WONG CHI SHING v. ARGOS ENGINEERING & HEAVYINDUSTRIES COMPANY LIMITED AND OTHERS

1989 No. A1869

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 19th November 1987, the plaintiff, who is now 31 years of age, was operating a metal shearing machine, from which the guard had been removed, when the blade was activated by a pedal control operated by the plaintiff's co-worker, the 3rd defendant, at a time when the plaintiff's hand was in the vicinity of the cutting edge. As a result, the plaintiff lost part of 3 fingers from his dominant hand. The guard had not been removed by the plaintiff nor by his co-worker.

The plaintiff seeks damages from the following;

Agaist the 1st defendant as employer and occupier.

Against the 2nd defendant as owner of the machine.

Against the 3rd defendant in negligence.

The plaintiff has already obtained judgment in default against the 4th defendant.

2. The 4th defendant has never sought to set aside the judgment. They have never applied in the normal way to be represented by a director. They had a representative in Court throughout the hearing. As far as they were concerned, this hearing was solely in relation to an assessment of damages.

3. Fortunately, many matters relating to loss and damage have been agreed between the plaintiff end the 1st to 3rd defendants.

4. It is agreed that:

HK$

(1) (2) (3) (4) (5) (6) (7) (8)

The appropriate sum to be awarded for pain and suffering and loss of amenities is The plaintiff's basic wage per month at the time of the accident ($210 x 26) was The plaintiff's actual earnings between accident and trial were The agreed special damages are The plaintiff has suffered a loss of earning capacity in the sum of The appropriate multiplier is 15. The special damage shall carry interest at the rate of 4.25% from the date of accident. The damages for pain and suffering will carry interest to 2% from the date of the writ.

$190,000.00 $5,460.00 $430,880.00 $2,810.60 $65,000.

5. There were only two items not agreed and these were:

(1) Whether the $10 per day travelling allowance is recoverable.

(2) What would have been the plaintiff's earnings today but for the accident.

Travelling allowance

6. The plaintiff told me that he received a travelling allowance of $10 per day for all the days that he went to work but he did not receive this sum when he did not go to work. It is submitted on behalf of the plaintiff that such payment was an extra allowance which was designed to, and in fact did, have the effect of supplementing the plaintiff's income and it should therefore be recoverable.

7. Mr. Wong on behalf of the 1st defendant submitted that this was an allowance and was not a reward for the plaintiff's labour.

8. I am quite satisfied that this sum of $10 was paid to the plaintiff over and above his basic daily wage and without that payment he would have had to utilise part of his daily wage in order to get to and from work. I am quite satisfied that this sum was an extra allowance which supplemented the plaintiff's income and in accordance with basic principles I can see no reason why it is not recoverable.

Tax

9. In the course of his closing submissions limited to the issue of the $10 travelling allowance, Mr. Wong on behalf of the 1st defendant raised for the very first time the submission that a sum should be deducted from the plaintiff's claim for loss of earnings, to represent the amount of tax which he would have paid in the normal course of events.

10. I pointed out to Mr. Wong that nowhere in any of the defences of the defendants is there a plea relating to the deduction of tax. In Kowloon Motor Bus Co. v. Ng Kung, Civil Appeal 1983, No. 7, the Court of Appeal were faced with an application to argue that the trial judge was wrong to disregard the aspect of salaries tax merely because the judge had said that the deceased did not pay salaries tax. Barker J.A., giving the judgment of the court, pointed out that there was no evidence at trial as to liability to tax. He also pointed out that had the matter been a pure question of law, the lateness of raising the matter might not have been fatal to the application. He then added this;

"But in our view questions of tax are either matters of mixed law and fact or at the very least are matters upon which it would be permissible to call evidence to seek to show that the incidence of tax could be avoided altogether, or, if not, mitigated.

It is therefore incumbent on a party who believes that liability to tax is relevant to an assessment of damages to make it clear that he is so alleging and thus afford the other side an opportunity to call evidence. This was not done in the present case and that is why we refused the application."

11. These observations make good sense. The whole purpose of pleadings, so we are all told, is to ensure that the issues between the parties are fairly and squarely drawn. If one party, who could have raised the issue of tax, fails to do so, why should the plaintiff prepare his case on the basis that he might have to deal with something which has not been alleged. That is precisely what happened in this case. The plaintiff was quite properly asked no questions by his counsel as to the issue of tax because it was not a relevant issue on the pleadings. None of the defence counsel asked the plaintiff any questions about tax and indeed when the person whom the defendants alleged was the plaintiff's true employer was called to give evidence he, too, was asked no questions about tax.

12. In those circumstances, I refused Mr. Wong's application for leave to amend his defence at the stage of final submissions in order to plead the question of salaries tax. I should add that Mr. Thompson on behalf of the 2nd defendant joined in this application but Mr. Yau on behalf of the 3rd defendant would have nothing to do with it. Had I granted the application, itwould have been necessary to open up the case, recall the plaintiff, possibly recall witnesses on behalf of the defendants and possibly obtain the expert evidence of an accountant to deal with this matter. This case was adjourned from a Friday to a Monday when it first was listed, and then on the 1st defendant's application was adjourned for another three weeks for a three day hearing which overran by one day. I was not prepared to delay this case any further and, in the exercise of my discretion, I refused leave to amend at that very late stage

Earnings today but for the accident

13. The issue here is whether the plaintiff was, at the time of the injury, employed as a fitter or as a blacksmith. If he was, as he says, a blacksmith, then his earning were higher than as a fitter. The plaintiff gave evidence upon this matter and explained how his work was different from that of a fitter. He explained his practical experience. He made clear that there was no formal apprenticeship for a blacksmith. It was just a question of working with a recognised blacksmith and learning the trade from him and then after having picked up the skills being able to obtain employment in that capacity oneself. In so far as this issue revolves around the issue of credibility, I must make it clear that I found the plaintiff a very honest, straightforward and engaging witness. He was one of those people who have attempted to make light of the serious injuries which he suffered. His work record since the accident speaks volumes as to his industry and commitment to getting back to work and attempting to lead a normal life. When he tells me, for the reasons he amplified in evidence, that he was a blacksmith and not a fitter and was quite emphatic about this, I have no hesitation in accepting his evidence.

14. Mr. Sakhrani made the interesting point that although the defence counsel challenged the plaintiff on this point, it was significant that when they called the person whom it was said was his true employer, namely, WONG Kan-hee, they led no evidence from him as to whether the plaintiff was a blacksmith or a fitter. So I am left with the only evidence before me being that the plaintiff was employed as a blacksmith.

15. In November 1987, according to statistics provided by the Hong Kong Government for those engaged in Government building and construction projects, a blacksmith earned $255.5 per day whereas a fitter earned $209.5. I have found that the plaintiff should be treated as having received $220 per day as at the time of the accident. It can be seen that $220 is nearer to the $209 paid to fitters, than it is to the $255 paid to blacksmiths. However, it is important to note that in relation to these Government statistics, the wage elements for daily rate workers includes, in addition to the basic wage, a meal allowance, a transportation allowance, and 11 days statutory holiday and 7 days paid leave. Mr. Sakhrani submits that when one takes these into account, and excludes them from the figure of $255.50, one brings down the average for blacksmiths to about $213 per day which is pretty close to what the plaintiff was receiving without these benefits.

16. Even though the plaintiff was not able to produce a certificateshowing that he was a qualified blacksmith, one has to take into account the way in which these trades are learned in Hong Kong and how the experience gained on site is reflected by payments made for different tasks. Having taken into account everything said on behalf of the defendants on this issue, I am quite satisfied that the only course I can take is to accept that the plaintiff was earning at the rate of a blacksmith because he was doing in essence the work of a blacksmith and had been employed for that very purpose. I should add that the submissions I received provided me with only 2 alternatives. It was submitted that I should find that the plaintiff would have been earning today the same as a blacksmith or as a fitter for both cases the Government statistics were relied upon and I was given no other calculations. I am satisfied on the evidence that as at April 1993, had the accident not happened, the plaintiff would have been earning, as a blacksmith, a sum of approximately $538 per day.

17. I therefore assess and award the plaintiff damages as follows:

(1) (2) (3) (4) (5) (6) (7)

Pain and suffering Interest thereon at 2% from 12.4.89 Pre-trial loss of earnings [($220 + 538/2) x 26 days at 67.33 months = Less agreed actual pre-trial earnings Special damage Interest on (3) & (4) at 4.25% from accident until judgment Post-trial loss of earnings (538 - 420 x 26 x 12 x 15) Loss of earning capacity Less: Employees' Compensation payment Total award

$190,000 $16,033 $232,590 $663,470 $430,888 $2,811 $56,190 $522,240     65.000 $1,114,684     80,405 $1,034,459

18. In relation to the 4th defendant in respect of whom I am assessing the damages payable under the default judgment, I am satisfied that in relation to each of the components of damage referred to above, the same are reasonable and properly claimable. Even where figures have been agreed by the 1st, 2nd and 3rd defendants, I wish to make clear that I would have arrived at such figures independently of the agreement. Therefore, in relation to the 4th defendant, there will be a judgment in the sum of $1,034,459.

Liability

(a) The parties

D1 was incorporated on 22nd May 1979 and has since that date been a wholly owned subsidiary of Chung Wah Shipbuilding and Engineering (Holdings) Co. Ltd., a company listed on the Hong Kong Stock Exchange. Various share transactions took place in 1992 involving other companies, but as these post-dated the accident, I need not go into them. The word "Holdings" was added on 29th September 1989 well after the accident.

Liu Ah Ying, the Company Secretary of D2, made clear that D1 was a wholly owned subsidiary of D2. There were common directorships. D1's office was built on D2's site, namely, Lot 41, Yau Tong Marina Lot, Cha Kwo Ling Road, Kwun Tong, Kowloon (Lot 41). Liu Ah Ying was not able to say which of D1 or D2 held the assets although she agreed that the subsidiaries carry out the various operations through contracts between them and third parties. She confirmed that D1 had access to the whole site. In 1987, she thought that D2 had about 30-40 subsidiaries. The shipbuilding subsidiary would use Lot 41 as well as D1.

Lo Siu Yuen was called by D1. He had been employed by D1 since 1982 initially as an assistant personnel officer and later as the safety officer. Prior to 1982, he had been employed by D2.

He told me that in 1975 when he started working for D2, they occupied the whole of Lot 41. A year or so later, a building was erected at one corner of the lot. It was a 3-story building and was purpose built for D1 who had its administrative offices there. The remainder of the site continued to be D2's shipyard/workshop.

He told me that whereas D2's employees used Lot 41, so did D2's subcontractors. Apparently D2 had its own safety department but I have not heard from them. He made it clear that D2 only could give permission for others to use the site and the machinery thereon. He made it clear that if D1 wished to use Lot 41, they would need permission from Chow Wing who was the manager at the material time.

In cross-examination, he agreed that in 1987 D1 did use some of the machines on Lot 41. He did not know who was D1's safety officer in relation to this particular shearing machine, but it was not him. He thought there were about 50-60 employees of D1 on site at the relevant time.

He confirmed that he represented D2 when they pleaded guilty in the Magistrate's Court on 29th July 1988 of the offence of failing effectively to guard the dangerous parts of the shearing machine contrary to Regulations 4(1) and 13(1) of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap. 59. He said that he appeared, although not employed by D2, because D1 was a subsidiary of D2. He further said, in cross-examination, that he was not saying that the use of the machine was unauthorised.

19. I also heard from Ying Chi Kong who in 1987 was D1's project site manager for its subcontract to do metal works for the Eastern Harbour Crossing Project (EHC). He told me that D1 did not do the work itself but subcontracted the work to various subcontractors who may themselves have further subcontracted out the whole or part of their contract. D1's role, he said, was to ensure that all subcontractors performed well and in accordance with D1's subcontract. For this purpose, D1 employed engineers to be on site to ensure that the work was performed by all subcontractors in accordance with D1's own contractual requirements. To this end, D1's engineers would inspect and examine the work done by the various subcontractors. If work was not done properly, the engineers would speak to the subcontractor concerned. Sometimes D1's engineers would be speaking to the actual subcontractor, but on other occasions, they would be speaking to a sub-subcontractor. At times the engineers would even speak to employees of the subcontractor or sub-subcontractor.

20. In 1987, Mr. Ying was working at the EHC tunnel site. Apparently there was no shearing machine at the tunnel site but only a steel plate bending machine. Lot 41 was only 15 minutes' walk away from the tunnel site. He confirmed that D2 was not involved in the tunnel project.

21. He confirmed that the principal contractor for EHC was Kumagai Gumi. He told me that a lot of projects were going on at Lot 41 and they were not all connected to EHC.

22. He confirmed that in relation to EHC, D1 had many subcontractors including D4. He confirmed that he knew at the time that workers at the tunnel site from time to time went to Lot 41 to work. He confirmed that D4 carried out work at Lot 41.

23. Most importantly, Mr. Ying confirmed that if a shearing machine was required for the tunnel project, D1 would probably tell the workers to go to Lot 41 and use the machine there. He confirmed that this did happen. There was no formal documentation as one would expect. He confirmed that when this happened, he would tell someone at D2 that this was going to take place. Usually, there was no problem. When the machine was used by D1, it was always used with D2's permission. He confirmed that he asked Chow Wing for permission to use the machine. He confirmed that whenever D1 wanted to use the machine, permission was given.

(b) The plaintiff's evidence

24. He told me that between March and April 1987, through the referral of his friend, Tsang Tak Chuen, he was introduced to Wong Kan Hei. The plaintiff did not know which company Wong Kan Hei worked for.

25. In about April 1987, Wong Kan Hei hired the plaintiff to work at the site at San Mun Chai. The site was an open air workshop where preparatory construction was done. It was a fairly large site, and there was a signboard of D1 posted at the gate of the site. Staff members wore some form of D1 uniform which included a green badge on the chest with the word "ARGOS" printed on the back. These staff members frequently inspected the work done by the plaintiff and his co-workers whilst working at this site.

26. When there was specific job to be done on this site, an officer of D1 would give instructions to Wong Kan Hei for him to arrange workers to carry out specified jobs. The plaintiff personally witnessed this on occasions. The plaintiff's understanding was that Wong was responsible to find workers to do D1's work on D1's site. Wong generally gave instructions as to what kind of work was to be done by the workers. Occasionally, an officer of D1 gave instructions to the plaintiff. The plaintiff's understanding was that D1 was responsible for all administrative matters such as workers' insurance, calculation of wages, provision of tools and equipment, inspection of work done and other personnel matters. In fact, except for hiring workers and distributing the wages every half month, D1 was responsible for all matters.

27. In about May 1987, at the SMC site, Wong told the plaintiff to follow a Mr. Tam who also wore ARGOS uniform to work at a site at Lo Wu Railway Station. The main contractor was Shui On Construction. D1 was subcontracted to do the iron work at the site. The plaintiff worked for about 2 months at this site, but in between he returned to the SMC site for a few days. Whilst working at this site, his work was inspected by D1's employee and the crane (which he understood to belong to D1) was brought to the site for workers to use.

28. In about September 1987, Wong Kan Hei asked some workers including the plaintiff to work at the Eastern Harbour Tunnel Construction Site at Cha Kwo Ling. Whilst the plaintiff was working at that site, 2 foremen of D1, who wore the uniform, often came to inspect the progress of the work and the standard of the work. Sometimes these foremen would speak directly to the plaintiff about the work.

29. On about 16th November 1987, Wong Kan Hei told approximately 4 workers, including the plaintiff and the 3rd defendant, to get some iron plates from Lot 41. The party went to the site in a lorry. At the front gate of the site, the plaintiff saw a large signboard and 2 smaller signboards. On the large signboard, the Chinese characters of D1 appeared. On the smaller signboard, the Chinese characters for D1 appeared.

30. At this site, the plaintiff and his co-workers found some iron plates. The plates were of different sizes and shapes but not in specified sizes and shapes that were required. It was thus necessary to cut these iron plates Into the specified sizes and shapes. On the first day at this site, Wong Kan Hei had told them that they could use the tools and machines on site. The plaintiff and his co-workers found a shearing machine near the place where the iron plates were found. This machine was electric powered, motor driven and pedal controlled. The power was already connected and they simply switched on the machine. There was no guard on the machine. They tested the machine on the first day and cut iron plates. The plaintiff and his co-workers were not supervised and received no instructions about safety. There was a painted red sign on the machine which read "be careful at work".

31. The plaintiff tells me that only 2 workers were needed to do the cutting job. It was thus decided that the plaintiff and one other worker would do the cutting job. The 3rd defendant did not work on the machine but assisted in the marking of iron plates to be cut. During the 3 days before the accident, the plaintiff and his co-worker cut the iron plates using the machine. The procedure was roughly as follows. The 3rd defendant and another marked the iron plates to the specified sizes and shapes with white lines. The plaintiff and another worker cut along this line. After they marked several iron plates, they put one plate after the other on the working platform of the shearing machine. The plaintiff stood on one side of the platform and his co-worker stood on the same side of the platform nearby at a distance of about 3 or 4 feet. Their view was unobstructed. The blade of the machine was in the middle of the platform. There was one blade on the machine. They put iron plates on the platform and adjusted the position so that the white lines marked on the plate were aligned with the blade on the platform. The plaintiff adjusted the part of the plate on his side and the co-worker adjusted the part of the plate on his side. They both aligned the iron plates together. When one finished, they would wait to see if the other had finished. When the plaintiff finished he shouted to his co-worker that he had completed his part of the job and his co-worker would nod so that he knew that the plaintiff had finished his part. When the co-worker had finished his part of the work, he would step on the pedal and activate the upper blade. The upper blade would then drive down with great force and cut the iron plate along the pre-marked line.

32. D3 did not work with the plaintiff on this machine on 16th, 17th or 18th November 1987. He only came to work with the plaintiff on the machine on 19th November because only those two had returned to work that day. In the morning, they had decided that D3 would cut small plates on the machine by himself and the plaintiff would mark. There was no problem.

33. At lunch time on 19th November, the plaintiff and D3 had lunch at the plaintiff's home. They drank one can of beer and two pats of brandy. Neither admitted in any way being affected by the drink. They walked back to the site which was about 15 minutes' away. After lunch, at about 1 p.m., D3 and the plaintiff started cutting the bigger plates together. D3 was responsible for stepping on the pedal after receiving a signal from the plaintiff that he had finished his part of the work. At this time, a machine nearby produced a lot of noise, so the plaintiff shouted to D3 whenever he was ready and he would look to see before he operated the machine.

34. They worked quite happily for about half an hour and cut a few plates. Then when the plaintiff was adjusting one plate, he saw the white line on the plate was not aligned with the lower blade. It was the first time that he had been required to put his hand into the unguarded machine, so he shouted loudly to D3 that he was going to put his hand in and that D3 should be careful not to step on the pedal. The plaintiff put his right hand on the edge of the lower blade and adjusted the position of the iron plate. All of a sudden, the upper blade was driven down. He instinctively tried to pull back his right hand, but it was too late and he saw parts of fingers on his right hand were cut and blood was all over his right hand and he was in great pain. D3 was stunned and just stood there. The plaintiff went to the watchman's room, called the police, and after a while was sent to the United Christian Hospital.

(c) D3's evidence

35. D3 is almost 66. He is retired and he is dependent upon his children and the Government subsidy for elderly people for his living. He is illiterate and has been doing manual labour work throughout his working life.

36. D3 admitted that the plaintiff was senior to him in terms of working position in the site and about the day before the accident was the first time he had come across this kind of shearing machine. He had not received any training in the operation of the machine nor about safety precautions required for the operation of the machine. All that he knew was that he had to listen for the command of the plaintiff and press his foot on the pedal of the machine. The machine was taller than he was. His clear recollection was that the pedal control was placed at the back of the machine and so he could not see what the plaintiff was doing. He had to listen to the verbal commands of the plaintiff.

37. D3 denied that he ever heard the plaintiff say "Be careful, I am putting my hand in the machine." He says that he pressed the pedal because he understood the plaintiff to have said that it was alright to do so. He was cross-examined about this and was quite emphatic that the plaintiff had told him to press the pedal.

(d Conflict between plaintiff and D3

38. I have no hesitation in accepting the evidence of the plaintiff who struck me a thoroughly reliable witness. I find it quite unbelievable that the plaintiff would put his hand under the cutting edge of the machine and at the same time tell the 3rd defendant to press the pedal and thereby operate the machine. I am quite satisfied on the evidence that D3 was not standing behind the machine out of view of the plaintiff. I am quite satisfied that they were standing side by side roughly 3 or 4 feet apart. I am also satisfied that there was a considerable amount of noise coming not just from this machine when operated but also from other machines at this noisy work place. I am quite satisfied that the plaintiff did tell D3 not to activate the machine whilst he was realigning the plate with his hands or fingers under the cutting edge. I think that what happened was simply that the 3rd defendant misunderstood the command that he had been given. Whether he merely misheard or misappreciated I know not, but I am quite satisfied that he activated the pedal when he was told not to do so. I think what probably happened was that he was working in a pattern whereby ever so often he pressed the pedal when he got a sign from the plaintiff and he just did not fully appreciate on this occasion that he was being told not to press the pedal. I will, of course, return to consider whether the conduct of the 3rd defendant in this unfortunate affair constituted negligence on his part.

The claim against D1

(a) As employer

D1 denies that he employed the plaintiff. D1 called Wong Kan Hei who said that he employed the plaintiff. The plaintiff thought that Wong Kan Hei was acting on behalf of D1. Wong Kan Hei said that he employed the plaintiff through a company called Luen Shing of which the plaintiff had not heard at the time that this employment commenced. A contract between the plaintiff and Luen Shing was produced by Wong Kan Hei which was signed by the plaintiff in August well after he started work. Interestingly enough, Wong Kan Hei had not signed his part of the contract until just before he went into the witness box some 6 years later! Wong Kan Hei produced no documents relating to the subcontract which he stated he had entered into and could give no details of its terms.

On 21st April 1988, an Employees Compensation Agreement was signed by D1 qua employer. Their address appears on the document as does their chop and the signature of their safety officer. No mention is made of Wong Kan Hei or Luen Shing. D1 also completed Form 2 and their chop appears thereon. No satisfactory explanation has been given for this.

I did not find Wong Kan Hei's evidence very reliable. He was completely vague about crucial issues. I believe that he was some sort of intermediary who obtained workers for D1. I am not satisfied on the evidence that he or Luen Shing can be said to be the plaintiff's employer. On the other hand, the plaintiff worked at a site shared between D1 and D2 (related companies) and took instructions from D1's engineer.

The method of employing labour in Hong Kong construction sites has caused difficulty for judges and plaintiffs for some time. However, in this case, there was insufficient reliable evidence to establish a contract of employment between the plaintiff and Wong Kan Hei and/ or Luen Shing. On the evidence, it seemed to me that taking into account the observations of the Privy Council in Lee Ting Sang v. Chung Chi Keung [1990] 2 WLR 1173, I should be satisfied that in fact the plaintiff was employed by D1.

In relation to the claim based on breach of the contract of service, it is clear that the machine was not guarded, it was not suitable for cutting into the smaller sizes, there was no warning not to use the machine without a guard, no instruction or supervision was given to the plaintiff and the working condition was noisy.

The plain fact of the matter is that this machine was dangerous to operate when unguarded. The plaintiff called an expert, Mr. Evans, from the University of Hong Kong. His report is useful as was his evidence. He inspected the very machine albeit at a different site. He made clear that the best person to operate the pedal is the person manipulating the machine. In any event, he told me that a pedal operated machine is not common and is not particularly safe. If a guard had been fitted, the machine would not have been suitable for cutting anything less than 120mm. He explained how the small last piece could be manipulated without placing a hand into the blade. However, this was a somewhat cumbersome method.

However, the thrust of Mr. Evans's evidence, which I accept, is that it would have been an easy matter to fit a photo electric device which would ensure that the machine could not be activated if a hand was in the vicinity of the blade. Alternatively, the machine could have been activated by a double hand switch thus, too, ensuring that no hand would come near the vicinity of the cutting blade when activated. Such systems are available and are not expensive. This machine was manufactured in China in 1983 but was a copy of an out of date Western model.

I am quite satisfied on the evidence that this machine was dangerous because it was unguarded and because no safety feature was installed. It was not in fact suitable for doing all the work which the plaintiff was required to do.

D1 was clearly in breach of the implied terms of the contract of service which I have found to exist. The machine was unguarded and unsuitable, there were no instructions, training or supervision. I find that D1 is liable to the plaintiff as employer. I will consider the question of contributory negligence when I have considered the position of all of the defendants.

As occupier

39. If not the plaintiff's employer, the defendant is certainly liable to the plaintiff as occupier of Lot 41. D1 had access to the whole site and not just that part of the site where the office block stood. D1 was permitted to, and did, use the machinery on site for its own purposes. D1 did attempt to supervise the work carried out on site. D1 were under an obligation to provide machines for workers, including the plaintiff, who were engaged on metal work.

40. To be an occupier of a site within the terms of the Occupier's Liability Ordinance, it is not necessary for the occupation to be exclusive.

Charlesworth and Percy on Negligence, 8th Ed. pare. 7-13, put the matter this way.

"Accordingly, an occupier is any person, who is in actual occupation for the time being, or having possession or physical control, the degree of which need neither be entire or exclusively his, over the premises concerned, or over the fixed or the movable structures including such things as the vessels, vehicles or aircraft."

41. The authors of Clerk and Lindsell on Torts, 16th Ed., put it in the following manner at page 711.

" 'Occupier' is simply a convenient word for a person who has a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises. A degree of control is prima facie sufficient if it is such that the defendant ought to realise that a failure on his part to use care may result in injury to a person coming on the premises. The defendant need not have entire control; he need not have exclusive control. A person who has the immediate supervision and control and the power of permitting or prohibiting the entry of another persons is undoubtedly an occupier, but this test is too narrow. There are others who are occupiers even though they do not say "come in". Two or more persons may be occupiers each under a duty to use care dependent on his degree of control. Each may be liable to a visitor, with a claim to contribution from the other."

42. I accept Mr. Sakhrani's submission that D1, by virtue of its relationship with D2 and by virtue of its occupation of the site, had a sufficient degree of control over the site and this machine to impose upon it a duty of care towards persons coming onto the site and using this machine.

43. Was there a breach of the duty of care qua occupier? Mr. Sakhrani relies upon a passage in a judgment of Mr. Justice Bigham in Marney v. Scott [1899] 1 QB 986 at 989-990 where he said;

"I think that a man who intends that others shall come upon property of which he is the occupier for purposes of work or business in which he is interested, owes a duty to those who do so come to use reasonable care to see, that the property and the appliances upon which it is intended shall be used in the work are fit for the purpose to which they are to be put, and he does not discharge this duty by merely contracting with competent people to do the work for him."

44. Mr. Sakhrani also relies upon observations of Mr. Justice Chapman in Wheeler v. Copas [1981] 3 AER 404 where the relevant part of the headnote reads as follows;

"The defendant was, however, liable to the plaintiff in negligence, either as a bailor or lender of a chattel, or as an occupier of property who intended that others should come onto it for the purposes of work or business and use appliances owned or supplied by him. In either case, the duty of care was the same, namely, to take reasonable care to see that the appliance or chattel was fit and safe for the purpose for which it was to be used. Since the defendant had taken on the obligation to provide the equipment, he was liable in negligence for failure to ensure that the ladder was suitable..."

45. It seems to me clear that D1 was in breach of its duty to the plaintiff under the Occupier's Liability Ordinance. D1 provided an unguarded machine without any special device to ensure that accidents of this nature could not happen and D1 failed to instruct and supervise the plaintiff so that he could carry out his duties safely. I therefore find D1 liable to the plaintiff under this head of claim as well.

The case against D2

46. The claim against D2 is brought under two limbs. Firstly, breach of statutory duty and second, for breach of a common law duty of care owed to the plaintiff.

47. I am satisfied on the totality of the evidence that D2 was in fact the owner of the machine and I have no doubt whatsoever that D2 was an occupier of the site. Applying the principles above stated, I am quite satisfied that the occupier of the site and the owner of the machine owe a duty to the plaintiff. I have already made it clear that I am satisfied that D2 gave express permission for this machine to be used on behalf of D1.

48. Mr. Thompson, on behalf of D2, submits that there is no causal connection between the absence of guarding and the accident. For this, he relies upon some evidence given by Mr. Evans to the effect that, if a worker was determined to proceed with cutting, he would need to remove the guard. The plaintiff disagreed with the proposition that if the machine had been provided with a guard, it would need to be removed before it could cut metal. Clearly, the answer the plaintiff gave is incorrect as a matter of logic, but I attach no great significance to it. Mr. Thompson also relies upon the fact that the plaintiff admitted to prior use of a machine which had not been guarded. On this basis, Mr. Thompson submits that the absence of the guard bore no connection to the plaintiff's accident. I do not quite follow this submission. It is not suggested that the plaintiff actually took the guard off this particular machine. He was faced with having to work with the machine which had no guard. Having refused to do so, he would no doubt have been taken as quitting his job. In any event, the submission of Mr. Thompson fails to deal with the other aspects of the expert witness, namely, that it would have been quite a simple matter to fit a mechanism to this machine, which would have ensured not only that the machine could cut as required, but could have done so in such a way that it would have been quite impossible for this accident to happen.

49. I accept, of course, Mr. Thompson's submission that the plaintiff must prove his case by the ordinary standard of proof in civil actions, but I am quite satisfied that he has done this. Mr. Thompson referred me to some observations of Viscount Kilmuir in Wigley v. British Vinegars Ltd. [1964] AC 307 at 325 where it was stressed that:

"... It is for the plaintiff to prove on the balance of probabilities both the safety measures would have been effective and that the injured person would have made use of them had they been available."

50. I am satisfied as to two things. Firstly, if this machine had been guarded, I am quite satisfied that an alternative method would have been found of cutting the last small piece of metal. It may well have been the system suggested by Mr. Evans. Alternatively, and perhaps, most importantly, this accident would have been completely avoided had this machine been fitted with the sort of safety devices which Mr. Evans told me about and which I have outlined above. I am satisfied that the plaintiff had no alternative but to use this machine. The suggestion that he could have used some sort of cutting torch is virtually ludicrous in the circumstances. It is important in cases such as this for the court not to lose sight of the reality of the work place. The way in which Counsel for defendants sometimes address the court takes no account whatsoever of the realities that exist on construction sites.

51. In all the circumstances, therefore, I am satisfied that D2 owed the plaintiff a duty of care and that they were in breach of that duty of care by allowing the machine to be used in circumstances where it was obviously unsafe.

52. Mr. Sakhrani also puts his case on the basis of breach of statutory duty. He submits that on the relevant date:

(a) D2 was the proprietor of the said workshop;

(b) the said workshop was a notifiable work place;

(c) there was situated at the said workshop a shearing machine containing a dangerous part, namely, a reciprocating cutting tool; and

(d) the said dangerous part of the said shearing machine was not effectively guarded as provided by Regulations 4 and 5.

53. None of these matters have been disputed at trial. D2 has been convicted and this conviction cast upon D2 a legal burden to prove that he was not negligent. I agreed that this is an "uphill" task and I am not satisfied that they have discharged it. I have taken into account the observations of the House of Lords in Cutler v. Wandsworth Stadium Ltd. [1949] AC 398 where Lord Simonds in considering the availability of a civil remedy where there has been a breach of a criminal statute stated:

"... That the answer must depend on a consideration of the whole Act and the circumstances, including the pre- existing law, in which it was enacted."

54. It seems to me that it is widely accepted that such a statutory provision as this regulation does give rise to a civil remedy in the event of breach. I am satisfied the plaintiff comes within the category of "any person present at a notifiable work place". This seems to me to indicate that this regulation envisages a very wide class of persons to whom the duty is owed and this seems to me consistent with the English decision albeit on a different regulation in Massey-Harris-Ferguson (Manufacturing) Ltd. v. Piper [1956] 2 AER 722.

55. In all the circumstances, therefore, I am satisfied that D2 is liable to the plaintiff for damages of breach of statutory duty.

The case against D3

56. I have already set out my findings of fact as to the different version as between plaintiff and D3. I now have to decide whether on that evidence, as I have found it to be, D3 was negligent towards the plaintiff. There can, of course, be no doubt that D3 as a co-worker owed the plaintiff a duty of care. Was he in breach of that duty of care? I have every sympathy for D3's position. However, at the end of the day, I find it hard to conclude other than that he misunderstood or did not hear properly what the plaintiff was saying, and activated the pedal at a time when it was inherently dangerous to do so. I am, of course, satisfied that the system which they operated was a dangerous one and it is unfortunate that neither plaintiff nor D3 received any proper instructions as to how to use this dangerous machine. I think with hindsight, it would have been far better for one person to operate the machine, in other words, one person would manipulate and when everything was ready, he would press the foot pedal. That would have almost eliminated the possibility of someone who had been foolish enough to depress the pedal when his hand was under the cutting edge. As I am satisfied that the plaintiff could not possibly have told D3 to activate the pedal when his hand was under the cutting edge, it follows that D3 depressed the pedal when either he was told not to or had not been told that it was safe to. In those circumstances, I find it difficult to see how it can be said that D3 was not negligent in all the unfortunate circumstances of this case.

Contributing negligence

57. In so far as it is alleged that the consumption of alcohol contributed to this accident, I reject this allegation. There was no evidence called by anybody to the effect that the plaintiff and D3 were in any way affected by drink. They both gave evidence that it was their common practice to drink this amount each lunch time. I take it into account that these were manual workers and they started fairly early in the day. The plaintiff gave evidence that he ate a considerably large breakfast and had food with his alcohol at lunch time. I am entitled to take judicial notice of the fact that it is quite common for manual workers to consume some alcohol at lunch time but that in itself is not negligent. What would be negligent is to consume so much alcohol so as to impair ones ability to carry out ones work safely. I am not satisfied that this has been established here.

58. Mr. Thompson, on behalf of D2, submitted that the plaintiff has committed an offence, because Regulation 12(3) imposes an obligation on every employee to report to the proprietor any fault or defect in any guard or device. I do not see the relevance of this allegation. The relevant persons were well aware that this machine was unguarded, and thus it was dangerous and if it suggested that the plaintiff should have insisted on the guard being put back before using the machine, this again, is unrealistic. Even if the plaintiff had reported this matter, I do not think anything would have flowed from that.

59. I am also satisfied that it is far more probable than not that both D1 and D2 were well aware that this machine was unguarded. It seems highly likely on the evidence that D1 had been using this machine either directly or through its subcontractors for sometime and must have known the state of the machine. D2 was the owner of the machine and another occupier of the site and it would be surprising indeed if they did not have knowledge that the guard had been removed. I accept that there was no evidence before me as to precisely when the guard was removed. Again, it seems to me more likely than not that the guard was removed at an early stage in order to ensure that the machine could be used for the various purposes required and could function as speedily as possible.

60. I have considered all the written submissions by Counsel for the defendants, but I am not satisfied that it would be right to hold the plaintiff anyway to blame for this unfortunate accident. He had to do the best he could with the equipment he was given. That equipment was dangerous and unsafe for his use. Doing the best he could, the plaintiff had set up a system with the 3rd defendant but unfortunately the 3rd defendant depressed the pedal when either he had been told not to (which I think is by far the more likely version) or before he had been told to do so. In all the circumstances, I cannot see any grounds for reducing the plaintiff's damages on the grounds of his own contributory negligence.

Contribution

61. All 3 defendants invited me to exercise the jurisdiction I have under section 3 of the Civil Liability (Contribution) Ordinance, Cap. 377 and apportion responsibility for the damage between the co-defendants and to award to one defendant contribution against the other in accordance with such apportionment. Mr. Yau, in his useful written submissions, submits that there is no authority that I have a duty to deal with the question of apportionment and the contribution between co-defendants, but it is clearly desirable that the judge who heard the evidence should do so and I propose to apportion liability.

62. Taking into account my findings, it is clear to me that D1 should bear the major portion of blame with D2 talking a lesser portion and D3 a much smaller portion. My reasons are simply as follow. D1 knew precisely what was going on. Its engineers were on site supervising the work and supervising the plaintiff from time to time. They must have known the machine was unguarded. The plaintiff was required to work on this machine and he did so.

63. So far as D2 is concerned, they were probably the owners of the machine and certainly occupiers of the site. They gave their express permission for the machine to be used by D1 but they were not actively engaged in the works which were being carried on. In fact, they were not involved in the EHC project. However, both D1 and D2 had a financial interest in the project which is more than can be said for D3. As to D3, I take into account all that has been said on his behalf and I think his share of liability should be very small bearing in mind that he, too, was required to work on the machine which I found to be unsafe and dangerous.

64. Doing the best I can on the evidence before me and taking into account the useful and helpful submissions of all counsel, it seems to me that the appropriate apportionment is as follows. As to D1 80%, as to D2 15%, as to D3 5%. I therefore make those orders accordingly.

Costs

65. I propose to make a costs order nisi in favour of the plaintiff against each of the defendant.