LEUNG WAN KEE SHIPYARD LTD v. BOLTON CONSTRUCTION COMPANY LTD AND ANOTHER

Headnote

          Vehicle being driven on a road was damaged from debris falling from a height from a building where renovation works were commencing. Whether civil liability attached to the 1st Defendant, the principal contractor employed at the site and the 2nd Defendant, the Supervisor of the site arising out of a breach of statutory duty under section 4B(2) of the Summary Offences Ordinance. Whether the principal contractor could be found liable for the negligence of its independant contractors. Whether the exceptions of operations on the highway and extra-hazardous acts, to the general rule that an employer is not liable for the negligence of an independant contractor applied in this case.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION NO. 1750 OF 1996

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JUDGMENT

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1. The Plaintiff was the registered owner of a private vehicle registration No. CM211, a Mercedes Benz (hereinafter referred to as the "Plaintiff's vehicle"). The Plaintiff's vehicle was a company car for the use of one of its directors, Mr. Leung Chan Ming. On the 10 August 1995, at about 10.15 a.m., whilst the Plaintiff's vehicle was being driven along Perth Street by Mr. Leung Chan Ming, PW1, on arrival at Perth Garden, at a location about or near Hove Court, some stones, debris and sand fell from a height onto the Plaintiff's vehicle. At the time some external wall renovation work was in progress at Perth Garden. The Plaintiff's vehicle was damaged thereby. By this claim, the Plaintiff seeks to claim repair costs and damages for loss of use of the vehicle amounting to the sum of $81,167.33. The claim is issued against the 1st Defendant who was the principal contractor employed by The Incorporated Owners of Perth Garden to carry out repairing, and renovation works at the exterior wall of Perth Garden at 5 - 9 Perth Street, Hong Kong (hereinafter called the "Site"). The 2nd Defendant was employed by the 1st Defendant as a Supervisor of the Site.

2. Particulars of negligence of the 1st and 2nd Defendant were stated in the Particulars of Claim to be:-

(a) failing to ensure that no materials including rocks, stones and debris would fall from a height at the Site which were liable to cause damage to the Plaintiff's vehicle and other property at or near the Site;

(b) failing to take any or any adequate or effective precautions to ensure that rocks, stones and debris would not fall from a height at the Site and hit the Plaintiff's vehicle;

(c) failing to employ any or any safe or adequate means whether by use of safety net or otherwise in order to prevent stones and debris from falling from a height at the Site;

(d) failing to carry out any or any thorough inspection and/or examination of the safety net or otherwise which would have revealed the dangers of falling of stones, debris from a height at the Site;

(e) the Plaintiff will further rely on the maxim res ipsa loquitur and upon the fact, as evidence of negligence on the part of the 1st Defendant, and/or 2nd Defendant, their servants and/or agents, that the materials, rocks, stones and debris at the site were under the control and management of the 1st Defendant and/or 2nd Defendant fell from a height at the Site and hit the Plaintiff's vehicle.

3. The Plaintiff further pleaded that the 1st Defendant was vicariously liable for the negligence of the 2nd Defendant being the agent, servant, and/or employee of the 1st Defendant as aforesaid.

4. Another basis of the claim was that the 1st Defendant as the principal contractor on the site in the course of the construction repair or decoration of the building or part thereof failed to discharge the statutory duty under section 4B(2) of the Summary Offences Ordinance Cap 228.

Finding of Facts

5. The evidence of PW1 Mr. Leung Chan Ming show that he was driving along Perth Street and when he got close to Hove Court on Perth Garden he felt stones falling onto the top rear of his vehicle. He got out of the vehicle and looked at the top of his car and found some stones and sand. He also saw some material on the ground all around. He looked up at Perth Garden and saw someone between the 10th and 15th Floor of Hove Court who was working. There were other workers on the scaffolding working, up to 10 of them. He dialled 999. Whilst waiting for the police, he saw objects falling down from Perth Garden. He saw stones debris and sand falling from where the workman on the 10th to 15th floor was working. He saw the worker's hand was brushing something on the window. He was walking to and fro on the scaffolding. He saw him using his hand with movements. He believed that the brushing movement caused sand and object to fall. Under cross-examination he said that it seemed that the movement looked like hacking but he could not see the workers holding any thing in their hands. He only saw hand movements. He heard sound which he thought to be like hacking sound.

6. Police came. Eventually the 2nd Defendant was called down. Both PW1 and the 2nd Defendant had at various stages picked up some of the stones that fell down. Both saw the damage to the Plaintiff's vehicle. The repair cost of the vehicle as claimed is agreed.

7. I accept the evidence aforesaid of PW1 as an accurate account of his experience of the event.

8. The 2nd Defendant gave evidence to state that he was an employee of the 1st Defendant. His position is the site co-ordinator for the building renovation works being carried out at the three buildings situated at the Site. His duties as a site co-ordinator include the co-ordination of all the works carried out by the subcontractors, dealing with tenants and the management of Perth Garden, monitoring the work progress, preparing the daily reports, conducting daily inspection of the Site and preparing the safety reports. The renovation works at Perth Garden involved the replacement of the external drainage pipes and the renovation of the external walls of the Buildings. He stated that in respect of the renovation works on the external walls, the sequence of work was as follows:-

(1) Bamboo scaffolding was constructed at the Site around the external walls of the Buildings. This was done on or about 20th February 1995. Safety nets were also installed covering all the Buildings.

(2) Canvas covers running from top to bottom of the Buildings were installed over the scaffolding 2 to 3 days prior to the commencement of the hacking off of the mosaic tiles from the external walls of the Buildings ("Hacking Works")

(3) Plywood boards were also placed over the windows of every unit to protect the glass when Hacking Works were being carried out.

(4) 2 to 3 days after the completion of the Hacking Works, the canvas covers and plywood boards were removed leaving the safety nets and bamboo scaffolding in place.

(5) Thereafter clear plastic sheets were placed over every window in preparation for the plastering works.

(6) Tiling works would then follow upon completion of the plastering works.

9. He stated that the various parts of the renovation work were subcontracted to sub-contractors. Work related to the scaffolding, canvas on the outside of scaffolding, netting on the side of scaffolding, putting of horizontal plywood boards on scaffolding between the external wall and the scaffolding and vertical plywood boards on the at the vertical edge of scaffolding were subcontracted to a company called China Fat Scaffolding Co. The hacking of the original mosaic tiles, thereafter the plastering of the external walls, the fixing of plastic sheets on windows before plastering work, the putting up of plywood boards to cover the windows during the stage of hacking works were subcontracted to a company called Kwan Kee Construction Works.

10. He produced Progress Reports on the renovation works at page 49 to 60 of the Agreed Bundle of Documents. From that he points to the fact that on the 10 August 1995, the hacking of the external wall of all the three buildings of Perth Garden facing Perth Street had been completed and was not in progress. He stated that on the 10 August 1995, as the hacking works had been completed on the walls of the three buildings of the Site facing Perth Street, the external canvas of the scaffolding had been removed along with all plywood boards. There was a netting on the external wall outside the scaffolding. It was deemed that this was sufficient precaution against debris or stones falling from the Site. He said that on the date of the accident, there was only one workman working on the external wall of Hove Court. He could be seen on a photograph of the external wall of Hove Court which he took immediately after the accident when he was called down to Perth Street. The photograph is the upper photograph of Exh D2. He said that the workman was called Chan Po Ping. He was an employee of Kwan Kee Construction Works. He was putting plastic sheeting along a window at the time. This was a stage of work required to be done on all the windows before plastering of the external wall after the mosaic tiles had been hacked off. He stated that Chan Po Ping was the only worker on the external wall of Hove Court on the Perth Street side of the building at the time although there were other workers working on the roof. There was hacking work on the Dunbar Street side of Perth Garden. Along the Perth Street facing walls of Hove Court, apart from the plastering of the roof area of Hove Court and the putting up of plastic sheeting on the windows of Hove Court by Chan Po Ping no other workman was doing any work. However, he subsequently gave evidence related to his subsequent inspection of Flat B on the 24th floor of Hove Court where he saw workmen installing new window frames on windows facing Perth Street and he produced photographs Exh D3 to show that. He stated that he saw debris fall onto the street from Flat 24B of Hove Court, whilst giving evidence in chief but under cross-examination he stated that he did not see any stones and debris fall whilst he was at Flat 24B. He picked up some stones and debris which he picked up on Perth Street and tried to say that these were stones and debris that came from around the window of Flat 24B. As this is opinion evidence and this witness was not an expert, this evidence was not admitted.

11. The 2nd Defendant was cross-examined on the Weekly Report prepared by the Safety Supervisor, namely Form 3A under Factories & Industrial Undertaking (Safety Officers & Safety Supervisors) Regulations at pages 61 to 64 of the Agreed Bundle of Documents. The 2nd Defendant was the Safety Supervisor named in this form. It was stated therein that the condition of safety nets and fans on the day of the accident namely 10 August 1995 was poor. There were certain recommendations written therein on the last page of the report. The Plaintiff's Counsel wished to refer particularly to items 3 and 4 of the recommendations which state with words to the effect that the debris and loose stones on the scaffolding had to be cleared and the loose stones on the passageways had to be cleared daily. The 2nd Defendant however stated that these comments related to the side of the walls where the hacking was still in progress and not to the side of the wall on Perth Street.

12. The aforesaid evidence of the 2nd Defendant is accepted by me.

13. As regards the evidence of the Plaintiff as to whether workman were hacking on the walls facing Perth Street on Hove Court, I have to find that the Plaintiff has had no direct evidence on this. PW1 Mr. Leung was not able to see from where he was at ground level whether there was hacking. The only thing that he stated was that he heard sound that sounded like hacking. He could not describe such sound. As there was hacking on walls of the various Courts of Perth Garden facing Dunbar Street, the sound of hacking could have come from that. Plaintiff's Counsel sought to rely on the evidence given by APC4474 Chu Kin-man at the Magistracy Proceedings Case No. SPS2846/96. APC4474 in those proceeding gave evidence that he saw workman holding something to hack the external walls. He said some debris was falling down. He stated there was netting round the wall but the netting was damaged and as a result debris fell down through the damaged netting. He was not challenged at all on this evidence of hacking whilst under cross-examination. Although a hearsay notice was served in respect of the notes of proceedings of the hearing in the Magistracy Court, and the Defendant's Solicitors did not serve a counter-notice, I am not able to give full weight to this evidence as the constable was not called to give evidence and was not cross-examined on this fact in this Court. Having regard to all the evidence before me, including the evidence of the Defendants, I find on the balance of probability that the hacking on the external wall facing Perth Street of Hove Court was not in progress. I am of the view that more likely than not, debris fell from the external wall as a result of the movement of the worker Chan Po Ping whilst trying to put plastic sheeting on the windows and the debris and stones left on the window sills were brushed off. I make this inference on the basis that PW1 said he saw hand movements of Mr. Chan Po-ping like brushing movements and he saw stones, debris and sand fall from there. Although it could not altogether be ruled out that debris also could have fallen from the installation of window frames on Flat 24B of Hove Court of Perth Garden facing Perth Street. However, the evidence of the 2nd Defendant on this is so uncertain that there is no evidence on which such a finding could be made. PW1 was not able to see from where the stones, debris and sand which hit his car fell. Neither the independent contractor that installed the window frames of Flat 24B Hove Court nor the employer of Chan Po-ping, namely Kwan Kee Construction Works nor the contractor in charge of the scaffolding and netting namely China Fat Scaffolding were joined in as Defendants.

14. It would seem that it was the Plaintiff's case that the work in progress on the external walls facing Perth Street of the Site were "inherently dangerous" or "extra hazardous". This will be addressed later.

Claim based on Breach of Statutory Duty

15. This is claimed against the 1st Defendant. Section 4B(2) of the Summary Offence Ordinance states:-

          "If anything is dropped or allowed to fall from any building in the course of the construction, repair or decoration of the building or part thereof to the danger or injury of any person in or near a public place, the principal contractor on the site and the contractor carrying out the construction, repair or decoration commits an offence and is liable to a fine of $50,000 and imprisonment for 1 year."

16. The 1st Defendant was not charged with this offence. The 2nd Defendant was charged with this offence, was convicted but his conviction had been overturned on appeal.

17. According to Clerk & Lindsell on Torts paragraph 11-06, to establish civil liability for a breach of a statutory duty, a plaintiff must show that (a) the injury he has suffered is within the ambit of the statute; (b) the statutory duty imposes a liability to civil action. (c) the statutory duty was not fulfilled; and (d) the breach of duty has caused his injury. The Defendant's Counsel argued that the injury suffered, in this case was not of the type which the statute was passed to prevent. It is stated in paragraph 11-07 of Clerk & Lindsell on Torts that,

          "If a statute requires something to be done with a view to avoiding one particular form of harm then, if non-compliance with the statute results in another form of damage, no action will lie for such damage not contemplated by the statute on the basis of breach of statutory duty... Obviously the harm may not be contemplated either (a) because the plaintiff does not come within the particular category of persons contemplated, or (b) because the type of damage was not that which the statute was intended to guard against." In this case the damage which Section 4B(2) of the Summary Offences Ordinance was intended to guard against was, "the danger or injury of any person in or near a public place". The damages sought in this case arose from damage to a motor vehicle. For this reason I find that civil liability cannot be established for breach of the statutory duty under Section 4B(2) of the Summary Offences Ordinance.

The Doctrine of res ipsa loquitur

18. The Plaintiff relies on the doctrine of res ipsa loquitur. As stated by Defendant's Counsel, this doctrine only applies if three conditions are met: (1) the occurrence is such that it would not have happened without negligence; (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; and (3) there must be no evidence to why or how the occurrence took place (Paragraph 7-176 of Clerk & Lindsell on Torts). It is clear that in this case, it is not a situation where it can be said that there is no evidence as to why or how the occurrence took place. It was the Plaintiff's case through their witness PW1 Mr. Leung that hacking on the external wall of Hove Court caused debris, sand and stones to fall, or alternatively the hand movement of the workman between the 10th to 15th Floor on the Perth Street facing wall of Hove Court that caused stones, debris, and sand to fall. The third condition referred to above is not met.

19. According to the Privy Counsel decision in Ng Chun Pui v. Lee Chuen Tat [1988] 2 HKLR 425 stated that the doctrine does not shift the burden of proof to the defendant. The effect is that "if the defendant provides an equally plausible explanation, this will redress the balance of probability, if it has tilted against him and the plaintiff will be back where he started, namely, of having to establish his case, if he can, by positive evidence." The Defendants say they have provided an equally plausible explanation in respect of the falling of stones, debris and sand as emanating from Flat 24B of Hove Court.

20. It is my view that for the above reasons res ipsa loquitur could not apply in this case.

Independent Contractors Defence

21. It was conceded by the Plaintiff's Counsel that in normal situations, the employer of an independent contractor could not be found liable for the negligence of its contractor. In this case, the scaffolding, the netting next to the scaffolding, the hacking, the plastering work on the external walls of Perth Garden, the putting of plastic sheets over windows were done by sub-contractors referred to above. It was the Defendants' case that all the works were subcontracted out and 1st Defendant only employed two employees; one being the 2nd Defendant the other being Mr. Yu Lap Sung, responsible for general cleaning at the Site. Mr Leung Yiu Kam, a safety officer, appointed for the project was not an employee of the 1st Defendant and he only came to inspect the site weekly.

          "To the general rule that an employer is not liable for the negligence of an independent contractor there are certain apparent exceptions. They are dependent upon a finding that the employer is, himself in breach of some duty which he personally owes to the plaintiff ... If the circumstances are such that the law imposes a strict or absolute duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor. If therefore, the duty is not fulfilled, the employer is liable even though the immediate cause of the damage is the contractor's wrongful act or omission." (Clerk & Lindsell on Torts paragraph 5-47)

22. It was accepted by the Defendant's Counsel that there are exceptions to the general rule but the burden of proving that the acts complained off falls within one or more of the exceptions is on the Plaintiff. Defence Counsel conceded that in the present case the following two exceptions may be relevant - operations on the high way and extra-hazardous acts. These referred to by the Defendant's Counsel are described in Clerk & Lindsell on Torts at paragraph 5-52 as "Operations on the highway".

23. The work in question was not in fact work done on the highway as it was work done on the external wall of Perth Garden adjoining Perth Street, a highway. Charlesworth on Negligence paragraph 2-305 summarises the situation in these words,

          "When the employer employs the contractor to carry out work either upon or adjoining the highway, which work is likely to involve danger to persons using the highway, the duty of care still remains with the employer." However this only applies where the work involved is "inherently dangerous".

24. The second category of exception is described as "extra-hazardous acts". "Extra-hazardous acts are operations that are inherently dangerous, and hence are done at the principal employer's peril." (Clerk & Lindsell on Torts paragraph 5-57).

25. It is for me to find whether the renovation works on the external wall of Hove Court was "extra-hazardous", or "inherently dangerous", and therefore there was a primary and non-delegable duty on the Defendants to exercise reasonable steps to prevent things from falling and injuring passers-by. I had found that the hacking of the mosaic tiles on the external walls of the three Courts in Perth Garden on the side of Perth Street had been completed before the date of the accident and there was no hacking on the Perth Street facing walls of Perth Garden on the date of the accident. I have to find that the work had reached the stage in the renovation of the walls facing Perth Street which involved the fixing of plastic sheets on windows and plastering of the outer walls facing Perth Street on the date of the accident, where the work was no longer "inherently dangerous" nor "extra hazardous".

26. Even if such work were "inherently dangerous" or "extra hazardous", the Defendant's Counsel submitted that since there was no actual hacking work, even though the employer is under a non-delegable duty, he will not be liable for damage negligently caused by his independent contractor if the contractor's negligence is what is called "casual collateral", for the contractor's collateral negligence does not involve the employer in a breach of his non-delegable duty. The Defendant's Counsel referred to the case in Padbury v. Holliday and Greenwood Ltd (1912) 28 T.L.R. 494 where the defendants employed a sub-contractor to put metallic casements into the windows of a house which the defendants were building. While one of the casements was being fixed, the man employed in fixing it placed an iron tool on the window-sill. The wind blew the window on to it, and it was knocked off the sill and injured the plaintiff, a passer-by in the street. In this case the Defendants were held not liable as the injury was the result of collateral negligence. Defence Counsel relied on the statement of Fletcher Moulton L.J. who said at page 495 that "before a superior employer could be held liable for the negligent act of a servant of a sub-contractor it must be shown that the work the sub-contractor was employed to do was work and nature of which, and not merely the performance of which, cast upon the superior employer the duty of taking precautions." (Clerk & Lindsell on Torts, para 5-63 and Pearson v Cox (1877) 2 C.P.D. 369).

27. It is clear that even if the movement of the workman Chan Po Ping whilst fixing plastic sheet on windows could have caused stones and debris to fall, I am of the view that such movements of his hand so as to cause debris and stones to fall was collateral to the work of fixing plastic sheet to windows. I therefore am of the view that the Defendants could not be held responsible for the falling of stones and debris onto Perth Street from Perth Garden. The case may well end differently if the sub-contractors were joined as Defendants.

Negligence of the 2nd Defendant as Supervisor of the Site

28. The 2nd Defendant was employed by the 1st Defendant as Supervisor of the Site. The responsibility of the 2nd Defendant as Supervisor was referred to in the 3rd paragraph of his supplemental statement. In it he stated that he conducted daily inspections of the Site and prepared daily reports as well as weekly safety reports. On the reports, he recorded his observations on the safety measures at the Site. If the conditions were poor, he would inform the relevant subcontractor's site representative to improve. It would seem from the report in Form 3A at pages 61 to 64, daily records were kept of condition of various aspects of the site under the Factories & Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations of the Factories & Industrial Undertakings Ordinance. Plaintiff's Counsel pointed to the record for Thursday in respect of Safety Nets and Fans for Thursday 10 August 1995, the date of the accident. The entry was 'poor'. However, the entry for the following two days were 'satisfactory'. This must mean that the 2nd Defendant must have informed the sub-contractor to do something about it on Thursday so that on Friday, its condition was stated to be satisfactory. It showed that in respect of this inspection, the 2nd Defendant as Supervisor had done his work and no negligence on his part could be found in this.

29. The Plaintiff's Counsel referred to items 3 and 4 on page 54 of the Documents Bundle. Item 3 stated that the debris on the scaffolding had to be cleared. Item 4 stated that the passageways must be cleared of debris on a daily basis. However, the 2nd Defendant stated that items 3 and 4 relate to parts of the Site other than the walls facing Perth Street. There is no evidence to contradict that. Hence, I am not able to find that items 3 and 4 of the Recommendations in Form 3A relate to the walls facing Perth Street of Perth Garden.

30. Having considered all the grounds of the claim and the defences of the Defendants, I find that the Plaintiff had not been able to establish the claim against the 1st and 2nd Defendants as pleaded. I am not able to understand why the sub-contractors of the 1st Defendants had not been joined in as Defendants in view of the general principle referred to earlier of the fact that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work save for certain exceptions. As it is, I have to make the following order:-

          "Claim dismissed. I make an order nisi for costs to the 1st and 2nd Defendants to be taxed if not agreed with Certificate for Counsel."