Wan Tsz Nok and Another v. Hung Fai Electrical Engineering Ltd and Others

HCPI 1117/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1117 OF 2004

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Before: Deputy High Court Judge To in Court

Dates of Hearing: 10, 11, 16 and 18 September 2008

Date of Judgment: 17 November 2008

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J U D G M E N T

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INTRODUCTION

The background

1.This is a personal injuries action arising out of a fatal accident in a construction site belonging to the 1^st Third Party, Hong Kong Baptist University (“Baptist University”) on 15 December 2001.

2.Baptist University was constructing two 21-storey student hostel buildings (“the hostel”) in 2001.  It retained Ronald Lu & Partners (HK) Ltd as its architect and leading consultant in charge of the project.  It employed the 4^th Defendant, China Civil Engineering Construction Corporation (“CCECC”) as the principal contractor responsible for the superstructure works of the hostel.  The 3^rd Defendant, Tridant Engineering Company Limited (“Tridant”) was a nominated sub-contractor of CCECC responsible for the electrical installation works. The 2^nd Defendant, Talent Regent Engineering Limited (“Talent”) was a sub-contractor of Tridant responsible for the electrical installation worksof Tower A of the hostel.  Talent further sub-sub-contracted the works to the 1^st Defendant, Hung Fai Electrical Engineering Limited (“Hung Fai”).

3.Baptist University also directly employed its own specialist contractors for specialist works, including the 2^nd Third Party, Roctec Technology Limited (“Roctec”) which was responsible for installation of telecommunication system.  Roctec sub-contracted the computer cable laying works to the 3^rd Third Party, Polycom Wiring Engineering Company Limited (“Polycom”), which in turn sub-sub-contracted the works to the 4^th Third Party, Ms Tam Yuk Ling formerly trading as Practical Engineering Co.  Mr Tam Man Tat (“the Deceased”) was the de facto proprietor of Practical Engineering Co and the brother of Ms Tam Yuk Ling.  On 15 December 2001, the Deceased was electrocuted when laying computer cables on the 19^th floor of Tower A of the hostel(“the Premises”). 

4.The Plaintiffs are the administratrices of the estate of the Deceased.  They instituted the present personal injuries action against the Defendants.  The Defendants then issued a third party notice against the four third parties.

5.There is no dispute that the fatal accident was caused by the negligence of Hung Fai.  Hung Fai was subsequently wound up and the action against Hung Fai was discontinued.  The action between the Plaintiffs and the Defendants was settled in the sum of $1.35 million on the first day of the trial on 10 September 2008.  On the same day, the third party proceedings against the 4^th Third Party was discontinued by consent with no order as to costs.  The present proceedings concern the2^nd to 4^th Defendants’ third party claim against the 1^st to 3^rd Third Parties for indemnity in respect of the Plaintiffs’ claim and costs of the action or contribution to the extent of the Plaintiffs’ claim which the Defendants were found liable.  At the hearing, Mr Clough, counsel for the 2^nd to 4^th Defendants, confirms that the Defendants’ claim is only for contribution and the Defendants are not seeking an indemnity.

Dramatis personae

6.The following persons were connected with the events leading to the fatal accident:

(1) Mr Lee Yiu Pun Simon (“Lee”), the project manager of CCECC.

(2) Mr Chiu Ka Wo (“Chiu”), the building services coordinator of CCECC.

(3) Mr Man Chi Shing (“Man”), the safety instructor of CCECC.

(4) Mr Sham Ho Kai (“Sham”), the senior project manager of Tridant.

(5) Mr Leung Chung Yung (“Leung”), a senior engineer of Tridant.

(6) Mr Yip Pak Kau (“Yip”), a partner of Talent.

(7) Mr Tang Kwong Moon (“Tang”), a site supervisor of Talent.

(8) Mr Tam Hung Kwan (“Tam”), a partner of Hung Fai.

(9) Mr Yan Kwok Chuen (“Yan”), an employee of Hung Fai, whose negligence was the primary cause of the fatal accident.

(10) Mr Leung Kin Wing, the director of the information technology services centre of Baptist University.

(11) Mr Fung Bai Lei, Dominic (“Fung”), the estates officer of Baptist University.

(12) Mr Chan Kwok Bun (“Chan”), the business manager of Roctec.  Chan has given a witness statement, but was not called to give evidence.

(13) Mr Hui Lan Tan Marvin (“Hui”), the senior systems engineer of Roctec.  Hui has given a witness statement, but was not called to give evidence.

Credibility of witnesses

7.Lee gave evidence on behalf of CCECC.  His evidence as to the precautions which should have been taken upon discovery of the defective electrical installation work is very critical of the manner in which Tridant and Talent discharged their duty of care.  His evidence is adverse to the Defendants’ case.  He is called by the Defendants.  I accept his evidence.

8.Sham and Yip gave evidence on behalf of Tridant and Talent respectively.  They were not directly involved in the fatal accident.  In essence, their evidence is that they knew nothing about the critical facts relating to the fatal accident.  They were evasive.  I give no weight to their evidence.  In any event, their evidence does not assist the Defendants’ case.

9.Leung Kin Wing and Fung of Baptist University gave evidence about the tender procedures of Baptist University and Baptist University’s involvement in the supervision of the works contracted to CCECC and Roctec.  Their evidence is not in dispute.  I accept their evidence.

10.No evidence was given on behalf of Roctec and Polycom.

The fatal accident

11.On 15 December 2001, while laying computer cables in the metal trunkings suspended from the ceiling of the Premises, the Deceased was electrocuted when he touched the chassis of a fluorescent light panel (“the Light Panel”).  

12.The Labour Department conducted an investigation into the fatal accident and prepared a report (“the Report”).  No party takes issue on the accuracy of the Report.  The following account of the accident is based on the Report, the statutory declarations of the various persons connected with the events leading to the fatal accident and the evidence of the witnesses called by the parties.

13.The power to the light panels in the Premises was sourced from a miniature circuit breaker (“MCB”) located inside the switch room at the corridor in the Premises, which in turn was connected to and controlled by the mains switch on the ground floor of Tower A of the hostel.  The switch room in the Premises was kept under lock.  Only CCECC and Tridant had custody of the key.

14.It is common ground that Yan who was not a licensed electrician qualified to perform electrical works without supervision was employed by Hung Fai to install light panels in the Premises and Yan had inadvertently connected the live wire instead of the earth wire to the chassis of the Light Panel.  Thus, the chassis of the Light Panel would become energized when the light panels in the Premises were switched on.  According to Yan, a worker of Hung Fai, Mr Ng King Hung (“Ng”) had arrived in the Premises to identify the location where the light panels were to be connected, butNg did not instruct Yan to carry a torch or to stop working if lighting was insufficient.  When Yan was installing the light panels, he was working under natural light via the door openings of the rooms along the corridor in the Premises.  The lighting condition was insufficient and no temporary lighting was provided.  Hence, he could not distinguish the colour of the live, neutral and earth wires, which accounted for the fatal mistake.  Yan did not complain to Ng about the inadequate lighting condition or request for temporary lighting or a torch. 

15.It is a commonly held opinion among the Defendants that it is a trade practice that if the lighting is inadequate for a worker to carry out his work, he shall stop working and ask the principal contractor via his supervisor to provide temporary lighting.  But this is a reactive process which relied on the safety awareness of the worker as well.  On the other hand, Yan did not know who was responsible for the provision of temporary lighting or the communication channel to request for such lighting on the site. 

16.It is also common ground that Yan had not received any safety training and safety instruction regarding proper installation of the light panels.  There is no dispute that Yan was not qualified to perform the work without supervision, had not been properly supervised while installing the light panels in the Premises and his work had not been checked by a licensed electrician.

17.On the night before the fatal accident, Man, Tang and Tam went to the Premises.  Tam switched the light panels in the Premises for commissioning purpose.  At the time, Tang noticed that the Light Panel in question was not lit up though the others were.  No insulation test or other electrical tests of the electrical circuit of the light panels had been carried out previously.  Tam thought Tang would switch off the MCB in the switch room before they left the Premises, but Tang himself could not recall whether he had done so.  Then, later that night, Leung switched off the mains switch on the ground floor at 9:30 pm 14 December 2001, believing that the mains switch of the MCB in the switch room in the Premises had been switched off.  The inference to be drawn from the fatal accident on the following morning is that Tang had not switched off the MCB before he left the Premises. 

18.Although Man and Tang knew that the Light Panel was not lit up on 14 December 2001, they did not take any immediate remedial action that night or on the following day prior to the fatal accident.  They also did not inform CCECC or put up any warning signs to warn other workers that the Light Panel was faulty and repair was necessary. 

19.The defect in the Light Panel might appear innocuous, but it was a hazardous condition as the chassis would become live when the Light Panel was switched on.  According to Lee, Tridant had the responsibility to report to CCECC any defective light panel and at least to put up warning signs to warn other workers of the defect, but that was not done.  As a result, nobody other than Man, Tang and Tam had knowledge of the defective Light Panel which could become an electrical hazard to other workers on the site.

20.On the morning of 15 December 2001, Leung switched on the mains switch on the ground floor thereby energized all the light panels including the defective Light Panel in the Premises prior to the accident.  As he was making a general inspection in the Premises, Leung noticed a worker cutting computer cables at the corridor in the Premises and that some light panels there were not lit.  He, too, took no immediate remedial action or warn the worker not to contact the Light Panel.

21.Shortly before the accident, the Deceased and his co-worker were laying computer cables in the Premises.  His co-worker noticed that the light panels in the Premises were lit, though he was not sure if the Light Panel in question was.  The co-worker was cutting computer cables while the Deceased was standing on a wooden ladder removing the side cover of a metal trunking for laying computer cables.  Suddenly, he heard a scream from the Deceased.  He saw the Deceased’s left arm was in contact with the Light Panel and his right arm was on the metal trunking while his feet were off the ladder.  Thus, the Deceased body completed the electrical circuit between the chassis of the energized Light Panel and the metal trunking and was electrocuted.

22.On 13 November 2002, Tridant pleaded guilty to and was convicted of an offence of failing to ensure that the Light Panel was constructed, installed, protected or maintained so as to prevent electrical hazard, contrary to regulations 5(1), 31(1) and 31(2) of the Factories and Industrial Undertakings (Electricity) Regulations, Cap 59W of the Laws of Hong Kong.

The cause of the accident

23.While the Defendants are unanimous that Hung Fai was primarily negligent for engaging an unqualified worker to install the light panels, they make allegations of negligence against one another within their camp.  CCECC blamed Tridant and Talent for not informing CCECC of the defective Light Panel, failing to rectify the defective Light Panel immediately or to put up appropriate warning signs at or near the Light Panel while Talent and Tridant blamed CCECC for permitting Roctec and Polycom to work in the Premises and for not informing them that workers from Roctec would be laying computer cables near the Light Panel.  Mr Sakhrani, counsel for the 2^nd Third Party, made a lengthy submission on the breach of duties of the respective Defendants.  Essentially, I agree with his submission.  But I do not find it necessary to deal with his submission as the liability of the Defendants as a camp is not in dispute.  Furthermore, as the third party proceedings is concerned with contribution from the Third Parties, the extent of the individual Defendant’s liability within their own camp is not in issue.  What is in issue is the extent to which the accident was caused by the acts or omissions of the Third Parties and an assessment of their blameworthiness in the fatal accident.  I shall set out below as part of the background and for completeness the cause of the fatal accident so far as it was attributable to the Defendants.  I shall deal with the allegation of the acts or omissions of the Third Parties which contributed to the fatal accident and their blameworthiness separately.

24.There is no doubt that the immediate cause of the fatal accident was the hazardous condition of the Light Panel caused by the mis-connection of wires by Yan.  Hung Fai was clearly negligent in engaging an unqualified worker without sufficient training to install the light panels.  It was also negligent in not providing Yan with adequate lighting to enable him to perform the work properly and in not properly instructing him to obtain temporary lighting from CCECC or to stop working if the lighting condition was inadequate.  It was negligent in not supervising Yan or having his work checked by a licensed electrician.

25.Talent was negligent in allowing Hung Fai to engage an unqualified worker to install the light panels without supervision and without having the works checked by a qualified electrician or was otherwise negligent in supervision.

26.Upon realising the defect in the Light Panel on the night before the accident, Hung Fai failed to immediately rectify the defect, or put up appropriate warning signs at or near the Light Panel to warn other workers of the defect and possible latent hazard.

27.Tridant and Talent which had knowledge of such defect through their employees failed to cause the defect to be rectified immediately or to have appropriate warning signs put up, especially when they were aware that other workers were working in the Premises.  They failed to ensure that the electricity supply was switched off until remedial work was completed.  They also failed to inform CCECC of the defect and latent hazard.

28.Tridant failed to communicate with CCECC so as to ensure that Roctec was alerted or informed of the hazard.  Tridant was convicted for its breach of its statutory duty under the Factories and Industrial Undertakings (Electricity) Regulations to ensure that the Light Panel was constructed, installed, protected or maintained so as to prevent electrical hazard.

the THIRD Parties’ case

The Third Party proceedings between the Defendants and Baptist University

29.The cause of action pleaded against Baptist University is based on occupiers liability and negligence.  The Defendants allege, firstly, that Baptist University as the occupier of the construction site was in breach of its common duty of care to ensure that the Deceased was safe in working in the Premises, contrary to section 3 of the Occupiers Liability Ordinance, Cap 314 of the Laws of Hong Kong and was negligent along with Roctec and its sub-contractors.  Secondly, they allege that Baptist University, having assumed the role of co-ordinator and project manager, failed to exercise reasonable care in supervising the execution of the works through its appointed consultants and to check that its procedures were adhered to.  Furthermore, although CCECC was the principal contractor, it had no control over the specialist sub-contractors employed directly by Baptist University and their hierarchy of sub-contractors, including Roctec and Polycom. 

30.Baptist University’s defence are that it was not an occupier of the Premises, that the works at the construction site had been contracted to an independent contractor, that it took no part in the management or control of the site, including the Premises, and that all it did was only to monitor the progress of the works at regular site meetings.  In essence, it says that it had taken reasonable steps to ensure that the works being carried out on the site were carried out in a competent manner and that it had contracted all of the works to qualified and responsible independent contractors, namely CCECC and Roctec.

The Third Party proceedings between the Defendants and Roctec and Polycom

31.The Defendants’ case against Roctec and that against Polycom are the same and can be conveniently dealt with together.

32.The Defendants’ case against Roctec is that Roctec was also an occupier of the Premises and failed to take any or any adequate care for the safety of the Deceased; exposing him to risk of injury and failing to discharge its non-delegable duty of care and/or common duty of care and to ensure that the Deceased was safe in performing his duty in the Premises.  Specifically, it relied on Roctec’s failure to provide its works schedule to CCECC and that Roctec should not have permitted Polycom or its employees to be in the Premises until clearance had been given by CCECC.  In terms of the sequence of events, the Defendants allege that it was Roctec’s and Polycom’s failing in their duty that led directly to the fatal accident. 

33.Roctec’s defence is that it was not an occupier of the Premises and that the Defendants’ breach of duty was the sole cause of the fatal accident.  Eventually at trial, Roctec chose not to call any witness, despite that two witness statements from Chan and Hui had been filed.

34.The Defendants’ case against Polycom is similar to its case against Roctec.  Polycom is not legally represented.  It filed a defence denying the allegations by the Defendants and pleaded that in the performance of its sub-contract with Roctec, it acted in accordance with its standard safety plan.  Polycom had not filed any witness statement and did not call any witness. 

The issues

35.The factual issues as between the Defendants and Baptist University or Roctec or Polycom are the same.  These are: 

(1) were Baptist University, Roctec or Polycom occupiers of the Premises;

(2) if they were, whether they were in breach of their common duty of care owed to the Deceased;

(3) if they were not, whetherthey were otherwise answerable for the torts committed by its independent contractors; and

(4) if the answer to issue (2) and/or issue (3) is in the affirmative,  what is the extent to which Baptist University, Roctec and Polycom should contribute to the damages paid to the Plaintiffs.

36.As a fall back, Baptist University seeks an indemnity from Roctec according to the terms of its contract with Roctec.  Likewise, Roctec counterclaims against Baptist University for breach of duty.  The case as between Baptist University and Roctec could only be considered depending on how the issues as between the Defendants and Baptist University, or Roctec or Polycom were resolved.  I shall deal with the case between Baptist University and Roctec only if it becomes necessary.

37.The legal principles involved in this case are the liabilities of an owner of premises towards its lawful visitors in the premises at common law and under the Occupiers Liability Ordinance and the liabilities of a employer, whether as owner of premises or otherwise, for torts committed by his independent contractors.  These legal principles are well settled.  Part of the Defendants’ claim against Roctec is based on Roctec’s non-delegable duty to provide a safe place of work for the Deceased under regulation 38A(3) of the Construction Sites (Safety) Regulations.  This may be a novel point.  I shall first set out these legal principles before dealing with the factual issues. 

38.As part of the Defendants’ case against Baptist University is based on Baptist University’s liability for the tort committed by its independent contractor, it will be more appropriate to deal with the Defendants’ case against Roctec and Polycom first before dealing with their case against Baptist University.

THE RELEVANT LEGAL PRINCIPLES

39.Under common law as well as under the Occupiers Liability Ordinance, an owner of premises as the occupier owes the common duty of care to his visitors.  This common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is permitted to be there.  This duty is not an absolute duty and the standard of care depends on all the circumstances of the case, including, where the visitor is injured by the negligence of an independent contractor employed by the occupier, the nature of the work entrusted to the independent contractor and the terms of the contract: see section 3(2) of the Occupiers Liability Ordinance.  At common law, in general, a person is not liable for the tort committed by his independent contractor.  The position is the same under the Occupiers Liability Ordinance.

Who is an occupier

40.The word “occupier” is not defined under the Occupiers Liability Ordinance.  However, it was judicially defined by Lord Denning in Wheat and E Lacon & Co Ltd [1966] AC 552.  Essentially, an occupier is a person who has a sufficient degree of control over the premises as to put him under a duty of care towards those who came lawfully onto the premises.  The test is one of control.  There is no need for an occupier to have exclusive occupation and two or more persons may be occupiers of the same premises at the same time.  In the case of a construction site, an owner who employs an independent contractor to execute works on the construction site is usually still regarded as having sufficient control of the site as to put him under a duty towards all those who might lawfully be on the site.  Lord Denning held at 577 to 578:

“In the Occupiers’ Liability Act, 1957, the word ‘occupier’ is used in the same sense as it was used in the common law cases on occupiers’ liability for dangerous premises.  It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises …  Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor”: and the “occupier” is under a duty to his “visitor” to use reasonable care.  In order to be an “occupier” it is not necessary for a person to have entire control over the premises.  He need not have exclusive occupation.  Suffice it that he has some degree of control.  He may share the control with others.  Two or more may be “occupiers”.  And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control.  If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.”

As for the position of an owner who employed an independent contractor to work on his premises, Lord Denning said at page 580:

“Fourthly, where an owner employed an independent contractor to do work on premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty towards all those who might lawfully come there.”

An employer’s liability for tort committed by his independent contractor

41.In general, where a person is injured by the negligence of an independent contractor employed by another, whether that other person is also an occupier of the premises where the injury occurred, the employeris not liable for the torts committed by its independent contractor or the contractor’s sub-contractors or their employees, unless the injury is attributable to the negligence or other personal faults of the employer or if the circumstances are such that the law imposes a strict or absolute duty upon the employer which he may not discharge by delegating its performance to an independent contractor.  This strict or absolute duty is often described as a non-delegable duty which is not just a duty to take care, but a duty to provide that care is taken, so that if care is not taken, the duty is breached.  The position at common law has been usefully summarised by the learned authors of Clerk & Lindsell on Torts, 19^th edition at paragraphs 6-52, 6-53 and 6-63:

6-52   “Introduction  If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work and in this respect the employees of the contractor, whilst acting as such, stand in the same position as their employer, so that the employer of the contractor is not liable for the torts committed by the contractor’s employees.  Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor or his employee, it may also be attributable to the negligence or other personal fault of the employer.  If, for example, he has negligently selected an incompetent contractor, or has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable.  Again if the employer has authorised or ratified the independent contractor’s tort then, on normal principles, he will be jointly liable for that tort.  So in Ellis v Sheffield Gas Consumer’s Co, where a gas company which had no statutory powers to take up the streets for the purpose of laying their gas-pipes employed a contractor to take up the surface of the streets and lay their pipes for them, and where the contractor’s employees, having laid their pipes, insufficiently reinstated the surface thus causing damage, the gas company was held liable.  As Erle J. stated: “The cause of the accident was the very thing done in pursuance of the specific directions of the defendants contained in their contract.”

6-53   Exceptions to the general rule: non-delegable duties  To the general rule that an employer is not liable for the negligence of an independent contractor there are certain apparent exceptions.  It is submitted, however, that these are not true exceptions (at least in so far as the theoretical nature of the employer’s liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the claimant.  The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of an employer for his employee.  If the circumstances are such that the law imposes a strict or absolute duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor.  If, therefore, the duty is not fulfilled, the employer is liable even though the immediate cause of the damage is the contractor’s wrongful act or omission.  The contractor, by his acts, puts the employer in breach of a personal duty.  Such duties are often described as “non-delegable” and may arise either by statute or at common law.  For present purposes, they are to be contrasted with the ordinary duty to take reasonable care which can be discharged by the employment of a contractor reasonably supposed by the employer to be competent.  Often, indeed, a non-delegable duty will be a strict duty.  At the very least, the non-delegable duty is “a duty not merely to take care, but a duty to provide that care is taken,” so that, if care is not taken, the duty is broken.

6-63   Extra-hazardous acts  In many of the cases cited above emphasis was placed upon the dangerous nature of the defendant’s undertaking and in Honeywill and Stein Ltd v Larkin Bros Ltd Slesser L.J., delivering the judgment of the Court of Appeal, enunciated a general principle governing “extra-hazardous or dangerous operations”.  He said:

 “Even of these, it may be predicated that if carefully and skilfully performed, no harm will follow; as instances of such operations may be given those of removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion: hence it may be said, in one sense, that such operations are not necessarily attended with risk.  But the rule of liability for independent contractors’ acts attaches to these operations, because they are inherently dangerous, and hence are done at the principal employer’s peril.”

The facts of the case were that the claimants had procured the defendants to take photographs of the interior of a cinema.  The premises were damaged by fire when the defendants negligently used of magnesium flash powder.  The claimants were held to be liable to the owners of the theatre.  But they were able to recover the sum paid to the owners from the defendants.  In the light of this case it appears that a non-delegable duty exists whenever an independent contractor is employed to perform an “extra-hazardous” act, but difficulty arises in determining the meaning of “extra-hazardous”.  As Slesser L.J. recognised in the passage set out above, even “extra-hazardous” acts will not cause damage if carefully and skilfully performed.  Yet any act may cause damage if it is not carefully and skilfully performed, and “it is clear that the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve danger to others if negligently done”.  Slesser L.J. himself said that “extra-hazardous” acts were “acts which, in their very nature, involve in the eyes of the law special danger to others; of such acts the causing of fire and explosion are obvious and established instances”.  The principle of Honeywill could be framed to apply to operations involving the use of things recognised in law to be “dangerous in themselves”, yet the Court of Appeal in Alcock v Wraith held that in a case of re-roofing a slate roof with a tile roof within a row of terraced houses, there was a special risk due to the known difficulties of making waterproof joints between slates and tiles.  The defendants were liable (for trespass, nuisance and negligence) for damage consequent on the re-roofing work of their independent contractor.  …” 

42.The position is the same under the Occupiers Liability Ordinance.  Section 3 of the Ordinance prescribes the extent of an occupier’s common duty of care to its visitors.  Section 3(4)(b) is particularly relevant to the facts of the present case.  Section 3(4) provides

“(4)   In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) –

(a)    …

(b)   where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

43.I think section 3(4)(b) reflects the position at common law as set out in Clerk & Lindsell on Torts.  The general rule is that the employer is not responsible for the tort committed by his independent contractor in the course of execution of the sub-contracted work unless the injury is attributable to the negligence or some personal fault of the employer.  An employer’s failure to act reasonably in entrusting the work to the independent contractor and to take such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done are clear examples of negligence or personal fault of the employer. 

44.The words “without more” in section 3(4)(b) connote the meaning that even if the employer has acted reasonably in entrusting the work to an independent contractor and had taken such step (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work was properly executed, he will still be answerable for the tort committed by his contractor or his contractor’s employees under some special or more aggravating circumstances.  Those circumstances include the employer’s conduct or the circumstances in relation to the nature of the work to be executed by the independent contractor in which the law imposes a higher standard of care on the employer.  For example, if in the supervision of his contractor, the employer has interfered with the contractor’s execution of work in such a manner or to such an extent as to contribute to the hazardous condition, then by reason of his conduct the employer has taken himself outside the “without more” limit of section 3(4)(b).  An example of special circumstances is where an independent contractor is employed to perform an extra-hazardous act, which as a matter of common sense and policy must be at the employer’s peril.  Under those circumstances, the employer is under a non-delegable duty which he may not delegate to his contractor without at the same time remaining vicariously liable for breach of the duty by his contractor.  Thus, in my view, section 3(4)(b) also reflects the position under common law. 

45.The burden of proving that the employer has acted reasonably or has not been negligent in entrusting the work to the independent contractor and has taken such steps as he reasonably ought in order to satisfy himself that the contractor was competent and that the work was properly executed is on the employer.  Once the employer has discharged that burden, it is up to the injured person to show that the case falls outside the “without more” circumstances, such that the employer is liable for the tort committed by his contractors despite he has taken reasonable care in his employment of the contractor.

The test as to whether an occupier has discharged his duty of care in employing an independent contractor

46.The test whether an occupier of premises has discharged his duty of care owed to his visitor injured by the negligence of his independent contractor or employees of his independent contractor was considered by Hunter J, as he then was, in Yeung Kam Fuk v Len Shing Construction Co Ltd & Ors [1986] HKC 160.  Hunter J adopted a four-point test as suggested by the learned authors of Clerk & Lindsell on Torts, 15^th edition, para 1233, which is as follows:

(1) Has the occupier acted reasonably in entrusting the work to an independent contractor?

(2) Has the occupier used reasonable care in selecting the contractor?

(3) Has the occupier taken reasonable steps (if any are possible) to supervise the carrying out of the work?

(4) Has the occupier used reasonable care to check (if possible) that the work has been properly done?

This test must apply equally to the duty of care at common law and under the Occupiers Liability Ordinance. 

Whether the non-delegable statutory duty to provide a safe place of work imposed on the contractor responsible for a construction site under regulation 38A(3) of the Construction Sites (Safety) Regulations is also owed by a sub-contractor or the employer

47.One of the basis of the Defendants’ claim against Roctec is that Roctec was under a non-delegable statutory duty to provide a safe place of work for the employees of its sub-contractor under regulation 38A(3) of the Construction Sites (Safety) Regulations, Cap 59I.  This basis of claim is not relied on by the Defendants in their claims against Baptist University and Polycom.  Section 38A(3) reads:

“Subject to paragraph (4), the contractor responsible for any construction site shall take suitable and adequate steps to ensure that, so far as is reasonably practicable, no person gains access to any place on the site where any hazardous conditions are present.”

48.Mr Clough submits that section 38A(3) imposes a non- delegable statutory duty on Roctec to provide a safe place of work and it was Roctec’s breach of this duty which was the last act which contributed to the Deceased’s death.  He also quotes the headnote of the Court of Final Appeal’s decision in Rainfield Design & Associates Ltd v Siu Chi Moon [2000] 2 HKC 420, which he submits gives a good summary of the responsibilities of employers in general and the principal contractor under that regulation.  Paragraphs (1) and (3) of the headnote are pertinent.  They read:

“(1)   The purpose of the Regulations was clearly to provide for the safety of workmen and the primary responsibility for this must rest with the contractor responsible for the site.  Even where a subcontractor had a contractual duty to provide plant and equipment, the contractor responsible for the site would not be relieved from its duty under the Regulations.  This duty, being a statutory duty under reg 38A of the Regulations, was to ensure that there was, so far as was reasonably practicable, suitable and sufficient safe access and egress on the construction site.  Regulation 38A could not be read down to mean that the duty thereunder would be discharged if the contractor had made suggestions towards suitable and sufficient safe access and egress.  Even if the finding that the respondent would not have complied with a suggestion that he use a ladder were to stand, it would not destroy the causal link between the appellant’s breach of statutory duty and the respondent’s accident (at 422H-I, 423G-H, 427C-D).

(2)  …

(3)  The appellant had not used due diligence and had not taken all steps as far as was reasonably practicable to ensure site safety.  All that the appellant had done was to enter into the contract with the respondent’s company and to rely on it to fulfil the statutory duties in ensuring site safety.  It might be that, in an exceptional case, it would be possible to avoid civil liability when subcontracting to a highly qualified specialist, thus enabling a contractor to be protected by the words ‘so far as is reasonably practical’ in reg 38A.  This was not such a case.  Dicta of Lord Reid in Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 at 776 considered (at 423I-424D).”

49.Mr Sakhrani submits that this non-delegable duty is imposed by regulation 38A(3) of the Construction Sites (Safety) Regulations on the principal contractor only and not on the sub-contractors.  He further argues that Mr Clough has confused the relationship between CCECC’s line of sub-contractors and Roctec’s.

50.The answer to counsel’s dispute is to be found in section 2(2)(a) of the Construction Sites (Safety) Regulations.  Under that regulation, “contractor responsible for any construction site” is defined as follows:

“(2)   For the purposes of these regulations –

(a)  a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;

(b)  a contractor is responsible for any plant referred to in these regulations if it is located at a construction site for which he is responsible.

51.I think the definition is unequivocal.  If there is only one contractor undertaking construction work in a site, he is the contractor responsible for the construction site.  But if, as in the present case, there is more than one contractor, then the principal contractor is the contractor responsible for the construction site.  The Construction Sites (Safety) Regulations impose on contractors responsible for various specific equipments or operations, such as hoists, scaffolds, prime movers, transmission machineries, other machineries and mechanical equipments, specific statutory duty in respect of their specific equipments or operations.  As distinct from those contractors responsible for specific equipments or operations, the Construction Sites (Safety) Regulations impose on the contractor responsible for any construction site a different category of duties which is more appropriate for a principal contractor with overall management responsibility of the site to perform.  Those duties include the duty to ensure safe access to and egress from place of work, safety from hazardous conditions, safety while working at height, safety in executing excavations, emergency exits, use of helmets, and responsibility for health and welfare issues etc.  To extend the meaning given to the term, “contractor responsible for any construction site” to sub-contractors or head sub-contractors in respect of a specialised sub-contract as contended by Mr Clough will produce absurd results.  For example, in the instant case, if Roctec which had contracted to lay computer cables were to be held to be a contractor responsible for the construction site, Roctec would be charged with, just to name a few, the duty of identifying and rectifying hazardous conditions of other persons working at height in the Premises where the computer cables were laid (regulation 38AA), maintaining fire-fighting appliances on that floor (regulation 54) and preventing other sub-contractors from engaging young persons in cleaning dangerous parts of any machinery on that floor (regulation 46).  Roctec as the head specialist sub-contractor in its specialised field could not have the ability and means to discharge those obligations.  It could not have been the intention of the legislature to impose such obligations on a sub-contractor or even a head sub-contractor.  If it is intended that a sub-contractor shall be charged with such of the duties of the principal contractor, the regulations could have easily made it more explicit.  With respect to Mr Clough, on a proper construction of regulation 2(2)(a) where there is more than one contractor on the site, the principal contractor only is the contractor responsible for the construction site and not its sub-contractor.  Hence, the non-delegable duty to provide a safe place of work rests squarely on the shoulders of CCECC and not on Roctec or Polycom.  It is wholly unarguable for CCECC to pass its statutory duty onto Roctec.

52.It appears that that Mr Clough’s argument is directed at Roctec only and not at Baptist University which is the employer and not the contractor responsible for the site.  If that is his contention, I agree.  Regulation 38A imposes on a contractor responsible for any construction site the duty, among other things, to take suitable and adequate steps to ensure so far as is reasonably practicable that no person gains access to any place on the site where any hazardous conditions are present.  This duty is not imposed on the employer.  On a fair reading of the regulation, it is obvious that the legislature could not have intended otherwise.

The THIRD PARTY PROCEEDINGS against Roctec and Polycom

Were Roctec and Polycom occupiers of the Premises

53.In its defence, Roctec denied it was an occupier of the Premises where the accident occurred.  However, no evidence has been called by Roctec and Mr Sakhrani made no submission on this issue.  As set out in paragraph 40, the test whether one is an occupier is whether he has a sufficient degree of control over the premises as to put him under a duty of care towards those who came lawfully onto the premises.  It is also trite law that there is no need for an occupier to have exclusive possession of the premises and that two or more persons may be occupiers of the same premises at the same time.

54.Though no evidence has been called by Roctec, no evidence has been adduced by the Defendants as to Roctec’s control over the Premises either.  The undisputed evidence is that Roctec, Polycom and their workers were admitted to the Premises at least on 14 December 2001 and carried out certain works.  They did not have exclusive possession of the Premises.  There is also a letter dated 13 December 2001 issued by Lee to Roctec which referred to a telephone conversation between Chiu of CCECC and Hui of Roctec on 11 December 2001, in which it was noted that CCECC and Roctec “mutually agreed that all cable containment (complete with lid cover and FR rockwool) have been handed over to Roctec for their wiring works to proceed”.  Though Lee had no personal knowledge of the telephone conversation between Chiu and Hui, he did not dispute about the handing over of the cable containment or the trunking to Roctec.  What was handed over to Roctec was the trunking, which effectively was a conduit suspended from the ceiling of the Premises, and not the entire Premises.  In a construction site with different types of works going on at the same time, I cannot be satisfied that given such a minimal degree of participation by Roctec or Polycom in the Premises, Roctec or Polycom had sufficient control over the Premises such that the law would impose on them the common duty of care towards all those who might lawfully be in the Premises to ensure that they are reasonably safe in using the other parts of the Premises.  By reason of their minimal participation in the Premises, it would be absurd to require Roctec or Polycom to identify and rectify all hazardous conditions in the Premises, for example, to check that all the electrical circuits were properly wired and all electrical equipments were properly earthed.  The Defendants bear the burden of proving Roctec or Polycom was an occupier of the Premises.  In my view, they have failed to discharge that burden of proof, even in the absence of evidence from Roctec and Polycom.

Were Roctec and Polycom in breach of the common duty of care as occupiers of the Premises

55.The Defendants having failed to prove that Roctec was an occupier of the Premises, Roctec was not under the common duty of care to take such care as is reasonable to see that the Deceased would be reasonably safe in using the Premises for the purpose of laying the computer cables.  But assuming that I am wrong in the above finding, the factual circumstances of the present case are such that this duty, if it existed, must have been discharged. 

56.The occupier’s common duty of care is not an absolute one.  Section 3(2) of the Occupiers Liability Ordinance provides that the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is permitted to be there.  The relevant factual circumstances were as follows.  CCECC was the principal contractor.  Its project manager, Lee admitted in cross-examination that CCECC was effectively in charge of the site and that although Roctec was an independent contractor directly employed by Baptist University, Roctec operated effectively on the site as CCECC’s sub-contractor.  CCECC was responsible for co-ordinating the works of all sub-contractors in the various fields, including Roctec.  In addition, CCECC was also the contractor responsible for the construction site.  It was under a statutory duty imposed by regulation 38A of the Construction Sites (Safety) Regulations to take suitable and adequate steps to ensure so far as is reasonably practicable that no person gains access to any place on the site where any hazardous condition is present.  CCECC had exclusive control of the construction site and was the occupier of the Premises at the material time. 

57.It was under those circumstances that according to the undisputed evidence, Chiu on behalf of CCECC agreed with Hui on behalf of Roctec that all cable containments had been handed over to Roctec for Roctec to proceed with laying the computer cables.  In the circumstances, Roctec, as CCECC’s sub-contractor in one specialist field, was entitled to look to CCECC for ensuring that the Premises within which the trunkings were located were reasonably safe for Roctec, Polycom and their employees to work in for the purpose of laying computer cables.  Thus, even if Roctec were an occupier, its duty was only to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe.  Roctec had liaised with CCECC for the use of the Premises and was allowed into the Premises by CCECC on 11 December 2001 after proper liaison due procedure.  In those factual circumstances, it is reasonable for Roctec to rely on the proper and due performance by CCECC and its hierarchy of sub-contractors of their duty especially in respect of safety matters and to assume that the Premises were reasonably safe for its workers to work in for the purpose of laying computer cables.  It would be unrealistic to require Roctec, as an occupier, to engage another team of electricians to conduct a thorough inspection of the Premises and check every possible hazardous condition, including checking the circuits of all the electrical installations and seeing that all the electrical equipments were properly earthed before permitting the Deceased or any of their workers to work in the Premises.  That was the duty of the Defendants which they had breached.  There is no dispute that the Defendants were in breach of that duty.  In the circumstances of this case, Roctec had discharged its duty of care by obtaining clearance from CCECC for admission into the Premises after proper liaison and due procedure.  Likewise, Polycom was entitled to rely on Roctec having discharged its duty of care by properly liaising with CCECC for admission into the Premises for it to lay the computer cables.

Was Roctec otherwise negligent 

58.Mr Clough’s main argument against Roctec is that it failed to take any or any adequate care for the safety of the Deceased, exposing him to risk of injury and that if Roctec had in place a proper system for ensuring the safety of the work place of its employees and those of its sub-contractors, the Deceased would not have been at the scene of the fatal accident.  On the other hand, Mr Sakhrani argues that the Defendant’s breach of duty was the sole cause of the fatal accident.

59.Mr Sakhrani made lengthy submission on the breach of duty by the individual Defendants.  There is no need for me to consider his submission as the Defendants’ negligence has been conceded.  The purpose of the third party proceedings is not to apportion liability among the Defendants but to determine if the Third Parties are liable to contribute to the damages paid by the Defendants to the Plaintiffs.  The issue is whether had it not been for the negligence of Roctec and Polycom, the accident would not have occurred and the blameworthiness of Roctec and Polycom in contributing to the fatal accident.  Thus, it is the act or omission of Roctec and Polycom which is in issue.  The Defendants bear the burden of proof.

60.Apart from alleging that Roctec, presumably Polycom as well, failed to take adequate care for the safety of the Deceased, exposed him to risk of injury, breached its non-delegable duty of care and/or common duty of care to ensure that the Deceased was safe in performing his duty, no evidence of such negligence has been adduced.  I have found that Roctec and Polycom were not under any non-delegable duty or common duty of care to the Deceased.  The remaining allegation of breach of duty is failure to take adequate care for the safety of the Deceased and exposing him to risk of injury.  There is no allegation or evidence that Roctec and Polycom were negligent in designing the system of work or work procedure, or were negligent in supervision.  The direct cause of the fatal accident was the hazardous condition of the Light Panel with a mis-connection.  Thus, the allegation of breach of duty must be premised on Roctec’s or Polycom’s allowing the Deceased to work in the Premises without checking the hazardous condition of the Light Panel.  

61.Mr Clough has not gone that far as to argue that a specialist contractor, such as Roctec, which was given access to the Premises to execute some specialised work has the duty of checking all electrical installations.  It is difficult to launch such argument.  If someone is given permission by the owner or person in charge of the premises to execute work inside the premises, he is entitled assume that the premises is safe for the purpose for which he was permitted to be there.  He is entitled to assume that he would be warned of latent danger, if any, in the premises.  This is all the more so if the premises is part of a construction site and a person is given access to the premises by the contractor responsible for the construction site because of the statutory duty imposed on him under the Construction Sites (Safety) Regulations.  Roctec was given permission to enter the Premises by CCECC.  It was entitled to assume that the Premises was safe for Roctec, its sub-contractor and their workers to work therein for the purpose of laying computer cables.  Roctec was entitled to assume that CCECC would warn it of any latent hazard in the Premises.  Any duty that is owed by Roctec and Polycom to take adequate care for the safety of their employees and not to expose them to risk of injury must be a duty of care in relation to a risk which is foreseeable.  It cannot be a strict or absolute duty.  While CCECC tried to absolve itself from blame by saying that it had no knowledge about the mis-connection and the hazard, the fact remains therefore that the risk was as unforeseeable to CCECC as it was to Roctec and Polycom.  In the circumstances, there could be no duty owed by Roctec and Polycom to its employees and no breach of any duty. 

62.An interesting feature in this case is that the Defendants are not fighting on an united front, despite they are jointly represented by one firm of solicitors.  As pointed out by Mr Sakhrani, the Defendants make allegations of breach of duty which are material and causative of the fatal accident against one another but they make none against the Third Parties who are represented by different solicitors or unrepresented.  Tridant and Talent allege that CCECC should not have permitted Roctec to work in the Premises and that they were not aware of Roctec’s or Polycom’s employees working in the Premises.  On the other hand, CCECC alleges serious breach of duty on the part of Tridant and Talent and for not informing CCECC of the defective Light Panel.  It is not necessary for me to assess the degree of blameworthiness among the Defendants.  Collectively they were negligent.  Apart from Hung Fai which was primarily responsible for making the mis-connection and engaging unqualified workers for the works the attitude of senior members of Tridant and Talent were deplorable.  They did not test the installations despite the light panels had been installed for over a week.  On the night before the accident, Man of Tridant, Tang of Talent and Tam of Hung Fai energized the light panels in the Premises for commissioning purposes.  They knew that the Light Panel in question was not lit up.  They did not check or rectify the defect immediately or cause it to be rectified or put up any warning signs.  Tang did not switch off the MCB in the switch room in the Premises.  On the following day, despite their knowledge of the defect, Tang and Tam permitted Leung to turn on the mains switch, thus energizing the MCB in the Premises and the Light Panel in question.  The defect in the Light Panel might appear innocuous, but it was a serious hazardous condition as it eventually turned out.  Lee took a very serious view of the defect.  He was critical of Tridant’s or Talent’s failure to report the defect and for not switching off the MCB in the Premises.  Since this is evidence from the Defendants’ camp, I must accept it as evidence for and as much as evidence against the Defendants collectively.  Tridant, through its employees, knew there were other workers working in the Premises laying computer cables.  Tridant ought to know that the trunking for computer cables was next to the light panels.  Tridant also ought to know the defective Light Panel might be a cause of hazard.  Tridant did not inform the workers thereat or CCECC.  CCECC was the communication channel with Roctec.  CCECC was not informed of the defect and could not have warned Roctec, which rendered the risk unforeseeable.  Mr Clough argues that Roctec was in breach of its duty for failing to give CCECC three days’ notice of its works schedule.  But, because of the above and the fact that Chiu on behalf of CCECC handed over the trunkings to Roctec to commence work, this breach fell into insignificance.  In the circumstances, I can only conclude that the Defendants’ negligence was the sole cause of the fatal accident and there was no breach of any duty of care owed by Roctec or Polycom to the Deceased.

Conclusion

63.Roctec and Polycom were not occupiers of the Premises.  Even if they were, they had discharged their common duty of care to the Deceased.  Not being the contractor responsible for the construction site, they were not under any statutory or non-delegable duty to ensure that the Premises was safe for the Deceased to work in.  They were entitled to rely on the performance of that duty by CCECC.  The Defendants’ negligence was the sole cause of the fatal accident.  The Defendants’ claim for contribution against Roctec or Polycom must be dismissed.

The THIRD PARTY PROCEEDINGS against Baptist University

64.The Defendants’ action against Baptist University is based on Baptist University’s liability for breach of duty by CCECC and its hierarchy of sub-contractors and the negligence of Roctec and its hierarchy of sub-contractors.  As I have found that there was no breach of duty on the part of Roctec or Polycom, what remains to be decided is whether Baptist University should be held liable for the breach of duty by CCECC and its hierarchy of sub-contractors. 

Was Baptist University an occupier of the Premises

65.Baptist University is the owner of the construction site.  It retained Ronald Lu & Partners (HK) Ltd as the architect and leading consultant for the construction of the hostel.  It employed CCECC as the principal contractor for the superstructure works and a number of independent specialist contractors, such as Tridant and Roctec. 

66.According to Fung, the estate officer of Baptist University, the management of the construction site was wholly under the control of CCECC at all material times.  Baptist University had no authority to give any instruction either to any of the sub-contractors or CCECC as to the manner in which the works were to be carried out.  If Baptist University was not satisfied with the work of CCECC, it could only inform Ronald Lu & Partners (HK) Ltd to take the matter up with CCECC.  If staff of Baptist University wished to access the construction site, they had to be accompanied by staff of CCECC and each visit was logged by CCECC. 

67.The above evidence was not seriously disputed by CCECC.  Even according to Lee, CCECC’s project manager, CCECC had physical control of the construction site.  It employed its own security guards to control access into the construction site.  All workers had to obtain work permits issued by CCECC before they would be permitted to enter the site.  Any visitor who wished to access the site without a permit had to register at the entrance of the site stating the purpose of his visit.  CCECC’s security guards had power to deny such a visitor from accessing the site.  It appears that the above procedure applied also to staff of Baptist University, with the exception of its clerk of works who was known to the staff of CCECC.  Staff of Baptist University permitted access to the site had to be escorted by staff of CCECC.  As for workers of the direct contractors employed by Baptist University, the direct contractors had to apply to the estates office of Baptist University for permission for their workers to access the site.  The estates office would then liaise with CCECC which would decide whether it was appropriate to allow those workers to have access into the site. 

68.On the above facts, it is plainly obvious that CCECC had exclusive control of the construction site.  However, Baptist University also maintained some minimal presence in the site through its clerk of works, who presumably checked the progress and quality of works as well as safety issues.  It supervised the progress of the works and execution of the works by CCECC and its line of sub-contractors through its consultant, Ronald Lu & Partners (HK) Ltd.  The consultant conducted monthly site meetings to monitor the progress of work and safety issues.  It reserved its authority to appoint direct specialist contractors to work on the site.  I think this is just one of the usual cases to which Lord Denning’s dicta in Wheat and E Lacon & Co Ltd [1966] AC 552 at 580 applies, i.e. where an owner employed an independent contractor to do work on a premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty towards all those who might lawfully be in the place.  Despite that CCECC had exclusive control of the site, I nevertheless have no difficulties to find that Baptist University maintained sufficient minimal supervision and control as to make it a co-occupier of the construction site with CCECC.

Whether Baptist University had discharged its duty of care in employing independent contractors

69.The test whether Baptist University has discharged its duty of care in employing its independent contractors, namely CCECC and Roctec, is the four-point test as set out in Yeung Kam Fuk v Len Shing Construction Co Ltd & Ors [1986] HKC 160.

70.The superstructure works of the hostel and the computer cable laying work are not what one could reasonably regard as extra-hazardous work.  It is only reasonable for Baptist University to have entrusted them to competent contractors in the respective fields.  The answer to the first question of the four-point test must be in the affirmative.

71.There is no dispute that CCECC and Roctec were competent and experienced contractors in their respective fields. The Defendants never allege that Roctec was incompetent nor have they pleaded their own incompetence. Tridant had a good track record in safety and in International for Organization for Standardization for quality assurance.  Baptist University had previous dealings with Roctec and was satisfied with its performance.  Baptist University had an established tendering procedure and there is no dispute that the procedure is proper and appropriate.  Baptist University awarded the respective contracts to CCECC and Roctec after proper tendering procedure.  The answer to the second question must be in the affirmative.

72.Baptist University did liaise with CCECC to check the progress and quality of work.  It monitored the progress and quality of work through Ronald Lu & Partners (HK) Ltd and its own clerk of works.  Ronald Lu & Partners (HK) Ltd conducted regular monthly site meetings with its specialist consultants, CCECC and its sub-contractors and the direct contractors employed by Baptist University to monitor the progress and quality of work and safety issues.  Representatives from the estate office and information technology department of Baptist University also attended those site meetings as and when it was appropriate.  

73.Specifically in respect of the work of laying computer cables, Baptist University or Ronald Lu & Partners Ltd introduced Roctec to CCECC at the site meeting held on 5 December 2001, specifically instructed CCECC to liaise with Roctec and Tridant for the work of laying computer cables and specifically instructed Roctec to give CCECC three days’ notice of commencement of work and to submit a work programme.   

74.CCECC was the principal contractor and had overall control and management of the construction site.  It had overall responsibility of ensuring safety of the workers on the site.  It was under a non-delegable statutory duty imposed by the various regulations under the Factories and Industrial Undertakings Ordinance to do what was reasonably practicable to safeguard the safety of the workers working on the site.  Baptist University’s duty of taking care in supervision of CCECC and its sub-contractors could not have been more onerous than CCECC’s own duty in ensuring that its own sub-contractors execute the works properly and that other visitors on the site were reasonably safe for the purposes for which they were permitted to be on the site.  Furthermore, there is no dispute that Mr Philip Wu and Mr S M Chan of the estate office of Baptist University went to the site periodically to check on the progress of work.  While CCECC might have been negligent in its supervision of its sub-contractors which resulted in the mis-connection and the breakdown in communication between CCECC and Tridant or Talent, there can be no doubt that Baptist University had taken reasonable steps in supervising the execution of work by CCECC and Roctec. 

75.Having engaged a competent contractor such as CCECC as the principal contractor responsible for the construction site, a competent contractor such as Tridant with good track record in safety, having engaged a competent specialist contractor with past record such as Roctec and having engaged Ronald Lu & Partners (HK) Ltd with its team of consultants in various specialist fields, it was reasonable for Baptist University to rely on the skill and expertise of its consultants to supervise the execution of work by CCECC, Roctec and their sub-contractors and to rely on the competence of CCECC and Roctec in supervising their sub-contractors.  This is one of those typical cases in which Lord Keith’s observation in Ferguson v Welsh and Others [1987] 3 All ER 777 at 783 is applicable.  His Lordship said:

“It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor’s activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work.  In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe.” 

In the circumstances, the answer to the third question must be in the affirmative.

76.The last question is whether Baptist University has used reasonable care to check (if possible) that the works had been properly done.  The relevant work in question is the installation of the light panels, in particular whether the wires had been properly connected or the chassis of the light panels had been properly earthed.  In this context, the question whether the computer cable laying work had been properly executed does not arise. 

77.The duty of care owed by Baptist University to employees engaged by its contractors or sub-contractors must be different from that owed to an ordinary visitor.  If the works had been completed and handed over to Baptist University so that the hostel is open to ordinary visitors, Baptist University has the duty to use reasonable care to check that the works had been properly carried out before opening the hostel to ordinary visitors.  The situation is very much different while works are still in progress and when one is looking at the duty of the employer of the construction site who is practically absent from the site and had contracted the works to a competent principal contractor.  In that situation, it is not possible for the employer to check if each stage of the works had been properly carried out as if it were the contractor’s own safety officer or quality control officer.  As I have said, Baptist University’s duty of supervision could not be more onerous than CCECC’s.  Likewise, Baptist University’s duty to exercise reasonable care to check if the works had been properly done could not be more onerous than CCECC’s.  That duty simply did not exist while the works were still in progress and under the control of the principal contractor.

78.Baptist University had entrusted all the works to CCECC, a competent and experienced independent contractor in the kind of works entrusted to it.  Baptist University had no reason to doubt CCECC’s competency and ability in supervision.  It is common ground that CCECC had no knowledge of the mis-connection of wires by Yan, had no knowledge that the Light Panel did not light up when energized and had not been informed by Talent or Tridant about the defective Light Panel.  Tridant did not test the light panels for a week after its installation.  Baptist University could have no knowledge when the light panels were installed and could not possibly have checked if the works had been properly done.  In fact, on circumstances such as these, it was unreasonable to impose on Baptist University as the employer the duty to check each stage of the works as it progressed and it was impossible for Baptist University to do so.  That being the situation, the fourth question need not be answered.  

79.In the circumstances, I find that Baptist University had exercised reasonable care in entrusting the works to its independent contractors.

Whether Baptist University was under any non-delegable duty of care for the safety of workers in the Premises or was otherwise liable

80.There is no argument that the superstructure works contracted to CCECC or the computer cable laying works contracted to Roctec were of an extra-hazardous nature such that the duty of care owed to visitors could not be delegated.  On the facts of this case, it is difficult to launch any argument along that line.   

81.Lastly, there is no evidence that Baptist University had interfered with the execution of work under the contracts by CCECC and Roctec which in any way contributed to the mis-connection and the accident.

Conclusion

82.In conclusion, Baptist University was the occupier of the construction site, including the Premises.  However, the fatal accident was caused solely by the negligence of independent contractor and its sub-contractors employed by Baptist University.  Baptist University had discharged its duty of care in employing its independent contractors.  It has satisfied the four-point test in Yeung Kam Fuk v Len Shing Construction Co Ltd & Ors. It has discharged its common duty of care under common law or under the Occupiers Liability Ordinance.  The Defendants have failed to show that Baptist University has by its act or omission or by reason of the circumstances of the case taken itself outside the “without more” circumstances in section 3(4)(b) of the Occupiers Liability Ordinance as to become answerable for the tort committed by CCECC and its hierarchy of sub-contractors.  CCECC’s and its sub-contractors’ negligence was the sole cause of the fatal accident.  Roctec has not been negligent.  Accordingly, Baptist University is not liable for the fatal accident or to contribute to the damages paid by the Defendants to the Plaintiffs.  In the circumstances, it is not necessary to consider the issue of indemnity as between Baptist University and CCECC or Roctec under their respective contracts.

CONCLUSION

83.For the above reasons, I dismiss the Defendants’ Third Party proceedings against the 1^st, 2^nd and 3^rd Third Parties with an order nisi that the Defendants shall pay the costs of the Third Parties.  Such costs are to be taxed, if not agreed.

Mr. Neal Clough, instructed by Messrs Henry H. C. Wong & Co., for the 2^nd, 3^rd and 4^th Defendants

Mr. Wong Chi Kwong, instructed by Messrs T. H. Koo & Associates, for the 1^st Third Party

Mr. Ashok K. Sakhrani, instructed by Messrs Szwina Pang, Edward Li & Co., for the 2^nd Third Party

The 3^rd Third Party, in person, represented by the company director Mr. Kao Pun Ho

Ms. Lorinda C.W. Lau, instructed by Messrs Oliver C.M. Chan & Co., for the 4^th Third Party