SIU CHI MOON v. RAINFIELD DESIGN AND ASSOCIATES LTD

1997 P.I. No. 941
(1993 HCA No. A10109)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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J U D G M E N T

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1. The Plaintiff in this action is now 42 years of age and a trained and experienced electrician. In or about 1986 he set up an electrical lighting business with a colleague, Ng Siu Ki, and called it Easy Engineering Company. It appears to have been an equal sharing partnership. The business employed a small staff on a permanent basis and took on casual labour as and when the work required it. Apart from owning the necessary tools of the trade it owned its own scaffolding which was of the mobile tower type, made up of various prefabricated units which were easy to assemble and take apart, and, no doubt, transport and store. On the 27th November 1990 the Plaintiff fell from a height of about 15 feet when in the process of dismantling an electrical lighting installation on a working site on which his business was a sub-contractor and tragically sustained catastrophic injuries. He claims damages for those injuries against the Defendant company, the main contractor, alleging breach of statutory duty, breach of common law duty and negligence.

The sub-contract

2. Easy Engineering was one of a number of sub-contractors engaged by the main contractor, Rainfield Design and Associates Ltd., to erect and dismantle lighting fixtures in a number of places in and proximate to Chater Garden and Statue Square, including for example the fronts of the Furama and Hilton Hotels and the Banks of China and Hongkong and Shanghai.

3. The principal contractual document is dated the 14th May 1990 and is in Chinese with a certified English translation (Pp.236-238 of Bundle A.) An item of that contract signed by the parties (Mr. Siu Chi Moon on behalf of the sub-contractors Easy Engineering) is the requirement for the sub-contractor (described as the contractor) to "include in the works scaffolding if needed." (§7) The next item which was originally translated as "safety scaffolding" in fact refers, it is agreed, to "protection fan or screen" being material fixed to the outside of scaffolding to prevent objects from falling on to persons below. Again the sub-contractor was to provide this.

4. Item 11 required Easy Engineering to provide "Employee Insurance and observance of labour safety regulations". The last item (14) stipulates that "all safety rules based on Hong Kong Labour Department's labour safety regulations". In this contract, Rainfield, the main contractor is described as co-ordinator. The Plaintiff was specifically identified as the person in charge of the work under the sub-contract.

5. There is another document, entitled "Notes to contractors of 1990 Hong Kong Electric Light Festival". It is not a signed document. Again the original is in Chinese but there is a certified English translation. The Defendants evidence is that this formed part of the contract and was issued to all contractors. It was wide ranging in the matters which it covered. It set out essentially the rules to be observed on the site. Item 6 is the one of principal concern in relation to this case. It requires setting out fully:

"For high level and outdoor work, all workers must have appropriate safety equipment and take safety measures. Those working at high level must wear safety belt and link all tools to avoid an accidental fall. It is the responsibility of the contractor to provide safety equipment, like safety scaffolding(s), safety belt, and high level warning sign. Otherwise, the contractor will have to shoulder all consequences. The suspended box will cease operation when the black storm signal or higher signals are hoisted by the H.K. Royal Observatory. This is to ensure safety."

Again, 'contractor' means sub-contractor and Rainfield is referred to as co-ordinator. The reference to suspended box is that provided by the sub-contractors in item 6 of the contract. It is unarguable that the sub-contractors were required to supply and ensure the use of safety equipment by all workers, and to take safety measures in general. The Plaintiff accepted in his evidence in this case, that the obligation under the contract was upon his firm to provide safety scaffolding and ensure safety generally, and this is, in effect, what he acknowledged in the Magistrates Court when proceedings by the Factory Inspectorate again Rainfield were heard. I shall return to that matter in due course. The Plaintiff cannot however recall having seen these "Notes for contractors" but another sub-contractor who gave evidence, Mr. Chow Chin Kit does in fact recall having a copy of it at some stage. Like the Plaintiff he accepted that sub-contractors would provide all safety equipment and be responsible for any safety measures. I find that the document was distributed to all sub-contractors and that the main contractor made known to them their obligations, in particular safety equipment and safety measures which they all accepted.

The principal contract.

6. Rainfield had secured the contract for the Hong Kong Electric Company's Lighting Festival which was to celebrate the Utility's 100th anniversary of its founding. It was to design and install a series of decorations and illuminations at a number of venues in Central with Chater Garden and Statue Square apparently being the focus. Installation was to be completed by 24th September. Dismantling was to be completed by the 13th November. The Festival was to run from 30th September until 3rd November. It is apparent, thought not of any real significance, save perhaps in one respect, that the dismantling was clearly well behind schedule because the Plaintiff's accident occurred two weeks after the date by which dismantling was to have been completed.

7. The work was to be carried out under the supervision of six employees of Rainfield, including Mr. Henry Lui and Mr. C.Y. Wong.

8. It is clear on the evidence that Rainfield are designers, in the broadest sense of the term and although their experience involves the supervision of the execution of their concepts, they rely entirely upon sub-contractors for the provision of skilled workers, and necessary equipment to enable their concepts to be translated into reality. Electrical sub-contractors were therefore required to effect this, and to provide the means of effecting it. Of course, overall responsibility for the completion of the main contract, in accordance with its terms, would remain with Rainfield.

9. Mr. Wong, one of the Defendants employees and supervisors, had experience of stage and concert design and construction but there is no evidence of his having direct experience of erection, maintenance and use of scaffolding. Mr. Wright on behalf of the Plaintiff, has understandably contended that Mr. Wong's overall experience, and he had some earlier business contact with the Plaintiff, indicated an awareness, and he argues as a consequence, responsibility for safety in all aspects on the site. I will consider this in some detail later.

10. Suffice it to say, for the moment, the experience and expertise of the Defendants did not extend to the day to day understanding of safety and safety equipment in construction work.

11. They relied upon the experience and expertise of their sub-contractors and took steps to require the proper provision and use of safety equipment and measures. Whether this was reasonable and adequate, and whether their duty of care involved a "hands on" approach has to be examined in the light of all the evidence and the law involved.

The site and the statutory obligations.

12. "Construction work" is defined by S.2(1) of the Factories and Industrial Undertakings Ordinance (Cap. 59) as "any work involved in preparing for the installation, inter alia, of any structure or works specified in the third schedule". That schedule specifies in 9 any electrical installation or works designed for the transmission of power (in this case, lighting).

13. By regulation 2(1) of the Construction Sites (Safety) Regulations, a "construction site" is defined as a place where construction work is undertaken, and also any area in the immediate vicinity of any such place used for the storage of plant used or intended to be used for the purposes of the construction work.

14. Under Regulation 38A the Defendants "shall ensure that there is, so far as is reasonably practicable, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works, which access and egress shall be properly maintained."

15. In my view this was clearly a construction site within the definition of the Ordinance. I would have so held in any event upon a common sense interpretation of the term. In fact, in view of the number of buildings and areas which were the subject of the contractual lighting display, each self-contained area, for there were several, was a construction site, of which the Defendants had overall supervision.

16. That the Defendant was the main or principal contractor is beyond argument. It is of no relevance that the Defendant's role was as co-ordinator, supervising that the work executed was in accordance with the contract. That in no way detracts from its position. It does however have relevance outside the statutory obligations imposed by regulation.

17. The Defendant was prosecuted under regulation 38(A) in respect of the Plaintiff's accident. The only defence available to it was that it had taken all practicable steps. It was an absolute offence and it was accordingly convicted. It had not taken all practicable steps. The duty under the statute is non-delegable.

18. In the course of the hearing evidence was given on behalf of the Defendant to the effect that a Factory Inspector had visited the site. There was, it was recalled, an exchange of conversation which can only be interpreted as the Factory Inspector expressing, somewhat cynically perhaps, his surprise that no accident had (by that time) occurred. That is some reflection upon the state of safety or care on a construction site in Hong Kong. That evidence was in no respect challenged by the prosecuting Inspectorate and I see no reason to doubt its reliability. Nor was it suggested that the Defendant had failed to comply with regulation 56 viz. notification to the Commissioner for Labour of the site, nature of work and date of commencement, etc. The Magistrate had specifically inquired about this and been given an answer which was less certain than the Factory Inspectorate ought to give. I am satisfied that had the Defendant failed to comply with this regulation it would have been prosecuted for an offence in that regard as well. Compliance goes to the root of the main contractor's responsibility.

19. The effect of the Factory Inspector's visit to the site, the date of which is unknown, is that this contractor would reasonably expect to be informed if there were matters which constituted a breach of the regulations. He was informed of none.

Rainfield's duty

20. As the contractor responsible for the site, Rainfield had statutory responsibility for safety on the site and that statutory duty was non-delegable. In contrast to English legislation, Regulation 38A imposes upon the contractor responsible for the site obligations for the benefit of "any person (who) at any time works (on the site)" and is not confined to employees. The duty is for the benefit of the employees of sub-contractors. That is the duty under the ordinance, drafted to reflect public policy and make the principal contractor responsible and answerable to the courts for its default.

21. Mr. Law, a consultant in the field of construction work and site safety, who I found to be a most helpful and realistic witness, pointed out that such an obligation was imposed upon the principal contractor because in Hong Kong in the 1990's contractors and sub-contractors tended to be neglectful of their employees' safety and welfare. Some big contractors would exercise control over the use and safety of scaffolding but the smaller ones would not. If however money had been allowed in the contract specifically for safety provisions then safety provisions would be made. In the absence of specific provisions for safety and financial allowance, smaller main contractors would more or less ignore the question of safety.

22. His general experience was that main contractors were not always aware of their duties under the Regulations. The use of ladders on mobile or tower scaffolding was minimal even though system ladders as a component of mobile scaffolding were available.

23. Regulation 38 does in fact put some duties upon sub-contractors. 38C requires scaffolding to be erected and dismantled under the supervision of a competent person and by competent workmen possessing adequate experience of such work. 38D requires that every scaffold shall be of "good construction, ...... strong and sound materials and free from patent defect and properly maintained" and "so fixed, secured or placed in position as to prevent so far as is practicable accidental displacement". There is also a requirement of the contractor responsible for the scaffold that it is not used on a construction site unless it "has been inspected by a competent person within the immediately preceding month ...... and a report has been made by the person carrying out the inspection ..... which includes a statement to the effect that the scaffold is in safe working order [38K(1)]". As far as can be ascertained there was no prosecution or summons against Easy Engineering for breach of its duties under these regulations. This may well have been because the person in fact responsible for the execution of these obligations was the severely injured Plaintiff himself. Had an employee of Easy Engineering been injured rather than a partner, I anticipate the firm would have been prosecuted.

24. There are further statutory responsibilities on the sub-contractor in Section 6A of the Factories and Industrial Undertakings Ordinance (Cap. 59). It is its duty to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the site including, in particular the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health.

25. Although the Regulations 38 C and D to which I referred earlier make no express requirement of safety in the construction and use of the scaffolding, it must be implicit in them. It is inconceivable that those regulations should make such stipulations without the requirement that the scaffolding should be safe for use. Regulation 38K does of course contain the reference to a report stating that the scaffold is in safe working order. If a ladder or ladders to provide a safe access to and egress from the working place are an essential safety requirement, then that safety requirement must be read into Regulations 38D and 38K as well as Section 6A.

26. There are therefore clear statutory obligations with regard to safety on the main contractor (Rainfield) as well as on the sub-contractor (Easy Engineering). The consequence of these is that the Factory Inspectorate chose to prosecute the main contractor only because it had absolute liability and, probably out of compassion, it did not prosecute Easy Engineering.

Statutory Breach and Breach of Duty of Care.

27. To what extent, if at all, does breach of statutory duty connote common law duty of care and/or negligence so as to give rise to liability for damages to any person injured as a result of failure to provide a safe means of access and/or egress?

28. The Plaintiff himself, as partner in Easy Engineering, had the choice of scaffolding for use on this contract. By reason of the contract with Rainfield he had responsibility for providing safe equipment including safe scaffolding. That is not inconsistent with Rainfield's statutory liability as dealt with earlier. The Plaintiff could have used the scaffolding owned by Easy Engineering of which he had substantial experience. Alternatively he could have engaged a scaffolding contractor whose contract would no doubt have included terms similar to or identical to those in the contract between Rainfield and Easy Engineering.

29. In the English courts there is authority that although an employer has breached statutory duty which has contributed to the accident, in certain exceptional cases, the employer is not liable. This is where the Plaintiff's conduct alone has caused the breach, without any failure on the part of the employer or any person for whom he is responsible - Ross v. Associated Portland Cement Manufacturers Ltd. [1964] 2 All E.R. p.452; Boyle v. Kodak Ltd. [1969] 2 All E.R. p.439. Both these cases need some consideration. The principle however is set in the context of the employer/employee relationship. If an employee's conduct occasioned the breach, a fortiori, where an independent contractor's conduct occasioned the breach, and that independent contractor is himself the Plaintiff viz. in this case the partner in the independent contractor business.

30. Within that context of employer/employee relationship, a defendant employer is not liable at common law for his breach of statutory duty if he has done all in his power to carry out the duty and has failed by reason of the Plaintiff's conduct and nothing else.

31. Ross v. Associated Portland Cement was concerned with a situation in which the Plaintiff, whose services had been supplied on a permanent basis by his own employers, was in effect the Defendants' employee. The House of Lords held that proper equipment and instructions had not been given, and the Plaintiff, although a chargehand, could not be treated as an expert with full authority, and he had not disobeyed orders.

32. Lord Reid in considering the question "whose fault was it?" said:

"If the question is put in that way one must remember that fault is not necessarily equivalent in this context to blame worthiness. The question really is whose conduct caused the accident, because it is now well-established that a breach of statutory duty does not give rise to civil liability unless there is proved a causal connection between the breach and the Plaintiff's injury."

This position was essentially restated in Boyle v. Kodak by Lord Diplock:

"The Plaintiff establishes a prima facie cause of action ...... by proving the fact of non-compliance with a ...... regulation and ... injury as a result. He need prove no more. No burden lies upon him to prove what steps should have been taken ... But if the employer can prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the Plaintiff himself, he establishes a good defence."

33. Rainfield had by the contract imposed upon the sub-contractor the obligation to provide for all safety requirements both in terms of equipment and practice. They were entitled to rely upon an independent contractor as providing the experience, expertise and judgment to ensure that those requirements were fulfilled. Practice and experience were that suppliers and users of tower/mobile scaffold rarely fixed or used ladders for access and egress. Those who did were very much in the minority. The Factory Inspector who visited the site either did not notice the absence of ladders which constituted the breach or, if he did, took no steps to alert either the sub-contractor involved or the main contractor. That does not relieve the main contractor of his statutory liability but it casts some light on where fault should lie.

34. The evidence of the Plaintiff and Mr. Chow, one of the other sub-contractors, was that ladders were not used. When asked what his reaction would have been had he been asked or told to use a ladder by any of Rainfield's supervisors, the Plaintiff said yes, he would, but only after a significant pause. This indicated a doubt replaced by a degree of wisdom after the event. He knows that use of a ladder properly fixed may well have prevented his fall and I am sure this knowledge coloured his answer. He was a very frank witness who gave his evidence with admirable composure and honesty. But like Mr. Chow he was a man running his own business who was accustomed to doing things his own way. Even if Rainfield's supervisor had suggested the use of a ladder to climb up and down the scaffolding, I do not think that the Plaintiff would have complied.

35. That was of course a hypothetical situation. Nothing in the way of Rainfield's knowledge or experience would have led their supervisors to recognise the need for and absence of such a ladder. The Factory Inspector had not done so. True it is that the supervisors knew that safety hats and belts should be worn and used on the site and they would recognise any failure and ensure compliance in this regard. Mr. Wright argues with some force that by reason of this they must bear responsibility at common law in negligence for the omission of the ladders on the scaffolding. I find myself unable to accept that argument. Not only by reason of the contract but also by virtue of the experience and expertise of Easy Engineering, they could rely upon that sub-contractor. There was in my judgment no causal connection between Rainfield's breach of their absolute duty and the Plaintiff's fall from the scaffolding.

The cause of the Plaintiff's accident.

36. The Plaintiff was an experienced tradesman well-used to erecting and working from tower scaffolding of this type. His business owned the scaffolding in question. He knew he was responsible for providing safety equipment including safe scaffolding. He had never used a ladder although such were in existence as components of the scaffolding system before this accident. The ladder I find would have reduced the risk of falling although use of it would not necessarily have guaranteed complete safety. In answer to the question whose conduct caused this accident I have regretfully to say that it was that of the Plaintiff. Had an employee of Easy Engineering, as opposed to a partner in the business, fallen in identical circumstances his claim against his employers would have been unanswerable. The employers were not only in breach of their statutory duty but had failed to provide him with a safe system of work, safe access to and egress from his place of work, and adequate and safe scaffolding. Subject to an argument on contributory negligence on the part of the employee, which would not have been a strong one on the circumstances of this accident, the employers would be found wholly liable to him. Any attempt by Easy Engineering to bring in the main contractor as a third party would have failed in the light of the terms of the contract and Easy Engineering's own experience and expertise which it could not gainsay. This illustrates the causative element. In these circumstances I have to say that this unfortunate Plaintiff's claim fails. Mr. Wright and those instructing him have done all they could to ensure that his case was presented on the strongest possible basis. There will be judgment for the Defendant with costs.

Safety and the Inspectorate.

37. I do not think I should let this matter pass without some comments upon the state of affairs in respect of safety on construction sites as illustrated by the facts of this case.

38. This unhappy decent and hardworking family man has suffered horrific injuries which could well have been avoided, or at the least been less serious, by the institution of some simple safety measures. The construction industry is a high risk industry particularly in Hong Kong. Judging by the number of and nature of cases of fatal and serious injury which come before its courts the incidence is unacceptably high.

39. In this case component ladders were available for use with the mobile scaffolding, but rarely purchased. Even tower scaffolding erected on site rarely had ladders fixed for safe, or safer access and egress. It seems that the requirement for notification of sites under regulation 56 has no teeth if the timing of such a notice allows work to progress on a site before the Inspectorate has the opportunity to inspect and check safety measures.

40. The record of the Magistrates Court proceedings in this case shows the prosecution putting forward as the normal fine for such an offence, one of $4,000.00, and so the main contractor was fined $4,000.00. Whilst I would not wish to comment on the appropriateness of that fine in the circumstances of this case, it is a derisory sum as a "normal fine". It does not in my view act as any incentive to exercise properly, safety and supervision. Moreover Mr. Law told me that many main contractors have a practice of seeking indemnity from sub-contractors in respect of any fine that is imposed for breaches of statutory duty as regards safety. If that is so the law as to safety is not working. He also said that sub-contractors in general are either ignorant of required safety measures, or, if they know of them, try and avoid taking them because shortcuts mean less time on the job and more profit. In that case the law is not being enforced practically and sensibly and there is a deficiency in the educative process.

41. If the Inspectorate is undermanned or itself untutored in recognising absence of safety equipment or existence of unsafe systems, it is failing in its purpose which is to police to some extent construction site safety in particular and enforce the law. There is a substantial need for safety enforcement to counter the risks created by a society which sets a premium on cheap labour, long hours and fast work. For as long as these risks exist, high risk employment will be deprived of proper protection. Unless these matters are corrected the courts will continue to be faced with claims by men and women who have suffered catastrophic injuries or loss of dependency where the breadwinner has been killed, and the damages awarded to successful Plaintiffs will of necessity be substantial.

(Conrad Seagroatt)

Judge of the High Court