The Deceased was killed when he was helping a crane driver to lift a heavy forklift truck onto the back of a lorry.  The truck was suspended from a crane hook by two chains when one of them snapped, crushing the Deceased beneath the weight of the falling truck.

There was no dispute that the employer of the Deceased (D2) was liable.  The issue was whether other parties were also liable.  The employer claimed against three other associated companies.  D1 had no connection with the accident but paid the salaries of group employees, including the Deceased.  It filed tax returns in which it described itself as the Deceased’s employer and there were also some wage reports in which it was similarly described.  At first instance and on appeal, it was held that D1 was also an employer of the Deceased together with D2. 

However, the CFA decided otherwise and held that only D2 was the employer as there was no real employment relationship between the Deceased and D1.  D1 was only stated as the “employer” for tax or accounting purposes and there was nothing to suggest that the Deceased was party to these tax or accounting arrangements.  The Deceased could not have two independent employers for the same services.

D4 was engaged to do maintenance dredging work on the Tuen Mun River and had subcontracted the work to D3.  On the day of the accident, D3 urgently required a forklift truck for use at the site.  D3 sent a crane lorry (owned by D2) driven by its employee to the premises where the forklift truck was kept and the Deceased was working.  It was the Deceased who attached the chains on the lorry to lift forklift, but the chains were not intended for such use.  They were supposed to be used for lashing objects down only. 

Although the lorry was owned by D2, the Judge at first instance said that as D3 was controlling the lorry through its driver, it was more likely than not that the chains belonged to D3 and since they failed, D3 was liable.  The CFA held there was no basis for such a finding. The mere fact that the chains were on the lorry did not amount to a representation by D3 that they were suitable for lifting a heavy forklift truck. If the chains were not intended for use as lifting gear, there could not have been a breach of duty by D3.

As for D4, the Judge at first instance found that because it was their employee, Mr Wan, who told the Deceased to assist the lorry driver to lead the forklift, D4 was the Deceased’s employer “pro hac vice”, meaning acting as temporary employer.  The CFA disagreed.  They said that this doctrine only applies to vicarious liability for an employee’s negligence, and not to cases where it is the employee himself who sustains the damage.  Therefore, it has no application to this case since Mr Wan was employed by D4, and it was the Deceased who suffered the damage.  D4 just has a duty to take reasonable care, and does not have the duties associated with an employer.  In the view of the CFA, D4 did not breach that duty as Mr Wan was merely passing a message to the Deceased to help with the loading and did not impose any instructions on how do it.

The CFA were very robust with their views of no liability on this occasion against these 3 Defendants.  However, they may not have been so lenient had it not been so clear that the employer was liable and the widow’s claim had been paid in full.

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