CHUNG PUN v. HSIN CHONG CONSTRUCTION COMPANY LIMITED

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Plaintiff was injured by reason of the negligence of a servant of the 3rd Defendant, for which the 3rd Defendant was vicariously liable. Judgment in default was entered against the 3rd Defendant.

2. The 3rd Defendant was the owner of the excavator which caused the injury to the Plaintiff. It was used on a construction site upon which the 1st Defendant was the principal contractor, and it was engaged in work which had been sub-contracted to the 2nd Defendant. The 2nd Defendant had hired the excavator from the 3rd Defendant, who also provided the drivers. The primary job was apparently the removal of rubbish from the site, but for this purpose it was necessary to move some concrete pipes. The pipes were about 1’ in diameter and 3’3" in length and they were being moved one by one with the aid of the excavator. The pipes were too large to be carried inside the "backhoe" or bucket and accordingly they were slung underneath the backhoe by means of a wire strop which was passed through the pipe and the ends of which were hung on the backhoe teeth. After some ten pipes had been moved in this way by the regular driver, his assistant (a man 18 years of age who had been operating such machines for approximately six months) took over. While the Plaintiff was passing a wire through one of the pipes he was struck on the shoulder by the backhoe and received injuries to his shoulder, arm and hand. He sued the 1st Defendant as the principal contractor and the 2nd Defendant as the sub-contractor directly responsible for carrying out the work. The judge held that they were not liable, and the Plaintiff appeals.

3. The Plaintiff’s difficulty in this litigation has been the paucity of the evidence relating to the accident. The Statement of Claim alleged that the 2nd Defendant had a duty to maintain a safe and proper system of work, and I will accept that he also alleged a breach of that duty, although the allegation is not as clear as it might have been. However, no evidence at all was led either as to how the accident happened or what the system of working was. The driver of the excavator was not called. Although Mr. Tang, for the Appellant, disclaimed having contended that the mere fact that the accident happened was evidence that the system was unsafe, that was in truth the substance of one stage of his argument. He said that any system which required a workman to be beneath the backhoe of an excavator was necessarily unsafe. Even if it were possible to accept a principle stated in such broad terms, we do not know that there was a system in operation which required the Plaintiff to be underneath the backhoe - or, indeed, that he ever was "underneath" the backhoe.

4. However, the first contention advanced on behalf of the Appellant was that any system which involved the use of an excavator as a lifting appliance was unsafe. It was never suggested that this excavator was in any way defective. A factory inspector gave evidence that an excavator was unsuitable for such use, but said that the reasons were : (a) "because this kind of machine not designed for primary raising, lowering or transporting objects whilst suspended" and (b) "because wire sling could easily come off the excavator". It is, perhaps, not surprising that the judge was unimpressed by either line of reasoning. On the other hand, there was evidence that excavators were commonly used for such a purpose, evidence which the judge believed. It is, of course, not to be assumed that every common practice is proper (Cavangh v Ulster Weaving Co. Itd. 1960 A. C. 145), but a court should be slow to condemn a practice `which has received wide-spread acceptance in an industry, provided always that it is not manifestly unsafe and has been accepted only because it is profitable. The judge found "the use of the excavator for pipe of this size to be acceptable". In the context by "acceptable" he clearly meant "safe". Mr. Tang argued that to use an excavator as a crane was manifestly unsafe, but I am quite unable to agree: in one respect it may be safer than a crane employing a hook attached to a block, for, by suspending the ends of the strop from teeth some distance apart, it may be possible to reduce the lateral swing of the load when lifted. (I disregard the sketch plan which suggests that some excavators may even have a special lifting hook as an integral part of the backhoe).

5. Objection is taken that a reason given by the judge for disbelieving the inspector’s evidence was unsound. The judge never said it was the only reason. The passage relied on reads:

"

He fairly conceded that the basis of his report was information furnished by the plaintiff and it appears from his evidence there was a very little of evidential value provided by any of the defendants."

The judgment must be read as a whole and the judge did not there say that the whole of the inspector’s evidence was founded upon information which was furnished by the Plaintiff. It is unreasonable to take the judge as meaning that he disbelieved the inspector, when he said it was unsafe to use an excavator as a lifting appliance, because that was based on information furnished by the Plaintiff. It was not so based, nor could the judge have imagined that it was: it was diametrically opposed to the Plaintiff’s evidence. The information supplied to the inspector by the Plaintiff was as to the size of the pipes being lifted, and that information was given in imperial units. The inspector saw fit to translate this measurement into foreign units and, whosever the fault, he concluded that the pipes were twice the diameter of those in fact being lifted. The inspector had been prepared to concede that it might be a common practice to lift "very small pipes" with an excavator. He did not say what he meant by "very small pipes" and the judge was apparently not convinced that pipes 1’ in diameter and 3’3" in length could not in the circumstances be described as "very small"; pipes which were small enough to be manhandled would not need to be lifted in the manner here in question. A judge is not bound to believe an expert’s evidence where that evidence is founded on bad reasoning and is contrary to what the judge believes to be common sense, nor is he bound to detail the grounds of his disbelief where those grounds are obvious.

6. I would dismiss the appeal against the 2nd Defendant.

7. The only claim eventually pursued against the 1st Defendant was founded upon breach of the statutory duty imposed by reg. 20(1) of the Construction Sites (Safety) Regulations, which required it (the admitted "principal contractor") to ensure that any lifting appliance used on its site was operated by a workman who was trained and competent to operate it or that any workman operating it when not so qualified was under a qualified workman’s supervision. Again there was a paucity of evidence as to what constituted "training" and "competence", as to the degree of training and competence the temporary driver had received or achieved and as to any supervision (or lack of it) being exercised by the regular driver at the time of the accident. Once more the argument was that the mere fact that the accident happened was some evidence that the temporary driver was not trained and competent. That cannot be right: it is an unfortunate fact of life that even a trained and competent operator can be negligent and cause an accident.

8. I would dismiss the appeal against the 1st Defendant also.

Silke, J. A. :

9. I agree.

Mayo, J.

10. I am in entire agreement.

7th October 1986