Lingking Brothers & Co Ltd v. Luen Fat Transportation Co Ltd

HCA001534/1980

BETWEEN:

Coram: Roberts, C.J.

Date: 29 April, 2, 3 & 10 May and 1 June 1983

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J U D G M E N T

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Preliminary

1. On 5th October, 1978, the plaintiff, as principal contractor, was building a culvert at Shatin Area 5, Sui Lek Yuen in the New Territories. The plaintiff hired, to carry out part of this work, a firm of building subcontractors, the Yue Hing Construction and Decoration Company ("Yue Hing") which employed CHAN Hin Lee ("the deceased") as a construction labourer.

2. The deceased was one of a group of workmen who were engaged in pouring concrete into a box culvert. As he was carrying out this work, he was twice struck by a concrete hopper suspended from a mobile crane and sustained fatal injuries.

3. A claim under the Employees' Compensation Ordinance was made against the plaintiff, who was ordered by a District Judge, on 30th November, 1979, to pay to the widow of the deceased the sum of $40,000 plus costs, which were agreed at $1,175. The plaintiff incurred his own costs of $4,435.00 in those proceedings.

4. The Plaintiff claims these sums, amounting to $45,610, under section 25 of the Employees' Compensation Ordinance (Cap.232), which entitles an employer to recover. from any other person who might be liable, a contribution in whole or in part towards payments made by him under that Ordinance.

System of work on the site

5. At about 6.00 p.m., on 6th October, 1978, the deceased was one of a group of workmen, who were constructing a box culvert, into which concrete was being poured.

6. The concrete was mixed in a revolving drum, which was mounted on a lorry, owned by the Pioneer Cement Company. The lorry driver supervised the transfer of concrete from the revolving drum, by the opening of a shutter in the drum, into a steel hopper.

7. This hopper was attached to a steel hook, which was suspended from a mobile crane, owned by the defendant company, the Luen Fat Transportation Company Limited.

8. When the hopper, which had a capacity of about two tons of concrete, was filled to its usual level, which was about 70% of its maximum load, the crane would lift it from the position where it had been filled, beside the mixing lorry, across the intervening space, to the place at which the concrete was to be poured into the  box culvert. The crane was stationed with the front -  containing the main driving cabin - furthest away from the culvert and its rear outriggers a few feet from the edge of the box culvert.

9. The crane-driver ("the driver") under the direction of a ganger, manoeuvred the hopper until it arrived above the box culvert. Here it was held steady by two workman, one of whom, at the critical time, was the deceased, and emptied by a third workman, who operated a shutter in the hopper, which opened to release the concrete from it.

10. This sequence of work had been followed throughout the day. At about 6.00 p.m., however, as the deceased was standing on the iron rods on top of the box culvert, preparing to steady the hopper, it struck him on the back, knocking him face downwards onto the iron rods. As he tried to raise himself to his feet, it struck him again, this time on the head, causing injuries from which he later died.

Effective cause of the accident

11. There is no dispute as to how the deceased met his death; nor that the hopper which struck him was suspended from a crane, which was operated by the driver, who was employed by the defendant.

12. The more difficult question is why the steel hopper behaved as it did, since all witnesses agreed that it moved in an unusual and unexpected manner.

13. Mr. TANG Man Chun, who has been a crane examiner, approved by the Government, for 16 years, was called as an expert witness by the plaintiff. He advanced three possible explanations for the accident, on the assumption that one of the outriggers sank into the ground for a few inches at a critical time -

14. There yeas no evidence to suggest any mechanical fault. I dismiss this as having been a possible cause of the accident.

Sinking of an outrigger

15. TSANG Nam (P.W.1) who was the plaintiff's site foreman on the day in question, gave evidence that he saw the deceased struck by the hopper, after which the hopper went up quickly. As it did so, he saw the front of the crane (i.e. the driving cabin end) tilt upwards about six inches.

16. The hopper then dropped and hit the deceased for the second time. As this happened, the front of the crane again tilted up, for about two feet.

17. CHAN Yiu Fung (P.W.3), who worked for the plaintiff as a sub-contractor under the name of Yue Hing, was standing within 3 to 4 feet of the deceased when he was hit. He saw the hopper come down quickly, hit the iron rods, rise again a few feet and fall for the second time. As it fell for the second time, he saw the front of the crane rise, about two feet.

18. The crane driver's story is that, as he was lowering the loaded hopper, he suddenly realized that in some way the lorry was unbalanced. He immediately raised the hopper, in order to get it away from the workmen but that he felt a downward pull and swung the hopper away from the workmen and over the other side of the culvert.

19. After he dismounted from his lorry, he saw that the outrigger nearest to the operations cabin (the nearside rear outrigger) had sunk into the ground. He thought that the accident had taken place because the outrigger sank and caused a loss of balance in the crane, to which he reacted instinctively in an effort to stabilize it. He did not agree that the quick raising of the hopper had caused the crane to tilt in the air.

20. FUNG Kwok Kai (P.W.2), a director of the defendant company, arrived on the site half an hour or so after the accident. The crane was still there, though it was resting on its wheels and the outriggers had been retracted. He noticed that, where the nearside rear outrigger would have rested; there were wooden planks which had sunk into the ground.

21. There is thus evidence of two different movements in the crane -

Positioning of crane

22. About two days before the accident, the plaintiff, the main contractor on the site, arranged with the defendant that the latter should supply a Kato mobile crane. Such a crane, owned by the defendant and driven by WONG Chung Hing ("the driver") a servant of the defendant, arrived at the site on the morning of 6th October, 1978.

23. On his arrival, the driver was told, by a supervisor employed by the plaintiff, where the concreting was to be carried out that day. He asked that a roller, owned by the plaintiff, should be used to flatten an area on which the crane lorry could be stationed, as the earth, which was reclaimed, was uneven.

24. The driver made a platform, with planks of timber supplied by the plaintiff's workmen. On top of this he placed four wooden sleepers, each about 2 feet square and 6 inches thick, which he had brought with him on the crane. The four outriggers of the crane were extended and lowered onto the sleepers, forming the base on which the crane stood.

25. It was the driver's contention that it was the responsibility of the site foreman to station the crane in a safe position on the site, though he agreed that he would not have placed it in an unsafe place, even if the foreman had asked him to do so.

26. However, Mr. TSANG Nam, the plaintiff's supervisor, was adamant that it was the responsibility of the crane driver to ensure that the crane was safely anchored in a suitable position. His view was supported by CHOW Chung Yee, the site agent of the plaintiff, and by CHAN Yiu Fung, the foreman in charge of the workers on the box culvert.

27. No doubt, it makes good sense that the man in charge of a specialized piece of equipment of this nature should bear primary responsibility for its siting. And it may be that this is what often happens in practice. But it is not what the law requires.

28. Regulation 12 of the Construction Sites (Safety) Regulations, made under the Factories and Industrial Undertakings Ordinance (Cap.59), puts the responsibility for the stability of lifting appliances on the "contractor responsible for the appliance". By Regulation 2(2), a contractor is responsible for any plant which includes a crane, if it is located at a construction site for which he is responsible. A contractor is responsible for a site if he is undertaking construction work there, or if he is the principal contractor if there is more than one contractor working on the site.

29. The evidence was that the plaintiff was the main contractor working on the box culvert.

30. One argument advanced on behalf of the plaintiff was that the crane driver had been negligent in his positioning of the mobile crane as a result of which, after some hours of operation, one of the outriggers had subsided, unbalancing the crane and so causing the hopper to move in an unpredictable manner which the crane driver was unable to control.

31. Even if I had reached that conclusion, the effect of the Construction Sites (Safety) Regulations would have been to shift responsibility in law from the crane driver to the plaintiff as the contractor responsible for the appliance.

32. However, as will be seen, I have reached the conclusion that the accident was not caused by a negligent siting of the crane by its driver on the morning of the 6th October.

Finding as to cause of accident

33. The driver had been on the site for about 10 hours when the accident occurred. He had been continuously operating his crane, bringing filled hoppers from the mixing lorry to the box culvert for about 9 hours, with only such breaks as were possible between the departure of one mixing lorry and the arrival of another. It would not be surprising if, after such a long period, his concentration had wandered.

34. In   any event, and whatever the reason for it, I find that the accident occurred because the driver lowered the hopper negligently, too fast and too far.

35. Both TSANG Nam and CHAN Yiu Fong described the hopper as coming down very quickly before it struck the iron rods and hit the deceased for the first  time. As a result of this the hopper spun and the driver tried to raise it quickly out of the way of the workmen.

36. According to Mr. Chan, the crane expert, whose evidence I accept on this matter, the raising of the hopper again, after the wire holding it had lost its tension, would have required the exertion by the crane of twice as much force as would normally be necessary to lift the hopper.

37. In his opinion, with which I agree, the raising of the hopper in such circumstances caused the rear outriggers of  the crane to sink and the front outriggers to rise. As this occurred, it applied a sudden heavy pressure, through the outriggers, on the sleepers and the wooden planks on which they were lying, causing one of the planks to subside into the ground for a few inches.

38. This slippage affected the balance of the crane and the hopper. To this the driver reacted by lowering the hopper again, hoping to miss the workmen but failing to do so.

39. As will be seen, I accept the evidence of the crane driver that there was a moment at which he felt a loss of balance. However, I do not accept his explanation that it was the subsidence of the outrigger per se that caused the loss of balance

40. The outrigger had been in position for several hours and there was no reason to suppose that it was not well-bedded and safe.

41. I think that it was the sudden strain produced by the events which I have described, that caused the rear outrigger to slip and affected the balance of the crane and hopper.

42. The shifting of the outrigger, however, was merely a consequence of the original act of carelessness of the driver, which was the negligent lowering of the hopper in such a manner that it struck the iron rods.

Contributory negligence

43. I have considered whether it can be said that anyone else, other than the crane-driver, may have contributed to this accident.

44. I have no hesitation in absolving the deceased from any responsibility. There is no evidence that he was careless. He was doing his usual job, which was to steady the hopper; he was wearing his safety helmet; he was standing in the proper place for the work which he was doing.

45. Nor could CHAN Yiu Fung, the ganger in charge, be said to have contributed by reason of any signals which he gave to the driver. The latter did not suggest this and I have found that it was the failure of the driver to control the downward movement of the hopper properly, not his compliance with a careless hand signal or instructions given by anyone else.

46. There is no evidence that the system of work adopted by the plaintiff was dangerous, beyond the normal hazards which are inseparable from concreting of this nature, or did not comply with any law.

47. Nor is it established that the driver of the cement-mixing lorry overloaded the hopper, so that the weight of the contents of the hopper could be said to have contributed to the accident.

48. There is nothing to suggest that the mobile crane, or the hopper, were defective in themselves for mechanical reasons.

Conclusion

49. The plaintiff is therefore entitled, under section 25 of the Employees' Compensation Ordinance, to recover from the defendant the amount of damage which he has suffered and which is represented by the amount paid out by him to the dependants of the deceased, plus the costs which he had to meet in the employees' compensation proceedings which took place in 1979.

50. There will be judgment for the plaintiff with costs for $45,610 with interest at the rate of 14½% from the date of issue of the writ (29th March, 1980) to the date of judgment.

Representation:

C. Smith (Munro & Co.) for Plaintiff

B. van Buuren (C.Y. Kwan & Co.) for Defendant