SIU CHI MOON v. RAINFIELD DESIGN AND ASSOCIATES LTD.

CACV 234/1998

HEADNOTE

The plaintiff subcontractor injured when climbing down the structure of a tower scaffold. The cause of the accident was a failure to provide a ladder.

The plaintiff under contract with the defendant (the main contractor) to provide a scaffold and to comply with the regulations.

Statutory duty under reg.38A of the Construction Sites (Safety) Regulations to provide "safe means of access" to the scaffold platform on the defendant as main contractor not on the plaintiff. Statutory duty cannot be delegated.

The defendant was unaware of its duty under reg.38A. The defendant's supervisors on site took no action by way of instruction or otherwise to ensure compliance with the regulation.

Defence to breach of statutory duty on the basis that the breach was solely due to plaintiff's conduct not made out.

See Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 and Boyle v Kodak Ltd [1969] 1 WLR 661.

CACV 234/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 234 OF 1998

(ON APPEAL FROM HCPI 941 OF 1997)

--------------------------

---------------------

J U D G M E N T

---------------------

Mortimer V-P:

1. This is a plaintiff's appeal against Seagroatt J's dismissal of his action for personal injury which he sustained on 27 November 1990. He fell about 15 feet to the ground when climbing down from a mobile tower scaffold. He sustained a fracture of the neck and is left quadriplegic.

Background

2. The plaintiff was climbing down the structure of the tower scaffold without a ladder. He was an electrician in business with a partner as Easy Engineering Company and was employed as one of 10 subcontractors by the defendant. The defendant was the main contractor in the erection and later dismantling of an electric lighting display in the area around Chater Garden. It was the designer and installer of the Hong Kong Electric Light Festival which lasted from 30 September 1990 until 3 November 1990 as part of the celebration for the 50th anniversary of China Light and Power. The accident took place when the display was being dismantled.

3. The plaintiff was the person in charge of this subcontract for the partnership. It is convenient, therefore, simply to refer to him in this judgment. The subcontract was dated 14 May 1990 and under that subcontract, the plaintiff was to do a number of things:

(1) He was to include scaffolding in the works if that was needed

(2) He was to observe the safety regulations; and

(3) He had to comply with all rules based on Hong Kong Labour Department Safety Regulations.

Also, as the judge found, another document was part of the subcontract described as "Notes to contractors of 1990 Hong Kong Electric Light Festival". This provided as follows:

"For high level and outdoor work, all workers must have appropriate safety equipment and take safety measures. Those working at high level must wear safety belt and link all tools to avoid an accidental fall. It is the responsibility of the contractor to provide safety equipment, like safety scaffolding(s), safety belt, and high level warning sign. Otherwise, the contractor will have to shoulder all consequences."

Under the contract, therefore, the plaintiff was to take necessary safety measures.

4. The plaintiff claims that the defendant was in breach of statutory duty and was negligent and that those breaches of duty caused his injuries. Realistically - as will become clear - Mr Wright, for the plaintiff, has limited his submissions on appeal to a consideration of whether the defendant was in breach of statutory duty, to which I now turn.

Statutory duty

5. The statutory duty to which the defendant was subject is not in dispute.

6. The work being carried out was "construction work" as defined by s.2(1) and Schedule III of the Factories and Industrial Undertakings Ordinance (Cap. 59). Under that Ordinance, there are regulations including the relevant ones - the Construction Sites (Safety) Regulations. Those regulations apply to a "construction site" upon which "construction work" is being carried out. There is no dispute that the plaintiff was working on a construction site within the Regulations and that the defendant was the contractor responsible for the site.

7. Regulation 38A provides in its relevant parts as follows:

"... the contractor responsible for any construction site shall ensure that -

(a) there is, so far as is reasonably practicable, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works, ..."

The platform of the tower scaffold was a place at which the plaintiff worked.

Why did the accident happen?

8. I turn to the causes of the accident. On the facts there is no dispute. The cause of the accident was a failure to have and to use a ladder on the side of the tower scaffold. It is not necessary to describe the tower scaffold which is a well-known piece of equipment save to say that the vertical distance between the horizontal members of the scaffold varied but at most was about 3 feet.

9. Mr Law - an expert who gave evidence at trial and whose evidence the judge accepted - said that a ladder on the side of the scaffold ought to have been provided in order to provide safe access and egress to the scaffold platform and that if it had been provided, it would have been likely that the accident would have been avoided.

10. On this, therefore, there can be little dispute that the defendant was in breach of the relevant part of reg.38A and that imposes an absolute duty because it was reasonably practicable to provide a ladder. That absolute duty is not imposed on the plaintiff but, of course, he had the duty and responsibility to provide the scaffold and any necessary safety measures. This included the provision and use of a ladder and so in that respect he was in breach of at least his common law duty to take reasonable care for his own safety - and, of course, for the safety of anyone else who worked on the scaffold.

11. The defendant required the plaintiff to provide these things for his safety but remained under the duty imposed by reg.38A. It is trite law that such duties cannot be delegated.

The judge's findings

12. I turn to the judge's findings. The judge considered the effect of this statutory duty and noted that the defendant had been prosecuted. He said, having referred to the regulation, that it was an absolute offence and the defendant was accordingly convicted. It had not taken all practicable steps. The duty under the statute is non-delegable. He noted in passing that the factory inspector had visited the site but in spite of that visit, he had not informed the defendant that there was a breach of the regulations. He thought that the defendant might reasonably expect to be informed. That was a passing remark by the judge. It cannot be relevant to liability in this case.

13. The judge went on to note the evidence of Mr Law - summarising it as follows:

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

He then went on to consider other regulations relating to scaffolding. Having done so, he came to this conclusion:

"If a ladder or ladders to provide a safe access to and egress from the working place are an essential safety requirement, then that safety requirement must be read into Regulations 38D and 38K as well as Section 6A."

Section 6A is a section of the Ordinance.

14. He continued:

"There are therefore clear statutory obligations with regard to safety on the main contractor (Rainfield) as well as on the sub-contractor (Easy Engineering)."

Any relevant statutory duty on the plaintiff?

15. I digress briefly to refer to those regulations. Regulation 38D concerns the construction and maintenance of scaffolds. It provides:

"(1) The contractor responsible for a scaffold shall ensure that every scaffold provided on a construction site and every part thereof is-

(a) of good construction, made of strong and sound materials, and free from patent defect; and

(b) properly maintained.

(2) The contractor responsible for a scaffold shall ensure that every such scaffold is kept so fixed, secured or placed in position as to prevent so far as is reasonably practicable accidental displacement."

Regulation 38K provides for inspection and reporting on scaffolds which have been erected for more than a month. The final matter relied upon by the judge is s.6A of the Ordinance. This provides general duties in relation to health and safety.

16. With the greatest respect, regs.38D and 38K, although they are general provisions imposed upon the plaintiff in respect of the scaffold, are not relevant to this accident and to the cause of it. The judge thought that under these provisions, by way of inference, there was a duty to provide the ladder. But with the greatest respect, I cannot take that view. These regulations impose a strict duty upon the contractor, and have to be read strictly. They refer to the condition, maintenance, inspection and reporting on scaffolds and not to the safety of a means of access to the working place on the scaffold.

17. So far as s.6A is concerned, that also is not relevant to the judge's consideration.

18. Section 19 of the Ordinance provides:

"This Ordinance does not -

(a) confer a right of action in civil proceedings in respect of a failure to comply with section 6A ..."

Insofar, therefore, that the judge relied upon these conclusions as indications that the plaintiff was under a co-extensive statutory duty to provide the ladder, or statutory duties which were co-extensive, relevant, and a breach of which was causative of this accident, then, in my respectful view, he was wrong.

The judge's findings continued

19. Continuing with the judge's findings, he rightly in this context equated the position of the plaintiff as an independent contractor with that of an employee. There were good reasons for this. Primarily, because reg.38A itself protects not only employees but all persons who work on the site - including independent sub-contractors such as the plaintiff.

20. The judge finally dismissed the plaintiff's claim on two grounds. First, he held that the defendant was not liable for the breach of statutory duty because the plaintiff's conduct was solely the cause of the accident. The words he used were:

"In answer to the question whose conduct caused this accident I have regretfully to say that it was that of the Plaintiff. Had an employee of Easy Engineering, as opposed to a partner in the business, fallen in identical circumstances his claim against his employers would have been unanswerable. The employers were not only in breach of their statutory duty but had failed to provide him with a safe system of work, safe access to and egress from his place of work, and adequate and safe scaffolding."

Secondly, the judge found that any breach of duty of the defendant under reg.38A was not a cause of the accident. This is to be found in two passages in the judgment. First, he came to the conclusion that even if the defendant's supervisor had suggested the use of a ladder to climb up and down the scaffolding, he did:

"... not think that the Plaintiff would have complied."

Secondly, having dealt with the expertise of the plaintiff, he said:

"Not only by reason of the contract but also by virtue of the experience and expertise of Easy Engineering, they could rely upon that sub-contractor. There was in my judgment no causal connection between Rainfield's breach of their absolute duty and the Plaintiff's fall from the scaffolding."

Was the plaintiff's conduct the sole cause of the accident?

21. I turn then to the question whether the breach of duty of the plaintiff in failing to provide a ladder was the sole cause of this accident.

22. In approaching this point, the judge applied the correct principle. He said that "within the context of employee relationship a defendant is not liable at common law for his breach of statutory duty if he has done all in his power to carry out the duty and has failed by reason of the plaintiff's conduct and nothing else". He then considered the effect of the two leading cases - Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 and Boyle v Kodak Ltd [1969] 1 WLR 661. Those cases followed a number of earlier decisions, two of which are Manwaring v Billington [1952] 2 All ER 747 and Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 and finally established the exceptional defence to breach of statutory duty upon which the judge decided the case.

23. The principle is to be found in the speech of Lord Diplock in Boyle v Kodak at 672G-673A

"What, then, is the liability of an employer who is sued by an employee plaintiff for damages for personal injuries sustained as a result of a breach of statutory duty by the employer in not complying with the requirements of a regulation when the non-compliance relied upon was also a breach of statutory duty by the plaintiff himself?

The plaintiff establishes a prima facie cause of action against his employer by proving the fact of non-compliance with a requirement of the regulation and that he suffered injury as a result. He need prove no more. No burden lies on him to prove what steps should have been taken to avert the non-compliance nor to identify the employees whose acts or defaults contributed to it, for the employer is vicariously responsible for them all. But if the employer can prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself, he establishes a good defence."

Upon that principle the judge held the defendant had shown that the only act or default which contributed to the plaintiff's injury was that of the plaintiff himself.

24. Lord Diplock went on to illustrate the working of that principle in that particular case at 673F:

"Upon the evidence in the present case, which was that of the plaintiff himself and of a fellow workman who completed the work after the plaintiff was injured, it appeared that neither was given any instructions about the regulations or was told that the regulations required the top of the ladder to be lashed to the rail of the tank before anyone mounted on it. It also appeared that the plaintiff, for reasons which are intelligible though unconvincing, believed that the ladder should be lashed while he was mounted on it and not before So far from establishing that the plaintiff did know what the requirements of the regulation were and their application to the particular circumstances of the operation on which he was engaged, the evidence discloses that the foreman and the ganger through whom, inter alia, the employers were purporting to perform their statutory duty and for whose omissions they are vicariously liable, took no steps to give to the plaintiff instructions on either of these matters which, if carried out, would have prevented the breach of statutory duty. The employers, in my view, therefore failed to satisfy the onus which lay upon them to prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself."

25. The authors of Munkman on Employer's Liability, 12th edition, at p.518 summarised this principle and the application of it accurately, in my judgment, in this passage:

"Yet the House of Lords has decided that there are still exceptional cases, where the fact that breach of statutory duty has occurred, and contributed to the accident, does not make the defendant liable. This happens when the breach occurred solely through the plaintiff's conduct, without any failure on the part of the defendant or any other person for whom he is responsible: Ross v Associated Portland Cement Manufacturers Ltd [1964]2 All ER 452; Boyle v Kodak Ltd [1969] 2 All ER 439. The emphasis is on the word 'solely'. If there is any failure to provide necessary equipment, or to give instructions (including instructions as to safety regulations), the defendant is not exonerated: it must have done everything in its power to meet the duty."

What of the present case on this point? I find myself differing from the judge for I do not think on the evidence before him, this exceptional defence was made out. The defendant's duty was under the regulation. There was a breach of that duty which at least was a prima facie cause of the accident. The defendant could not delegate the duty. The same statutory duty was not imposed upon the plaintiff. The plaintiff's duty in this respect was at common law. The responsibility under reg.38A was that of the defendant. It had asked the plaintiff to provide necessary safety equipment but there was no specific reference to the defendant's own duty under reg.38A. Further, the defendant was unaware of its duty under this regulation. It supervised the work and the evidence was that if there was a breach of safety measures as the defendant understood them - those relating to safety harnesses and helmets - it would stop the work until the matter was remedied.

26. The plaintiff was working on the site supervised by the defendant's employees, and there was a breach of the defendant's duty in not providing a ladder. There was a duty upon the defendant to do something about it. At least to bring it to the notice of the plaintiff and require, until the matter was remedied, that he should stop work. In fact, nothing was done. The reason was the defendant was unaware of its statutory obligation.

27. In those circumstances, can it be said that although the plaintiff failed to provide the ladder, that the accident occurred solely as a result of that non-provision when the defendant did nothing on the site to comply with its statutory duty? On those facts, it seems to me that this exceptional defence cannot succeed.

28. The judge referred to the expertise of the plaintiff as opposed to the defendant's lack of it in the use of scaffolds but it is no excuse for a contractor to say that "I am not experienced in this work" when there is clear statutory duty imposed upon him. Although the defendant was ignorant, and not intentionally in breach, it is no defence.

29. So I would find that the judge was wrong in holding, as he did, that the breach of statutory duty under reg.38A was not one for which the defendant is liable on the principle in Ross v Associated Portland Cement and Boyle v Kodak.

Was the defendant's breach of reg.38A one of the causes of the accident?

30. But that is not an end of the matter. Was this breach of duty a cause of the accident? The judge held that it was not because he thought the plaintiff would not have complied with the defendant's request to provide a ladder. Of course, if that be so, that must be an end of the plaintiff's case because even if the defendant had properly supervised and instructed the plaintiff, he would not have carried the instructions and would have continued clambering up and down the scaffold. But Mr Wright submits that the judge's finding was not based upon any evidence and I turn to that.

31. The judge's finding when he said "I do not think that the Plaintiff would have complied" was founded upon a passage in the evidence in which the plaintiff was asked whether he would have used a ladder if he had been asked to do so by the defendant. He paused before making his answer that he would have then provided himself with a ladder. The judge came to the conclusion that that was answer given with the benefit of hindsight. There was, of course, no direct evidence that the plaintiff would not have used the ladder or that he had disobeyed an instruction from one of the defendant's supervisors. More importantly there was evidence from the defendant's director, Mr Lui, which was relevant and important. It stemmed from evidence that he had given in the Magistrates Court in the criminal case. Mr Lui described the employees the defendant had on site whose task included supervising the safety of the work. Mr Lui said that if there was a breach leading to an unsafe practice, his employees would ensure that was remedied by the simple means of stopping the subcontractor working until it was remedied. That evidence was repeated in front of the judge and Mr Lui accepted that as the situation on site. In reaching his conclusion the judge did not refer to that evidence which was of vital importance on this issue. Of course, it must be said the plaintiff has to show on balance that the defendant's breach was a cause of the accident and that causation is a notoriously difficult concept. In cases of omission such as the present, causation has to be inferred and the judge should not be astute to find that a relevant breach was not a cause of the injury. In this case, however, it seems to me that there was no evidence upon which the judge could find that the plaintiff would not have complied had he been asked to do so in the light of Mr Lui's evidence that the work would have been stopped if safety measures were not complied with.

32. So, on the whole of the evidence, I would hold that on this point the judge was wrong. It was not open to him to find that a breach of this duty was not a cause of the accident. In those circumstances there is a clear inference that this breach was one of the causes of the accident. I would so hold. In those circumstances, I would allow the appeal and hold the defendant liable.

Contributory negligence

33. That leaves the question of contributory negligence. The judge did not have to make any finding but we have before us the necessary evidence to determine this matter. It is not seriously disputed by Mr Wright on the plaintiff's behalf, that the plaintiff is not guilty of at least some proportion of contributory negligence. How should this be approached? The principle has been set out in many cases. Perhaps one of the most useful and practical is that of Lord Denning inDavies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 326 when he said this:

"While causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless the amount of the reduction does not depend solely on the degree of causation. The amount of reduction is such an amount as may be found by the court to be 'just and equitable', having regard to the claimant's share in the responsibility for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

In the result this is a matter of impression having considered all the factors.

34. I would hold, applying those principles, that the plaintiff should be 50% to blame. I would hold him guilty of 50% contributory negligence for his own breaches in failing to take reasonable care for his own safety. In those circumstances I would order that the plaintiff should be awarded 50% of the damages to which he would otherwise be entitled. I would order that the case be remitted to the Court of First Instance for the assessment of the damages.

Godfrey JA:

35. The accident which resulted in the appellant's horrific injuries here happened as a consequence of his dangerous conduct in using this tower scaffold to obtain access to the place at which he was working by climbing up and down its horizontal frame members instead of using a ladder for the purpose. This may have been the appellant's usual practice, or even a general practice, but it was dangerous conduct nonetheless. The appellant was guilty of a failure to take reasonable care for his own safety. The accident was thus materially contributed to by this failure on the part of the appellant.

36. But the respondent was under a statutory duty to comply with the Regulation 38A to which Mortimer, V-P has referred. This duty was absolute and non-delegable. The respondent did not "ensure" that, so far as was reasonably practicable, the appellant's access to and egress from the site on which he was working by using this scaffold was safe. The respondent failed to "ensure" that those working on the site under its control used a ladder for those purposes. So, the accident was also materially contributed to by this failure on the part of the respondent.

37. The appellant and the respondent having each materially contributed to the accident, each must bear a share of the blame for it.

38. I do not find it possible to conclude that either one of them is more to blame than the other. I, too, would apportion the blame equally between them. I therefore conclude that the judge should have found the respondent liable to the appellant, but should have reduced the appellant's damages by half to reflect the share of responsibility for the accident to be borne by the appellant. This approach is, in my view, sanctioned by authority : see Cakebread v. Hopping Brothers (Whetstone), Limited [1947] K.B. 641 (and see also Davison v. Apex Scaffolds Ltd. [1956] 1 Q.B. 551).

39. So, I, too, find myself constrained to differ from the judge. I do so with diffidence, having regard to the judge's very considerable experience in this field. But for the reasons I have given, I agree that we must allow this appeal to the extent indicated by Mortimer, V.P.

Nazareth V-P:

40. I also agree with the judgment of Mortimer V-P.

41. I wish to add in respect of the question whether the defendant's breach of regulation 38A was one of the causes of the accident. This lies at the very heart of this appeal. I particularly agree with the reasons Mortimer V-P has given for rejection of the judge's conclusion that there was no causal connection between the defendant's breach of the absolute duty upon it and the plaintiff's fall from the scaffolding. It is implicit in Lord Diplock's speech in Boyle v Kodak Ltd, from which Mortimer V-P has quoted, that where there is such a breach, there is prima facie liability and that must, in my view, import causation. And that prima facie liability, of a nature difficult to dislodge, it seems to me, the judge did not take into account. Likewise, he did not mention and appears to have overlooked the evidence that Mr Lui gave in the Magistrates Court and confirmed before the judge, that the defendant's supervisory staff would ordinarily stop workers doing unsafe acts. These ought to have included climbing the mobile scaffolding without ladders. Had he taken the latter into account, it seems to me that he would have reached the proper conclusion.

42. That then leaves the question of apportionment of liability. I agree with my Lords, doing the best we can do here, that the appropriate apportionment should be 50% to each party, so that the plaintiff would be awarded 50% of the damages to which he would otherwise be entitled.

43. We accordingly allow the appeal and make the orders proposed by Mortimer V-P.