CHHA BILAL LIMBU v. ATTORNEY GENERAL AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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The Background

1. On 23 January 1992, at about 5-30 o'clock in the morning, the plaintiff, who was then a captain in 10^th Gurka Rifles , got out of bed in his quarters. He went to his kitchen to boil some water. He turned the knob of a small gas burner. There was an immediate explosion. The plaintiff was badly burned.

2. The plaintiff commenced these proceedings, alleging that the defendants were responsible for maintaining the gas burner, had failed to do so, and as a result, he was injured.

The Partial Settlement

3. On the first day of the hearing, I was told that there had been a partial settlement of the matter. After some confusion, I wrote out a document that, I thought, set out the agreement between all three parties. This document read as follows -

4. The parties confirmed that this accurately set out the agreement, save for one aspect; that mentioned in paragraph 4. Mr Hingorani said that the parties had agreed that the damages suffered by the plaintiff were $1,732,435. From this amount had been deducted 10% representing the first defendant's assessment of the plaintiff's contributory negligence, leaving a figure of $1,559,191.50, which had been rounded off to $1,550,000 for the purposes of the offer to the plaintiff. The plaintiff had accepted this, but the second defendant, while accepting the starting point of $1,732,435, wanted me to decide the degree of the plaintiff's contributory negligence as between the defendants, maintaining that the first defendant's assessment was too low, and that it should be in the region of 50% to 60%.

The Issues

5. This agreement, then settled all the issues s between the plaintiff and the defendants, but, as between the first and second defendants, left the following issues for trial -

Liability as between the Defendants

6. Mr Hingorani accepts that the first defendant had a responsibility to-wards the plaintiff to maintain the gas cooker. That is why the first defendant agreed to pay the damages. The first defendant entered into a contract with the second defendant under which the second defendant undertook to clean, check and repair gas equipment, including this gas cooker. The contract provides that the second defendant shall indemnify the first defendant against any liability, as in this case, arising out of or in consequence of the second defendant's acts, but this liability to indemnify is to be reduced proportionately "to the extent that the act or neglect of [the first defendant] shall have contributed to the damage, loss or injury.". Under the contract, the first defendant had a duty "to watch and inspect the Works, to test and examine any material to be used and workman-ship employed" by the second defendant.

What did the Second Defendant do?

7. There is no direct evidence that the gas cooker concerned was inspected as required by the contract. There is before me a document that purports to be an inspection report. This is dated 11 June 1991, and purports to be signed by the "customer" and the "fitter". It bears, amongst others, the address of the plaintiff's quarters, although this was, apparently, written in after the main body of the document was completed. It bears some Chinese characters that read, in translation, "Examined all stove equipment - normal". The document also bears a chop saying "six monthly inspection of LP Gas Installations". I also have before me a letter written by the second defendant to Mr Chan Wai Lung, who will be mentioned again in this judgment. This letter is dated 30 July 1991. It says "As request, we have completed all of the six monthly inspection in May to the LP Gas appliance in" the quarters, including the building in which the plaintiff's quarters were situated.

The Expert Evidence

8. I was assisted by the evidence of two experts in the field of gas appliances.

9. Mr John Floyd gave evidence on behalf of the first defendant. He attended at the scene of the fire, and he examined the gas burner. He told me that the burner was old, and in a very bad condition; so bad that in one place the rust had eaten through the metal. What had happened, in his expert view, was that gas had leaked from a defective valve, accumulated under the gas rings and exploded when the plaintiff lit the gas. He believed that the burner had been defective for at least 12 months. In his view, the burner had not been properly examined or inspected for at least 12 months, meaning that, if it had been properly inspected, the inspector would have seen that it was defective and dangerous, and would have done something about this. He would have expected any competent contractor who had examined the burner during the previous 6 to 8 months to have found that its condition was unacceptable. Mr Floyd was an honest and impressive witness, and I accept his evidence.

10. Mr Floyd thought that, because the poor condition of the burner was obvious, a reasonable user would have realised that it would be dangerous to use it. Mr Floyd did not find surprising Mr Limbu's evidence that he smelt no gas when he entered the kitchen on that morning; this was compatible with his reconstruction of what happened.

11. The second defendant called Mr Albeit Kwok, another gas expert, to give evidence. Mr Kwok was handicapped by the fact that he had not seen the gas burner concerned. He worked on the basis of Mr Floyd's report, and some information given to him by the second defendant. He agreed with Mr Floyd generally, but believed that the burner had been properly maintained. It seems that he came to this conclusion solely because he thought that the government and the contractor employed by the government would do their job properly. On the evidence, I find that I cannot share this touching faith in the efficient operation of the system. Mr Kwok does not know that the burner was properly maintained. The evidence is against this conclusion.

Conclusion regarding the Performance of the Second Defendant's Duties

12. On the evidence, I find that either the second defendant did not inspect the burner in May or June at all, or if it did so, it did not examine the device properly. For the purposes of this case, it matters not which. I have no doubt that, if the burner had been properly inspected in May or June, its obvious bad condition would have been detected, and this incident would not have happened. This neglect was a direct cause of the injury to the plaintiff.

What did the First Defendant do?

13. What did the first defendant do to perform its duty "to watch and inspect the Works, to test and examine any material to be used and workmanship employed" by the second defendant?

14. The answer to that question is, apparently, very little. There was a plan to replace the old gas cookers being used with new ones, and this was done in some quarters, but the one concerned here was not replaced. This was, apparently, because those responsible did not know that the plaintiff had been provided with quarters with the gas cooker. This was in spite of the fact that the contract with the second defendant required it to maintain the cooker in the plaintiff's quarters. Mr Chan Wai Lung, an employee of the first defendant, was responsible for liasing with the second defendant "in regard to the maintenance" of the cookers. He was provided with a copy of the maintenance programme agreed with the second defendant "to monitor the inspections of the [gas cookers] in all the buildings ... to be carried out by the [second defendant]". The programme provides for the relevant inspections during May and June 1991, and then during December 1991 and January 1992. The practice, Mr Chan says, was that the second defendant would send an inspection report, and , upon receipt of this, Mr Chan "would arrange to check that the works had been carried out in accordance with the maintenance programme and to follow up with [the second defendant] in respect of any outstanding works." Also, Mr Chan says, " random on-site checking would be carried out by me and my assistants from time to time to see that the works were executed properly by the [second defendant]"

15. Mr Chan says not one word about checking this particular gas cooker. He says that he could not find any record of any complaint made by the plaintiff about the cooker.

16. In my judgment, the first defendant could not have done its duty in carrying out what Mr Chan says was the practice. If it had done so, the poor condition of the burner would have been immediately apparent. In this, the first defendant was guilty of neglect that contributed to the injuries suffered by the plaintiff.

Reduction of Indemnity

17. On these findings, the first defendant is entitled to be indemnified by the second defendant, but this is to be reduced proportionately "to the extent that the act or neglect of [the first defendant] shall have contributed to the damage, loss or injury."

18. In my view, the neglect of both defendants contributed equally to the loss suffered, so the indemnity to which the first defendant is entitled is to be reduced by half.

Contributory Negligence by the Plaintiff

19. Mr Limbu impressed me as an honest, straightforward man. I believe his evidence. He told me that he noticed that the burner was rusty and old. He complained about this; once to the mess sergeant and once to the family welfare officer. They said "OK", and then they did not do anything. It did pass through his mind, he said, that the burner might be dangerous. That is why he complained. My impression was that Mr Limbu was saying that, although he thought the burner might be dangerous because he did not smell any leaking gas, he did not think that danger was imminent.

20. I conclude that Mr Limbu was careless about his own safety, but I have to take into account that he was a military officer in a disciplined force - he could not walk away from his job - he had complained about the situation, and he did not smell any gas that would have warned him that the danger was nigh. In these circumstances, I think his degree of contributory negligence was no higher than the 10% assessed by the first defendant.

Result as between the Defendants

21. I conclude that the first defendant is entitled to recover the sum of $775,000 from the second defendant. I grant judgment in favour of the first defendant against the second defendant in this amount.

Costs as between the Defendants

22. On the face of it, the first defendant is substantially the victor in the battle between the defendants. On this basis, I make an order nisi that the second defendant pay the first defendant's costs of the proceedings between them.

Plaintiff's Costs against second Defendant

23. As I described at the beginning of this judgment, on the first day of the hearing, the plaintiff's claim was settled on the terms set out in the document mentioned. He then left the case, one hopes, rejoicing.

24. However, on the second day, Mr Leong reappeared. He had presented a draft order to the court and Mr Hingorani. This draft reflected the agreement reached regarding the plaintiff's costs of action against the second defendant, save that, at the end of the paragraph concerned, there appeared the words "provided that nothing herein shall in any way affect the joint and several liability of the 1^st and 2^nd Defendants for such costs". But, said Mr Hingorani, that it not what we agreed. He pointed out, rightly, that the plaintiff's original position had been that he wanted the first defendant to pay his costs of action against the second defendant, but the first defendant refused to do this. So, the parties thrashed out the agreement recited, and under this, quite clearly, who was to pay these costs would be determined according to the formula stated; not that the plaintiff would be entitled, in practical terms, to recover all these costs from the first defendant, who would then have to look to the second defendant to recover whatever the second defendant should bear.

25. Mr Leong says that the plaintiff would have been entitled to stay in the action to ensure that he obtained a joint and several costs order against both defendants, but he could have done so only on the basis that he was at risk overall. He cannot accept part of the first defendant's offer, and fight to obtain a better deal for the rest. It is now too late to open up this matter again.

26. My order is that the plaintiff's costs of action against the second defendant be met, as to half, by the first defendant, and to the other half, by the second defendant.

27. There remains only the matter of the costs involved in the plaintiff's reappearance to argue a matter that, I have found, had already been agreed. The plaintiff did not succeed in this, and there seems no reason why costs should not follow the event. The plaintiff is to pay the costs of this.