A. No. 7930/88 and 5903/89
IN THE SUPREME COURT OF HONG KONG
|TSE HOI CHEUNG
|HIP HING CONSTRUCTION CO. LTD.
|LUEN YICK WATER AND
DRAINAGE WORKS LTD.
|YOUNG'S ENGINEERING CO. LTD
(Consolidated pursuant to the
Order of Master Cannon dated 31 January 1991)
Coram: The Hon. Mr. Justice Barnett in Court
Dates of hearing: 23, 24, 25, 26, 27, 30 January and
3, 6 February 1995
Date of delivery of judgment: 20 February 1995
J U D G M E N T
1. This is an action for damages for personal injuries arising out of an accident which occurred on 11th January 1986. At the time the Macau Ferry Terminal which included the Victoria Hotel and Shun Tak Centre (the site) was under construction. The 1st defendant (D1) was principal contractor. The 2nd defendant (D2) was the plumbing and drainage sub-contractor. The 3rd defendant (D3) was the air-conditioning sub-contractor. The plaintiff was employed at the site as a plumber by D2.
2. On the day of the accident, the plaintiff went to the 7th floor of the site to help adjust an overhead waterpipe which had not been properly installed. The pipe was in a recess, about 2.6 meters above the floor. The recess was fully occupied by what turned out to be the top end of an air conditioning duct (the duct) measuring 0.65 by 1.47 meters and protruding 1.35 meters from the floor. There were some planks on top of the duct. The plaintiff stood on these planks to carry out his work. When he was about to get down, one of the planks slid and the plaintiff fell through the resulting gap. In the event, he fell some 20 meters because the duct rose vertically from the first floor passing through gaps left in the intermediate floors.
3. Against D2, the plaintiff asserts breach of an implied term of contract of employment to take all reasonable precautions and to care for the safety of the plaintiff. Against all 3 defendants, the plaintiff pleads negligence and breach of statutory duty imposed by the Occupiers Liability Ordinance, Cap. 314 (the Ordinance), and the Construction Sites (Safety) Regulations, Cap. 59 (the Regulations). Each defendant denies liability, asserts that the accident was caused at least in part by the plaintiff himself, and seeks to place the blame on the other 2 defendants.
4. The plaintiff, in evidence in chief, said that he came to Hong Kong in 1981 and underwent a 3-year apprenticeship in plumbing. After he qualified, he undertook a number of different jobs for a period of 12 months until he started work for D2 on about 15th December 1985 at a daily wage of $173. He was introduced to D2 by a friend who was already working for D2 on the site. He was engaged without any interview or enquiry about his experience, D2's attitude apparently being that if he could carry out the work he was asked to do, he would remain employed; if not, he would be discharged. He was given no instructions about safety, and no safety equipment such as a safety belt or helmet was provided.
5. On 11th January 1986, the plaintiff began his day's work upon piping on the ground floor. After finishing that work, he was told by one Fong Sing, who was D2's foreman, to rectify a waterpipe on the 7th floor. Another employee, Ah Chuen took the plaintiff to the 7th floor, showed him what was to be done and then went to search for something. The plaintiff saw what he thought was a metal box, which he described as properly covered in planks, with some bricks scattered on the planks. There were other bricks on the floor which he used to climb onto the planks covering the metal box. He said there was no other way to approach the pipe which required his attention. When he finished the work he was required to do, the accident occurred in the manner already mentioned.
6. The plaintiff said he did not use and did not think that a safety belt was necessary for the work which he had to do. He said that he was inside the building and was not working at too high a level. He thought that if he fell, he would only fall a few feet. However, Fong Sing came to see him while he was in Queen Mary Hospital and told him that if someone asked about the accident, he was to say that he had a safety belt as it was a serious matter. Subsequently, when a Factory Inspector from the Labour Department interviewed him, the plaintiff told the Inspector that he had used a safety belt although in fact he had never done so.
7. In cross-examination of the plaintiff, two general matters emerged. First, that construction sites often have recesses for plumbing and other services, including air conditioning ducts, and that these services extend up through the building through holes left for that purpose in each floor. The plaintiff did say, however, that in his experience air conditioning ducts were not generally so close to the plumbing. Second, the plaintiff was fully familiar with working platforms which are required when it is not possible to reach pipes, on which work has to be done, from the floor. Further, he was experienced in making such platforms for lower positions.
8. The circumstances leading up to the accident also emerged in more detail. The work required was on the water pipe where it emerged horizontally from the recess. In particular, a short length of right angle
piping required slight realignment. This involved chipping out the cement which had been used to seal the joints at each end of this length of pipe. The joint within the recess faced towards the back of the recess. In order to gain access to this joint, it was necessary to stand on top of the air conditioning duct.
9. The plaintiff said that he learned from Ah Chuen that Ah Chuen and a team of plumbers had installed the piping the day before. Because of that and because of the bricks on the planks covering the duct, he assumed people had worked on the planks, that the planks were a working platform, and did not take any steps to check whether the planks were firmly fixed or sufficient to bear his weight.
10. Later, the plaintiff expanded upon the instructions which he had been given by Fong Sing. He said he was told that there was already a structure available at the location and he was to go straight there and do his work. Accordingly, believing that the planks had been supplied by and the platform made under the supervision of D2, he took no precaution. He repeated that Fong Sing and also Ah Chuen told him that a platform had already been constructed so, although he agreed that it would have been possible to build a safe working platform on the duct and indeed gave details of how this might be done, he said he did not do so because he trusted D2's people and their work and he expected it to be safe before anyone was allowed to work on it.
11. He conceded, however, that as an experienced plumber it was not sensible to have got on the platform without examination. He said an experienced plumber would have tested the stability and strength of the platform first.
12. The plaintiff said that in fact both he and Ah Chuen got on the planks to see how to do the work. After that, Ah Chuen said he was going to get something and, when he had gone, the plaintiff commenced the work.
13. It was not clear by the end of cross-examination at what stage the plaintiff fell into the duct. In chief, he had said it was when he finished the work. In cross-examination, however, he said he had not finished the work. It may have been that he meant when he was about to finish work for the day or even while he was still doing the work. Whatever the position, I do not think it matters greatly. Plainly, the planks moved and the plaintiff fell into the duct.
14. The plaintiff admitted that he lied to the Factory Inspector in two respects. First, in saying that he was wearing a safety belt when he was not. Second, in making reference to a metal duct which he knew to be part of the air conditioning system when in fact he did not appreciate that. He made the assertion about the safety belt because of what he had been told by Fong Sing. However, when the Factory Inspector who took the statement read it back to him, he realised he had not mentioned the safety belt. Therefore, he told the Inspector to cancel the statement and made a second statement in which the two lies were contained.
15. The statement taken from the accident file kept in the Labour Department was sought to be put to the plaintiff. After initially agreeing that it was his statement, he suddenly protested that in fact it was a fabrication by D2 and that his signature had been photocopied. As photocopies of the statement had initially been used, I explained to the plaintiff that the photocopies could be disregarded and he should concentrate only upon the original placed before him. In spite of this explanation, the plaintiff maintained that the statement was fabricated. Unfortunately, the Factory Inspector who interviewed the plaintiff and allegedly took the statement was no longer available to prove the statement. I was asked on behalf of the defendants to infer that the statement was in fact the one taken from the plaintiff having regard to the evidence of Mr. Wong Kwok Kuen, a Divisional Factory Inspector, who produced the accident file and who had supervised the Factory Inspector who carried out the investigation. I do not think it necessary to make any pronouncement upon the statement. The plaintiff clearly admitted in cross-examination that he had indeed told the Factory Inspector about using a safety belt and about realising that the box was in fact an air conditioning duct although he said...