Ton K. Engineering and Construction Co Ltd v. The Queen
Read the full judgment text of CACC 2/1978 on BabelCite. This Court of Appeal judgment.
1. This case is the result of an unfortunate accident in which a workman was killed. He was working on a grinding machine and grinding a tool when the wheel shattered and he was killed. As a result of investigations by the Labour Department the Commissioner for Labour brought two summonses against the Appellant company. The first one was brought under Reg. 8(1) of the Factories and Industrial Undertakings (Abrasive Wheels) Regulations for failing to provide a guard at an abrasive wheel. The seco
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CACC000002/1978
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----------------- Coram: Huggins, J.A. Date of Judgment: 24th January 1978. ----------------- JUDGMENT ----------------- 1. This case is the result of an unfortunate accident in which a workman was killed. He was working on a grinding machine and grinding a tool when the wheel shattered and he was killed. As a result of investigations by the Labour Department the Commissioner for Labour brought two summonses against the Appellant company. The first one was brought under Reg. 8(1) of the Factories and Industrial Undertakings (Abrasive Wheels) Regulations for failing to provide a guard at an abrasive wheel. The second which was brought under Reg. 7(1) of the same Regulations was for failing to mount properly an abrasive wheel. 2. The proceedings came before a magistrate and the summonses were heard together. In the first instance the prosecution was conducted by a factory inspector but as questions of law arose in the course of the proceedings counsel came to assist the magistrate with a submission. The Defendant was represented throughout by a solicitor. The relevance of this will become apparent. The first point with which I shall deal affects both cases and it is that the Appellant was not a person who could properly be convicted of these offences. The offence-creating regulation is Reg. 17(1), which says that the proprietor of any industrial undertaking who contravenes the provisions of these two regulations, inter alia, shall be guilty of an offence, and the first question, therefore, is whether or not the Appellant was the proprietor of the industrial undertaking. Both "proprietor" and "industrial undertaking" are defined. "Proprietor" is defined as
I emphasise that one word because quite clearly there may be cases where the proprietor is what he purports to be - what the very word conveys or connotes - that is the owner. However, when one looks at the definition of "industrial undertaking" that also includes a number of things, including factories, mines and quarries, but we are concerned with the words "any construction work" for the industrial undertaking which is alleged to exist in the present case is a construction site where a retaining wall was being constructed. Whereas one may have an owner of a factory one can hardly have an owner of work. One can, however, within the definition of "proprietor", have somebody who controls work. What is submitted in the present case is that the Appellant was not in control of this construction work, the reason being that the Appellant although it had contracted for the carrying out of this work, had in fact sub-contracted the whole of the operation to someone else, namely, to Mr. Yeung Wing-tung, who gave evidence that he was responsible for the whole of this operation. He did say at one stage that he was "a foreman" and the implication at first sight would appear to be that he was employed as such by the Appellant, but the rest of the evidence militates against that interpretation and it seems quite clear that he was in fact a sub-contractor doing the whole of this work for a lump sum and that he did not receive any wage from the Appellant. He employed workmen and although he paid the workmen "with money received from [the Appellant]", it was in fact money which he had received on his own behalf as advance payments on the total price of the job, and the employees were his employees. He was responsible for supplying the plant and he borrowed a grinding machine from somebody else. It was that machine which caused the damage. Unfortunately, although there was a booklet which was used in the lower court it was never put in evidence and I am not entirely sure that I know exactly what this machine looked like, but that probably is not material. It was a pneumatic machine. It was apparently therefore a machine consisting principally of some kind of a handle connected to the compressor by, no doubt, a flexible hose: the grinding wheel was then belted to the end of the handle and the handle itself was tied with string to a stand. Whether in the end the grinding machine's handle was vertical or horizontal I am not absolutely certain: I suspect it was horizontal, as that would probably make for the easiest working surface. 3. The first question is, then, whether the Appellant can be held responsible under these Regulations. It is material that counsel for the Crown was not prosecuting throughout because there appears to have been some difficulty over the admission of a document. There is in the record before me a certificate under the Building (Administration) Regulations which has been marked as "Exhibit P5". Now I am told by counsel for the Appellant that the solicitor who was representing the Appellant in the court below was taken by surprise when this document was referred to in the course of the submission by counsel who appeared at the later stage to argue that there was a case to answer before the magistrate. Unfortunately, although the document has been marked as an exhibit, there is no entry in the learned magistrate's notes to show at what point of time this document was tendered. It must have been tendered at some point otherwise it could not have been marked as an exhibit and my attention has been drawn to the fact that earlier exhibits were referred to and admitted in evidence on p. 7, that is Exhibit P3, and that the subsequent Exhibit P6 was also admitted before the submission of no case were embarked upon. I, therefore, think that I am bound to hold that, although there is no note in the record, this document was properly tendered and was admitted in evidence. The solicitor says that he had not seen it. It may be that it was tendered and he did not ask to see what was being handed to the magistrate. It is a little difficult to imagine just what did happen but I do not think that it would be proper for me at this stage to say that that document was not properly admitted in evidence. Fortunately, on the other hand, nothing very much turns upon the manner in which the document was admitted, because the only possible objection which has been advanced is as to its relevance. If the document was relevant then even though there might have been some irregularity in the manner of its admission it is clearly a document which ought to be before this court and nothing turns upon the irregularity. If, of course, the submission which is now made is right, then the document should not have been admitted even though it was admitted in a regular manner. 4. The certificate includes a paragraph which reads as follows:
The "above described works" are of course the building of the retaining wall to which I have referred. Now it is argued on behalf of the Appellant that the undertaking related solely to the quality of the finished work. I am unable to accept that interpretation of this certificate. In my view it is clear that the contractors were undertaking not only in relation to the quality of the finished work but to the manner in which the work was carried out. The Buildings Ordinance and the Regulations made thereunder are very largely concerned with the manner in which work is to be done and it is quite clear to my mind that this is what was the purpose of this certificate - to ensure that a responsible contractor was going to carry out the work in a responsible manner - and the fact that he sub-contracts does not, and I agree with the learned magistrate in this respect, relieve the head-contractor of responsibility for ensuring that the work is carried out in a proper manner in accordance with the Ordinance and the Regulations. Indeed, I am satisfied that the whole purpose of this form of certificate is to ensure that work is done properly and in a manner which will take proper notice of the dangers involved to workmen. I am not satisfied that the learned magistrate did not have regard to all the evidence when coming to his conclusion as to the Appellant's being a proprietor, but clearly he was very largely governed in his decision by this certificate and it seems to me that the other evidence merely goes to the degree of responsibility or blameworthiness which must attach to the various persons involved. I have no doubt in my own mind that the sub-contractor could equally have been prosecuted for this offence but it seems to me that the object of having registered contractors is to ensure that there is a responsible contractor who is primarily responsible and it may or may not be proper to bring a prosecution against sub-contractor as well. 5. That, I think, sufficiently disposes of the argument addressed to me in relation to the Summons No. 9820, for it is conceded that the wheel was not properly mounted and, with respect, I think Mr. Mayne very properly made that concession. 6. There is, however, a second point which covers only the Summons No. 9819, relating to the presence of a guard. The provisions of Reg. 8(1) are in these terms
Reg. 9 says that every guard provided in pursuance of these Regulations shall be of a particular kind. Now it is to be noted that Reg. 8 does not say that a guard of a particular kind shall be provided. In the present case what was alleged by the summons was that there was no guard. In the course of the evidence for the prosecution it came to notice that there was something which the witness who gave evidence about it described as a "guard". It was a piece of fibre board, three quarters of an inch thick, six feet long by three feet wide and the witness said that the purpose of this was to protect the eyes of the workman. Of course, the guard which is required by Reg. 9 is rather more than something to protect the eyes. In fact it is very difficult to protect the eyes otherwise than with goggles when grinding and I have no doubt that goggles ought to have been provided if they were not. The purpose of the guard envisaged by these Regulations is to protect the workmen against the very thing which happened in this case, namely, the shattering of the wheal - a thing which apparently happens not infrequently. This "guard" was obviously something which was totally inadequate for the purpose for which it should have been intended. It did not protect this workman. In fact the difficulty I am in is that the learned magistrate, not having been told that any point was taken as to the possibility that this piece of wood was or might be regarded as a guard, did not make any finding as to whether it was there at all. There was, however, very clear evidence before him that there was this plank and the magistrate's judgment merely says that he took "the view that little provision, if any, was made to ensure the safety of the operator", who died as a result. It is now argued, of course, that the prosecution ought not to have been brought under Reg. 7, which says that there shall be a guard, but it should have been brought under Reg. 9, which provides for the type of guard which shall be provided. I have no doubt that had this point been taken in the lower court before the defence case was begun the magistrate would have amended the charge so as to lay a charge under Reg. 9. That was not done, however, and I do not think that it would be proper for me at this stage to amend the charge even thought it must be apparent to everybody that the guard provided was not in compliance with Reg. 9. 7. In my view Mr. Mayne is right when he submits that the charge was, in the event, laid under the wrong regulation. This case was brought on the basis that there was no guard. Mr. Noble fairly concedes that it was for the prosecution to establish beyond reasonable doubt that there was no guard and that the evidence did not justify a finding to that effect. That being so I think that the appeal must be allowed to the extent that the conviction on Summons No. 9819 is sat aside and the fine, if paid, must be repaid. 24th January 1978. Representation: |