Gammon (Hong Kong) Ltd Mishimatsu Construction Co Ltd v. The Queen
Read the full judgment text of CACC 441/1983 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against the appellant's conviction on the 7th January 1983 of an offence contrary to Regulations 6 and 68(1)(a) of the Construction Sites (Safety) Regulations Cap. 59. A fine of $8,000 was imposed.
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CACC000441/1983
BETWEEN
-------------- Coram: Jones J. Date: 5th May, 1983. ___________ JUDGMENT ___________ 1. This is an appeal against the appellant's conviction on the 7th January 1983 of an offence contrary to Regulations 6 and 68(1)(a) of the Construction Sites (Safety) Regulations Cap. 59. A fine of $8,000 was imposed. 2. The particulars of offence read:-
3. Regulation 6 provides:-
4. The lifting appliance in this case was a mobile crane which was mounted on caterpillar tracks. A movable cab for the operator was also fixed to the caterpillar base. At the time of the accident the machine was used to lift rocks from the bottom of a shaft. 5. On the 17th May 1982 during the course of a lifting operation, Mr. Wong Kwai-shun a carpenter working at the site became trapped between the tail of the crane and a three foot concrete parapet when the rear portion of the crane swung round. Mr. tong died as a result of the injuries that he received. 6. It is conceded by the appellants that they were in breach of Regulation 6(2) in that they did not ensure that all reasonable steps were taken to prevent persons from having access. 7. The appellants have filed two grounds of appeal viz:-
8. By Regulation 2 "crane" means an appliance equipped with mechanical means of raising and lowering a load and for transporting the load while suspended. 9. Mr. Ismail who appeared for the appellants submitted that stage and gantry should be given their ordinary meaning. Gantry is defined in the Oxford Dictionary as 'a frame or platform for carrying a travelling crane or similar structure' and stage as 'a raised floor or platform'. 10. The learned magistrate held that the caterpillar portion formed the stage on which the crane operated. However, Mr. Ismail contends that the learned magistrate erred in not finding that the caterpillar portion formed part of the whole machine so therefore came within the definition of crane. He maintains that the machine must be considered to be the lifting appliance. In his submission stage or similar place necessarily connotes a fixed or immovable structure that is raised from the ground. Accordingly, as the crane was operating from ground level Regulation 6 did not apply. 11. Mr. Ismail cited Hawkins v. Harold A. Russett Ltd. (The Times 12th October 1982) where it was held that a container which was detachable formed part of the vehicle to come within regulation 58 of the Motor Vehicles (Construction and Use) Regulations 1978 which relates to excessive overhang. However, I do not consider that this case is relevant to the present issue. 12. It is clear that the machine consists of separate units, and that the lower portion the caterpillar base by itself does not come within the meaning of lifting appliance. The caterpillar tracks perform the function of driving the vehicle from one place to another and as a platform for the crane. In my opinion the learned magistrate was right to look at the different units of the machine. The machine can properly be described as a vehicle for the conveyance of a crane. 13. I therefore reject the interpretation urged upon me by Mr. Ismail that the whole machine must be regarded as a crane. Further I do not accept that the words in the regulation are restricted to a fixed or immovable structure. 14. When the accident occurred the caterpillar portion was performing its function as a platform. Accordingly, Regulation 6 applied. 15. The appeal is dismissed.
Representation: Mr. A. Ismail (Munro & Co.) for Appellant. Mr. McMahon (Legal Department) for Crown/Respondent. |