CHAN WAI FAI v. SUN LUEN SCAFFOLDING (a firm)

CACV 2269/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2269 OF 2001

(ON APPEAL FROM HCPI NO. 356 OF 2000)

____________________

____________________

____________________

J U D G M E N T

____________________

Hon Rogers VP:

1. This is an appeal from a judgment of Deputy High Court Judge Gill given on 12 June 2001. At the hearing, this court said that it would give its decision in writing which we now do.

Background

2. The plaintiff was a scaffolder. He had been a master scaffolder for ten years. As recorded by the judge, he had become an habitual employee of the defendant, Sun Luen Scaffolding. That was the trading name of Mr Law Wan Ching.

3. On 1 April 1997, the plaintiff went with Mr Law to Profit Building in Kwai Chung. The defendant was to erect scaffolding on the roof of the building. As is common in many buildings, the air conditioning and associated machinery was located on the roof. As described by the judge, the machinery was on a raised platform about three feet above the roof of the building. It was housed in metal cabinets which were themselves surrounded by steel mesh fencing which had a gate for access. There was corrugated asbestos roofing located above the machinery. The asbestos sheeting, or shingles as they were referred to at the trial, were approximately six-foot by three-foot. The sheeting was fixed to metal cross beams. The height of the sheeting varied from about approximately 12 feet to 15 feet above the level of the roof. Mr Law had been told that the asbestos shingles had fallen into disrepair and had to be replaced. The scaffolding, which the defendant was to erect, was to form a platform approximately 3 or 4 feet below the asbestos roof so that it could be replaced. Mr Law took along the plaintiff and another master scaffolder together with an apprentice Mr Li Luk Wong and another unskilled worker. After showing them the site Mr Law left the premises to go to another job.

4. The scaffolding work apparently proceeded quite swiftly. Approximately three-fifths of the scaffolding had been erected by the middle of the afternoon of 1 April. There is no dispute that, at that stage, the plaintiff mounted the asbestos shingles and fell through it. The plaintiff's explanation was that he needed to look above the asbestos sheeting so that he could estimate whether there was enough bamboo to complete the whole of the scaffolding. He said that, in accordance with the way he had been taught to stand on asbestos sheeting, he stood on the nails which were in the asbestos shingles because there would be iron bars beneath the nails which could support his weight. It is significant that Mr Law, who was also a master scaffolder confirmed that that was an appropriate way to stand on asbestos roof sheeting. It is not clear precisely what happened when the plaintiff stepped on the asbestos. The photographs, which show the hole made when the plaintiff fell through the asbestos, show an iron bar which, at any rate from the photographs, does not appear to have been damaged. It was not suggested that the plaintiff either stepped on to some part of the asbestos remote from the "nails" or "bolts", nor that his foot slipped.

5. The plaintiff, put his claim against the defendant in negligence and in breach of statutory duty, namely, regulation 38A(1) and (2) of the Construction Site (Safety) Regulations, Cap. 59. In essence, it is the plaintiff's claim that the defendant failed to provide a safe system of work and a safe place to work and failed to warn the plaintiff of the dangerous condition of the asbestos.

The judgment below

6. The judge reviewed the evidence. He came to the conclusion that he could not be satisfied that Mr Law had warned the plaintiff and his fellow workers not to climb on to the asbestos. He proceeded on the basis that Mr Law had left it to the plaintiff and his fellow workers to use their skill, experience and common sense as to how to build the scaffolding. The judge expressed scepticism at the plaintiff's assertion that the asbestos did not look as though it was in disrepair because the plaintiff was aware that it was to be demolished. He held that the plaintiff knew or ought to have known that the asbestos was damaged, unstable and unsafe because of its disrepair. One aspect of this finding which I consider is troubling is that the judge said:

"I am satisfied that it was apparent to all that asbestos was worn and unstable. Even the apprentice had worked that out."

A perusal of the witness statement and transcript does not show that that was the apprentice's opinion.

7. Whilst the plaintiff did not accept that he saw that the asbestos was unsafe he was adamant that he had stood on the nails and that he had told the inspector, who had reported following the accident, that he had done so. The judge refused the invitation to inspect the site, despite the fact that it would appear from the transcript, that quite late in the proceedings he was still not clear as to the layout of the relevant area.

8. The judge came to the conclusion that it had been unnecessary for the plaintiff to have climbed on to the asbestos. In paragraph 32 of the judgment he said:

"I am not satisfied it was a necessary function for the plaintiff to climb on to the asbestos to check the surface area of that part still to be scaffolded. It was his job to build the scaffolding as instructed. More than half had been constructed, apparently in accordance with the instructions, without the need for a bird's eye inspection. The remainder was simply more of the same."

9. In paragraph 37, the judge said:

"I am not satisfied that it was in the reasonable contemplation of the defendant that his scaffolders were put at risk when he left them to build the scaffolding platform as instructed; in particular, that one or other of them might have had to get up on to the asbestos roofing. As I have found, the plaintiff was motivated to do so to see how much more had to be done. He was well-intentioned. But there was no need."

10. The first point which is taken by Mr Wong, on behalf of the plaintiff, is that the relevant question which should be posed forensically is not whether it was necessary for the plaintiff to mount the asbestos but whether it was foreseeable that he should do so. This might, at first, seem a pedantic legal point. However, it demonstrates the importance of ascertaining precisely why the plaintiff did mount the asbestos roofing. His view is as he had said at page 62 of the transcript was that he had to go up. His explanation was at, for example pages 64 and 65, that he was estimating the length and width of the asbestos shingles in order to determine how much bamboo he needed so that he could make the most out of the bamboo which he had left and utilize it in order to complete the task. At page 97, he referred also to the fact that the asbestos shingles were different size rectangles, they were not squares, and they were at different heights. At page 67, he explained that his view of the relevant area was blocked by the machinery. When questioned about whether he could walk down the passageways at the side of the machinery, he explained that the machinery was not only large but had high voltage signs and since the scaffolders were not electricians they did not dare go in the vicinity where there were clear warning signs of danger from electricity.

11. The apprentice was asked whether he knew why the plaintiff had climbed up to the asbestos shingles and he said, at page 79 of the transcript, that it was to take a look at something in relation to this scaffolding. That answer, and indeed the plaintiff's own evidence in relation to the reason why he mounted the asbestos, is reflected in the judge's holding that the plaintiff was motivated to see how much more had to be done and he was well-intentioned. It might be mentioned that the other master scaffolder working with the plaintiff at the time was not called to give evidence. In those circumstances, the holding was clearly that the plaintiff was engaged in carrying out his work. He mounted the asbestos in a way in which he had been taught to do and according to the defendant's own evidence was a recognised way of mounting asbestos. Although the plaintiff did not need to mount the asbestos sheeting, and could have just carried on, clearly the plaintiff was doing what he was engaged to do - namely put up the scaffolding and his explanation for getting up to take a look at what was left to be done was not rejected by the judge.

12. In those circumstances, it seems to me that it was foreseeable that the plaintiff might wish to mount the asbestos roofing and if it had been unsafe to do so even in the recognised way of doing so he should have been warned. It seems to me that the plaintiff does have a good cause of action both in negligence in failing to be provided with a safe system of work and under regulation 38A(1).

Contributory negligence

13. The question then arises as to whether the plaintiff was contributorily negligent. As has been already referred to above, the judge held that the plaintiff should have been aware of the defective nature of the asbestos roofing. But as already pointed out, it would seem that the judge made that holding in part because of a misapprehension of the apprentice's evidence. Having given full consideration to the transcript of the hearing, I regret that I do not consider there is sufficient material to enable this court to come to a proper finding as to whether and, if so, to what extent, the plaintiff contributed to his own accident. Having regard to the fact that the plaintiff's evidence was that he mounted the asbestos sheeting in an approved manner, if contributory negligence is found it may not be high. With some regret, therefore, I consider that this matter should be remitted to the Court of First Instance to determine the extent of the contributory negligence, if any, by the plaintiff.

14. I would therefore allow the plaintiff's appeal subject to the matter being remitted to the Court of First Instance for consideration of the matter of contributory negligence. The costs order in the court below should be set aside and I would make an order nisi of cost in favour of the plaintiff.

Hon Le Pichon JA:

15. I agree.

Hon Burrell J:

16. I agree.

Hon Rogers VP:

17. There will therefore be an order in the term set out in paragraph 14 above.