LO CHI FAN v. KIN SHING (LEUNG'S) GENERAL CONTRACTORS LTD AND OTHERS

HCPI 393/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 393 OF 2003

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J U D G M E N T

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1. This is an action for personal injuries sustained by the plaintiff on 12 April 2000 whilst working at the construction site at Sheung Shing Street, Homantin, Kowloon, KIL 11042 (“the site”).

2. The project at the site was the construction of the superstructure works of the Tung Wah Group of Hospitals Wong Cho Tong Social Service Building.

3. The plaintiff was working at the site as a formboard worker employed by Kin Wo Form Mould Engineering.  The 1^st defendant (“D1”) was the principal contractor of the site.  Kin Wo Form Mould Engineering was a sub-contractor of D1 doing formboard work at the site.

4. The 2^nd defendant (“D2”) was another sub-contractor of D1 doing steel binding works at the site.  The 3^rd defendant (“D3”) was employed by D2 working as a steel binding worker.

5. At about 9 a.m. in the morning of 12 April 2000 the plaintiff was injured in an accident whilst working at the site.  The plaintiff was working on the 3^rd floor concrete slab of the building.

6. There was erected on the 3^rd floor concrete slab of the building an iron tubular scaffold (“the scaffold”) to place reinforcement iron bars there.   A tower crane (“the crane”) with an operator was provided at the site by D1 for the use of sub-contractors that required materials to be lifted from one part of the site to another. 

7. At the material time on 12 April 2000 Yip Man Kin (“Yip”) was the crane operator employed by D1 at the site.  Shortly before the accident he operated the crane to lift a bundle of iron bars and lowered these into the scaffold which was on the 3^rd floor.  D3 was the worker who was bundling the iron bars together which he hooked onto the chains of the crane for the lifting operation.  D3 released the hooks after the iron bars were placed inside the scaffold.  As the chains of the crane were being lifted up by Yip the scaffold toppled.  The scaffold fell with the iron bars and the plaintiff was struck at his right leg.  The plaintiff sustained a serious right ankle injury as a result of the accident.  One of the plaintiff’s female co-workers was also injured.

8. At the commencement of the trial the plaintiff settled his claims against D1, D2 and D3.  An order was made by consent on 4 October 2007 that there be judgment for the plaintiff against D1, D2 and D3 in the sum of $3,444,426 (inclusive of pre-trial interest) and costs to be taxed if not agreed.  It was also ordered that the plaintiff would give credit for the sum of $644,426 received as employee’s compensation.  The balance judgment sum of $2,800,000 was to be paid to the Director of Legal Aid on behalf of the plaintiff within 21 days.  The plaintiff’s own costs was to be taxed in accordance with Legal Aid Regulations.

9. The remaining issue left to be determined was the apportionment of liability between D1, D2 and D3.  It is common ground that apportionment of liability should be between D1 on the one hand and between D2 and D3 on the other hand.

10. I heard evidence from the plaintiff.  I also heard evidence from the crane operator Yip as well as from Mak Man Yan (“Mak”), D1’s site assistant supervisor at the time, and from Chan Hei Ching who provided safety consultancy services to D1.  Cheung Kai Woon (“Cheung”) a site supervisor employed by D2 also gave evidence before me.  However, D3 who had made a witness statement and who was present in Court during the trial did not give evidence before me.

11. I have no hesitation in accepting the evidence of the plaintiff and Yip whom I found to be truthful and reliable witnesses.  I also accept the evidence of Mak and Chan Hei Ching save that where Mak gave evidence to the effect that at the material time D1 did not offer safety induction courses to workers at the site, I prefer the evidence of Chan Hei Ching to that of Mak.  I think Mak must have been mistaken as to this.

12. I have no hesitation in rejecting the evidence of Cheung as to what happened at the time of the accident.  He was not a credible witness.  He was discredited in cross-examination.

13. Apart from the witnesses who gave evidence, D1 also relied on admissions made by D3 in his declaration to Ng Yuk Bun, the Occupational Safety Officer of the Labour Department, made on the same day of the accident as well as admissions made by D3 in his evidence in January 2001 at the San Po Kong Magistrate’s Court in the unsuccessful prosecution against D1.

14. Mr Lin, for D1, submitted that liability should be apportioned as to 20% on the part of D1 and 80% on the part of D2 and D3.  Mr Hung, for D2 and D3, submitted that liability should be apportioned as to 30% on the part of D2 and D3 and 70% on the part of D1.

15. There is no dispute that the scaffold toppled with the iron bars which struck the plaintiff causing him a serious right ankle injury.  He suffered a bimalleolar fracture at the right ankle i.e. a fracture at the distal fibular and fracture at the medial malleolus of the right ankle.  He was operated on after admission to hospital for open reduction and internal fixation of the fracture with plate and screws.

16. It is necessary to consider why the scaffold toppled with the iron bars which struck the plaintiff causing him a serious right ankle injury.

17. On the evidence of the plaintiff, which I unhesitatingly accept, I find that at around 8 a.m. on the morning of the accident the plaintiff was working with two female co-workers and another male co-worker on the 3^rd floor of the site.  The plaintiff was responsible for taking over the wooden boards from the floor below.  At the time of the accident he was squatting down with his back to the 3^rd floor and he was facing the 2^nd floor waiting for the wooden boards to be delivered from the 2^nd floor.  Before the accident there was no work carried out by the crane and no one gave any warning to him that work was going to be carried out with the crane.  After the accident, apart from his co-workers there the plaintiff saw only one iron bar worker there on the 3^rd floor.  This must have been D3.

18. The plaintiff said and I accept that when he joined the site as a worker about 9 days before the accident no one told him that when there was to be a lifting operation he had to stay away from that area.  Also, on the day of the accident no one warned him that there would be lifting work and that he should stay away from that area.  He had, as all construction workers were required to, attended a general safety course and had obtained what has been referred to as a green card.  He was adamant that no internal safety training course was provided to him when working at the site.

19. The crane and crane operator was provided by D1 at the site.  As Yip said, and as I accept, in or around April 2000 there were approximately 4 sub-contracting projects being carried out at the site including formwork and steel binding.  Each of the sub-contractors had workers on the site and each of the sub-contractors could use the crane lifting services provided by D1.  However, in the 3 days before and after the accident Yip was mainly helping D2 lift iron bars mostly with the assistance of D3.

20. On the evidence of Yip, which I also unhesitatingly accept, I find that he was the crane operator on the morning of the accident and his task was to use the crane to place iron bars in the scaffold on the 3^rd floor.  As he was working at a height he had to rely on the signaller who was D3 at the material time.  D3 was responsible for hooking the bundle of iron bars to the chains of the crane and for releasing the hooks after the iron bars had been placed inside the scaffold.  I also find that after the hooks were released the chains of the crane were lifted up slowly by Yip after D3 using his walkie-talkie had told him to lift up the slings.  The crane was engaged in 2^nd gear when lifting the chains and Yip estimated the speed of 2^nd gear to be about one foot per second which is a slow speed.  He denied that he was lifting the slings at a fast speed.  I believe him.  

21. Yip said that after a short while he heard D3 telling him over the walkie-talkie to stop the crane which he immediately did.  After that he realized that the hooks of the crane struck the scaffold causing it to topple with the iron bars falling out and injuring two workers.

22. There can, in my view, be no doubt that D3 should have held both chains of the crane after releasing the hooks when the iron bars were placed in the scaffold.  The proper and safe procedure for the signaller was to hold the slings and hooks with his hands until they are raised to a height above his head to which he can no longer reach and then to let go of the slings and hooks in the lifting process.  As Chan Hei Ching said, which I accept, throughout the process the signaller should be cautious and focused to ensure that the slings and hooks do not come into contact with any object while they are being raised.

23. That D3 knew of the proper and safe procedure to be adopted is clear from the evidence of Chan Hei Ching whose evidence I accept.  Chan Hei Ching was the one who organized safety induction courses for the site’s workers and he confirmed that D3 did attend safety training courses which he had conducted at the site as well as site safety meetings.  Although Mak said that D1 did not at the time of the accident offer safety induction courses to workers, I think he must have been mistaken as to this.  I prefer the evidence of Chan Hei Ching on this.

24. D3 has also admitted that he attended training courses.  The plaintiff was not asked to attend safety induction courses before he started work at the site but, in my view, D1 should have ensured that all workers attend the safety induction course before commencing work on the site. 

25. D3 admitted in his declaration to Ng Yuk Bun that he had built the scaffold at around 8 a.m. on the 3^rd floor of the site.  At around 9 a.m. the crane lifted a bundle of approximately 14 pieces of Y32 iron bars with the crane to the scaffold.  He also admitted that when the iron bars were placed in the scaffold he started to untie the bundle at both ends and asked the crane operator to lift up the slings slowly.  He admitted that the hooks at the end of the chain got entangled with the cross braces of the scaffold causing the scaffold and the iron bars to fall down and striking the plaintiff and the other female co-worker.  He knew that they were working in the vicinity at the time.  He also admitted that the slings were hanging in the air when being lifted up.  It is clear that he admitted that the crane operator was lifting the slings at a slow speed and the slings were left hanging in the air.  It is obvious that he did not hold the slings with his hands to a height above his head before releasing the same in the lifting process as he should have done.  He also admitted that he did not inform the other workers there that the craning operation was going on and that he did not warn them of the same.

26. The declaration made by D3 was made on the same day of the accident and the admissions against the interests of D2 and D3 contained therein should, in my view, be given great weight.

27. D3 also made admissions when giving evidence in the said magistrate’s court which should also, in my view, be given great weight.

28. D3 admitted that after he had asked the crane operator to lift up the slings he was busy doing something else.  He admitted that the chain was lifted up slowly and the chain was wound around the scaffold and when the chain was pulled up the scaffold leaned and collapsed with the iron bars dropping on the floor.

29. D3 also admitted that he had attended safety training courses and that the normal procedure during the lifting process was for him to hold the chains while they were lifted up slowly until a height that he could no longer reach.  He also admitted that Chan Hei Ching had verified the safe procedure for lifting work with him.

30. Cheung gave evidence that at the time of the accident he was also on the 3^rd floor supervising D3.  He said that after the iron bars were unloaded into the scaffold D3 unlocked the hooks of the chains.  He said that D3 held one chain, not both chains, of the crane.  The other chain was on the other side of the scaffold and D3 guided the one he was holding to the one that was hanging in the air on the other side and brought them together.  He said that D3 asked the crane operator to lift the slings up.  He said that he could hear what D3 said and he was sure that the exact words used by D3 were “operator, please raise the metal hook slowly”.  Cheung said that he heard a voice from D3’s walkie-talkie to the effect that the crane operator was told to hurry up with the lifting and to turn the crane to the right side to lift something else.  After hearing that he said that the crane swung quickly to the right and the hook of the chain hit against the scaffold causing it to fall with the iron bars.

31. Cheung also said that he did not see the plaintiff or the other co-workers before the accident.  He only saw the plaintiff and the other injured co-worker after the accident.  He also said that he did not go over to offer help to the injured persons.  He said that he did not know that persons had been injured.  He even went so far as to say that they were still standing after the accident.  This is not credible.  It is highly unlikely that the plaintiff who had sustained a serious ankle injury would be able to stand after the accident.

32. I have grave doubts as to whether D2 was even there at the time of the accident.  He never gave a statement to Ng Yuk Bun who arrived at the scene at about 10 a.m. which was very soon after the accident.  Although Cheung said that he did inform his boss at around noon that he had witnessed the accident, no statement was taken from him by anyone.  His witness statement was only made on 15 November 2004.

33. Cheung also contradicted parts of his first witness statement made on 15 November 2004.  He was unable to satisfactorily explain why he had said in his first witness statement at paragraph 12 that he had seen the plaintiff enter the area on the 3^rd floor and that he had yelled at him to leave warning him of the danger when in his evidence in Court he said that he did not see the plaintiff before the accident.  He was also unable to satisfactorily explain why at paragraph 12 of his first witness statement he said that he could not hear D3’s conversation with the crane operator when in evidence he was sure of the exact words used by D3 which he heard.

34. I have no hesitation in rejecting Cheung’s evidence.  His evidence is contradicted by Yip’s evidence and the admissions of D3.  Where the evidence of Cheung is at variance with the evidence of Yip and the plaintiff, I have no hesitation in preferring their evidence to that of Cheung whose evidence I reject.  He was neither a credible nor reliable witness.  I have no hesitation in rejecting his evidence as to what happened at the time of the accident.

35. It is clear that as D3 has without explanation not been called to give evidence at the trial before me even though he had made a witness statement and was clearly available to give evidence as he was present in Court during the trial, an adverse inference should be drawn against D2 and D3 (Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434).

36. I find that the accident was caused because D3 failed to hold the slings with his hands while the lifting process was being carried out.  He should, as he well knew, have held the slings up to the height that he could reach before releasing the slings.  Because he did not hold the slings, the slings were left hanging in the air and the chain or chains got entangled with the cross braces of the scaffold while the crane operator was lifting the slings up slowly.  This caused the scaffold to topple and the scaffold and iron bars fell onto the ground which struck the plaintiff at his right ankle causing him the serious ankle injury.  D3 also failed to warn the plaintiff and the other co-workers to stay away from the vicinity of the lifting operation before carrying out the lifting operation.  They were only about 2.2 m away from the scaffold at the time as found by Ng Yuk Bun in his investigations as set out in the Accident Report.

37. In my judgment the main cause of the accident was the result of the negligence of D3 for which D2 is also vicariously liable.

38. D2 is also liable in negligence in failing to ensure that the lifting operation was carried out safely and to safeguard other workers on the site who may be endangered by the lifting operation.  Thus, D2 is also primarily liable apart from being vicariously liable for D3’s negligence.

39. It is not disputed that D1 is also liable for the accident and the injuries to the plaintiff.  It seems to me that D1 as the principal contractor of the site had control of the site.  D1 provided the crane and the operator which was available for the use of the sub-contractors at the site.

40. Mr Lin submitted that on the evidence reasonable steps were taken by D1 to discharge its duty of care.

41. I accept that D1 did provide safety induction courses and there were also site safety meetings at the site.  There were also inspections at the site conducted by Chan Hei Ching and the other people he mentioned including Mak.  However, it is clear that D1 did not have a site safety officer on the site at all times when work was being carried out.  Chan Hei Ching patrolled the site twice a week in addition to the inspections by the other persons.  At the time of the lifting operations, however, D1 did not provide a supervisor to supervise the lifting operation to ensure that the lifting was done safely and to avoid any danger to other workers like the plaintiff.  There was only one crane at the site so there would only be one lifting operation at a time.  As this was obviously a dangerous operation in the site where workers were present, it would have been reasonable, in my view, for D1 to provide a supervisor to oversee the lifting operation.  By failing to do so D1, in my view, failed to provide and maintain a safe and proper place or system of work.

42. D1 is also liable, in my view, for breach of statutory duty.

43. I find that the injuries to the plaintiff were also caused by the breach of statutory duty on the part of D1.  D1 was, in my judgment, in breach of :

(1)	Regulation 38A(1) of Construction Sites (Safety) Regulations (Cap. 591) as being the contractor responsible for the site, D1 failed to ensure that every place of work on the site was, so far as is reasonably practicable, made and kept safe for any person working there; and
(2)	Regulation 49(1) of Construction Sites (Safety) Regulations (Cap. 591) as being the contractor responsible for the site, D1 failed to take such precautions as are necessary to prevent any workman working at any place on the site from being struck by any falling material or object.

44. D1 as the principal contractor had control of the site and was also the occupier of the site.  D1 had a sufficient control of the site to be able to ensure the safety of the plaintiff and other visitors to the site.  D1, in my judgment, also failed in the common duty of care owed to all its visitors under the Occupiers Liability Ordinance (Cap. 314).

45. In Sze Che Sau & others v Dragages et Travaux & Publics (HK) Ltd. & others [2007] 4 HKC 140 I set out the applicable principles at 163 for apportionment of liability between tortfeasors.  At paragraphs 143 and 144 I said :

“	143.	As to the proper basis of apportionment I was also referred to para 4.25 Clerk & Lindsell on Torts (19th Ed) where it is stated:
		‘	There was some initial controversy as to the proper basis of apportionment.  Hilberry J took ‘responsibility’ to refer to the extent to which each tortfeasor caused the damage, and not to their relative culpability.  Hallett J, on the other hand, declined to follow this interpretation, and it is now well-established that neither element should be disregarded.  For example, in Downs v Chappell a negligent defendant was required to contribute equally with a fraudulent defendant on the basis that the negligence had a greater causative impact.  Hobhouse LJ said that: ‘It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance.  A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact.’
	144.	The apportionment of damages is substantially a matter of discretion.  The court must apportion the damages between the parties who are actually before the court.  It is not relevant to have regard to the possible negligence of some other person, not a party to the proceedings, whose fault may have contributed to the damages suffered by the injured plaintiffs and the deceased (para 4.25 Clerk & Lindsell).”

46. I was also referred to a number of authorities by counsel as to how liability was apportioned in those cases.  Each case, however, depends on its own facts.

47. On the facts as I have found them, in my judgment, it seems to me that D2 and D3 on the one hand bear the major blameworthiness for the accident.  In my judgment, having regard to their respective responsibilities it is just and equitable to apportion liability at 40% on the part of D1 and 60% on the part of D2 and D3.  I so order.