RAYABLE CONSULTANTS LTD t/a TAT MING ENGINEERING SERVICE CO v. CHAN KIT MAN AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 52
(Civil)

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

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

J U D G M E N T

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

Mortimer V-P:

1. This is an appeal by the 1st defendant employer against the judge's finding of liability in a widow's claim on behalf of herself and other dependants of her deceased husband. He was killed on 7 May 1991 when a tower crane collapsed on a building site at No. 1 Tregunter Path. The tower crane was of the goose-neck type. It was about 15 years old and had been imported into Hong Kong by the 4th defendant from Germany without any guarantee as to its condition. The crane had been newly painted in Germany before export.

2. On this contract, the 3rd defendant was the main contractor. The 2nd defendant was a sub-contractor of the 3rd defendant employed to provide and install the tower crane. The 2nd defendant hired the crane from the 4th defendant and in turn hired it to the 3rd defendant, the main contractor. The installation of the crane took place in early November 1990, shortly after its import. It appears that it was not the first time that the crane had been used in Hong Kong.

3. The 2nd defendant engaged the 3rd party, a company of mechanical engineers and marine surveyors to test the crane on installation. This was carried out on their behalf by Mr Moosa on 8 November 1990. He issued a certificate of "test and thorough examination of crane" in accordance with the Construction Sites (Safety) Regulations (Cap. 59).

The crane and the "climbing" procedure

4. The crane was used in the construction of a high rise building. Shortly before the accident, the building had reached the sixth floor, and the crane needed extending or raising, an operation which is known as "climbing". The crane consists of a mast on top of which is the superstructure which includes the jib, the counter weight and associated equipment. In order to raise the level of the crane, the superstructure has to be lowered, the mast has to be then extended and the superstructure has to be raised again to its new level. The climbing unit or mechanism consists of a substantial structure which can move up and down the mast like a sleeve supporting the superstructure as it goes. It can be locked in position.

5. The motive power for the climbing process is achieved by means of a piston attached to the climbing unit at its upper end - that is attached to the sleeve. It is permanently attached at that end. The lower end is attached to one of a succession of plates, rather like steps, welded to struts forming one side of the mast.

6. The lower end of the retracted piston is attached to a climbing plate. It is then extended hydraulically and in doing so pushes the sleeve and the superstructure up the mast. The sleeve is then locked in its raised position. The lower end of the piston is detached from the plate. The piston is retracted, attached to the next higher plate and the procedure is repeated until the superstructure is at its new desired height.

7. The superstructure weighs some 22 tonnes. The force applied by the piston to the plate, it is therefore very great. The strength and soundness of the structure to which the climbing plate is attached are vital to the safety of the climbing process. The part of the structure to which the climbing plate is welded is known as the climbing frame. This consists of a horizontal member welded at each end to the corners of the mast. The climbing plate is welded in the central position of that member. The plate is also supported by two diagonal lower members projecting downwards at about 45o and also welded to the corners of the mast. It is also obvious that the soundness, strength and security of those welds are critical to the safety of the operation especially those at the ends of the horizontal member which are subjected to pulling force in the climbing operation.

The accident

8. I turn to the accident.

9. The 1st defendant was the deceased's employer. It was contracted to the main contractor to provide the necessary labour and tools and to climb the frame up to its new desired position for which the contractual price was $5,800 for each operation. It is to be noted in passing that the insurance for both the equipment involved and the workmen undertaking the operation was to be effected by the main contractor - the 3rd defendant.

10. After a number of days working on site, the time came to climb the superstructure up the mast. The deceased was required to go inside the mast below the climbing unit to ensure that the electrical cables did not snag as they were drawn up the mast. As the piston was purchasing against one of the climbing plates, the weld at the left hand end of the horizontal member, failed. It came away from the main structure and caused the climbing frame to tip, the structure to tilt and it fell fatally injuring the deceased.

The cause of the accident

11. The cause of the accident, as found by the judge, was that the weld failed because it was affected by rust. Probably it had been dangerously rusty before leaving Germany. That rust was painted over. Anyway it had been exposed to the elements for about six months since it had been installed. This critical dangerous rusty condition remained blushing unseen beneath the paint. But it ought to have been discovered, certainly by the 3rd party, Mr Moosa, if the necessary tests and inspection had been carried out. It appears that the 4th defendant, the importer of the crane, had no kind of warranty as to its condition. The 4th defendant failed to inform anyone else concerned of the particular history of the crane so as to put them on notice.

The findings

12. The judge found that each defendant was liable to the plaintiff. The 1st defendant and the 3rd defendant obtained indemnity against the 3rd party. But as between themselves, the defendants were held 25% to blame with a contribution accordingly.

13. The 1st defendant was run by its director Mr Yau Ming. It owed the common duty of care - which an employer owes its employee - to the deceased. That duty is to take reasonable care for the safety of the employee. It covers all aspects of the employment, the system of work, the premises upon which the work was carried out, and the equipment which is used in the course of that work. It is of course not an absolute duty but simply a duty to take reasonable care.

14. When the 1st defendant came on site to carry out the work, we know that this was not the first occasion that Mr Yau Wing had carried out the climbing operation for the 1st defendant on this crane. He had done it on one previous occasion outside a building. Before the climbing operation, Mr Yau Wing said in compliance with his duty which he was carrying out on behalf of the 1st defendant as an employer, he made a superficial examination of the crane, i.e. the structure, and it took 20 minutes or so. He was not qualified to examine the welding of the joints but his visual examination revealed nothing. He also knew that the examination to which I have already referred had been carried out by Mr Moosa for the 3rd party.

15. The judge found that the 1st defendant was in breach of its duty of care. He express some doubt about the visual examination spoken of by Mr Yau Wing without reaching any final conclusion. That matters little because on any view, a visual examination would have revealed nothing to him and if anything, would have given him false confidence in the structure of the crane or the important parts of it. But the judge found that the 1st defendant failed in its duty because it failed to make sufficient inquiries about the history, examination and testing of the crane. The judge put it in this way:

"... the 1st Defendant must have known or ought to have known or foreseen that a failure of the climbing frames would have disastrous consequences for its employees. The 1st Defendant should either have made reasonable enquiries of its own or requested more information from the 2nd and 3rd Defendants before embarking on the actual climbing of the tower crane as the potential for very serious harm to its employees and lawful visitors must have been all to apparent.

On the facts of the case, a reasonably prudent employer and occupier would have taken reasonable measures for the protection and safety of the Deceased and his colleagues. He would have appreciated the wisdom of acquainting himself at least with the work and maintenance history of the tower crane since its survey in November 1990. ... I have no hesitation in holding the Plaintiff's case against this Defendant established as pleaded."

So the 1st defendant was held liable for not making inquiries of the other defendants, and - as has been submitted by Mr Sakhrani - of Mr Moosa who had carried out the original inspection and test.

16. Mr Bharwaney, for the 1st defendant, takes two points on this appeal. There is no dispute as to the 1st defendant's duty towards the deceased. But Mr Bharwaney submitted that the judge was wrong in finding that the 1st defendant had failed to carry out that duty. Secondly, he submits that even if he had done that which the judge said he ought to have done to comply with his duty, it would not have avoided the accident. He takes a point on causation.

The 1st defendant's duty

17. As to the first point, Mr Sakhrani for the 3rd defendant, submits that the judge's reasoning set out at some length in the judgment is entirely correct and ought to be supported. The basis for the judge's decision was that although Mr Yau Ming had made some inquiry - that is, had asked to see the test certificates made by Mr Moosa - he conceded in evidence that he did not know whether Mr Moosa had actually tested the welding of the climbing frame. Therefore, he said, that in these circumstances Mr Yau Ming knew little about the condition of the crane. The inquiries that Mr Sakhrani suggests ought to have been made would have revealed that Mr Moosa had paid particular attention to the lifting operation rather than anything else. Mr Sakhrani relies upon a passage in the cross-examination of him by Mr Moosa which reads:

"Q: Lift loading test that was the main aspect of your examination?

A: Yes.

Q: You have no knowledge or expertise on the climbing operation.

A: No.

Q: And in fact you did not concern yourself about the climbing operation aspect. You focused on lift loading, is that right?

A: I can't follow.

Q: You did not focus on the climbing operation aspect.

A: Yes.

Q: You simply focus on the lift loading aspect of the crane. Do you agree?

A: Yes.

Q: You do not know much about the stresses at joints. You have no specific knowledge about that.

A: No.

Q: I suggest to you that you do not pay any particular attention to the joints because they were not involved with the lift loading operation. Yes or no?

A: I didn't pay attention to the joint but not I don't expect such a high pressure acting on the climbing plate. It's the normal pressure working on a climbing plate. I can assure you that will be nothing happened."

So far as Mr Yau Ming was concerned, however, he did know that at its installation, the thorough test and examination of the crane had been carried out. An examination of the certificates signed by Mr Moosa demonstrate quite clearly that the structure and welding had been part of his examination and test. If for no other reason than he took the trouble to put on Form 3 these remarks:

"Weekly visual inspection must be carried out to the entire crane for loose or missing bolts, rivets, cotter pins, cracked welds, frayed or damaged ropes, dented or damaged structural elements."

It must follow from that those inspections had been part of his examination. The fact that Mr Moosa failed to carry out sufficient examination of the weld is not relevant for this particular purpose.

18. In these circumstances what was to put Mr Yau Ming on inquiry? He had previously carried out the climbing operation on this crane. The crane had been in use by then for some six months. The 3rd defendant, the main contractor, was responsible for its operation and was the subject of stringent duties under the Construction Sites Safety Regulations as to the maintenance and mechanical structure of the crane. He saw nothing to put himself on inquiry on arrival. There was nothing on the certificates to say other than the tests by Mr Moosa had been properly and satisfactorily carried out. Why in these circumstances, I ask, in the normal carrying out of his reasonable duty of care should Mr Yau Ming, on behalf of the 1st defendant, have done more than he did? In my judgment, there was nothing that required him to do more than he did.

19. It is to be noted that none of the parties, apart from the 4th defendant, knew of the history of this frame. The 4th defendant did not inform the 2nd defendant, therefore the 2nd defendant could not inform the 3rd party, Mr Moosa, about the history in order to put anyone on inquiry. No one knew about the faulty weld which was after all hidden. It was a latent defect, so far as Mr Yau Ming was concerned, and not discoverable by any reasonable inspection on his behalf.

20. For my part, I would hold that the judge's conclusion that the plaintiff's case against the 1st defendant had been established as pleaded was wrong.

Causation

21. Turning to Mr Bharwaney's second point on causation, if I am wrong and the judge was right in determining that the 1st defendant was in breach of its duty, if the necessary inquiries had been carried out, would those inquiries have led to the accident being avoided?

22. I bear in mind that judges should not be astute to find that a breach of duty to an employee has not been causative of an accident. Nevertheless, this causation has to be established. It is not clear whether the point on causation was taken by the 1st defendant at trial but the judge certainly made no finding to that effect. It is, however, clear that whatever investigations or inquiries the 1st defendant could have undertaken would not have led to an indication that this weld was suspect.

Conclusion

23. It is clear that the 4th defendant was reluctant to inform anyone of the history. Mr Moosa could not have added anything other than he thought he carried out proper inspection and there was no fault that he knew of. The 3rd defendant similarly knew nothing of the rusty weld. Indeed, all they could say was that they had carried out their duty of weekly inspections which had revealed nothing amiss.

24. It is my view that if these inquiries had been carried out by Mr Yau Ming, on behalf of the 1st defendant, far from avoiding the accident, I think his confidence in the structure might have been increased rather than the reverse.

25. On those grounds, I would allow this appeal.

Godfrey JA:

The accident here which cost the workman his life was caused, as Mortimer, V-P has said, by a latent defect in the structure of the crane he was operating when the accident occurred. Mortimer, V-P, in his judgment, has referred to the Construction Sites (Safety) Regulations (1983 Edition) made under the Factories and Industrial Undertakings Ordinance, Cap. 59. This crane was, for the purposes of these Regulations, a "lifting appliance". Part II of the Regulations is concerned with the use of lifting appliances. Regulation 5(1)(a) provides that :-

"5(1) The contractor responsible for a lifting appliance shall ensure that it is not used unless -

(a) it is of good mechanical construction, made of strong and sound materials, and free from patent defect;"(emphasis added)

26. So the contractor responsible for a lifting appliance is not to be held responsible, so far as these Regulations are concerned, for an accident caused by reason of a latent defect in its structural condition.

27. Against this background, the questions which arise are (1) what was the employer's duty here in relation to the workman's safety; and (2) did he discharge it?

28. These questions must be kept separate. The first is a question of law; the second is a question of fact.

29. It appears from Biddle v. Hart [1907] 1 K.B. 649 (which has some similarity with our case, in that the employer there was using for the work, not his own plant, but that of another) that difficulties arise if these two questions are conflated. That was a decision of the Court of Appeal, remarkably constituted, for an appeal in a personal injuries case, in that it was presided over by Sir Gorell Barnes, the President of the Probate and Divorce Division (later Lord Gorell), sitting with Farwell and Buckley, LL.J., both of whom had been Chancery Judges. The headnote reads :-

"A stevedore's workman while engaged in unloading a ship was injured by the fall of a bale of cargo. Part of the tackle used for the unloading was supplied by the ship, and the accident was caused by a defect in this part of the tackle. The workman having brought an action in the county court against the stevedore for compensation under the Employers' Liability Act, 1880, the judge withdrew the case from the jury on the ground that the stevedore was not responsible for a defect in the ship's tackle, and his decision was affirmed by the Divisional Court."

30. The Court of Appeal ordered a new trial.

31. The President formulated the employer's duty in this way (at p.653) :

"..... if the employer uses plant which does not belong to him, he may have a duty in regard to the persons employed to take reasonable care to see that it is proper for the purpose for which it is used."

32. I do not understand either party to the present appeal to seek differently to formulate the employer's duty of care. As the President indicated, once established the duty, the question is : What would the jury consider a discharge of that duty? (Without a jury, the question is of course one for the judge.) He added that some confusion appeared to have arisen between the purely legal question whether the duty existed and the question of fact whether it had been discharged.

33. In the present case, it was not disputed that the employer was under a duty to take reasonable care in regard to the persons employed by him to see that this crane was proper for the purpose to which it is used. The question is whether the employer discharged his duty. That is a question of fact. Reluctant though this court is to interfere with the decision of a judge on questions of fact, I am forced to the conclusion here that the judge was wrong to have concluded that here the employer had failed to discharge his duty of care towards the employee. Here was this crane, with a latent defect. The employer assumed, in my judgment, in all the circumstances quite reasonably, that the crane was safe and fit for the purpose for which it was to be used. Only inquiries which would have revealed the latent defect would have avoided the accident and to impose on the employer here a duty to make such inquiries would be to go beyond the bounds of what could reasonably be expected of him.

34. As Farwell, L.J. held (in the case cited, at p.654) an employer does have to take reasonable care that the tackle, whether his own, or hired, or lent, is reasonably fit for the purpose for which he employs the workman to use it. But I do not think it has been shown here that the employer failed to take such reasonable care. I, too, would allow this appeal.

Rogers JA:

I agree.

35. I have nothing that I can usefully add.