Kok Fung v. Hui Shing Fu and Others

HCPI000721/1998

HCPI 721 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 721 OF 1998

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Coram: Deputy Judge Li in Court

Date of Trial: 1 - 5 and 9 November 1999

Date of Handing Down Judgment: 26 November 1999

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J U D G M E N T

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The Plaintiff is the widow and administratrix of the estate of a concrete worker. The concrete worker ("the deceased") was killed whilst working at a construction site situated at 71 -97 Wuhu Street, Kowloon ("the site") on 17th October 1995. The First to Third Defendants ("the Three Defendants") were at all material times the principal contractor and sub-contractors at the site. The First Defendant was the employer of the deceased. The Fourth Defendant was the supplier of skips for two hoists installed at the site.

2.At the time of the fatal industrial accident ("the accident"), a building was being constructed at the site. The concrete frame of the basement and a few levels above ground had been completed and work was in progress to put on the higher floors of the building. To transport fluid mixed cement to the higher levels of the building, two hoists were installed at the site. The deceased worked at what was called the No. 2 Hoist ("the hoist").

The Machinery

3.The hoist consisted of a metal frame ("the hoist frame") and its associated operating machinery. It is, I believe, of common design. The hoist frame rested on the floor of the basement of the building and rose straight up by one side of the building. One side of the hoist frame ("the building side") was the business end. Opposite to this building side was the street side. The other two sides may be called the lateral sides. Essentially, the street side and the lateral sides were substantially but not completely fenced by metal wire mesh and nylon mesh. On the building side, there was an opening on each level corresponding with each floor of the building. The opening for the ground floor measured 1.52 m x 1.2 m ("the opening"). Since the hoist frame was just a skeleton of metal bars the opening was made up of the vertical corner bars of the hoist frame and horizontal beams that held the vertical corner bars up in parallel.

4.The opening was partially covered by a metal chute measuring 915 mm x 590 mm ("the chute"). The chute is made of sheet metal bent at right angle on two opposite sides forming a trough like device. On the flush back of this chute, at about the middle point of its length, a metal rod ("the pivot rod") is welded across at right angle to the length. On the corner bars forming the vertical sides of the opening, two 3 inch deep U shape hooks were welded at points such that when the pivot rod is placed horizontally resting on the pocket of the U hooks, the chute welded to the pivot rod could flip or turn on the axis provided by the pivot rod. It is important to note at this stage that the two ends of the pivot rod merely rested on the pocket of the U hooks. One could remove the chute and pivot rod contraption from the opening by simply lifting the pivot rod off the U hooks. It is also important to note that, normally, when the pivot rod was rested on the U hooks, the chute hung in a vertical position outside the hoist frame. This, obviously, was designed to prevent any part of the chute from causing obstruction to the skip moving inside the hoist frame. To flip or move one or the other end of the chute into the inner space of the hoist frame, it was necessary to apply force on the chute; workers did that by pushing one or the other end of the chute with a broom, stick or spade. This whole chute contraption was made by workers of the Third Defendant.

5.The skip was actually a metal hopper fastened to a metal bracket. When the metal bracket was in its natural vertical position, the skip would be upright and could be filled to its full volume. To unload, the skip can be tilted on the hinges by which it is attached to the metal bracket. To prevent the skip from tilting too much, one end of a metal chain ("the arresting chain") is fixed to one inside wall of the skip and the other end of the chain is fixed to the middle point of the hanger bar forming the top of the metal bracket.

6.The metal bracket consisted of the said hanger bar, two vertical bars ("the chopsticks") and two bottom bars. The hanger bar had two short bars fixed to its middle section forming a triangle based on that middle section. The top angle of the triangle is braced by a shackle attached to a steel cable. Obviously, the steel cable pulled up, lowered down or hung in suspension the skip as the hoist was being operated. The hanger bar was joined with the chopsticks by four sets of nuts and bolts; two sets at each end of the hanger bar. Similarly the bottom bars underneath the skip were joined with the lower end of the chopsticks by sets of nuts and bolts.

7.Inside the hoist frame, on each of the lateral sides, there was a vertical grooved metal rail ("the groove rails") running from the basement level to the top of the hoist frame. When the skip is properly installed inside the hoist frame, the chopsticks fitted into the recess of the groove rails. It was not a very tight fitting. I understanding that there were clearances of at least one centimetre. The purpose of the groove rails, obviously, was to keep the metal bracket and the skip on a fairly straight path up and down inside the hoist frame. In addition, rollers were fixed to one side of the mouth of the skip. These rollers ran on a pair of angled bars ("the roller rails") which also ran from the basement level to the top of the hoist frame. These roller rails not only enable the hopper to roll along vertically straight up or down, but also maintain at all times a certain clearance between the skip and the building side of the hoist frame. Thus, the design was such that there were altogether four rails that held the skip and metal bracket on a fixed path well clear of the sides of the hoist frame.

8.The skip and its metal bracket were manufactured by the Fourth Defendant and sold to the Third Defendant as new. The Third Defendant owned and installed the rest of the hoist at the site. The metal bracket was attached to the steel cable by workers of the Third Defendant; the loose surplus end of the steel cable was wound into a coil and placed around the triangle on top of the horizontal bar. This coil of steel cable weighed at least 200 kg and was kept in place by just the legs of the triangle and the working segment of the steel cable that ran through the eye of the coil. It is common ground that the hoist was properly rigged for use.

9.The hoist had been used only once at the site before the day of the accident. On the day of the accident, it was started for the second time and had carried four loads before tragedy struck.

The Routine

10.The relevant statutory provisions on industrial safety relating to the hoist require a number of inspection and certification procedure to be followed. After the hoist was rigged but before it could be operated for the first time, an independent surveyor had to check and certify that the hoist was fit for use. This was done. The surveyor issued a statutory certificate saying that the hoist could carry a safe working load of up to 750 kg. There is, however, ample evidence to the effect that the hopper of standard design can in fact carry 1500 kg filled to the top although in order to prevent spillage during motion a hopper is usually filled to 80% capacity only. The surveyor who issued the certificate for the hopper explained that the 750 kg safe working load was determined by testing with water in the hopper. Since water has a lower density, the skip full of it could only be seen to be able to hold 750 kg. However, this does not necessarily mean that the skip or the hoist could not handle 1500 kg load safely.

11.Another prescribed procedure is the display of notice of the safe working load for the hoist. This was done. However, the mechanic who worked for the Third Defendant admitted that he failed to note the lower safe working load certified by the surveyor. Going by conventional wisdom, the mechanic put up a notice saying that the safe working load of the hoist was 1500 kg. Thus everyone at the site, including the deceased, who cared to look at the notice would get the impression that the hoist could carry 1500 kg for safe working load.

12.The said mechanic was also required to check the hoist regularly and certify as to its state of maintenance at least one every week. In this respect, there is no doubt that he performed his duties diligently and properly to his capabilities. He inspected the rigging visually. He checked the nuts and bolts with a hammer. On 16th October 1995, the day before the accident, he carried out another of his weekly inspection and logged that the hoist was in good repair. In particular, he noted that all the nuts and bolts were tightly in place.

13.On the day of the accident, the deceased was stationed at the ground floor opening of the hoist. His routine was this. When fluid mixed cement arrived at his station, he would see to it that cement is poured into the skip via the chute which he had to tilt to a suitable angle for the flow of concrete to drop into the suspended skip. After the skip had been filled to 80% full, he would see to it that the chute reverts to its normal upright position. This, I believe, is done by simply withdrawing the manual force that held the chute at a slanting position. Once the force is withdrawn completely, the chute automatically reverts to its normal vertical position because its centre of gravity is just below the level of the pivot rod. Then the deceased had to walk at least a few steps from the opening to a point where the operator of the hoist ("the winch operator") could see him. The deceased should then make a hand signal to the winch operator that the skip is ready. After he had made the hand signal to the winch operator, the deceased could dote around or occupy himself with whatever suited him until the time came for him to fill the skip again. It should be noted that the deceased worked alone at this station. There were no co-workers within sight.

14.The winch operator could not act on the signal from the deceased alone. He had to wait for another signal, by electric bell, from a worker on a higher floor. The bell would tell the winch operator that the higher floor was ready to receive the skip. On hearing the bell, the winch operator worked the controls for the winch to pull the skip up by the steel cable. As the winch pulled, the skip leaves the ground level at a maximum speed of 60 metres per minute (1 metre per second). After the skip was emptied at the higher level, the skip would be lowered back to the deceased's station for the next cycle to begin.

The Accident

15.When the skip had been filled with its fifth load, the deceased made the requisite hand signal to the winch operator. Shortly thereafter, the winch operator received the bell signal from the higher floor and he worked the controls to send the skip up. Moments after that, the winch operator heard a loud noise. There can be little doubt that the noise was the result of the skip hitting the basement floor at the bottom of the hoist frame. Alarmed by the noise, the winch operator switched off the controls and went to the area where the deceased was stationed. He saw that the deceased had been struck by the pivot rod. The deceased was certified dead on arrival at the hospital.

16.In addition to the chute, the opening was further covered or enclosed by a metal wire mesh measuring 1.3 m x 0.39 m. This mesh was, immediately after the accident, found to be lying somewhere about 5 metres from the hoist frame. There is no dispute that this mesh was removed from the opening well before the accident.

17.Apparently, the skip had disintegrated during the course of the accident. All the bolts joining the chopsticks to the horizontal bar broke and fell off. Thus the hanger bar became detached from the chopsticks. Everything underneath the hanger bar fell to the bottom of the hoist frame at the basement level. There, the chopsticks were no longer in alignment with the groove rails; they had swung out of the grooves. Nonetheless, the skip appeared to be within its tracks as railed. The skip still had its full load (but not to the top) of cement. There was a spade floating on top in the middle of the pool of cement inside the skip. The spade was of the common type used by construction workers.

18.During the accident, the coil of steel cable originally placed on the hanger bar was thrown towards the metal wire mesh on one side of the hoist frame but arrested by the hanger bar which was also thrown about so that a part of the length of the hanger bar in a vertical position went through the eye of the coil. As a result, the hanger bar inside the hoist frame and the steel cable coil outside the hoist frame balanced each other on top of the metal wire mesh of one side of the hoist frame. The lower end of the arresting chain had also became detached from the skip and was flung over to outside the host frame. Photographs of the scene show the lower end of the hanger bar dangling at a point well over the height of a man standing on the ground floor.

19.Apparently, the pivot rod was somehow lifted from the U hooks and one end of it swung horizontally towards the inside of the building. It was the tip of this end that stabbed through the rib cage of the deceased.

20.Photographs of the scene also show that the horizontal beam of the opening was bent towards the sky. The four sets of broken bolts and nuts from the hanger bar were scattered on the floor. Otherwise, there is no visible dent or damage to any of the other elements or accessories associated with the operation of the hoist.

21.The scene of the accident as I have described is confirmed by eye witness accounts and photographs taken shortly thereafter. There is only one bit of evidence which I have serious doubts and that is the report by the Factory Inspector who investigated the accident that blood was found on the top of one end of the dangling hanger bar. No other witness appeared to have noticed that. Looking at the photograph taken by the inspector, I do not think the colour of a few streaks there resemble blood stains. The significance of these blood stains will be adverted to again.

The Expert Opinions

22.Test by simulation carried out by the Factory Inspector shows that the weight of the cement concrete in the skip weighted 1580 kg.

23.The four sets of nuts and bolts from the hanger bar were examined by a forensic scientist of the Government Laboratory ("Mr. Wong"). Mr. Wong labelled two bolts at one end of the hanger bar B and C respectively and the two bolts at the other end A and D respectively. Mr. Wong found two problems with the bolts: -

(1) bolt B had significant amount of rust;

(2) the shank of bolt C was bent; and

(3) all four bolts had inherent manufacturing defect.

24.In relation to the inherent manufacturing defect, Mr. Wong reported that: -

"One control bolt was sectioned into two halves along its axis. The sectioned surface was polished and etched with 10% Nital (10% v/v concentrated nitric acid + 90% v/v ethyl alcohol) to determine the stress distribution within the bolt. It was found that a localised high stress band existed across the whole cross-section of the bolt head at about 2 mm from the base of the head, which coincides with the fracture plane of the failed bolts. The high stress band caused weaknesses in the bolt and a decrease in mechanical strength at the band. This explains why the fracture plane of each of the failed bolts was at the bottom level of the crater-lie hole.

The presence of the high stress band in the control bolt is a manufacturing defect which was resulted from improper heat annealing of the bolt after cold sprouting (forging) in forming the bolt head from a steel rod. The defect could not be detected by visual inspection of the bolt."

At this juncture, I think it is necessary to note that Mr. Wong did not determine the extent to which the localized high stress band decreased the mechanical strength of the bolts. Mr. Wong then went on to conclude that: -

" In the construction of the hoist, the four failed bolts were used to fasten the top hanger to the two vertical members with Bolt B and Bolt C one side and Bolt A and Bolt D on the other side. All four bolts had inherent manufacturing defects because of a high stress band across the bolt head cross-section near the bolt-shank region. When the hoist was used in the construction site, the four bolts were subjected to a corrosive environment. Rust formation occurred on the surface of the bolt head at the stress band region of Bolt B first and cracks developed into the bolt head to reduce the mechanical strength thereat. As a result, the load bearing capacity of Bolt B was reduced and an excess load was put onto the adjacent bolt, Bolt C, which was bent subsequently. When Bolt C could not withstand the excessive load any longer, Bolt C fractured in a brittle way at the stress band region and the shank detached from the head. When Bolt C failed, the other three bolts failed as a consequence and the hopper detached from the hanger and caused the accident.

The cause of the accident in my opinion is mainly due to material defect of the four top bolts."

25.An engineer of the government Electrical and Mechanical Services Department ("Mr. Tse") also looked into the matter. Mr. Tse labelled the bolts with numbers rather than letters but having carefully compared the respective reports of Mr. Wong and Mr. Tse I believe Bolt No. 1 for Mr. Tse is Bolt C for Mr. Wong and Bolt No. 2 is Bolt B. Bolts No. 3 and 4, by deduction, must be Bolts A and D. This is Mr. Tse's findings or opinions: -

"The following is the probable scenario of the accident. (The exact positions of the four bolts should not affect the deduction of the probable cause of the accident).

4.1 The Bolts Nos. 1[C] and 2[B] were fitted at the left joint and Bolts No. 3 and 4 [A and D] were fitted at the right joint of the lifting arm of the concrete skip as shown in Figure 1. Theoretically, each bolt shared one quarter of the total weight of the laden concrete skip, i.e. 395 kg, under normal situation.

4.2 Assuming that the bolts were of Grade 4.6, which is the lowest grade of black bolts, each bolt was capable of sustaining a shear load of about 1,600 kg. Therefore, each bolt had a safety factor of 4.

4.3 The fractured Bolt No. 1[C] was having longer shank and was bent during the accident suggested that the bolt had not been tightened properly. Therefore, Bolt No. 2[B] took up most of the load at the left joint and failed first.

4.4 Upon failure of Bolt No. 2[B], Bolt No. 1[C] was subjected to increased shear force and failed. Therefore, the left joint failed completely.

4.5 After failure of the left joint, the weight of the fully laden skip shifted to the right joint which was then subjected to excessive bending moment and shear force. Consequently, Bolt Nos. 3 and 4 [A and D] failed instantaneously.

4.6 The four bolts, each having a factor of safety of 4, failed at the bolt heads were quite abnormal. It was probable that the bolts were of inferior quality and having inherent defects at the bolt heads.

5. Conclusion:

The accident was due to breakage of the connecting bolts. As all bolts failed at the bolt heads, the failure mode suggested that the bolts were probably of inferior quality and having inherent defects at the bolt heads."

26.The Factory Inspector, who had the benefit of the reports by Mr. Wong and Mr. Tse, deduced that the accident occurred like this: -

"4.2 At the time of the accident, four batches of concrete had already been sent up to the fourth floor. After the fifth skip of concrete had been loaded, D/P as usual, walked into the sight of the operator give him a signal. About 2 minutes later, after receiving the signal from the workers on the fourth floor, the operator started to send the skip upwards. At this moment, the skip suddenly broke away from its hanger and fell to the basement level. (Please refer to Photo 4 for the detached skip which was full of concrete at the basement and Photo 5 for the hanger which was still suspended by the lifting wire rope). D/P was subsequently found lying by the side of the hoistway with deep wounds. Please refer to Photo 6 for the location of D/P. The metal chute was found on top of D/P and a metal bar protruding from the chute was found pierced into his abdomen. D/P was later certified dead in hospital.

4.3 A blood stain was also found at one end of the hanger (Please refer to Photos 7 & 8), it was believed that when the hanger bounced upwards, it drove the metal chute off its position. Both the hanger and the metal chute had struck D/P and inflicted the fatal injuries."

27.Another expert, an assistant professor in the Department of Physics and Materials Science of the City University of Hong Kong ("Dr. Shek"), prepared a report which was admitted as evidence for the trial. Relevant sections of Dr. Shek's report are reproduced below: -

"The hanger on the failed skip involved in the accident was found to have a permanent deflection of approximately 22 mm at the mid span. This implies that the hanger on the failed skip had been subjected to a load above its yield load which has been estimated in the last section to be 2415 kg."

"At the onset of yielding of the hanger

If the yield stress of the material of the hanger is taken as 350 MN/m2, the load (2W) that can cause yielding of the hanger is calculated to be approximately 2413 kg and the maximum deformation of the hanger under such a load is about 7.7 mm, which is far less than the measured deflection of 22 mm on the hanger of the failed skip.

This suggests that before the failure of the failed skip, the hanger had been subjected to a very large load (much larger than 2413 kg), the origin of which is unknown. The weight of the skip laden with concrete obviously could not produce such a large loading because a fully load skip weighed only 1600 - 1700 kg."

Neither the Plaintiff nor the Three Defendants adduced evidence to contradict the findings of Dr. Shek. Obviously, when Dr. Shek discussed the estimated yield load of 2415 kg, he meant a load or force pulling at two ends of the hanger bar like the load of the skip.

The Questions

28.It is useful to remind oneself the onerous duties the court has to discharge. In Bray v. Palmer [1953] 1 W.L.R. 1455, Oliver J. (as he then was) tried a running down case. The facts were quite simple. The plaintiff was driving his motorcycle on a road in a southerly direction. The defendant drove a motor car on the same road in a northerly direction. Each alleged driving at acceptable speed when the two vehicles collided in the centre of the road. The trial judge dismissed the plaintiff's claim and the defendant's counterclaim for he could not determine who was negligent. On appeal, Evershed M.R. (as he then was) held, at p. 1459: -

" I can borrow from the observations of my two brethren to put the point quite briefly. My Brother Morris observed, quoting from one of the last passages I have read: "The judge is saying 'Both stories are wildly improbable and yet one of them happened.' If they are so wildly improbable, I am not satisfied that the judge was justified in excluding the possibility of the truth lying somewhere between the two, so that perhaps each would be less wildly improbable, or at least in excluding the possibility (which it seems to me was open) of both being wrong." I now come to the observation by my Brother Jenkins: "Unless that was so, the judge seems to me to have stated the case and his conclusions in such a way that one party or the other or both must have suffered an injustice." Whether that is so or not is perhaps another matter, but, if the result appears to be so, then, as it seems to me, it is not satisfactory to leave it thus, but this court ought to order a new trial.

I need not say that it is most regrettable that such a course should be followed because, after all, this accident happened more than two years ago and the recollections of the witnesses will have been either blurred or perhaps, by over-thinking, crystallised somewhat sharply in the interval. But still I have come to the conclusion, with the utmost respect for the judge and acknowledging his difficulty and his experience, that to have stated the matter as he did does involve either a real flaw, or something that looks so like it that it would not be right to leave the matter thus. I think, therefore, that this appeal must be allowed and a new trial ordered."

So there is the unavoidable duty to determine the facts of the case. As Lord Morris said, a trial judge has to decide where the truth lies and, if neither party is credible, to reconstruct how the accident happened so that the question of liability can be resolved.

29.However, where physical cause and effect cannot be ascertained to the last detail, it is permissible to determine liability ex hypothesi. Thus in Duncan v. Cammell Laird & Co. Ltd. [1946] A.C. 401, the external blow cap of a torpedo tube in a submarine was for some unknown reason left open causing the tube to be flooded with sea water. It also happened that the hole for observing the inside of the tube was painted over. When a naval officer opened the internal loading door of the tube to check, sea water entered and sunk the submarine. The case went to the Lords who held that the naval officer who opened the internal loading door in the circumstances was not negligent. Although there was negligence on the part of the contractors and sub-contractors who painted over the observation hole, it was held that they had no reason to foresee that the blocking of the view through the hole would be dangerous. In Roe v. Minister of Health [1954] 2 Q.B. 66, the drug contained in an ampoule was found to have been contaminated. It was no longer possible to determine how the contamination occurred. The ampoules might have molecular flaws or might have developed microscopic cracks through rough handling. It was held that neither the medical auxiliaries who handled the ampoule nor the doctor who administered the drug were negligent.

30.Having ascertained the factual basis, Lord Denning in Roe v. Minister of Health at pp. 84 - 86 said,

" The first question in every case is whether there was a duty of care owed to the plaintiff; and the test of duty depends, without doubt, on what you should foresee. There is no duty of care owed to a person when you could not reasonably foresee that he might be injured by your conduct: see Hay or Bourhill v. Young, Woods v. Duncan, per Lord Russell and per Lord Porter.

The second question is whether the neglect of duty was a "cause" of the injury in the proper sense of that term; and causation, as well as duty, often depends on what you should foresee. The chain of causation is broken when there is an intervening action which you could not reasonably be expected to foresee: see Woods v. Duncan, per Lord Simon, Lord Macmillan, and Lord Simonds. It is even broken when there is an intervening omission which you could not reasonably expect. For instance, in cases based on Donoghue v. Stevenson a manufacturer is not liable if he might reasonably contemplate that an intermediate examination would probably be made. It is only when those two preliminary questions - duty and causation are answered in favour of the plaintiff that the third question, remoteness of damage, comes into play.

Even then your ability to foresee the consequences may be vital. It is decisive where there is intervening conduct by other persons: see Stansbie v. Troman, Lewis v. Carmarthenshire County Council. It is only disregarded when the negligence is the immediate or precipitating cause of the damage, as in In re Polemis and Thurogood v. Van den Berghs & Jurgens Ld. In all these cases you will find that the three questions, duty, causation, and remoteness, run continually into one another. It seems to me that they are simply three different ways of looking at one and the same problem. Starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it: but otherwise not.

Even when the three questions are taken singly, they can only be determined by applying common sense to the facts of each particular case: see as to duty, King v. Phillips, as to causation, Stapley v. Gypsum Mines Ld., per Lord Reid; and as to remoteness, Liesbosch, Dredger v. Edison S.S. (Owners), per Lord Wright. Instead of asking three questions, I should have thought that in many cases it would be simpler and better to ask the one question: is the consequence within the risk? And to answer it by applying ordinary plain common sense. That is the way in which Singleton L.J. and Hodson L.J. approached a difficult problem in Jones v. Livox Quarries Ld., and I should like to approach this problem in the same way."

31.Whether a defendant owed a duty of care to a plaintiff is no easy question to answer despite and on account of the foreseeability test. Romer L.J. in Lewis v. Carmarthenshire County Council [1953] 1 W.L.R. 1439 at 1445 observed,

" I confess that, for myself, I have entertained very considerable doubts, which have not been altogether resolved, as to the defendants' liability for negligence in this case. I cannot help feeling that in all the circumstances which existed at the time almost super-human vision would have been required to enable Miss Morgan to appreciate the likelihood of the little boy David leaving the classroom with his companion, crossing the school grounds, which were forbidden territory to them, passing through the main gate and occasioning an accident in this street, more especially as the evidence disclosed no parallel or even similar incident having ever occurred at the school before. However, in an action such as this, an action founded upon negligence, in which the judge had the advantage of seeing the witnesses, something more than doubt is necessary to justify the appellate court, or any member of an appellate court, in interfering with the judge's finding."

32.The exercise to determine causation is equally daunting. In Stapley v. Gypsum Mines Ltd. [1953] A.C. 663, Lord Porter at 676 put the problem in sharp focus thus: -

" Causation is always a difficult topic. One is but using a commonplace if one repeats that many causes have some place in the sequence of events which lead to a result, or follows Lord Shaw in saying that "causation is not a chain, but a net": Leyland Shipping Co. Ld. v. Norwich Union Fire Insurance Society Ld. The question always is how far back is one justified in going or how wide a net must one envisage."

Lord Reid at pp. 681 - 682 explained,

" In these circumstances it is necessary to determine what caused the death of Stapley. If it was caused solely by his own fault, then the appellant cannot succeed. But if it was caused partly by his own fault and partly by the fault of Dale, then the appellant can rely on the Law Reform (Contributory Negligence) Act, 1945. To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it. "A jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims": Grant v. Sun Shipping Co. Ld., per Lord du Parcq. The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. It may often be dangerous to apply to this kind of case tests which have been used in traffic accidents by land or sea, but in this case I think it useful to adopt phrases from Lord Birkenhead's speech in Admiralty Commissioners v. Volute (Owners), and to ask was Dale's fault "so much mixed up with the state of things brought about" by Stapley that "in the ordinary plain common sense of this business" it must be regarded as having contributed to the accident. I can only say that I think it was and that there was no "sufficient separation of time, place or circumstance" between them to justify its being excluded. Dale's fault was one of omission rather than commission, and it may often be impossible to say that, if a man had done what he omitted to do, the accident would certainly have been prevented. It is enough, in my judgment, if there is a sufficiently high degree of probability that the accident would have been prevented. I have already stated my view of the probabilities in this case, and I think that it must lead to the conclusion that Dale's fault ought to be regarded as having contributed to the accident."

Lord Asquith in the same case, at pp. 687 observed,

" Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge. To a philosopher - a term which I use in no disparaging sense, for what is a philosopher but one who, inter alia, reasons severely and with precision? - to a philosopher, the whole legal doctrine of responsibility must seem anomalous. To him, if event C could not occur unless each of two previous events - A and B - had preceded it, it would be unmeaning to say that A was more responsible for the occurrence of C than was B, or that B was more responsible for its occurrence that was A. The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not there would be no question of apportionment. But the fission between law and strict logic goes deeper than that. For I am persuaded that it is still part of the law of this country that two causes may both be necessary pre-conditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability. This is a doctrine affirmed by your Lordships' House, and not, in my view, displaced by the Law Reform (Contributory Negligence) Act, 1945. On the contrary, the words "as the result of" in section 1 of that statute impliedly preserve the doctrine, the assertion of which your Lordships have more than once coupled with an admonition that, if the conditions for its application occur, a judge sitting alone should assume the mantle and the mentality of a jury, and should take what is called a "broad common-sense view," in deciding whether one of the causes (there may be two or twenty) is the "real" cause."

The Physical Cause

33.Since there were no eye-witness to the fateful moments during which the deceased was killed, the physical cause of the accident can only be deduced. Miss Lee, counsel for the Plaintiff, urged me to adopt basically the findings of the Factory Inspector. Mr. Chan, counsel for the Three Defendants, appeared to be content too if the court goes along with the Factory Inspector's version.

34.In a nutshell, the Factory Inspector suggested the following sequence of events: (1) the bolts of the hanger broke; (2) the skip fell as the chopsticks became separated from the hanger bar; (3) the hanger bar bounced upwards and drove the chute off its position; (4) the hanger bar hit the deceased and (5) the dislocated pivot rod of the chute stabbed the deceased. The reason the Factory Inspector held the view that the hanger bar hit the deceased is that there was blood stain on one end of that bar. The learned coroner who held an inquiry into the fatal accident accepted the Factory Inspector's report and conclusions without query.

35.I have to say the Factory Inspector's report is grossly unsatisfactory. Its conclusions cannot be reconciled with a number of circumstances that should not be disregarded: -

(1) the unusual deformity of the hanger bar suggesting the action of a force greater than the actual weight of the loaded skip.

(2) although test results show that the bolts had inherent manufacturing defect, there is no evidence to show what was the load bearing capacity of the defective bolts; the same type of bolts from the same supplier had been used by the Fourth Defendant for many years on many hanger bars without any reported accident, it is therefore quite unlikely that, although suffering from inherent defect, the bolts could not withstand practical use for loads of skip full of cement; the probability that the bolts broke due to exceptional great force acting on them, far exceed that coming from the skip full of cement, is consistent with (1) above;

(3) the only injuries to the deceased were those caused by the pivot rod stabbing through the rib cage; there were no injuries on the deceased consistent with striking by massive heavy steel like the hanger bar; in this respect, I should add that both counsel before me agreed with this interpretation of the injuries found on the deceased;

(4) no notable deformity of the chute or the pivot rod that must result had the heavy steel hanger bar struck any part of the chute or the pivot rod; again, both counsel agreed with this observation;

(5) judging from the final resting position of the coil of the steel cable and the hanger bar, the coil of steel cable must have been thrown flat up for a distance of at least 1 metre, at the same time the hanger bar disjointed from the chopsticks rotated vertically so that one end of it pointed up towards the eye of the coil of steel cable, then as the winch was still pulling the hanger bar was pulled up so that its top end went through the eye of the coil of steel cable, by then the coil of steel cable started to fly towards one side of the hoist frame until it held the vertical hanger bar against the metal wire mesh of the side of the hoist frame; in the light of this sequence of events, it was physically quite unlikely for any part of the hanger bar to extend at any time through the opening where the deceased was stationed; the blood stains on the hanger bar by my view of the photograph look more like paint and both counsel agreed that blood could have been splashed on to the hanger bar after the pivot rod punctured the decease's heart;

(6) the horizontal beam at the top of opening was bent upwards; this bending must have occurred during the accident because a bent beam cannot be tolerated and the witness who examined the hoist the day before the accident saw no problem with this beam then; this bending must have been caused by a considerable force too; it is unlikely that the arresting chain having struck the chute or pivot rod could have enough force left to bend the horizontal beam and then continue to flip itself over one side of the hoist frame.

36.Taking into account all factors and circumstances, I find that, as the skip holding the fifth load of cement was travelling up, a certain loose object not been part of the hoist got trapped between the top edge of the skip and the top horizontal beam of the opening. This blockage or jamming, whilst the winch was still pulling the skip up, became in effect a vastly increased load added to the skip. The increased load or force plus the weight of the cement in the skip were unbearable for the bolts joining the hanger bar and the chopsticks and so the bolts broke. When the chopsticks became detached from the hanger bar, the skip dropped straight down. As the skip fell the arresting chain which could not hold the load of the skip in suspension broke from the skip and sprang like a whip towards the chute and pivot rod. The force of the whipping arresting chain was sufficient to lift the pivot rod from the U hooks and swing one end of the pivot rod towards the deceased standing a few feet from the opening. That end of the pivot rod came into contact with the deceased like a stabbing rapier and killed him.

37.I cannot see any other explanation as to how the accident occurred that is consistent with all the circumstantial evidence.

The Common Law Duty of Care

38.Applying the foreseeability test, I have no doubt that the Three Defendants had common law duty to, inter alia, provide a safe and proper system of work for the deceased. In particular, the Three Defendants had duty to enclose the hoistway of the hoist with a substantial structure. I have no doubt also that the Fourth Defendant had common law duty to, inter alia, ensure that all parts of the skip assembly were made of material suitable for the purpose.

The Legal Cause

39.On the facts as I have found, the accident was triggered by an unknown extraneous object that got inside the hoist frame and blocked the path of the skip carrying the fifth load of cement. In this regard, failure to substantially enclose the hoistway must be one of the legal causes of the accident.

40.Everything can be broken by a sufficiently large force. The fact that the bolts broke does not per se establish that bolts (less strong due to manufacturing defect) were not fit for the purpose. In fact, all the evidence indicate that the bolts (even though less strong due to manufacturing defect) had been and was in use to bear skips normally loaded with cement weighing 1500 kgs. According to Dr. Shek, a force much greater than 2413 kg was needed to bend the hanger bar to its deformed state as found after the accident. Had the bolts broke as soon as the unknown great force began to act, the great force would hardly have had time to bend the hanger bar. I believe the bolts held on for sufficiently long time to enable the great force to pull the ends of the hanger bar down whilst the winch pulled the middle section of the hanger bar up thereby permanently bending the hanger bar. It follows that the bolts in fact had considerable safety margin beyond being able to bear the weight of a skip fully loaded with cement. The fact that the Fourth Defendant decided to use better bolts on the advice of the Factory Inspector after the accident is neither here nor there. Since the Fourth Defendant cannot reasonably foresee an unexpected great force intervening to beyond the considerable safety margin of the bolts, I do not think it is fair to say that the legal cause of the accident was the bolts being not strong enough to serve their reasonably expected purpose.

41.As the skip assembly disintegrated, it is foreseeable that the skip would fall. It is also foreseeable that the arresting chain would snap and whip around. The arresting chain did. However, the manufacturer of the skip, the Fourth Defendant, cannot be reasonably expected to foresee that the whipping arresting chain would hit on lose objects outside the hoist frame. It has been a long standing requirement to have hoist frames substantially and securely enclosed. Site contractors and occupiers have a duty to provide enclosure to prevent persons and objects from passing through the hoist frame either way when the hoist is in operation.

42.Had there been no need for a chute, the portion of the opening where the chute was would have to be completely enclosed. Hence the chute must be treated as an enclosure device too. Since the chute was dislocated rather than withstanding the whipping action of the arresting chain, I find that the failure on the part of the Three Defendants to provide substantial and secure enclosure was also a legal cause of the accident.

43.The skip was loaded with cement weighting over 1500 kgs whereas the hoist was certified to carry a safe load of 750 kg. There is evidence which I accept to the effect that the skip and hoist were designed for and indeed capable of handling a normal load of cement weighing 1500 kg. Thus, although the skip was loaded beyond 750 kg, I cannot find that overloading of cement was a legal cause of the accident.

Breach of Statutory Duty

44.Under Paragraph 9 of the Amended Statement of Claim, the Plaintiff particularized a number of breaches of statutory duty. In the light of my decision on the legal causes of the accident, I must find the following proven: -

"(ii) Failing to ensure that the hoistway of the hoist was, at all points at which access to the hoistway is provided or at which persons are in danger of being struck by a moving part of the hoist, efficiently protected by a substantial enclosure, contrary to Regulation 31(1)(a) of the said Regulations;

(iii) Failing to ensure that the safe working load applicable to the hoist was clearly and legibly market on its platform or cage, contrary to Regulation 34(1)(a) of the said Regulations;

(iv) Failing to ensure that the hoist was not used to carry any load greater than that safe working load, contrary to Regulation 32(1)(b) of the said Regulations;

(v) Failing to take all reasonable steps to ensure where, by reason of the nature or position of the operation the load was liable, while being moved on a hoist or on lifting gear, to come into contact with any object so that the object may become displaced, that no person lawfully on or near the construction site where the hoist or gear was being used was endangered by the displacement of the object, contrary to Regulation (38)(2) of the said Regulations;

(vi) Failing to ensure that every place on the site at which the deceased worked shall be so far as is reasonably practicable made and kept safe for him, contrary to Regulation 38A(b) of the said Regulations."

Breach of Duty of Care as Occupiers

45.The Plaintiff also claims against the Three Defendants for breach of common duty of care imposed by section 3 of the Occupiers' Liability Ordinance, Cap. 314. On the facts as I have found and for the reasons given, I must find that the Plaintiff has established the following breach: -

"(ii) Failing to ensure that the deceased was not hit by an object displaced by the failing skip assembly;"

Liability

46.In the premises, I hold that the Three Defendants are 100% liable to the Plaintiff for negligence, breach of statutory duty and breach of common duty of care under section 3 of the Occupiers' Liability Ordinance, Cap. 314.

47.Since the failure of the bolts was not the legal cause of the accident, the Fourth Defendant is not liable to contribute to the Three Defendants.

Quantum

48.The Plaintiff and the Three Defendants have agreed quantum at $2.2 million and apportionment as follows: -

For Lai Yat, using a multiplier of 5, $245,720.00

Pre-trial loss $4,000.00 + 2% x 48.5 months = $197,880.00

Future loss $4,000.00 + 4% x 11.5 months = $47,840.00

For each of the children $2,000.00 per month during the pre-trial period and $3,000.00 per month during the post trial period, using respectively a multiplier of 8 for the son and 10 for the daughter. Their respective claims would be:

For the son Wong Kwok Ho total amount $239,500.00

$2,000.00 x 48.5 months = $97,000.00

$3,000.00 x 47.5 months = $142,500.00

For the daughter Wong Siu Mui $311,500.00

$2,000.00 x 48.5 months = $97,000.00

$3,000.00 x 71.5 months = $214,500.00

I approve the figures and thank both counsel for cutting short the trial by working out a settlement on quantum.

Costs

49.Ms. Lee for the Plaintiff suggested that since minority interests are represented in this case, it is appropriate to order costs for the Plaintiff to be taxed on common fund basis as is often done in similar cases. I accept the suggestion.

Judgment

50.Accordingly, there is judgment for the Plaintiff against the 1st, 2nd and 3rd Defendants for $2.2 million. After deducting $975,427.00 paid under the Employees Compensation Ordinance, Cap. 282, the balance of the judgment amount shall be paid over to the Director of Legal Aid for apportionment as approved. There is order nisi for the 1st, 2nd and 3rd Defendants to pay the Plaintiff's costs of this action to be taxed on common fund basis if not agreed. Since the 4th Defendant is not legally represented, I make no order as to the 4th Defendant's costs.

Representation:

Ms. Christina Lee instructed by Messrs. Szwina S.K. Pang & Co. for the Plaintiff.

Mr. Samuel Chan instructed by Messrs. Deacons, Graham and James for 1st to 3rd Defendant.

4th Defendant in person.