The Queen v. Kwong Yeung and Another
|
CACC000584/1983 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 584 of 1983 _______________ Between
Coram: Hon. Addison, J. in Court Date: 1st July, 1983 __________ JUDGMENT __________
1. The point arising for determination in this appeal is whether on the facts of this case the conviction of these appellants for a contravention of regulation 39(1) of the Construction. Sites (Safety) Regulations Cap. 59 is correct in law. 2. On the 20th April, 1982 a workman employed on the lower terrace of a construction site in Chai Wan was killed when a large piece of concrete forming part of a retaining wall, then being demolished, fell down a slope and struck him. 3. The appellants, who were the contractors responsible for the site, were convicted of contravening regulation 39 (1) as read with regulation 68(1)(a) and were both fined $5,000. Through their counsel, Mr. Faulkner, they now appeal against conviction on the ground that regulation 39(1) has no application to the facts of this case. He contends that regulation 39 was enacted to apply to circumstances totally different from those which arose in this case and whereas the appellants might have been liable for a contravention of regulation 49 they were not and could not have been liable for a breach of regulation 39. He also maintains that the work giving rise to the accident was riot an "earthworking operation". Furthermore, he argues, that even if it were an earthwork, then insofar as the operation in hand was one unlikely to bury or trap a workman in or near the excavation or earth-work, regulation 39 is rendered totally inapplicable by virtue of the provisions of regulation 39(4) (a) (i). 4. So far as this last argument is concerned it ignores the provisions of regulation 39(4) (a) (ii). In my opinion the interpretation to be placed on regulation 39(4) (a) is that for regulation 39 not to apply it must be shown that there was neither a likelihood to bury nor a likelihood to strike a workman from a height of more than 4 feet. If the circumstances were such that either one of these two separate contingencies was likely to occur then the regulation would apply. 5. Mr. Kenny who appears for the Crown contends that the operation going on at the time and which gave rise to the accident was clearly an "earthworking operation". He maintains that the accident in this case was one likely to occur and as a consequence the appellants were rightly convicted. 6. Obviously it is necessary to look at the relevant provisions of regulations 39 and 49. 7. Regulation 39, so far as it is relevant to this appeal is as follows :
This regulation within Part VI of the Safety Regulations is entitled "Excavations on Construction Sites". 8. It is of interest to note that Regulation 39(4) was amended by L.N. 280/78 as follows :-
9. Regulation 49 which calls within Part VII is entitled "Miscellaneous Safety Requirements" and provides :-
10. Regulation 49 is designed to protect workmen on construction sites from falling materials. 11. Clearly then, regulation 39 deals with site preparation by way of excavating and earthworking operations rather than actual construction on the site. Mr. Faulkner contends it is limited to "cave-in" situations of which none occurred in this case. 12. Before turning to consider the application of regulation 39 it is necessary to outline a description of the site and the work going on. The whole site area was of earth. The site area included an upper slope leading from the roadside to the upper of two terraces approximately 8 metres below. This upper terrace, 4 metres wide, was under construction or being prepared for construction as a road and 4 metres vertically below it was a lower terrace of approximately the same width. The workman was on this lower terrace when he was fatally injured. Below this lower terrace was a further slope but this slope has no relevance in this appeal. Securing the vertical earth-wall between the upper and lower terraces were a number of steel girders, called "soldier piles" and these were set in upright positions at regular intervals. Nothing had been erected in the form of a barrier at the crest of the upper terrace to prevent objects falling on to the lower one. 13. Situate on the upper terrace was a backhoe machine which at the material time was being operated with a hydraulic drill drill or hammer to demolish a concrete retaining wall some 4 metres above running along the length of the upper slope at mid-slope level. This retaining wall was protruding . a few feet above the surface of the upper slope. During the course of the demolition work a large piece of concrete broke away from the retaining wall, rolled down the slope and, traversing the upper terrace, fell on a workman on the terrace below killing him outright. From one of the photographs produced in evidence there could be seen several large pieces of concrete around the caterpillar tracks of the backhoe machine. 14. It is clear, then, that demolition work and not excavation work was being carried out at the relevant time. Therfore in order that regulation 39(1) should apply the work in question would have to be an "earthworking operation". This would be a question of fact. 15. No definition of "barthworking operation" appears in the regulations and this is hardly surprising" since such would cover a multitude of activities designed to prepare the site for its intended development. Mr. Kenny suggested it would relate to any operation by which the natural formation of the, earth's surface is prepared or adapted in some way to enable it to be put to a certain use. ^I agree with this suggested definition and will only add that I see no reason why "earthworking operations" should not include removal of structures unwanted on the site. It is not unreasonable to assume in this case that the contractors would not have demolished the retaining wall protruding above the level of the slope unless directions had been given to that effect and insofar as this work levelled the slope it was, in my opinion, an earthworking operation. By convicting the appellants the magistrate must have been satisfied that the demolition of the retaining wall was an earthworking operation. 16. No structure had been erected in connection with the demolition of the retaining wall so as to prevent a workman employed on the site from being endangered by a fall of the concrete materials It is true that there was a steel structure erected to prevent a cave-in or collapse of the vertical earth wall between the upper terrace and the lower terrace but this was not a structure caused to be erected in respect of the earthworking operation going on in demolishing the retaining wall at mid-slope level. The operator of the backhoe machine was trusting that pieces of concrete dislodged by the hydraulic hammer would not fall further than the upper terrace. Unfortunately for the deceased one piece did. 17. It was the case for the Crown that a timber barrier should have been erected at the crest of the upper terrace so as to prevent pieces of concrete falling beyond there and on to workmen below. No such structure had been erected in accordance with regulation 39(1). 18. But regulation 39 (1) only speaks of the necessity of causing a structure to be erected so as to prevent workmen from being endangered by a fall or displacement of earth, rock, or other material (including waste material, and debris) "adjacent to or forming the side of the earthwork" and even then it is not every situation that must be guarded against. By virtue of regulation 39(4)(a) unless the fall or dislodgment of earth, rock or other material is liable to bury or trap a workman or other person employed in or near the excavation or earthwork or unless it is likely to strike such a workman or other person from a height of more than 4 feet regulation 390) does not apply. Was this piece of concrete which fell "adjacent to" or "forming the side of the earthwork" 19. Mr. Kenny who appears for the Crown argues that the whole site was in fact one of earthworking operations and that the retaining wall being part of the slope on the perimeter of the site formed a side of the earthwork. 20. Regulation 39 expressly deals with not only excavations but earth-working operations on construction sites. This is hardly surprising having regard to the preponderance of slopes in Hong Kong. The safety of a workman on a construction site would be jeopardised were provision not made to prevent him from being endangered from earthworking operations on slopes. What more likely provision is to be found than one which seeks to prevent danger from material forming the side of an excavation or earthwork from falling down. This could be no less disastrous to a workman than an excavation falling in. 21. In my opinion the expression "earthworking operation" in regulation 39(1) is not to be narrowly construed so as automatically to exclude demolition work. One must look at the actual operation then being carried out and leading to the fall or dislodgment and viewe it in the context of all the work going on at the site. In other words although this site contained several earthworking operations the actual earthwork here, and the one with which we are concerned as being likely to endanger a workman on the site, was the demolition of the retaining wall. What fell down the slope was a part of the retaining wall. But this part which fell was not and cannot be regarded as "adjacent" to the earthwork. 22. Did it form the side of the earthwork? Mr. Faulkner argues that the demolition of the retaining wall was neither an excavation nor an earthwork. He submits that regulation 39(1) applies only to a fall of earth, rock or other material and its object is to prevent dangerrs arising from a cave-in of the sides of the earthwork as well as a collapse into the excavation of material dug out of it. He has his eye on the immediate perimeter of the excavation and limits the application of regulation 39(1) to cases where there is a cave-in situation. He contends that regulation 49 is the only regulation to be applied to falling objects or materials from demolition work. 23. In support of his argument Mr. Faulkner relies on the wording of regulation 39(4) (a) (i) where unless the earthwork is likely to bury or trap a workman regulation 39(1) does not apply and irrespective of whether the earthwork may strike a workman from a height of more than 4 feet, coming within regulation 39(4) (a) (ii). 24. But regulation 39(4) (a) (i) speaks of a workman or other person employed in or "near" the excavation or earthwork and regulation 39(4) (a) (ii) specifically refers to "such workman or person" which is a reference to the workman or person referred to in regulation 39(4) (a) (i). What is meant by the word "near" would be a question of fact to be determined by reference to the liability or likelihood of that person either being buried or being struck from a height of more than 4 feet. Where the fall or dislodgment was not one likely to strike a workman from a height of more than 4 feet then regulation 39(1) does not apply. The emphasis in regulation 39(4) (a) (ii) is on being hit from a height of more than 4 feet and by virtue of a fall. 25. Mr. Faulkner also maintained that the wall being demolished was not adjacent to the lower terrace. 26. In my opinion I see no reason to adopt such a restrictive approach to the interpretation of regulation 39(1) as this court is being asked. Earthworks were being carried out over the whole site. The earthworking operation in this case was not simply the demolition of the retaining wall but the preparation of the slope along which ran the retaining wall. Did this retaining wall form a side of the earthwork? In my opinion the demolition work was an earthworking operation to adjust the slope which formed a side of the earthworks at various levels. In other words the piece of concrete which fell down the slope was a part of the retaining wall which in turn formed part of the slope which formed a side of the earthwork then in hand at differing levels prior to the building of the road. 27. Obviously broken off pieces of concrete would be liable to fall down the slope. It would be apparent from the angle of the slope and other circumstances, including the size of the piece of concrete that it would gain momentum as it fell and would be liable to strike a workman employed "near" the earthwork on the lower terrace and from a height of more than 4 feet. 28. I am satisfied that this demolition work, which was itself an earthworking operation and which constituted part of the earthworks being carried out on the site, formed the side of the earthwork. 29. Notwithstanding that a prosecution could have been brought under regulation 49(1) or (3) which deal specifically with falling objects and debris I do not think the prosecution of these appellants for a contravention of regulation 39(1) was erroneous in law as being inapplicable to the facts of this case. For these reasons these appeals against conviction are dismissed.
Representation: Mr. M.J. Kenny for Crown. Mr. R.J. Faulkner (W.I.Cheung & Co.) for both appellants. |