LAI CHOI SAU v. WONG WEI PUI AND ANOTHER

1995, No. HCPI995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 995 OF 1995

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J U D G M E N T

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1. Mr LAI Choi-sau, the plaintiff in this matter, was working on a building site on 10 November 1992. He was standing on a trestle plastering a column at the entrance to the site. While he was working, he heard a bang as the trestle on which he was standing was knocked by another trestle. He fell from the trestle and injured his right heel.

2. The site in question was a site on which a village house was being constructed. The main contractor for that site was the 2nd defendant. Pretty well the major part of the work was sub-contracted to the 1st defendant, and the plastering work in connection with the building was, again, sub-contracted to the plaintiff. There was some suggestion on the pleadings that the plaintiff was an employee of, perhaps, both the

1st defendant and the 2nd defendant but, Mr CHEUNG, who appears for the plaintiff concedes that the true position was that the plaintiff was a sub-contractor of the 1st defendant.

3. The plaintiff is an experienced worker. At the time of the accident he had been a plasterer for some ten years or so, and he was a master. He recognised himself that it was his responsibility to carry out the work that had been sub-contracted to him and he did not expect, and indeed did not, get any instructions from either the 1st or the 2nd defendant. The trestle on which he worked was supplied by the 1st defendant not apparently specifically for the job that the plaintiff was doing at the time of the accident but generally available on site for his use or, indeed, the use of anyone else working on site.

4. I should say that the 1st defendant is not before the court, not having been served with the writ, but the plaintiff does not in any event suggest that there was anything unsafe about the trestles. He, himself, placed the trestles for the work he was doing on that day and, as far as he was concerned, they were perfectly safe and he saw no danger in where he placed them and, indeed, no danger in the fact that one of the trestles protruded one or two feet, he says, into a public footpath. Indeed, it seems to me that he was right not to think that there was any danger in what he had done in placing the trestles.

5. It may be that the person who knocked into the trestle that was protruding was careless. We don't know why she did that, but from what she told him it appears that she was distracted in some way. It may be that that woman was to blame for this accident but she is not before the court either. Indeed, only the 2nd defendant is before the court and I have to find whether or not that 2nd defendant is responsible for the damages suffered by the plaintiff.

6. As I have said, the 2nd defendant had no contractual relationship directly with the plaintiff. The plaintiff was a sub-contractor to the 1st defendant but it is suggested on the plaintiff's behalf that the 2nd defendant had some duty to ensure that the way in which the plaintiff did his work was safe. That duty is said to be found either in the common law or under the Occupiers Liability Ordinance, Chapter 314. There is of course no suggestion that the state of the premises themselves were unsafe in any way or caused any danger to a visitor or licensee. It must, as far as the statutory liability is concerned, be based on the fact that there was some activity on the premises that gave rise to a danger against which the 2nd defendant should have guarded. I must say my finding is that in the circumstances of this case there was no such duty.

7. It seems to me that the only basis upon which the 2nd defendant could be found liable is that it was in some way responsible for ensuring that the plaintiff devised a system of work that was safe. But in my view, there is no such duty on a main-contractor towards a subcontractor.

8. The plaintiff was employed to do a specific job of work, and how he did that was entirely a matter for him. He himself recognised that when he gave evidence. If the 2nd defendant had no basis upon which it could tell the plaintiff how to do his work, then it's very difficult to see how one can say there was a duty on the 2nd defendant to ensure that he did his own work safely. But even if one could construe such a duty, it again is difficult to see any breach of that duty.

9. The plaintiff is an experienced construction worker, and he saw no risk in what he did. Of course, with the benefit of hindsight, it's comparatively easy now to say that the plaintiff, or indeed the 2nd defendant, or anyone else on site might have appreciated that someone behaving carelessly, coming down the public path, might have knocked him to the trestle and caused the plaintiff to be thrown off. But I do not think it is so, that even if one assumes the 2nd defendant should have had someone stationed on site continuously to watch for this kind of thing, that that person would have said to the plaintiff reasonably, "What you're doing is dangerous. You must not do it that way." The fact that the plaintiff saw no risk is, I think, strong evidence that a supervisor for the 2nd defendant would not reasonably have seen any risk either.

10. This was an unfortunate accident, and one must feel sympathy for the plaintiff in having injured himself through no apparent fault of his own. But because he was not at fault does not mean that I have to find the 2nd defendant was at fault. I cannot see any basis upon which it could be said that the 2nd defendant is responsible. By reason of any breach of a duty under the common law, or under the Ordinance, or if such duty existed that there was any breach of it. Accordingly, I find that the plaintiff has not established a case against the 2nd defendant and his claim is dismissed.

[Submissions re costs and taxation]

11. The plaintiff in this case, Mr LAI, is, I'm satisfied, an entirely honest and truthful witness. He has a simple story to tell and he told it straightforwardly. If he had told that story at the beginning of these proceedings before the writ was issued, and there's no reason to think that he didn't, I do not understand why proceedings were commenced against in any way the 2nd defendant at all.

12. Once one looks at the plaintiff's Statement of Claim, stripped of all the allegations that are not supported by the plaintiff himself, one is left with a claim alleging a basis of liability that the 2nd defendant had some duty to ensure that the plaintiff did his work safely.

13. In my view, it should never have been thought that such a basis supported a claim in law, by the plaintiff, against the 2nd defendant. Accordingly, it seems to me that the plaintiff's claim was misconceived from the outset, and it would not be just to leave the 2nd defendant in the position of paying any substantial part of its own costs.

14. I think that the justice of this matter does require that there should be an order that plaintiff pay the costs on an indemnity basis, and I do so order.

(J. K. Findlay)

Judge of the Court of First Instance of the High Court

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie Date: 9 July 1998