HKSAR v. CHUN FAI CONSTRUCTION CO LTD

HCMA161/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.161 OF 2005

(ON APPEAL FROM TMS 5729 OF 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of ‘failing to take reasonable steps to prevent a person from falling from a height of two metres or more, being the contractor responsible for a construction site’, contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (Cap 59).  It now appeals against the conviction.

The prosecution case

2. So far as it is relevant, the prosecution case as summarized by the magistrate in his Statement of Findings was as follows :

“2. PW1 was working on the construction site for which the defendant was the main contractor.  Whilst engaged in concreting work, he fell from the first floor level, about 5 metres to the ground……

……

5. The scene is shown in the photographs – photograph E of the prosecution’s photographs, Exhibit 2, or photograph 1 of the defence photos Exhibit D1.  The concreting was to the left of the picture, best shown in photograph 1 of D1.

6. The concrete had to be deposited into the gap that is shown on the left.  The problem was getting it in there, because it had to come from the right-hand side, i.e., the other side of the guard rails.  Given the position, there were two ways on the evidence, in which this could be done.  One was, as PW1 said, to use a concrete pump; and the other was to use a skip raised by a crane to lift the concrete.  That was the method that was employed.

7. But because of the size of the skip and the enclosed area where the concreting was to be done, the skip could not be brought inside  the working platform shown in those photographs.  Only the mouth of the  skip could get that far.  The body had to be outside.  So PW1, a concreter with some 20 years of experience, used a chute which he had himself made.  We can see it in photograph D14.  This chute, the side rails of which he said were about 8 inches high, was placed onto a wooden board running from the guard rails on the right of the photographs, at a slight incline down to the opening on the left.  Two skips, each half full, were used.

8. When the first of those skips was handled, PW1 stayed on the floor of the working platform.  He managed to open the skip and to move the concrete down the chute, but so far as the second skip was concerned, because of what he regarded as the difficulty or the slow moving nature of the concrete on the chute, and to get the concrete to move more quickly by shoveling it, he climbed up onto the wooden board.  He was engaged in shovelling it, or moving it with a shovel, when he fell.

9. I do not have a full explanation of the exact reasons for the fall.  It has been suggested that it was the weight of the man and the concrete, especially when he opened the skip more fully on this second occasion, which caused the board to break or to become destabilized in a way which led to him falling, through the opening above the guard rails but below the bamboo scaffolding: it is said to be about 4 feet or so by him, and 0.8 of a metre was said by the later inspection by the Labour Department.  Anyway, he fell through that gap and then down to the ground, for the five metres or so to which I have referred.”

3. The above is a transcription into the Statement of Findings of the magistrate’s oral reasons.  In what he called “additional matters”, the magistrate had, amongst other things, included into the former document an amended summation of PW1’s evidence insofar as it concerned the handling of the skip, particularly the first skip :

“17. In his evidence, PW1 described difficulties in opening the mouth of the skip, whilst standing on the working platform (gangway).  The release of the concrete from the skip was by use of a handle.  PW1 stated repeatedly he was not able to open from the working platform it because it was too heavy and he was not tall enough to do so.  The claim in submissions that he had said that the first skip was opened by him from the gangway was based on his answer to a composite question in cross-examination in which it was put that, for the first skip, ‘you stood on the gangway and moved it (the concrete); but it was too time-consuming, so you stood on the plank (for the second skip) to do it quickly and that caused the accident.’  PW1 agreed to that generalized proposition but in re-examination, he repeated his assertion that he could not open the skip from the gangway.  PW1 also described how the concrete skip could not be adequately controlled from the working platform and that it was therefore necessary to be ‘on top’ (i.e., standing on the board or plank) to do it properly.  And he said, the concrete flowed too slowly down the chute, because of the angle, and that obliged him to use a shovel to move it down into the gap to be filled.  He had to stand on the plank to do that.

18. The account of his evidence in my contemporaneous reasons indicates that PW1 adopted what was said in cross-examination in relation to the first skip: in fact, he did not do so in the way suggested and it is clear that PW1 maintained that it was necessary for him to climb up to the board to open and control the skip. ”

The defence case

4. The appellant did not give evidence or call any witnesses.  Nor was the statutory defence in regulation 38H expressly relied upon.  What, in a word, the appellant’s defence amounted to was that PW1 was acting on a frolic of his own.  It was contended that PW1 should have worked on the working platform (or “gangway”) that even the prosecution accepted was provided with adequate guard rails.  It was contended that PW1’s climbing onto the board supporting the chute was inherently dangerous but beyond the contemplation of the appellant as principle contractor.

The verdict

5. In the end, the magistrate convicted the appellant.  He gave oral reasons which, as appointed out, formed part of the Statement of Findings.  Below is the relevant portion :

“10. Now the question is whether adequate steps had been taken to prevent that fall.  The primary burden of proof is on the prosecution to the usual standard for criminal cases.  I need to be sure that there were no adequate steps taken.  I have considered the evidence and I have to say I am sure that there were no adequate steps taken.  That is not just because PW1 failed, there is more to it than that; but he did in fact fall and there was no net, there was no anchorage for a safety belt and fall-arrester equipment was not in use.  No reasonably practicable steps were taken to ensure that it was used.

11. The defence say that he was acting dangerously on his own, breaking what he knew to be safe practice.  And the question they therefore raise, as I indicated earlier, is as to PW1’s own alleged misconduct.  But is that a defence?

12. In my judgment there must be some limits to this approach.  I do accept that if a worker does something wholly beyond the contemplation of his employer, then it may be that the steps which were in fact taken (here, for example, 1.2 metre guard rails) would be adequate.  Such conduct would usually, though not necessarily, be outside the scope of the employment.  If a worker stands on the edge of a drop exceeding two metres, in order, for example to show off or for other horseplay, the contractor responsible for site, who has otherwise provided guard rails, can hardly be said to be liable under the regulation.  But the regulation does not say anything about workers contributing to their fall or being the authors of their own misfortune.  And it would be wrong to imply that wholly and automatically into the regulations.

13. The fact is that here, the PW was acting in the course of his employment : he was doing his job.  He decided, perhaps recklessly, to carry it out in a particular way which exposed him to the risk of a fall.  That method, that is climbing up onto the board to facilitate the transfer down the chute of the concrete was, I find, within the contemplation of the defendant contractors or their staff who, in the form of PW2, were nearby and overseeing the operation.

14. But to say that there was never any chance of PW1 climbing up onto the board is, I find, unrealistic.  And therefore, although his conduct may be characterized as foolish or knowingly dangerous, that does not absolve the defendant company. It may amount to mitigation; but to find otherwise would be to defeat the purpose of the regulations, which are designed to protect workers, even against themselves.  If misconduct were automatically a defence — and I use misconduct in the widest sense — then the regulations would fail.

15. I am sure that in the circumstances of this case, where such conduct by PW1 was or could have been contemplated, then the defendant company did not take adequate steps to prevent the fall; it is therefore guilty of the offence with which it is charged.”

6. Then, as part of the “additional matters”, the magistrate had these further observations :

“19. PW1 was a straightforward, spontaneous, balanced witness.  Of course, as the victim of an industrial accident, he had a special interest in the outcome of the prosecution of the defendant.  But he plainly did not allow this to affect his testimony.  He accepted that what he did it was dangerous; he accepted that he had received training in working at heights and was aware of safety precautions including the use of harnesses and belts; he was not trying to absolve himself of all responsibility.  I found him to be an honest witness, and, given that he was an uneducated man having to articulate a sudden and catastrophic event in court a year after it happened, he was a clear, rational and reliable witness as well.

20. His evidence left me in no doubt that it was foreseeable that for the effective and practical discharge of his duty, working alone as he was, he would climb up the to the board placed between the guard rails and the gap to be concreted in order to control and open the skip and to move the concrete into the gap in an efficient manner.  This was so even if he had been able to manage the first skip from the gangway.  It was therefore within the contemplation of the defendant or its servants or agents that he would do so, given that the defendant, through PW2 had agreed to this concreting job being done by use of a board and chute to direct the concrete from the skip, rather than by using a mobile concrete pump.

21. PW2, the defendant’s supervisor, agreed he was directly responsible for supervising the PW1 in this particular job.  He had (on his own account) placed himself out of sight of PW1 by standing underneath the working platform at the material time.  He said he did not see PW1 stand on the board; he did not see his fall; he did not see what caused the fall.  He did not therefore issue and instruction to PW1 not to climb up onto the plank or to come down from it.

22. Furthermore, there were obvious difficulties with regard to this particular task.  PW2 had consulted with PW1 in advance to work out how it was to be done.  PW1 had supplied a solution (the plank and chute), which PW2 accepted.  But it was an ad hoc arrangement, and therefore one which was liable to run into hitches : these were evident from PW1’s account.

23. The method used to carry out this job in effect created a new working platform.  Once PW1 stepped onto it, he was no longer protected by any guard rails, and there were therefore no adequate steps taken to prevent his fall from a height exceeding 2 metres.

24. In Carr v Mercantile Produce Co, (1949) 2AllER 531, a decision of the Court of Appeal in England, Stable J said at page 537A :

‘the Factories Act is there not merely to protect the careful, the vigilant and the conscientious workmen, but human nature being what it is, also the careless, the indolent, the inadvertent, the weary, and even, perhaps, in some cases, the disobedient.’

This dictum has equal application to the regulation in the present case.

25. In considering whether PW1’s act of climbing onto the board, dangerous as it undoubtedly was, was such that it could relieve the defendant company of its strict liability under regulation 38B, I had regard to the fact that :

a) the act was foreseeable for the reasons given;

b) PW1 was not disobeying any instruction;

c) PW1 was acting in the course of his employment, undertaking a task given to him by the defendant; and he was not therefore on a frolic of his own as he would have been if, for example, he had been engaging in horseplay or some other act outside the scope of his employment and thus beyond the contemplation of the defendant.

26. I concluded that the defendant company was guilty of an offence under regulation 38B, given that the statutory defence did not apply.  They had, in their capacity as contractor responsible for the construction site, failed to take adequate steps to prevent the PW1 from falling.  Adequate steps could have included effective supervision, the provision of safety belts or nets or the use of alternative methods of doing the job.”

Grounds of appeal

7. The appellant filed four perfected grounds and four additional grounds.  They run to a total of five pages.

8. To sum up, the four perfected grounds complain that : (a) given that a working platform with guard rails was provided and that regulation 38B(2) recognizes such provisions as “adequate steps”, the magistrate erred in concluding that no adequate steps were taken by the appellant to prevent the fall; (b) in considering the suitability of that working platform, the magistrate failed to take into account the contradictions in PW1’s evidence; (c) the magistrate erred in thinking that the statutory defence in regulation 38H applied, hence shifting to the appellant the burden of its proof, when in fact this defence only applies where, in all circumstances of a case, it was impracticable to comply with regulation 38B(1), which is not how it was here because the appellant did provide a working platform with guard rails; and (d) the learned magistrate erred in failing to take into account the overall recklessness of PW1’s conduct, in standing on the board and controlling the flow of cement, when concluding that the conduct was foreseeable to the appellant.

9. As regards the additional grounds, heavy overlapping is observed which, in any event, seems to verge on the simple complaint that the magistrate erred in concluding that PW1 had not acted contrary to instruction and hence not outside the course of his employment.

Judgment

10. Having read the transcripts, I do have some reservation about PW1’s evidence, not least because he admitted telling a safety officer after the accident that he handled the first skip of cement on the working platform, and it was only because he found that too time consuming that he climbed on to the board for the second skip, thus causing the accident (p. 73N of the appeal bundle).  This very important previous inconsistent statement was never dealt with in the Statement of Findings.

11. That said, I agree with the magistrate that even if PW1 had been able to manage the first skip from the gangway, his climbing on the board was reasonably within the contemplation of the appellant (para. 20 of the Statement of Findings).  The reason is precisely that which the magistrate had stated in the same paragraph, ie PW1’s evidence as a whole leaves one in no doubt that having to manage everything on his own, PW1 would climb onto the board for the effective and practical discharge of his duty.  That this is so is reinforced — not undermined — by some of the concessions that PW1 made in his cross-examination, such as it would be more tiring to operate the skip from below, or that he was impatient, or that the concrete would otherwise flow all over the floor.  None of this could have missed PW2 who (one rightly assumes) was qualified to supervise, was in fact under a duty to supervise, and to whom PW1 had explained how he would complete his assignment.

12. In the circumstances, whether or not PW1’s method of carrying out his job amounted to creating a new platform (para. 23 of the Statement of Findings), I am in one with the magistrate that the working platform with guard rails had become ineffective, thus opening one to the conclusion that no “adequate steps” had been taken to prevent PW1’s fall.  It should also be mentioned that the provision of platforms and guard rails are but some of the indicators indicating the taking of “adequate steps”.  Regulation 38B(2), with the words “shall include the provision, use and maintenance of one or more of the following …… ”, makes it clear that the list of devices specified therein is not exhaustive.  It is also unthinkable that these devices would satisfy the requirement of adequacy by their mere presence, regardless of the task being carried out in any particular situation.

13. That said, I am not persuaded that the magistrate had imposed on the appellant the burden of proving the statutory defence under regulation 38H which, I repeat, applies where it is impracticable to comply with regulation 38B(1).  The magistrate’s view was simply that the steps taken were inadequate.  Paragraph 26 of the Statement of Findings sees him stating specifically that the statutory defence did not apply.

14. Finally, I do not think the magistrate was wrong in finding that PW1 had not acted contrary to instruction and had therefore remained in the course of employment.  I accept that PW1 had told the court that standing on the board was not permitted and that he would be stopped (p. 72A of the Appeal Bundle).  But PW2’s evidence was that there was never any specific instruction (p. 78R).  In any event, I do not think that in all the circumstances of the present case, the action of PW1 was one that could take him out of the course of his employment.  On this, I refer to the passage in Carr v. Mercantile Produce Co. (ibid) that the magistrate had cited.

15. I am satisfied that there is nothing to this appeal.  It is dismissed.