HKSAR v. Leighton Contractors (Asia) Ltd.

HCMA001029/2000

HCMA 1029/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1029 OF 2000

(ON APPEAL FROM SAN PO KONG MAGISTRACY
NO. SPS 5272-3/2000)

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Coram: Hon Jackson J in Court

Date of Hearing: 19 December 2000

Date of Delivery of Judgment: 9 January 2001

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J U D G M E N T

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1. On 22 August 2000 the appellant was convicted after trial in San Po Kong Magistracy of two offences one of which was contrary to Regulations 31(1)(c), 68(1)(a) and 68(2)(a) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance CAP 59, and the other contrary to Sections 6A(2)(c) and 6A(3) of the Ordinance itself.

2. The information in relation to the first offence alleged that the appellant, being the contractor responsible for a hoist at a construction site, failed to ensure that it was not used unless the hoistway enclosure and the gates, where practicable, extended to a height of a least 2 metres unless a lower height (being not less than 900 millimetres) was sufficient to prevent a person from falling down the hoistway and there was no risk of any person coming into contact with any moving part of the hoist.

3. The information in relation to the second offence alleged that the appellant, being the proprietor of an industrial undertaking, failed to provide information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of all persons employed by the appellant at the industrial undertaking.

The facts of this case

4. The facts which led to the prosecution and conviction of the appellant can be shortly stated. The appellant was both the contractor responsible for a construction site and the proprietor of the industrial undertaking going on at that site.

5. On 30 September 1999 an employee of the appellant fell to his death from the 40th floor of a building being constructed on the site. He fell down the hoistway.

6. Precisely how the accident came about is not known.

7. On the 40th floor of the hoistway there was a double flap metal gate 160 centimetres high, the top of which was 40 centimetres below a concrete tie beam of the building. An electrical interlocking device was installed at the top of the right flap metal gate.

8. There was evidence before the learned magistrate, which he apparently accepted, that the deceased worker was one of 3 employees of the appellant who had gone to the 40th floor to unload materials which were to be hoisted up from the ground.

9. Whilst two of these employees were cleaning up miscellaneous items the deceased man went to the loading platform and communicated with the hoist operator on the ground by intercom. He apparently asked her why the hoist had not yet arrived at the 40th floor.

10. The next thing that happened was that the deceased man cried out for help, which cry was heard over the intercom by the hoist operator on the ground (who immediately stopped the hoist) and by at least one of the employees on the 40th floor who turned round and saw that the deceased had disappeared; that the metal gates were open, and that the hoist platform was stationary at a position higher than the 40th floor.

11. Whilst it can be no more than pure conjecture or speculation after the event it may have been the case that the deceased, who was anxious for the hoist to arrive at the 40th floor and who enquired of the hoist operator as to its whereabouts, opened the gates; went out on to the temporary hoist platform to look down for it and fell to his death, being completely unaware that at that time the hoist was, in fact, higher than the 40th floor. It goes without saying that, whatever in fact happened, this was a dreadful tragedy.

The trial

12. It is plain from a reading of the learned magistrate's most careful and comprehensive statement of findings that the prosecution called a number of witnesses who were employees of the appellant and who gave detailed evidence, inter alia, about the provision of information, instruction, training and supervision concerning matters of safety by the appellant.

13. I will return to that evidence later in this judgment but suffice it say for the moment that the learned magistrate concluded in relation to training and supervision as follows:-

"As far as training and supervision was concerned I could accept that so far as reasonably practical, sufficient was done to ensure health and safety. The appellant's employees had attended at least one, it not two, full one day training course(s) which covered the safe operation and usage of the hoist. On the job training was then provided by PW5 and PW6. As to supervision I accepted that there was no requirement for PW5 and PW6 to supervise personally the unloading work on each and every occasion. On this occasion PW5 instructed a highly experienced worker PW2 [one of the employees on the 40th floor when the deceased fell to his death] to supervise the unloading work. This amounted to the provision of sufficient supervision in my view."

14. If that then was the learned magistrate's conclusion concerning training and supervision, what of information and instruction?

15. The prosecution called a Divisional Occupational Safety Officer of the Labour Department (the prosecuting authority) who the learned magistrate (after argument) accepted as an expert. That witness, who had a number of qualifications as an expert, told the court that he had not previously given evidence concerning the use and operation of a hoist; that whilst he had monitored hoists in high rise buildings he had never used one; that he had not drafted working manuals on the safe operation of a hoist but that he had lectured on the subject.

16. In the course of his evidence this witness said that whilst he accepted that the appellant had given to its employees sufficient oral information and instructions concerning the safe usage of the hoist, that information and those instructions should also have been given in written form.

17. As part of its case during the trial, the appellant also called an expert witness. His expertise was not challenged and, among other things, he said that the intercom system of communication between the hoist operator and the unloading workers was one of the best, and that the information, instruction, training and supervision given by the appellant was sufficient. He said that information and instructions should be given to the workers orally and not in writing, and that in his opinion, those of them who had given evidence in the trial appeared to be fully aware of the operational features of the hoist.

18. As to the summons issued under the Regulations regarding the height of the gates between the hoist and the building, the expert for the prosecution was of the view that the gap of 40 centimetres between the top of the metal gates and the concrete tie beam should have been covered, and that albeit the gates were of sufficient height to prevent a person from falling into the hoist shaft, they were insufficient to prevent a person coming into contact with the hoist.

19. The expert for the appellant, on the other hand, was of the opinion that as the metal gates were 1.6 metres high there was no risk of any person coming into contact with any part of the hoist.

20. In his statement of findings the learned magistrate concluded in relation to the section 6 summons as follows:-

"I was concerned however about the failure of the appellant to provide written information and instructions to its workers on the safe operation of the hoist and the safe loading and unloading of materials from its platform. I accepted that there was no specific statutory requirement that the information and instructions should be in writing. I further accepted that workers engaged in this sort of work were likely to be of a low educational level. However written information and instructions could have taken the form - as PW8 suggested - of, at least in part, diagrams. In my view the importance of providing written information and instructions concerning the safe operation and use of the hoist was that it would have constituted a reminder in permanent form to the workers of the safety aspects of the hoist operation and the consequent loading and unloading. However excellent the training course and the on-the-job training were, and however clear and lucid the oral information and instructions that PW5 gave were, by themselves they could not prevent workers from forgetfulness. Distribution to the workers of a written leaflet containing safety information and instructions would have allowed the workers to remind themselves at any time of that information and instructions. There was evidence before me that such a leaflet was in existence but it had not been distributed amongst the workers. PW5 would refer to it and show it to the workers when giving them oral information and instructions on safety. In my view this was insufficient; a leaflet should have been provided to each employee.

I was satisfied beyond a reasonable doubt that a written form of information and instructions, distributed to each employee, was necessary to ensure the health and safety at work of the appellant's employees."

21. In relation to the summons concerning the regulations governing the use of the hoist the learned magistrate concluded as follows:-

"I was satisfied on the evidence, particularly that of PW8, that there was no risk of any person falling down the hoist way over a metal gate 1.6 metres high. However I was satisfied beyond a reasonable doubt that there was a risk of a person or persons coming into contact with a moving part of the hoist. Such risk was not restricted to the perverse or suicidal employee. In my view, it was foreseeable that, for example, an impatient worker might be tempted to peer out of or over the gates to find out the position of the hoist.

I was satisfied beyond a reasonable doubt that the hoistway enclosure and the gates were less than 2 metres in height and that, whilst exceeding 900 milimetres, there was a risk of a person coming into contact with a moving part of the hoist."

The grounds of appeal

22. The appellant's grounds of appeal settled by Mr Wu of counsel speak for themselves. I set them out hereunder:-

"In respect of SP5272/2000

1. In the light of the evidence accepted by the learned Magistrate or undisputed evidence set out hereunder the learned Magistrate erred to rule that it was necessary for the Appellant to provide written information and written instructions to its workers and the written material should be distributed to workers:

(a) clear and lucid oral information had been given to the workers and was well understood by them;

(b) the Appellant had a leaflet containing safety information and instructions and its contents were referred to and shown to the workers when giving them oral information and instructions on safety by the supervising staff;

(c) the training course organized by the Construction Industry Training Authority ("CITA") had provided written materials on safety of hoist operation to the attending workers;

(d) there is no specific statutory requirement that information and instructions should be in writing; and

(e) as regards training (and supervision too) so far as reasonably practicable, sufficient was done to ensure health and safety of the workers.

2. The team of workers operating the hoist in question were experienced workers who had received proper and sufficient information, training and supervision and there was no evidence to suggest any one of them had forgotten the relevant information and training. The learned Magistrate therefore erred to speculate the possibility of "forgetfulness" of the workers which was totally uncalled for in the circumstances of the case.

3. The Defendant had satisfied the burden of proving on a balance of probabilities that it had provided such information and instruction as was necessary and/or reasonably practicable to ensure the health and safety at work of its employees. Further the learned Magistrate erred to ignore the provision of written materials by the CITA to the workers.

4. In considering the Defence case the learned Magistrate effectively and erroneously applied a standard which was higher than the civil standard.

5. In all circumstances of the case the conviction was unsafe and unsatisfactory.

In respect of SPS5273/2000

1. The height of the gates had no bearing/relevance to the accident. All workers working on the 40th floor (including the deceased) knew they should not expose any part of his body into the void space above the gates when the gates were closed. Thus the evidence disclosed that there was no risk or no real risk of a worker coming into contact with a moving part of the hoist. Any risk was simply fanciful. Accordingly the learned Magistrate erred to find that such risk was not restricted to perverse or suicidal workers.

2. In finding that an impatient worker might be tempted to peer out of or over gates to find out the position of the hoist the learned Magistrate failed to take into account that all workers of the Appellant knew that they could maintain effective communication with the hoist operator through intercom and that there was no evidence to support the "risk" foreseen by the learned Magistrate.

3. The learned Magistrate failed to consider or to consider sufficiently/adequately that it was not practicable to extend the gates to a height of at least 2 meters on the 40th floor.

4. In all circumstances of the case the conviction was unsafe and unsatisfactory."

23. In relation to the conviction under S6 of CAP 59 and in the course of his detailed submissions before me Mr Wu, for the appellant, has argued that by reason of the 11 matters set out hereunder it was not necessary for the appellant to provide written information and instruction to its employees but that, in any event, there was evidence before the court that employees of the appellant were provided with written information and instructions which fact was not taken into consideration by the learned Magistrate.

"(a) the appellant provided training in respect of the operation of the hoist and safety measures to be taken when loading and unloading from the hoist.

(b) the workers were fully aware of the 5 cardinal rules governing the use of the hoist.

(c) the workers also attended green card training courses organized by the Construction Industry Training Authority ("CITA").

(d) the CITA course also covered the 5 cardinal rules.

(e) PW5 (the mechanical supervisor) and PW6 (the electrical foreman) also repeatedly informed the workers of the 5 cardinal rules.

(f) PW5 showed written instructions/document/leaflet in respect of safe operation of the hoist during training provided by him.

(g) each worker was told by the Appellant and CITA not to expose any part of his body into the space above the metal gates when the gates were closed.

(h) PW2, PW3 and the deceased worker were fully aware that they must not open the hoist gate before the hoist platform and the loading platform were level.

(i) the legislation does not specify that instruction has to be in writing.

(j) the workers were subject to close supervision.

(k) CITA provided written materials to workers on hoist operation."

24. In relation to the conviction for the regulatory offences Mr Wu has argued that by reason of the 8 matters set out hereunder, it was not reasonably foreseeable that there was any risk of an employee coming into contact with any moving part of the hoist and, further, that any risk of the kind envisaged by the learned Magistrate in his statement of findings was entirely speculative and such risk would apply irrespective of the height of the gates.

"(1) There was a concrete tie beam some 40 cm vertically from the top of the metal gates.

(2) Each of the gates of the hoist way on the 40th floor landing place were 160 cm high.

(3) The legislation does not require an absolute and strict compliance with a height of 2 metres.

(4) Owing to the presence of the concrete tie beam the height of the gates was less than 2 metres.

(5) During work there was no need whatsoever to place a hand or any part of the body over the metal gates to get into the void space of the hoist way.

(6) Workers were taught by the PW5 and CITA not to expose a part of the body into the void space above the metal gates when the gates were closed.

(7) All communication between the unloading workers and the hoist operator was done effectively by intercom.

(8) There was no appreciable risk of any person coming into contact with a part of the hoist when the gates were closed."

Conclusion

25. I respectfully agree with each and every one of the submissions of Mr Wu in relation to both summonses and I also respectfully agree with everything, save two matters, stated by the learned magistrate. I find myself unable to agree with him that, on the evidence, he could properly conclude that there was anything beyond a fanciful risk that a worker might place a part of his body above the closed gates and into the hoist shaft, or that it was necessary ( and I stress that word) for safety instructions (in the circumstances of this particular case) to be given in written or diagram form.

26. It seems to me that the evidence of the expert witness for the prosecution upon which the learned magistrate appears to have placed great reliance was little more than an expression of ideals and a counsel of perfection arrived at in hindsight in an attempt to explain what, on the face of it, was inexplicable.

27. Indeed, as I have said, I am quite unable to see how it could fairly be said that, on the evidence before the learned magistrate, instructions and information in writing were 'necessary to ensure the safety at work of the employees of the appellant'. For what it is worth, it seems to me that there can be no wholly safe system of work devised for employees in the construction industry who are required to work 40 storeys above ground. Such work is inherently dangerous or unsafe. To suggest, as the prosecution expert appears to have been suggesting that this dreadful accident would not have happened if the deceased worker had received instructions in writing is speculative in the extreme. Given that, in my view in this case, the issuing of instructions and information in writing was not necessary the appellants appeal against the section 6 conviction must succeed - and I set it aside and quash the sentence imposed.

28. As regards the appeal against the conviction in respect of the regulatory summons, that too I allow and quash the sentence. The mere fact that the gates were less than 2 metres in height is, so it seems to me, neither here nor there, given their actual height of 1.6 metres and the fact that the height of the overhead concrete beam meant that gates of 2 metres in height could not be installed. What was important was whether this 'shortfall in height' might of itself present a risk of a person falling down the hoist way (and the learned magistrate found that it would not) or whether it would present a risk of a person coming into contact with a moving part of the hoist (which the learned magistrate found that it would). As I have said I am unable to see how it could be said that just because there was a small gap between the top of the gates and the overhead concrete beam, that presented a real (as opposed to a wholly fanciful) risk that that might happen.

29. As indicated to counsel at the hearing of this appeal I make a costs order nisi in favour of the appellant.

Representation:

Mr Paul K N Wu, instructed by Messrs Mallesons Stephen Jaques, for the appellant

Mr Paul Madigan, SGC, for the Respondent