14

Luen Hing Fat Coating & Finishing Factory Ltd

and
Waan Chuen Ming

Ma CJ, Bokhary, Chan and Ribeiro PJJ and Lord Walker of

Gestingthorpe NPJ
Final Appeal No 19 of 2009 (Civil)
11, 21 January 2011

Tort — negligence — duty of care — person who engaged independent

contractor, in circumstances, could owe duty to employee of independent
contractor
Tort — negligence — duty of care — whether duty existed required holistic
view of foreseeability, proximity, and fairness, justice and reasonableness —
elements of threefold test were labels and their usefulness limited — whatever
formula used, outcome in grey area case had to be determined by judicial
judgment — formulae could help to organise thinking, not provide answers
D engaged P’s employer, IC, an apparently competent independent
contractor to repair a machine in its factory. The work was not
intrinsically hazardous. D lent IC equipment, namely two pallet
jacks and a bearing trolley which were normally used to transport
cloth, which was not intrinsically dangerous or faulty. As S, D’s
supervisor, knew would happen, but did not take any steps to stop
or warn against it, IC used that equipment to do the work by an
unsafe method: while P and IC were using this equipment to reinstall
part of the machine which weighed 1.5 tons, it fell onto P, crushing
both of his legs. At issue in D’s appeal to the Court of Final Appeal
was whether D owed P a duty of care in these circumstances.

Held, dismissing the appeal, that:

(1) A person was not vicariously liable for his independent
contractor’s torts, but he might be liable for his own
negligence in failing to take care to select a competent
contractor. (See para.20.)
(2) Ultimately, whether a duty of care existed required a holistic
view of foreseeability, proximity and the need to be satisfied
that it would be fair, just and reasonable to impose a duty of
care. The elements of the threefold test were labels and their
usefulness was limited. It was worth remembering that
whatever formula was used, the outcome in a grey area case
had to be determined by judicial judgment and that formulae
could help to organise thinking but that they could not provide

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(2011) 14 HKCFAR v Waan Chuen Ming 15

answers. As for “proximity” and “the requirements of fairness,

justice and reasonableness”, there was no real demarcation
between them. These two headings were no more than two
labels under which the court examined the pros and cons of
imposing liability in negligence in a particular type of case
(Caparo Industries Plc v Dickman [1990] 2 AC 605, Canadian
National Railway v Norsk Pacific Steamship Co [1992] 1 SCR
1021, South Pacific Manufacturing Co Ltd v New Zealand
Security Consultants & Investigations Ltd [1992] 2 NZLR
282, White v Jones [1995] 2 AC 207, Marc Rich & Co AG
v Bishop Rock Marine Co Ltd [1996] AC 211, Customs and
Excise Commissioners v Barclays Bank Plc [2007] 1 AC 181
applied). (See paras.29–30.)
(3) Considerations of fairness, justice and reasonableness were an
intrinsic element of the duty of care and could be employed
to ground the imposition of a duty of care; either where no
such duty had previously existed, or where a duty had
previously been denied (Z v United Kingdom (2002) 34
EHRR 3 applied; South Pacific Manufacturing Co Ltd v New
Zealand Security Consultants & Investigations Ltd [1992] 2
NZLR 282, Customs and Excise Commissioners v Barclays
Bank Plc [2007] 1 AC 181 considered). (See paras.35–36.)
(4) Here, a duty of care would be imposed on D. First, there was
no doubt that the harm was foreseeable: it was obvious that
the operation was dangerous. Second, proximity existed
between P and D: P was on D’s premises doing work which
his employer, IC, had been engaged to do for D and using
equipment on loan from D. Third, it was fair, just and
reasonable to hold that D owed to P a duty of care. D had
loaned IC the pallet jacks and bearing trolleys and knew or
ought reasonably to have known that they would be used to
do the work by an unsafe method. D also chose to engage an
independent contractor who had to borrow makeshift
equipment from it, rather than one who had the equipment
needed to do the work in a safe manner. That would
presumably have been more costly. But safety was not a thing
on which to cut costs like this. (See paras.39–41.)
(5) Where the danger was to life and limb and personal safety
was at stake, the standard of care demanded was high and
involved legal policy. This was particularly so where, as here,
the person was in a vulnerable position and at a disadvantage
accordingly. P did not appear to have been in a good position
to protest against, let alone veto, the unsafe method of work
with which IC and D were content (Perrett v Collins [1998]
2 Lloyd’s Rep 255, Cathay Pacific Airways Ltd v Wong Sau
Lai (2006) 9 HKCFAR 371 applied). (See paras.42–43.)

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(6) Further, this was not a case of pure omission for which no
civil liability was imposed. S’s function was to supervise and
his knowledge before the accident occurred that the operation
was extremely unsafe was to be attributed to D, his employer.
S’s failure to act on that knowledge was D’s failure. Moreover,
D’s position was adversely affected, not only by S’s omission,
but its positive part, thus assuming a positive role, in the
creation of the danger, doing so by lending its equipment
which it knew or ought reasonably to have known would be
used to do the work by an unsafe method. Such participation,
too, went to it being fair, just and reasonable to hold that D
owed P a duty of care, and lay at the heart of P’s case against
D in negligence. (See paras.44–46.)
— — —

— — —
—
—

1.5

—
(1)

( 20 .)
(2)

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 Luen Hing Fat Coating & Finishing Factory Ltd
(2011) 14 HKCFAR v Waan Chuen Ming 17

Caparo Industries Plc v

Dickman [1990] 2 AC 605 Norsk Pacific Steamship Co Ltd
v Canadian National Railway Co [1992] 1 SCR 1021 South
Pacific Manufacturing Co Ltd v New Zealand Security
Consultants & Investigations Ltd [1992] 2 NZLR 282 White
v Jones [1995] 2 AC 207 Marc Rich & Co AG v Bishop
Rock Co Ltd [1996] 1 AC 211 Customs and Excise
Commissioners v Barclays Bank Plc [2007] 1 AC 181 (
29 30 .)
(3)

Z v United Kingdom (2002) 34 EHRR 3 South Pacific

Manufacturing Co Ltd v New Zealand Security Consultants
& Investigations Ltd [1992] 2 NZLR 282 Customs and Excise
Commissioners v Barclays Bank Plc [2007] 1 AC 181
( 35 36 .)
(4)

( 39 41 .)
(5)

Perrett v Collins [1998] 2 Lloyd’s Rep 255 Cathay

Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR
371 ( 42 43 .)
(6)
S
S
S
S

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—
( 44 46 .)
Mr Godfrey Lam SC and Mr Kent Yee, instructed by King & Co,
for the appellant.
Mr Neville Sarony SC and Mr Cheung Yiu Leung, instructed by
Samuel Li & Co and assigned by the Director of Legal Aid, for
the respondent.

Cases cited in the judgment

Anns v Merton London Borough Council [1978] AC 728, [1977]
2 WLR 1024, [1977] 2 All ER 492
Barrett v Enfield London Borough Council [2001] 2 AC 550, [1999]
3 WLR 79, [1999] 3 All ER 193
CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC
1013, [1988] 2 WLR 1191, [1988] 2 All ER 484
Canadian National Railway v Norsk Pacific Steamship Co [1992]
1 SCR 1021
Caparo Industries Plc v Dickman [1990] 2 AC 605, [1990] 2 WLR
358, [1990] 1 All ER 568
Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR
371, [2006] 2 HKLRD 586, [2006] 3 HKC 178
Cattanach v Melchior (2003) 215 CLR 1, [2003] HCA 38
Commissioner for Railways v McDermott [1967] 1 AC 169, [1966]
3 WLR 267, [1966] 2 All ER 162
Couch v Attorney-General [2008] 3 NZLR 725, [2008] NZSC 45
Customs and Excise Commissioners v Barclays Bank Plc [2006]
UKHL 28, [2007] 1 AC 181, [2006] 3 WLR 1
Donoghue v Stevenson [1932] AC 562
Dutton v Bognor Regis Building Co Ltd [1972] 1 QB 373, [1972]
2 WLR 299, [1972] 1 All ER 462
Ferguson v Welsh [1987] 1 WLR 1553, [1987] 3 All ER 777, [1988]
IRLR 112
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson
& Co Ltd [1985] AC 210, [1984] 3 WLR 953, [1984] 3 All ER
529
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465,
[1963] 3 WLR 101, [1963] 2 All ER 575
Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2
WLR 1049, [1988] 2 All ER 238
Home Office v Dorset Yacht Co Ltd [1970] AC 1004, [1970] 2
WLR 1140, [1970] 2 All ER 294
Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520, [1982] 3 WLR
477, [1982] 3 All ER 201
Koursk, The [1924] P 140, (1924) 18 Ll L Rep 228

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(2011) 14 HKCFAR v Waan Chuen Ming 19

Makepeace v Evans Brothers (Reading) [2001] ICR 241, [2000]

BLR 287
Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC
211, [1995] 3 WLR 227, [1995] 3 All ER 307
McFarlane v Tayside Health Board [2000] 2 AC 59, [1999] 3 WLR
1301, [1999] 4 All ER 961
McGarvey v Eve NCI Ltd [2002] EWCA Civ 374, [2002] All ER
(D) 345 (Feb)
McLoughlin v O’Brian [1983] 1 AC 410, [1982] 2 WLR 982, [1982]
2 All ER 298
Murphy v Brentwood District Council [1991] 1 AC 398, [1990] 3
WLR 414, [1990] 2 All ER 908
Osman v United Kingdom (2000) 29 EHRR 245, [1999] 1 FLR
193, [1999] Fam Law 86
Perre v Apand Pty Ltd (1999) 198 CLR 180
Perrett v Collins [1998] 2 Lloyd’s Rep 255
Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL
52, [2004] 1 AC 309, [2003] 3 WLR 1091
Rowling v Takaro Properties Ltd [1988] AC 473, [1988] 2 WLR
418, [1988] 1 All ER 163
Schiffahrt-Treuhand GmBH v Her Majesty’s Procurator-General
[1953] AC 232, [1953] 2 WLR 209, [1953] 1 All ER 364
Smith v Littlewoods Organisation Ltd [1987] AC 241, [1987] 2
WLR 480, [1987] 1 All ER 710
South Pacific Manufacturing Co Ltd v New Zealand Security
Consultants & Investigations Ltd [1992] 2 NZLR 282
Stovin v Wise [1996] AC 923, [1996] 3 WLR 388, [1996] 3 All
ER 801
White v Jones [1995] 2 AC 207, [1995] 2 WLR 187, [1995] 1 All
ER 691
Yuen Kun Yeu v Attorney-General [1987] HKLR 1154, [1987] 2
HKC 25, [1988] AC 175
Z v United Kingdom (2002) 34 EHRR 3, [2001] 2 FLR 612, [2001]
2 FCR 246

Cases in the List of Authorities not cited in the judgment

Bazley v Curry [1999] 2 SCR 534, (1999) 174 DLR (4th) 45
Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575,
[2004] PIQR P18
Cheung Hung Yuk v Chiu Chai (unrep., HCA 7600/1985, [1990]
HKLY 514)
Clare v L Whittaker & Son (London) Ltd [1976] ICR 1
Clark v Hosier & Dickson Ltd [2003] EWCA Civ 1467, [2003] All
ER (D) 225 (Oct)
Ellis v Sheffield Gas Consumers Co (1853) 2 El & Bl 767, 118 ER
955

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20 HONG KONG COURT OF FINAL APPEAL REPORTS (2011) 14 HKCFAR

Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881,

[2002] 1 WLR 1052, [2002] ICR 412, [2002] PIQR P27
Fowles v Bedfordshire County Council [1995] PIQR P380
Green v Fibreglass Ltd [1958] 2 QB 245, [1958] 3 WLR 71, [1958]
2 All ER 521
Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA
Civ 1041, [2003] QB 443, [2002] 3 WLR 1425, [2003] PIQR
P7
Haseldine v CA Daw and Son Ltd [1941] 2 KB 343, [1941] 3 All
ER 156
Hawkins v Coulsdon and Purley Urban District Council [1954] 1
QB 319, [1954] 2 WLR 122, [1954] 1 All ER 97
Hewitt v Bonvin [1940] 1 KB 188
Honeywill & Stein Ltd v Larkin Brothers (London’s Commercial
Photographers) Ltd [1934] 1 KB 191
Hughes v Percival (1882–83) LR 8 App Cas 443
Jones v British Broadcasting Corp [2007] All ER (D) 283 (Jun)
Kealy v Heard [1983] 1 WLR 573, [1983] 1 All ER 973, [1983]
ICR 484
Kondis v State Transport Authority (1984) 154 CLR 672
Koninklijke Philips Electronics NV v Princo Digital Disc GmbH
[2003] EWHC 2588 (Pat), [2004] 2 BCLC 50
Lai Chi Pon v Toto Steel & Iron Works Ltd [1997] 2 HKC 195
Lam Cheuk Leung v Erawan Co Ltd [2004] 1 HKLRD 778
MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1441,
[2002] BCC 650, [2003] 1 BCLC 93
Mak Kwai Yin v USA Fur Processing Ltd [1994] 2 HKLR 120,
[1994] 1 HKC 485
Marney v Scott [1899] 1 QB 986
Morgans v Launchbury [1973] AC 127, [1972] 2 WLR 1217, [1972]
2 All ER 606
Naylor v Payling [2004] EWCA Civ 560, [2004] PIQR P36
Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120, [1953]
2 All ER 753
Parker v Miller (1926) 42 TLR 408
Pinn v Rew (1916) 32 TLR 451
Poon Boon Che v Chan Kam Fook [1987] 1 HKC 107
Quarman v Burnett (1840) 6 M & W 499, 151 ER 509
Rainfield Design & Associatse Ltd v Siu Chi Moon (2000) 3
HKCFAR 134, [2000] 2 HKLRD 226, [2000] 2 HKC 419
Revill v Newberry [1996] QB 567, [1996] 2 WLR 239, [1996] 1
All ER 291
Rogers v Night Riders [1983] RTR 324
Salsbury v Woodland [1970] 1 QB 324, [1969] 3 WLR 29, [1969]
3 All ER 863

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 Luen Hing Fat Coating & Finishing Factory Ltd
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(2011) 14 HKCFAR Ma CJ 21

Savory v Holland & Hannen & Cubitts (Southern) Ltd [1964] 1

WLR 1158, [1964] 3 All ER 18
Scott v Davis (2000) 204 CLR 333, [2000] HCA 52
Scott v London & St Katherine Docks Co (1865) 3 Hurl & C 596,
159 ER 665, [1861–73] All ER Rep 248
Shah v Gale [2005] EWHC 1087 (QB), [2005] All ER (D) 457
(May)
Spring v Guardian Assurance Plc [1995] 2 AC 296, [1994] 3 WLR
354, [1994] 3 All ER 129
Tam Hong Leung v Ng Wai Hing [2006] 1 HKLRD 923
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 ,
[2005] HCA 19
Thomson v Cremin [1953] 2 All ER 1185, (1941) 71 Ll L Rep 1
Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004]
1 AC 46, [2003] 3 WLR 705, [2003] 3 All ER 1122
Unilever Plc v Gillette (UK) Ltd [1989] RPC 583
Wheeler v Copas [1981] 3 All ER 405
Wong Sau Chun v Ho Kam Chiu (unrep., HCPI 872/1996, [2000]
HKEC 109)
Woodward v Mayor of Hastings [1945] KB 174, [1944] 2 All ER
565
Yeung Kam Fuk v Len Shing Construction Co Ltd [1986] HKC
160
Yu Yuk Fung v Pui Kee Iron Works [1970] HKLR 73

Other materials mentioned in the judgment

Charlesworth & Percy on Negligence (12th ed., 2010) pp.28, 34
Holmes Jr, Oliver Wendell, The Common Law (Dover ed., 1991)
pp.35–36
Markesinis & Deakin’s Tort Law (6th ed., 2008) pp.132–135
Street on Torts (12th ed., 2007) p.43
Winfield & Jolowicz on Tort (18th ed., 2010) pp.191–192, 978

Ma CJ
1. For the reasons set out in the judgment of Mr Justice Bokhary
PJ, I agree that the appeal should be dismissed.

Bokhary PJ

Question of law
2. The question of law on which leave to appeal to this Court
was granted is whether there is a duty of care owed by X to Y in
the following circumstances:

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(a) X engages an apparently competent independent contractor

to do work on X’s premises.
(b) The work is not intrinsically hazardous.
(c) X lends the independent contractor equipment which is not
intrinsically dangerous or faulty.
(d) As X knew or ought reasonably to have known would happen,
the independent contractor uses that equipment to do the
work by a method which is unsafe.
(e) Y, who is a servant of the independent contractor, is injured
as a result.

In the present case, X represents the appellant Luen Hing Fat

Coating & Finishing Factory Ltd (the Factory Operator) and Y
represents the respondent Mr Waan Chuen Ming (the Worker).

Broad facts
3. Shortly stated, the broad facts of the case are these. As it had
done on a number of previous occasions, the Factory Operator
engaged an independent contractor Mr Lo Kin Nam trading as Kar
Kin Engineering & Supplier Co (the Independent Contractor) to
come to its factory and there to repair the calendaring unit (the
Unit) of its stentering machine (the Machine). So the Independent
Contractor and his employee the Worker went to the factory to
repair the Unit.
4. In order to repair the Unit, they had first to detach it from
the Machine. They did so. Then they moved the Unit some 5 or 6
metres to another part of the factory. There they repaired the Unit.
Having done so, they moved the Unit back with a view to
reinstalling it in the Machine. The Unit was 167.5 cm high, 240 cm
long and 70 cm wide. It weighed 1.5 tons. While the Independent
Contractor and the Worker were attempting to reinstall it in the
Machine, the Unit fell on to and crushed the Worker’s legs. The
moving of the Unit from and then back to the Machine was effected
by the use of two pallet jacks and a bearing trolley. Those two pallet
jacks, that bearing trolley and another bearing trolley were used in
the attempt to reinstall the Unit in the Machine. Both pallet jacks
and bearing trolleys belonged to the Factory Operator. It lent them
to the Independent Contractor. They were normally used for
transporting cloth (either in rolls placed on pallets and transported
by pallet jacks or in paper cartons and transported by bearing
trolleys).

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v Waan Chuen Ming
(2011) 14 HKCFAR Bokhary PJ 23

Action succeeds at trial

5. The worker brought an action against the Independent
Contractor and the Factory Operator in the High Court. No defence
was filed by the Independent Contractor, who appears to be
impecunious. Judgment was not entered against him in default of
defence. So the action proceeded to trial against both defendants.
The Independent Contractor did not take part in the trial. At the
end of the trial, the trial judge (Suffiad J) held both defendants
liable. He held the Independent Contractor liable on the basis that
he had failed to provide the Worker with a safe system of work.
Such failure of course put the Independent Contractor in breach of
an employer’s duty at common law to take reasonable care for his
employees’ safety.
6. Pleaded against the Factory Operator were: (a) negligence;
(b) breaches of the statutory duties imposed by various provisions
of the Occupational Safety and Health Ordinance (Cap.509); and
(c) liability under the Occupiers Liability Ordinance (Cap.314). The
Worker also pleaded that he was employed by the Factory Operator.
But that averment was abandoned at the trial. As to the bases on
which the claim was pursued against the Factory Operator, the trial
judge says in his judgment that “counsel for [the Worker] indicated
at the commencement of the trial that he will proceed against [the
Factory Operator] on the basis of the Occupiers Liability Ordinance
and also the Occupational Safety and Health Ordinance”. It was
under the Occupiers Liability Ordinance that the trial judge found
the Factory Operator liable.
7. When the Factory Operator appealed from the trial judge’s
decision to the Court of Appeal, the Worker filed a respondent’s
notice. By that respondent’s notice, he asked the Court of Appeal
to hold that at common law the Factory Operator was a joint
tortfeasor with the Independent Contractor and to dismiss the
Factory Operator’s appeal on that additional ground.

Affirmed by a majority in the Court of Appeal

8. The Court of Appeal (Tang V-P and Cheung JA with Stone
J dissenting) affirmed the trial judge’s decision in favour of the
Worker. Mr Justice Tang V-P decided in the Worker’s favour on
the basis of negligence, concluding his judgment by saying that he
agreed “with the analysis of Cheung JA that a clear case of
negligence was made out against [the Factory Operator] as a joint
tortfeasor”.
9. In holding that a duty of care was owed by the Factory
Operator to the Worker, Cheung JA reasoned as follows. First, he
said, the injuries suffered by the Worker were foreseeable because
the operation was dangerous. Secondly, he said, there existed the

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requisite proximity between the Factory Operator and the Worker

because he was lawfully on its premises. Thirdly, he said, it is fair,
just and reasonable to impose liability on the Factory Operator
because it had allowed the dangerous operation to take place on its
premises and had done nothing to prevent it. When he came to
expand on the element of proximity, Cheung JA added that the
Factory Operator had participated in creating the dangerous situation
by lending the Independent Contractor the equipment used in the
dangerous operation.
10. Was the Factory Operator in breach of the duty of care
which it was held to owe the Worker? And was it open to the Court
of Appeal to decide in the Worker’s favour on the basis of
negligence even though the trial judge had decided in the Worker’s
favour under the Occupiers Liability Ordinance? On these questions,
Cheung JA said this:
While [the trial judge’s] decision against [the Factory Operator]
… was said to be based on the breach of common duty of care by
an occupier, his reasoning is equally applicable to that based on
negligence.
[The Worker] had issued a respondent’s notice to affirm the
judgment by relying on a claim based on joint tortfeasor. In my
view even without a specific plea that [the Factory Operator] was
a joint tortfeasor, [the Worker] had sufficiently pleaded a case of
negligence against [the Factory Operator] and the facts supported
the claim. This is a case where the facts speak louder than the labels.
Based on the evidence adduced in this case, I would, in any event,
allow [the Worker] to rely on the respondent’s notice.
Having said that, Cheung JA added that he would, if necessary,
hold the Factory Operator liable on the basis that it “knew or had
reason to suspect that [the Independent Contractor] was using an
unsafe system of work” and ought reasonably to have taken but
failed to take “steps to see that the system was made safe”.
11. As appears from cases like The Koursk [1924] P 140, 157
and CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988]
AC 1013, 1056E–F, persons are said to be joint tortfeasors when
their respective shares in the commission of the tort are done in
furtherance of a common design. And it might be said that the
Factory Operator and the Independent Contractor were in effect
acting in furtherance of a common design when the work was being
carried out with the equipment which the Factory Operator had
lent the Independent Contractor. But the Factory Operator would
have no share in the commission of any tort of negligence if it did
not owe the Worker a duty of care. As we have seen, Cheung JA,
with whom Tang V-P agreed, found such a duty by way of an

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 Luen Hing Fat Coating & Finishing Factory Ltd
v Waan Chuen Ming
(2011) 14 HKCFAR Bokhary PJ 25

approach based on foreseeability, proximity and considerations of

fairness, justice and reasonableness.
12. On occupier’s liability, Stone J (who dissented) said this:
True it is that as a matter purely of physical fact the accident took
place within [the Factory Operator’s] factory, but that is as far as
it goes.
I perceive no good reason why this occurrence is anything to
do with [the Factory Operator’s] statutory responsibilities, qua
occupier, under [the Occupiers Liability Ordinance].
Turning to the issue of negligence, Stone J dealt with the evidence
and considered what Lord Goff of Chievely said in Ferguson v
Welsh [1987] 1 WLR 1553, 1563A–D. Having done that, Stone J
said this:
It follows from the foregoing that in this case I am unable to discern
any basis for formulating any sustainable finding in negligence
against [the Factory Operator], and thus rendering him a joint
tortfeasor with [the Independent Contractor], however inviting it
may be to create a situation in which [the Worker] is able [to]
obtain the adjudged recompense for his injuries.
In my view, as a matter of policy and principle our law does
not make, nor indeed does it seek to make, the employer of an
independent contractor effectively the insurer of that contractor
should anything go amiss in the performance of a normally
delegable task which that contractor is retained to carry out …
13. With leave granted by the Appeal Committee, the Factory
Operator now appeals to this Court. After stating the question which
now appears in the opening paragraph of this judgment, the Appeal
Committee said (a) that it is a question of law which, by reason of
its great general or public importance, ought to be submitted to this
Court and (b) that leave to appeal was granted for it and possibly
other questions to be decided here.

How the accident happened

14. As to how the accident happened, this is what the trial judge
found:
When [the Independent Contractor] was attempting to jack up
the second pallet jack with [the Unit] on it, [the Worker] heard
[the Independent Contractor] say that the forks of the second pallet
jack [would] not rise. On hearing that [the Worker] came over to
the front where [the Independent Contractor] was intending to
find out why the forks of the second pallet jack [would] not rise.
Just at that moment, [the Unit] began to topple forward towards

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[the Worker] and [the Independent Contractor]. [The Worker]

tried to use his hands to push back the toppling [Unit], but found
it too heavy and as a result [the Unit] fell on top of [the Worker]
pinning and crushing both his legs.
And the trial judge found that the operation in the course of which
the accident happened was unsafe. He considered it unsafe by reason
of: the pallet jacks and the bearing trolleys being “separate” rather
than “integral”; their normal rather than this unusual use; the “top
heavy” nature of the Unit which increased the risk of it toppling
over; the absence of any steps taken to secure the Unit on to either
pallet jack; and the placing of two pieces of wood on the second
pallet jack in order to raise the Unit higher than that pallet jack
could otherwise raise it.
15. On any realistic view of the evidence, there was no
equipment other than the pallet jacks and bearing trolleys available
for the operation which culminated in this accident. Mr Ip Kam
Wo was a supervisor in the Factory Operator’s employ, and was
called to give evidence on its behalf. He had witnessed a similar
operation being carried out by the Independent Contractor on an
earlier occasion. And he said that the operation carried out then
was “extremely unsafe” because of the risk that the Unit would
topple over. But he neither did nor said anything to stop or even
to warn against operating in that manner. Why not? Because, Mr
Ip testified, the Independent Contractor had reinstalled the Unit on
previous occasions and he “trusted” that the Independent Contractor
“could manage it”. But that means no more than that it was possible
that no accident would happen. The lack of safety, the trial judge
found, was clear. And, the trial judge added, the Factory Operator
“had a hand in” and “assisted in perpetrating” the unsafe system
since it had provided the pallet jacks and bearing trolleys used. It
was in those circumstances that the trial judge held that the Factory
Operator was “in breach of the common duty of care under the
Occupiers Liability Ordinance”.

Duty of care breached if owed

16. The Factory Operator contends that it would not have been
in breach of a duty of care owed to the Worker even if, which it
disputes, it owed him such a duty. If lending unsuitable equipment
imposed a duty of care on the Factory Operator, then the majority
in the Court of Appeal would be justified in holding that the Factory
Operator was in breach of that duty. Such a duty would be a
continuing one. And the Factory Operator would have been in
breach of it by reason of having had a hand in the creation of the
danger which flowed from the use of unsuitable equipment and

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then failing to take any steps to put a stop to or even warn against
such use before it resulted in an accident.

Factory Operator’s argument that no duty of care was owed

17. Did the Factory Operator owe the Worker a duty of care?
It is contended on the Factory Operator’s behalf that it did not. As
foreshadowed in its printed case, it is submitted on the Factory
Operator’s behalf that it cannot be just and reasonable to impose
such a duty because, it is said:

(a) The Worker was experienced in the repair of machinery both

generally and in relation to the Unit. By the time of the
accident, which occurred on 10 June 2000, he had engaged
in the repair of machinery and electrical appliances for some
30 years. Since 1995 he had been to the Factory Operator’s
factory to repair the Unit two to three times a year, and for
over 10 times by 2000. Since 1996 he and the Independent
Contractor had done the work by the two of them only.
(b) The work to be done for the Factory Operator was simple.
It was not an inherently dangerous activity, being simple repair
of a machine which the Independent Contractor and the
Worker had together undertaken many times.
(c) In the work which was performed, the Independent Contractor
was commissioned by the Factory Operator as an independent
contractor. The Independent Contractor decided whom he
would bring along to assist him, what tools they needed and
the work method and system to be adopted. On the day in
question, the Independent Contractor and the Worker had
brought along wires, straps and pulley blocks.
(d) The Factory Operator had no control over the manner of
work of the Independent Contractor and the Worker. From
the Factory Operator’s point of view, they were an
independent contractor and his assistant. The Factory Operator
had in no way taken it upon itself to exercise any supervision
or control of its independent contractor’s activities. Neither
the Worker nor the Independent Contractor took instructions
from the Factory Operator.
(e) Pallet jacks and bearing trolleys are ordinary and commonplace
tools. The ones used were tools of the Factory Operator placed
in its factory for its own purposes ie for transporting textile
products. There was no plea, evidence or finding that the
pallet jacks and bearing trolleys were in any way defective or
not functioning properly. The Unit was well within the weight
capacity of each pallet jack and bearing trolley.

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(f) There was nothing wanting in the condition of the premises.

They were well-lit. The ground was even, level and in good
condition.
(g) On previous occasions when Mr Ip saw the Independent
Contractor and the Worker use such tools, he had not
objected to them using those tools for the purpose of their
work. But this is a far cry from the Factory Operator actively
providing the tools to them or encouraging or instructing
them to use such tools and hence assuming responsibility for
the Worker’s safety in using them (as in Makepeace v Evans
Brothers (Reading) [2001] ICR 241 and McGarvey v Eve
NCI Ltd [2002] EWCA Civ 374).
(h) Mr Ip had on previous occasions seen the Independent
Contractor and his assistants use such tools to move the Unit.
He admitted that he felt that was extremely unsafe. The fact
that Mr Ip felt it was unsafe is hardly significant, since the
trial judge concluded that it was clear to anyone and everyone
(which included the Worker) who was there to see it that the
system of transportation was unsafe. This is not a case where
the owner had some special knowledge about certain hidden
risks involved of which the Independent Contractor and his
employees were or might be expected to be unaware.
(i) There is no allegation or evidence that this was the only way
in which the work could be carried out. On the day of the
accident, Mr Ip did not attend to the Worker or the
Independent Contractor and did not see them work at all.
The Worker and the Independent Contractor were left to
themselves at the scene. There was no criticism of the fact
that on the day in question no one from the Factory Operator
saw them work.
(j) On this occasion, when they were trying to reinstall the Unit
in the Machine, the Independent Contractor fetched two
pieces of wood from somewhere in the factory and placed
each of them on each of the two arms of the forklift of the
second pallet jack without the knowledge or consent of the
Factory Operator. On the Worker’s own case these wooden
blocks destabilised the Unit. There is no evidence or finding
that pieces of wood were similarly used on previous occasions.
The evidence is that the Factory Operator knew nothing at
all about the two pieces of wood, and had not seen the process
of reinstalling the Unit.

18. On the basis of the foregoing, it is said in the Factory

Operator’s printed case and submitted on its behalf as follows.
Whether, and if so how, the pallet jacks and bearing trolleys were
to be used was a matter for the Independent Contractor and the

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Worker to decide. They may have tried to “make a little go too

far” and in so doing set up the conditions which might have led to
the accident. All the causes operating to bring about the accident
sprang from what the Independent Contractor and the Worker
themselves did and not from anything that the Factory Operator
did or omitted to do. In these circumstances, it cannot fairly be said
that the Factory Operator owed any duty of care to the Independent
Contractor or his employee the Worker who were themselves doing
the very thing which is said to have caused the risk.

Occupier’s liability not relied upon

19. In this Court, leading counsel for the Worker did not rely
on occupier’s liability. He was right not to do so. This accident was
not due to “the state of the premises” (to employ the expression
used by Lord Gardiner LC in Commissioner for Railways v
McDermott [1967] 1 AC 169, 186). If the Worker is to succeed
against the Factory Operator, it has to be in the tort of negligence.

Approach by which to determine whether a duty of care exists

20. A person is not vicariously liable for his independent
contractor’s torts. But that only goes to the absence of vicarious
liability. A person who engages an independent contractor may be
liable for, as it is put in Winfield & Jolowicz on Tort (18th ed.,
2010) p.978, “his own negligence, for example in failing to take
care to select a competent contractor”. His having engaged an
independent contractor does not exclude the possibility of his
committing the tort of negligence himself.
21. Broadly speaking, the essential elements of a successful claim
in the tort of negligence are (a) a duty of care owed by the
defendant to the plaintiff, (b) breach of that duty, (c) damage
suffered by the plaintiff as a result and (d) such damage not being
too remote. The present appeal turns on whether the first element,
namely a duty of care, is present.
22. How does one go about determining whether a duty of care
exists? In answering this question, it is only natural to begin with
Lord Atkin’s famous statement in Donoghue v Stevenson [1932]
AC 562, 580 that:
The liability for negligence, whether you style it such or treat it as
in other systems as a species of “culpa”, is no doubt based upon a
general public sentiment of moral wrongdoing for which the
offender must pay. But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to give
a right to every person injured by them to demand relief. In this
way rules of law arise which limit the range of complainants and

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the extent of their remedy. The rule that you are to love your
neighbour becomes in law, you must not injure your neighbour;
and the lawyer’s question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be — persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.
Donoghue v Stevenson is of course the first and most famous case
in the “trilogy of cases” referred to by Lord Wilberforce in Anns
v Merton London Borough Council [1978] AC 728, 751F–G when
laying down a two-stage test for determining whether a duty of
care exists. The other two cases in that trilogy are Hedley Byrne &
Co Ltd v Heller & Partners Ltd [1964] AC 465 and Home Office
v Dorset Yacht Co Ltd [1970] AC 1004.
23. In Hedley Byrne & Co Ltd v Heller & Partners Ltd the
House of Lords held that even in the absence of a contractual or
fiduciary relationship, inaccurate information negligently imparted
may afford a claim for damages for financial loss caused thereby.
The law, their Lordships held, imposes a duty of care when
information is sought from and imparted by a party who is possessed
of special skill, is trusted to exercise due care and knew or ought
reasonably to have known that reliance was being placed on his
skill and judgment.
24. Referring to Lord Atkin’s “neighbour” statement in
Donoghue v Stevenson, Lord Reid said in Home Office v Dorset
Yacht Co Ltd, 1027 that although it “will require qualification in
new circumstances”, it “ought to apply unless there is some
justification or valid explanation for its exclusion”.
25. Coming now to Lord Wilberforce’s two-stage test, this is
how he stated it in Anns v Merton London Borough Council,
751G–752A:
First one has to ask whether, as between the alleged wrongdoer
and the person who has suffered damage there is a sufficient
relationship of proximity or neighbourhood such that, in the
reasonable contemplation of the former, carelessness on his part
may be likely to cause damage to the latter — in which case a prima
facie duty of care arises. Secondly, if the first question is answered
affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the
damages to which a breach of it may give rise.

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26. That two-stage test was applied in a set of leading cases,

and then came to be discarded in another set of leading cases. This
process of efflorescence and then decline forms a saga too
well-known to need re-telling. It is, however, worth noting that
the cases in which Lord Wilberforce’s two-stage test was applied
include in McLoughlin v O'Brian [1983] 1 AC 410 (a decision of
the House of Lords on nervous shock) and Junior Books Ltd v
Veitchi Co Ltd [1983] 1 AC 520 (a decision of their Lordships on
economic loss). And it is equally worth noting that the cases in
which that test was doubted if not criticised include Governors of
the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd
[1985] AC 210 (decided by the House of Lords), Yuen Kun Yeu v
Attorney-General [1987] HKLR 1154 (decided by the Privy
Council), Rowling v Takaro Properties Ltd [1988] AC 473 (decided
by the Privy Council) and Hill v Chief Constable of West Yorkshire
[1989] AC 53 (decided by the House of Lords). As is well-known,
the decision of the House of Lords in Anns v Merton London
Borough Council was departed from by their Lordships in Murphy
v Brentwood District Council [1991] 1 AC 398 (at the same time
overruling the Court of Appeal’s decision in Dutton v Bognor Regis
Building Co Ltd [1972] 1 QB 373).
27. I turn now to the decision of the House of Lords in Caparo
Industries Plc v Dickman [1990] 2 AC 605. In that case their
Lordships held that the auditors of a company owed no duty of care
to shareholders deciding on further investment in the company or
to non-shareholders contemplating investment in the company. At
p.617G Lord Bridge of Harwich spoke of “the inability of any single
general principle to provide a practical test which can be applied to
every situation to determine whether a duty of care is owed and, if
so, what is its scope”. He then went on to say this at pp.617H–618B:
What emerges is that, in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a duty of care
are that there should exist between the party owing the duty and
the party to whom it is owed a relationship characterised by the
law as one of “proximity” or “neighbourhood” and that the
situation should be one in which the court considers it fair, just
and reasonable that the law should impose a duty of a given scope
upon the one party for the benefit of the other. But … the concepts
of proximity and fairness embodied in these additional ingredients
are not susceptible of any such precise definition as would be
necessary to give them utility as practical tests, but amount in effect
to little more than convenient labels to attach to the features of
different specific situations which, on a detailed examination of all
the circumstances, the law recognises pragmatically as giving rise
to a duty of care of a given scope.

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That is the “foreseeability/proximity/fairness, justice and

reasonableness” approach (followed by the majority in the Court
of Appeal in the present case).
28. When the case of White v Jones [1995] 2 AC 207 was
before him in the Court of Appeal prior to it reaching the House
of Lords, Sir Donald Nicholls V-C (as Lord Nicholls of Birkenhead
then was) provided a typically helpful explanation of how the Caparo
approach operates. He treated “foreseeability” as the first heading,
“proximity or neighbourhood” as the second heading and “the
requirements of fairness, justice and reasonableness” as the third
heading. After dealing with foreseeability, he turned to the second
and third headings, saying (p.221F–G) that:
there is no real demarcation line between them. They shade into
each other. Both involve value judgments. Under the third heading
the court makes its assessment of the requirements of fairness, justice
and reasonableness. Likewise, although less obviously, built into
the concept of proximity or neighbourhood is an assessment by
the court that in a given relationship there “ought” to be liability
for negligence. These two headings are no more than two labels
under which the court examines the pros and cons of imposing
liability in negligence in a particular type of case.
29. That reference to labels was echoed by Lord Walker of
Gestingthorpe in Customs and Excise Commissioners v Barclays
Bank Plc [2007] 1 AC 181. At p.209G he said that “the elements
of the threefold test are labels” and that “their usefulness is limited”.
As to the extent of their usefulness, he had earlier (at E–F on the
same page) expressed his agreement with Kirby J’s observations in
Perre v Apand Pty Ltd (1999) 198 CLR 180, 284, that labels “help
steer the mind through the task in hand”.
30. Ultimately it is necessary to stand back and take a holistic
view of foreseeability, proximity and the need to be satisfied that
it would be fair, just and reasonable to impose a duty of care. In
Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC
211, 235E–G Lord Steyn endorsed the statement in the Court of
Appeal by Saville LJ (as Lord Saville of Newdigate then was) that
“these three matters overlap with each other and are really facets
of the same thing”. The relationship between proximity and what
is just and reasonable was addressed in the Supreme Court of Canada
by McLachlin J (as McLachlin CJ then was) in Canadian National
Railway v Norsk Pacific Steamship Co [1992] 1 SCR 1021. At
p.1152 she said that “the concept of proximity may be seen as an
umbrella, covering a number of disparate circumstances in which
the relationship between the parties is so close that it is just and
reasonable to permit recovery in tort.”

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31. In Stovin v Wise [1996] AC 923, Lord Nicholls again

discussed Caparo Industries Plc v Dickman. As to the question of
whether imposing a duty of care would be fair, just and reasonable,
he said (p.933A) that:
it is an uncomfortably loose test for the existence of a legal duty.
But no better or more precise formulation has emerged so far, and
a body of case law is beginning to give the necessary further
guidance as courts identify the factors indicative of the presence
or absence of a duty.
32. After a citation of cases decided in Australia, Canada, Ireland,
New Zealand and Singapore, it is observed in Charlesworth & Percy
on Negligence (12th ed., 2010) p.28 that “[i]t may be that too much
can be made of the differences between these approaches”. And
then (on the same page) the statement in the Supreme Court of
New Zealand by Elias CJ in Couch v Attorney-General [2008] 3
NZLR 725, 750 is cited. This is that in New Zealand the courts
“have tended to take the view that no substantial difference in result
follows the changes in emphasis” since Anns v Merton London
Borough Council. The discussion in Winfield & Jolowicz on Tort
of the Australian, Canadian and New Zealand cases is preceded by
the observation (pp.191–192) that “[t]he search for ‘ultimate
principle’ has not been confined to England and there are now some
disparities in the various approaches to the duty of care question in
the various Commonwealth countries, though how much difference
that makes to the outcome of cases is difficult to judge”. Of course
none of this is to make light of the various lines of careful thought
which have given rise to these disparities. It is only to recognise
that differently articulated approaches may sometimes, perhaps not
infrequently, yield the same result.
33. That said, the different results reached by the House of
Lords and the High Court of Australia in the “unintended child”
cases should be noted. These cases are McFarlane v Tayside Health
Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital
NHS Trust [2004] 1 AC 309 decided by their Lordships and
Cattanach v Melchior (2003) 215 CLR 1 decided by their Honours.
McFarlane v Tayside Health Board was unanimous. But Rees v
Darlington Memorial Hospital NHS Trust was by a bare majority
of 4:3, and so was Cattanach v Melchior. We are not called upon
to say on this occasion how we would or might decide any
“unintended child” case if such a case were to arise in Hong Kong.
34. It is well to remember what Sir Robin Cooke P (as Lord
Cooke of Thorndon then was) said in South Pacific Manufacturing
Co Ltd v New Zealand Security Consultants & Investigations Ltd
[1992] 2 NZLR 282, 294. This is that “[t]here is no escape from
the truth that, whatever formula be used, the outcome in a grey

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area case has to be determined by judicial judgment” and that

“[f]ormulae can help to organise thinking but they cannot provide
answers”.
35. The tendency in the past was to invoke policy considerations
to justify not imposing a duty of care. But, as pointed out in Street
on Torts (12th ed., 2007) p.43, “considerations of fairness, justice
and reasonableness can now also be employed to ground the
imposition of a duty of care; either in circumstances in which no
such duty has previously existed, or in circumstances where a duty
has previously been denied”. It is of course to be understood that
the policy considerations involved are of a legal rather than a
political nature. Whether operating for or against the imposition of
a duty of care, the policy is of the kind thus referred to in Lecture
1 of Holmes, The Common Law (1881) pp.35–36 of the unabridged
Dover edition (1991):
Every important principle which is developed by litigation is in
fact and at bottom the result of more or less definitely understood
views of public policy; most generally, to be sure, under our
practice and traditions, the unconscious result of instinctive
preferences and inarticulate convictions, but none the less traceable
to views of public policy in the last analysis.
36. It is not to be ignored that there might be a further reason
why fairness, justice and reasonableness should be accorded a proper
and visible role in the determination of whether a duty of care exists.
As pointed out in Markesinis & Deakin's Tort Law (6th ed., 2008)
pp.132–135 (where the decisions of the European Court of Human
Rights in Osman v United Kingdom (2000) 29 EHRR 245 and Z
v United Kingdom (2002) 34 EHRR 3 are discussed), exemptions
from liability by operation of the duty concept may be open to
human rights scrutiny. In Z v United Kingdom the Strasbourg Court
said (para.100) that it was satisfied that the law of negligence as
developed by the British courts since Caparo Industries Plc v
Dickman and as analysed in Barrett v Enfield London Borough
Council [2001] 2 AC 550 includes the fair, just and reasonable
criterion as an intrinsic element of the duty of care and that the
ruling of law in question did not disclose the operation of an
immunity. I put it no higher than that an approach to the question
of whether a duty of care exists would naturally be more likely to
sit comfortably with human rights if it accords due weight to
considerations of fairness, justice and reasonableness than if it ignored
them or failed to take them sufficiently into account.
37. No common law landmark, not even one as respected and
worthy of respect as Lord Atkin’s “neighbour” statement, can be
expected to stand alone and sufficient on its own forever. That is
one of the clearest lessons that legal history teaches. While having

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due regard to the importance of predictability and continuity, the

courts will, as they must, develop the common law to provide such
fresh or adapted solutions as may be needed to cope with new
problems as and when they emerge. Subject of course to that, I
would adopt the Caparo approach as explained by Lord Nicholls in
White v Jones, 221F–G and bearing in mind what Lord Cooke said
in South Pacific Manufacturing Co Ltd v New Zealand Security
Consultants & Investigations Ltd, 294 and Lord Walker said in
Customs and Excise Commissioners v Barclays Bank Plc, 209E–G.

Applying the approach to the present circumstances

38. What remains to be done is to apply that approach to the
circumstances of the present case. Each side’s citation of cases
involved some attempt to resort to analogy, and therefore suffers
from what Viscount Simon referred to in Schiffahrt-Treuhand GmBH
v Her Majesty's Procurator-General [1953] AC 232, 264 as “the
weakness which attends all arguments from analogy”. It is important
at this stage to bear in mind Lord Hoffmann’s observation in
Customs and Excise Commissioners v Barclays Bank Plc, 198H.
This is that phrases such as “proximate” and “fair, just and
reasonable” are “often illuminating but discrimination is needed to
identify the factual situations in which they provide useful guidance”.
The factual situation in the present case is broadly as indicated by
the terms of the question of law on which this appeal comes to the
Court. Its details are as appear from the trial judge’s findings of facts
which findings have been endorsed by the majority in the Court of
Appeal. These findings are those summarised earlier in this judgment.
39. As far as foreseeability is concerned, there can be no doubt
that the harm in question was foreseeable. It was obvious that the
operation was dangerous. And it was equally obvious that the
Worker was one of the persons in danger.
40. What about proximity? Well, the crucial facts are these.
The Worker was on the Factory Operator’s premises. He was there
doing work which his employer the Independent Contractor had
been engaged to do for the Factory Operator. And he was using
equipment on loan from the Factory Operator. On those facts,
proximity existed between the Worker and the Factory Operator.
41. Is it fair, just and reasonable to hold that a duty of care was
owed by the Factory Operator to the Worker? It would appear that
Stone J was of the view that to so hold would be to make the
Factory Operator “effectively the insurer” of the Independent
Contractor. But that does not take sufficient account of the fact that
the Factory Operator had loaned the Independent Contractor the
pallet jacks and bearing trolleys and knew or ought reasonably to
have known that they would be used to do the work by an unsafe

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method. The Factory Operator chose to engage an independent

contractor who had to borrow makeshift equipment from it. It could
have chosen instead to engage an independent contractor who had
the equipment needed to do the work in a safe manner. That would
presumably have been more costly. But safety is not a thing on
which to cut costs like this.
42. Still on the question of fairness, justice and reasonableness,
it has to be borne in mind that the danger involved was to life and
limb. Without making light of purely economic loss, it is fair to say
that the fact of personal safety being at stake is always significant.
Thus in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9
HKCFAR 371 the Court observed (p.376F) that while the duty of
care owed by an employer to his employees was not absolute, the
standard of care demanded is naturally high since personal safety is
at stake. Just as that was a factor in that context, so is it a factor in
the present context. In Perrett v Collins [1998] 2 Lloyd’s Rep 255,
275, col.1, Buxton LJ said that “when one turns to the judgmental
issues of justice, fairness and reasonableness the importance of the
fact that what is put at risk is the plaintiff ’s body, and not just his
goods, is … deeply embedded in the law of negligence”. Indeed it
is, and rightly so. This is an area in which legal policy is involved.
And there can be no doubt that the policy considerations in favour
of personal safety are naturally very powerful.
43. That is particularly so where the person is in a vulnerable
position. The point is neatly put in Charlesworth & Percy on
Negligence, p.34. There, under the subheading “Protecting the
vulnerable”, it is said that “[t]here is a concern to protect those at
a disadvantage, who have no reasonably available means of
protecting themselves”. That applies to the Worker. He does appear
to have been in a vulnerable position and at a disadvantage
accordingly. For he does not appear to have been in a good position
to protest against, let alone veto, the unsafe method of work with
which his employer and the person who engaged his employer were
content.
44. In Home Office v Dorset Yacht Co Ltd, Lord Diplock
observed (p.1060E–F) that “[t]he very parable of the good Samaritan
(Luke 10, v.30) which was evoked by Lord Atkin in Donoghue v
Stevenson illustrates, in the conduct of the priest and of the Levite
who passed by on the other side, an omission which was likely to
have as its reasonable and probable consequence damage to the
health of the victim of the thieves, but for which the priest and
Levite would have incurred no civil liability in English law”. That
was cited by Lord Goff in Smith v Littlewoods Organisation Ltd
[1987] AC 241, 271B–D for the proposition that “the common law
does not impose liability for pure omissions”. But the present case
is not one of pure omission.

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45. As to that, let us begin by turning once again to the evidence

of Mr Ip, the supervisor employed by the Factory Operator. It would
appear that Stone J who dissented in the Factory Operator’s favour
in the Court of Appeal had misapprehended Mr Ip’s evidence or at
least the effect of it. This is because Stone J referred to Mr Ip’s view
that the operation was extremely unsafe as a “post facto” view. But
Mr Ip, it will be remembered, had recognised before the accident
that the operation was extremely unsafe. Nevertheless neither he
nor his employer the Factory Operator took any steps to stop or
even to warn against it. As to why not, he explained, it will be
remembered, that he trusted that the Independent Contractor could
manage the operation. But how far can one reasonably trust someone
to manage an operation without mishap when he proceeds in an
extremely unsafe manner? It being a supervisor’s function to
supervise, Mr Ip’s knowledge is to be attributed to his employer
the Factory Operator. And his failure to act on that knowledge is
its failure.
46. Moreover the Factory Operator’s position is adversely
affected by something besides its employee Mr Ip’s omission. It had
taken a positive part, thus assuming a positive role, in the creation
of the danger, doing so by lending the Factory Operator equipment
which it knew or ought reasonably to have known would be used
to do the work by an unsafe method. Such participation, too, goes
to it being fair, just and reasonable to hold that the Factory Operator
owed the Worker a duty of care. Indeed, such participation lies at
the heart of the Worker’s case against the Factory Operator in
negligence, and justifies the result reached by the majority in the
Court of Appeal.
47. The question of law on which leave to bring this appeal was
granted is set out in the opening paragraph of this judgment. I would
answer it thus. A duty of care can arise in circumstances such as
those described in that question. And such a duty did arise on the
particular facts of this case.
48. For the foregoing reasons, I would, despite the able
arguments presented by leading counsel for the appellant Factory
Operator, dismiss this appeal. As to costs here and below, I would
(a) order legal aid taxation of the respondent Worker’s own costs
and (b) make an order nisi in his favour against the Factory
Operator, such order nisi to become absolute after 21 days in the
absence of notification to the Registrar that a different order as to
costs is sought. I would order that in the event of such notification,
the question of costs be dealt with on written submissions as to
which the parties should seek procedural directions from the
Registrar.

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38 HONG KONG COURT OF FINAL APPEAL REPORTS (2011) 14 HKCFAR

Chan PJ
49. I agree with the judgment of Mr Justice Bokhary PJ.

Ribeiro PJ
50. I agree with the judgment of Mr Justice Bokhary PJ.

Lord Walker of Gestingthorpe NPJ

51. I agree with the judgment of Mr Justice Bokhary PJ.

Ma CJ
52. Accordingly, for the above reasons, the appeal is unanimously
dismissed and we make the orders as to costs set out in para.48
above.

Reported by Shin Su Wen

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