WAAN CHUEN MING v. LO KIN NAM t/a KAR KIN ENGINEERING & SUPPLIER CO AND ANOTHER

CACV 281/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 2008

(ON APPEAL FROM HCPI 588 and 591 OF 2003 (Consolidated))

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(Consolidated by the Order of Master B. Kwan dated 7^th June 2004)

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REASONS FOR DECISION

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Hon Tang VP:

1.  By a majority we had allowed the plaintiff’s appeal (Stone J dissenting). 

2.  The plaintiff was an employee of the 1^st defendant.  The 1^st defendant was engaged by the 2^nd defendant to repair and maintain the 2^nd defendant’s stentering machine at the 2^nd defendant’s factory.  The accident occurred during the moving of the stentering machine.

3.  The stentering machine was moved by a pallet jack and a roller trolley provided by the 1^st defendant to the 2^nd defendant.

4.  In my judgment I said:

“4. The learned judge said:

‘59. … That unsafe system of transportation was clear to anyone and everyone who was there to see it to realize that it was an unsafe system as was made clear from the evidence of Ip (the 2^nd defendant’s supervisor).  Moreover, the 2^nd defendant had a hand in that unsafe system in that it had supplied the equipment and therefore had assisted in perpetrating that unsafe system of transportation.’

5.  As the learned judge recorded, Ip (the 2^nd defendant’s supervisor):

‘33. … agreed that he thought it was ‘extremely unsafe’ when he saw the calendering unit being transported by the pallet jack and bearing trolley as there was a risk that the calendering unit might topple over. …’”

5.  On that basis, I was satisfied and agreed with the analysis of Cheung JA that:

“7. … a clear case of negligence was made out against the 2^nd defendant as a joint tortfeasor …”

6.  This is the 2^nd defendant’s application for leave to appeal on the basis that two questions of great general public importance are involved in the appeal.  These question are:

“(1)   In what circumstances, if any, does an employer of an independent contractor owe any duty of care to a person injured as a result of the use by the independent contractor of a chattel provided by the employer?

(2) Does an employer of an independent contractor, whom he reasonably regards as competent, (i) have any duty either to supervise the contractor's activities and performance of his job or (ii) have any independent duty to ensure that the contractor is confirming to that contractor's own personal duty to his employee to provide a safe system of work?”

7.  The first question is very broadly based, so broadly based as to be meaningless.  Surely the answer must depend on the circumstances.

8.  The second question does not arise from our judgment.  Cheung JA who after a detailed discussion of the authorities on the distinction between ‘activity duty’ and ‘occupancy duty’ did not find it necessary to rest his judgment on the distinction.  He held that the 2^nd defendant owed a duty of care to the plaintiff on the basis of the judgment of Spring v Guardian Assurances plc [1995] 2 AC 296, namely, the foreseeability of damage; proximity of relationship and justice and reasonableness. 

9.  Mr McCoy SC, appearing for the 2^nd defendant, submitted that our decision involved an important extension of the pre-existing law, and the questions of law suggested by him involved a close consideration of the intrinsically important and practically significant area of tort law involving the duty of care owed by an employer to an independent contractor utilizing a chattel provided for that contractor to operate. 

10.  He also argued that if any duty of care was owed by the applicant to the independent contractor, the extent of the duty would have to take account of the independent functions of the contractor: To equate the duty with that owed by an employer to his employer would be to give no weight to the very circumstance which differentiates contractors from employees. 

11.  However, as a reading of my own judgment would show, although on the facts the plaintiff was an employee of the 1^st defendant and the 1^st defendant was an independent contractor of the 2^nd defendant, our judgments did not depend on such relationship.  The plaintiff might have been an innocent visitor to the factory who was not in the employment of either defendant.  Indeed, as was mentioned during the hearing of the appeal, if the accident had occurred whilst the stentering machine was being moved outside the factory of the 2^nd defendant and the stentering machine had fallen on a bystander the result have been the same.  In other words, liability did not depend on the relationship of the parties at all.

12.  Mr McCoy also mentioned the possibility of leave being granted on the “or otherwise” basis.  He mentioned the fact that there is a powerful dissenting judgment from Stone J.  That may be so but it is not a sufficient reason for leave to be given.

13.  For the above reasons, I dismissed the application for leave with costs.

Hon Cheung JA:

14.  I agree.

Hon Stone J:

15.  A decision having been reached in this appeal different from that which I favoured, I hope I may be forgiven for taking take the view that this matter usefully could be considered by the Court of Final Appeal.

16.  However, in light of the judgments of Tang VP and Cheung JA upon this application, it is clear that Mr McCoy has not been able to get home on his  argument for the grant of leave under section 22(1)(b), and in this context I recognize the force of their view that he does not thus succeed.  

17.  As to leading counsel’s alternative argument for the grant of leave under the “or otherwise” provision, as I understand the position this basis generally is regarded as being within the determination of the Appeals Committee of the territory’s  highest court, to which the 2^nd defendant presumably now will consider making a further leave application.