HKSAR v. GOLD RAM ENGINEERING & DEVELOPMENT LTD.

HCMA 912/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 912 OF 2001

(ON APPEAL FROM STS 1583/2001)

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J U D G M E N T

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1. On 28 July 2001, the Appellant, Gold Ram Engineering & Development Ltd (a limited company) was convicted after trial before Mr Roy Yu, Permanent Magistrate in the Shatin Magistrates Court on an information charging that it had, so far as was reasonably practicable, failed to ensure the safety and health at work of its employees, contrary to Section 6(1), 6(2)(a), 6(2)(b) and 6(3) of the Occupational Safety and Health Ordinance, Cap.509 ('the Ordinance'). The Appellant was fined $12,000 for this offence.

2. The Appellant now appeals against that conviction. Mr James Collins, of counsel, represents it in the appeal.

Facts

3. The Civil Engineering Department of the HKSAR Government had appointed the Appellant as its contractor to conduct soil investigation at a construction site at the To Shek Service Reservoir in Shatin.

4. On 7 September 2000, the Appellant's employees were working on a drill hole on the 2nd berm (shelf) of a slope at the site. Mr Cheng Kam-shing (PW3) was the captain of a team working with a site investigation drilling-rig, he had two workers, Mr Chan Hing-wan (PW4) and Mr Lo Hing-fai ('the deceased') working under him.

5. The drilling-rig was placed on a timber scaffold used as a working platform (the platform) on the 2nd berm of the slope. At some stage of their work they found that they needed additional equipment, this was a standard penetration test hammer ('the hammer'), which weighed about 80 kg. They moved the hammer from the access road to a position on the ground below the drilling-rig. PW3 and the deceased went up to the 2nd berm. From there, PW3 lowered a wire cable down from the drilling-rig intending to use the drilling-rig and the cable to lift the hammer up to the platform. The drilling-rig was not constructed to act as a crane or hoist, but it was PW3's evidence that it was common practice to use it to lift objects. PW4 stayed at ground level to monitor the operation's progress. At some stage in the course of the lifting process, the drilling-rig tilted and the platform collapsed, and the drilling-rig fell down the slope. PW3 lost his balance and fell down to the 1st berm. He suffered some injuries. The deceased also fell down the slope. He sustained fatal injuries and died soon after.

6. The information charged that the Appellant, being the employer of PW3 and the deceased, failed to ensure the safety and health at work of its employees, in that:

(1) it failed to provide and maintain a mobile crane and system of work for the transportation of the hammer at the hill slope that was, so far as reasonably practicable, safe and without risks to health; and

(2) it failed to make arrangements for ensuring, so far as reasonably practicable, the safety and absence of risk to health in connection with the transport of plant - the hammer.

7. The Appellant called three witnesses. Two were experts, the main thrust of their evidence was that the main cause of the accident was the dangerous nature of the platform and the responsibility for that lay with the scaffolding contractor who had built it. It was argued that the responsibility for the lifting of the hammer had been delegated to PW3 as team leader. He was said to be experienced in this kind of work.

The Grounds of Appeal

8. Four grounds of appeal were pleaded. The 2nd ground of appeal was abandoned and not argued at the hearing.

The 1st Ground of Appeal

9. The 1st ground of appeal was that the information was bad for duplicity, in that it alleged two distinct breaches of the obligation imposed on the Appellant by Section 6 of the Ordinance and accordingly the Magistrate ought to have declared the information void ab initio.

10. The substance of the particulars in the information has already been given. The material part of s.6 of the Ordinance provides:

"(1) Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer's employees.

(2) The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following

(a) a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employer's employees;

(d) as regards any workplace under the employer's control-

(i) a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health; or

(ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks;

(e) a failure to provide or maintain a working environment for the employer's employees that is, so far as reasonably practicable, safe and without risks to health.

(3) An employer who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200,000.00."

11. The information did not allege two distinct offences; rather its particulars instanced the two respects in which the Appellant was alleged to have failed in its statutory duty towards its employees. The scheme of the section is that Section 6(1) imposes a duty on every employer to ensure, so far as reasonably practicable, the safety and health at work of all his employees. Section 6(2) contains a non-exhaustive list of cases in which an employer fails to discharge that duty. Section 6(3) creates an offence of non-compliance with Section 6(1) and provides for the penalty.

12. Support for this conclusion can be found in the English Queen's Bench Divisional Court's decision in Health and Safety Executive v Spindle Select Ltd (The Times Law Reports, 9 December 1996). In that case the Divisional Court was concerned with the correct interpretation of Section 2 of the English Health & Safety at Work etc Act 1974. In its relevant parts that section provided:

"2. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular - (there then follows 5 instances exemplifying that duty)"

The similarity of the drafting of that provision with that of s.6 of the Ordinance is readily apparent.

13. Spindle Select concerned the failure of the prosecution to specify in the information which of the Section 2(2) (of the English Act) instances it relied on, rather than the inclusion of more than one instance, as is the point in this appeal. However, the Divisional Court, in allowing the appeal by way of case stated of the Health & Safety Executive against the Justices' dismissal of the information, said that the charge should be founded on Section 2(1), as that section creates the offence. It was not necessary to refer in terms, even if applicable, to any of the paragraphs of Section 2(2), or to the subsection itself. Even if the information itself, or the particulars which accompanied it, referred to more than one aspect of the overall duty, that would not make the information bad for duplicity.

14. The 1st ground of appeal fails.

The 2nd Ground of Appeal

15. The 2nd ground of appeal was abandoned and not argued at the hearing.

The 3rd Ground of Appeal

16. In the 3rd ground of appeal it was said that the Magistrate erred in assessing the risk involved in the method employed to lift the hammer by proceeding on the assumption that the platform was reasonably safe for use as such and that he failed to consider its condition and manner of construction as a factor in contributing towards its collapse. What he said is this:

" While there is a lot of evidence on the stability of the timber scaffolding, I cannot rule beyond reasonable doubt that it is not a safe system. It is not necessary for me to rule on whether the scaffolding in issue is properly constructed nor (whether) such scaffolding could be used safely. And for the purpose of my judgment, I have all along assumed that the timber scaffolding is reasonably safe for use as a platform and runway."

17. In his submissions Mr Collins drew my attention to various passages in the transcript in which both prosecution and defence witnesses opined that the platform was unsuitable to support the drilling-rig. In particular it was said that it lacked horizontal restraints and had been insufficiently anchored to its site. Mr Collins argued that the Magistrate ought to have taken into account all the evidence concerning the reasons for the collapse of the platform since the question of the cause of the collapse was both integral to and inseparable from consideration of whether the arrangements adopted for lifting the hammer were, in all the circumstances, such as to ensure, so far as reasonably practicable, compliance with the obligations imposed on the Appellant by the Ordinance.

18. The Magistrate's job, however, was not to determine the cause of the accident and apportion liability. He had to consider whether there was any risk involved in the operation carried out; if there was a risk, what precautions the Appellant, or its servants, had taken to ensure that it was a safe operation and whether, so far as reasonably practicable those precautions, if any had been taken, were sufficient. Even if the main cause of the accident was due to the platform's instability, that did not preclude the Magistrate from considering the other areas of risk. And even if lifting the hammer up to the platform by the drilling-rig was a practical method of undertaking that task, the Magistrate was still required to consider whether or not it was safe a safe method; and if it was not, whether it was reasonably practicable to adopt any safety measures in respect of it.

19. The Magistrate directed himself on the law relating to the duty of an employer to provide his employees with a safe system of work as explained in Winter v Cardiff Rural District Council [1950] 1 All ER 819 (HL). There Lord Oaksey said, at page 822H to 823B:

" ... the common law duty of an employer of labour is to act reasonably in all the circumstances...it is therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or mode of operation...where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently it is natural and reasonable that it should be left to the foreman or workmen on the spot."

20. From PW3 and PW4's evidence the Magistrate found that apart from PW4's ground-level observation of the movement of the hammer, no measures had been taken by anyone to mitigate against risks of any kind. He found that there was no evidence that PW3 and PW4 had been given any directions on the system of work they should employ and that prior to the accident there was no safety management system in place at the site. Whatever the common practice may have been about its use as such, the drilling-rig was not constructed to act as a hoist.

21. The Magistrate found that there was no evidence that the Appellant had relied upon PW3's (he mistakenly referred to him as PW4 in this part of his Reasons) experience to look after the safety of the other workers and that, although he may have been an experienced operator of the drilling-rig, there was no evidence that he had been trained in the assessment of safety risks or the management of safety systems in connection with his work. The Magistrate commented:

" ...(PW3) being an operator for years does not by it make (him) an experienced employee to decide the safe system at work."

22. From PW3's evidence the Magistrate found that the risk of the hammer snagging on the uneven slope and thus adding to the force exerted by the hammer on the drilling-rig's cable, as well as the possibility of that causing danger to the workers standing on the platform by the rig, could be anticipated. He found that a safe system of work, such as the use of guy rope to pull the hammer away from the slope should have been employed and that the risks inherent in the lifting operation should have been assessed before it started.

23. I am satisfied that the Magistrate gave a more than adequate consideration of the issues that fell for his resolution in relation to this matter and that his resolution of them cannot be faulted.

24. The 3rd ground of appeal fails.

The 4th Ground of Appeal

25. The 4th Ground of Appeal claims that the Magistrate erred in finding that the Appellant had failed to discharge, on a balance of probabilities, the onus placed on it by Section 38 of the Ordinance. That provision reads:

"38. In proceedings for an offence against this Ordinance involving a failure-

(a) to comply with a requirement or an obligation that has to be complied with only in so far as it is practicable or reasonably practicable to do so; or

(b) to take steps, reasonable steps or reasonably practicable steps to comply with the requirement or obligation,
the onus is on the defendant to establish that compliance with the requirement or obligation was not practicable or was not reasonably practicable, or that steps, reasonable steps or reasonably practicable steps were taken to comply with the requirement or obligation." (emphasis supplied)

26. Section 6 of the Ordinance, under which the prosecution was brought, requires that every employer must, so far as reasonably practicable, ensure the safety and health at work of all of his employees and it is with the interpretation of that phrase, and the Magistrate's assessment and rejection of the Appellant's case in support of the Section 38 defence, that I am concerned with in this ground of appeal.

27. The English case of Marshall v Gotham Co Ltd [1954] AC 360 (HL) (a fatal injury action) concerned Regulation 7(3) of The Metalliferous Mines General Regulations 1938 made under the Metalliferous Mines Regulation Act 1872. The Act contained a provision that the Regulations made under it should be observed "...so far as may be reasonably practicable". Regulation 7(3) required that the roof and sides of every travelling road, outlet and working place in a mine covered by the Regulations should be made secure. An employee of the respondent company (the proprietor of a gypsum mine) was killed by a roof fall in the mine. Before the mining work began, the respondent's employees had to inspect the roof of the gallery they were to work in by tapping it with a hammer and, when the sound indicated that it was unsafe, they had to bring the roof down. This was the normal system of working. The fall was due to the presence of an unusual geological condition known as slickenside. Slickenside had not been found in the defendant's mine for 20 years and there was no known means of detecting it before a fall. After the accident hydraulic props were used where the presence of slickenside was suspected. The House of Lords held that the respondent was not guilty of a breach of statutory duty because the deceased's death was not caused by any failure by them to take reasonably practicable steps to secure the roof. Their Lordships held that the test of what is reasonably practicable is not simply what is practicable as a matter of engineering, but depends on a consideration, in the light of the whole circumstances, at the time of the accident, whether the time, trouble and expense of the precautions suggested are or are not disproportionate to the risks involved, and also an assessment of the degree of security which the measures suggested may be expected to afford.

28. Lord Reid said, at page 373:

" ... if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable...Slickenside was a known danger, but there was no more reason to anticipate it or provide against it at the place of the accident than elsewhere in the mine, and a finding that precautions ought to have been adopted at the place of the accident would imply that they ought also to have been adopted generally. I am of opinion that this was not reasonably practicable, and I base my opinion on these factors. The danger was a very rare one. The trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable. The precautions would not have afforded anything like complete protection against the danger, and their adoption would have had the disadvantage of giving a false sense of security."

29. In the present case the Magistrate said in his Reasons that the only precaution PW3 took was to observe the movement of the hammer from the platform and that he controlled the operation. He also said that there was no evidence to suggest that PW4 was deputed to act as a watch out. Mr Collins argued that an examination of the transcript shows a somewhat different tale.

30. Firstly, there was a fibre rope attached to the bottom end of the hammer. This was noted by PW1 who investigated the accident for the Labour Department. PW3 described how PW4 had secured the bottom of the hammer with a fibre rope and said in examination in chief that he had waited for PW4's signal that the 'wire' rope had been tied to the bottom part of the hammer before beginning to lift it. (The transcript says 'wire', but given the context and the other evidence of what was attached to that point, there seems to be a mistake: the word should be 'fibre'.)

31. PW4's evidence about the purpose of the rope, however, is inconsistent with PW3's. PW4 said that it was used to bring the wire cable down from the drilling-rig and that, other than that, it served no particular function.

32. Secondly, PW3 said in examination in chief that there was a system of hand signals whereby PW4 was to signal to PW3 to enable him to control the drilling-rig's winch. And PW4 testified that his function was not merely to 'watch' but to 'monitor' the lifting operation. He said:

" Primarily, I monitor the progress, the hoisting process, and to observe whether the hammer was being lifted up along the slope properly.

.........

Q. Are you saying that...your duty is to monitor the lifting of the hammer?'

A. Yes.

Q. Then, am I correct that you also have to observe the movement of the hammer while lifting?

A. Yes."

33. The Magistrate found that the Appellant had given no directions to PW3 as captain of the drilling-rig, as to the system of work he should operate in order to ensure safety, specifically with respect to using the drilling-rig to lift equipment. That appears to be correct, but Mr Collins submitted that it is evident that PW3 had considerable experience in operating the drilling-rig and specifically in using it as a means of lifting equipment. He was asked in examination in chief:

"Q. How often did you use such lifting methods?

A. Often.

Q. Can you estimate the number of times?"

A. Many times. I did this frequently, since I assumed this line of

Work."

And in cross-examination, PW3 said, with specific reference to work requiring the drilling-rig to be placed on a narrow ledge, or in an elevated position:

"Q. Have you worked in similar sorts of position before?

A. Yes.

Q. How frequently?

A. That sort of work occupied almost one-third of my time."

34. Mr Collins submitted that PW3's evidence showed that using the drilling-rig to lift equipment from a lower to a higher level is the way PW3 would ordinarily have carried out that task; that he done that kind of operation a number of times in the past; that the drilling-rig can be used as a lifting device; that PW3 did not consider it in any way abnormal or unusual to use the drilling-rig as such and had often used it as such when it was in an elevated position on a slope; that PW3 did not find having to lift the hammer up the slope using the drilling-rig to be a particular problem and that the decision to do it that way was PW3's as rig captain.

35. Mr Wong Yum Yin a Safety Consultant and former employee of the Labour Department (DW1), considered the risk involved in using the drilling-rig to lift the hammer up to the platform to be an acceptable one. His words on this issue were:

" ... It is a risk that needs to be addressed, not a risk that is not acceptable."

36. DW1 considered the identification of the risk to be an obvious, common sense, matter and one that did not require an expert's intervention. This was something that could be left to the rig captain and his team members. DW1's suggested system for lifting the hammer was to conduct the hoisting operation slowly; have two men - one at the top, one at the bottom - watching or monitoring and giving signals to the operator to stop the machine promptly should that be necessary; that the worker below should have a guy rope to swing the load to avoid any protrusions. And that, although not perfect:

"... this would reduce the risk to a tolerable level."

37. It is clear from the evidence that alternative methods of raising the hammer to the platform, such as using a helicopter, or a mobile crane, had been ruled out by decision of the consulting engineers, or were considered to be more risky; for example carrying the hammer up the slope manually.

38. The Magistrate accepted that a system of work such as that suggested by DW1 in his evidence in chief '...or other similar scheme', to prevent the hammer being caught on the uneven surface of the slope should have been employed by the Appellant when the drilling-rig was being used to lift the hammer.

39. Mr Collins submitted that when the evidence of the system operated by PW3 is taken as a whole, it is evident that a system that met DW1's criteria was in place and that it was one which constituted, on a balance of probabilities, reasonably practicable steps to comply with the statutory duty cast upon the Appellant.

40. There are however flaws in Mr Collin's argument. Firstly the evidence about the purpose of the fibre rope was equivocal. It was not clear if it was being used as a guy rope. In fact PW4, the man at ground level during the lifting operation and by reason of that the obvious user of the rope as a guy, said he was not using it as one.

41. Secondly, it ignored the evidence of PW8, a Director of the Appellant, who said that before the accident no risk assessment had been carried out at the construction site and that the lifting method employed was not a proper one. It is true that the Magistrate said that as PW8 was not called as an expert, he placed no weight on his comment. The fact remains, however, that one of the Appellant's own directors disapproved of the method the Appellant's employees had adopted to lift the hammer up to the platform.

42. Thirdly the drilling-rig was not designed to act as a crane or hoist - it was a drilling-rig - and regardless of the fact that it had been used as a hoist in the past without mishap, it was being used for a purpose for which it was not designed.

43. Fourthly the Appellant had put no system in place and had made no risk assessment at the site. The possibility that there may be dangers associated with the movement of materials and equipment up to the berm's platform never appears to have crossed the minds of its responsible officers. The Magistrate said in his Reasons that there was no evidence that the Appellant had relied on the experience of PW3 (this is where he erroneously wrote PW4) to look after the safety of the workers and that he could not infer that it had done so. Mr Collin's attacked the accuracy of that conclusion; it being his argument that the Appellant had relied on PW3's experience and common sense. That may be so, but it went no further than that. The situation in this case may be contrasted with the position in Marshall v Gotham where the testing of the gallery roof before mining commenced was a regular, and company ordered, practice.

44. Fifthly, unlike the situation in Marshall v Gotham, where the presence of slickenside was a rare phenomenon unknown in the respondent's mine for 20 years, there was a patently obvious risk that lifting an 80 kilogram hammer up a rugged incline onto a wooden scaffolding platform would affect the stability of the device being used to lift it.

45. It is not for me to retry this case, I can only intervene if the Magistrate's finding that the Appellant had failed to discharge the onus placed on it by Section 38 of the Ordinance is, on the evidence, unsupportable. To my mind this was a finding he was entitled to come to.

46. The 4th ground of appeal fails.

Decision

47. For the reasons given the Appellant's appeal against conviction is dismissed. I will hear from counsel on the question of the costs in connection with this appeal.