Wan Hung Choi v. Cheng Kam Shui and Others

HCA009450/1983

1983, No. A9450

HEADNOTE

Metal bars fell from the top of a building in the course of the construction of a chimney - Negligence - Inherently dangerous operation carried out on building adjoining the highway causing injury to a person lawfully thereon - whether employer of independent contractor liable.

1983, No. A9450

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Wong in Court

Date of Hearing: 12 - 15 March and 23 May 1990

Date of Delivery of Judgment: 10 September 1990

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J U D G M E N T

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1. This action was heard before me on 12th, 13th, 14th and 15th March 1990. At the conclusion of evidence, Counsel for all the parties indicated that they would give written submissions instead of oral addresses. They did so. I told them that I would take time to read and consider their submissions and deliver judgment upon my return from judicial duties overseas.

Application to amend pleadings after close of case but before judgment

2. The Court reconvened on 23rd May 1990 at the request of Counsel for the plaintiff to hear an application by him to re-re-re-amend the pleadings which he submitted arose out of evidence given by Mr. Woo Kwong-sun on behalf of the 5th defendant. Mr. Remedios conceded that the application was made very late but argued that it was vital to the case of the plaintiff. It was his contention that the plaintiff, without the disclosure of Mr. Woo, had no means whatsoever of knowing that the roof was part of the premises under the control of the 4th defendant from which the metal bars fell. He urged me to grant the application in the interest of justice. It was not disputed that the Court had jurisdiction to entertain the application and grant leave even at this very late stage. The amendment sought was to add the word 'roof' to paragraphs 1, 2 and 4 of the Statement of Claim. In support of his argument, Mr. Remedios relied heavily on the decision in Loutfi v. C. Czarnikow Ltd. 2 Q.B.D. 823. The headnote reads:

"Unless there is very good ground and strong justification for so doing, the court should be reluctant to grant amendments of the pleadings after the close of the case but before judgment, even though it has been indicated in the course of the hearing that some amendment may be asked for.

Such an amendment may be allowed: (i) where the matter involved has been raised in the course of the trial and counsel has addressed the court on it, since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties, (ii) where the fact the subject of the amendment has been referred to by counsel in opening and evidence about it has been given, since there has been sufficient indication in the course of the trial and in the evidence that it is a matter in controversy and the amendment will enable the court to arrive at the view if it thinks fit, that what is pleaded is a correct interpretation of the facts.

Where leave to amend is given, the other party may be allowed to re-call a witness and/or amend his pleadings, and it will be the obligation of the party asking for the original amendment to file the proper amendments, incorporating those of the other party, with the court before judgment."

3. I reject the arguments advanced by Mr. Wong for the 4th defendant that there was any prejudice to the defendants and the amendment was a departure of the case of the plaintiff amounting to a new cause of action.

4. This is clearly a case falling within the ambit of Loutfi's case and one which I ought to exercise my discretion in favour of the plaintiff. The application was accordingly allowed in the terms asked for. Consequent upon my ruling, the defendants were given leave to recall witnesses and to amend their pleadings. None of the defendants wished to recall any witness. The 1st defendant and the 4th defendant have now filed their amended defences but the 5th defendant and the 2nd defendant who was not legally represented chose not to do so.

The Claim

5. The plaintiff's claim is for damages for injuries caused by the fall of a metal bar or metal bars from the roof of a building owned by the 4th defendant and occupied by the 5th defendant. I am asked to decide on liability only.

6. The facts relied upon by the plaintiff are set out in the re-re-re-amended Statement of Claim in paragraphs 1 to 5 inclusive.

7. Paragraph 1 pleads that at all material times the 4th defendant was the owner and/or occupier of Golden Castle Industrial Building at Kin Fat Lane, Tuen Mun, New Terriroties. The 5th defendant was the occupier of the 1st and/or 2nd floors and/or roof of that building.

8. Paragraph 1A which was added after the application to re-re-re amend was granted states that alternatively at the material times the 4th defendant permitted the 5th Defendant to use the roof of the said building for the purpose of constructing and placing thereon a metal frame.

9. Paragraph 2 says that on 9th August, 1990, the 1st defendant and the 2nd defendant acting as servants and/or agents of the 3rd defendant were erecting a chimney up the side of the Golden Castle Industrial Building for and on behalf of the 4th and/or 5th defendants. In the course of the erection of the chimney the 1st defendant and the 2nd defendant had to make a supporting frame on the roof of the building, and/or use metal bars in the course of the erection of the chimney. In the course of such work the 1st defendant and/or the 2nd defendant dropped and/or let slip one or more iron bars onto the cab of a motor lorry CE8481 which was being lawfully driven by the plaintiff in Kin Fat Lane, injuring the plaintiff. The work was inherently dangerous to persons using the highway.

10. Paragraph 3 pleads that the accident was caused by the negligence of the 1st defendant and/or the 2nd defendant acting in the course of their employment as servants or agents of the 3rd defendant. It goes on to set out the particulars of such negligence.

11. Paragraph 4 pleads that further or alternatively, the 4th defendant and/or the 5th defendant as occupiers of the 1st and/or 2nd floors and/or the roof of Golden Castle Industrial Building wrongfully permitted an iron bar or bars to drop from the building in breach of their duty of care.

12. Paragraph 5 states that at the trial of the action, the plaintiff will rely upon the conviction of the 1st defendant and the 2nd defendant at Fanling Magistrates Court on 4th September 1980 upon their own pleas to charges under section 4B(1) and 4B(2) respectively of the Summary Offences Ordinance, Cap. 228. They were each fined $2,000.

Interlocutory judgment against 3rd defendant

13. Interlocutory judgment has been entered against the 3rd defendant in default of appearance.

The Defence

14. The 1st defendant and the 2nd defendant admitted that they were working with two other workers in the erection of a metal supporting frame under the employment of the 3rd defendant at the time and place in question. They said that at the material time, they were standing on the top of the metal frame, about 60 feet high and two other workers were pulling two iron bars up to the top of the frame using a pulley and the iron bars were tied to a rope in the middle and at one end. When the two iron bars were pulled up to about 50 feet high and about 10 feet below the 1st defendant and the 2nd defendant the two iron bars fell off. The first and 2nd defendants said that their pleas of guilty had no relevance to the present action and they only pleaded guilty to save time and inconvenience and that they did not fully appreciate the contents of the brief facts of the case. They denied that they were negligent.

15. The 4th defendant admitted to be the owner of the building but denied being the occupier and further denied that the chimney was erected for and/or on their behalf or that the 3rd defendant was engaged or employed by them. It was however admitted that on or about 9th August 1980 the plaintiff was involved in an accident and other than that the 4th defendant had no knowledge of the matter whatsoever. Alternatively if the 4th defendant was held to be the occupier, they only owed a common duty of care to a visitor to the said premises and that the plaintiff was never a visitor within the meaning of the Occupiers' Liability Ordinance. The 4th defendant also denied that they owed any other duty to the plaintiff or that they themselves, or through their servants and/or agents dropped any iron bar or bars from the building causing injuries to the plaintiff.

16. The 5th defendant admitted that the 4th defendant was the registered owner of the building and in mid 1980 the 5th defendant was granted permission by the 4th defendant to enter the first and second floors and a part of the 3rd floor to carry out certain decoration work. The 5th defendant took possession of the premises and paid rent to the 4th defendant from September 1980.

17. The 5th defendant denied to be the occupier of the first and/or second floors of the building.

18. On or about the 19th June 1980 the 5th defendant entered into an agreement with the 3rd defendant to build a chimney up the side of the building and it was admitted that in the course of the erection of the chimney a supporting frame had to be made and metal bars used. The remainder of paragraph 2 of the Statement of Claim was otherwise denied.

19. Paragraphs 3, 4, 7 and 8 of the Statement of Claim were also denied.

20. Alternatively the 5th defendant said that the accident was due to the faulty execution of the work of construction by the 3rd defendant, an independent contractor who the 5th defendant had reason to believe to be competent.

Evidence

21. This consists of testimoney from the plaintiff, the 1st and 2nd defendants and Mr. Woo Kwong sun on behalf or the 5th defendant.

22. Wan Hung choi, the plaintiff testified that he was employed as a container lorry driver in August 1980. At about 11 a.m. on 9th August 1980 he was driving a container lorry CE8481 to Kin Fat Lane in Tuen Mun and he parked his vehicle just in front of Albion Industrial Building in order to pick up some goods for loading onto the lorry from Wah Wan Industrial Building. The position where the container lorry was parked was directly opposite the Golden Castle Industrial Building, which was 12 storey high and situated next to Wah Wan Industrial Building.

23. After completing the loading at about 1 p.m. he boarded the vehicle and started the engine and when he was about to drive away he heard a loud sound. He felt very painful and had difficulty in breathing. He put his hand on his right shoulder and found that he had suffered injuries. He was then in great pain and in a state of drownsiness. He got out of the vehicle and walked a few paces before he fell down to the ground and fainted. When he subsequently regained consciousness he was in Princess Margaret Hospital.

24. The 1st defendant gave evidence that on 9th August 1980 he was working as a causal worker for the 3rd defendant in the construction of a chimney at Golden Castle Industrial Building. He had been a construction worker for about 2 years.

25. At about noon on that day he was working with the 2nd defendant and two other workers in the erection of the chimney. The framework of the chimney was about 64 feet high and 80 feet wide and on the 9th August the construction work was near completion. In order to erect the metal frame the four workers had to work together to hoist metal bars from the roof. During the hoisting operation, two workers were standing on the roof and another two on top of the metal frame. The metal bars were tied to a rope and were lifted by a pulley and when the bars reached the top of the frame the two workers on top there would take them off the rope and welded them to the frame.

26. He and the 2nd defendant were at the top of the frame at the time the two bars dropped and the two other workers were on the roof. He actually saw two metal bars fall and one of them fell to the street hitting a lorry.

27. Under cross-examination by Mr. Remedios, he agreed that the method used to hoist metal bars were very unsafe and dangerous.

28. Both he and the 2nd defendant were later charged with the offence of allowing iron bars to fall and both pleaded guilty on 4th September. He said that he pleaded guilty to save time and trouble of having to go to court again. He admitted the brief facts in the summary because he did not hear clearly the part about the part he and the 2nd defendant played in the hoisting of the metal bars.

29. The 2nd defendant also gave evidence. In his evidence-in-chief, he said that he only wanted to add something to the evidence given by the 1st defendant. He said that there was a scaffold surrounding the metal frame and it was built from the ground right up to the top. The other matter he wished to add was that there were two signboards at the building warning people that work was carried out from height. He denied being the person who tied the bars to the rope. He had 9 years experience as an iron worker and he was the most experienced worker among the four. He was the leader of the team.

30. It would be useful for me at this stage to refer to the brief facts of the case to which the 1st and 2nd defendants admitted at the time they pleaded guilty before the magistrate. The facts which were read and interpreted to the two defendants were:

"At about 1420 hours on 9.8.80, on receiving the call from NTC that an accident 'Object dropped from height' had occurred at Kam Po Building, Kin Ming Street, Tuen Mun, police car 15 at once rushed to scene.

On arrival at scene, a C/M named Wan Hung-choi (later known as the victim) was found to have injured by a falling iron bar from the roof top of Kam Po Building. The victim was at once sent to Tuen Mun Clinic where he was referred to PMH for further treatment. The victim has been admitted at Ward No. D5 and not yet been discharged.

Police investigation revealed that D1, a worker of the decoration work of Kam Po Building, and D2, the contractor of the extension work of the chimney of the said building, were working at the roof-top of the building with two other workers. At about 1415 hours the same day, whilst the iron bar was being pulled up to the top of the framework of the chimney by the defendants, suddenly the iron bar fell down and inserted into the driving cab of a container lorry, in which was sitting a driver, the victim, who was thus hurt in such accident. At that moment, the defendants were so afraid that they fled.

Later, they were located and after enquiries at Tuen Mun Police Station, both defendants were formally charged with the above offence respectively."

31. Kam Po Building is Golden Castle Industrial Building and Kin Ming Street should be Kin Fat Lane.

32. Mr. Woo Kwong-sun, a director, shareholder and factory manager of the 5th defendant company was called to give evidence. He has and had at the time of the accident an active part in the running of the business of the company in fabric furnishings. The 5th defendant is and was at the material times a subsidiary of Golden Hill Land Development Ltd., a public company which is also the parent company of the Golden Pegasus Investment Limited, the 4th defendant.

33. According to Mr. Woo, the 5th defendant occupied the first, second, third floors and part of the ground floor of Golden Castle Industrial Building which the 5th defendant has rented from the 4th defendant. The factory premises of the 5th defendant was in Kwai Chung before moving to Golden Castle Industrial Building and it had a chimney, shorter in height, built and maintained by the 3rd defendant. He was satisfied with the construction and maintenance work of the chimney done by the 3rd defendant for the old factory premises and this gave him no reason to doubt that the 3rd defendant was competent when the 5th defendant engaged the 3rd defendant to build the present chimney.

34. In the course of the construction of the chimney at Golden Castle Industrial Building, he went up to the roof from time to time to see now work was done. Sometimes he saw Lai Hing, the 3rd defendant there but most of the time he only saw his workers. Mr. Woo Kam, his father, who was then in charge of the business of the 5th defendant also went up to the roof to inspect the construction. Mr. Woo was not present when the accident occurred.

35. Under cross-examination by Mr. Wong for the 4th defendant, Mr. Woo said that after the 4th defendant had let the premises to the 5th defendant, they were allowed to use the premises in the way they wanted. The 5th defendant did not require the approval of the 4th defendant to employ the contractor to build the chimney nor the 4th defendant had anything to do with the negotiation of the contract or payment.

36. Mr. Woo agreed with Mr. Remedios that the roof was in the possession of the 4th defendant but the 5th defendant had the permission from the 4th defendant to use it to construct the chimney. He further agreed that he knew hoisting the metal bars was a very dangerous operation if not done properly and that it was reasonable to say that it should be ensured that method used to hoist the bars was a safe and secured method.

Submissions by Counsel and findings on law and fact

37. It was submitted by Mr. Remedios on behalf of the plaintiff that all the defendants were liable. The 1st and 2nd defendants were negligent on account both of their evidence given during the trial and their pleas of guilty before the magistrate to charges of allowing an object to fall from a building.

38. In regard to the 5th defendant, it was submitted that the 5th defendant ought to have taken precautions to ensure that the work which was being carried out by its independent contractor was done safely so as not to cause injury to persons lawfully using the highway. The work was inherently dangerous as admitted by all witnesses.

39. Mr. Remedios accepted that generally an employer is not answerable for the default of any act done by a competent independent contractor. But he relied on the exceptions referred to in Charlesworth on Negligence, 7th edition at paragraph 2-139 which states:

"The employer, of course, is liable for his own act or neglect. It follows that, if he contracts with an independent contractor to do some act, which he is not entitled to do, or to perform some duty, which is thrown upon him to discharge, whether by statute or common law, he will be liable for the negligence of the contractor in the way in which he has performed the act or the duty. Salmon J. expressed this view thus: 'There are, of course, cases where, by virtue of a contract or by the operation of law, an obligation may be imposed on a man to do an act or to ensure that it is done and done carefully. In such cases the defendant cannot shelter behind any independent contractor, whom he may have employed. If he breaches the obligation he is liable not in negligence, but in contract .... or by reason of some breach of duty other then a duty to take care ....' In these instances, the contractor may be regarded as the agent of the employer to perform the primary duty of the employer himself, whose liability cannot be vicarious, properly so called. Thus, the employer is liable, not because he is liable for his contractor's negligence, but because he has himself broken his own duty of care. This principle is conveniently summarised by Denning L.J. in these words: "I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services. Lord Blackburn laid that down on many occasions, see Tarry v. Ashton; Dalton v. Angus, and Hughes v. Percival, and so have other great judges." Even so, in these cases, the employer is not liable for the casual, or collateral negligence of the contractor or his servants. However, if he knew or ought to have known of the existence of a danger, created by his independent contractor, an employer would become liable."

40. Mr. Remedios submitted that one of the cases in which a duty is thrown by law upon the employer of an independent contractor is when the employer employs the independent contractor to carry out work either upon or adjoining the highway which work is likely to involve danger to persons using the highway. In this case, the duty of care remains with the employer: Penny v. Wimbledon U.D.C. [1895-9] All E.R., the judgment of A.L. Smith L.J. at pages 204 to 207. He also referred to the judgment of Blair-Kerr J. in Yu Yuk Fung v. Pui Kee Iron Works and others [1970] H.K.L.R. page 73.

41. Mr. Remedios argued that the work which the 5th defendant employed the 3rd defendant to do, that is the hoisting of heavy iron bars each weighing 20 catties or 25 pounds and measuring 9 feet long for the purpose of constructing the metal frame was an inherently dangerous operation, the 5th defendant is not entitled to rely on the general principle that the employer of an independent contractor is not liable for the negligence of the independent contractor or his servants while carrying out the work contracted.

42. The case against the 4th defendant was founded on nuisance. In this connection, Mr. Remedios relied on some passages from Woodfall on Landlord and Tenant and the 4th edition of Halsbury's Laws of England, Vo. 34. He also cited the decisions in White v. Jameson [1874] L.R. 18 Eq. 303 and Tetley v. Chitty [1986] 1 All E.R. 671.

43. The arguments advanced by Mr. Tse on behalf of the 1st defendant were based purely on facts and Mr. Tse did not refer to any cases. Briefly and generally speaking, what he was saying was that it had not been proved that the 1st defendant was one of the workers who pulled the iron bars up and that the 1st defendant pleaded guilty to save time and inconvenience and in ignorance of the alleged facts against him. The plea of guilty should not therefore be given any importance.

44. The 2nd defendant made no submission, either written or oral.

45. For the 4th defendant, it was argued by Mr. Wong that the 4th defendant was sued because the 4th defendant was the owner of the building and there was no evidence whatsoever that the 4th defendant was negligent. The 4th defendant did not employ anyone to do the work or authorised the work to be carried out. Neither negligence nor nuisance was pleaded against his client. On the aspect of pleading, he drew my attention to paragraph 18/7/1 at page 268 of the white Book and the decision in Farrell v. Secretary of State for Defence [1980] 1 WLR 172 referred therein. He contended that since the 4th defendant was not the employer of the independent contractor, Yu Yuk-fung v Pui Kee Ironworks had no application to his client.

46. On nuisance he submitted that private nuisance involved the unlawful interference with a person's use or enjoyment of land, or some right over or in connection with it. He relied on Winfield & Jolowwicz on Tort, 13th edition at page 378. He referred to a passage of the judgment of Devlin J. in Southport Corp. v. Esso Petroleum Co. [1953] 3 WLR 773 at page 776:

"It is clear that to give a cause of action for private nuisance the matter complained of must affect the property of the plaintiffs."

Mr. Wong also pointed out that the authorities cited by Mr. Remedios on this point involved the interference with the enjoyment and use of land and therefore irrelevant.

47. Mr. Wong further submitted that if public nuisance was relied upon by the plaintiff, it was firstly not pleaded and moreover in order to maintain an action for public nuisance, the plaintiff had to show that the nuisance was in fact a 'public' one. There must be evidence that the number of persons affected was sufficiently large to attract the description of 'public' to the nuisance. He submitted that there was no such evidence. Instances of public nuisance at common law included such diverse things as carrying on an offensive trade, exposing in the public streets a person suffering from an infectious disease, selling food unfit for human consumption or to allow a house near a highway to be ruinous. All these instances were acts which would affect the reasonable comfort and convenience of the neighbourhood. They were acts which were widespread and continuous in nature. He referred to the decision in Benjamin v. Storr [1874] LR 9 CP400, in which Brett J. said that to amount to nuisance, the injury must be of a substantial character, not fleeting or evanescent. Mr. Wong finally submitted that an isolated act of dropping a metal bar may be an act of negligence, but it certainly is not, by itself, public nuisance.

48. Miss Kwan for the 5th defendant tried to argue her case on two limbs. Firstly whether the 5th defendant had discharged its duty to the plaintiff to take reasonable care. Secondly whether the 5th defendant owed an additional duty to the plaintiff to see that care was taken by the 3rd defendant. This classification is, in my judgment, misleading. There is no vacarious liability as such for the negligence of an independent contractor owed by the person who employs the independent contractor as it is clear from the authorities. In this instance, the liability of the employer of the independent contractor is separate from and independent of the contract which arises by virtue of the operation of law to impose an obligation on a man to do an act or to ensure that the act is done and done carefully: per Salmon J. in Green v. Fibregrass Ltd. [1958] 2 All E.R. at page 525. It was the argument of Miss Kwan that the 5th defendant had done what the 5th defendant could reasonably have done. The plan was prepared by an architect and the construction of the chimney was entrusted to an apparently competent contractor in accordance with the plan. The 3rd defendant had done similar work for the 5th defendant some years ago and that work had been found to be satisfactory. What more could the 5th defendant have done in the circumstances:

49. Miss Kwan sought to distinguish the present case from Yu Yuk-fung and tried to persuade me to follow Salsbury v. Woodland [1970] 1 Q.B. 324. The facts in Salsbury v. Woodland from the headnote are:

"The first defendant, the occupier of a house, employed the second defendant, an apparently competent tree felling contractor, to remove a large nawthorn tree standing in the front garden of the house adjoining the highway. Owing to the negligent manner in which the second defendant removed the tree it fouled and broke a pair of telephone wires running across the front garden, as a result of which the wires fell in the road, causing an obstruction. The plaintiff, who was watching out of curiosity, went into the road to remove the wires and so obviate the hazard created by them when the third defendant approached in his car driving at a fast speed and accelerating. The plaintiff, realising that a collision between the third defendants' car and the wires was inevitable, threw himself onto the grass verge adjoining the road to avoid injury by the wires but his fall caused a tumour in his spine to bleed and the effect of that upon his adjacent spinal chord was to cause paralysis.

In an action by the plaintiff against the three defendants for damages judgment was obtained against the second defendant in default of defence. The judge held that the first defendant was liable for the negligence of the second defendant, and he found, after having had a private view of the scene of the accident, that the third defendant was negligent either in deliberately running into the wires when he saw them or in failing to see them and take evasive action when he should have done. He awarded the plaintiff $6,500 damages against all three defendants. The judge held his private view after the hearing had been concluded and in the absence of the parties, thinking that the parties had agreed to that course if he so desired. His finding of negligence against the third defendant was largely influenced by the impression he formed on the view.

The first and the third defendants appealed and in allowing the appeal it was held, inter alia, that the first defendant was not liable for the negligence of the second defendant, since the first defendant fell within the general rule that an employer of an independent contractor was not responsible for his contractor's acts or omissions and did not come within the exceptions to that rule; for the removal of the tree was not work of an inherently dangerous nature nor was it work carried out on the highway and there was no exception in respect of work carried out near to a highway which might cause injury to persons on the highway."

In that case, the Court of Appeal took the view that the removal of trees was not work of an inherently dangerous nature that would bring the case within the exceptions of the general principle that an employer of an independent contractor was responsible for the acts or omissions of the latter.

50. Yu Yuk Fung v. Pui Kee Iron works (a firm), [1970] HKLR 73 was an action for negligence brought by the widow of the deceased. The headnote reads:

"The deceased was struck on the head by a piece of old pipe, while walking along the street pavement, and he died from his injuries shortly afterwards.

The pipe was part of the flushing system in the premises of the 6th defendant. The system was being replaced by the 1st defendants, who were plumbing contractors engaged by the 6th defendant's husband. The 2nd, 3rd, 4th and 5th defendants were workmen employed by the 1st defendants. They had pulled the pipe up into the air, when a piece broke off and struck the deceased.

The judge found that the 2nd, 3rd, 4th and 5th defendants were negligent in the course of their employment and gave judgment against them and against the 1st defendants.

The 1st defendants were independent contractors of the 6th defendant. Neither she nor the other defendants took any precautions to prevent accidents occurring.

It was argued for the plaintiff that the work was inherently dangerous to persons using the highway, and that the 6th defendant was liable for the negligence of the 1st defendants and their workmen. For the 6th defendant it was argued that the work was not a dangerous operation and that she was not obliged to take precautions."

51. It was held that the 6th defendant should have realized that the pipe might be rusty and liable to break, and that pulling it up was an operation likely to cause danger to persons using the adjoining highway.

52. At page 81, Blair-Kerr J. had this to say:

"It should have been obvious to these workmen that this pipe was old and rusty and liable to break. In my view they never gave a thought to the safety of pedestrians walking along Pak Kung Street, and they were, one and all clearly negligent. They were negligent in the course of their employment by the first defendants, and unquestionably, the plaintiff must be given judgment against the first, second, third, fourth and fifth defendants.

As regards the sixth defendant, the facts are really not in issue. She left the matter entirely to her husband who in turn left the matter entirely to the first defendants. But the sixth defendant's husband knew from the tender that new pipes were to be installed in the well, and it is reasonable to assume that, if he had thought about the matter at all, he would have realised that the whole operation involved the removal of the old pipe from the well. It was not suggested that he knew how deep the well was. He took no steps to find out. As I have said, he simply left the first defendants to get on with the job and he took no precautions of any kind against injury to pedestrians in Pak Kung Street. The plaintiff says that the sixth defendant ought to have done so. She relies upon the following passage from the judgment of Bruce, J. in Penny v. The Wimbledon Urban District Council and IIes which was approved by A.L. Smith L.J. on appeal:-

".... when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that, if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor."

53. I would respectfully agree with the findings and observations of Blair Kerr J. Here we have a virtually identical situation. It should have been obvious to anyone that the rope, in the course of being lifted up might become loosened or broken and adopting the same approach as Blair Kerr, J. did I would say that the 1st, 2nd and 5th defendants never gave any thought to the safety of pedestrians in the street. The 1st and 2nd defendants did not impress me as reliable witnesses and I find, on balance of probabilities, that they were the workers who were responsible for tying and pulling up the metal bars and they were therefore negligent. I reject their evidence that they pleaded guilty before the magistrate in order to save time and inconvenience and in ignorance of the true meaning of the brief facts. I am satisfied that they pleaded guilty out of their conscious realization of guilt and what were contained in the brief facts were fully understood by them. Both agreed that the hoisting of the metal bars was a dangerous operation and that the way they did it was unsafe.

54. The evidence against the 5th defendant is even stronger than the evidence against the 6th defendant in Yu Yuk-fung where the 6th defendant left everything to her husband who in turn left it to the independent contractor. Again Mr. Wu agreed that he knew that the operation was dangerous and metal bars might fall into the street and cause injuries to passers-by Mr. Wu Kwong sun and his father Mr. Wu Kam went up to the roof regularly to inspect the work and see how it was carried out. Mr. Wo Kwong-sun said in evidence that most of the time he did not see the 3rd defendant and this should have put him on guard of the lack or relaxation of supervision of a dangerous operation.

55. I find on balance of probabilities on the evidence before me that the hoisting of two metal bars of 9 feet long each weighing a total of 50 pounds in the circumstances and in the way that it was done was an inherently dangerous operation.

56. In relation to the 4th defendant, I accept the submission of Mr. Wong that the 4th defendant neither employed the 3rd defendant nor authorized anyone to construct the chimney. The 4th defendant could not be held liable on the ground of private nuisance because this involved the interference with the enjoyment and use of land. I am also not satisfied that what happened here amounts to public nuisance although the category of instances of public nuisance is not closed.

Conclusion

57. In conclusion, I find the 1st, 2nd and 5th defendants liable to the plaintiff in damages to be assessed. I find the 4th defendant not liable.

Representation:

Mr. Leo Remedios instructed by M/s Chan & Kong for Plaintiff

Mr. Joseph W.T. Tse instructed by Chan & Chuk for 1st Defendant

2nd Defendant Chan Chun Hung in person

Mr. Horace Wong instructed by M/s Oscar Lai & Ho for 4th Defendant

Miss Susan Kwan instructed by M/s Yung, Yu Yuen & Co. for 5th Defendant