LEE KIN HUNG v. LAO PAK CHON t/a LUNG KONG ELECTRIC ENGINEERING AND OTHERS

HCPI 705/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 705 OF 2010

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JUDGMENT

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1. This is a personal injury claim arising out of an alleged work-related accident on 17 January 2008 at De Victoria, 9-15 Yee Wo Street, Causeway Bay (“the Site”). At the material time, renovation works were carried out in the building at the Site (“the Building”) for use as a hotel or service apartments.

Background

2. The Plaintiff was an electric and plumbing worker employed by the 1^st Defendant.

3. The 3^rd Defendant was the contractor engaged by the owner of the Building, Raingate Limited (“Raingate”), to carry out renovation works inside the Building including the installation of water pipes both inside and at the external walls of the Building.

4. The 1^st Defendant was a sub-contractor of the 3^rd Defendant to carry out part of the renovation works including plumbing works and the installation of water pipes.

5. The Third Party was another contractor engaged by Raingate to carry out renovation works at the external walls of the Building.

6. The 2^nd Defendant was a sub-contractor engaged by the Third Party to erect the scaffoldings for the renovation works at the Building (“the Scaffoldings”).  The 2^nd Defendant was also responsible for the inspection of the safety of the Scaffoldings and to carry out any repair work thereto if necessary.

7. Although the Third Party was only responsible for the renovation works at the external walls of the Building, it knew that some of the workers for the internal renovation works might use the Scaffoldings for their works.

8. The alleged accident occurred on 17 January 2008, and there is a dispute as to how the accident actually happened.

9. According to the Plaintiff, on the day of the accident, he was instructed to install some water pipes in the Building together with his colleagues Lam Ying Sun (林英新) (“Mr Lam”), Chan Yuet Hung (陳月雄) (“Mr Chan”) and a worker known as “Ah Wing” (亜榮).  In so doing, they had to carry about 30 water pipes from the ground level to the rooftop of the Building (“the Rooftop”), which was of 19 storeys high, and then to lower the pipes from the Rooftop to the podium on the 8^th floor (“the Podium”) of one of the light wells of the Building (“the Light Well”).

10. Each water pipe was about 6 metres in length, 22 millimetres in diameter and 3.78 kilograms in weight.

11. On the day before the accident, the workers had completed the task of transporting the pipes to the Rooftop.  On the day of the accident, the said 4 workers were carrying the pipes down from the Rooftop to the Podium.

12. The scaffolding in the Light Well (“the Scaffolding”), which was constructed by the 2^nd Defendant, was a double-layered one.

13. The 4 workers lowered the water pipes by hand.  They put a wooden plank (“the Plank”) between the inner and the outer layers of the Scaffolding to serve as a platform which was about 1 or 2 storeys down from the Rooftop.  They placed the 30 water pipes on the Plank.  The workers then stationed themselves at different levels of the Scaffolding, with a space of about 2 to 3 storeys between them.  The worker at the top, Mr Lam, would start to pick up a pipe from the Plank and passed it to the next worker, Mr Chan, who would be about 2 to 3 storeys below him in the Scaffolding.  Mr Chan would then pass the pipe to the Plaintiff, who would in turn pass it to Ah Wing at the bottom.  Ah Wing would then place the water pipe vertically on the Podium.

14. At the time of the accident, the Plaintiff was carrying out the work as mentioned above.  He suddenly heard a loud shout from above warning of falling water pipes.  To avoid being struck, the Plaintiff immediately dodged and gripped a vertical bamboo of the Scaffolding.  In the course of doing so, he lost his footing and hung from the Scaffolding.  As a result, the Plaintiff injured his left arm and shoulder.

15. After the accident, the Plaintiff was taken to the Accident and Emergency Department of Ruttonjee & Tang Shiu Kin Hospital (“Ruttonjee Hospital”) for treatment.  According to the record made by the treating doctor, the Plaintiff injured himself while walking down the stairs on the day of the accident.  He slipped and fell and landed on his left arm.

16. On or about 29 January 2008, the 1^st Defendant filed the Form 2 notifying the Labour Department that the Plaintiff injured himself whilst he was carrying some accessory parts for the installation of water pipes and slipped on the stairs inside the Building.

17. In this action, the Plaintiff claims damages for personal injuries against the 3 Defendants based on the following causes of action:

(i)   breach of implied term of the contract of employment against the 1^st Defendant;

(ii)  negligence against all the 3 Defendants;

(iii)  breach of the common duty of care under the Occupiers Liability Ordinance (Cap 314) against all the 3 Defendants;

(iv)  breach of statutory duty under ss 6(1), 6(2)(a), 6(2)(c) of the Occupational Safety and Health Ordinance (Cap 509), and rr 38A, 38B, 38C and 38D of the Construction Sites (Safety) Regulation (Cap 59I)(“the Regulations”) against the 1^st Defendant;

(v)  breach of statutory duty under rr 38A, 38AA, 38B and 38D of the Regulations against the 2^nd Defendant; and

(vi)  breach of statutory duty under rr 38A, 38B, 38C and 38D of the Regulations against the 3^rd Defendant.

18. After the commencement of the present proceedings, the 1^st and 2^nd Defendants issued third party proceedings against the Third Party.  The 3 Defendants had also issued various contribution and indemnity notices against each other.

19. The 2^nd and 3^rd Defendants and the Third Party claim that they knew nothing about the accident until a time near the commencement of the legal proceedings.  Further, all the Defendants and the Third Party deny that the accident, if any, happened in the way as described by the Plaintiff.

20. The 2^nd Defendant and the Third Party had not taken out any insurance policy to cover the risk involved in the present case.  There is a dispute between them as to who was responsible for taking out insurance policy to cover such risk.  As I will demonstrate below, it is unnecessary for me to resolve this particular issue.

21. For the same accident, the Plaintiff had made a claim for employees’ compensation under DCEC No 717 of 2009 against the 1^st Defendant (“the EC Claim”).  The EC Claim was settled and the Plaintiff will give credit to the sums already received by him.

Evidence in support of the Plaintiff’s case

22. The main dispute between the parties is whether the Plaintiff has discharged the burden of proving that the accident occurred in the way as described by him.

23. The Plaintiff himself testifies at the trial.

24. He confirms that the accident occurred at the Scaffolding when he was trying to dodge himself away from the falling water pipes.  However, since he was not working near the top of the Scaffolding at the material time, he himself had no personal knowledge as to what caused the water pipes to fall down.  After the accident, he was taken to Ruttonjee Hospital for treatment.  Because he left the locus shortly after the accident, he personally did not witness any tilting of the Scaffolding in the Light Well.

25. As to the different version of the accident given by him to the treating doctor, the Plaintiff explains that, after the accident, he was taken to the temporary office of the 3^rd Defendant at the Site by Chu Ting Sung (朱天宋) (“Mr Chu”) who was a foreman of the 1^st Defendant at the Site.  The Plaintiff was asked by Mr Chu, who was in turn instructed by a representative of the 3^rd Defendant, not to report the accident as having occurred at the Scaffolding.  If he were to say so, the Labour Department might have to conduct an inspection of all the Scaffoldings at the Site, and it would seriously disrupt the progress of the renovation works.  The Plaintiff agreed to do so but he now regrets his decision of telling a lie by that time.

26. The Plaintiff has also asked Mr Chan to testify in support of his claim.  Mr Chan made a very brief affirmation about the occurrence of the accident on 21 August 2008, but he purports to give a more detailed account of the accident at the trial.

27. According to Mr Chan, he cannot remember whether it was he or some other workers who placed and secured the Plank in the Scaffolding.

28. The Scaffolding in the Light Well consisted of the inner and outer layers.  The outer layer[1], which was further away from the walls of the Light Well, consisted of more bamboo structures as its main purpose was to support and strengthen the whole structure of the Scaffolding.  The inner layer[2], which consisted of less bamboo structures, was mainly for the convenience of the workers to move around the Scaffolding.

29. At the time of the accident, he was transporting the water pipes at the Scaffolding and his station was below Mr Lam but above the Plaintiff.  Suddenly, the inner layer of the Scaffolding just moved downwards (座咗落嚟) and the Scaffolding tilted in the direction of the wall of the Light Well.  Since the Plank was secured to the Scaffolding, the Plank also tilted to the extent of about 45 degrees.  Because of such tilting, the water pipes fell down.  He shouted a warning to the workers below.  When he looked down, he saw that the Plaintiff was hanging from the Scaffolding with the left hand holding onto one of the bamboos.  The Plaintiff was the only worker who was injured during the accident.

30. After the accident, he did inform Mr Chu about the tilting of the Scaffolding.  When he returned to the Building the next 2 to 3 days to take care of the fallen pipes, he noticed that the Scaffolding remained tilted in the same manner.  He formally resumed his work in the Building about a week about the accident.  By that time, there was no serious tilting of the Scaffolding and so he resumed his work as normal.  Mr Chu told him that the problem had been fixed (執咗).

Evidence in support of the respective cases of the Defendants and the Third Party

31. Tong Yau Ming (唐有明)(“Mr Tong”) testifies on behalf of the 1^st Defendant.  He was the person-in-charge of 1^st Defendant of the renovation works at the Building.  On one particular day, Mr Chu informed him that the Plaintiff slipped in a flight of stairs inside the Building when he was carrying some accessory parts for the installation of water pipes.  He personally asked the Plaintiff about his injuries, and the latter told him that the injuries were not serious.  He later submitted the Form 2 to the Labour Department on or about 29 January 2008 stating that the Plaintiff sustained injuries while carrying some accessory parts in the staircase.

32. Mr Tong only knew about the Plaintiff’s version of the accident after the commencement of the EC Claim.  After that, he approached Mr Chan with a view to find out more details about the accident.  By then, Mr Chan told him that the accident occurred at the Scaffolding.

33. Mr Tong had asked Mr Chu to testify at the trial on behalf of the 1^st Defendant, but the latter refused to co-operate.

34. Wong Tak Woo (黄德和)(“Mr Wong”), who was a scaffolding worker employed by the 2^nd Defendant at the relevant time, testifies on behalf of his employer.

35. Mr Wong has about 30 years of working experience in the construction of scaffoldings, and he is a “competent person” within the meaning of the Regulations who is entitled to carry out inspection work of scaffoldings as required by the Regulations and to sign reports relating to the safety of scaffoldings.

36. Mr Wong was responsible to supervise the construction of the Scaffoldings at the Building.  After the construction, he inspected the Scaffoldings at intervals of 14 days as required by the provision in the Regulations.  After each inspection, he signed a report confirming that the Scaffoldings were in safe working order.  According to Mr Wong, no one had ever told him about any tilting of the Scaffoldings or had asked him to carry out any repair works relating to the same.

37. According to Mr Wong, placing 30 water pipes on the Plank should not have compromised the stability or safety of the Scaffolding.  Since the size of the Light Well was small and the Scaffolding was a double-layered one, the chance of any tilting of the Scaffolding was slim.

38. Lee Wai Wing (李偉榮), who is a director of the 2^nd Defendant, also testifies on behalf of his company.  Since 1993, he has been working in the business of the construction and repair of scaffoldings.  Before the commencement of the legal proceedings, no one had ever informed him about the accident or had requested him to repair the Scaffoldings at the Site.  According to him, apart from some handy tools, workers should not use scaffoldings as a place for storage or placement of construction materials.  However, placing a few water pipes on the Scaffolding should not have compromised its safety.

39. Shih Yung Kang (施永康)(“Mr Shih”) testifies on behalf of the 3^rd Defendant.  He is the person responsible for operating the business of the 3^rd Defendant.  He only knew about the accident in April 2009 when the Plaintiff’s solicitors issued a pre-action letter to Raingate.  After receiving such notice, he contacted Mr Tong who told him about the 2 different versions given by the Plaintiff about the occurrence of the accident.  He denies that he had ever asked the Plaintiff or Mr Chu to misreport the actual location of the accident.

40. The 3^rd Defendant used a room in the Building as a temporary office for the renovation works.  Since Mr Shih, from time to time, had to inspect the progress of the works and to go out to buy some construction materials, he would not be in the temporary office all the time.  He had an assistant Mr Sze working for him at the Site.

41. As some of the workers engaged by the 3^rd Defendant and its sub-contractors had to use the Scaffoldings at the Building to carry out their works, the 3^rd Defendant had approached Raingate for permission for these workers to use the Scaffoldings.

42. Chan Chiu Hung (陳超孔) testifies on behalf of the Third Party.  According to him, the Third Party had sub-contracted the construction of the Scaffoldings to the 2^nd Defendant.  Apart from its own workers and the workers of its sub-contractors, other workers using the Scaffoldings would have to approach Raingate for permission to use the Scaffoldings for their works.  On 15 March 2010, the 2^nd Defendant informed him that it had received a pre-action from the Plaintiff’s solicitors.  Prior to that, Chan Chiu Hung knew nothing about the accident.

Assessment of the evidence

43. Having heard the evidence of the witnesses at the trial, I have great reservation about the credibility of the evidence of the Plaintiff and his witness Mr Chan.

44. Firstly, their evidence is directly contradicted by the version of events given by the Plaintiff to the treating doctor on the day of the accident.  According to the Plaintiff, he was persuaded by Mr Chu to tell a lie on that day so as not to affect the progress of the renovation works at the Site.  However, Raingate contracted with the Third Party for the construction of the Scaffoldings and the Third Party in turn sub-contracted the work to the 2^nd Defendant.  If the accident was caused by any defect in the Scaffolding, there was simply no reason or motive for the 1^st or 3^rd Defendant or Mr Chu to have covered up the matter for the Third Party or the 2^nd Defendant.  The 1^st and 3^rd Defendants should not be blamed for any delay in the renovation works, and for them, it did not worth the risk of fabricating another version of the accident as serious consequences might follow.

45. Secondly, it is the evidence of Mr Tong of the 1^st Defendant that he had made enquiry with the Plaintiff about his injuries shortly after the accident, a matter which cannot be disputed by the Plaintiff.  If the accident did occur at the Scaffolding, there was no reason why the Plaintiff did not mention this to Mr Tong.  There is also no logical explanation as to why Mr Chu had not discussed the matter with Mr Tong.  If the accident were caused by the defect in the Scaffolding, Mr Chu should have consulted Mr Tong as to how to deal with the matter.  To me, it does not make a lot of sense that Mr Chu just proceeded to get himself and the 1^st Defendant involved in the cover up by fabricating a different version of the accident without consulting Mr Tong.

46. Thirdly, if the 3^rd Defendant and Mr Chu wanted to cover up the alleged accident in the Light Well, one would expect them to follow through and instruct other workers including Mr Chan to keep quiet and not to report the accident to the Labour Department.  If the accident were caused by the defect in the Scaffolding and Mr Chan had to go on to work on the Scaffolding again, Mr Chan would naturally be concerned for his own safety and might well make an anonymous report to the Labour Department.  Yet there is no such suggestion from Mr Chan that Mr Chu had asked him to keep quiet about the accident.  This certainly casts doubt on the Plaintiff’s case.

47. Fourthly, I have doubt about the Plaintiff’s explanation as to the giving of a “false” account of the accident to the treating doctor at Ruttonjee Hospital.  The Plaintiff’s explanation would only hold good if he held the belief by that time that the Hospital Authority and the Labour Department would share information on how accident occurred.  As there is no evidence that the two authorities would have done so, I wonder why the Plaintiff held such belief by that time.  On the other hand, if he gave a false account of the accident to the treating doctor, he would probably have realised that the defendants would try use the record in the medical report against him in any possible future legal action, and yet he decided to provide a “false” account to the treating doctor.  To me, this does not make a lot of sense.

48. Fifthly, I also cannot understand why the Plaintiff, after he decided to reveal the “truth”, provided very little details about what happened on the day of the accident in his subsequent affirmation made to the Labour Department and his witness statement.

49. In his affirmation to the Labour Department dated 5 August 2008, the Plaintiff did not reveal that it was Mr Chu who had told him to misreport the location of the accident.  Under cross-examination, the Plaintiff admits that he had known Mr Chu for a number of years before the accident.  The alleged purpose of making the affirmation was to put on record that the accident occurred at the Scaffolding and someone put him up to telling the doctor that he slipped on the stairs.  If what the Plaintiff says were the truth, there is no reason why he did not name Mr Chu as that person and give full details of what was alleged to have happened at the temporary office. Under cross-examination, the Plaintiff cannot provide a satisfactory explanation.  The same criticism can be made about the omission of the important conversation between Mr Chu and the Plaintiff in the taxi when the latter was taken to hospital for treatment.  Based on these observations, there is reason for me to believe that the Plaintiff is making up his story as he goes along with a view to “improve” his case.  Hence, I reject the Plaintiff’s evidence on the balance of probabilities.

50. Finally, I have great reservation about Mr Chan’s evidence relating to the cause of the accident.  If what Mr Chan says were the truth, it was a rather serious incident for the Scaffolding to have tilted in such manner.  In particular, the size of the Light Well was relatively small and the Scaffolding was a double-layered one.  If the Scaffolding had tilted in the manner as described by Mr Chan, a report should have been made to the 2^nd and 4^th Defendants to carry out the necessary repair works.  Yet this was not the case here.

51. I have not ignored the fact that Mr Chan can be considered as a more independent witness, and usually there is no reason for him to fabricate the evidence in favour of the Plaintiff’s case.  However, if what Mr Chan says were true, it would virtually mean that there was a conspiracy involving all the Defendants and the Third Party to cover up the true cause of the accident.  In my judgment, this was highly unlikely.  It was simply improbable that the 1^st and 3^rd Defendants would have wanted to associate themselves with such a cover up when the Scaffoldings were the sole business of the Third Party and the 2^nd Defendant.  Taking into account the working relationship between the Plaintiff and Mr Chan, I consider it possible for the latter to change his evidence with a view of helping the Plaintiff to obtain more compensation.  Hence, I have no hesitation in rejecting Mr Chan’s evidence.

52. On the other hand, I accept all the witnesses of the Defendants and the Third Party to be honest and truthful witnesses.  In fact, there is nothing before me to cast doubt on the credibility of their evidence.  Apart from the 1^st Defendant (in which case it was misled as to how the accident actually occurred), I accept that they had not heard anything about the accident until a time when the Plaintiff started to take legal action against them.  Further, as I have mentioned above, it was highly unlikely that all the Defendants and the Third Party were involved in a conspiracy to cover up the true cause of the accident.  There is no logical reason as to why the 1^st or 3^rd Defendant would want to get involved in such cover-up if the accident was primarily caused by the defect in the Scaffolding. 

53. For the above reasons, I find that the Plaintiff has, on the balance of probabilities, failed to prove that the accident occurred at the Scaffolding or in the manner as alleged by him, and so his claim against the Defendants must fail.

Pleading issue based on the alternative scenario

54. When the Plaintiff and Mr Chan are giving evidence at the trial, I have pointed out that, if the accident occurred at the Scaffolding as alleged by them, it was dangerous to have put the water pipes on the small Plank in the Scaffolding.  Even without any tilting of the Scaffolding, the water pipes might fall down easily because they were not placed in a secured manner on the Plank.  In the final submissions, there is, therefore, an issue as to whether it is not open for the court to find liability against the Defendants and the Third Party based on such alternative scenario, i.e. the water pipes just fell down without any tilting of the Scaffolding.

55. Since I reject the evidence of the Plaintiff that the accident occurred in the manner as alleged by him, there is no need for me to deal with this particular pleading issue.  However, since counsel for all the parties have addressed me extensively on such issue, I feel obliged to give my view on the matter.

56. In paragraphs 4 & 5 of the Statement of Claim, the Plaintiff pleads that the accident occurred in the following manner:

“4. On 17 January 2008, at around 11 a.m., while in the course of employment with the 1^st Defendant, the Plaintiff was instructed to install water pipes outside the external walls between the 8^th Floor and Rooftop of [the Building] (“the Work”). The Plaintiff accessed the external walls by way of the scaffold already erected. The Plaintiff, together with his colleagues [Mr Lam], [Mr Chan] and [Ah Wing] carried about 30 water pipes and placed the same on the top platform of the scaffold at the Rooftop of [the Building] in preparation for the carrying out of the Work.

5.  The Plaintiff and his colleagues proceeded to carry out the Work by each stationing at a different level of the scaffold.  Suddenly, the top platform of the scaffold moved or overturned or tipped towards the external walls of [the Building], causing the said about 30 water pipes to fall from height.  In order to avoid being struck by the falling water pipes, the Plaintiff dodged and gripped a vertical bamboo of the scaffold, lost his footing and hung from the scaffold (“the Accident”).  As a result, the Plaintiff sustained personal injury to his left arm and shoulder.”

57. It is therefore the Plaintiff’s case that the fall of the water pipes was caused by the movement, overturning and tipping of the Scaffolding.  In other words, the accident was caused by the defect in the Scaffolding itself.

58. Ms Yang, counsel for the Plaintiff, argues that the Plaintiff’s pleaded case is wide enough to cover the alternative scenario. I disagree.  Unlike the case of Ko Kam Wai v Sze Hak Fung t/a Chung Fung Company & Anr, unreported, HCPI 292/2005 (decision of A Cheung J, as he then was, on 11 July 2006) relied on by Ms Yang, it is the Plaintiff’s express pleaded case here that the accident was caused by the tilting of the Scaffolding.  That is why, at the trial, the parties have focused on the evidence relating to the stability of the Scaffolding.  The exact sequence of events leading to the alleged accident is important because it forms the basis of the claim against the Defendants and the Third Party.  The claim for breach of statutory duty is also made on such basis, relying on statutory regulations mainly about the safety of the Scaffolding.  Hence, due to the way in which the Plaintiff has pleaded his case in paragraphs 4 and 5 of the Statement of Claim, the Plaintiff’s pleaded case is not wide enough to cover the alternative scenario.

59. Alternatively, Ms Yang argues that the alternative scenario is covered by the plea of contributory negligence against the Plaintiff and the points of claim and defence in the contribution and indemnity proceedings.  In their pleadings[3], the Defendants and the Third Party positively aver that the accident was caused by the improper placement of a substantial amount of water pipes on the Plank thereby creating a serious danger and risk of injury to the Plaintiff.  In such circumstances, can the court find liability against the Defendants and the Third Party based on these averments in the defence pleadings?

60. This particular question has been considered by the Court of Final Appeal in Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow International Joint Venture[4]. In that case, the plaintiff, a scaffolding worker, brought personal injury proceedings against the defendant, the principal contractor of a railway station site, after he fell onto a railway platform from a height.  The plaintiff’s pleaded case was that he was not provided with any safe means of working at a height, but only with an unsuitable ladder from which he fell off.  The defendant pleaded that the accident was caused solely or contributed to by the plaintiff’s negligence.  In support, the defendant pleaded first, that the plaintiff had been standing on a folding step ladder; or alternatively, that he had been standing on a fluorescent light trough.  The trial judge rejected the plaintiff’s version of events and found that the light trough version was accurate.  On that basis, he found against the defendant on liability but also held that there was 25% contributory negligence on the plaintiff’s part.  The defendant appealed.  The Court of Appeal allowed the appeal and held that the light trough version should have been pleaded by the plaintiff. Upon further appeal, the Court of Final Appeal restored the order of the trial judge.

61. In arriving at the decision, the Court of Final Appeal held the following:

(i)   where the version of events as pleaded or advanced by a party was found not to be accurate or true and another version was held to be true, a court must be careful when asked to make a finding of liability based on that other version; and that before doing so, it must be satisfied that the other party was fully aware of the case it had to meet (usually by the matter being made clear in the pleadings) and had been given a full opportunity to deal with it[5]; and

(ii)  despite such cautious approach, the court was entitled to decide in favour of a plaintiff on the basis of a scenario which, although different from the one pleaded and advanced by the plaintiff, was one pleaded and advanced by the defendant[6].

62. The Court of Final Appeal accepted that this was indeed the case in Poon Hau Kei.  The defendant had pleaded the light trough version though it was in the alternative.  The judge’s finding was therefore covered by the pleadings.  The Court of Final Appeal also accepted the assessment of the trial judge that the light trough scenario had been fully canvassed by the parties at the trial, and there was no prejudice caused to any parties.  In such circumstances, the Court of Final Appeal restored the order of the trial judge.

63. The dicta in Poon Hau Kei was considered by DHCJ  Saunders (as he then was) in Chan Kin Bun v Wong Sze Ming & Anr[7].  In that case, the plaintiff was injured by a T-shaped ruler by his schoolmate and suffered injury to his left eye.  In the statement of claim, the plaintiff pleaded that whilst the plaintiff was queuing up for refreshment at a store in the playground, the 1^st defendant together with other students behind the plaintiff were engaged in playing around, hitting each other with plastic rulers as though in a mock sword fight.  As the plaintiff turned around, the 1^st defendant hit the plaintiff’s left eye with his ruler.  In the pleading, the plaintiff pleaded a case of assault and battery and negligence against the 1^st defendant and a claim for negligence for inadequate supervision against the 2^nd defendant which was the school.

64. In its defence, the 2^nd defendant pleaded that that the plaintiff did not line up to buy refreshments at the time of the accident.  Instead, he initiated and played fencing with the 1^st defendant with rulers.  In the course of doing so, the plaintiff was injured by the ruler of the 1^st defendant.

65. At the trial, the evidence supported the version of events averred by the 2^nd defendant.  DHCJ Saunders held that the plaintiff was entitled to rely on the 2^nd defendant’s defence which pleaded that the accident was caused or contributed to by the negligence of the plaintiff and the 1^st defendant engaging in horseplay.  The court held that the matter became plain on the first day of trial.  It was open for the 2^nd defendant to call any additional witnesses, and there could not be submission made to the effect that it was unfair to allow the plaintiff to rely upon the very scenario pleaded and asserted by the 2^nd defendant.

66. Despite the able submission of Ms Yang, I do not find that these authorities can assist the Plaintiff’s case even if the court were to accept the alternative scenario.  In Poon Hau Kei, the defendant had expressly pleaded the light trough version as an alternative.  In Chan Kin Bun, the defendant had expressly pleaded an alternative version of the accident that the plaintiff injured himself whilst he and the 1^st defendant were engaging in horseplay.  The present case is different.  In the pleadings, the Defendants and the Third Party only plead that, in support of the plea of contributory negligence against the Plaintiff and the claims for contribution and indemnity between them, there was improper placement of a substantial amount of water pipes on the Plank thereby creating a serious danger and risk of injury to the Plaintiff.  Such averment does not necessarily support an alternative version of events that the water pipes just fell down without any tilting of the Scaffolding.  According to these averments, the Defendants and the Third Party may just be saying that, based on the Plaintiff’s version of the pleaded case relying on the tilting of the Scaffolding, the Plaintiff was also negligent because he should not have placed so many water pipes on the Plank, or that his employer should not have allowed this to happen.  Hence in my judgment, the Defendants the Third Party have not put forward an alternative scenario in the pleadings.  As submitted by the counsel for the Defendants and the Third Party, the only alternative scenario advanced by the defence was that the Plaintiff slipped and fell on the staircase.

67. Although the Court of Final Appeal seemed to suggest in Poon Hau Kei that express pleading of the alternative scenario by a defendant in his pleading is not the only way for a plaintiff to establish liability based on such alternative scenario, the court must be careful when asked to make a finding of liability under such circumstances.  Up to now, I am not aware of any authorities in which the court had found liability based on an alternative scenario in the absence of an express plea of such scenario in the pleadings either by the plaintiff or the defendant.

68. In my judgment, it is unfair for the Plaintiff to run a case based on the alternative scenario in the present case.  Although I have made an observation at the trial that it was dangerous to put so many water pipes in an unsecured manner on the Plank, and the water pipes might just fell down without any tilting of the Scaffolding, it is not sufficient to put the Defendants on alert that they are expected to meet such a case on liability. In fact, the main concern of the parties at the trial is whether there was any tilting of the Scaffolding, and the pleading issue about the alternative scenario has not caught the attention of parties until the final submissions.  Under such circumstances, it is unjust to ask the Defendants to meet the Plaintiff’s unpleaded alternative case at such a late stage of the proceedings.

69. Furthermore, there is one important issue which has not been canvassed by the parties if the Plaintiff is allowed to run a case based on the alternative scenario.  In the claim for breach of statutory duty against the Defendants, the Plaintiff is mainly relying on the breach of rr 38A, 38AA, 38B, 38C and 38D of the Regulations.  Based on the alternative scenario, there could not have been any breach of rr 38C or 38D because they relate to the safety of the scaffolding itself.  There might not even be any breach of rr 38A, 38AA or 38B because they relate to the removal of hazardous conditions associated with the risk of workers working at a height.  If the water pipes just fell down without any tilting of the Scaffolding, then the risk associated with the accident might not relate to a hazardous condition of workers working at a height.  Rather the risk was one that should be covered by r 49 of the Regulations, which requires contractor responsible for a site to take necessary precautions to prevent workers from being struck by any falling material or object.  In other words, if the court were to accept the alternative scenario, there is a respectable argument open to the Defendants to say that the Plaintiff has relied on the wrong regulations in the claim for breach of statutory duty.  Focusing on the pleading arguments in the final submissions, the parties have not canvassed this particular issue at the trial.  Hence, it is very dangerous for the court to find liability against any of the Defendants based on the alternative scenario. 

70. For the above reasons, I do not accept that the pleadings provide any room for the Plaintiff to run a case based on the alternative scenario.  Neither is that fair for the Plaintiff to do so.  Hence, even if the court were to make a finding based on the alternative scenario, which is not the case here, the Plaintiff’s claim cannot succeed.

Quantum

71. In the event that liability is not established, it is usual for the judge to deal with the question of quantum in the judgment.  If the finding on liability is reversed elsewhere, it would save the trouble of the court in conducting another assessment exercise.

72. However, I do not consider it appropriate to do so here.  Since I reject the Plaintiff’s evidence based on the lack of credibility, the court will adopt the same approach in considering the evidence of the Plaintiff on quantum.  In the case that I am wrong in not believing the Plaintiff’s evidence on liability, my assessment on quantum would be a distorted one, as I will have the same reservation and doubt about the Plaintiff’s evidence on quantum.  I therefore consider that, in the unlikely event that my factual findings are reversed elsewhere, it would be more desirable to conduct a separate hearing on the assessment of damages.

73. For the above reasons, I dismiss the Plaintiff’s claim, the third party proceedings and the various contribution and indemnity notices issued amongst the Defendants and the Third Parties.  

74. I also make the following costs order nisi:

(i)   the costs of the Defendants in defending the Plaintiff’s claim be paid by the Plaintiff;

(ii)  save that there be no order as to costs as to the proceedings vis-à-vis the 2^nd Defendant and the Third Party, the costs of various third party proceedings, contribution and indemnity proceedings be paid by the party who commenced the relevant proceedings;

(iii)  the costs of the paying parties in the proceedings mentioned in the preceding sub-paragraph and the costs ordered to be paid by the paying parties in the preceding sub-paragraph be paid and indemnified by the Plaintiff; and

(iv)  the Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

75. The order nisi shall be made absolute 21 days after the date of the handing down of this Judgment.