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HCMP 1551/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 1551 OF 2009
(ON AN INTENDED APPEAL FROM DCPI NO. 1770 OF 2007)
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| BETWEEN |
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CHUNG PING WAI |
Plaintiff |
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and |
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PEDDER LOGISTICS GODOWN LIMITED |
Defendant |
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Before: Hon Tang VP and Yuen JA in Court
Date of Hearing: 28 October 2009
Date of Judgment: 3 November 2009
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J U D G M E N T
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Hon Tang VP:
1. The plaintiff was a warehouse worker. He claimed he was in the employ of the defendant, the occupier of the warehouse situated at Ground Floor of the Outboard Marine Centre, Tsing Yi, when he was injured in an accident on 8 September 2004. The plaintiff’s evidence of the accident was unchallenged and has been summarised by Judge Leung as follows:
“4. … According to him, immediately before the accident, he was standing by the door of the container which was in the course of devanning. He was taking a break. A forklift truck driver saw him and requested for his help to adjust the boxes on the truck in order to prevent them from falling. Chung climbed to the top of the forklift truck and prepared to adjust the position of the boxes. Beyond his expectation, the forklift truck moved and thus causing the box nearby to shake and to collapse behind him. He was hit and lost balance and fell to the ground.”
2. As the learned judge said there was no dispute that the operation of the warehouse had been contracted to Wong Hok Lung trading as Ming Fu Logistics Consultant Company. The learned judge found that Chung, the plaintiff, was not employed by the defendant at the material time and dismissed his claim.
3. This is the plaintiff’s application for leave to appeal, the learned judge having refused leave on 31 July 2009.
4. The gist of the plaintiff’s case on appeal as put by Mr Neal Clough is that:
“12. The Plaintiff's case is that an occupier is liable for the negligence or breach of the common duty of care by its sub-contractor its servant or agent. The Defendant was a warehouse operator, it supplied the forklift truck, its duty as the occupier is to take reasonable steps to ensure a safe system of work for workers engaged to work in the warehouse. A worker, whether he is an employee or an independent contractor, is assigned jobs that require them to take the risk that results in the accident.
13. It is common ground that the accident was caused by the negligence of the operator of the fork lift truck. The judge decided that the Defendant was under no duty to ensure that its sub-contractors had a safe system of work.”
5. This is what the learned judge said on occupier’s liability in his judgment:
“Occupier’s liability
19. An occupier of premises owes the common duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there: section 3(2) of Cap.314.
20. It is said that Pedder retained sufficient degree of control to be an occupier of the warehouse. Miss Wong for Pedder accepted that. But Miss Wong submitted that the accident, even on Chung’s own case, was caused by the manner in which the forklift driver controlled the forklift truck at the time of the accident.
21. I agree with Miss Wong. There is no suggestion that the accident was the result of any dangerous physical condition of the warehouse. I also do not find that the accident was the result of any dangerous set up of the warehouse including the storage. There is also no evidence of history of accident of such kind (or any kind) in the vicinity of the warehouse. Yuen, the manager, confirmed that.
22. But for the forklift’s driver’s request to Chung to do what he did and the manner in which the driver controlled the forklift truck at the material time, the accident would not have happened. I find that Pedder is not liable for breach of its duty as an occupier of the warehouse.”
6. Mr Clough relied on the fact that the defendant owned or supplied the forklift truck and was the occupier of the site. He submitted that it was incumbent upon the defendant to ensure that the forklift truck was operated safely including not moving it when someone is on top of it. He complained that the defendant had led:
“…no evidence to suggest that it had taken any steps to ensure the safe use of its equipment which was potentially hazardous. On the contrary, the Defendant’s case was that it was nothing to do with them”.
7. Mr Clough relied on Tam Hon Leung v Ng Wai Hing & Ors [2006] 1 HKLRD 923, a decision of Deputy Judge Carlson. There the plaintiff was engaged in the repair of sea-going containers at the River Trade Terminal (“RTT”). He was injured when a container that was being moved by a large capacity front loader was accidentally lowered onto him resulting in serious hip and knee injuries. He brought his action against three defendants. The 3rd defendant was the principal contractor in respect of the work of maintenance and repair of containers at the site which was operated by RTT. The 2nd defendant was the 3rd defendant’s sub-contractor. In turn the 2nd defendant sub-contracted to the 1st defendant the part of the contracted work which required skilled labour to carry out the repair and maintenance of the containers, retaining for itself the provision of the drivers, who it employed, for the operation of the front loaders. According to Deputy Judge Carlson, the 2nd defendant would transport and put into position the containers for repair and, once repaired its drivers would remove the containers to a location from where they could be driven away by container lorry and put back into use for transporting cargoes as part of the Pearl River trade.
8. The first issue which Deputy Judge Carlson had to decide was whether the plaintiff was the employee of the 1st defendant. He held that the 1st defendant was not the employer of the plaintiff and the plaintiff was an independent contractor. He then described how the accident happened and in deciding who was to blame for the accident, he said:
“35. … Essentially, where a large and potentially dangerous piece of equipment is being moved about in what is a reasonably confined space, I say confined in relation to the manoeuvres required to pick up the containers and re-position them in the lanes where they would be kept in order that they might be repaired, it becomes vitally important for the driver to have somebody on the ground to be his eyes and ears where so much of the area in front of him is in his blind spot. He cannot be expected to safely carry out what can be fairly fine manoeuvring when he cannot see in front of him. Because of this a person is usually positioned on the ground to tell him what is going on in the vicinity and to keep people away. That is a basic necessity for this type of activity to be done safely and efficiently.”
9. However he found that there was no such person, and that was the main reason why the accident occurred. In that context he said:
“38. I am satisfied that the 3rd Defendant had sufficient control of the site as a whole to have imposed upon it the duty of an ‘occupier’ within the Occupier’s Liability Ordinance and, as such, it owed a common duty of care to somebody like the Plaintiff who was lawfully present. The added feature is that it was the owner of the Eagle although, I appreciate, that it had made over its use to the 2nd Defendant who employed the driver, Mr Cheuk. In such circumstances it owed a duty to the Plaintiff to ensure that he was reasonably safe by virtue of the operations that it permitted on this part of the RTT. This being the case it was incumbent upon the 3rd Defendant to ensure that the Eagle was only permitted to carry out these tasks when somebody was on the ground guiding the driver and keeping bystanders at a safe distance, away from the vicinity of operations. It should either have provided that person itself or ensured, by demand of the 2nd Defendant and supervision, that the 2nd Defendant provided such a person at all times. Clearly, it had not and as a result the accident occurred. I am satisfied therefore that the Plaintiff has made out his case both in negligence and for breach of the Occupier’s Liability Ordinance against the 3rd Defendant.”
10. It is quite clear that Tam Hon Leung bears no resemblance to this case. Here we are dealing with the movement of cargo by a forklift, and not an operation which could be described as ultra hazardous. There was no evidence that there was an unsafe system of work.
11. Mr Clough also relied on what Bokhary PJ said in Rainfield Design & Associates Ltd. v. Siu Chi Moon [2000] 3 HKCFAR 134 at 141:
“15. I say at once that the mere fact of Mr Siu having been an independent contractor rather than an employee makes no difference. It is true that usually the person injured or killed would have been the employee of the person owing the statutory duty . But I can see no reason why it makes any difference merely because the person injured or killed was an independent contractor rather than an employee. Neither in terms of corrective justice nor in terms of distributive justice does there appear to be any reason in situations of this kind for distinguishing between employees and independent contractors. There is no authority, principle or policy consideration calling for any such distinction. Physical safety is plainly the paramount element of the law’s policy in this sphere. The only concern is whether the person injured or killed as a result of non-compliance with a statutory duty was within the class of persons which such statutory duty was imposed to protect. As a person working on a construction site, Mr Siu was clearly within the class of persons which the statutory duty here in question was imposed to protect.”
12. However, Rainfield was concerned with the Regulation 38A(a) of Construction Sites (Safety) Regulations, Cap. 59I, which provides that:
“38A General
Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that –
(a) there is, so far as is reasonably practical, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works ….”
13. Rainfield was not concerned with occupier’s liability. There, it was held that Rainfield was in breach of the statutory duty imposed by Regulation 38A(a) and that such duty covered any person who worked at the site, including an independent sub-contractor.
14. Mr Clough also sought to rely on the judgment of Cheung JA in Waan Chuen Ming v Lo Kin Nam trading as Kar Kin Engineering & Supplier Co and Ors, CACV 281/2008, dated 12 May 2009 where the learned judge discussed the law relating to the distinction between “activity duty” and “occupancy duty”. However Cheung JA did not find it necessary to come to any decision on the point for the purpose of that particular appeal. I do not believe Cheung JA’s judgment assists the plaintiff in any way.
15. I do not believe the intended appeal is reasonably arguable, or that on the facts found by the learned judge, the defendant could be held liable to the plaintiff. It is important to recognize the fact that an accident had occurred does not necessarily mean that there had been an unsafe system of work, much less one for which an occupier could be held responsible.
16. For the above reasons, I am of the view that leave to appeal should be refused with costs.
Hon Yuen JA:
17. I agree.
(Robert Tang)
Vice-President |
(Maria Yuen)
Justice of Appeal |
Mr Neal Clough, instructed by Messrs B. Mak & Co., for the Plaintiff
Ms Abigail Wong, instructed by Messrs Tang & So, for the Defendant
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