MA HUI TUNG KUK AND OTHERS v. CHEONG HING HA KEE CONSTRUCTION CO. LTD. AND OTHERS

1986 No. A6281

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. In this action the Plaintiffs, who are the widow and elder son respectively of Ma Hang Kuen, deceased, bring this action for damages as administrators of the deceased who died after an accident at work on 2nd June 1984.

2. Judgment in default has been entered against the 1st Defendant who has taken no part in these proceedings. Notice of this hearing was served late on the 1st Defendant's registered office and I made an order abridging time. However, if the 1st Defendant should ever surface (which seems most unlikely) there would have to be an assessment of damages because the 1st Defendant cannot be bound by the agreed figure for damages and I have not heard all of the evidence on quantum.

3. Happily as between the Plaintiff and 2nd Defendant they have agreed on quantum in the sum of $850,000 inclusive of interest subject to liability and contributory negligence. Therefore liability is the sole issue that I have to decide.

4. The claim is based on 3 separate heads. Firstly, a breach of an implied term in a sub -sub-contract for wooden formwork Secondly, a breach of the Occupiers Liability Ordinance and thirdly Common Law negligence.

5. The facts are commonplace. The 1st Defendant was a building contractor who had apparently entered into a building contract with the owner of a site at Yuen Long Town Lot 352 Fan Tsoi Street, Yuen Long, N.T. It appears that work started in December 1982. By May 1983 the building had got as far as the 3rd Floor and 4th Floor formwork. The building owner then decided to change the building use from commercial to residential and this entailed a delay while the various approvals were sought. Approval was given in March 1984 and work recommenced in late May 1984.

6. A crucial point in the case is that the scaffolding which had been erected from and after December 1982 remained in place between May 1983 and May 1984 while the approvals were sought. No work was carried out on the site between May 1983 and May 1984.

7. By a quotation given to the 1st Defendant dated 10th May 1984, the 2nd Defendant offered to carry out the concrete formwork at the site from the 3rd Floor to the 7th Floor including the roof for the sum of $150,000. It appears that the quotation was accepted. [The 2nd Defendant also agreed to carry out other work which was sub-sub-contracted to another entity.]

8. The 2nd Defendant then entered into an oral sub-sub-contract with the Deceased in relation to the formwork contract. It appears that the total price agreed was $112,360 which was to be paid in various stages. The 2nd Defendant's profit was thus approximately $38,000. It should be noted that the whole of the formwork subcontract was sub-sub-contracted to the Deceased.

9. The Deceased had a partner, a Mr. Ng. They had apparently carried out similar works before. On this occasion they employed a Mr. Chen.

10. The Deceased, Mr. Ng and Mr. Chen had been working on site for some 3 days when, on 2nd June 1984, at about 2.40p.m the Deceased fell from the 3rd Floor level and sustained injuries from which he later died that day.

11. It appears from the photographs and the evidence of Mr. Chen that the Deceased was working at the 3rd Floor level and was standing on 'bridge planks'which are called kirk ka in the trade. These kirk ka are narrow wooden planks, one end either rests on, or is nailed to, the exterior wooden formwork with the other end resting on, or affixed to, the scaffolding which is about 2 to 3 feet away from the building. It is also possible for kirk ka to rest on the concrete floor slab if the exterior formwork has already been removed.

12. Having heard Mr. Chen, whom I accept as a truthful witness, it seems most likely that the Deceased was standing on an old kirk ka, i.e. one which had been put, in place over a year previously, when it broke causing the Deceased to fall. Next to where the Deceased landed was found a freshly broken piece of plank which most likely came from the plank upon which the Deceased had been standing when he fell. Photograph 8 shows the broken piece of plank. Photograph 5 shows the kirk ka at the 3rd Floor level. It also shows the concrete floor slab at the 3rd Floor from which it appears the wooden formwork had been removed. Photograph 5 also shows a broken kirk ka but no one can be certain whether this was the kirk ka upon which the Deceased had been standing when he fell.

13. Having heard all the evidence I am quite satisfied that the Deceased had been standing on an old kirk ka at the 3rd Floor level when it broke causing him to fall and sustain his fatal injuries.

14. The 2nd Defendant's case through Mr. Tsang is simplicity itself. He says that he sub-sub-contracted his sub-contract to the Deceased who was an independent contractor. He says that he never exercised any supervision over the way in which the Deceased and his partner were to carry out their work. He had not entered into a contract of employment with the Deceased. He denied being an occupier of the premises or part thereof and he denied Common Law negligence. He relied upon the fact that the Deceased was an experienced worker who was well aware that the scaffolding and kirk ka had been constructed and left in place, unused, for a year and that all risks were on the Deceased.

15. The Plaintiff's claimed Employee's Compensation in the District Court. The proceedings were contested by both Defendants. The claim was dismissed on the basis that the Deceased was not employed by either Defendant.

16. Mr. Sarony Q.C., for the Plaintiff contended that the sub-sub-contract between the Deceased and 2nd Defendant was subject to the following implied term which appears in Para. 6 of the amended Statement of Claim.

"It was an implied term of the said contract with the 2nd Defendant and/or it was the duty of the Defendants under the said contract to take all reasonable precautions for the safety of the Deceased while he was carrying out his duties under the said contract, not to expose him to any risk of damage or injury of which they knew or ought reasonably to have known and to provide and maintain safe plant and equipment and give adequate instructions and supervision in order for him to carry out his tasks safely. The said term was implied and/or the said duty arose under the terms of the said contract because the Deceased would be obliged to go on the scaffold on the site in order to carry out his duties."

17. Further or alternatively Mr. Sarony submits that the 2nd Defendant owed the Deceased the common duty of care under the Occupiers Liability ordinance on the grounds that the 2nd Defendant jointly occupied the site with the 1st Defendant. Mr. Sarony went on to contend that there was a breach by the 2nd Defendant of the common duty of care.

18. On 19th March 1985 the 1st Defendant was convicted in the Magistrates Court of the offence of being the contractor responsible for the site and failing to ensure that the working platforms erected outside the building were either closely boarded planked or plated such offence being contrary to Regulation 38L (A) and 68(1)A of the Construction Sites (Safety) Regulations Cap. 59.

19. Mr. Tsao of the Factory Inspectorate gave evidence before me and confirmed his report dated 2nd July 1984. His report concluded that the cause of the accident was due to the lack of strength of the wooden planks which had been affected by weather in the past year. Alternatively he concluded that the Deceased might have lost his foothold whilst climbing along the wet and slippery bamboo scaffolding or the Deceased might have lost his balance and stepped heavily onto a plank. As to prevention, Mr. Tsao's report recorded that the wooden planks should have been inspected given the length of time they had been up. He also concluded that there should have been a proper working platform and, if not possible, safety belts or harness should have been provided. As a last alternative a safety net should have been provided.

20. This case raises, not for the first time, the position in law of a labour only sub-contractor. It was not alleged by Mr. Sarony that the Deceased was in fact employed under a contract for service as it was conceded that he was engaged under a contract for services. For the benefit of being able to describe himself as working on his own account the Deceased, if the 2nd Defendant be correct, lost all right to make claims against the 2nd Defendant in respect of his working conditions. On the evidence I have heard I am satisfied that the Deceased's average monthly income, which was described as his share of the profit after paying Mr. Chen, was in fact no more than he would have earned had he been employed directly. The Deceased received no real advantage from the arrangement entered into but again, if the 2nd Defendant is correct, he lost all rights that an employee would otherwise have enjoyed.

I have already noted the Plaintiff's failure in the Employee's Compensation proceedings. It is not for this Court to question why people enter into the arrangements they do. It is the Court's function to put a legal label on the arrangement and decide what consequences in law flow from that relationship.

21. In order to consider the Plaintiff's claim it is necessary to pay careful regard to the evidence. Apart from the Factory Inspectorate, I heard only 3 witnesses on liability. The Plaintiffs called Mr. Chen, the employee. The 2nd Defendant called Mr. Tsang, a partner in the 2nd Defendant firm and Mr. Ng, the Deceased's partner.

Mr. Chen's evidence

22. He told me he was an odd job worker. He was working for Mr. Ma on this particular site. He said that he, Mr. Ma and Mr. Ng were to remove planks from the bridge which needed replacement. By this he was referring to the kirk ka. After some discussion he agreed that he was working on the 3rd Floor but he could not remember precisely where. The bamboo scaffolding was 2 feet roughly from the building. There were concrete stairs within the building. He told me that their job consisted of removing the old partitioning from the external wall. Whilst undoing screws he himself was standing on a kirk ka which he said.was made of long wooden planks of various sizes about 2 feet apart. These planks were 4 to 6 inches wide. He was working at the same level as the Deceased about 10 to 20 feet apart. Some of the formwork had been nailed and some had been screwed. The Deceased was on his right and Mr. Ng could see him. He saw that the Deceased had walked along the planks, in other words on the kirk ka. He then heard the sound of wood or plank breaking and then he saw the Deceased fall. He saw the Deceased fall between the building and scaffolding. The Deceased landed on the lst Floor slab level. Mr. Chen went down to tender to him. He went with him to the hospital. He also noticed a piece of wood which had fallen at the same time as the Deceased. He identified what he referred to as 'bridge' on photograph 5.

23. In cross-examination he agreed that their job was to remove the formwork and the planks. This involved removing and replacing damaged planks. He agreed that he was aware that these were old planks. He further agreed that he could not tell whether they were damaged by just looking at them.

24. He said that he saw Mr. Tsang of the 2nd Defendant at the site. He said that sometimes Mr. Tsang was on the site for approximate 2 or 3 hours and he put this at about once every 3 days. He denied that Mr. Tsang only appeared once in a while. He agreed that Mr. Tsang paid visits in order to pay. At the time of the accident both he and the Deceased were wearing helmets. He knew nothing about safety belts.

Mr. Tsang of the 2nd Defendant

25. Mr. Tsang told me that he was in partnership with others but that he was the leading light. In 1984 he had a sub-contract with the 1st Defendant. After he got the sub-contract he was introduced to the Deceased and he took the Deceased to the site to look at it. He says specifically that he told the Deceased that the planks had been nailed one year ago and had been up all that time due to the change in the plans. He said specifically that he told the Deceased that all planks had to be removed or replaced and new planks should be nailed to the structure. He led me to believe that it was an express term of the oral sub-sub-contract that the Deceased had agreed to remove all the planks, in other words the removal of the planks was part of the scope of the works. He agreed that after the unfortunate death of the Deceased Mr. Ng completed the work. He confirms that he paid Mr. Ng a total of $112,360, the precise amount of the original quote.

26. As to supervision he said that normally when he sub-contracted a job he would not have any restrictions on the sub-sub-contractor. He would not supervise and he was not concerned whom they employed. He said he provided no tools or equipments. As to the replacement kirk ka these were to be supplied by the 1st Defendant. He agreed that on the first day he showed Mr. Ma and his colleagues to.the site. He showed them where to begin work and he went on to say that they would not have been allowed on site without him being there. He said that he could not authorise people to enter the site and he had no power to refuse anyone entry to the site. He says that he and the Deceased and his colleagues met the 1st Defendant's foreman Mr. Szeto He says that he told Mr. Szeto that they would work at the site. He then said that he had not been to the site again prior to the accident. He agreed he went to the site after the accident. This would he when Mr. Ng asked for money to pay the workers or if the 1st Defendant contacted him with regard to the progress of the works. He said that he did nothing at the site. He was only there to ee the progress and that all he could do to make the work go quicker was to ask the Deceased or Mr. Ng to put more men on the job.

27. In cross-examination he agreed that he went to the site to give money, to chase the progress or to deal with complaints from the 1st Defendant. He agreed that he and he alone would be liable to the 1st Defendant in the event of any complaints. I take this to mean that he fully appreciated that he was liable for delay and for defects and that he was concerned to ensure that this did not happen. He said that the 1st Defendant had told him that they would provide for employee's compensation insurance but he never saw the insurance policy and he never asked to see it. He confirmed to me that he had no employees at all. He was just a sub-contractor. At this time he had three different contracts which he had sub-contracted completely. In relation to the insurance policy he said that he wanted to fix the 1st Defendant with the obligation to insure. He wanted to make sure that it was not his responsibility. He was under the impression, because he had been so told by the 1st Defendant, that they had a blanket policy for the whole project.

28. In relation to how he estimated his price, he said that the main contractor gave him plans to look at. He did not show these to the Deceased. He said he took the Deceased to the site and showed it to him. He said that the 1st Defendant had a foreman and leveller on site to tell the Deceased what to do. He said that he had to discuss with the foreman to see what improvements could be done. He then told Mr. Ng to see how to do the works. He said that he went to the site only about every 3 days.

29. As to the first day he agreed that he showed the Deceased and his colleagues where to begin work. He told them that the formwork had to be removed as it had been there for one year. He said specifically that he told the Deceased to be very careful because the planks had been there over a year and were rotten. When asked why this allegation had not surfaced before he said he did tell his solicitors about the warning he had given but it wasn't in a statement and he gave them no instructions in writing. He said that he had not read the 2nd Defendant's defence and the solicitors had not been through it with him.

30. Mr. Tsang confirmed that as the formwork and scaffolding had been there over a year the nails and screws would be rusted. They would be hard to remove. After one year the concrete had set hard and the wood would rot. He emphasized that the Deceased should have been careful. He said that the Deceased should have constructed a framework on which he could stand. He said that he could not remember whether he had told the 1st Defendant that he had sub-contracted. He agreed that there was no working platform. As to whether it was safe or unsafe outside he said 'It is all the same at all construction sites - one had to work there'. He agreed that the 1st Defendant had to supply the. new planks. He agreed that he did not tell the Deceased not to start work until the platform had been made. Basically what he was telling me was, it was all up to the Deceased to decide in what order to do the work. He agreed that he did not give a quote to the 1st Defendant for the platform. It was not normally specially made. He said that no one builds a working platform in the construction industry although he agrees by law it is required. He then added this 'if workers found no platformrovided they should make the place safe before starting work'. He agreed that he did not tell the Deceased that the kirk ka was dangerous, he just told him to be careful when removing the formwork. He agreed that there was no time for completion of the whole of the sub-sub-contract but there was a time for completion of each floor. He said that he liaised with Mr. Ng. If Mr. Ng couldn't do it in time he would suggest to Mr. Ng to get more workers. He denied spending much time at the site. If there were no problems he would leave. He said that he seldom went there at the request of the 1st Defendant. He agreed that it was not quite right to say that he only went to pay money.

31. Mr. Tsang admitted that he did inspect the work and he recognised that he would be sued if it was not properly carried out. However he vehemently denied any supervision. He said that he had to finish the formwork within 5 to 7 days for particular floor. However it was not for him to decide how many workers should carry out the works. He made it quite clear that if he put more workers on the site it would eat it into his profit and this was something which he was not prepared to countenance. He also agreed that if he insisted he could bring more men onto the site. Somewhat surprisingly he said that he only looked at the plans without visiting the site before giving his quotation. He knew the formwork had been there for a year. He agreed that if he had gone to the site and seen the scaffolding he would have expected a means of access to the work. However he made clear that he hadn't worked on a site for some considerable time. He accepted that workers needed secure footing, but he didn't know whether there was or was not any secure footing at that level. He said quite baldly that it was up to the workers to decide how to deal with the matter. They had to take it or leave it.

32. He was also asked about an answer recorded in the judge's notes in the Employee's Compensation proceedings. Having said that small tools were for the Deceased to bring along himself he added "However, the big machine, if required, would be supplied by my company." He agreed that this referred to the possible need for a hoist but he denied having said what I have just set out. What he says he said to the judge was that the 1st Defendant would supply a hoist. I prefer to rely on the judges note.

33. In re-examination he emphasised that it was up to the workers to decide whether the planks were strong enough to carry their weight. He says that it was up to the Deceased to decide whether to replace the kirk ka and it was not his job. He agreed however that the cost of replacing the kirk ka was not included in his quotation to the 1st Defendant. He said that in the construction industry if one is employed to put up formwork it is for that person to replace the kirk ka that might be unfit for use. He suggested that there was'no extra cost in putting up new kirk ka. He said that the formworker namely the Deceased, had to replace it but it was included in the job. He denied that they could charge extra for that. When asked why he sub-contracted he said that everybody does it. He added that if he employed the workers directly to work for him it would not be cost effective. He added that it would be hard for him to supervise workers. Doing it this way enabled him to take on more contracts and he confirmed that he had three projects on at the same time. He had three partners but the other two had their own businesses but there were no employees.

The evidence of Mr. Ng

34. Although he was the partner of the Deceased he was not called by the Plaintiff and gave evidence on behalf of the Defendants. He could not remember much about the accident because just before it happened he had gone to get a crow bar and had gone inside the building. He said that before the accident, he had been removing the exterior formwork. He was at the exterior of the building. He was removing the old kirk ka He was also removing old formwork in the building. He said.that he could tell by looking that the kirk ka was old. He said that the Deceased told him to remove it. He said that he normally stood on a plank or kirk ka to work on the exterior part of the building. He said other formworkers he had seen did it the same way. During the three days prior to the accident he had built new kirk ka and had put them in place. He was asked whether he would charge extra for removing kirk ka and putting up new ones. He admitted that that would be logical but at the time of the sub-contract the contract price he said was inclusive of everything. He said the materials were supplied by the lst Defendant. He agreed that Mr. Tsang took them there to the site on day one. He couldn't recall whether he had seen Mr. Tsang again before the accident but he thought probably not. He said that after the accident Mr. Tsang came to the site irregularly either every second day or week or so. He denied that he had said in the Magistrate's Court on 15th March 1985 that "I don't know who I work for that day but Deceased told me to go there". He agreed he was not present when the sub-contract was agreed. He agreed that he did not know what had been discussed between the Deceased and the 2nd Defendant. He agreed with what he had said in a statement given to the factory inspectorate on the 8th June 1984 namely that "Our work was to remove unfit planks and replace them with the proper ones". He agreed that things were in a mess on this site. He said that sometimes they had to replace the planks first, sometimes things were hanging above them but basically they did the inside first before working outside. He agreed that after the accident when he went to the Deceased he found a broken plank. As to the accident he said that the plank must have been defective unless Mr. Ma jumped up and down on it. He then added this "He should have seen it - whether it was allright or not - we had to protect ourselves - not for someone to tell him".

35. In re-examination he was shown photograph 5 and he was asked whether their job was to remove the formwork first or the kirk ka. He said that he thought that the formwork would be the first to be removed. He agreed that during the first three days he stood on kirk ka and he stood on old ones. He emphasised that their job was to remove the formwork first before removing the kirk ka. If it was not done in this way it would have been even more dangerous, he added.

Conclusions on the evidence

36. I found Mr. Chen to be a reliable witness. I found Mr. Tsang to be evasive and most anxious not to say anything that deviated from the rigid confines of his case. He seemed to be determined to deny anything that might lead to a suggestion of supervision and he was clearly most concerned to see that his profit was not eroded. He was obviously then and now trying to obtain the best of both worlds.

As to Mr. Ng I found him to be unhelpful as the thrust of his evidence was that it was the Deceased's job to remove all the kirk ka, especially all the dangerous ones, yet at the same time he contended that the formwork had to be removed first thus necessitating the use of the old kirk ka.

I am quite satisfied on the evidence that;

(1)   The removal of all the old kirk ka was not part of the Deceased's sub-sub-contract.

(2)   It was inherent in the Deceased's sub-sub-contract that he and his colleagues would have to remove such kirk ka which they found to be unfit for use.

(3)   Neither the 1st Defendant nor 2nd Defendant took any precautions whatsoever to provide a working platform for the Deceased to work upon.

(4)   Mr. Tsang visited the site far more regularly than he has admitted. I far prefer Mr. Chen's version on this issue. Mr. Tsang visited for the following purposes:

(a)  To show the site to the Deceased and his colleagues and going to introduce them to the, foreman;

(b)  To pay them money;

(a)  To check on the progress of the work;

(d)  To check on the quality of the work;

(e)  To deal with any complaints emanating from the 1st Defendant.

(5) 1 am not satisfied that Mr. Tsang told the

Deceased to be very careful as the kirk ka was rotten and all had to be removed. I accept that Mr. Tsang told the Deceased that the scaffolding had been up a year but he left it to the Deceased to do what was necessary.

Occupiers Liability

37. Obviously the 2nd Defendants cannot be liable under the Ordinance unless they were in occupation of the site. Who is an occupier? The position is well set out at p.711 of Clerk v. Lindsell on Torts where one finds the following passage:

"Occupier" is simply a convenient word for a person who has a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises. A degree of control is prima facie sufficient if it is such that the defendant ought to realise that a failure on his part to use care may result in injury to a person coming on the premises. The defendant need not have entire control; he need not have exclusive control. A person who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons is undoubtedly an occupier, but this test is too narrow. There are others who are occupiers even though they do not say "come in." Two or more persons may be occupiers each under a duty to use care dependent on his degree of control. Each may be liable to a visitor, with a claim to contribution from the others."

As was said in Creed v. McGeoch & Sums Ltd. (1955)1 WLR 1005 at 1009:

"The answer in each case depends on the particular facts of the case and especially on the nature and extent of the occupation or control in fact enjoyed or exercised by the defendants on the premises."

38. On the evidence I have heard I am satisfied that the 2nd Defendant had a sufficient degree of control over the premises where the Deceased was working to put him under a duty of care towards the Deceased. The 2nd Defendant was the sub-contractor. He had contractual rights and obligations with regard to the Main Contract. The 2nd Defendant was entitled, by virtue of his contract, to be in occupation of the premises and was entitled to authorise others, including the Deceased, to enter and remain upon the premises for the purposes of, inter alia, carrying out work thereon. I am satisfied that through Mr. Tsang, the 2nd Defendant, retained a sufficient degree of control. In order to ensure that the work was being carried out on time and in a proper manner he visited the site regularly. I accept that he attended in order to deal with complaints from the 1st Defendant and that he took this up with his sub-sub-contractor in order to attempt to protect his own contractual position. When he visited the site I accept that he spent time with the Deceased both on and off the site and I am prepared to infer that they discussed the work in progress. I also take into account the fact that it was recognised by Mr. Tsang eventually that he.could have employed more men to accelerate the work if the Deceased and Mr. Ng had fallen behind in their work. Further it was also of significance that Mr. Tsang was the person who saw the planks and that he never showed them to the Deceased. He knew precisely what work had to be carried out and I do not accept his attempt to distance himself from the details of the work has been carried out.

39. The common duty of care set out in S.3 (2) of the Ordinance:

"is a 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 purpose for which he is invited or permitted by the occupier to be there."

Sub-section (3) then provides:

"The circumstances relevant for the present purposes include the degree of care, and of want of care which would ordinarily be looked for in such a visitor, so that (for example) in proper cases -

(a)......

(b) an occupier may expect that a person in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

40. Can the 2nd Defendant rely upon S.3 (3) (b)? The Defendant's calling was that of a carpenter who erected and took down wooden formwork. He was not a scaffolder and he had not put in place the kirk ka involved. In a normal case (i.e. one where the site had not been left for over a year) the scaffolder would have erected the scaffolding. I am not clear in that situation whose job it was to put in place the kirk ka as the building moved from floor to floor. I will assume that it was the formwork contractors job to do this as the formwork moved up the building. However in this case the Deceased was required to work on scaffolding, kirk ka and formwork already put in place by others. This seems to me to take this case somewhat out of the ordinary situation. Whereas it might be said in a normal situation that the Deceased would exercise his calling by putting in place new kirk ka as the building went up, in the instant case he was left with no alternative but to work, at least to begin with, on somebody else's work. In my judgment there was a special risk inherent in this contract which was over and above the risks inherent in a normal contract of this nature. I think it can be said that the 2nd Defendant, as occupier, did not leave the Deceased free to guard against these special risks because the old kirk ka could not be replaced without using old kirk ka. If Mr. Ng's evidence is right, as I believe it is, the formwork had to be removed first and this required actually using the old kirk ka. The Deceased was thus placed in an unusual, and in my view somewhat impossible position. I will have to consider later whether there were any steps that the Deceased could have taken to have minimise the risk.

41. In my judgment the 2nd Defendant cannot rely on S.3 (3) (b) because of the very unusual nature of this particular factual situation. Each case depends on its own facts and I imagine that the facts of this case are somewhat rare. Mr. Sarony referred me to S.6 (1) of the Occupiers Liability Ordinance which makes clear that if the contract by virtue of which somebody is upon the premises defines extends or restricts the duty of care to a contractual visitor the occupiers liability will be measured exclusively by reference to that term regardless of whether it is more or less onerous to the contractual visitor. In other cases where the contract does not deal with this issue the occupiers duty will be the common duty of care owed to all lawful visitors. "No special duty will be imputed to the occupier by reason only of the fact that the contractual visitor enters or uses the premises in pursuance of a contractual right to do so but the existence and nature of the contract in question will be included in the circumstances to which regard must be had in determining whether the common duty of care has been discharged in any particular case." (Clerk v. Lindsell p.745) In the present case there was no express contractual term dealing with this matter but of course I must take into account the nature of the contract when deciding whether the common duty of care has been discharged.

Breach of the common duty of care

   Having found that the 2nd Defendant owed the Deceased the common duty of care and that the 2nd Defendant cannot avail itself of the benefit of S.3 (3)(b) I now turn to consider whether there has been a breach of the common duty of care.

42. It is very clear from the evidence of Mr. Tsang that he gave no consideration whatsoever to the safety of the Deceased and his colleagues. As I have concluded, this was a very unusual situation. The 2nd Defendant through Mr. Tsang knew perfectly well that the scaffolding, and thus the kirk ka, had been up for some time and that special care was required. Although the Deceased would have proudly referred to himself as an independent contractor the simple truth of the matter is that he was in reality a fairly basic carpenter who was used to constructing formwork into which concrete could be poured. In the very special circumstances of this case I think that it behoved Mr. Tsang, on behalf of the 2nd Defendant, to give a very clear warning to the Deceased that some method should be devised to ensure that the Deceased and his colleagues did not have to work from suspect kirk ka. He should have devised a method of ensuring that the kirk ka could be replaced without the need for the Deceased to work on it as in fact he did. He should have ensured that there was sufficient new kirk ka readily available so that there was no risk that the Deceased and his colleagues would be lazy and take the easy way out. Mr. Tsang should have carefully inspected the scaffolding and kirk ka himself in order to ascertain whether it was a possible to work upon it without danger. He should have arranged either himself or in conjunction with the 1st Defendant for a proper working platform because the Deceased was liable to fall a distance of more than two metres. With the knowledge of all these difficulties I cannot see how the 2nd Defendant can be said to have discharged his common duty of care towards the Deceased by doing absolutely nothing. Given this unusual situation I find that it was incumbent on 2nd Defendant to make special arrangements with the 1st Defendant to ensure that men required to work on old kirk ka were protected. It was an abdication of his duty to do nothing and treat this contract like any other. Although I accept that the 2nd Defendant wished to be considered as no more than a middle man or agent nevertheless the fact remains that he was contracting with the Deceased for him to undertake a particularly dangerous task and it is not possible in the special circumstances of this case for him' to wash his hands of all matters relating to safety. The place where the Deceased was required to work was not safe and the 2nd Defendant took no steps to deal with this situation at all. I am satisfied that the 2nd Defendant was in breach of the common duty of care.

Contributory negligence

43. Not surprisingly Mr. H.Y. Wong who appeared for the Defendants contended that there was a very high degree of contributory negligence upon the Deceased whereas on the other hand Mr. Sarony contended for a very small proportion. Although the Deceased was only a formwork contractor it appeared that he had been doing this work for sometime and should have been aware of the dangers inherent in this work and have in mind the particular dangers inherent in this contract where the site had been left unused for quite sometime As nobody actually saw the accident we do not know precisely how it happened. However it seems to me on the balance of probabilities that he was standing on an old piece of kirk ka when it broke causing him to fall. That squares up with the evidence of Mr. Chen and is supported by the broken piece of wood found near the Deceased. We do not know whether he had been working on this particular piece of kirk ka for more than a second or two before the break. We do not know whether he tested it to see whether it was defective. However someone of his experience should have tested it to see whether it could still hold his weight having been left in the elements for sometime and it seems to me that the Deceased cannot escape without some measure of fault on his part. Mr. Sarony made the point that the Deceased appeared to be.under some form of time limit for each floor (something like five to seven days) and if he had to replace each item of kirk ka which was not part of the 2nd Defendant's contract with the Main Contractor this would have extended the length of time of the contract and put the Deceased under some time constraints and this perhaps caused him to be less careful than he would otherwise have been. I accept Mr. Sarony's point that if we had been dealing with a breach of statutory duty under the regulations the question of contributory negligence would properly be decided at the lower end of the scale. However we are not dealing with the matter on that basis and I have to accept that this Deceased was not an employee but an independent sub-contractor.

44. The apportionment of liability in cases such as this is never easy. I cannot escape from the conclusion that however insensible the 2nd Defendant was to the safety of the Deceased, the Deceased himself showed a high degree of carelessness for his own safety and that of his colleagues. I think that the justice of this case will be met by a finding that that the Deceased was two thirds to blame for this accident and the 2nd Defendant one third to blame.

Implied Term

45. In contending for the implied term set out in para. 6 of the Statement of Claim Mr. Sarony based his case on access. He submitted that the term had to be implied into the contract because the Deceased was obliged to go on to the kirk ka/scaffold in order to carry out his duty. Mr. Sarony submitted that if that was the case then there must be an implied term that access to the place where he had to carry out his duties was reasonably safe. Mr. Sarony supported the implied term by reference to the fact that we were dealing with a labour only sub-contract which does not entail the provisions by the Deceased and his colleagues of any materials. They had to have a safe place from where to carry out the works and as a corrollary to that they had to have a safe means of access to that place.

46. Mr. Wong contended strongly that there was no warrant for the implication of this term. He submitted that it was not necessary to give business efficacy to the contract and it was not so obvious as to go without saying. I take into account all the conditions that have to be fulfilled before a Court can imply a term and I take into account that reasonableness alone is not sufficient to warrant the implication of a term. Mr. Wong contended that there was an express term of contract namely to replace all the kirk ka which would conflict with the implied term. As I have found that there was no such express term I do not have to concern myself about this ground of opposition to the implication.

47. Having considered this matter very carefully I have come to the conclusion that if I were to imply the term contended for I would in effect be treating the Deceased as if he had been employed under a contract for service which has not been alleged on his behalf. For so long as workers conceive that there are advantages to them in being labour only sub-contractors they have to accept the consequences which go with that status. Therefore I am not prepared to imply this term. Had I done so I would have found that the Defendant was clearly in breach of it. I would have apportioned liability on the same basis as above.

Common Law Negligence

48. In the light of my conclusion on the Occupiers Liability Ordinance it is not necessary for me to consider the question of Common Law negligence which adds nothing to that claim.

Conclusion

49. There will therefore be judgment for the Plaintiffs in the sum of $283,333 being 1/3 of the agreed sum for damages. I propose to make a costs order nisi in favour of the Plaintiffs.