MAK KWAI YIN v. USA FUR PROCESSING LTD. AND ANOTHER

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HEADNOTE

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Negligence - Industrial accident - severe burns while using welding equipment - claim against occupier of factory as well as against employer - whether occupier of factory absolved from liability by engaging independent contractor.

1990 No. A2063

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 11th April 1987 the plaintiff suffered severe burns, particularly to his hands, while he was engaged upon work at the 1st defendant's fur processing factory. He brings this action against the 1st defendant as occupier of these premises and against the 2nd defendant as his employer.

2. The case opened before me on 9th December 1993. Progress was somewhat dilatory as the parties were obviously attempting to minimise the issues.

3. On 13th December 1993 the plaintiff settled his action with both the 1st and 2nd defendants. I was invited to, and did, enter judgment for the plaintiff against both defendants for $1.35m, such sum to be inclusive of interest and to be paid in addition to the Employees' Compensation payment made to the plaintiff by the 2nd defendant in the sum of $170,952.

4. I also made a costs order nisi to the effect that the plaintiff's costs will be paid by both defendants to be taxed if not agreed, save for the hearing on 10th December 1993, the parties having agreed that there should be no order as to costs in respect of that day. I gave the plaintiff liberty to apply in respect of the costs. The plaintiff's costs were ordered to be taxed according to the Legal Aid Regulations.

5. I also gave leave for payment out to the plaintiff's solicitors of the sum in court inclusive of interest in part satisfaction, subject to the usual legal aid charge. Payment of the balance was ordered to be made within 28 days.

6. This effectively disposed of the plaintiff's claim against both defendants, and I was left to hear the evidence so that I could make an apportionment as between the two defendants.

The facts

7. It appears that the plaintiff, who was born on 16th September 1962, worked for the 2nd defendant from 25th August 1986 until mid December 1986. He went back to work for the 2nd defendant on 31st March 1987 and was injured at the 1st defendant's premises some 11 days later.

8. The plaintiff left school in 1981 and started working for his father at his dockyard. It was at this employment that he learned how to weld and to use oxyacetylene equipment. He worked for his father for some 5 years.

9. The plaintiff's work with the 2nd defendant involved machine maintenance.

10. The 2nd defendant had carried out quite a lot of small engineering works for the 1st defendant. At the time of the plaintiff's accident, the 2nd defendant was engaged under a contract whereby he was to heighten a number of tumblers used by the 1st defendant for the purposes of drying fur. The work consisted of cutting the metal frames which held the tumblers in place and inserting, by welding, a new piece of metal which had the effect of raising the tumblers further off the ground. The cutting and welding was carried out by the use of oxyacetylene equipment which was used by both the plaintiff and his co-worker Mr. Cheung.

11. The accident occurred at about 3.30 p.m. on 11th April 1989. Mr. Cheung had been using the oxyacetylene equipment but he said that he felt unwell and wanted some fresh air. The plaintiff duly took over. A few minutes after he took over the equipment the flame of the torch became unsteady. Suddenly there was a fire on the floor and then the fire was all over the place. The plaintiff did not hear any sound although other workers including Mr. Wong, who gave evidence before me, stated that he heard a 'boom' and he saw fire spread towards the wall. He too was injured.

12. The plaintiff suffered severe burns to his hands, face and body. He was wearing a cloth face mask, but he was not wearing gloves nor was he using a face shield.

13. The cause of the fire has never been accurately identified. No flammable liquids were discovered by the Fire Services Department in the area of the drying room. The oxyacetylene equipment was checked and was found not to be leaking and the photographs of it do not indicate any burning to the cylinder or the pipes leading from the cylinder.

14. I heard evidence from Dr. Mabbott who is the Safety Officer at Hong Kong University. He points out that although no flammable liquids were found in the drying room area, no one seems to have checked on the liquids used for the washing of the furs in the washing area. Furs, once washed, were placed on trolleys and taken into the drying room, and Dr. Mabbott questions whether liquid used for the washing process might have dropped onto the floor of the drying room.

15. The relevance of this is that in the drying room, the furs were placed in tumble dryers and saw dust was inserted to assist in the drying process. Dr. Mabbott has suggested that it is possible that particles of fine saw dust and possibly bits of fur might have been impregnated with the flammable liquid from the furs causing the saw dust to be particularly combustible.

16. Fortunately, as both defendants have settled with the plaintiff and have thereby recognised some liability for the accident, I do not have to decide precisely how this accident occurred. However, on the evidence I have heard, I am satisfied on the balance of probabilities, that it was caused by the ignition of particles of saw dust possibly mixed with particles of fur either in the air or on the floor which may have been impregnated with some flammable liquid from the washing area. Even if there had been no flammable liquid mixing with the saw dust, I am satisfied that the saw dust on its own was the substance that caught fire on this occasion. Every fire has a cause and I am satisfied that this fire occurred roughly in the way described by Dr. Mabbott.

The case against D1

17. It is suggested by Mr. Andrews, who appeared for D2, that D1 should bear the major proportion of liability for this accident. He points out that D1 knew that D2 's workers would be using oxyacetylene equipment for this work as they had done on similar works carried out previously. They knew, he submitted, that they used saw dust in the drying process and that it was inevitable that the air in the location of the works would be reasonably dense with particles of saw dust and possibly of fur which were obviously a hazard.

18. It also appears clear from the evidence that Mr. Cheung, the plaintiff's co-worker, asked D1 to turn off all the machines in the drying room whilst he and the plaintiff were working therein. This request was communicated to the 2nd defendant himself who spoke to the management of D1. D1 was not prepared to agree to this being done, no doubt because it would have hampered their production line. All they were prepared to do, which was not much in the circumstances, was to turn off the tumbler upon which the workers were actually working. The result of not turning off all the machines was to ensure that the air where the plaintiff and Mr. Cheung worked with the oxyacetylene equipment was likely to be, and I find it was, fairly dense with particles of saw dust and possibly particles of furs. Even if the floor had been swept, nevertheless the saw dust would soon accumulate again as a result of the tumbling process.

19. I asked Dr. Mabbott about the precautions he would have advised in the circumstances and he suggested that all the machines should have been turned off whilst oxyacetylene equipment was being used. The area where this equipment was to be used should have been cleared of saw dust and the floor sprinkled with water. Dr. Mabbott suggests that the ideal situation was for the welding work to have been done outside the premises thus removing it from the source of ignition.

20. In summary, the case against D1 was that the cause of the accident was to be found in the condition existing at the premises at this time. It is suggested that D1 should have warned the plaintiff and D2 of the risks inherent in using this equipment given the presence of possibly flammable substances in the area where the plaintiff was required to work. It is also suggested that D1 was negligent in not turning off all the machines which were creating the dust filled atmosphere.

The case against D2

21. D1 relies upon the fact that it employed competent independent and expert contractors to carry out the work. D2 was well aware of the conditions at the factory and should have taken all reasonable necessary steps to protect his employees. It is argued that D2 failed to provide a safe system of work for his employees.

22. D1 relies upon the fact that ventilation was provided and that it was on at the material times. Miss Chan points out that no flammable liquids were discovered in the tumbling section although the position is not so certain in regard to the washing section. Miss Chan also points out that the plaintiff was permitted to work on the premises without using any gloves or a face mask.

The law

23. The duties of an employer towards his employee with regard to the provision of a safe system of work are too well known to be repeated.

24. Similarly the liability of an occupier of premises under the Occupier's Liability Ordinance is also too well known to be set out.

25. What this case is said to produce is a tension between these two duties owed to the plaintiff by different defendants.

26. Miss Chan submits that on the basis of Haseldine v. Daw & Son Ltd. [1941] 2 KB 343, the duty of care of the occupier of premises to invitees was discharged by the engaging of competent experts. In that case, the plaintiff was using a lift in a block of flats. The lift fell to the ground and the plaintiff was injured. He sued the landlord and the engineers engaged by the landlord to make periodical inspection to the lift. On this basis, the Court of Appeal held that the judge was right to hold the engineers liable but wrong to hold the landlord liable.

27. The facts of Haseldine v. Daw are very different to the facts before me. Negligence is invariably a question of fact, having regard to all the circumstances of the individual case. In Haseldine v. Daw, the landlord discharged his duty of care to the plaintiff by contracting with the engineers and leaving technical matters relating to the lift in their hands. The landlord was ignorant of these technical matters.

28. In the present case, D1 knew perfectly well the nature of the operations and processes that were conducted on the factory premises, and was or should have been aware of the dangers inherent in this process. True, D1 engaged D2 to carry out certain works at the site, but I fail to see the analogy with Haseldine v. Daw, because D2 was not engaged to deal with matters arising from D1's operations which unfortunately were still going on and the time when the welding work was being carried out.

29. Whereas it may be true that D1 relied upon D2's skill and knowledge in relation to the alteration and repair of the tumblers, D2 was not an expert in the processes carried out on the premises nor was he an expert on the likely impact between the works he was required to carry out and the processes carried out at the same time at the factory.

30. In Wilson v. Tynside Window Cleaning [1958] 2 QB 111, a window cleaner employed by the defendants was injured when he fell after a window handle on to which he was holding gave way. He had been an experienced window cleaner for some 14 years. The Court of Appeal emphasized that an employer owed a duty to take reasonable care for his employee's safety. This was a single duty of care although frequently sub- divided in relation to premises, tools and systems. Pearce L.J. dealt specifically with the situation where an employee is required to work on a third party's premises. At p. 121, he said:

"Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master's own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between these extremes are countless possible examples in which the court may have to decide the question of fact: Did the master take a reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master's premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man's own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter. So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable care."

31. In the same case at p.124 Parker L.J. put the matter thus:

"That general duty applies in the circumstances of every case; but the governing words "reasonable care" limit the extent of the duty in the circumstances of each case. Accordingly, the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary."

32. In Thomson v. Cremin [1953] 2 AER 1185, the appellant shipowner had chosen to employ independent contractors to fit and secure a shore in the ship. As a result of negligence on the part of this independent contractor the plaintiff, the stevedore's labourer, was injured. The work in question in that case did not appear to have called for any special technical knowledge or experience which an ordinary shipowner did not possess. The House of Lords held that the duty was not discharged merely because he entrusted performance to an independent contractor.

33. I accept that D2 had a duty to D1 to appreciate and guard against any special risks which were ordinarily incident to the work he had to perform, but that the existence of that duty does not absolve D1 from its responsibility for the safety of the conditions of its premises. Further I am satisfied that there was upon D1 a positive duty to call attention of D2 to any unusual risks in existence at the premises at the relevant time - a fortiori risks which directly impinged on the work (welding with oxyacetylene equipment) which D1 knew that D2 and his employees were to carry out.

34. I, therefore, conclude that both defendants owed a duty to the plaintiff and that they both failed to discharge their respective duties. I reject the submission that D1 discharged its duty merely by engaging D2 to carry out its work. By settling with the plaintiff both defendants have acknowledged some liability to the plaintiff and thus some negligence on their part.

35. Miss Chan for D1 submits that her clients should only bear a nominal amount of blame which she puts in the region of 2%. With respect, I think this approach is wholly unrealistic.

36. D1 should have been aware of the danger inherent in the factory. They were particularly negligent in not agreeing to turn off all the machines in the tumble room while welding work was being carried out. The continued use of the tumblers contributed substantially, in my judgment, to the increase in the presence of saw dust and possibly particles of fur in the air and on the floor. It would have been reasonable of D1 to turn off these machines and ensure that the atmosphere was dust free. Sweeping and dousing the floor with water would have been an elementary precaution. It is no excuse on the part of D1 to contend that this work had been carried out for a number of days without any incident. As Dr. Mabbott made clear the fire was caused when a particular set of circumstances existed and these circumstances might not have been present for one reason or another during the preceeding days of work. As Dr. Mabbott further made clear the conditions necessary for a dust fire are exceptional and involved the right concentrations in the right place.

37. I am also satisfied that D2 did not discharge his duty of care to the plaintiff. I believe that the provision of gloves and a proper mask or shield would have been an elementary precaution. Further, D1 had been to the premises himself on several occasions and should have taken more steps to ensure that the machines were switched off or insisted that the welding work should only be completed outside the factory premises. D2's position is not assisted by the fact that it carried out a number of contracts for D1 and had been to the premises several times, and therefore had more knowledge on this occasion than if this had been the first time that he had carried out work at the premises.

38. Doing the best I can on the evidence I have heard and in the circumstances of this case, I consider that the appropriate proportion to reflect the respective responsibilities of D1 and D2 is that 60% should be borne by D1 and 40% by D2.

Costs

39. It is common ground between the parties that they would bear the plaintiff's costs in the proportion which I have identified, namely, 60% by the 1st defendant and 40% by the 2nd defendant.

40. I was also invited to make a costs order nisi in the relation to this hearing as from the moment the defendants settled with the plaintiff. Mr. Andrews was frank enough to tell me that he had advised his clients that 70/30 was an appropriate proportion and he was fair enough to submit that that is what I should have ordered. He would, no doubt, submit that my conclusion is far nearer his proposal than the suggestion by Miss Chan that it should be 2% to the 1st defendant and 98% to the 2nd defendant. As D1 has done slightly better than that proposed by D2, I think the only fair way of dealing with these costs is to order that D1 should pay 60% of D2's costs in relation to the apportionment hearing. This means that D2 will have to bear 40% of its own costs. I, therefore, propose to make that costs order nisi.

41. I am grateful to both Counsel, and also to Mr. Pirie while he was dealing with the case for the assistance they all gave me by providing me with short and succinct skeleton propositions of law which I have found of great assistance.

(Submissions on costs)

42. Having heard counsel on costs I now make the following final orders as to costs. The plaintiff's costs will be paid by both defendants and his costs will be taxed under the Legal Aid Ordinance and Regulations.

43. As between the defendants the plaintiff's costs should be borne as to 60% by D1 and 40% by D2 up to 19th April 1993 and thereafter as to 100% by D1. This is because on 19th April D2's solicitors offered to accept a contribution of 50% which was not accepted and they have done better than that before me.

44. As between D1 and D2 there shall be no order as to costs up to 19th April 1993 but thereafter D2's costs shall be borne as to 100% by D1.