Rainfield Design & Associates Ltd. v. Siu Chi Moon

FAMV000017/1999

FAMV No. 17 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 234 OF 1998)

_____________________

_____________________

Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 23 September 1999

Date of Determination: 23 September 1999

________________________

DETERMINATION

________________________

Mr Justice Ching PJ :

1. The applicant (defendant at trial) was engaged in the provision of lighting decorations and illuminations for the celebration of the 100th anniversary of the founding of the Hong Kong Electric Company Ltd. It appears to have had no expertise in the installation or dismantling of such works, for which purposes it relied entirely on sub-contractors to provide skilled workers and the necessary equipment. One of the sub-contractors it engaged was Easy Engineering Company, an electrical lighting company which had been set up by the plaintiff in or about 1986 in partnership with a colleague. The plaintiff was a trained and experienced electrician and his company had the necessary scaffolds of the mobile tower type, the vertical distance between the horizontal members of which varied but which at most was about three feet. The Judge at first instance found that

"The Plaintiff was an experienced tradesman well-used to erecting and working from tower scaffolding of this type."

On the occasion in question he did not use a ladder either to ascend to or descend from the top of the scaffolding and the applicant supplied none. The plaintiff had never used a ladder for these purposes. In the course of dismantling the installations he fell from the scaffolding while he was descending and suffered grievous injuries. In the Court of First Instance the Judge found against him. In the Court of Appeal the judgment was reversed although the plaintiff was found to have been 50% contributorily negligent. The applicant now seeks leave to appeal.

2. There is no doubt but that, in the circumstances, the Factories and Industrial Undertakings Ordinance, Cap. 59, and the Construction Sites (Safety) Regulations made thereunder applied. These imposed duties as to safety upon both the applicant, the contractor, and the plaintiff, the sub-contractor. In both of the Courts below it was said that the duties of the applicant were non-delegable and out of which it is not possible to contract. That may be true so far as the criminal law is concerned but we are dealing with a case of alleged civil liability. In both of the Courts below the plaintiff was treated as an employee rather than as an independent contractor. Again, having regard to the Hong Kong legislation, that may well be the correct approach under the criminal law but it may well not be so in a question of civil liability. The question of civil liability for a breach is not dealt with in the Ordinance or by the Statutes in England. Civil liability for a breach of statutory duty has been developed by the Courts in such cases as Manwaring v. Billington [1952] 2 AER 747, Ginty v. Belmont Building Supplies, Ltd. [1959] 1 AER 414, Ross v. Associated Portland Cement Manufacturers Ltd. [1964] 1 WLR 768 and Boyle v. Kodak Ltd. [1969] 1 WLR 661. Broadly, these decisions establish that there may be civil liability for a breach of statutory duty unless the accident is solely the fault of the employee, the burden of proof of which is upon the employer.

3. The Court of Appeal relied upon this line of cases and found that the applicant was liable to 50%. The difficulty is that none of these cases dealt with a position where the person injured was an independent contractor and still less with a position where the independent contractor is a skilled person, as here, upon whom reliance was placed, the main contractor having no relevant expertise. In addition the sub-contract in the present case was one which required the plaintiff to use his own equipment, to comply with all safety rules based on the Hong Kong Labour Department's safety regulations and to ensure safety generally. No reported decision appears to have dealt with such a situation.

4. It is unfortunate that in neither Court below nor before us was the applicant legally represented. The application for leave, however imprecise, seems nevertheless to have at least the germ of the matters set out in the preceding paragraph. The question may be set out as follows :-

"Is a contractor civilly liable for damage caused to an independent contractor for breach of a statutory duty where

(1) the contractor has no relevant expertise but relies upon the independent contractor who does have the relevant expertise and/or

(2) the contract between the parties provides that it is the responsibility of the independent contractor to provide the relevant safety measures."

It seems to us that these are questions of great and general importance for determination by the Court. We accordingly give leave and order that the costs of this application are to be costs in the appeal.

5. The respondent has issued an application for security for its costs of the appeal in the event that leave to appeal is given. It is enough to say that no sufficient material has been put before this Committee to justify that application. We therefore dismiss the application for security for costs. The costs of that application are to be paid by the respondent to the applicant and are to be taxed under the Legal Aid Rules.

6. However, under section 25 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, there is a discretion when granting leave to appeal to require payment into Court for the due prosecution of the appeal and for the payment of costs. We give leave conditional upon the applicant

(1) paying into Court the sum of $50,000 as such security within six weeks of today and

(2) complying with such other directions as to the prosecution of the appeal to be given by the Registrar for which purpose within 10 days of the provision of the security the applicant is to seek a date for the appearance of both parties before the Registrar.

Representation:

Mr Lui Po Man, representative of Applicant, in person

Mr John Wright (instructed by M/s Erving Brettell and assigned by DLA) for Respondents