Ipsofactoj.com: International Cases [2000] Part 3 Case 11 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Rainfield Design &

Associates Ltd

- vs -

C.M. Siu

CHIEF JUSTICE LI

MR. JUSTICE LITTON PJ

MR. JUSTICE CHING PJ

MR. JUSTICE BOKHARY PJ

LORD COOKE OF THORNDON NPJ

19 MAY 2000


Judgment

Mr. Justice Ching

  1. The appellant is a limited company which carries on the business of a designer. In 1990 it secured a contract with the Hong Kong Electricity Co. Ltd, to design, erect and later dismantle decorative lights on Hutchison House, the Furama Hotel and in Chater Garden. It had neither the expertise nor the plant or equipment to do the physical work which it contracted out to a sub-contractor, the firm of Easy Engineering Company, which engaged in that type of work. It was a partnership of two persons one of whom was the respondent who had successfully undergone a four year apprenticeship in and who was experienced in electrical work. The lights were successfully installed. The dismantling was carried out from a platform of an appliance called a mobile ladder scaffold. It had no ladder but it did have cross pieces three feet apart which were used by the workman to gain access to and egress from the platform. On 27 November 1990, while the respondent was climbing down in this way he fell and suffered very serious injuries.

  2. In these circumstances the respondent issued proceedings against the appellant alleging common law negligence and a breach of regulation 38A(a) of the Construction Sites (Safety) Regulations, Cap. 59. The claim was dismissed at first instance. The respondent appealed against the findings on the breach of the regulation alone and was successful to the extent of 50%. We are therefore concerned only with the breach of the regulation which reads,

    38A.

    General

    Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that -

    (a)

    there is, so far as is reasonably practical, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works ....

  3. At trial it was found by the judge that the appellant came within the words 'contractor responsible for any construction site." Before us Mr. Lui Po Man, a director of the appellant who was given leave to appear and argue the appeal, said that at the time of the accident the appellant was not such a contractor. It is clear that the appellant gave notice to Easy Engineering that the dismantling was to take place between 5 and 9 November 1990, while the accident took place on the 27th of that month. He said that the appellant was not aware that Easy Engineering was working on the site on that day and that no representative of the appellant was then present. These assertions were neither pleaded nor investigated at trial. Whatever the merits of the argument may be this Court is quite unable to come to any decision upon it. We must therefore proceed on the basis that the appellant was in fact the contractor responsible for the site at the relevant time.

  4. Throughout the proceedings in the courts below and before us the appellant was unfortunately not legally represented. Mr. Godfrey Lam of counsel kindly accepted an appointment as amicus curiae and we are grateful to him for the lucid arguments which he presented. It is apparent that the outcome of this appeal turns upon one of three points.

  5. The first of these points is whether or not it is permissible to contract out of civil liability for breach of the regulation with a workman and, if so, whether the sub-contract in this case did so. The sub-contract contained a number of items under the heading 'Work description' of which item 7 reads,

    please include in the works if scaffolding is needed.

  6. It must be said that a contractual duty to provide necessary scaffolding does not of itself relieve a party in the position of the appellant from its duty to ensure, so far as is reasonably practical, safe access to and egress from the workman's place of work. Item 14 then provides,

    All safety rules based on Hong Kong Labour Department's labour safety regulations.

  7. It is difficult to find that the appellant intended to refer to regulations such as the one in question when it admitted that it had no knowledge of any of them. Even assuming that that was what was intended this item seems to provide simply that Easy Engineering was to comply with whatever regulations there were. It certainly does not provide that the appellant was not to be liable for any breach. In these circumstances the question of whether or not it is permissible to contract out for such a breach does not arise.

  8. There was another document which appears to have been given by the appellant to Easy Engineering consisting of a number of notes (the Notes). The contents were treated by both courts below as being terms of the sub-contract and this was not disputed before us. In paragraph 6 under the heading 'Safety Measures' it is provided that,

    For high level and outdoor work, all workers must have appropriate safety equipment and take safety measures. Those working at high level must wear safety belt and link all tools to avoid an accidental fall. It is the responsibility of the contractor to provide safety equipment, like safety scaffoldings, safety belt, and high level work warning sign. Otherwise the contractor will have to shoulder all consequences. The suspended box will cease operation when the black (storm) signal or higher signals are hoisted by the HK Royal Observatory. This is to ensure safety.

  9. It appears that the words in the sub-contract for 'safety scaffolding' were the same as those used in the Notes. In the former but not in the latter the translation was amended to read 'protection fan' which I understand mean cladding around the scaffold to protect from falling objects. There is no reason to suppose that the words should not be given the same translation in the Notes. However that may be, the purpose of the regulations is clearly to provide for the safety of workmen and the primary responsibility for this must rest with the contractor responsible for the site. On the assumption that there can be a contracting out, very clear words would be needed to exclude the contractor from civil liability for breach of any of the regulations. I do not find any such clear words in either the sub-contract or in the Notes providing for this. The 'Safety Measures' set out above are apt to provide that the sub-contractor is to provide safety equipment such as safety belts and high level work warning signs, and perhaps ladders, but that is not enough to absolve the contractor responsible for the site from liability for breach of the regulations.

  10. I pass then to the second point which is what has been called the 'special defence'. It has been established by high authority that where an employer has used all due diligence to fulfil its statutory duties it may avoid civil liability where it is shown that the accident causing the injury was solely due to the breach of those duties by the workman himself. See Lord Reid in Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 at 776. The preliminary question is therefore whether or not the appellant used due diligence. On the available evidence it does not appear to have done so. The appellant retained general supervision of the site primarily for the purposes of ensuring that the work was done in accordance with the design. So far as safety was concerned the evidence was that it would stop work from proceeding if its representative saw a workman failing to wear a hard hat or to use a safety belt. The evidence from the respondent was, and it seems to be a matter of common sense, that one could not use a safety belt when ascending or descending on the scaffold. In effect the only thing that the appellant did was to enter into the sub-contract with Easy Engineering the relevant terms of which have already been discussed. It may well be that in an exceptional case sub-contracting to a highly qualified specialist may bring a party such as the appellant within the words 'so far as is reasonably practical' in the regulation. The evidence in the present case did not go anywhere near such a position.

  11. The last point raised is whether or not the accident was solely the fault of the respondent. The appellant was in clear breach of the regulation and it cannot be gainsaid that the provision of a ladder on the scaffold would have provided greater safety to the respondent. In the Court of First Instance it was held by the judge that the respondent would not have used a ladder even if he had been told to do so. In my view the Court of Appeal was right in holding that the evidence did not go so far. In my view Ms Audrey Eu SC who appeared for the respondent made a telling point that it is often more important to give experienced workmen instructions of this sort because their familiarity with their work may tend to leave them contemptuous of safety precautions.

  12. In my view this appeal must be dismissed with an order nisi that the appellant is to pay the respondent's costs of this appeal.

    Mr. Justice Bokhary

  13. I agree with Mr. Justice Ching PJ's judgment. My own contribution is prompted by the importance and topicality of site safety and the lines along which the law relating thereto ought to develop.

  14. At the time of the accident in this case, regulation 38A of the Construction Sites (Safety) Regulations, Cap. 59, provided as follows:

    Without prejudice to the other provisions of this Part, the contractor responsible for any construction site shall ensure that -

    (a)

    there is, so far as is reasonably practicable, suitable and sufficient safe access to and egress from every place on the site at which any person at any time works, which access and egress shall be properly maintained; and

    (b)

    every place on the site at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there.

    (Today the regulation makes provision to similar effect but in simpler language.)

  15. The defendant / appellant Rainfield Design & Associates Ltd was the contractor responsible for the construction site in the present case. And the plaintiff / respondent Mr. Siu Chi Moon was working there. Therefore Rainfield was within the regulation as the person owing the duty thereunder, while Mr. Siu was within the regulation as a person owed the duty thereunder. Mr. Siu was working on the platform of a scaffold. There is no dispute that Rainfield was in breach of its statutory duty under the regulation. This is because Rainfield left Mr. Siu to clamber up and down the scaffold by its bars rather than climb up and down the scaffold by using a ladder. While clambering down the scaffold Mr. Siu fell about 15 feet through the air to crash onto the ground. In tragic consequence, he is now a quadriplegic: paralysed in both arms and both legs.

    RELIANCE ON INJURED MAN'S EXPERTISE / "CONTRACTING OUT"

  16. The argument on Rainfield's behalf is that a contractor is not civilly liable for personal injury caused to an independent contractor by a breach of the contractor's statutory duty:

    1. where the contractor has no relevant expertise but relies on the independent contractor who does have the relevant expertise and / or

    2. where the contract between the parties provides that it is the responsibility of the independent contractor to provide the relevant safety measures.

  17. I say at once that the mere fact of Mr. Siu having been an independent contractor rather than an employee makes no difference. It is true that usually the person injured or killed would have been the employee of the person owing the statutory duty . But I can see no reason why it makes any difference merely because the person injured or killed was an independent contractor rather than an employee. Neither in terms of corrective justice nor in terms of distributive justice does there appear to be any reason in situations of this kind for distinguishing between employees and independent contractors. There is no authority, principle or policy consideration calling for any such distinction. Physical safety is plainly the paramount element of the law's policy in this sphere. The only concern is whether the person injured or killed as a result of non-compliance with a statutory duty was within the class of persons which such statutory duty was imposed to protect. As a person working on a construction site, Mr. Siu was clearly within the class of persons which the statutory duty here in question was imposed to protect.

  18. As to the argument that Rainfield can escape civil liability to Mr. Siu on the basis that it relied on his expertise, I consider the position to be as follows. Whether an argument of such a nature can ever succeed, I am satisfied that it cannot succeed in the present circumstances. It is not as if Rainfield simply lacked the technical know-how necessary to comply with its statutory duty, and had therefore engaged Mr. Siu to provide such technical know-how. In truth, neither Rainfield nor Mr. Siu was aware of the statutory duty in question. Rainfield being the person who owed that duty, its ignorance of the law is not a basis for escaping its civil or criminal liability thereunder.

  19. I turn to the question "contracting out". Let us assume that there can be circumstances in which a person in Rainfield's position can contract out of civil liability for breach of statutory duty. Even so, I am satisfied that Rainfield would not have effectively done so in the present circumstances. Mr. Siu was not engaged as a safety consultant to help Rainfield comply with its statutory duty. Rather he was engaged to work as an electrician on the construction site for which Rainfield was the contractor responsible. And he was entitled, while working on the site, to the protection which he would have had if Rainfield have complied with its statutory duty.

    CAUSATION

  20. Mr. Siu has established non-compliance on Rainfield's part and injury to himself as a result of such non-compliance. He established that by showing two things. The first is that he had not been provided with a ladder or instructed to use one. And the second is that he would probably not have fallen if he had been using a ladder rather than clambering down the scaffold by its bars. Thus he made out a prima facie case. But the judge then dismissed Mr. Siu's claim on a single finding of fact, saying: "Even if Rainfield's supervisor had suggested the use of a ladder to climb up and down the scaffolding, I do not think that [Mr. Siu] would have complied".

  21. The Court of Appeal reversed this finding, held Rainfield liable and held Mr. Siu 50 percent contributorily negligent. Mr. Siu does not challenge the correctness of the Court of Appeal's view that he was 50 percent contributorily negligent.

  22. First instance findings of facts are never lightly to be disturbed. Nevertheless I have come to the conclusion that the Court of Appeal was justified in reversing the finding here in question. It was a finding reached through taking a view opposite to what Mr. Siu said in answer to a hypothetical question. The question was hypothetical because it went to what he would have done if Rainfield had done something which it had not in fact done. Apart from being hypothetical, the question went to a matter on which the onus was on Rainfield rather then on Mr. Siu himself, he having already made out a prima facie case.

  23. And the finding was based solely on Mr. Siu having hesitated for a long time before answering the question. But the question was really two questions rolled into one: what would Mr. Siu have done (i) if a ladder had actually been provided or (ii) if he had merely been told to use a ladder? The judge's general impression of Mr. Siu was that he "was a very frank witness who gave his evidence with admirable composure and honesty". So the likelihood is inherently that this frank witness hesitated merely because he was puzzled at being asked two hypothetical questions rolled into one, and not because he was thinking up a false answer.

  24. Furthermore, even if the finding were to stand, it still does not destroy the causal link between Rainfield's breach of statutory duty and Mr. Siu's accident. The finding is that Mr. Siu would not have complied with a suggestion that he use a ladder. But Rainfield's statutory duty under the regulation was not merely to make suggestions towards suitable and sufficient safe access and egress. Rather it was to ensure there was, so far as was reasonably practicable, suitable and sufficient safe access and egress. And the regulation simply cannot be read down to mean that the duty thereunder was merely to make suggestions towards that end.

    RESULT

  25. In the result I agree that this appeal must be dismissed with costs nisi in Mr. Siu's favour and an order that there be legal aid taxation of Mr. Siu's costs.

    Lord Cooke of Thorndon

  26. I agree with the judgments of Mr. Justice Ching PJ and Mr. Justice Bokhary PJ.

    Mr. Justice Litton

  27. I agree with the judgments of Mr. Justice Ching PJ and Mr. Justice Bokhary PJ.

    Chief Justice Li

  28. I agree with the judgments of Mr. Justice Ching PJ and Mr. Justice Bokhary PJ.

  29. The Court unanimously dismisses the appeal with cost nisi in Mr. Siu's favour and orders legal aid taxation of Mr. Siu's costs. The order nisi as to cost will become absolute in the absence of any written application accompanied by written submissions for some other costs order reaching the Registrar of this Court within 21 days of today.


Cases

Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768

Legislations

Construction Site (Safety) Regulations Cap 59: Reg.38A

Representations

Mr. Lui Po Man, Representative of Appellant, in person

Ms Audrey Eu SC and Mr. John Wright for the Respondent (instructed by Erving Brettelland assigned by the Legal Aid Department)

Mr. Godfrey Lam acting as Amicus Curiae


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