The Queen v. Otis Elevator Co. (H.K.) Ltd.

HCMA000931/1985

BETWEEN:

Coram: Roberts, C.J.

Date: 13th November, 1985.

Date of Handing Down: 20th November 1985

------------------

JUDGMENT

-----------------

Preliminary

1. The defendant was convicted of a failure to provide suitable and sufficient anchorages and fittings for safety belts, fined a total of $7,500 and ordered to pay $2,500 costs.

2. The charge of which the defendant was convicted read as follows -

"The Otis Elevator Company (H.K.) Limited on the 23rd day of August 1984, at Installation of Life and Escalator at Cheung Hong Estate, Phase 4, Tsing Yi Island. (Contract No. 284/82) in this Colony, being the contractor responsible for a construction site at Installation of Life and Escalator at Cheung Hong Estate, Phase 4, Tsing Yi Island (Contract 284/ 82) failed to provide suitable and sufficient anchorages and suitable fittings for the safety belts provided. Contrary to Regulations 38Q(3) and 68 of the Construction Sites (Safety) Regulations, Cap.59."

Background Facts

3. A workman, employed by the defendant and engaged in inserting electrical ducts inside the lift shaft of a multi-storey building, fell and sustained severe injuries.

4. There is some doubt as to whether or not he was wearing a safety belt at the time he fell. He does not himself remember and, when he was discovered on the lift roof, onto which he had fallen, he was not wearing a belt, though one was lying close to him.

5. The cause of the workman's fall is not in issue, though it was the report of his accident which drew the attention of the authorities to the possibility that the defendant had not fulfilled its obligations in relation to the safety of workers.

6. It was not disputed that the defendant provided a suitable safety belt for the workers, who were issued with them and instructed to use them where appropriate. The prosecution case was simply that the bamboo cage, erected by the defendant inside the lift shaft, was not a safe anchorage for the safety belts worn by those working there.

7. The magistrate, at the conclusion of the hearing, on 23rd July, delivered a short verbal judgment, which is reproduced in full--

"I interpret the words "provide suitable and sufficient anchorage" to mean anchorage provided continuously unless excepted by the Regulations, for example the proviso to Regulation 390(1).

In this case the defendant provided intermittent anchorage whilst the workers moved up and down the scaffolding. From the time when the worker unhooked his lanyard the worker has no anchorage at all. I therefore find that the defendant has failed to provide suitable and sufficient anchorage and suitable fittings for the safety belts, within the meaning of the Regulations.

If the defendant provided an independant life line together with safety belt and equipment to operate the independant life line this would comply with the Regulations. Perhaps, if the company does not wish to supply an independant life line and wishes to use the bamboo scaffolding one further lanyard could be connected to the safety belt with instructions to workers that the second belt is to be connected before the first is unhooked and so on. This would give continuous anchorage. In the circumstances I find it unnecessary to make a ruling on whether or not scaffolding is sufficient anchorage as only one lanyard was used.

I find the Defendant guilty as charged. "

8. When notice of appeal was served on him, the magistrate produced an even shorter statement of findings, in which he adopted what he said, when delivering his decision on 23rd July and merely added that -

"Upon consideration of the whole of the evidence, the case as presented by the Prosecution, the case as presented by the defendant and what the defendant's lawyers had to say in his final address to the Court, I am satisfied beyond all reasonable doubt each and every element of the charge has been proved and I find the defendant guilty as charged. "

9. From these two pronouncements, which I confess to finding barely adequate, the following seem to emerge as the main findings on which the defendant was convicted -

10. With regard to the first finding, counsel for the defendant complains that the magistrate has introduced into the wording of the regulation the word "continuous" though it was conceded by the Crown that the regulation does not impose an absolute liability upon an employer and that the regulation is satisfied if a suitable and sufficient anchorage is provided. See Daniels v. Ford Motor Co. Ltd. ⁽¹⁾ and Marshall v. Babcock & Wilcox Limited ⁽²⁾.

11. I agree with the magistrate that anchorage must be continuous, in the sense that it must be available at all times when workmen are working in the lift shaft. But, it was not disputed that the bamboo cage extended from top to bottom on all four sides of the shaft, and that there were therefore anchorage points available at close intervals throughout its length.

12. So far as the second finding is concerned, counsel argued that the provision of an independent lifeline is not the only way in which the regulation can be satisfied. Indeed, the magistrate does not himself suggest this. And if the Legislature had intended to impose such an obligation on employers, it would have said so, as it did in Regulation 36I, which requires safety belts to be attached to independent lifelines for the occupants of boatswain's chairs.

13. The magistrate's third finding that the defendant would have fulfilled its statutory obligations by the provision of an additional lanyard, to be connected to the safety belt, carries with it the inference that the bamboo scaffolding itself can amount to a sufficient anchorage if additional fittings are attached to the safety belt.

14. However, the attachment of an additional lanyard to the belt, does not affect the adequacy or otherwise of the bamboo scaffolding, to which the safety belt is attached, as an anchorage. The magistrate therefore seems to be finding that the defendant had failed to provide suitable fittings, not that it had failed to provide a suitable and sufficient anchorage.

15. It must be noted that the case proceeded entirely upon the assumption that it was the anchorage that was inadequate, not that the fittings attached to the safety belt were insufficient. Thus the magistrate appears to have based his decision upon a proposition of his own, unsupported by any evidence and not canvassed with the expert witnesses.

16. The magistrate finds it unnecessary to rule on whether or not the scaffolding is sufficient anchorage "as only one lanyard was used". As observed above, the use of only one lanyard relates to the suitability of the equipment and not to the suitability of the anchorage. Thus, the magistrate has failed to address himself to the main question which was before him, namely, whether the scaffolding itself was sufficient.

17. As to this, there was a clear conflict of evidence between the two experts, Mr. Ghaffor, a Factory Inspector of the Labour Department, called by the prosecution, and Mr. Wong Yum Yin, a specialist on occupational safety and health, who gave evidence for the defence.

18. The Labour Officer was of the view that the scaffolding itself was an insufficient anchorage and that there should have been an independent safety belt or an independent anchorage, in case the scaffolding collapsed, though he admitted that he had never heard of an accident caused by the failure of bamboo scaffolding to which a safety belt had been attached.

19. Mr. Wong discussed the merits and demerits of independent lifelines, of separate anchorages and of bamboo scaffolding. He found that there were advantages and disadvantages in each of the three methods of securing belts, adding that, in his experience, the practice of attaching a safety belt to bamboo scaffolding was a safe one and in some circumstances the best system.

20. The magistrate, unfortunately, made no effort to resolve the conflict between these two witnesses.

21. Indeed, in his statement of findings he makes no reference to the evidence of any witness, which seems to me to be a significant omission in a case of this nature.

22. For the above reasons, I allowed the appeal and quashed the conviction, though it is perhaps right to warn contractors that another prosecution on similar facts brought will be successful, if the trial magistrate maintained a clear distinction between a satisfactory anchorage and satisfactory fittings.

(1) [1955] 1 W.L.R.76

(2) [1961] S.L.R.259

Representation:

Mr. A.H. Sakhrani, Q.C. with Mr. L.K.Y. Chan (Wilkinson & Grist) for Appellant

Mr. H. Macleod, Crown Counsel, for Respondent /D.P.P.