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HCMA001093/1986
| IN THE SUPREME COURT |
1986 NO.1093 |
| MAGISTRACY APPEAL |
(Criminal) |
BETWEEN:
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THE QUEEN |
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AND |
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YUE Wing-ip @ YUE Ming-chid Trading as Truly Construction Co. |
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Coram: Roberts, C. J.
Date: 21st November, 1986. & 28 NOV 1986
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JUDGMENT
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1. The appellant was convicted by a magistrate of an offence against regulation 39(1) of the Construction Sites (Safety) Regulations, made under the Factories and Industrial Undertakings Ordinance (Cap.59).
2. The charge was in the following terms -
"YUE Wing-ip alias YUE Ming-chid trading as Truly Construction Company being the contractor at a construction site ...... at which excavating or earthworking operations were being carried on, did fail to cause a structure made of suitable timber or other material to be erected in connection with the said operations as soon as necessary after their commencement so as to prevent workmen employed on the site from being endangered by a fall or displacement of earth, rock or other material adjacent to or forming the side of the excavation or earthwork."
3. At the conclusion of the trial, at which the defendant was represented by counsel, the magistrate found him guilty of the charge and imposed a fine of $5,000. The defendant appeals against conviction, though not against sentence.
Undisputed Facts
4. A number of facts were not disputed during the course of the trial, among them the following -
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(1)
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D.1 was the contractor responsible for the construction site at which the accident occurred on 28th February, 1986;
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(2)
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"excavating or earthworking" operations were being carried out on that site by the defendant;
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(3) |
a structure made of suitable timber or other material had been erected in connection with those operations on or before 26th February;
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(4) |
the shoring was removed in the afternoon of 26th February in order that a pipe might be laid in the trench which which was being retained by the structure;
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(5) |
there was heavy rain on 27th and 28th February;
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(6) |
at about 5.00 p.m. on 28th, four workers were instructed to enter the trench by the defendant's foreman to assess the condition of the trench;
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(7) |
one of the workers, WONG Kuen, was in the trench when a quantity of soil collapsed from the side of it and hit him, causing his head to be trapped between the soil and the rim of a pipe; as a result of whichs he sustained injuries from which he later died. |
Findings of Magistrate
5. After considering the evidence with some care, the magistrate set out his findings of fact in the following terms -
"I have considered all the evidence adduced before me and the submissions made by Counsel. I find the following facts:
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1. |
The Defendant was the contractor responsible for the construction work under the relevant contract as mentioned in the charge.
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2. |
On the particular construction site, the Defendant excavated a trench on the ground for the laying of a concrete pipe; but failed to erect on 28th February, 1986 a structure made of suitable timber or other materials at the bottom of the trench.
I find that such structure was necessary to prevent workmen from being endangered by the collapse of soil from the side of the trench.
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3. |
I am mindful that shoring was initially erected in the trench but it was removed on 26th February, 1986 and it was not re-erected afterwards. I find that the deceased was fatally injured because the soil collapsed from the side of the trench which did not at the natural time have shoring on it, nor had any metal sheet piling been driven into it.
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4. |
The day when the fatal incident occurred, i.e., 28th February, 1986 was a rainy day. More importantly, it had been raining since 26th February, 1986. It is on common ground that rain would affect the stability of the soil on the side of 'the trench and that the stability decreases with time if under unsupported conditions. I find that no appropriate measure had been taken to prevent the fall of soil from the side of the trench in view of the worsening rainy conditions.
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5. |
The traffic was rather busy at the road beside the trench. It is also on common ground that the vibration caused by the flow of vehicles on the road surface would further jeopardize the stability of the soil on the side of the trench. I find that the Defendant had not taken sufficient precaution to prevent workmen employed at the site from being endangered by the collapse of soil, having regard to the traffic condition affecting the nature of the soil on the side of the excavation.
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6. |
The Defendant had not considered the dangerous condition of the soil at the excavation as indicated in the Fatal Accident Report submitted by the Defence. I therefore find that the Defendant had not taken reasonably adequate precaution to ensure the safety of his workmen sent down to the trench." |
The Regulations
6. The relevant parts of Reg.39 of the Construction Sites (Safety) Regulations are as follows -
"39. (1) The contractor responsible for any construction site at which excavating or earthworking operations are being carried on shall cause a structure made of suitable timber or other suitable material to be erected in connexion with the operations as soon as may be necessary after their commencement so as to prevent workmen employed on the site from being endangered by a fall or displacement of earth, rock, or other material (including waste material and debris) adjacent to or forming the side of the excavation or earthwork.
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(4) |
This regulation shall not apply -
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(a)
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to an excavation or earthwork where, having regard to the nature and slope of the sides of the excavation or earthwork and other circumstances, no fall or dislodgment of earth, rock or other material is likely to occur -
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(i) |
so as to bury or trap a workman or other person employed in or near the excavation or earthwork; or
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(ii) |
so as to strike any such workman or person from a height of more than 1.2 metres; or
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(b) |
in relation to a workman actually engaged in the erection of any structure or in rendering any excavation or earthwork safe, or to a person engaged in examining such structure, if other precautions which are reasonably adequate to ensure his safety are taken." |
Grounds of Appeal
7. Counsel for D.1 advanced a number of grounds with much skill and force. I shall, however, only deal with those which appear to me to be of substance.
8. Reg. 39(1) requires a suitable structure to be erected "as soon as may be necessary" after the commencement of the earthworks. It was suggested that the contractor had fulfilled his obligation under Reg. 39(1) by providing an adequate structure on 26th February. I cannot accept this submission. It must be implicit in the regulation, and in the intention expressed in it, that the contractor shall be responsible both for causing a suitable structure to be erected and for ensuring that it is properly maintained at all times during operations on the site.
9. It would make nonsense of the regulation to suggest that a contractor could escape all liability subsequently, if he had at some time erected a suitable structure and later removed it. I think that there can be no doubt that on 28th February, the defendant was in breach of Reg. 39(1). The remaining question is whether the exclusions provided in Reg. 39(4)(a) or 39(4)(b) apply.
10. The defendant's argument, on Reg. 39(4)(a) was that the magistrate was wrong to reject the evidence of the expert witness, Mr. Penn, who gave it as his opinion that the sides of the trench would have been stable enough to allow the workmen to erect a timber retaining wall without an unreasonable degree of danger. In effect, Mr. Penn seems to have been saying that "no fall was liable to occur?within the terms of Reg. 39(4)(a).
11. It is to be observed that Mr. Penn did not himself visit the site and was relying on information given to him by the contractor. Nor is there, in principle, any reason why a magistrate should not decline to rely upon the evidence of an expert. The magistrate and not the expert is the arbiter of fact and the latter's opinion is only one of the factors which a magistrate takes into account when reaching his findings. No doubt, in this instance, he gave weight to the fact that such a fall did occur.
12. In the alternative, it was urged that the defendant could rely on Reg. 39(4)(a), on the basis of the magistrate's finding that the deceased had entered the trench to "assess the condition" of the trench before shoring.
13. In seeking to rely on Reg. 39(4)(b) the defendant must show that the workmen in the trench were "actually engaged in the erection of any structure or in rendering any excavation or earthwork safe".
14. According to a fellow workman of the deceased (P.W.3), who was in the trench when it collapsed, he had been instructed by the foreman to carry out shoring work in the trench.
15. The foreman, CHAN Tak-wah, called by the defence, testified that he had examined the trench in the morning and the afternoon of 28th February, the second time at 3.30 p.m. He found that the soil was stable and the surface wet and therefore instructed his workers to carry out the shoring.
16. It cannot be seriously disputed that the defendant took reasonable precautions to ensure that the law was complied with. The necessary shoring had been erected before 26th February and it was the intention to replace it after the rain had stopped in the afternoon of 28th.
17. Unhappily for the dead workman, the soil collapsed as he and his colleagues had entered the trench in order to examine its condition and rebuild the shoring.
18. The question which, on the basis of his findings and the evidence, the magistrate had to decide was whether it can be said that a workman is "actually engaged" in the erection of a structure or in rendering an excavation safe when he has entered the excavation for the purpose of compliance with the obligation imposed by Reg. 39(1)
19. As a matter of common sense, there must be a period when a workman is preparing to erect shoring or to render a trench safe but is not actually engaged on it. This will usually be a short time but if the magistrate is satisfied that this is the reason for the presence of a workman on excavation, it is open to him to find that Reg. 39(4)(b) excludes the liability of the contractor.
20. However, the magistrate does not appear in his judgment to have directed his attention specifically to the terms of Reg. 39(4)(b). Rather, he based his decision on a finding "that the defendant had not taken reasonably adequate precaution to ensure the safety of his workmen sent down to the trench."
21. I think there is some confusion here between the ultimate objective of Reg.39, which is to prevent workmen from being placed in danger, and the obligation being placed upon him which is to take certain measures which should lessen that risk.
22. Reg.39 does not impose, in terms, an obligation to take reasonable precautions to ensure the safety of workmen, but to carry out works of the kind required by the regulation.
23. Had he considered the real question, I think he would have concluded that the men in the trench were "actually engaged" in the erection of the replacement shoring within the meaning of Reg. 39(4)(b).
24. I must observe in passing that Reg. 39(4)(b) also requires other precautions, reasonably adequate to ensure the workmen's safety shall be taken.
25. In this instance, there was no evidence as to what other precautions adequate to meet the safety of the workmen could have been taken when they were asked to enter the trench. Nor indeed was the issue considered. In other cases of this kind it may be a matter of significance, but I shall take no account of it since it did not arise at the trial.
26. I therefore allow the appeal against conviction, though I would like to express ray appreciation of an excellent statement of findings by the magistrate.
Representation:
Mr. H. Wong (Cheung, Tong & Rosa) for the Appellant
Mr. F. Whitehouse, Crown Counsel, for Crown.
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