HKSAR v. Fewa Chinat Construction Ltd

HCMA 439/2018

[2019] HKCFI 1736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 439 OF 2018

(ON APPEAL FROM FANLING MAGISTRACY

CASE NO FLS 5426-30 OF 2017)

________________________

BETWEEN

________________________

___________________

J U D G M E N T

___________________

Introduction

1.This case concerns a fatal industrial accident which resulted in one worker dead and three seriously injured when part of the working platform on a metal falsework the workers were working on collapsed.

2.The accident occurred on 11 November 2016 on a construction site in Heung Yuen Wai, New Territories where a passenger terminal building was under construction. The main contractor of the site was Leighton Contractors (Asia) Limited which had subcontracted the falsework and formwork to the appellant company, FEWA.

3.To carry out the falsework erection work, it would be necessary to build working platforms in the process, which would become an H-shaped platform with its ends being supported by the falsework.

4.At the time of the accident, the workers of the FEWA were in the process of extending a working platform the construction of which they began a few days ago, but suddenly the platform collapsed underneath them and they fell more than 7 metres onto the ground.

5.As a result of the accident, both the main contractor and the sub-contractor (FEWA) were prosecuted for violation of various industrial undertakings and construction site safety regulations; each received six summonses, Leighton pleaded guilty to 3 out of the 6 summonses (its case was disposed of) while FEWA pleaded guilty only to one of the summonses but denied the rest.

6.The case was heard before magistrate, Mr. Jason Wan, sitting in the Fanling Magistracy. FEWA was convicted after trial of all five summonses. It now appeals against the conviction.

The 5 Summonses (FLS 5426-5430/2017)

7.FLS 5426/2017

“Being the proprietor failed to provide and maintain a system of work for erection of metal platform on the falsework that were safe and without risks to health of the persons employed at the industrial undertakings, contrary to section 6A(2)(a) of Factories and Industrial Undertakings Ordinance Cap 59 (FIUO)”

FLS 5427/2017

“Being the proprietor failed to provide information, instruction, training and supervision as was necessary to ensure the health and safety at work of the persons employed at the industrial undertakings, contrary to section 6A(2)(c) of FIUO”

FLS 5428/2017

“Being a contractor who had direct control over the construction work, failed to safeguard the persons working at a height against the hazardous conditions, namely, fell from the metal platform erected on the falsework, contrary to Regulation 38AA(1)(a) of Construction Site Safety Regulations Cap. 59I CSSR”

FLS 5429/2017

“Being a contractor who had direct control over the construction work which involved the use of the metal platform erected on the falsework, failed to ensure the metal platform was not used unless it was so designed and constructed that it did not collapse, overturn or move accidentally, contrary to Regulation 38D (a) of CSSR”

FLS 5430/2017

“Being a contractor in relation to construction work with a contract value of $100 million or more, failed to develop, implement and maintain a safety management system, contrary to section 8(1) of the Factories and Industrial Undertakings (Safety Management) Regulations Cap. 59AF”

Grounds of Appeal

8.Insofar as the first 4 summonses are concerned, Mr Thomas Martin, counsel for FEWA, argued on appeal a very narrow point that FEWA was not responsible as the proprietor or the contractor having direct control for the collapsed platform because its responsibility had been contracted out by the terms[1]of the subcontract it had with the main contractor, Leighton which still retained the control over the design and construction of platforms.

9.As for the last summons concerning the requirement to implement a safety management system, Mr Martin submitted that it was not related to the working platform as FEWA was never responsible for it, and it was therefore not required to implement such a system.

Discussion

10.Although the first 2 summonses referring to “proprietor” while the other two “contractor having direct control”, Mr Martin’s opinion is that these four summonses could be dealt with at the same time as they were concerned principally with whether or not FEWA had the control necessary to be found liable, and he would argue that it had not for all these 4 summonses.

11.He criticized the learned magistrate for having analyzed the issue as one of only fact or primarily fact when he should have dealt with it as one of mixed fact and law. Had he applied the correct test, Mr Martin contended, the learned magistrate would have found that FEWA was not in control of the working platform in question. He went on to say that the learned magistrate erred in finding that Schedule 4 Clause 12 of the subcontract was general when it was not. 

12.In order to understand what Mr Martin means, it would be necessary to set out the relevant part of the clause (Schedule 4 Clause 12 (c)) in question:

Schedule 4
Ref	Facilities/ Services	Provided by	Cost By	Comment
12(c)	Provision of a working platform for carrying out the works	C	C	Working platform specially used by Subcontractor shall be responsible at his own cost
“C” stands for The Main Contractor- Leighton in this context.

13.Undisputed is the fact that Leighton and FEWA had entered into a subcontract for the falsework in question and it contained the clause as stipulated above in Schedule 4 of the subcontract. Pursuant to the subcontract, FEWA engaged its own workers to build the falsework and the working platform. On the day of the accident, the workers were actually extending the working platform on a falsework when it collapsed.

14.The three surviving workers of the accident testified that they were trained scaffolders, but they were not given specific training or instructions by FEWA as to how to install and extend platforms. They acquired their skill by following the way the more experienced workers carried out their jobs. On the day of accident, they received instructions from one of their supervisors to extend the platform.

15.A project manager of Leighton (PW7) testified for the prosecution that FEWA was responsible for the erection of the platform and it was FEWA which had control and management of the platform in question.

16.Mr Martin strongly criticized the learned magistrate for acting on the evidence of PW7 to interpret a contract term for the simple reason that the common law excludes declarations of subjective intent when it comes to interpreting contract.

17.Miss May Ho, SPP, counsel for the respondent, pointed out that “under cross-examination, PW7 agreed that it was mentioned in schedule 4 of the sub-contract that it was the duty of Leighton to provide a working platform. However, PW7 explained that it was expressly provided under the “comment column” of the schedule that working platform specially used by the subcontractor i.e. the Appellant, shall be installed by the Appellant at its own costs.”

18.I can dispose of this ground quite quickly because all the criticisms of Mr Martin, to my mind, center on the interpretation of clause 12 (c). In his view, the clause states clearly it is the responsibility of the main contractor, i.e., Leighton, to provide platforms for the subcontractor, i.e., FEWA. And FEWA’s lack of working drawings/ design drawings etc. for the working platform in the case in a way supports the contention that the working platform was never something FEWA was responsible for.

19.Miss Ho, however, submitted that clause 12 (c) should be interpreted in the following:

“Even though provision of a working platform for carrying out works is to be provided by Leighton at its costs, working platform ‘specially used’ by the Appellant should be installed at the Appellant’s own costs”

20.At the risk of stating the obvious, it is bound to be many different types of platform to be provided by different parties in a big construction project similar to the instant case.

21.I agree with Miss Ho’s interpretation; the clause clearly envisages different types of platform- one type to be provided by the main contractor at its costs and another, specially used by the subcontractor, to be provided by the subcontractor itself at its own costs. Leighton generally bears the responsibility to provide platforms subject to a proviso stated in the “Comment Column”. Otherwise, the parties need not take the trouble by specifically adding the words “specially used by the subcontractor” in the “Comment Column”, there must be a reason for it.

22.The collapsed flatform was built by FEWA and was necessary for carrying out the works, ie, the construction of falsework, so it was specially used by the subcontractor.

23.Coupling with other evidence in the case, for example, it was the workers of FEWA who built the platform in question under the instructions of FEWA’s supervisors, the sub-contract etc., the inescapable conclusion is that FEWA had direct control over the collapsed platform as proprietor and contractor.

The Last Summons FLS 5430/2017

24.The main argument put forward by Mr Martin is that since FEWA was not responsible for the working platform, it was therefore not required to implement s safety management system.

25.As I have ruled against the appellant company FEWA in respect of the first 4 summonses, I am satisfied, so was the learned magistrate, that FEWA was responsible for the working platform in question, and the ground for this summons must also fail.

Disposal

26.The appeal is therefore dismissed.

Ms Lily Ho, SPP of the Department of Justice, for the respondent.

Mr Thomas Martin instructed by Lim & Lok, for the appellant.