LI KAI CHEONG v. LAM YING WAI & OTHERS

HCPI 920/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.920 OF 2000

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J U D G M E N T

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1. The plaintiff claims against the defendants for damages for injuries suffered by him as a result of an accident at work on 11 November 1997. The accident occurred at the building site of what is now Festival Walk in Kowloon. At the relevant time, the 4th defendant was the principal contractor and the 3rd defendant was its subcontractor for fitting out the interior of the building. The 2nd defendant was a subcontractor to the 3rd defendant before the fitting of windows and the 1st defendant was a sole proprietor carrying on the business of metalwork fabrication. He had been subcontracted by the 2nd defendant to make window frames. It is not in dispute that he was the plaintiff's direct employer.

2. In these proceedings the 1st and 4th defendants are represented. The 2nd defendant was absent at the trial. The 3rd defendant is in liquidation and the liquidators have advised that they did not intend the 3rd defendant to be represented at the trial.

3. The plaintiff was himself an independent contractor who had been engaged by the 1st defendant to make window frames. However, the site was not yet ready for the plaintiff to commence his work. Accordingly, he was employed in the meantime by the 1st defendant to work on a casual basis, and it was in the course of this employment that the accident occurred.

4. The accident occurred when a movable platform or scaffold ("the scaffold") on which the plaintiff had climbed toppled over the edge of a light well and fell from Level 3 to Level 1 of the building, a distance of about 15 metres. The plaintiff also fell down to Level 1 and suffered injuries. Quantum is not in dispute and has been agreed at $2,700,000.

Evidence

5. Evidence for the plaintiff comes from the plaintiff himself, his fellow worker Mr Chan and of the factory inspector, Mr Ho. I will deal first with the evidence, mainly from Mr Ho, relating to the construction of the scaffold.

6. According to Mr Ho's report the scaffold measured about 1.2 m by 2.4 m by 3.8 m high, with a guard rail of about 1.07 m in height. The outside diameter of the tubes was 50 mm. The working platform was formed by two wooden boards of 0.92 m in width and 1.8 m in length. From the photographs of the broken scaffold it can be seen that it was constructed of prefabricated frames held together by horizontal tubes to form a box structure. There were also diagonal cross pieces, bolted to the vertical standards of the frames on the long sides of the box structure.

7. Castor wheels were fitted to the standards at the corners of the two outer frames, so that the platform could be moved on them. A castor wheel was shown to the court but it was agreed that this was not exactly the same as the castors on the scaffold; those appear smaller in diameter from the photographs. Each castor had a vertical spindle about 10 cm long, which fitted into the bottom of the standard and could be held in place by a safety pin passing through the standard and the spindle. The witnesses say that each castor was fitted with a locking brake, in the form of a lever which, when pushed downwards to about 45 degrees below the horizontal forced a metal plate against the wheel. According to PW1 there was a ladder fixed to the end, or short side of the box structure; he climbed it.

8. From the factory inspector's accident report, and from photographs taken by him and by the 4th defendant's safety officer, Mr Lui, it appears that the scaffold toppled over the edge of the light well close to its corner, carrying away some wooden railings which had been erected there. Metal railings on the adjacent edge of the light well were intact. About 1 m from the edge over which the scaffold toppled and parallel to it there was a concrete beam about 3.5 m long and 24 cm square lying on the floor.

9. After the accident, all four of the castors of the scaffold were found on Level 3. Two of them are shown in photographs, lying on or near an expansion joint which runs parallel to the edge over which the scaffold toppled and more or less in line with the corner of the light well. The other two are shown lying on the part of the floor adjacent and at right angles to the part from which the scaffold toppled. Of the two castors shown lying near the expansion joint, one has its brake lever apparently in the locked, and the other in the unlocked position.

10. I turn to the evidence of what happened, which comes from the plaintiff himself and from Mr Chan Kai Tai, PW2. The plaintiff made four statements in all, on which he relied as part of his evidence in chief. What appears from the statements is that he and Mr Chan Kai Tai were assigned to work on the anti-burglary netting on Level 3. It was necessary to push the scaffold to the place where they had to do this work. When they had pushed it was several metres, the top of it became entangled with an electric cable hanging from the ceiling of Level 3. The plaintiff climbed up the ladder of the scaffold in order to free the cable but when he did so the scaffold toppled over and fell into the light well. In his first statement, the plaintiff said that the that he had asked Mr Chan to lock the wheels. In the second statement, he said that he could not remember whether or not in the wheels were locked. In his third statement he also said that he had asked Mr Chan to lock the wheels. In his fourth statement, he said he said that when he reached the top and removed the loose wire, the scaffold wobbled and fell over. He also said his supervisor Mr Lee was present at the scene. Mr Lee was responsible for supervising the performance and he fully understood that the scaffold could not be moved until it was freed from the cable.

11. In the oral evidence, the plaintiff said that this Mr Lee was a foreman who assigned him work on the days when he worked at the site. On the day of the accident Mr Lee told him and Mr Chan to go and move the scaffold to the site where they were to work. He indicated which scaffold they were to use.

12. When the scaffold became entangled by the overhanging cable, the plaintiff asked Mr Chan to lock the brakes. This was done by stepping on the brake levers. Mr Chan locked all four of them.

13. Cross-examined, the plaintiff said that he had been working in building sites for more than 18 years. He was familiar with metallic tube scaffolds like this one and how to use them. He knew the safety aspects. He said that normally there would be a separate line to secure the top of the scaffold to the structure but only on high scaffolds, on which he had not work. Here, the flooring was made of poured cement and was a little uneven, with a little debris on it. It was. There were expansion joints in the floor. The scaffold was heavy and needed three men to push it including Mr Lee. They had moved the scaffold one or two metres when it caught on the cable. They would have hand to move it about another 10 metres to the place where they were to work.

14. The plaintiff could not remember exactly what happened. He said that he had started to climb the ladder and the next thing he knew was when he woke up in hospital.

15. I asked him whether the wheels of the scaffold were relative to the concrete beam but he could not remember.

16. He said that the brake lever needed some force to lock it. It was usually pushed down with the foot and pulled up with the hand. He said that Mr Lee asked him and Mr Chan to fix the castors, i.e. lock them, before he climbed up. Before he did so he shook the frame to check that it was safe. He was satisfied that it was secure so he climbed up. He could not remember whether he had checked that the locking pins were in place to hold the castors spindles into the standards. He disagreed that the point where the accident happened was near to the place where he had to work or that the scaffold was being moved while he was on top of it.

17. PW2, Mr Chan Kai Tai had also given the statement to the factory inspector and this he relied on in his evidence. He confirmed that as he and the plaintiff were pushing the scaffold, the top became entangled by a wire. He was responsible for locking the wheels which he did and after that the plaintiff climbed up the scaffold. After the plaintiff had reached the top of the scaffold and removed the wire he and the scaffold both fell over. He did not push the scaffold again after the plaintiff climbed it.

18. In oral evidence, Mr Chan said that all four castors were locked. After that Mr Lee asked the plaintiff to climb up the scaffold which he did. When the scaffold toppled over the edge one of the castors struck Mr Chan's leg and he was slightly injured.

19. Mr Chan knew that there should be pins for the castors. Because of the castors came out of the frame when it toppled over, he concluded that the pins were not locked but in fact he did not notice the time of the accident whether the pins were in place or not. As to the position of the scaffold he said that it was on the side of the concrete beam away from the edge.

20. Cross-examined, Mr Chan said that Mr Lee had instructed him and the defendant to work on the anti-burglary netting. They were not told which specific scaffold to use. He and Mr Lee selected one and told Mr Lee, who had to clear the use of the scaffold with the other companies on the site, because the scaffold did not belong to the 1st defendant. He did not know who the owners were. He, Mr Lee and the plaintiff pushed the scaffold towards where the work was to be done. When the scaffold became entangled with the wire they had already pushed it for about 25 feet. It ran smoothly on the floor. He did not notice what the surface was like. He saw Mr plaintiff untangle the wire. Then that the scaffold went over. It did not wobble before it went over and there was no wobbling between the time when he locked the wheels and when the plaintiff climbed the scaffold. He noticed nothing wrong with the scaffold. He denied that scaffold went over while it was being pushed.

21. PW3, Mr Ho, the factory inspector, said that he had arrived at the scene after the accident. He went to the office first, and then that to Level 1 and Level 3. At Level 3 he found the castors at the places shown in the photographs. He did not find any safety pins and concluded from this and the positions of the castors that they had not been pinned into the standards. He gave various evidence about previous inspections of the site when defects were found and when improvement notices had been issued.

22. Mr Ho could not say whether anyone had moved the castors before the photographs were taken but confirmed that he found them in the positions shown in photographs. He had first gone to the office where he found the 4th defendant's safety officer, Mr Lui, DW1. Mr Lui had told him that two persons were working on the scaffold, one on the top, and it had toppled over and the man on the top had fallen with it. He had been unable to find any eyewitnesses. No one told him that there had been three persons involved in working with the scaffold.

23. Mr Ho could not remember if he had moved the brake levers of the castors which he found but his recollection was that all four of them had been checked and found to be locked. He was asked various other questions which went to the issue of safe system of work and the statutory duties of the contractors with respect to the movable scaffolding but I do not think that I need to rehearse that evidence. It is clear that when he investigated with the accident with the plaintiff and Mr Chan, he was never told anything about Mr Lee, or any instructions given to them by Mr Lee.

24. The only witness for the defendants was Mr Lui who was the safety officer of the 4th defendant. He said that the 3rd defendant was responsible for the construction and maintenance of the scaffold and further that the foreman Mr Lee was a foreman employed by the 3rd defendant. He gave evidence about the relationships of the companies, the safety officers and so forth. I will deal further with these aspects below.

25. As to the accident in itself he said that when he arrived at the scene he found the scaffold already fallen over. Workers told him that it had toppled over and somebody had been injured. He found Mr Chan and spoke to him on level 3. There he found the fence broken and the castors on the ground. Mr Chan simply told him that while the scaffold was being used it had toppled over.

26. He said that he did not see anyone tamper with the wheels before the factory inspector arrived. He had asked a worker to spray red paint to mark the position of the castors. Cross-examined he said that the to he arrived on the scene about five minutes after the accident. He was not sure when he had told the man to spray the plaintiff although it appeared from one of the photographs that a man was spraying paint after the factory inspector arrived and when the photograph was being taken. He had himself examined the wheels and found them locked. He agreed that the scaffold had been very heavy.

27. He said that he had constructed another similar scaffold and had made a videotape. This was shown in court. It shows a man climbing up the scaffold, and leaning out over all four sides at the top. The man then climbs down by way of the diagonal bars on the side. Mr Lui climbs up the framework by the diagonal bars, and hangs there twice about halfway up with one foot on the frame and one free. The whole structure appears stable with Mr Lui hanging on the side of it. He is a big man and his evidence is that he weighs over 100 kilogrammes.

Evaluation

28. I have described the layout of the scene and the scaffold in some detail because it is very difficult to understand how the accident could have happened at all. The scaffold was standing on a level floor with some debris on it, but no great irregularities. The plaintiff says that he shook the frame to make sure it was safe before he climbed the ladder so everything should have been stable. Much importance seems to have been attached to the lack of locking pins holding the castor spindles into the standards. However the evidence is that the castors were all in their standards and the scaffold was stationary. One would not expect a castor or castors to come out of the standards under these circumstances. There is no evidence as to whether or not there was any catastrophic failure of the frame before the accident; it was obviously broken and distorted by the fall but whether anything failed, or moved so as to cause the accident is not clear.

29. Mr Lui's reconstruction shows a very stable structure, but we do not know if it was made of the same materials or from the same drawings as the scaffold. In fact the layout of the frames themselves seems to be slightly different and Mr Lui's model has the ladder on the long side rather than on the end. The plaintiff himself says that the scaffold was less stable than the one seen on videotape.

30. It is easy to see that the accident could have happened if the scaffold was being moved, and passed over an irregularity on the floor which caused it to lose a castor, so that it tipped over, or if it was pushed sideways against the concrete beam on the floor so that the momentum caused it to topple. However the witnesses say that it was stationary and in a stable position, with all the castor wheels locked. It is difficult to see how the accident could have happened if what the witnesses say is true.

31. Mr Sham for the 4th defendant argues that the witnesses cannot be telling the truth. Something else must have been going on, such as that the scaffold was being moved with the plaintiff on top of it. The witnesses cannot be believed, but there is no evidence on which any other finding of fact could be based and therefore the plaintiff simply cannot satisfy the court as to how the accident happened.

32. The 4th defendant's argument is very attractive, but there was nothing in the witnesses' demeanour which might have led me to disbelieve them. It is strange that there was never any contemporaneous mention of Mr Lee, the 1st defendant's foreman. Apart from this, however, they appeared entirely credible. It is true that there is evidence that a similar structure, built later, was perfectly stable, but of course we do not know exactly what differences there were. There were some differences, certainly; I have mentioned the difference between the frames and between the castors on the scaffold and that shown to the court. But one cannot be satisfied that the structures were exactly the same and there is simply no evidence to rule out some kind of structural failure or instability, or even something loose which might have caused the plaintiff to lose balance and shift his weight. Any of these might have caused the scaffold to topple when the plaintiff climbed it. I am satisfied that the accident happened as the plaintiff and Mr Chan say. The only possible explanation for the accident is that there must have been some defect in the scaffold. This is apart from that matter of the locking pins; which see below.

Res Ipsa Loquitur

33. The plaintiff of course relies on the doctrine of res ipsa loquitur. Indeed Mr Ramanathan for the 1st defendant accepts that if the accident happened as the witnesses say, the doctrine would apply. Res ipsa loquitur is not a magic formula but a rule of evidence. It applies where :

(1) the occurrence is such that it would not have happened without negligence the thing that inflicted the damage was under the sole management and control of the defendant or of someone for whom he is responsible or whom he has a right to control;

(2) there is no evidence as to why or how the occurrence took place. If there is such evidence, the appeal to res ipsa loquitur is inappropriate for the question of the defendant's negligence must be determined on such evidence.

See Scott v. London and St. Katherine Docks [1865] 3 H & C 596.

34. Here the accident could not have happened without negligence; scaffolds do not normally topple when a man climbs them, unless there is something unstable about them and an unstable scaffold amounts to unsafe equipment and an unsafe system and/or place of work. The scaffold was under the management and control of the defendants; to what extent I will explore later. There is no evidence as to what made the scaffold topple. So doctrine of res ipsa loquitur must apply here.

35. There is on the evidence nothing to suggest contributory negligence on the plaintiff's part. It is suggested that failure on his part to check that the safety pins were in place could amount to contributory negligence, but it is clear that whatever might have caused the accident, if the scaffold was stationary and in a stable position the presence of absence of the pins would have made no difference. I realise that the factory inspector gave his opinion that the accident might be due to the castors not being properly fixed to the standards as they would be easily detached when the scaffold was subjected to a couple of force. The couple referred to is presumably the technical term for forces tending to cause rotation. The point is that whatever force may have rotated the scaffold off the vertical and made it topple, the castors would not have come out before it toppled, and once it did they would have made no difference. Only if the scaffold had rocked far enough one way for a castor or castors to drop out on one side, and then rocked back onto the standard or standards from which it or they had dropped out, could this have made a difference; and there is no evidence that this happened.

Liability and Apportionment

36. The plaintiff's claim is based on negligence and breach of contract of employment, breach of statutory duties under the Construction Sites (Safety) Regulations and breach of the occupiers' common duty of care under the Occupiers' Liability Ordinance, Cap. 314.

37. There is no dispute that the 4th defendant was the principal contractor for the site. It had sub-contracted the fitting-out works to the 3rd defendant; there is before the court the Letter of Acceptance dated 3 December 1996 from the 4th defendant to the 3rd defendant for the tender for the fitting-out works. By Clause 10 thereof the 3rd defendant was made "responsible for the safety, design construction, use, maintenance, upkeep and removal" of all its working platforms and was required to reimburse the 4th defendant for "all costs for any claims thereby arising".

38. There are also before the court copies of the contractual documents between the 1st and 2nd defendants and the 2nd and 3rd defendants. Under the provisions of the former the 2nd defendant agreed to provide scaffolding for project use free of charge.

39. There is no doubt that the scaffold was provided by the 3rd defendant which was also responsible for its maintenance. This is the evidence of Mr Lui and it is not contradicted. There was attached to the scaffold, in a plastic envelope a Form 5 issued under the Construction Sites (Safety) Regulations, and dated 20 October 1997 to certify that the scaffold was in safe working order; this names the 3rd defendant. There is also a form for the appointment of a competent person for the inspection of scaffolds which bears to be signed by Lee Pak Yeung, Gideon, on behalf of the 3rd defendant.

40. There is, it seems, no other possible inference from the facts but that there was some defect in the scaffold. There is no doubt that the 3rd defendant, being the contractor responsible for the scaffold, is liable for breach of statutory duties in respect of the scaffold under Regulation 38D of the Regulations. The 4th defendant does not dispute that it is also liable as the contractor responsible for the construction site but claims to be indemnified by the 3rd defendant under the sub-contract for its share of any damages awarded.

41. There is further no doubt that both the 3rd and 4th defendants were the occupiers of the building site, and the plaintiff a visitor thereto for the purposes of the Occupiers' Liability Ordinance. The 3rd defendant was in occupation of the scaffold for it was its foreman, Mr Lee who had told the plaintiff to use it.

42. The 3rd and 4th defendants cannot escape liability for this accident. However by the terms of the contract between them the 4th defendant is entitled to indemnity from the 3rd defendant.

43. The 1st defendant as employer owed a non-delegable duty to provide the plaintiff with a safe place and system of work, competent employees and supervision, and adequate plant and appliances. In fact he delegated his duties in respect of the scaffold to the 3rd defendant. There is no evidence that the 1st defendant carried out any inspection or did anything else to make sure that the scaffold was safe.

44. The 1st defendant argues that he could have done nothing to prevent the accident. He was a labour-only metalwork contractor and the 2nd defendant was supposed to provide the scaffold for his use. The plaintiff was employed to do casual work for the 3rd defendant while waiting for the site to be ready for the work that the 1st defendant had agreed to do. Factually there was nothing which might have indicated to the 1st defendant or any of his employees that the scaffold was defective. It was a latent defect. The 1st defendant relies on Chan Kit Man v. Rayable Consultants Ltd & Ors., [1999] 2 HKC 839 where the employer of a workman fatally injured by the collapse of a crane due to a latent defect escaped liability on the basis that the employer's duty was one of reasonable care and the defect was not discoverable by the employer by reasonable inspection, nor was the employer put on notice of inquiry as to defects.

45. I think this must be right. The only explanation for the accident is that there was some latent defect in the scaffold. The evidence is that it had been moved for some distance before the accident, and appeared to be sound or else the plaintiff would not have climbed it. The 1st defendant was entitled to have a scaffold supplied by the 2nd defendant but in fact it was supplied by the 3rd defendant directly. There was nothing to put the 1st defendant on notice of inquiry as to defects in the scaffold. In any event the scaffold had attached to it a Form 5 certificate. It is difficult to see what the 1st defendant or any of his employees could have been expected to do to discharge the duty of reasonable care owed to the plaintiff. It seems to me that the 1st defendant must escape liability on this basis.

46. Everyone seems to have forgotten about the 2nd defendant, which is still in the proceedings, though it was not represented at the trial. Although the 2nd defendant was obligated to provide scaffolding free of charge to the 1st defendant, it was obviously not directly responsible for the scaffold. There was no evidence that it was in any sense an occupier; it seems to have been completely out of the picture because its own work, part of which it had subcontracted to the 1st defendant, had not yet begun. It would not owe any direct duty as employer to the plaintiff. I do not think that any liability for the scaffold could attach to the 2nd defendant but if it did the 2nd defendant would also be entitled to rely on the latent defect.

Conclusion

47. It follows that there must be judgment for the plaintiff against the 3rd and 4th defendants jointly and severally for the agreed damages of $2,700,000 with an order that the 3rd defendant indemnify the 4th defendant therefor. The plaintiff's claims against the 1st and 2nd defendants will be dismissed.

48. I have been told the final agreed figure of damages but not how it is made up. In order to make the appropriate order for interest I will require to hear the parties on this. At that further hearing I will deal with costs.