 mm stainless steel, particularly the change to stainless steel. The U-bar which had fallen from the tower in question was later found to be about 10 mm. Moreover, it was not disputed by the Third Party that the material of the fallen U-bar which was produced as an exhibit at the trial was of stainless steel. These two matters, the size and the material of the U-bar, in my view, outweighs all the other matters relied on by the Third Party as evidence that the tower in question with that U-bar was manufactured by Hangtung as the agent of the Third Party.

56. Still with this issue I have not overlooked the evidence of Tam Yan Che (DW6). In so far as his evidence attempt to suggest that this batch of nine buoys and towers were separately delivered and assembled by the Third Party after delivery, I have no hesitation in rejecting all of that evidence. His evidence is wholly unreliable if only for the fact that he had changed his evidence by a complete turnaround overnight when he was in the witness box. That evidence was nothing less than concocted by him possible based on a misunderstanding of one sentence of Huang Chiu's witness statement but which Huang Chiu explained away in his evidence in the witness box relating to how the buoy and towers were separately loaded onto the barge for the purpose of delivery to Hong Kong, and not that they were separately delivered to Hong Kong.

57. For all the reasons given above relating to this issue, I find as a fact that the tower and the U-bar involved in the accident to the deceased was one of the nine towers manufactured by Hangtung as sub-contracted to it by the Third Party.

Whether adequate or proper welding done to U-bar of tower in question

58. The fallen U-bar from the accident which was produced in evidence showed that the U-bar itself was intact but the part of the U-bar at its two ends which had been welded to the underside of the tower plate had broken off from the tower plate.

59. In the accident report compiled by Mr Ho Wai Kit, he stated, after examining the U-bar and the tower plate from which it had come off, that the welding was so inadequately done that it could not stand the weight of the battery that was being lifted up by the pulley. Those findings contained in the report of Mr Ho was accepted and acknowledged by the Factory Inspector in his Fatal Accident Report on the deceased.

60. However, no expert evidence was called in the trial and Mr Ramanathan objected to the contents of the accident report of Mr Ho relating to his findings on the inadequate welding done to the U-bar as being expert evidence.

61. There is, however, other evidence before me from which I can and do draw the inference that the U-bar in question was inadequately welded to the tower plate.

62. There is evidence before me that the other eight Mardep Type B buoys from the same batch as M099 had already been deployed for use at sea when this accident happened. There is also evidence that before such newly constructed buoys can be deployed for use at sea, the battery will have to be installed in the battery compartment. There is further evidence that before this accident happened, the same process as was used in relation to M099 was employed to lift and install batteries into the battery compartment of buoys, namely by the use of a pulley hooked onto the U-bar attached and with workers pulling up the battery by the use of such pulley.

63. In the absence of any evidence or any suggestion even that anything untoward had happened to any of the other eight buoys from the same batch as M099 when the batteries were installed in them before they were deployed in Hong Kong waters, I am able to draw the inference by comparison with the other eight buoys that the U-bar in the case of buoy M099 had not been inadequately or improperly welded onto the tower plate. In other words, had the U-bar attached to the tower of buoy M099 been properly or adequately welded it would not or should not have fallen off when lifting the battery but would have been sufficiently strong enough to have allowed the battery to be lifted up to the battery compartment as did the other eight U-bars of the other eight buoys in that batch.

64. For this reason, I do find that the U-bar was not adequately or properly welded to the tower plate in the case of buoy M099.

65. It should also be noted at once that my earlier finding that the inspectors either knew or should have known that the U-bar was affixed by welding to the tower plate does not affect this issue. While the method of affixing the U-bar can readily be seen and appreciated by the naked eye, there is no evidence before me that inadequate or improper welding can be seen by the naked eye at the time of inspection.

66. Therefore, my finding that the inspectors knew or ought to have known that the U-bars were welded to the tower plate does not mean that they knew or ought to have known of the inadequacy of such welding in respect of the U-bar in question.

Cause of the Accident/Death

67. It was submitted by the Third Party that the cause of the accident or the death of the deceased was because of the unsafe method adopted by the Marine Department in lifting the battery up buoy M099. That unsafe method includes the failure to use hoisting crane, the failure to use continuous anchor line and anchorage point for the lifeline used by the deceased and the failure to use an independent and safe working platform, all of which were recommended by the Factory Inspector in his report.

68. It is submitted that had these safe practices been adopted then, even if the U-bar had snapped as it did, the deceased would not have fallen to his death. On this basis it is submitted by the Third Party that the effective cause of the deceased's death was due solely to the negligence of the defendant who alone should be liable for this accident.

69. The short answer to that submission is that had the U-bar not been inadequately or improperly affixed, then the same accident would not have happened either.

70. In all the circumstances of this case, I have come to the conclusion that the snapping of the U-bar from the tower plate due to its inadequate or improper welding as well as the failure by the Marine Department to adopt a safe method of work were both causes of the accident and the death of the deceased.

Defendant's Claim for Indemnity or Contribution

71. The defendant's claim against the Third Party as stated in the Third Party Notice is to be indemnified against the plaintiff's claim and the costs of the action, or for a contribution to the plaintiff's claim.

72. In making this claim, the defendant seeks to rely upon Condition 11 of the General Conditions of Contract contained in Part 2 of the Tender for the Supply of Goods Contract No.C0762/97 from the Third Party. Condition 11 reads as follows :

"Liability and Indemnities

(a) Government and its employees or agents shall not be under any liability whatsoever for or in respect of:

(i) any loss of or damage to any of the Contractor's property or that of its employees or agents however caused (whether by any Negligence of the Government or any of its employees or agents or otherwise).

(ii) any injury to or death of any of the Contractor's employees or agents save and except any such injury or death caused by the Negligence of the Government or any of its employees or agents.

(b) The Contractor shall indemnify the Government and its employees or agents against any claim or demand made against or liability incurred including all costs, charges or expenses whatsoever) by the Government or any of its employees or agents in respect of:

(i) any loss, damage, injury or death referred to in sub-clause (a) of this clause (save and except injury or death caused by the Negligence of Government or any of its employees or agents).

(ii) any loss or damage sustained by or any injury to or death of any third party in consequence of any Negligence of the Contractor or any of its employees or agents.

(c) In the event of any of the Contractor's employees or agents suffering any injury or death in the course of or arising out of this Contract and whether there be a claim for compensation or not, the Contractor shall within 7 clear working days give notice in writing of such injury or death to the Government Representative.

(d) For the purposes of this clause 'Negligence' shall have the same meaning as that assigned to it in Section 2(1) of the Control of Exemption Clauses Ordinance."

73. It was submitted by counsel for the defendant that the use of the words "shall indemnify the Government" in paragraph (b) coupled with the words "in consequence of any Negligence of the Contractor" in sub-paragraph (ii) of paragraph (b) clearly indicates that it was the intention of the parties that the Third Party (being the Contractor) would fully indemnify the Government (the defendant) once it has been shown that the Contractor was liable for any negligence irrespective of whether the defendant was itself also negligent.

74. On the other hand, counsel for the Third Party submits that Condition 11 does not alter the common law position and that even if the Third Party was found to be negligent, it is for the court to assess the amount of the contribution taking into account the negligence of the defendant as conceded by the defendant towards the deceased in the accident.

75. I accept and agree with the submission of the Third Party in this respect. Looking at the entirety of Condition 11, I do not find any provision there which would effectively restrict the taking into account of negligence on the part of the Government when determining the indemnity by the Contractor for its negligence. Moreover, I am not prepared to draw that conclusion as invited by defence counsel merely from the words which counsel for the defendant invited me to focus on.

76. In all the circumstances of this case, I have found that it was due to the negligence of both the defendant and of the Third Party which caused this accident and the death to the deceased. There is very little to differentiate the proportion of their respective liability in the accident. I have therefore come to the conclusion that the defendant and the Third Party should equally be to blame for the accident.

77. Accordingly there will be judgment to the defendant against the Third Party on the Third Party claim for the Third Party to indemnify the defendant for one half of the damages to the plaintiff as well as one half of the costs of the plaintiff's claim.

78. In so far as the costs of the Third Party proceedings are concerned, the Third Party proceedings was a contested affair in itself between the defendant and the Third Party. There will be a costs order nisi that the Third Party pays to the defendant the costs of the Third Party's proceedings to be taxed if not agreed.