CHAN WAI FAI v. SUN LUEN SCAFFOLDING (a firm)

HCPI 356/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 356 OF 2000

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J U D G M E N T

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1. This is a claim for damages arising out of injuries suffered by the plaintiff, then a scaffolding worker when, on 1 April 1997, he fell from a height in the course of his work. The defendant was his employer when the accident happened.

The Background

2. The defendant is a one-man firm, owned and operated by Law Wan Ching (Mr Law). He has been in the business of contract scaffolding work for 20 years.

3. The plaintiff at the date of the accident was 32 years old. He had been a scaffolder for the previous 15 years and for the last 10 a 'see fu' or master scaffolder. He had become an habitual employee of the defendant up to the time of the accident.

4. Profit Building is a high rise industrial building in Kwai Chung, New Territories. Its units are serviced by an internal air conditioner, much of whose machinery, including electrical phase boxes housed in metal cabinets and pipelines, is located on the roof of Profit Building. The machinery is contained inside a rectangular structure whose outer four sides comprise steel mesh fencing incorporating a gate for access. Shelter from the weather is provided by roofing made by overlapping sheets of corrugated asbestos (referred to by the various witnesses in this case as 'shingles') about 6' x 3' in size, affixed by bolts to metal cross beams. Within this structure the air conditioning machinery sits on a raised platform about 3 feet off the roof top. The asbestos roofing is at a variable height above the platform to accommodate the machinery; that on average is about 12 feet.

5. By early 1997 the asbestos shingles had fallen into disrepair and needed to be replaced. A contractor engaged for the purpose sub-contracted with the defendant to build a scaffold platform within the structure at a height of 4 feet below the roofing to give access to it.

6. When it came for the work to be done the defendant employed the plaintiff, another master scaffolder, an apprentice and an unskilled casual worker to build the scaffold platform. On the morning of the day in question, 1 April 1997, they arrived at the site, carrying the bamboo and other materials to the roof top. Mr Law instructed what was required. The extent of those instructions are in dispute. Then Mr Law left his workforce to supervise a job elsewhere, and they got on with the work without his supervision.

7. By mid-afternoon half or more of the structure was built. Then it was that the plaintiff climbed up on to the asbestos roof. In evidence he was to say that it was to make a visual assessment of the size of the remaining area to be scaffolded and work out how much more bamboo was needed. But as he stood there the shingle beneath him snapped under his weight and he fell through it to the platform below, striking machinery on the way down. He was hurt and taken to hospital where he was found on examination to have broken his left clavicle and left pelvic bone, to have a compressed fracture of the vertebra at T12 and to have suffered an occipital haematoma. Subsequently he complained of a micturation disturbance and ongoing bouts of dizziness said also to have arisen from the accident.

8. The direct result is that the plaintiff has suffered pain and loss of enjoyment of life, and claims no longer to be fit to work as a scaffolder, with consequent financial loss. This is his claim for recompense.

The Pleadings

9. The plaintiff claims he was owed a duty of care by his employer to ensure he was not exposed to risk of injury whilst engaged in the work he was contracted to perform, both in contract and in tort. He also claims he was owed a statutory duty by the defendant under section 38A of the Construction Site (Safety) Regulations of Cap. 59. The defendant he claims was in breach under all three heads. He lists eight separate breaches of the contractual and tortious duties of care as follows:-

"Particulars of Breach of Contract of employment and/or Negligence of the Defendant

(a) Failing to provide safety equipment to the Plaintiff.

(b) Failing to provide and/or maintain a safe system of work;

(c) Failing to give any or adequate instructions or supervision to the Plaintiff in the work which he was performing.

(d) Failing to warn the Plaintiff the dangers of which he knew or ought reasonably to have foreseen.

(e) Exposing the Plaintiff to an unnecessary risk of injury.

(f) Failing to ensure that the asbestos shingle was of adequate and sound construction before allowing the Plaintiff to carry out work on top of it.

(g) Causing or permitting the Plaintiff to stand on the asbestos shingle when the same was in a poor state of maintenance and/or repair.

(h) Causing or permitting the Plaintiff to stand on the asbestos shingle when knowing or ought to have known the risk of the same collapsing.

10. He claims two breaches of the defendant's statutory duty:-

" Particulars of the breach of Statutory Duty of the Defendant

(a) Failing to provide a safe work place to the Plaintiff.

(b) Failing to provide suitable and adequate safe access to and egress from the place of work to the Plaintiff."

11. His claim for damages is under the separate heads of PSLA, pre-trial and future loss of earnings and earning capacity, pre-trial medical and other expenditure arising out of the accident, and interest and costs. The defendant having already paid the ECC award, this is deducted.

12. The defendant in his defence admits having been the plaintiff's employer when the accident happened, but denies being in breach of the duties of care owed to him. If the plaintiff was injured so as to suffer loss it was wholly or party through his own negligence, as follows:-

"Particulars of Negligence of the Plaintiff

a) Standing on the asbestos shingle when he knew or ought to have known the risk of the same collapsing;

b) Standing on the asbestos shingle when he knew the same require replacement and therefore unsafe;

c) Standing on the asbestos shingle when it was not necessary so to do in order to complete the work;

d) Failing to ensure that the asbestos shingle was of adequate and sound construction before standing on it;

e) Allowing himself to be subject to unnecessary risk of injury;

f) Failing to take any or sufficient precaution for his own safety;"

13. He also disputes the level of damages claimed although, in the event, some of the individual claims are not contested.

14. The pleadings define the issues.

The Issues

16. I shall deal with the issue of liability first.

Liability

17. There are disputes of fact arising out of the evidence which I come to next.

The evidence

18. The plaintiff was called first. He confirmed his experience and status in the scaffolding industry referred to at the outset. He said he with Mr Law inspected the site on the morning of the accident, then together they had a look at another job to be done next on the ground floor of Profit Building. Once they had the materials up on the roof top, Mr Law left them to it, presumably to attend to another project. He said they divided the area to be covered into three and started work. By mid-afternoon they had completed more than half. By this time the supply of bamboo had become somewhat depleted and he was concerned to ensure they did not run out if it all possible; there was a dead-line to meet and no ready way of contacting Mr Law to bring more material. He wanted to assess in his mind's eye the area still remaining. But at roof top level this was not really possible; the air conditioning machinery was bulky and prevented an uninterrupted view. So he decided to get up on top of the asbestos roofing for a clear look. He knew that there was a risk that, unsupported, the asbestos might not take his weight. So, using commonsense and experience and what he had been taught, he concentrated on standing immediately above the metal supports whose positions were depicted by the fixing bolts. Notwithstanding and without warning the shingle he was standing on broke and he felt through, injuring himself as described.

19. He denied that there was a more convenient, safer way of assessing the area still to be scaffolded. He said the machinery was obtrusive and prevented a clear view, and it carried warnings of heavy voltage. Passageways were narrow and the structure was too close to the edge of the building for him to calculate from outside the fence. His inspection was a necessary exercise to establish how much more bamboo was needed.

20. He denied that in giving his instructions Mr Law had said they must not attempt to climb on to the asbestos. He knew the purpose of building the platform was to enable demolition and replacement of the shingles but denied that they had the appearance of being old and dilapidated.

21. He said the defendant had not supplied safety belts or other safety equipment, and admitted that he had not at any stage of the construction worn a belt. He did confess to having told the Inspector of Factories who came to investigate the accident that he had been wearing a belt prior to mounting the roof. The inspector's report stated that and that was why. He did so to deflect the consequences of not wearing one even though that was not the truth. But he said a safety belt would not have saved his fall or otherwise have helped him, as there was no suitable anchoring point on the asbestos. He also confessed to habitually not wearing a safety belt on scaffolding because it restricted movement.

22. Shown a photograph that Mr Law said he had taken the next day, which showed a rectangular shaped hole in the asbestos roofing about 3′ x 4′ in size, he agreed that was where he had been standing and from where he fell.

23. The second and remaining witness of fact for the plaintiff was another of those on site, the apprentice called Li Luk Wong. As such he is not permitted to undertake actual scaffolding work but assists the masters. Prior to April 1997 he had worked several times before for the defendant and with the plaintiff. He said when they arrived at the site in the defendant's vehicle the safety belts and hats were left in the vehicle. They were not brought up to the roof top and when Mr Law drove off they went with him. He accepted the proposition that scaffolding work could be dangerous but said whether they wore belts was a matter of judgment and was not warranted when, as on this job, they were working at or just above ground level. He heard Mr Law instructing the plaintiff and the other master scaffolder on how to build the scaffolding, but as an apprentice did not pay careful attention to what was said. He did not hear Mr Law say that they were not to climb on to the asbestos. He was not told the purpose of the scaffolding, but guessed it was to enable the replacing of the asbestos shingles.

24. Mr Law gave evidence next. He is a master scaffolder. Sun Luen is a small firm, employing scaffolders, apprentices and unskilled workers on a daily basis depending on the workload. When asked to make a platform beneath the asbestos roofing for access to it for demolition and replacement he went to the site and noticed by visual inspection that the asbestos was in a state of disrepair. He agreed to take on the job and worked out the amount of bamboo needed. He noted that allowing for the raised floor and the gap between the scaffold and the roof the platform would be about 7 feet above the ground, that is above the roof top. In the crew he engaged for the job the plaintiff was the more experienced and senior of the two masters, and thus in charge in his absence.

25. They travelled together to the site carrying with them the bamboo. As usual the safety belts and hats were in the vehicle as well. He went up on the roof and explained what had to be done. He and the plaintiff then took a look at the next job on the ground floor. After that they all unloaded and carried the bamboo, ties and so on to the roof top. He cannot now say whether the safety equipment was taken out of the vehicle and taken up. Certainly it was there to be used. He gave no reminder about that; as a matter of course it is for the masters on the job to ensure the belts are on site and being used.

26. When explaining what had to be done he told the men they must not climb on to the asbestos, but erect the platform from below. That the plaintiff did so was to ignore that the asbestos was in disrepair and that direction.

27. After the accident he took photographs of the scene, one of which depicted the hole made by the plaintiff when he fell.

28. No further work was done on the scaffolding until the next day, when it was that he and another master scaffolder completed the job without incident. He said there was more than enough bamboo to finish it. He agreed that from roof top level inside the structure one's view of the surface area to be covered was restricted. But this did not impede their work. There was no need then or at any time to climb on to the asbestos roof as a visual aid or for any other purpose.

29. Based on this evidence I now come to findings of fact.

Findings of fact

30. Mr Law put the plaintiff, as senior scaffolder, in charge of the workforce once he had left the site. Before he did so I cannot say whether he instructed his men specifically not to climb on to the asbestos. Mr Law says he did; the plaintiff says he did not. Both are self-serving statements and cannot be relied on. The apprentice Li did not hear such direction but was not really paying attention. It seems to me more likely than not that the warning was not given; that the instructions were limited to Mr Law explaining to his master scaffolders what had to be built and for what purpose, leaving it to them, skilled and experienced as they were, to use their experience, expertise and commonsense how to build it.

31. I am satisfied that it was apparent to all that the asbestos was worn and unstable. Even the apprentice had worked that out. The plaintiff said that it did not look as though it was in disrepair, yet knew that it was to be demolished for that very reason. He knew or ought to have known that it was damaged, unstable and unsafe on account of that.

32. I am not satisfied it was a necessary function for the plaintiff to climb on to the asbestos to check the surface area of that part still to be scaffolded. It was his job to build the scaffolding as instructed. More than half had been constructed, apparently in accordance with the instructions, without the need for a bird's eye inspection. The remainder was simply more of the same. Someone else, namely Mr Law, had measured the site and worked out how much bamboo was needed. If the plaintiff had misgivings about whether he had under-estimated so be it; that was the defendant's, the boss', responsibility, not his. In any event as it turned out there was more than enough to finish the job.

33. There was no safety gear taken up to the roof top. As I find both the plaintiff and Mr Law knew about that but did nothing. Both blamed the other. I am satisfied that one as proprietor and the other as master scaffolder must share the responsibility and the blame for that omission. But in the circumstances of the case nothing turns on this. With the height of the platform no more than about 7 feet much of the work must have been done at ground (by which I mean roof top) level and the belts would have been more of a hindrance than a benefit. In any event, even had he been wearing a belt the plaintiff would have unclipped before surmounting the asbestos. There was up there, as I find, no suitable point of anchorage, and it would not have saved him from injury.

The Outcome

34. In my view the appropriate test to decide on the issue of negligence boils down to this: the plaintiff, whilst working for the defendant was hurt. Whose fault was it?

35. In Winter v. Cardiff Rural District Council [1950] 1 All ER 819, Lord Oaksey said at p. 822:-

"In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. ... where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot."

36. This case it seems to me, on the facts now established, falls into the category of cases where it was natural and reasonable that how the job was to be done was for the scaffolders, led by the plaintiff, and not their employer, the defendant.

37. I am not satisfied that it was in the reasonable contemplation of the defendant that his scaffolders were put at risk when he left them to build the scaffolding platform as instructed; in particular, that one or other of them might have had to get up on to the asbestos roofing. As I have found, the plaintiff was motivated to do so to see how much more had to be done. He was well-intentioned. But there was no need. And he knew full well, or certainly ought to have known, of the instability of what he was clambering on to and the inevitability of what would happen if it broke beneath him. He was master of his own destiny and liable for the consequences of choosing the course he did. The answer to the question:- 'Whose fault was it?' is: 'Not the defendant's, at all. It is the plaintiff's, entirely.'

The conclusion

38. I find the defendant did not breach those tortious, contractual or statutory duties of care set out in the statement of claim or otherwise. Having dealt thus with the first issue, that disposes of the rest.

39. The plaintiff's claim is dismissed. Costs are to the defendant taxed if not agreed; nisi at first instance. The plaintiff's own costs are taxed under Legal Aid Regulations.