Ko Man Wo v. Woon Lee Construction Co. Ltd. and Others

HCPI001312/1996

HCPI 1312/1996 & 1291/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NOS.1312 OF 1996 & 1291 OF 1997

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Coram: Hon Pang J in Court

Dates of Hearing: 6 and 8 December 1999

Date of Judgment: 18 May 2000

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J U D G M E N T

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1. This is an action by the plaintiff, Ko Man Wo, against the three defendants for damages for personal injuries arising out of an accident which happened on 21 December 1994. The 1st defendant, Woon Lee Construction Co. Ltd, was the principal contractor of the construction site located adjacent to Hau Oi Estate Market, Tseung Kwan O, New Territories. The 2nd defendant, Paul Y.-ITC Transportation Ltd, was a sub-contractor of the 1st defendant. The 3rd defendant, Sun Kee Transportation Ltd, was a specialist sub-contractor in the field of transportation of building materials. At the time of the accident, the plaintiff was employed by the 3rd defendant as a lorry driver.

2. On 21 December 1994, the 2nd defendant instructed the 3rd defendant to attend at the construction site to load and convey a pre-cast reinforced concrete external wall panel to Yuen Long. The panel weighed about two tons. The plaintiff was accompanied by the proprietor of the 3rd defendant, one Mr Ho. For the panel to be loaded onto the lorry, it had first to be secured by a length of wire and the panel would then be hooked up and lifted onto the lorry by a mechanical crane. In the course of securing the panel, it toppled over and as a result the plaintiff suffered injuries to his right arm.

3. At the commencement of this trial, judgment was entered for the plaintiff against all defendants and damages were agreed at the sum of $1.6 million. It was also agreed among the defendants that the 2nd defendant would contribute $100,000 towards the judgment sum plus 10% of the plaintiff's cost. The only remaining issue before this court is that of the apportionment of the balance of $1.5 million between the 1st and 3rd defendants.

4. In order to resolve this issue, this court must decide whose act or omission had caused the panel to topple over.

5. At the trial, there was produced before the court a report by Mr Francis Wong, who is an expert in building engineering. According to him, the proper way to store similar concrete panels would be to let them rest on supporting frames made of steel channel sections. Properly placed, the panel should be resting on the ground and secured between a narrow channel created by the parallel metal supporting frames. In his report, Mr Wong concluded that the panel toppled because it had not been properly placed within the supporting channel frame. He attributed the faulty positioning of the panel to the 1st defendant. I note, however, from the report that Mr Wong had not visited the site in question before he compiled the report. He arrived at his conclusion by observing the manner in which other construction sites store similar wall panels and by interviewing the potential witnesses of this case. Having read through the contents of the report, I am not prepared to accept his conclusions and I feel that I am not able to rely on the contents of the report. Mr Wong's evidence and the report did not assist me in resolving the issue between the 1st and 3rd defendants.

6. The court also heard from Mr Leung Yat Sing, who was the assistant general foreman employed by the 1st defendant at the site. According to Mr Leung the wall panel in question was delivered by the 3rd defendant to the site and was put into position several days prior to the accident. Mr Leung inspected the panel and found that it was of sub-standard quality and he therefore refused to accept delivery. He then marked the panel and requested the 3rd defendant to remove it from the site. Mr Leung was adamant that the 1st defendant had left the handling of wall panels entirely to the 3rd defendant as they were engaged for the specific purpose of providing such service. According to Mr Leung, he did not notice the panel in question was incorrectly positioned.

7. In contrast to the evidence of Mr Leung, the proprietor of the 3rd defendant, Mr Ho, claimed that prior to the panel being loaded onto the lorry, it was resting on its own weight on the ground and was not secured between steel channels. I found his assertion to be surprising. If the panel was indeed standing precariously on its own weight, then it could have toppled by the effects of wind or simply by any person leaning on it. In any event Mr Ho's contention is contradicted by the plaintiff's account of the events. According to the plaintiff, he noticed Mr Ho climbing onto the panel unit and tried to fasten the hook of the crane onto the wire. If the panel was indeed standing on its own weight, this very action of Mr Ho would have been the very cause of toppling the panel. Despite Mr Ho's claim that he noticed the wall panel was merely resting on its own weight and without proper support, he took upon himself to assume the risk rather than to seek assistance from the 1st defendant and try to put the situation right. This must be inconsistent with his claim of an experienced building material transportation worker. Further, what he claimed to have told the defendant not to offer any assistance to him on at least three occasions when he was climbing up the wall panel does not lend credence.

8. There is undisputed evidence before the court that the plaintiff was not trained in handling the panel, nor was he properly instructed against the possible risk involved. The effect of this was such that the 3rd defendant did not provide a safe system for the plaintiff. Further, I do not accept Mr Ho's suggestion that the plaintiff leaped onto the panel from the lorry against his instructions. I find it to be the case that being the only other person present, Mr Ho had expected the plaintiff to give assistance to him in securing the wall panel to the hook and wire. Mr Ho's action of mounting the wall panel had effectively lowered the safety consciousness of the plaintiff. There is no evidence for me to find that the wall panel was not placed properly immediately before the lifting operation by the 3rd defendant. I find that it is the negligence of Mr Ho, the proprietor of the 3rd defendant, which was the primary cause of the accident.

9. I accept counsel for the 3rd defendant's submission that there is an absolute and non-delegable obligation on the 1st defendant under section 38A of the Construction Sites (Safety) Regulations to keep the place of work safe for any person who work on the site so far as is reasonably practicable. But given the apparent confidence of Mr Ho in tackling the job by himself, it is doubtful whether he would have alerted the 1st defendant and requested for assistance.

10. Based on the above findings and observation, I would make the following apportionment :

The 1st defendant is to be responsible for 10% and the 3rd defendant is to be responsible for 90% of the $1.5 million. In view of the fact that the 2nd defendant had assumed 10% of the plaintiff's cost with the agreement of the 1st and the 3rd defendants, the 3rd defendant would now be responsible for 90% of the balance of the plaintiff's cost and the 1st defendant for 10% of the same balance.

Representation:

Mr Robert Whitehead, instructed by Messrs Jewkes Chan & Partners, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs Tong & Tsoi, for the 1st Defendant

Miss Karen Cheung, instructed by Messrs Hampton, Winter & Glynn, for the 2nd Defendant

Mr Edward Shum, instructed by Messrs Tang & Lee, for the 3rd Defendant