Attorney General v. China Light & Power Co Ltd

CACC001112/1981

Regulation 47(1) of Construction Sites (Safety) Regulations Cap. 59

"Where workmen employed at a construction site are liable to come into contact with any live electric cable or apparatus, the contractor responsible for the site shall, both before the commencement of the work at the site and during its progress, take such measures (whether by rendering the cable or apparatus electrically dead or otherwise) as will prevent them from being endangered by the cable or apparatus"

- construction

- application of section 19, Interpretation and General Clauses Ordinance, Cap. 1

- whether electrically qualified workmen performing duties within their electrical     expertise are outside the scope of Regulation 47(1)

- meaning of "construction site" and "construction work"

- whether work implementing measures required by Regulation 47(1) is construction work

- whether construction work consisting of "alteration ......... of any structure or works" must be "a radical alteration of an existing state of affairs, or a preparation therefore"

BETWEEN

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Coram: Hooper, J.

Date of trial: 19 March 1982

Date: 7 April 1982

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J U D G M E N T

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1. This is an appeal by way of case stated under section 105 of the Magistrates Ordinance, Cap. 227. The learned magistrate has stated the case in the following terms :

"1. At the magistrate's Court in the said Colony, at Tsuen Wan on the 28th and 29th September, 1981 and information preferred by the Commissioner for Labour represented by the Attorney General (hereinafter called the appellant) against China Light and Power Company Limited (hereinafter called the respondent) under Regulations 47(1) and 68(a) of the Construction Sites (Safety) Regulations, Cap. 59, was heard and determined by me, the said parties being then present, and the said information charging:

For that you on the 10th day of December, 1980 at Kingsway Industrial Building, Phase II, Consumer Substation, at KCTL 311, Wo Yi Hop Road, Kwai Chung, New Territories in this Colony, being the contractor responsible for a construction site (Kingsway Industrial Building, Phase II, Consumer Substation, KCTL 311, Wo Yi Hop Road, Kwai Chung, New Territories) where workmen were employed and where such workmen were liable to come into contact with any live electrical apparatus did, both before the commencement of the work at the said site and during its progress, fail to take such measures (either by rendering the apparatus electrically dead or otherwise) as would have prevented the said workmen from being endangered by the apparatus,

and upon such hearing the information was dismissed by me after a submission of no case to answer at the conclusion of the appellant's case.

2. And whereas the appellant, being dissatisfied with my determination on the hearing of the said information and alleging himself to be aggrieved by such determination as being erroneous in point of law has, pursuant to Section 105 of the Magistrates Ordinance, duly applied to me in writing to state and sign a case setting forth the facts and the grounds of such determination as aforesaid, in order that he may appeal therefrom to a judge of the High Court.

3. Now therefore I, the said Magistrate, in compliance with the said application, do hereby state and sign the following case.

4. Upon the hearing of the information I found the following facts either proved by agreement between the parties on substantiated by prima facie evidence for the prosecution.

A. On the night of 9th-10th December 1980 the Company was engaged in the conversion of an electrical feeder line with a single transformer into a full electricity consumer substation with two transformers. The work which took place that night is illustrated by comparing the situation before (annx. A hereto) with the situation after that work (annx. B).

B. To effect this conversion, the electrical current was disconnected between the two substations on either side of the intended new substation. These substations are indicated on both above annexures as Kingsway Industrial Building, phase 2, KCTL 311, and Milo, KCTL 161 respectively.

C. The Kingsway Industrial Building, phase 2, substation is in Wo Yi Hop Road; The Milo Substation is in Kwok Shui Road, and the work to install the new substation (later known as KCTL 9B) took place at the site previously known as KCTL 9A in Cheung Wing Road.

D. Mr. MAN Ho-ming, a qualified electrical engineer, was in charge of the Company's operation that night. His team consisted of :

Mr. CHAN Chung-ming and Mr. LI Chi-ming (the deceased). All three were adequately qualified and experienced for their intended functions. Mr. Chan is an electrician and Mr. Li was a linesman. Both had been designated 'competent persons' by the company. Their work was to assist Mr. Man in checking, switching, earthing, cable-jointing and testing the 11 kilovolt circuits.

E. All prescribed safety clearances for the various stages of the work were obtained from the System Control Department of China Light and Power Company Limited. Subject to those clearances, Mr. Man was responsible for the safety of any persons in a 'live' area. Annexure C is the form of Sanction for Test W.28 which authorized that part of the operation leading (through an omission on Mr. Man's part) to the accident.

F. The accident happened at the Kingsway Industrial Building, phase 2, substation. The precise point of the accident was at the switching gear feeding down from Kingsway to KCTL 9A (or KCTL 9B as it by then was), where the new substation was being brought into operation.

G. The operation that night was, in summary, one of disconnection of circuits; testing those circuits to check they were not live; wiring in new circuits; testing the new circuits and finally re-connecting the altered system to the electricity supply.

H. For those purposes, the following work was done at the Kingsway Industrial Building, phase 2, substation - the scene of the accident :

(a) The 11 kilovolt electricity supply through KCTL 9A (which was to be converted to KCTL 9B) to Milo was disconnected and earthed by switching the Oil Circuit Breaker as shown on the photographs, annexure D.

(b) After cable connection work had been completed at KCTL 9B, the team returned to Kingsway to conduct a pressure test to ensure proper connection of cables between Kingsway and KCTL 9B. This was done by test plugs being inserted into the feeder spouts connecting to the Oil Circuit Breaker at Kingsway, as shown on the photographs, annexure D.

(c) This test being satisfactory, the team left Kingsway to restore electricity from Milo substation via KCTL 9B back to Kingsway. The team then returned to Kingsway to carry out final testing of the by now live circuit. Once this final testing was completed, the system would have been re-energized by re-connecting the Oil Circuit Breaker.

(d) Mr. LI Chi-ming entered Kingsway to assist in completing the final testing and re-connection. He approached the Oil Circuit Breaker but was electrocuted and died as a result of burns.

I. At the conclusion of the testing at the Kingsway Industrial Building phase 2, substation (para H (b) above), Mr. Man had omitted to remove the test plugs from the feeder spouts to the Oil Circuit Breaker and secure the feeder shutters protecting the spouts.

J. This omission by Mr. Man was a breach of his responsibility for the safety of his team and was directly responsible for the death of Mr. Li.

At the close of the prosecution case, the defence submitted :

(i) That Regulation 47 and the other Regulations in the Construction Sites (Safety) Regulations, Cap. 59, were clearly meant to cover activities on what in a general sense could be called 'Building Sites', Kingsway was an existing building and there was no construction involved. The draftsman could not have intended to cover such a situation; the meaning and spirit of the ordinance must be followed.

(ii) That Defendant company was not carrying out construction work where the accident happened. Accordingly Kingsway was not a construction site and not covered by Regulation 47(1) under which the company was charged.

In reply, the prosecution submitted :

(i) That it was unnecessary to examine the general tenor of the Regulations to decide their scope as the expressions - 'Construction Site' and 'construction work' - are plainly defined in S.2 of the Regulation and in S.2 of the Governing Ordinance (Cap. 59) respectively.

(ii) That as far as the work actually carried out at Kingsway is concerned it falls within the said definition of 'construction work' as amplified by the 3rd schedule to the Governing Ordinance, in that the 'construction work' was -

'(a) the construction ......... installation .............. alteration (or) improvement .......... of .......... electrical ....... installation or works .......... designed for the manufacturing or transmission of power'

or alternatively was -

'(b) any work involved in preparing for any operation referred to in paragraph (a) ....................'

(iii) That 'construction site' is defined as 'a place where construction work is undertaken' and that the words 'construction site' in Regulation 47(1) should be construed accordingly.

(iv) That by virtue of the Third schedule of Cap.59, the meaning of 'construction site' is far wider than 'building site'.

Having heard submissions from both counsel I ruled :

(i) That the primary (but not exclusive) meaning of 'construction site' is that which is generally understood by the phrase 'building site'.

(ii) That the protection afforded by Regulation 47(1) was principally directed to that vast majority of workmen who lacked any electrical expertise and who were liable to come into casual or unintended contact with electrical apparatus in the course of their work.

(iii) That the Regulation was not intended to protect electrically qualified workmen who necessarily and deliberately operate in the vicinity of, or come into indirect contact with, electrically live equipment in the course of their work.

(iv) That the three men involved in the company's operation that night had to approach and make indirect contact with apparatus which they had expressly made live for the very purpose of their work.

(v) That such activity ran counter to the one safety measure specifically mentioned by the draftsman. That however the use of the words - 'or otherwise' - showed that the draftsman had by no means restricted his potential safety measures to that one contained in the section.

(vi) That nonetheless the Regulation could not reasonably be held to comprehend electrically qualified workmen performing duties within their electrical expertise.

(vii) That a contrary finding would not be compatible with the operations of an electrical utility company, which could not reasonably take the 'measures' the Regulation appeared to contemplate in the case of such workmen.

(viii) That furthermore, the Regulations as a whole do not appear to comprehend a danger arising from the isolated negligence of a single workman who is qualified, and who is otherwise acting properly in the field of his expertise.

(ix) Accordingly I found that electrically qualified workmen, performing duties within their expertise, were outside the protection of Regulation 47(1).

(x) I also found that the definition of 'construction work' (on which the definition of 'construction site' depends) contemplates a radical alteration of an existing state of affairs, or a preparation therefor.

(xi) That the procedure at Kingsway was no more in effect than a switching-off, a testing, and a switching-on of the electricity supply. That these were functions which the machinery (the Oil Circuit Breaker) was designed to accommodate without fundamental work or preparation being done on it.

(xii) That this procedure took place in a different building and in a different road from the conversion work at KCTL 9.

(xiii) That hence the procedure at Kingsway (where the fatal accident occurred) was separated both in character and in geography from the conversion work at KCTL 9.

(xiv) That the procedure at Kingsway was therefore neither construction work, nor could it be regarded as preparation for construction work in terms of the definition of that phrase.

(xv) Accordingly, I held that Kingsway was not a 'construction site' in terms of Regulation 47(1) at the time of the accident.

Questions

The questions for the opinion of the High Court are :

(1) Was I correct in holding that electrically qualified workmen performing duties within their electrical expertise are outside the scope of Regulation 47(1) of the construction sites (safety) Regulations, Cap. 59?

(2) Was I correct in holding that the work at Kingsway substation on the night of the accident did not constitute that substation a 'construction site' in terms of the said Regulation 47(1)?"

2. Both Mr. Alderdice for the appellant and Mr. Bleach for the respondent accept that in order to determine whether a place is a "construction site" one must go first to the interpretation section of the Regulations, namely Regulation 2(1). This provides -

"In these regulations, unless the context otherwise requires -

'construction site' means a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work ..........."

3. "Construction work" is referred to in section 2 of the interpretation section of the Factories and Industrial Undertakings Ordinance (which is the Ordinance under which the Construction Sites (Safety) Regulations were made). This provides -

"In this Ordinance, unless the context otherwise requires -

'construction work' means -

(a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule;

(b) any work involved in preparing for any operation referred to in paragraph (a), .........;

(c) the use of machinery, plant, tools, gear, and materials in connexion with any operation referred to in paragraph (a) .........."

4. The Third Schedule which sets out the specified structures or works specifies in item 9 -

"Any ...... electrical ...... installation or works ...... for the manufacturing or transmission of power ......."

5. Mr. Alderdice in repeating the Crown's contention as submitted to the magistrate argued that the law regarded almost any kind of work or activity in almost any kind of place to be "construction work". Eectrical installation must be "construction work", he argued. In this case the construction work was the installation of an electrcal system. He conceded that there was no addition of any physical material at "Kingsway" because that was being done at the new station KCTL 9 where a new transformer was being put in. However, he argued that as an integral part of that system, there was construction work being done at "Kingsway". He took exception to the magistate's finding that "construction work" contemplates a radical alteration of an existing state of affairs or preparation for the state of affairs to be radically altered submitting that there was no fundation for this degree whatsoever. Even if the work undertaken at "Kingsway" was of a different nature in physical terms to that underaken at the new substation, it was work which facilitated a physica change of that new substation. It was done in preparation for the new transformer to be added to the new substation and accordingly, is was caught, if by nothing else, by the second limb of the definition of "construction work".

6. Mr. Bleach argued in effect that the construction which the Crown sought to put upon the relevant pieces of legislation leads to an absurdity and is self-defeating and should not be accepted. He drew the court's attention to the words of the definition section in both the Regulations and the Ordinance "unless the context otherwise requires", arguing that this is a clear indication that it was appreciated that there would be circumstances where the words referred to should not be given their defined meaning. He further argued that Regulation 47(1) should not be considered in isolation, but that the court should have regard also to certain provisions in the Electricity Supply Regulations, which imposed statutory duties on the contractor in relation to "testing", (a word which does not appear in the definition of "construction work") and which provides that the electrical company generating or supplying electricity (in this case the respondent) chall be in sole occupation and charge of substations. The three sites "Kingsway", "KCTL 9" and "Milo" were separate substations separated by thousands of yards if not miles. Whilst "construction work" was going on at KCTL 9, all that was done at "Kingsway" and "Milo" was the turning off and later the turning on of power. That was in no way different from what happens in the substations everyday. All the procedures in relation to the switching on and switching off and the associated safety measures were carried out by qualified employees, and only the qualified employees of the respondent, and at a substation which by law was occupied solely by the respondent. Once the construction work had been completed at KCTL 9 the circuit had to be tested under Regulation 6 of the Electricity Supply Regulations.

7. Mr. Bleach argued that there was a conflict between Regulation 47(1) and Regulation 6 because the express statutory duty under Regulation 6 of Cap. 605 is contrary to one of the duties of Regulation 47(1) which is to render the electrical apparatus dead. That circuit could not be tested if the circuit were dead.

8. Mr. Bleach argued that what was done at "Kingsway" was not within the definition of "construction work" because nothing was being built, erected or installed at "Kingsway" at all.

9. In demonstrating the absurdity argument, he drew the court's attention to the terms of Regulation 47(1) pointing out that it envisages certain work being done to put the safety measures into effect. If the Crown's contention were correct, then the works undertaken in putting the necessary measures into effect before the "construction work" begins would itself amount to "construction work".

10. It would be absurd if a contractor (not being the electrical company) brought in a qualified expert to render apparatus safe, and yet would be criminally liable if the expert, because of his own failure to use common sense, electrocuted himself, carrying out the very measures the contractor was requested to comply with under Regulation 47(1).

11. For these reasons Mr. Bleach argued that what the deceased was doing at the time of his death was not "construction work". He was doing those very measures designed to ensure safety.

12. In considering the respective arguments I have reminded myself, first of all, that it is a general principle of interpretation in Hong Kong provided by section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 that -

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

13. Section 2 of Cap. 1 provides -

"Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force ...........".

14. There do not appear to be any provisions which limit the application of section 19 to the present legislation now under consideration and it is my duty to give that legislation such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the legislation according to its true intent, meaning and spirit.

15. The persons to whom the law gives protection under Regulation 47(1) are workmen employed at a construction site who are liable to come into contact with any live electric cable or apparatus and workman means a person engaged in construction work. "Construction work" has been very widely defined and would appear to include work which would not in common parlance be regarded as falling within that term.

16. It appears to me to be quite clear that the legislation is aimed at giving protection to a very wide group of people without laying down any restrictions based upon the extent of their expertise. In fact all the definitions of the words with which I am concerned in Regulation 47(1), namely "workmen", "construction site", "contractor", all depend for their legal meaning on the meaning of the words "construction work" which has been very widely defined.

17. It seems to me to be quite clear from this that the object of this legislation according to its true intent, meaning and spirit, is to ensure protection for a much wider group of people, than would normally be considered to be "workmen", and with the greatest respect to the learned magistrate and to Mr. Bleach, I consider that their contentions that Regulation 47(1) should be restricted to exclude electrically qualified workmen performing duties within their electrical expertise is erroneous.

18. It is my opinion that generally such people are entitled to the protection afforded by this regulation like anybody else, unless the circumstances are such that the context otherwise requires.

19. However, it is my view that the context does otherwise require in the circumstances of this particular case. Where the work which was being done was work in the implementation of the measures (whether by rendering the cable or apparatus electrically dead or otherwise) envisaged by Regulation 47(1), it cannot be regarded as "construction work" even though it may in all other respects have fallen within the wide terms of the definition section.

20. The matter can be simply stated in this way. It cannot have been the intention of the Legislature that a contractor who complies with this regulation at the same time contravenes it. If the work implementing the measures can be regarded as "construction work", then the contractor would never be able to get to the situation where he could commence these measures without contravening Regulation 47(1).

21. As a matter of common sense such a construction is unworkable. As therefore, the work in which the deceased was employed at the relevant time was work implementing the measures required by Regulation 47(1), I hold that it was not "construction work" for the purposes of Regulation 47(1) and that "Kingsway" was thus not a construction site.

22. With the greatest respect to the learned magistrate, his interpretation depends upon adding in words of exclusion or limitation to the construction of both "construction work" and "workmen" which do not appear in the legislation at all. I hold that he was wrong to do that and I do not agree with either of his findings in paragraphs (ix) and (x).

23. It is not difficult to envisage circumstances where an electrically qualified workman performing duties within his electrical expertise could be working on a construction site and yet not be implementing the measures required to be taken by the contractor under Regulation 47(1). There is no reason at all why such a workman should not be protected like any other workman. Of course such a situation did not exist in the present case but if the general terms of the learned magistrate's finding in (ix) were to be accepted, it would mean that such a person would not be protected.

24. Furthermore it is difficult to see why maintenance work (including redecoration and external cleaning) which involves no alteration should be "construction work" and yet an alteration must be a radical alteration before it becomes "construction work", as the magistrate held in finding (x). I do not accept this to be the case.

25. My answers to the specified questions put to the High Court are :

(1) No. Regulation 47(1) should not be so restricted generally.

(2) Yes. The work at "Kingsway" Substation on the night of the accident did not constitute that substation a "construction site" in terms of Regulation 47(1).

Representation:

Mr. Alderdice for the appellant

Mr. Bleach (Deacons) for the respondent