CHEUNG PING v. PAK KEE TRANSPORTATION CO. LTD. AND ANOTHER

HCPI963/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.963 OF 1997

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J U D G M E N T

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1. The Plaintiff brings this claim against the 1st and 2nd Defendants in respect of personal injuries and damages suffered by him while working as a construction worker on 8th October 1994 at a construction site in Kowloon Bay at which the 2nd Defendant was the principal contractor and the 1st Defendant a sub-contractor of the 2nd Defendant and the direct employer of the Plaintiff.

2. Arising from the Plaintiff's claim, there is also an issue between the two Defendants not only as to contribution between them (if they should be found liable to the Plaintiff) but also as to the question of indemnity arising out of the terms of the subcontract between them. I shall deal with the dispute between the Defendants after dealing with the Plaintiff's claim.

The facts

3. The Plaintiff's claim is relatively straightforward and there is little dispute as to facts.

4. The Plaintiff who had been working at construction site for some 20 years, was employed by the 1st Defendant as a casual labourer at construction sites for just over one month before the accident on 8th October 1994. He had worked for the 1st Defendant for about a month at a site in Ma On Shan. One week before the accident he was transferred to work at the Kowloon Bay site where the accident occurred. One of his duties as a casual construction site worker was to assist in slinging up H-piles or I-beams so that the H-piles could be lifted by cranes to the desired spots within the site. When the Plaintiff was first engaged by the 1st Defendant at the Ma On Shan site he was taught by the foreman there how to properly hook up the H-piles. Normally two labourers would assist with hooking up the H-piles, one on each end of the H-pile responsible for hooking up his end. When his end of the H-pile has been properly and securely hooked up, that labourer will retreat a safe distance away from his end of the H-pile before the H-pile is lifted up by the crane. The last of the two labourers to move away will give a hand signal to the crane operator to indicate that it is safe for the crane operator to lift the hooked-up H-pile by crane. The hand signal is a V-sign made with the index and middle finger. This system was devised so as to ensure that when the crane operator started to lift the H-pile using a cable from the crane which is hooked up to the two ends of the H-pile whereby the cable forms an inverted "Y" with the H-pile suspended between the two ends of the cable at the bottom, the two labourers would be at a safe distance away from the H-pile being lifted in this manner. The reason for this, and it is common knowledge to all in the construction industry, is that when an H-pile is being lifted by crane in this manner, a number of factors may cause the H-pile to swing at the moment it is lifted off the ground or wherever it was resting on. It may be due to the H-pile not being properly hooked-up at the centre or that the H-pile is lifted up too quickly by the crane, or even if the H-pile, when lifted, comes into contact with some other objects. Any one such occurrence may cause the H-pile upon being lifted to swing quite violently. Moreover because of its heavy weight, the slightest swing of a suspended H-pile can be dangerous to any person close enough to be hit by it. Therefore this system of hand signal to the crane operator was devised to ensure that if the H-pile swung when lifted, there would be no one close enough to it so as to be put in danger from its swing.

5. On 8th October 1994 the Plaintiff was assigned by the 1st Defendant to assist in the removed of a stack of H-piles stacked up at the Kowloon Bay site. Another worker Wong Hoi Chung was also assigned the same work with the Plaintiff - each of them to hook up one end of every H-pile to be removed from the stack by crane. It is common ground that the crane operator named So Hoi Shing was an employee of the 2nd Defendant.

6. The H-piles were stacked to a height of about 10 feet from the ground. On the occasion that the accident happened, the Plaintiff and Wong had each hooked up one end of the H-pile. Wong, being the younger of the two men was quicker and more agile than the Plaintiff. After hooking up his end, Wong had scampered down from the stack of H-piles to ground level. When the Plaintiff finished hooking up his end of the H-pile , he gave evidence which I accept that he intended to move down from the stack of H-piles to the ground and then to give the hand signal to the crane operator. However, when he had just moved about three feet away from the end of the H-pile which he had hooked up, before he had reached the ground and before he had given any hand signal to the crane operator, the H-pile was lifted up by the crane. As soon as it was lifted up, that H-pile swung towards the Plaintiff hitting the Plaintiff in the left leg fracturing his left tibia and fibula. An ambulance was called for and the Plaintiff was taken to hospital.

7. All the evidence in this case points to the accident being caused because the H-pile was lifted up before the hand signal was given by the Plaintiff (being the latter one to get away from the H-pile which was to be lifted). The Plaintiff himself gave evidence to this effect which I have accepted. Wong Hoi Chung, the co-worker of the Plaintiff who hooked up the other end of the H-pile at the time of the accident, was called as a witness by the 1st Defendant and in his evidence agreed that the H-pile was lifted before any hand signal was given by the Plaintiff. Indeed in his evidence he recounted an earlier incident on the same day when the same crane operator, So Hoi Shing, also lifted another H-pile before any hand signal had been given by the Plaintiff (who on that occasion was also the latter of the two of them to get away from the H-pile after hooking it and thus should have been the one to give the hand signal to the crane operator). When this occurred, Wong told the court that he only shouted to So telling him not to lift before a hand signal was given. No other steps were taken and this earlier incident was not reported to the 1st Defendant or any responsible officer or person in authority of the 1st Defendant.

8. So Hoi Shing was not called as a witness by any of the parties. However he had given a statement to the Safety Officer of the 2nd Defendant shortly after the accident in which he admitted lifting the H-pile before any hand signal had been given but at the same time blaming the Plaintiff for failing to move away from the H-pile.

9. There is therefore no evidence to contradict the Plaintiff's evidence that the H-pile was lifted up before he had given any hand signal to the crane operator. All the evidence tend to support the Plaintiff's evidence in this respect.

The Plaintiff's case on liability

10. The Plaintiff's case against the 1st Defendant, being the Plaintiff's employer, is that the 1st Defendant failed to provide a safe system of work and was therefore in breach of its duty as an employer to the Plaintiff.

11. In so far as the 2nd Defendant was concerned, the Plaintiff's claim is put on the basis that the 2nd Defendant is vicariously liable for the negligence of its employee, the crane operator, in lifting the I-beam before any hand signal was given to him to do so.

Decision on Liability

12. Mr Ismail who appeared for the 2nd Defendant argued firstly that the crane operator only committed an error of judgment in thinking that there was sufficient space between the Plaintiff and the H-pile when he lifted it coupled with the fact that the Plaintiff had agreed in cross-examination that the swing of the H-pile on that occasion was unusual. He relies on the decision in Whitehouse v. Jordan [1981] 1 WLR 246 to say that since a reasonably competent crane operator with So's standard would have made the same error of judgment as So did, therefore that error of judgment by So should not amount to negligence.

13. Firstly there is no evidence before me that a reasonably competent crane operator would have done what So did, namely, to lift the H-pile before receiving a hand signal. Secondly, I do not accept that it was a mere error of judgment on So's part. There was evidence that there was clear unobstructed view between the crane operator and the Plaintiff. For So then to lift the H-pile without seeing the requisite hand signal must, in my view, clearly be negligence, not simply an error of judgment.

14. Mr Ismail also advanced the further argument that even if So was negligent for lifting the H-pile before he received the Plaintiff's hand signal, it would be the 1st Defendant who is responsible solely for such negligence. The reason for this is that at the time of the accident, So, although an employee of the 2nd Defendant, was working for the 1st Defendant with the 1st Defendant's employees and under their direction and control.

15. Reliance is sought from the following passage from the judgment of Beldham L.J. Morris v. Breaveglen Ltd. [1993] PIQR 294 at 299 :-

"When the question is which of two possible employers is to be vicariously responsible for the acts or omissions of an employee it has been found useful as a test to decide which of them was responsible for controlling the actions of the employee which caused the injury; so, in particular, where a skilled man is hired out in the plant, which it is his duty to operate, a distinction has been drawn between his actions in carrying out tasks under the direction and control of the 'employer' to whom he has been hired and his actions simply in operating the plant. In the former case the particular employer to whom he has been hired, having directed him to carry out a particular task which gives rise to a risk to some third party, bears responsibility if in carrying it out the employee causes injury. But if injury is caused to a third party from the operation of the plant itself, a matter left entirely to the skill and judgment of the plant operator and which the particular employer to whom he is hired has no right to dictate to him, then the general employer will be responsible for the actions of its employee."

16. I accept that the cited passage above correctly states the law. However on the facts of our present case, the evidence does not show that So and the crane was hired out or lent out by the 2nd Defendant to the 1st Defendant's use. Furthermore, I do not accept the argument that because the crane operator was given a hand signal to indicate when the 1st Defendant's workers were at a safe distance before lifting the H-pile, this necessarily puts him under the direction and control of the 1st Defendant. There is no evidence whatsoever that So, the crane operator, was not exercising his own skill and judgment in operating the crane or that the 1st Defendant could control or dictate to So the manner in which he is to operate the crane. The 2nd Defendant was the main contractor on the site in question. All the cranes on the site belonged to the 2nd Defendant and all the crane operators including So employed by the 2nd Defendant to work the cranes on the site for the purpose and benefit of the 2nd Defendant. Albeit that there was an arrangement between the 2nd and the 1st Defendant (being the sub-contractor of the 2nd Defendant) that the 1st Defendant can make use of the 2nd Defendant's cranes and crane operator, from all the evidence before me, I come to the conclusion that at the time of the accident, So was working as the employee of the 2nd Defendant. Accordingly I reject the second argument of Mr Ismail that the 1st Defendant must be solely responsible for So's negligence.

17. On the facts stated above, and which I find to be so from all the evidence before me, it must be abundantly clear that the accident was caused by the negligence of So Hoi Shing, the crane operator, in lifting the H-pile before the requisite hand signal was given to him to do so. For the reasons given above, the 2nd Defendant, being the employer of So, must therefore be vicariously liable to the Plaintiff for So's negligence.

18. Turning now to the 1st Defendant. As already stated, the Plaintiff's claim against the 1st Defendant is based on the system being an unsafe system. This system of hand signal in its simplicity is undoubtedly a workable system. I say workable because if properly adhered to by those applying it, the system as such can and does ensure the safety of the workers hooking up the ends of the H-pile. As such it is not in itself an unsafe system. In the present case what failed was not the system or any defect in the system, but the failure of the crane operator to adhere to the system.

19. In this respect, if authority is called for, the words of Lord Porter in Winter v. Cardiff R.D.C. [1950] 1 All ER 819 at 822 very aptly describes the position :

"... but it is always a question whether the negligence complained of is the failure of the employer to inaugurate and maintain a safe system or the casual departure from that system as the result of the negligence of an individual fellow workman. The difference, as I see it, is between a case where sufficient and adequate provisions have been made, which will, if carried out, protect the workman unless one of his fellow does not use proper care in carrying out the system, and a case where the system itself makes no such provision."

20. In citing the above passage, I have noted that Winter's case was decided before the doctrine of common employment was abolished. However, that should not affect the present case since I have found as a fact that the crane operator, So Hoi Shing, was acting as the servant or agent of the 2nd Defendant, being its employee, and was not the servant or agent of the 1st Defendant, the Plaintiff's employer.

21. Secondly, the Plaintiff had attempted to put blame on the 1st Defendant saying that he (the Plaintiff) was not properly or sufficiently taught the workings of the system by the 1st Defendant's foreman. However it was clear from the totality of the Plaintiff's evidence that at the material time he well knew that an H-pile may well swing when lifted off the ground. He also knew that he had to hook the H-pile properly and that the hook should be centered so as to minimize the swing. Moreover he knew that he should, after hooking the H-pile, move a sufficiently safe distance away from the end of the H-pile so as to be out of range of the H-pile should it swing when being lifted. Lastly he was well aware that the last of the two workmen to move away from the H-pile would be the one to give the hand signal to the crane operator when at a safe distance away.

22. Thirdly, it was suggested by Mr Cheng who appeared for the Plaintiff that the 1st Defendant should have provided better supervision in that a foreman or someone with authority should have been present to ensure that the system was adhered to by the crane operator.

23. In the absence of any evidence to show that it is normal practice in the trade for a foreman or other person with authority to be present throughout such lifting operations, that suggestion would cast an unreasonable burden upon the 1st Defendant since there is here already a workable system which, if complied with by those involved, was designed to ensure the safety of all concerned. Secondly, if this suggestion of supervision was based on the earlier incident (on the same day) of the crane operator lifting an H-pile before a hand signal was given, the evidence shows that that earlier incident had never been reported to any person in authority of the 1st Defendant. Without notice of such an earlier lapse on the part of the crane operator, I take the view that it would not have been reasonable in all the circumstances of this case to require full-time supervision of such works by the 1st Defendant. After all it was a very simple system of hand signal being adopted.

24. In all the circumstances of this case, I am of the view that the 1st Defendant had adopted a reasonably safe and workable system and the Plaintiff had been properly instructed as to that system. In the circumstances I find that the 1st Defendant was not in breach of any duty which it owed to the Plaintiff.

Contributory Negligence

25. Contributory negligence was relied on by both Defendants on the basis that the Plaintiff was standing much too close to the H-pile being lifted and thereby failed to take care of his own safety, alternatively that the Plaintiff was too slow to move away to a sufficiently safe spot before the H-pile was lifted.

26. The material time to decide whether or not the Plaintiff failed to extricate himself sufficiently far away from the H-pile must, in the context of this case, be when the hand signal was given by the Plaintiff. On the facts as I have found, because the H-pile was lifted even before the Plaintiff gave the hand signal, it is impossible to say with any degree of certainty where it was that the Plaintiff would have moved to. The burden is on the Defendants to show contributory negligence.

27. Neither can the fact that the Plaintiff was slow in his movements be the basis for saying that the Plaintiff contributed to his own injury because the Plaintiff was entitled to expect that the H-pile would not be lifted before he gave the hand signal to the crane operator.

28. In all the circumstances of this case, I do not find any contributory negligence on the part of the Plaintiff.

Quantum

Medical Evidence

29. The Plaintiff was admitted to United Christian Hospital on 8th October 1994 where he was diagnosed to be suffering a fracture of the left distal tibia and fibula. On the same day a steinmann pin was inserted through the left celcaneum. He underwent a second operation on 11th October 1994 when an IM interlocking nail was set in place for the fractured tibia and a Rush pin fixation done for the fractured fibula. When last followed up at the United Christian Hospital in August 1996, the wound had gradually healed and his left leg was full weight bearing but walking with mild left leg pain.

30. The Plaintiff was examined by Dr Philip Mao, a medical practitioner appointed by the Director of Legal Aid. In his report dated 22nd August 1997, Dr Mao repeated the medical history of the Plaintiff in respect of the fractured tibia and fibula. Dr Mao also stated that the Plaintiff had been wearing for the last six months elastic supporters on both his lower legs due to chronic varicose veins with pigmentation of both ankles. Dr Mao came to the conclusion that part of the Plaintiff's loss of dorsi-flexion of his left side as well as the stiffness and inability to use his ankles were due to the condition of his varicose veins which is not the result of the accident. In respect of the fractured tibia and fibula, Dr Mao was of the opinion that the Plaintiff has sustained a 4% impairment of the whole person. He also took the view that the Plaintiff will become more comfortable with the removal of the intramedullary nail, screws and rush pins as they constitute foreign bodies which give rise to a certain amount of irritation and pain.

31. The Plaintiff was also examined by Dr S.Y. Chun who was appointed by the 1st Defendant. In his report dated 20th November 1998, Dr Chun found that union of the Plaintiff's fractured tibia and fibula had been achieved. He also came to the conclusion that the dull ache on both legs and the left thigh prosthesia was more likely due to the varicose veins rather than the healed fractures. He was of the view that removal of the metals from the fracture site would be reasonable and the Plaintiff would require a further two to four weeks for convalescence for such removal. He opined that the fractures alone came to an 8% impairment of the whole person with loss of earning capacity due to such fracture to be 16%. Finally he expressed the view that if there was no varicose veins, the Plaintiff should be able to return to his work as a casual worker at a construction site.

32. It can be seen that there was little, if any, difference between the views of Dr Mao and Dr Chun. Not surprisingly therefore, their respective medical reports were agreed into evidence by the parties and neither was called as a witness.

Pain, suffering and loss of Amenities

33. Under this head of damage, I take into consideration that the Plaintiff had undergone two operations after the accident and may need a further operation to remove the pins and nails in the fractured site. I also take account of the fact that both doctors came to the conclusion that the alignment of the fractured tibia and fibula had been achieved. I also note that the presence of the nails and pins give rise to certain irritation and discomfort which may be reduced with their removal by a later operation.

34. I note the fact that the Plaintiff has a varicose vein condition which was not the result of the accident herein and that this condition of his is responsible for some of his present disability. It also appears from the medical reports of both doctors that this condition of his varicose vein will likely deteriorate with time. Fortunately both doctors' assessment of the Plaintiff's impairment using the percentage basis were given based solely on the fractures alone. What is more difficult for me is to assess how much of the Plaintiff's present disabilities result from the fractures and not due to the varicose vein condition. As there is no suggestion that his varicose vein condition has in any way been aggravated by the fractures or by the accident, I do not take it into account in assessing damages under this head.

35. I have been referred by the Plaintiff to several local cases dealing with awards under this head of damage.

36. In Chau Kui, a 57 year old plaintiff suffered a fractured tibia and disability was assessed at 8%. He was awarded $350,000 for pain, suffering and loss of amenities in 1997.

37. In Lee Kwan Tong, a 32 year old plaintiff had a fractured femur and tibia. Disability was assessed at 12% but would increase to 15% to 18% after 20 years. An award of $440,000 was made in 1997.

38. Doing the best I can and taking note of all the foregoing, a reasonable compensation to the Plaintiff herein would be $400,000 for pain, suffering and loss of amenities.

Loss of Earnings

(a) Pre-trail loss

39. It is common ground that the Plaintiff was granted sick leave from the date of accident until 10th May 1996 (i.e. 19 months). I accept the Plaintiff's evidence that at the time of accident he was earning a daily wage of $420. This is confirmed by the Government statistics of earnings of construction site workers. The same statistics show that a casual labourer would have been earning $484 a day in May 1996. The median between October 1994 and May 1996 comes to $452 per day. The Plaintiff worked 26 days in a month. Therefore his loss of earnings for the period of sick leave of 19 months comes to :-

$452 x 26 x 19 = $223,288

40. From May 1996 until trial was a further 37 months. During this time the Plaintiff did not work. His explanation for not working was that he could not work due to his injuries. However from the medical reports of both doctors it is quite apparent that his varicose veins condition was the main reason that he was not working. The varicose vein condition of the Plaintiff was, unfortunately for him, not caused by or in any way aggravated by his fractured tibia and fibula. In those circumstances the Plaintiff will not be able to claim full loss of earnings for this period. The Plaintiff should have been able to take up some form of employment after the sick leave period ended.

41. I do, however, accept that even after the sick leave period, the Plaintiff was suffering from some pain, irritation and/or discomfort in his fractured sites due to the presence of the implants in his tibia and fibula. Whilst Dr Chun did state in his report that it would be reasonable for the Plaintiff to have the implants removed (his report being dated November 1998), up to the time of trial the implants have not yet been removed.

42. For the purpose of calculating quantum, I take the view that a reasonable time for the implants to be removed would be, say, six months after the trial. That the Plaintiff intends for the implants to be removed can be seen by the Plaintiff's claim for the cost of the further operation to remove the implants (which claim is not disputed by the Defendants).

43. For these reasons I have come to the conclusion that the Plaintiff did suffer partial loss of income for the period after sick leave ended up to the trial of this matter.

44. Since the Plaintiff had not been working at all since the accident, there is no direct evidence before me as to the amount of this partial loss. I would have expected that had it not been for the varicose veins, the Plaintiff, although he could not return to his pre-accident employment because of the irritation and discomfort caused by the implants, would still have been able to take on some form of sedantary work for which he probably would be paid less than what he was earning as a casual labourer. Doing the best I can in these circumstances, it would be reasonable to assess that loss at $4,000 per month. For the 37 months until the trial of this action, the amount of that loss comes to $148,000.

(b) Future Loss

45. The Plaintiff was 55 years old at the time of the accident and 60 at the time of trial. As a casual labourer doing manual work he could not have very many more years to go.

46. I have already taken the view that it would be reasonable for the implants to be removed six months after the trial. A further six months after such removal of the implants should see the Plaintiff fully recovered from the fractures. (In so saying I am consciously excluding from my consideration his varicose vein conditions which has nothing to do with the accident.) Whatever the remainder of his working life may be, I am of the view that the Plaintiff will be reasonably compensated by one year of future loss of earnings. Of this one year, the Plaintiff will be fully off work for one month (the amount of time needed for recuperating from the operation to remove the implants according to Dr Chun) and should be compensated for total loss for that one month. The remaining 11 months then will be the same partial loss of earnings as pre-trial and I will use the same multiplicand of $4,000 partial loss. The multiplicand for the one month of total loss will be based on the statistics showing daily wage of casual labourer to be $605 per day in 1999. This total amount of future loss therefore comes to :-

$4,000 x 11 months	= $44,000
$605 x 26 days x 1 month	= $15,730
Total	= $59,730

Special Damages

47. Special damages claimed totally amount to $12,454. This has been admitted by both Defendants and will be allowed.

Future Medical Treatment

48. The amount of $5,000 claimed for a further operation to remove the implants has been admitted by both Defendants and will be allowed.

Interests

49. Interests on the award for pain, suffering and loss of amenities will be at 2% from date of Writ until judgment. This comes to :-

2% x $400,000 x 1 3/4 years = $14,000

50. Interests on pre-trial loss and special damages at 5.77% from accident until judgment will give :-

5.77% x ($371,288 + $12,454) x 43/4 years = $105,174

Summary

51. To recap, the quantum awarded are as follows :-

PSLA		$400,000
Loss of Earnings	(a) Pre-trial	$371,288
	(b) Future	$59,730
Special Damages		$12,454
Future Medical Treatment		$5,000
Interests		$119,174
		$967,646

52. From this amount of $967,646 will have to be deducted the sum of $207,848.95 being the amount of E.C.C. compensation already received by the Plaintiff. This leaves the final amount of $759,797.05.

Third Party Proceedings

53. Third Party Proceedings were commenced by the 1st Defendant against the 2nd Defendant in which the 1st Defendant claims against the 2nd Defendant for :-

(a) the sum of HK$198,846.13 and interests of HK$9,002.82 being Employees Compensation paid by the 1st Defendant to the Plaintiff in ECC No.484 of 1996 as well as HK$12,000 being the costs of those proceedings, pursuant to section 25 of the Employees' Compensation Ordinance;

(b) an indemnity or alternatively contribution for such damages interests and costs as it may be liable to the Plaintiff for; and

(c) costs incurred in defending the Plaintiff's claim and costs of the Third Party Proceedings.

54. On the other hand, the 2nd Defendant counterclaims against the 1st Defendant in the Third Party Proceedings a complete indemnity under the provisions of the subcontract between them.

55. In the light of my decision above that it was only the 2nd Defendant to blame, albeit vicariously, for the Plaintiff's injuries, the necessity of apportioning blame between the Defendants does not arise. Even then I must deal with the 2nd Defendant's counterclaim for a full indemnity under the subcontract.

56. It is common ground between the 1st and 2nd Defendants that there is between them a Major Subcontract MSC-94/3999 dated 5th October 1994 which provides for labours for the carrying out of H-Pile driven works at the Kowloon Bay Site ("the Subcontract") in which the 1st Defendant is referred to as the Sub-Contractor and the 2nd Defendant as the Contractor.

57. Clause 1 of the Subcontract provides that "the Sub-Contract Works" means the works described in the documents specified in the Second Schedule thereto. Part B of the Second Schedule describes Sub-Contract Works as "Provide labours for the carrying out of H piles driven works."

58. In the Third Party Proceedings, the 2nd Defendant's case is that the works which the Plaintiff was doing when the accident happened comes within the definition of Sub-Contract Works and therefore the provisions of the Subcontract applies. Reliance is sought by the 2nd Defendant upon Clause 3(3) and Clause 12 of the Subcontract.

59. Clause 3(3) provides :

" The Sub-Contractor shall indemnify the Contractor against every liability which the Contractor may incur to any other person whatsoever and against all claims, demands, proceedings damages, costs and expenses made against or incurred by the Contractor by reason of any breach of the Sub-Contractor of the Subcontract."

60. The breaches of the Subcontract which the 2nd Defendant alleges to have been committed by the 1st Defendant are breaches of the 'Site Safety Rules for Sub-Contractors'(contained in Appendix D of the Subcontract and which formed part of the Subcontract) in the manner as particularised in paragraph 12 of the Amended Defence of the 2nd Defendant, namely that the 1st Defendant :-

(a) failed to ensure that the Plaintiff

(i) was properly instructed in safe working practices on the construction site;

(ii) understood and complied with instructions to move a safe distance away before the I-beam was lifted;

(iii) was competent and experience; and

(b) failed to comply with Section 6A(1), (2)(a), (b) and (c) of the Factories and Industrial Undertakings Ordinance.

61. In the light of my earlier findings that the injuries to the Plaintiff were caused solely by the negligence of the crane operator and that the 1st Defendant was not in breach of any duty towards the Plaintiff, nor was the Plaintiff contributorily negligent himself, by reason of those findings, it must follow that the 1st Defendant was not in breach of the 'Site Safety Rules for Sub-Contractors' in the manner alleged by the 2nd Defendant.

62. Reliance is also sought by the 2nd Defendant on Clause 12 of the Subcontract which provides :-

" The Sub-Contractor shall at all times indemnify the Contractor against all liabilities to other persons (including the servants and agents of the Contractor or Sub-Contractor) for bodily injury, damage to property or other loss which may arise out of or in consequence of the execution, completion or maintenance of the Sub-Contract Works and against all costs, charges and expenses that may be occasioned to the Contractor by the claims of such persons.

......

Provided further that the Sub-Contractor shall not be bound to indemnify the Contractor against any such liability or claim if the injury, damage or loss in question was caused solely by the wrongful acts or omissions of the Contractor, his servants or agents."

63. Once again by reason of my earlier finding that the Plaintiff's injuries were caused solely by the negligence of the crane operator and that there was no negligence on the part of the 1st Defendant nor contributory negligence of the Plaintiff, Clause 12 can have no application to the present case by reason of the proviso thereto cited above.

64. There was in fact a factual dispute between the 1st and 2nd Defendants in the Third Party Proceedings as to whether the works which the Plaintiff was carrying out at the time of the accident were works to which the Subcontract applied or whether they were works outside the Subcontract. However there is no longer the need for me to decide this factual dispute because the 2nd Defendant cannot rely on Clauses 3 and/or 12 for the reasons which I have given already.

65. Should it have been necessary to determine this factual issue, I would have made the following findings, having heard all the evidence on the matter.

66. I do not accept the 1st Defendant's contention that the works which the Plaintiff was engaged in at the time of the accident was related to or carried out for the purpose of enabling the moving in and/or assembly of a C41 piling rig into the Kowloon Bay site later that a night for these reasons :-

(a) this factual issue was raised late in the day by the 1st Defendant. The 2nd Defendant's counterclaim was made in early December 1997 on this issue. It was not until August 1998 that the 1st Defendant raised this issue for the first time in correspondence between solicitors.

(b) Photographs produced by the 2nd Defendant taken at about the time of the accident shows a large part of the site in the middle to be clear open space with three stacks of H-piles stacked by the outer perimeter of the site near to the hoarding boards. There is no reason why the clear open space in the middle could not have provided sufficient space for the assembly of the rig.

(c) I was wholly unimpressed with the evidence of Chan Moon Kwan and Shek Kwok Wing, both called by the 1st Defendant, on this point. Although they gave evidence that the stack of H-piles were re-located within the site for the purpose of moving in and assembly of the piling rig, neither was able to say with any degree of clarity from where and to where in the site was the stack of H-piles re-located for that purpose.

(d) There was evidence from Wong Hoi Chung that after the accident to the Plaintiff, the lifting work on the H-pile did not continue for the rest of that night, it being a Saturday evening. There is also unchallenged evidence from the 2nd Defendant's witness Tang Man Fu that on the following Monday morning he saw the C-41 piling rig delivered during the weekend to have been fully assembled, the evidence being that it takes some eight hours to assemble such a piling rig. From this evidence it appears more likely than not that despite the fact that the re-locating of the H-piles were not continued after the accident, that did not impede or hinder the piling rig from being moved into the Site some time between midnight and 6 a.m. on Sunday 9th October 1994 and being assembled at the site during most of that Sunday.

(e) Lastly, the evidence from Shek was that the 2nd Defendant was not charged any fee for the re-location of the stack of H-pile despite the 1st Defendant's contention that such re-location was outside the works contemplated by the Subcontract. The explanation given by Shek was that because of the business relationship between them, the 1st Defendant did not necessarily charge for everything. However, this explanation does not hold up since there is clear evidence that in relation to a number of other items the 1st Defendant would charge the 2nd Defendant for very much smaller amounts.

67. For these reasons I reject the evidence adduced by the 1st Defendant on this issue. I find that the works carried out by the Plaintiff at the time of the accident to be a part of the H-pile driven works which falls within the definition of Sub-Contract Works in the Subcontract.

Final Determination

68. In so far as the Plaintiff's claim is concerned, there will be judgment for the Plaintiff against the 2nd Defendant for the sum of HK$759,797.05. The Plaintiff's claim against the 1st Defendant is dismissed.

69. In respect of the Third Party Proceedings there will be judgment for the 1st Defendant against the 2nd Defendant for the sum of HK$207,848.95 being the amount of the Employee's Compensation as well as the sum of $12,000 being costs in those proceedings. The 2nd Defendant's counterclaim in the Third Party Proceedings is dismissed.

Costs

70. I propose to make the follow costs order nisi :-

(1) The 2nd Defendant do pay the Plaintiff's costs of this action, such costs to be taxed if not agreed.

(2) The 2nd Defendant do pay the 1st Defendant the 1st Defendant's costs of defending the Plaintiff's claim herein, such costs to be taxed if not agreed.

(3) The 2nd Defendant do pay the 1st Defendant the 1st Defendant's costs in bringing the Third Party Proceedings including the 1st Defendant's costs of defending the 2nd Defendant's counterclaim in the Third Party Proceedings, such costs to be taxed if not agreed.

(4) The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.