LO KAM PO v. WONG WING KEE PLASTER ENGINEERING CO. LTD. AND ANOTHER

HCPI 240/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 240 OF 2000

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J U D G M E N T

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1. This action arises from an accident which befell the Plaintiff, a plasterer, at a construction site situated at Tin Wan Estate, Phase III on the morning of 13 May 1997. The Plaintiff was employed by the 1st Defendant, a plastering subcontractor. The 2nd Defendant was the principal contractor at the construction site and therefore the contractor responsible for the construction site within the meaning of the Construction Sites (Safety) Regulations, Cap. 59. The Third Party was another subcontractor of the 2nd Defendant responsible for erecting bamboo scaffolds for the use of workers at the site.

2. The parties have not sought to dispute the evidence of the Plaintiff and a co-worker, Mr Yiu Woon Tong. Their witness statements have been put before the court by agreement. From those statements, it appears that the Plaintiff was engaged in the plastering of a structure which was to be the machine room on the roof of a building. The structure was surrounded by bamboo scaffolding. While climbing up the scaffolding to a height of about 10 ft., the bamboo which the Plaintiff was holding "suddenly came loose" and he lost his balance and fell to the ground sustaining back injuries. He was wearing a safety harness around his waist at the time, but the length of rope attached the harness was not long enough to enable him to use it while manoeuvring on the scaffold. There was no separate lifeline onto which to attach the rope.

3. In such circumstances, the two Defendants, being his employer and the contractor responsible for the construction site respectively, have recognised that they could not successfully defend the Plaintiff's claim against them. They have settled the matter with him by way of a Tomlin Order under the terms of which they have agreed to pay him a further sum of $2.8 million in addition to the Employees Compensation he has received and costs.

4. The proceedings before this court have thus related solely to the Third Party proceedings between the Defendants and the Third Party. Notwithstanding the fact that the Tomlin Order was not an order of the court following a trial of the Plaintiff's case, the Defendants are nonetheless entitled to seek contribution from the Third Party by virtue of S.3(4) Civil Liability (Contribution) Ordinance, Cap. 377 if they can establish liability on its part. It is accepted that the agreement between the Plaintiff and the Defendants was in bona fide settlement of the Plaintiff's claim.

5. Only one witness was called in the trial, Mr Lam Kwok Wai, the assistant safety officer of the 2nd Defendant at the relevant time and the person responsible for investigating the accident on the 2nd Defendant's behalf. At the conclusion of his evidence, the Third Party elected not to call any witnesses.

6. It is common ground between the parties that unless the Third Party was in breach of its duty of care towards the Plaintiff, the Defendant's claim in the Third Party proceedings cannot succeed. It is also common ground that the Third Party had no duty towards the Plaintiff in respect of the provision of safety belts or safety lines. Its only duty towards the Plaintiff was in respect of the building and maintenance of the scaffolding.

7. In order to determine the extent of that duty, it is necessary to look at the contract between the 2nd Defendant and the Third Party. This is so because while the 1st Defendant as his employer had a general duty to provide a safe system of work, and the 2nd Defendant had a statutory duty under the Construction Sites (Safety) Regulations, Cap. 59 to provide sufficient suitable scaffold if work could not safely be done from the ground (Regulation 38B) and a duty to ensure that the scaffolds so provided should be of good construction made of strong and sound materials and free from patent defects and properly maintained (Regulation 38D), the performance of only part of those duties was contracted to the Third Party.

8. Under the contract, the Third Party was responsible for inter alia:

a. providing the bamboo sticks (Clause 5(1)) although the sticks had to be approved by the 2nd Defendant; and

b. on a monthly basis, inspecting the scaffold in detail (in compliance with Regulation 38K of the Regulations) to see whether the scaffolds were sufficiently stable and, fill in the form required by law.

9. It is also common ground therefore that the Third Party would be in breach of its duty of care to the Plaintiff if the injury to the Plaintiff was caused by a bamboo pole which was itself defective when the scaffold was first constructed, or the scaffold was defective at the time of the previous monthly inspection of the Third Party on 14 April 1997 and such defect was apparent at the time of such inspection.

10. The Defendants therefore have to be able to show that such was the case before liability could attach to the Third Party.

11. In so far as the evidence of how the accident occurred is concerned, the Defendants did not seek to challenge the evidence of the Plaintiff and his witness, Mr Yiu Woon Tong. Their evidence is consistent. The Plaintiff spoke of the bamboo suddenly coming loose. Mr Yiu said that he himself saw the bamboo come loose and fall down to the ground with the Plaintiff. Their evidence is inconsistent with the contention of the Defendants based on the evidence of Lam Kwok Wai that the bamboo pole broke. I am satisfied that if the bamboo pole had broken, the Plaintiff and Mr Yiu would have said so.

12. Mr Lam Kwok Wai was not present at the time of the accident. He only visited the scene one or two days after the accident when he met Mr Wong Kin Kwok of the 1st Defendant firm. Mr Wong had not been present when the accident occurred. Mr Wong showed him a broken section of bamboo pole about 2 - 3 ft. long. He did not see where Mr Wong got it from. He saw that there was a dark area 1 or 2 inches wide on the pole , but was not able to say on what part of the pole. He said that "in so far as he could remember" Wong had told him that it was the damaged pole and had said that the pole broke easily when force was applied to it. Bearing in mind that Mr Lam was the officer who was under a duty to make a report of this accident, the enquiries he said he made were far from satisfactory. He acknowledged that he was not an expert but even so one would have expected a much more thorough investigation of the accident. Perhaps the fact that he did not regard this as a particular serious accident accounts for these shortcomings. He was unable to give any convincing explanation for the dark patch on the pole or whether it was significant. He did not even notice if the patch was at the point of the break. He said that the dark patch was not a sign of ageing but was a defect in that particular piece of bamboo. When asked why if he was saying the bamboo was defective, he did not simply say in his statement of 6 February 2000 that the bamboo should never have been used in the first place, rather than say that in his opinion, if the Third Party could have inspected the bamboo scaffold more frequently, the accident should not have occurred, he said "perhaps this bamboo only became black after it had been used for a certain period of time, so part of it became black." He claimed that he did not know whether the bamboo was new or old when first delivered. Surprisingly if he was of the view the bamboo was defective, he did not inspect the rest of the scaffold around the machine room to see if there were other poles with defects.

13. Although at first he said that this 2 - 3 ft. section of bamboo was the only section he had seen, he later claimed that he had misunderstood the question, and that he could see the broken part on the scaffold. He said that it was his "impression" that Wong had told him that this section of the pole was part of the pole that was broken on the scaffold. When questioned however he was not sure how high up it was, whether it was on the outside or insider layer of the double scaffold or whether it was a pole connecting the outer and inner layers. He also said that he could not quite remember if it had broken off where the bamboo protruded beyond the vertical poles. He could only say that he "believed" that it was a horizontal pole.

14. My impression of Mr Lam's evidence was that it was hopelessly unreliable. Although he had spoken to the Plaintiff at some stage after the accident, it is not clear that he had obtained from the Plaintiff his version as to how the accident occurred. I consider that he may well have formed the impression that the bamboo he was shown had caused the accident and had broken from a conversation with Mr Wong who was not even present at the time of the accident. I have serious doubts of Mr Lam's reliability as to the contents of remarks made by Mr Wong which were themselves hearsay. The Defendants have not shown on balance of probabilities that the accident was the result of a bamboo pole which was defective and broke causing the accident.

15. I must go on to consider whether the Defendants can establish on the balance of probability that the accident was the result of a defect in the scaffolding which would have been apparent at the time of the previous monthly inspection by the Third Party on 14 April 1997. I note, as I have said, that Mr Lam took the view that the dark patches which he saw on the bamboo section might have developed after the scaffolding had been erected. He did not say how long it would have taken for such a patch to develop.

16. The argument of Mr Paul Lam, counsel of the Plaintiff, is that since the law and the contract required the scaffold to be inspected monthly, the legislation and the parties must have acted under the belief and assumption that a monthly inspection was a reasonably effective and adequate way to ensure the continuous safety of the scaffold. He went on to argue that this implicitly meant that they believed that on condition that an inspection was properly done, generally speaking and in the normal course of events, it was more probable than not:

a. that a defect would not develop within a month's time to the point of breaking; and

b. a defect which cause breakage would be noticed a month before.

17. Ingenious as this argument is, it does not in my view stand up to scrutiny in this case. The regulation (Regulation 38K) simply provided a minimum standard for all scaffolds in all situations. In this case the parties themselves clearly anticipated more frequent inspections of this scaffolding by the 2nd Defendant's safety officer by providing that "when during the inspection of the safety officer at the site, if he finds any problem with the scaffolds, safety nets or iron plates, the contractor shall carry out the repair on receipt of notification." There is no dispute that the 2nd Defendant did not carry out any such inspections.

18. It was admitted by Mr Lam Kwok Wai that workers from different trades were working on the scaffold in question, and it was quite common that bamboo scaffolding might be damaged by workers in the course of their work on scaffolds or even just become defective due to wear and tear. The bamboo in this case was bound by traditional materials. It is significant that this accident occurred just one day before the next monthly inspection of the Third Party would take place. Almost a month had therefore elapsed since the last inspection had occurred. There was otherwise no evidence of any deficiency in the previous inspection by the Third Party.

19. I cannot be satisfied on balance of probabilities that the defect which caused the bamboo pole to come loose had not occurred in the 30 days prior to the accident during which time it was the duty of the Defendants rather than the Third Party to ensure that the scaffold was safe.

20. For the above reasons, I dismiss the Defendants' claim against the Third Party. I make the following order as to costs which is to take effect unless within 14 days either party makes application to be heard on the question of costs: the Third Party's costs be taxed if not agreed and paid by the Defendants.