An Explosive risk to construction workers

An Explosive risk to construction workers

By Mark Ranson

The following two words, are often erroneously used, interchanged or misspelled by people who simply don’t realize that there is a huge difference in their respective meanings. So, what is the difference between ORDINANCE and ORDNANCE?

An Ordinance, to quote the Collins Dictionary and Thesaurus, is “an authoritative regulation, decree, law or practice ”.

Ordnance on the other hand is described as 1. Cannon or artillery. 2. Military supplies; munitions.

In Hong Kong, as is sometimes the case in other former war zone jurisdictions, the two words are significantly linked.

ORDINANCE (WORDS) & THE H.K. CONSTRUCTION INDUSTRY

In Hong Kong, the Government’s Labour Department has in place one of these authoritative regulations/laws/decrees in the form of the FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE (FAIUO), CHAPTER 59. Section 6A – General duties of a proprietor states:

(1)       It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2)       Without prejudice to the generality of a proprietor’s duty under subsection (1), the matters to which that duty extends include in particular-

  • (a)  the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, 
safe and without risks to health;
  • (b)  arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in 
connection with the use, handling, storage and transport of articles and substances;
  • (c)  the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial 
undertaking;
  • (d)  so far as is reasonably practicable as regards any part of the industrial undertaking under the proprietor’s 
control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; and

(e)        the provision and maintenance of a working environment for all persons employed by him at the industrial undertaking that is, so far as is reasonably practicable, safe, and without risks to health.

(3)       Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $500000. (Amended 40 of 1997 s. 2)

(4)       A proprietor of an industrial undertaking who contravenes this section wilfully and without reasonable excuse commits an offence and is liable to a fine of $500000 and to imprisonment for 6 months. (Amended 40 of 1997 s. 2)

This ordinance aims to protect the health and safety of workers and, as can be seen above, any contravention of the ordinance is a crime and can lead to criminal charges, fines and even, time in prison.

Company officers (directors/managers) should also pay close attention to Section 13 – Liability of proprietor subsection 2, which states:

(2)      It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

Ignorance is not an excuse and, as Section 14 – Liability of directors, partners etc. makes clear, company officers are not absolved of responsibility by limiting blame to the company (corporate entity) they work for, represent or own:

(1)       Where the person convicted of an offence against this Ordinance is a company and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the company, the director, manager, secretary or other similar officer shall be guilty of the like offence.

(2)       Where the person convicted of an offence against this Ordinance is a firm and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any partner in the firm or any person concerned in the management of the firm, the partner or the person concerned in the management of the firm shall be guilty of the like offence.

An Explosive risk to construction workers

World War Two bomb diffused in Hong Kong

ORDNANCE (BOMBS) & THE H.K. CONSTRUCTION INDUSTRY

Like many places around the world, Hong Kong was once a war zone. In particular, the Second World War (WW2) started for Hong Kong at 08:00 on the morning of 8 December 1941 when the Japanese army crossed the northern border to begin their invasion of the territory.

The resulting battle between “British” (and other nationalities) defenders and Japanese attackers saw the exchange of many thousands of rounds of artillery ammunition and mortar bombs of various types as well as ordnance dropped by Japanese aircraft. After the British surrender, the Japanese occupied Hong Kong until 1945 and during this period, the territory was considered a strategic target for allied aircraft, in particular, those of the United States Army Air Forces stationed in China and those of the United States Navy based on carriers in the South China Sea. Hong Kong was bombed relentlessly over a period of four years.

Unfortunately, as is the case everywhere else on our planet where military ORDNANCE has been deployed in armed conflict, many of these explosive items failed to function as designed for reasons that are unknown and can only be guessed at. Estimates vary but evidence suggests that anything from 10% to 30% of wartime explosive ordnance failed to detonate.

As such, many parts of Hong Kong are now contaminated by what is termed unexploded ordnance or UXO to use the abbreviated form. Just because these explosive remnants of war (ERW) failed to function, it cannot be assumed that they are now, many years later, inert and harmless. Every day, all over the world, casualties caused by UXO prove this not to be the case.

A WORLDWIDE PROBLEM

In Australia, the USA, the United Kingdom and many European countries, the explosive legacy of WW2 and other conflicts is mostly recognized and treated as a tangible and manageable risk.

In many cases, specific legislation is in place to ensure that UXO risk cannot be ignored and that government departments and businesses, which might encounter the risk of UXO, must put in place UXO risk management protocols. These may vary from simple desktop studies of war records and maps to detailed search and clearance work utilizing specialist equipment and manpower. To quote from a document published by the United Kingdom’s Federation of Piling Specialists:

“Work should not start on sites where a UXO hazard has been identified until an emergency response plan is in place.”

“All employers with employees working on or visiting a site at which there is a reasonably foreseeable risk from UXO therefore have a statutory duty to ensure, so far as is reasonably practicable, that a safe system of work is in place that adequately addresses the risk from UXO.”

References:
K. Stone, K. Murray, A. Cooke, S. and Foran, J. (2008) ‘Unexploded Explosive Ordnance (UXO) – a construction industry guide’. Report RP732, CIRIA, London

Here in Hong Kong, UXO is found on construction sites on a fairly regular basis. Every time this happens, construction company management and various government departments act with the utmost surprise as if all and sundry are completely ignorant of Hong Kong’s wartime history. How can this be? The discovery of UXO in Hong Kong is a common occurrence so surely the risk would have been acknowledged long ago and studied with a view to implementing an official UXO risk management strategy.

Regrettably, this does not seem to be the case. Yes, there are instances where UXO remediation service providers have been invited to Hong Kong in reaction to a UXO contamination problem. However, these instances are rare and in some cases, the interventions would never have happened at all if the insistence had not come from overseas-based business partners or parent companies with a more responsible attitude towards the risk.

An Explosive risk to construction workers

An Explosive risk to construction workers

THERE IS LOGIC TO BE INFERRED

Hong Kong already has in place an ORDINANCE that should cover the need to manage the risks created by unexploded ORDNANCE. However, the existing ordinance is not specific to UXO, as it applies to health and safety risks in general.

That said if an item of UXO has the potential to detonate when disturbed by construction workers rendering them and the general public liable to harm from blast, heat, fragmentation and noise, surely it qualifies as a risk under the terms (and spirit) of the Hong Kong Labour Department’s Factories and Industrial Undertakings Ordinance (Cap. 59). If UXO is discovered on a worksite, it is logical to infer that:

  1. There could be more UXO, which currently remain undiscovered and therefore,
  1. The site can no longer be considered a safe working environment as per the requirements of the Labour Department’s FAIUO, in which case,
  1. The risk needs to be managed through the implementation of recognized UXO remediation practices.[1]

So, if we revisit Section 14 of Cap.59 of the FAIUO, it is clear that, officers of any company (managers/directors etc.) where it has become general knowledge that a project site is contaminated or potentially contaminated with UXO could be accused of consent, connivance, neglect etc. in committing an offence if they have permitted work to continue without implementing risk management measures.

HEADS IN THE SAND

This being the case, why are the risks from UXO not incorporated into Project Risk Registers as a matter of course in Hong Kong just as they often are in other developed jurisdictions? Also, why are the risks from UXO (and the Labour Department’s FAIUO) being ignored with the apparent consent of various Hong Kong Government departments?

Well, before anyone thinks it is fine to keep working within an area of known UXO contamination, because a government official gave the go-ahead, please consider this: If an official from a Hong Kong government department refuses to acknowledge a known UXO risk and/or refuses to authorize further action to manage that risk, he or she appears to be indemnified by Section 14A of the Ordinance – Protection of public officers, of which Subsection (1) states:

(1)       A public officer is not personally liable in respect of any act or omission of his if it was done or made by him in the honest belief that it was required or authorized in the exercise of any function, duty or power of his under this Ordinance.

There is however some slight hope for those who might someday seek redress from the government in that Subsection (2) goes on to state that:

(2)       The protection conferred on public officers by subsection (1) in respect of any act or omission shall not in any way affect any liability of the Government in tort for that act or omission.

But, again, why is the problem being willfully ignored? Perhaps the answer is that the discovery of UXO and any subsequent attempt to deal with UXO risk after a project is under way is considered to be something that will lead to added expense and project delays. This might be true but it is no excuse or reason to hide the truth and expose construction workers to potential danger. It is also true that if UXO risks are acknowledged and managed from the inception of a project, the added expense can be minimized and project delays can be avoided.

Look at any Hong Kong construction company website or industry publication and the highest priority is given to singing the praises of company health and safety policies and performance. The publications are full of adulation for the upholders of high safety standards and the recipients of awards in safety excellence.

However, mention UXO and in no time at all unqualified opinions dismiss the risk as very low or a total fallacy. This view is incorrect, irresponsible and dangerous because the risk can be more accurately described as low probability / high impact. If UXO risk were a fallacy, why would the Hong Kong Police have an Explosive Ordnance Disposal Bureau? The answer is: because burying heads in the sand doesn’t change the laws of physics, even in Hong Kong. Explosive remnants of war are still highly dangerous.

Police bomb disposal officers arrive at scene to destroy an unexploded second world war bomb unearthed by a construction worker at the new government headquarters site at Tamar, Admiralty. The bomb was detonated twice to be completely destroyed and about 200 people are evacuated. Picture shows Senior bomb disposal officer Dominic Brittain (right) and other bomb disposal experts displaying the detonated shell to the press. 17NOV08

Police bomb disposal officers arrive at scene to destroy an unexploded second world war bomb unearthed by a construction worker at the new government headquarters site at Tamar, Admiralty.

Regarding UXO, Hong Kong is living on borrowed time. Eventually an item of UXO will detonate on a construction site or elsewhere and the impact could very well be catastrophic. Under current circumstances, insurance cover is likely to be invalidated since UXO risk is simply not addressed during project planning and insurers are therefore unaware of it. As with all serious health and safety incidents, an investigation will take place seeking to find the root cause.

The investigation will most likely place the burden of guilt on the people responsible for the project risk management process. Lawyers making compensation claims on behalf of the dead and/or injured or their families will seek to trace the blame to its point of origin, and that will be with the people who knew about the risk of UXO but chose not to do anything about it.

[1] In case you’re wondering, no, the police cannot do this for you as they do not have the capacity or responsibility to conduct UXO search on multiple construction sites across Hong Kong any more than they have the capacity or responsibility to act as security guards on construction sites. The EOD Bureau will react to a UXO being found by a worker assuming the UXO doesn’t explode at the time it is discovered. If it does, the incident will unfold very differently.

An Explosive risk to construction workers

Mark Ranson is a Director of EROWTEC Limited, a Hong Kong-based UXO remediation company (www.erowtec.com). Mark has been dealing with the management of landmine & UXO issues since 1993 and his business associates for longer than that.

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