Wong Pex Mui and Others v. Evergreen Forwarding & Container Service Ltd and Others

HCA000712/1981

BETWEEN

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Coram: Hon. Liu, J. in Chambers

Date: 1 May 1982

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JUDGMENT

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1. This is a case without much general interest. At the conclusion of the appeal, which was allowed, I indicated that I would give my reasons, which I now do.

2. On the 24th February, 1979, a worker of the 1st defendant was killed by a falling shackle, weight and hook of a 1-ton hoist together with its load in the premises of the 2nd defendant then leased to and occupied by the 3rd defendant.

3. The personal representatives of the deceased commenced an action against the 1st, 2nd and 3rd defendant. The 2nd defendant issued a Third Party Notioe against the 3rd defendant and thereafter served a Statement of Claim against the 3rd defendant as Third Party (hereinafter referred to in these Third Party proceedings as "the 3rd defendant"). Mr. Faulkner, counsel for the appellant/2nd defendant, plaintiff in the Third Party proceedings (hereinafter referred to in these Third Party proceedings as "the 2nd defendant"), explained that by prosecuting these Third Party proceedings the 2nd defendant hoped to secure a full indemnity under a contractual provision with the 3rd defendant, a possible added advantage said to be over and above those by the service of a Contribution Notice in the alleged capacity of a joint tortfeasor.

4. Motive was not a matter with which the 3rd defendant had any real cause for concern. It was, however, contended that these Third Party proceedings were redundant. I was not persuaded that this matter was unarguable. The main thrust of the opposition was two-pronged: (1) Whether the alleged negligence of the actual operator of the hoist would fix the 3rd defendant with any liability and (2) Whether the Third Party proceedings were an abuse of the process of the Court in the sense that these Third Party proceedings were founded on an attempted collateral attack on a finding of the 2nd defendant's guilt by a Magistrates' Court as a court of competent jurisdiction.

5. The 3rd defendant was a tenant of the 3rd floor of a godown building in which the deceased was killed. Serving the godown building was a cargo hoist which "was situated outside the building at roof level and was supported by a steel joist projecting over the yard". The cargo hoist was available for use by all the tenants on the 1st, 2nd and 3rd floors. The cargo hoist was to be manipulated by a cable hanging down the side of the building operational at each floor level. For all practical purposes, cargo intake for any floor would be maneuvred by operating the control on the same floor level, but evidently it need not necessarily be so.

6. By the document whereby the 3rd floor tenancy was created in favour of the 3rd defendant by the 2nd defendant, the rent reserved by Clause 4 thereof was inclusive of the use of the cargo hoist. Clause 10 of this document made the 3rd defendant responsible for any breach of governmental regulations "by any person in their employ". In its capacity of a permitted user of the cargo hoist, the 3rd defendant must shoulder vicarious liability for the negligence of their servants and agents. Clause 10 of the document would appear to have extended responsibility to any breach of governmental regulations by an employee, who might or might not be a servant or agent of the tenant, but it did not seem to have the effect of excluding or diminishing the 3rd defendant's own and vicarious liability in the use of the appliance. One of the central issues was whether as a lessee of the 3rd floor premises, the 3rd defendant was also a lessee or hirer of the cargo hoist or at best a mere licensee thereof if not in fact only a person entitlement to a facility provided under that said document, but the personal and vicarious liability of a permitted user is appreciably distinct from that of a hirer or lessee.

7. The personal representatives of the deceased sue the 1st, 2nd and 3rd defendants for, inter alia, breaches of statutory duty imposed by Regulations 6, 11, 12, 15A and 18(1) (ea) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap.59. Regulation 6 enjoins the owner to cause the appliance to be thoroughly examined by a competent examiner at least once every twelve months. Under Regulation 11, the owner is required to ensure that the appliance be not used without marking thereon the safe working load. Regulation 12 calls upon the owner to ensure that the appliance not be used beyond the maximum safe working load. Regulation 15A imposes a duty on the owner to ensure that the appliance be operated only by a trained and competent operator or under his supervision. Regulation 18(1) (ea) requires the owner to cause any chain, rope or lifting gear to be inspected by a competent person before use on each occasion.

8. I come back to the first objection of the 3rd defendant as Third Party. The cargo hoist was affixed to a structure outside the godown building, and at no time did the 3rd defendant seem to be in possession of it. What was available to the 3rd defendant was the cable of control hanging down the side of the godown building and the service provided. On the general proposition that a bailment is a delivery of a personal chattel on trust, it was contended that there was at no time any delivery of possession of the cargo hoist in this case to create a hire, that only cargo intake facility was provided, and that the cargo hoist was never on hire or on lease to any of the tenants of the premises, including the 3rd defendant. Hence, so argued counsel, the 3rd defendant was not a hirer or a lessee of the cargo hoist. Counsel's argument was formidable, and for these proceedings I was prepared to assume that the 3rd defendant was not a hirer or lessee of the cargo hoist.

9. The definition of the word "owner" in the Regulations hereinbefore mentioned includes "the lessee or hirer thereof, and any overseer, foreman, agent or person in charge or having the control or management of" the appliance.

10. Prior to these proceedings, the 2nd defendant was charged with and convicted of an offence under Regulation 18(1) (ea) before a magistrate. According to the evidence of the Engineer Manager of the 2nd defendant, Mr. Chu, the cargo hoist was operated at the time of the accident by "the tenant" obviously meaning the 3rd defendant, but the person in actual control was a Mr. Ho, an employee of the 1st defendant. It transpired, from the evidence before the magistrate, that Mr. Ho, then in charge of a delivery team from the 1st defendant, entered the third floor premises of the 3rd defendant and therein operated the cable control to work the cargo hoist. It would be at least arguable that Mr. Ho, though an employee of the 1st defendant, must have been admitted by the 3rd defendant into its 3rd floor leased premises for operating the cargo hoist therein as or in the capacity of its authorized agent.

11. Mr. Lane, counsel for the 3rd defendant, was conscious of the difficulties arising from the permissible interpretation of Mr. Chu's evidence and the extensive definition of the word "owner" for these Regulations. And it was readily acknowledged that in Mr. Ho's possible capacity of an agent of the 3rd defendant in the operation of the cargo hoist, the 3rd defendant as permitted user "in charge or having the control of" it through an agent was an "owner" and as such could arguably be liable for the negligent use by the said Mr. Ho. However, counsel submitted that the 2nd defendant's claim against the 3rd defendant was wholly founded on the premise that the 3rd defendant was an alleged hirer or lessee of the cargo hoist. It was contended that as the known circumstances did not support such an allegation of the 3rd defendant being a hirer or lessee of the cargo hoist, the 2nd defendant must not be allowed to pursue any claim against the 3rd defendant as an alleged permitted user or person having charge or control, by itself or its authorized agent, of the appliance. The scope of Mr. Lane's argument was more comprehensive: It was urged that the purposes of these regulations called for observance by the beneficial owner, the lessee or the hirer of the appliance to the exclusion of all others. It was submitted that forced compliance with any of these regulations by any other category in the definition "owner" would work injustice and bring about nonsensical results, a course hardly contemplated by the Legislature. But it was accepted for the purposes of this appeal that the extensive definition of "owner" might arguably demand compliance of these regulations by the other categories. Mr. Lane conceded that this limb of his submission would stand or fall on the contended narrow scope of the 2nd defendant's pleading in its Statement of Claim against the Third Party i.e. on the sole premise that the 3rd defendant was an alleged hirer or lessee of the cargo hoist.

12. Paragraph 4 of the Statement of Claim against the Third Party alleged breaches of statutory duty under these Regulations 6, 11, 12, 15A and 18(1) (ea). It was specifically pleaded in that paragraph that the 3rd defendant and its agents or servants were so in breach, and the facts and matters relied upon by the plaintiff against the 3rd defendant in the action proper were seriatim repeated. In the plaintiff's Statement of Claim in the action proper, an allegation was made against the 3rd defendant and its agents or servants for breaches of statutory duty under these same Regulations. The relationship between the plaintiff and the 3rd defendant was never one of lessee or hirer. It is plain that the plaintiff's allegation in the action proper against the 3rd defendant was in its capacity as a user, and that basic allegation together with "the facts and matters" pleaded were reiterated in paragraph 4 of the Statement of Claim against the Third Party. It is untenable, in my judgment, that the Statement of Claim against the Third Party was limited to a cause or causes of action arising solely out of the 3rd defendant's alleged capacity of hirer or lessee. It is abundantly clear, in my view, that the 2nd defendant had raised in its Statement of Claim against the Third Party, inter alia, an allegation of negligence arising out of breaches of statutory duty as a user or person in charge or having the control of the cargo hoist. The first objection of the 3rd defendant must therefore fail.

13. I turn, finally, to the second objection of the 3rd defendant to the Statement of Claim against the Third Party in these Third Party proceedings. It was principally sought to be supported by Hunter v. the Chief Constable of the West Midlands Police⁽¹⁾_, a decision of the House of Lords, where it was decided that a finding beyond reasonable doubt in a criminal court of six accused not having been assaulted by police officers could not be collaterally attacked in a subsequent civil claim for damages for assault against these police officers by the same six accused. The House of Lords unhesitatingly considered it an abuse of the process of the court.

14. It was contended on behalf of the 3rd defendant that by these Third Party proceedings, the 2nd defendant was likewise guilty of the same abuse of court process.

15. The 2nd defendant was convicted only under Regulation 18(1) (ea), and Mr. Faulkner, counsel for the 2nd defendant, was perfectly proper to draw my immediate attention to the consequence that the 2nd defendant could not be accused of any abuse of the process of the court in the charges of negligence under the other Regulations. That aside, Mr. Lane, having submitted on the imperfections of these Regulations in conjunction with the definition of "owner", urged upon me that at any given time there could be only one offender in an offence for each of these said Regulations. It was submitted that since the 2nd defendant was found guilty in a court of competent jurisdiction, it would not be open to the 2nd defendant to allege that the very same offence was committed by another offender i.e. the 3rd defendant. These Regulations seem to be regulations which seek to impose strict liability on all the persons who are connected with the maintenance and use of the appliance. In my view, it is plainly arguable that each of these Regulations, even Regulation 6 which requires an annual examination, may attach criminal culpability to more offenders than one in a single committed offence. Apart from the limited stigma of the 2nd defendant's conviction before the learned magistrate under Regulation 18(1)(ea), it is highly arguable that the principle in Hunter case ⁽¹⁾ is inapplicable. The arguments raised in these Third Party proceedings were that under these Regulations the 3rd defendant and its servants or agents were at least equally in breach of same statutory duty as was the 2nd defendant, if that be established. In my view, it is arguable that an offence under each of these regulations may be jointly and severally committed at the same time and for the same breach. The second contention of the 3rd defendant must therefore also fail.

16. The exercise of the power to strike out pleadings should be exercised only in clear and obvious cases. If, indeed, there is any point of law "which requires serious discussion, an objection should be taken on the pleadings, and the points set down for arguments." It has also been observed that striking out under the Order 18 rule 19 should only be resorted to "where the case is clear beyond doubt". The Third Party Notice and the Statement of Claim against the Third Party cannot be said to fall into this category.

17. For all these reasons the appeal is allowed, the Third Party Notice and the Statement of Claim against the Third Party be reinstated and costs before the learned Master and in this appeal be costs of the 2nd defendant as plaintiff in the Third Party proceedings against the 3rd defendant as defendant in the Third Party proceedings.

(1) [1981] 3 W.L.R. 906

Representation:

Mr. William Lane instructed by Messrs. Deacons for the Third Party/Respondent.

Mr. Faulkner instructed by Messrs. Johnson, Stokes & Master for the 2nd Defendant/Appellant.