Li Tak Foon and Another v. Chan Chu t/a Chan Chu Kee

HCPI000468/1995

No.PI468 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Woo J in court

Dates of hearing: 4, 5, 6, 7 and 8 December 1995.

Date of handing down judgment: 13 December 1995.

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J U D G M E N T

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1. This action arose out of an accident involving the deceased WONG Pau Kui ("the deceased") which took place within the premises known as Shiu Wing Steel Works situated at Lot No.1066, District 12, Rennie's Mill, Sai Kung, the New Territories ("the said premises") on 6 May 1992. As a result of the accident, the deceased died. The deceased was at the time working as a metal worker or welder under the employ of the defendant. The plaintiffs are administratrices of the estate of the deceased. They claim against the defendant under the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 on behalf of the deceased's estate, and under the Fatal Accidents Ordinance, Cap.22 on behalf of the dependents of the deceased.

2. The trial before me was for determination of the issue of liability. The question of damages had been ordered to be tried separately.

3. The defendant was the contractor undertaking the installation of a "dust-collecting house" ("the house") at the said premises. Various parts of the house which were mainly made of metal had already been constructed elsewhere and the defendant's job was simply to put up the parts to form the house at the said premises. The deceased and other workers were employed by the defendant to do the work.

4. On 6 May 1992, while the deceased was carrying out work on the second level of the house, he fell and landed on the first level about 13 metres below. The defendant raised no issue that he owed a duty of care to the deceased or that he was under a duty to provide a safe system and a safe place of work to the deceased. Nor was there any dispute that the defendant should provide competent staff and give adequate and proper instructions to the deceased on the proper manner or procedure in carrying out the work and all necessary precautions to be taken, or that he should provide adequate and effective supervision to ensure that the deceased carried out his duties properly and safely. The issues for my determination are :

(a) whether the defendant was in breach of any duty of care, or any contractual duty or statutory duty, resulting in the death of the deceased; and

(b) whether the deceased was solely responsible for or guilty of any contributory negligence resulting in his death.

5. The documents in the plaintiffs' Bundle of Documents were agreed to be authentic and admissible, save for the following items. Item 10 was ruled by me to be inadmissible as being hearsay, consequent upon the application of Mr Lin for the defendant. Items 9, 13, 16, 18 and 20 were agreed to be irrelevant to the question of liability. All the other documents were agreed by counsel to be admitted in evidence. Statements of three witnesses who were called to give viva voce evidence were also adduced as part of their evidence in chief. Two witnesses were called by the plaintiffs, namely, Mr Yeung Sau Chi and Mr Ho Juh Kuen, and the defendant himself testified. After considering the totality of the evidence, I find a number of facts. The reasons for finding these facts are stated whenever appropriate.

6. Towards the end of April 1992, the defendant sent a team of workers to the said premises to execute the job. The defendant did not visit the said premises everyday although he did it occasionally. In effect, he delegated the tasks of supervision of the job as well as the provision and supervision of the safety measures for the workers to one Lam Cho Ming. This finding is based on the defendant's statutory declaration made on 8 May 1992 to the Labour Department and his statement of 13 May 1992 made to the Police. His oral evidence was to the effect that he supervised the work himself and that he visited the said premises every morning although Mr Lam stood in for him during his absence. I have no hesitation in rejecting his oral testimony and accepting his statements in this regard, which were made shortly after the accident. Mr Lam did not testify before me and his statement given to the Police, being hearsay, was not admitted in evidence. Mr Yeung was a co-worker of the deceased at the time of the accident. It was clearly stated in Mr Yeung's statements that Mr Lam was the responsible officer at the site, and this evidence was not challenged or challenged successfully.

7. Both Mr Yeung and the deceased were working at the said premises although Mr Yeung started work there a few days before the deceased did. The job included the setting up of 6 funnel-like objects ("funnels") of similar size inside the house, installing air-ducts to link each of the funnels to a damper which was to stand on a platform situated half way in between the first and second levels on two opposite sides of the house. On 6 May 1992, shortly before 2:30 p.m., the deceased and Mr Yeung and two other colleagues of theirs were working on the second level of the house. The deceased was in the course of helping to move a damper to a platform.

8. In order to appreciate the condition of the place at which the deceased was working, it is necessary to describe the floor of the second level in some detail. The six funnels were prefabricated complete with lids on them and these lids were steel plates with a large number of holes. The lids were fixed on the wide end of the funnels. The funnels were installed in such a way that the six lids were flush with the second level of the house, forming the entire floor of the second level which was rectangular in shape, measuring about 10 metres by 13 metres in area. The condition of the floor can be gathered from exhibit D2. Each of the six lids measured 4,275 mm by 5,000 mm, and contained two groups of lines of holes with a strip of 408 mm (about 16 inches) between the two groups. There were 45 holes in each group, being 9 x 5, and altogether there were 90 holes in the two groups of holes on each lid. The whole floor had a total of 540 holes in it. The holes were uniform in size, each 292 mm (about 12 inches) in diameter, which was large enough for someone to insert a whole leg up to the thigh into it. The shortest space between two adjacent holes was about 93 mm (less than 4 inches) wide. The distance between the floor edge to the edge of the lines of holes available to the worker to walk on as a passageway along the floor edge was either 464 mm (about 18.5 inches) or 501.5 mm (about 20 inches), dependent on which side of the floor one was on. The widest space on the floor uninterrupted by any of the holes was the place where two lids joined, which was about 1,003 mm (about 40 inches). There was an I-beam each erected at the four corners of the house. On one side of the house, one I-beam stood in between the two corner I-beams, facing the one standing exactly opposite. On the other pair of opposite sides, two I-beams were installed in between the corner ones. These 10 I-beams were positioned along the edges and at about equal distance from one another, surrounding the whole floor. There were two other I-beams in the middle of the floor. Each side of the squarish I-beam measured about 200 mm (about 8 inches) and the perimeter would therefore be about 800 mm (about 32 inches). The I-beams protruded high above the floor of the second level. There were two nylon ropes tied to the 10 I-beams along the edges and these ropes therefore surrounded the edges on all four sides of the floor.

9. There were six dampers for the six funnels. The dampers were almost identical: each was rectangular in shape, measured about 2 metres tall by 1 metre square and weighed about 500 kilogrammes. Three dampers had at the time been installed on the platform on one side of the house. Two other dampers were still to be installed and they were originally lying horizontally on the floor of the second level. They were to be lifted up and lowered down by the use of a mobile crane onto the platform below on the side of the house opposite to that where the three dampers had already been installed. Shortly before the accident, the deceased was trying to have a damper put onto the far end of the platform. The deceased was near the edge and the corner of the floor at that far end because the damper was assembled there. He attached the 2-wire sling of the crane to the holes in the bracket on the top of the damper which was lying flat on the floor. After he had fixed the sling onto the damper, he hand-signaled to Mr Yeung who was standing on the opposite side of the second level. The deceased was then standing close to the corner of the house near to the I-beam at that corner. Mr Yeung in turn signaled to the crane driver (Mr Lo Yuk Lun) to lift the load. Mr Lo and the crane were situated at the side of the house only visible to Mr Yeung, opposite to the side at which the deceased was working. When the damper was lifted above the floor for about one to two feet (25 mm to 50 mm), Mr Yeung could not see the deceased any more. He felt something had gone wrong and signaled to Mr Lo to stop the lifting operation. On the other hand, Mr Lo stopped lifting the load even before he saw the hand signal of Mr Yeung to stop, because he felt that the load was swaying slightly. Mr Yeung ran to where the deceased was and found that he had fallen to the ground on the first level of the house. The deceased was taken to hospital promptly but was certified dead at sometime after 4 p.m. These are the facts I find.

10. Incidentally, at one stage of his evidence, Mr Yeung described two steps having to be taken to move a damper lying horizontally on the floor of the second floor level. He said that a damper had to be hoisted to make it stand upright first. There were catches somewhere in the middle of the damper lengthwise on which the 2-wire sling of the crane would have to be secured in order to hoist the damper to make it stand upright. After the damper had been made to stand vertically, the sling had to be retrieved from those positions and securely hooked to two diagonally opposite holes in the bracket on the top of the damper. Those, according to Mr Yeung, were the proper procedure. The deceased had to climb up to the top of the upright damper, position himself on a plank placed by him on the top as a foothold, catch the sling from the crane and secure the 2-wire sling onto two opposite holes in the bracket. After that, the deceased had to climb down and land on the floor of the second level. This evidence was later withdrawn by Mr Yeung who said that in fact one step as described in the preceding paragraph took place. I do not think any more time should be spent on this procedure involving two steps, which is rejected. However, I do not accept the submission of Mr Lin for the defendant that this matter reduces the reliability of other aspects of Mr Yeung's evidence. Having observed this witness closely while he was giving evidence, I had the impression that he was basically and generally honest. He told me that he returned from China on 3 December 1995, a Sunday, to give evidence on 4 December, and he had been told that he would be required only on Monday. He had promised his employer in China that he would return to his work after Monday. He was obviously annoyed and frustrated that he had to be in court on Tuesday, although he was helpful to attend. The two-step procedure was mentioned by him in the early afternoon of Tuesday during cross-examination which had started since the afternoon of Monday. The other aspects of his evidence were also substantially the same as what he had stated in his statements and declaration made shortly after the accident.

11. The plaintiffs claim that the defendant failed to provide a safe system and place of work and failed in his statutory duties whereby the deceased died. Mr Lin submitted that there was no evidence of the cause of the death and the cause of the accident, and as a result, the plaintiffs had failed to prove any causal link between the death and the breach of any duty on the part of the defendant.

12. The plaintiffs' case is that the defendant fell off the edge of the floor of the second level, as a result of which he died. Mr Lin challenged this on the basis that no one witnessed how the deceased met with the accident. Before the deceased was found lying on the floor of the first level, he was last seen by Mr Yeung. Mr Yeung's evidence is that the deceased was standing at about the corner of the rear of the second level near the edge. How the accident exactly happened, Mr Yeung could not say. Mr Lin submitted that there could have been a number of ways that the deceased met with the accident, and at least the factors mentioned in the fatal accident report made by Mr Ho Juh Kuen, the factory inspector who inspected the site on 7 May 1992, were some possible examples. The deceased might have lost his balance and fell, he might have been scared by the sway of the damper while it was being lifted and lost his balance and fell, or he might have been pushed by the swaying damper out of the floor edge. Mr Lin further argued that if the deceased was struck by the swaying damper, and if there had been a guard-rail at the edge, the deceased would have been trapped between the rail and the damper and crushed. The presence of a guard-rail would therefore have worsened the position. It was submitted that where the court could not make a finding as to what caused the death of the deceased, the causal link between his death and any breach of duty on the part of the defendant was missing.

13. Mr Ho's fatal accident report described the fatality as caused by fall from height. The photographs annexed to the report also indicated that the deceased fell down from a particular position near the corner of the floor. They also showed the position of the damper and other structures or articles on the floor. The photographs were taken on 7 May 1992 when nothing on the site immediately after the accident had been moved. In the statutory declaration of Mr Yeung made to the Labour Department, he stated that the deceased lost his balance and fell on seeing the damper sway, or he was pushed to fall by the damper. The notice of the accident signed by the defendant himself also stated that the deceased lost his balance and fell. The impression common among all these persons who were either there at the time of the accident (i.e., Mr Yeung) or who learned and investigated the accident shortly afterwards was that the deceased lost his balance and fell. Although Mr Lin submitted that the evidence of the injuries shown on the medical report was inconclusive as to what caused the death, on all the evidence before me, I come to the conclusion on the balance of probabilities that the death was caused by the fall itself. If Mr Lin is right in his surmise that the deceased was hit by the swaying damper, because there was no hard object behind the deceased over the floor edge (only two nylon strings or ropes), it is most unlikely that his death was caused by being struck by the damper and not caused by the fall. Anyhow, the suggestion that the damper caused the death was never put to any of the witnesses by Mr Lin. Mr Lo, the crane driver, mentioned in his statements that immediately upon feeling that the load swayed slightly, he stopped the lifting operation, and that was seconds after he had started to hoist the damper. Mr Yeung's statements were to the effect that it was when the damper was lifted about 1 or 2 feet above the floor that he could not see the deceased any more. He immediately signaled to Mr Lo to stop the crane, but according to Mr Lo, he stopped the crane before seeing Mr Yeung's signal. If the damper had hit the deceased, only his legs would be injured, and it is most unlikely that the leg injuries set out in the medical report would have resulted in his death. I am of the view that most of the injuries found in the report were sustained by the deceased because of the fall, as a result of which he died. He might have been hit on the leg by the slightly swaying damper or he might have been alarmed by the swaying damper, lost his balance and fell. However, on the balance, especially bearing in mind the evidence of the injuries on his right leg and the position of the damper shown in the photographs, I find that he was hit by the damper, lost balance and fell. Yet his death was caused by the fall.

14. I am also of the view that the following factors led to the fall, namely,

(a) the deceased was standing on the floor near the corner and the edge of the floor;

(b) the damper was being hoisted close to the deceased; and

(c) there was no guard-rail along the edge.

15. The plaintiffs claim that the defendant failed to provide a safe system and a safe place of work and failed in his statutory duties whereby the deceased died. It was not disputed that at the time of the accident:

(a) the deceased was provided with a safety belt;

(b) he was wearing the safety belt; and

(c) there were two nylon ropes which had been tied to the 10 I-beams around the edges of the floor of the second level, and the two nylon ropes were positioned at about 500 mm and 1,000 to 1,100 mm respectively above the level of that floor.

16. As the deceased was standing close to the edge, it seems to me that if either of two things happened, i.e., there was a guard-rail of adequate strength along the edge from which the deceased fell, or he had anchored his safety belt securely to a sufficiently strong anchorage, he would either not have fallen or his fall would not have been fatal.

17. The defendant's case is that he had fulfilled his duty of care or other statutory or contractual duties by providing a safety helmet and a safety belt to the deceased. Mr Yeung's witness statement mentioned that he and the deceased did put on the safety belt and safety helmet provided to them, but there was no anchorage point on the floor for attaching the safety belt. Exhibit D1 is a safety belt similar in size and design to that one worn by the deceased when the accident occurred. The safety belt consisted of mainly three parts, the belt itself with a buckle which was to be worn by the worker around his waist, a lanyard (or some witnesses called it a life line) fixed to the belt at one end with its other end fixed to a hook. The length of the lanyard up to the tip of the hook was about 1.5 metres (less than 5 feet). The hook was intended to be attached or hooked to something as an anchorage. The defendant's case is that the deceased was himself responsible for the accident or alternatively guilty of a substantial degree of contributory negligence because he should not have stood at a place close to the edge of the floor or put himself in a position of danger or he failed to attach the lanyard or hook of his safety belt to one of the following anchorages suggested by the defendant in evidence:

(a) the spaces between the holes on the funnel lids made of steel plates which formed the floor of the second level, or

(b) the I-beam at the corner near the deceased, or

(c) either of the nylon ropes surrounding the entirety of the second level.

18. Mr Yeung gave evidence that he was, just like the deceased, wearing a safety belt (similar to exhibit D1) at the time, because they had been told by the defendant or Mr Lam Cho Ming that they had to wear it while working at a height. Neither he nor the deceased, however, had the hook attached to anything but the buckle of the belt itself, with the lanyard looped round the back of the neck. He said to the effect, and I accept, that it was not practicable to attach the hook to any of the three suggested anchorages.

19. He told me that if the worker was to attach the lanyard through two of the holes on the floor, it would take up about 8 inches (about 200 mm) out of the whole length of the lanyard which was about 1.5 metres. The worker would not be able to stand straight, and anyway his movements would be severely restricted. The deceased had to attach the 2-wire sling to two opposite holes on the top of the damper and he would be very much inconvenienced in his work if he had the lanyard hooked to the space between two adjacent holes on the floor. His mobility would be limited to a radius of about 1.3 metres from the floor because about 200 mm of the lanyard would be taken up by hooking onto the lanyard itself through two adjacent holes. While he was helping to position the damper when it was being hoisted to the proper place for lowering onto the platform, his mobility would be very much restricted if he had the lanyard of his safety belt linked to the holes on the floor, and that would also pose a great danger to his own safety for he might not be able to avoid the damper if it swayed in the air. Moreover, the deceased would have to mind the numerous holes on the floor which greatly limited his movement and created a danger for him if he had anchored the lanyard through two adjacent holes on the floor. The passage along the edge on which the deceased stood before the accident was also very narrow, the widest part being about 500 mm (20 inches) wide. His mobility was already quite limited.

20. Nor would the I-beam close to the deceased be a good or reasonable anchorage, for if the lanyard was hooked to the I-beam, the deceased's movement would be severely hampered. The distance between him and the I-beam would be less than 700 mm because the perimeter of the I-beam would take up about 800 mm of the lanyard. The room available for the maneuvre of the deceased would also be limited to the space in front of the corner itself. Any sway of the damper would put him in great danger. He was in the course of helping to have the damper hoisted and lowered onto the platform where it was to be installed. If he had attached the lanyard of the safety belt which he wore onto the I-beam, it would be very difficult for him to carry out the operation effectively or efficiently. I also therefore reject this as a practicable, suitable or reasonable anchorage in the circumstances.

21. The defendant blamed the deceased for failing to use either of the two nylon ropes surrounding the second level which were tied to the I-beams (altogether 10 I-beams at the edges of the whole house) as anchorage for his safety belt. Mr Yeung said he would not use either of the nylon ropes because he did not have faith in them. Although the workers themselves, including Mr Yeung and the deceased, were told to tie the nylon ropes round the I-beams to surround all the edges, the nylon ropes were simply not solid enough as anchorage for the safety belt. Mr Yeung described the diameter of the rope being about 6 mm and Mr Ho estimated it to be about 5 mm. The defendant, however, said that it was 10 mm thick. I shall return to the divergence later. Anyhow, Mr Yeung had no knowledge of the weight that the nylon rope could support. He said that there was a long distance between two I-beams on which the ropes were tied. In fact, the shortest distance between two I-beams along the edges was about 4 metres (about 13 feet). An added factor why he did not trust the nylon rope was that attaching the lanyard to it, which was not solid, would create an uncertainty as to distance from it which a person could travel, which could create misjudgment while the worker would have to avoid the holes on the floor.

22. I must say that ex post facto it might seem better in the circumstances for the deceased to have hooked up his lanyard on one of the nylon ropes, for at least it would be a sort of an anchorage although not too much reliance could have been placed on it. However, the fall of the deceased had proven that the nylon ropes were not able to stop a person of the height of the deceased, who, according to Mr Yeung, was about between 1.5 and 1.6 metre, from falling. No expert evidence was adduced by the defendant to say that Mr Yeung's views, as an experienced worker, were wrong or incorrect, or that the nylon rope would be suitable anchorage, and for that matter, no expert evidence was given that the space between two adjacent holes on the floor or the I-beam close to the deceased were suitable or proper anchorages. Mr Yeung and Mr Ho described the diameter of the nylon rope as 6 mm and 5 mm respectively. The defendant said the diameter was 10 mm. He supported his evidence by saying that he bought the ropes himself. Both Mr Yeung and Mr Ho said that the ropes were red in colour and they were there as a warning sign to workers of the edge of the platform. The defendant, however, said that they were to provide protection to workers from falling. The fact remains, the deceased fell from the second level despite the two nylon ropes stretched along that area. On the evidence before me, I come to the view that regardless of the diameter of the ropes, and I find on the balance that it was about 6 mm, they did not provide a sufficient protection to the deceased from falling over the edge, and that the nylon ropes were not a proper or reasonable anchorage provided to the deceased in the circumstances.

23. I now turn to the Construction Sites (Safety) Regulations, Cap. 59. A number of the regulations are relied on by the plaintiffs. I set out the relevant parts hereunder underlining the important words.

"6.(1) Subject to paragraph (2) on every stage, gantry, or similar place where a lifting appliance having a travelling or slewing motion is in use, the contractor responsible for the appliance shall ensure that an unobstructed passageway, not less than 600 millimetres wide, is maintained between any part of the appliance liable so as to move and any nearby guard rail, fence or other fixture.

(2) If at any time it is impracticable to maintain any such passageway at any particular place, the contractor shall ensure that all reasonable steps are taken to prevent persons from having access to that place when the appliance is in use.

38N.(1) The contractor responsible for a construction site shall ensure that every side of a working platform, working place, gangway, run or stair being a side from which a person is liable to fall a distance of more than 2 metres is provided with a suitable guard-rail or guard-rails of adequate strength to a height between 900 millimetres and 1,150 millimetres.

(2) The guard-rails required under paragraph (1) may be removed or remain unerected for the time and to the extent necessary for the access of persons or the movement of materials.

38P.(1) The contractor responsible for a construction site shall ensure that every opening, corner, break, edge or other dangerous place through or from which any person on the site is liable to fall a distance of more than 2 metres is provided with either -

(a) a suitable guard-rail or guard-rails of adequate strength to a height of between 900 millimetres and 1,150 millimetres above the surface across which persons are liable to pass so erected as to prevent as far as possible the fall of persons; or

(b) a covering so constructed as to prevent the fall of persons, materials and articles; any such covering shall be clearly and boldly marked to show its purpose or be securely fixed in position.

(2) Such guard-rails and coverings may be removed or remain unerected -

(a) ...; or

(b) for the time and to the extent necessary for the access of persons or the movement of materials or other purposes of the work.

38Q.(1) Where by reason of the special nature or circumstances of any part of the work or of the access thereto or the egress therefrom it is impracticable to comply with all or any of the requirements of regulations ... 38N and 38P so far as they relate to the falls of persons, the contractor responsible for a construction site shall erect and keep in such positions as to be effective to protect persons carrying on that part of the work or using the said access or egress suitable safety nets or safety belts or other suitable and sufficient equipment of such a design and so constructed and installed as to prevent so far as practicable injury to persons: ... .

(2) Where the use of a safety belt is required pursuant to paragraph (1) the contractor shall provide each workman employed on the site with a suitable safety belt.

(3) Where a safety belt is provided under this regulation the contractor shall also provide a suitable and sufficient anchorage and suitable fittings therefor; and each such safety belt, anchorage and fitting shall be of such a design and so constructed as to prevent serious injury in the event of a fall to any person using it.

(4) ... .

(5) The contractor shall take all reasonable steps to ensure that no workman remains on any dangerous place on the construction site without wearing a safety belt provided to the workman in pursuance of this regulation.

38R. Every workman employed on a construction site who has been provided with a safety belt shall wear it and keep it attached to a secure anchorage whenever the use of the belt is necessary for his own or any other person's safety."

24. Regulations 38N and 38P apply to the situation of this case, where the height between the floor of the second level and that of the first level was about 13 metres, far exceeding two metres. Both sections provide that the contractor responsible for the construction site shall ensure that a suitable guard-rail or guard-rails shall be provided along the edges of any platform or place to prevent workers from falling. The guard-rail must be of adequate strength. The nylon ropes provided by the defendant around the second level of the house could not be a good or reasonable substitute for a guard rail, and there was no challenge to the evidence of Messrs Yeung and Ho describing the ropes as for warning of the edges, as opposed to for protection against falling from the edges.

25. Mr Lin relied on paragraphs (2) of both regulations 38N and 38P to argue that no guard-rails were erected along the edges because it was necessary at the time to move the dampers. I disagree. First, the point was never mentioned by or to any witness. Secondly, the evidence of the existence and positioning of the two nylon ropes flies in the face of the argument, for no one ever suggested that the nylon ropes, and by the same token any guard-rails, had any effect of even inconveniencing the movements of the dampers.

26. Impracticability to comply with regulations 38N and 38P in the context of providing guard-rails was neither raised in the Re-Amended Defence nor proved. I find that the defendant failed to comply with the two regulations.

27. I am not saying that any worker in the circumstances of the deceased or Mr Yeung could have properly risked their own safety for convenience while they were working at a height. The use of the safety belt would doubtless in most circumstances reduce their mobility and cause them inconvenience, but these could not be total justification for not taking steps to protect themselves from injuries. On the other hand, I do not accept the suggestion or claim of the defendant that the worker should attach the safety belt to an anchorage for every step that he took. If it were so, then a worker walking along the edge of the floor would have to attach the hook of his safety belt to the space between two holes on the floor, release it after he had finished a couple of steps and attach it to another pair of holes ahead of his path, release it and repeat the same rigmarole every couple of steps. This was most impracticable and would create so much interruptions to the work to be carried out by the workers on the site, bearing in mind the condition of the floor. It would also involve the danger of the worker having to stoop or squat to apply and release the hook on a passageway which was about 20 inches at the widest. There is no evidence that the workers were advised to take any of such suggested steps save being given a safety belt and a helmet. Although the defendant claimed himself to be an experienced metal worker, he himself had never used a safety belt in all his alleged experience. Mr Yeung was in a much better position to see whether there was any reasonable, suitable or practicable anchorage for the safety belt on the floor of the second level, and I find as a fact that there was none. I also find as a fact that neither the defendant nor Lam Cho Ming to whom the defendant had delegated the duties of carrying out and supervising the works and safety measures, had instructed the deceased or Mr Yeung to use any suggested anchorage. In fact, the defendant himself admitted in his own statutory declaration made shortly after the accident that he never considered whether anchorages were available on the working platform. I come to the conclusion that the defendant had failed in providing a safe system and a safe place of work to the deceased and must be liable for the consequence.

28. Mr Yeung said in evidence that he and the deceased would rely on their own experience as to where to anchor the safety belt instead of simply following instructions from anyone else. Mr Yeung further said that he and the deceased would make a choice of the position to stand for their own safety and would not take instructions from anyone as to where to stand. Mr Lin submitted on the basis of this evidence that whether the deceased was given instructions where to stand and where to anchor his safety belt was irrelevant because anyway he would rely on his own judgment and experience whether to accept the instructions or directions. I do not agree. First, Mr Yeung cannot be the deceased's spokesman: what he said about how the deceased would behave on a hypothetical basis cannot be treated in the same way as an admission made by the deceased. Unfortunately, the deceased's own reaction to such hypothetical questions will never be known. Secondly, if the deceased had been instructed that he must stand at a certain position or he must use certain things, whatever that might be, on the site as anchorage for his safety belt, not following such instructions would be a totally different consideration. Without any evidence that such instructions had been given, it is not open to the defendant to enter into this realm of conjecture. The defendant can, of course, try to satisfy me that there were ample and sufficient anchorages available to the use of the deceased on the site, but the three suggested anchorages are all rejected by me as not suitable, practicable or reasonable in the circumstances. From the photographs attached to the fatal accident report, I cannot see any other possible anchorage which would have been suitable, practicable or reasonable either. There is no evidence that the deceased was supervised in any manner at the time he carried out his work, or he being told where and where not to stand, or what should be used as an anchorage for his safety belt. I also accept Mr Yeung's evidence that Lam Cho Ming was not at the site at the time of the accident. Had Lam been there and supervised the performance of the deceased's duties, he could have warned the deceased not to stand where he did before the accident occurred. The defendant breached his admitted duty to provide adequate supervision to ensure that the deceased carried out his work safely. In the circumstances, the deceased was just as good as any other worker experienced in the field to make his own choices, as to where to stand and what was a suitable and proper anchorage. Apparently, the deceased did not or could not find any such anchorage. He was left with no guard-rails and no suitable and sufficient anchorage for him to attach his safety belt to protect himself. There were clear breaches of the statutory duties imposed on the defendant by regulations 38N, 38P and 38Q(3), which breaches caused the death of the deceased.

29. Is the deceased totally free from contributory negligence? In this regard, I keep in mind the law as summarised succinctly by the editors of Clerk and Lindsell on Torts, 17th Ed., para.3-22, which was approved by the Court of Appeal in Li Man Yuen v. Li Chung I (unreported, Civ. App. No.91 of 1991, 14 November 1991, pp.12-13) :

"Where the defendant is charged with the breaches of a statutory duty, the standard by which the plaintiff's contributory negligence is judged is on occasion less exacting than that used for ordinary negligence. Lord Tucker stated it in this way:

'This is not so illogical as may appear at first sight when it is remembered that contributory negligence is not founded on breach of duty, although it generally involves a breach of duty, and that in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as contributory negligence so that too strict a standard would defeat the object of the statute.'

The Court of Appeal has also cautioned against undermining the object of statutory provisions by too ready findings of contributory negligence. The plaintiff's conduct must be judged in the context of the circumstances of his work and in the light of the defendant's statutory responsibility for his welfare."

30. Mr Lin submitted that the cause of the accident was that the deceased stood at a dangerous place. If he had placed himself far away from the edge of the floor, the accident would not have occurred. After the deceased had finished tying the 2-wire sling of the crane onto the damper, he should have moved away from anywhere near the damper and the edge. He was an experienced worker and that was what he should have done. This argument flies in the face of the duty imposed by the Safety Regulations that the contractor should ensure that dangerous edges are to be railed, fenced or covered, or that safety nets should be provided, to prevent persons from falling. If nobody is liable to be near any edge, then the protection intended by the Regulations would not be required. Albeit the deceased was an experienced worker, he was very much liable to be close to the edges of the second level, bearing in mind the peculiar condition of the floor (which was obvious by looking at exhibit D2) which the defendant or his delegate Lam must have been aware.

31. In the absence of any suitable and sufficient anchorage on the floor near the place where the deceased worked, the safe place for the deceased to put himself would be somewhere close to the centre of the floor. When he was facing Mr Yeung to give the hand signal for the damper to be hoisted, there was the damper on his left. Just left to the damper was a huge structure, what appears to be a part of an air-duct, lying on the floor. The damper was to be lifted and moved to somewhere in front of the deceased, and it seems to me that the only safe place for him to position himself during the lifting process was somewhere near the middle of the floor but one-third from the edge on the side of the platform on which the damper was to be put. That was a place about a metre wide without holes. If he did that, he would have to go back to the edge of the floor where that platform was to see whether the damper was lowered down to the right position of the platform. He would have to move quite some distance from one position to another, along the narrow passageways of widths of 464 mm to 408 mm, with the floor edge or holes on either side.

32. As I said before, the deceased could have been prevented from falling if there was a sufficiently strong guard-rail at the edge close to which he stood. On the other hand, if the deceased had attached his safety belt to any anchorage, his fall might not have been fatal. Regulation 38R imposed a statutory duty on the deceased to wear the safety belt provided to him and keep it attached to a secure anchorage whenever the use of the belt was necessary for his own safety. The space between two adjacent holes on the floor and the I-beam close to him could be secure anchorages, but as I have already held, they were not practicable, suitable or reasonable. The nylon ropes were not secure or strong enough to act as a suitable or sufficient anchorage. Yet, if he had positioned himself farther away from the damper when it was being lifted, e.g., to the middle of the floor, or if he had attached his safety belt to one of these ropes, he might not have fallen or his fall might not have been fatal. I think that as an experienced worker, it was negligent of him not to have taken any or any sufficient step such as those mentioned above to protect his own safety. He should have kept his eyes open and take proper precautions to guard against the occurrence of an accident, and he should not have placed himself in a position of some degree of danger. In all the circumstances, taking into account causation and culpability, I think it proper and reasonable to assess the degree of the deceased's contributory negligence to be 20%. The defendant is therefore 80% liable for the damages arising from the death.

33. As the trial of the issue of damages is still pending, I accept Mr Lin's suggestion that the question of costs should be reserved.

Representation:

Ms Susanna Leong, assigned by the Director of Legal Aid, for the plaintiffs.

Mr Kenny Lin, instructed by Messrs. Deacons, Graham & James, for the defendant.