YAU CHI HUNG v. MAK SIU SHING t/a WONG HING DECORATION CO. and Others

IN THE COURT OF APPEAL

1997, No. 6
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. This appeal arises out of an accident at work which occurred at the Cultural Centre site on June 9, 1990, when that complex was still under construction.

2. The 3rd defendant was the principal contractor. Ceiling construction had been sub-constructed by it to the 2nd defendant. The 1st defendant was the 2nd defendant's sub-contractor for labour only. And the plaintiff was one of those labourers.

3. He was injured when he fell off a step ladder which he was climbing up in the course of his work.

4. It was his case that he was an employee of the 1st and/or the 2nd defendant, and that the 3rd defendant was the occupier of the site. He sued in negligence, for breach of contract, for breach of duty and for breach of statutory duty.

5. The trial came on in the High Court before Deputy Judge Wilson in November last year. It was as to liability only, with damages to be assessed later if the plaintiff were to succeed on liability.

6. After a three-day hearing early that month, the judge reserved judgment to the 20th of the month, when he dismissed the plaintiff's claim with costs.

7. What we have before us now is the plaintiff's appeal against such dismissal.

8. As to how the accident happened, these are the facts which the judge found:

"On the day of the accident the Plaintiff was fitting screws to the ceiling. He did his work from a platform about 5 feet square which stood some 10 feet above floor. Platform was supported by a structure which itself contained a fixed ladder for its ascent on one side. However, as that ladder was vertical some workers preferred to ascend to the platform by a separate stepladder placed alongside the platform structure. It was entirely up to the worker how he chose to go up to his platform. It is accepted that both the platform and the stepladder were appropriate, secure and in good order.

The Plaintiff chose an adjacent stepladder rather than the fixed vertical ladder. The problem arises from how he used that ladder. There were two necessary pieces of equipment he had to get up to the platform - an electric drill weighing about 8 - 10 pounds and a container of screws weighting about 2- 3 pounds. A man could easily carry both items about on the ground.

It is accepted that a man can reasonably safely ascend the ladder carrying something in one hand provided he leaves the other hand free to steady himself. At the same time it is accepted it would be sheer folly for a man to climb a ladder something in both hands without gripping the ladder at all.

Unfortunately it seems that in effect it is just what the Plaintiff did. No one else saw exactly what happened, this evidence came from him alone.

He had fashioned a make-shift container for his screws by cutting the top off a plastic bottle. He pierced two opposite holes near its top and looped a wire through those holes to form a handle. In effect he made himself a little light bucket. He preferred this simple container to the various plastic buckets supplied for use at the site.

He says that he set off up the ladder with the drill in his right hand and his left little fingers loosely hooking the handle of the screw container. That left only the remaining few fingers of his left hand to grip the ladder. They were not adequate, thus he fell."

9. The judge took the view that there were three safe ways in which the plaintiff could have got himself, the drill and the screws on to the platform, saying:

"1. He could have gone up the ladder with the drill only and returned for the screws.

2. He could have put both drill and screws in one container and pulled both up behind him with a piece of cord.

3. He could have fastened his screw container to his waist or hung it about his neck. (He admitted he had done this in the past)."

10. Of those alternatives, the judge said:

"Any one of these courses would have added seconds, perhaps a minute or so, to his working day. There were assorted buckets, bags and cords freely available for just such purposes."

11. It was urged upon the judge that the plaintiff should have been given more instructions and warning on how to use the ladder properly, and that his ladder climbing technique should have been better monitored. That is how of the judge summarized the argument. He rejected it, saying this:

"I find this surprising in the light of the Plaintiff's evidence that he was regarded as a skilled and experienced decoration worker with more than 10 years' experience (he was termed a "master"), and in fact was paid extra ($380 instead of $300 daily) for that very reason. He should have no need for instruction and supervision on something so elementary as the use of a ladder."

12. As to the condition of the work place and the facilities and system in place there, the judge found them "unexceptional".

13. He said that he was at a loss to understand the plaintiff's insistence that his attempted ascent of the ladder with both hands occupied was the only course open to him. As to that the judge's findings and observations on the evidence were these:

"I do not find any foundation for his assertion that he would have been dismissed if he did it any other way. I do not detect on the evidence any pressure upon him to hurry up and save a mere minute or so by doing something dangerous."

14. Ultimately, the judge's conclusion was that:

"It appears that on the spur of the moment the Plaintiff was tempted to take a shortcut. I regret I find that the substantial cause of his fall was his own faulty technique in using the ladder."

15. The judge's view that the plaintiff's fault was the substantial cause of his fall has provoked a respondent's notice. By that respondent's notice, is contended that the judge should have found instead that the plaintiff's fault was the sole cause of his fall.

16. Now, if the picture really was as the judge perceived it, his conclusion would not be a surprising one.

17. But difficulties with the judge's approach emerge upon closer examination. Let us see what he said about the evidence of the 1st defendant, who was obviously the plaintiff's employer. The judge said that the 1st defendant said that:

"He was not present when the Plaintiff fell but he often visited the site and was familiar with it. He would have used method (2) i.e. pull his tools up behind him with a cord, but any of the three methods were reasonable."

18. Then the judge turned to the evidence of Mr Fung, who was the 2nd defendant's site foreman, saying that Mr Fung gave evidence similar to the evidence of the 1st defendant. Having said that, the judge continued:

"Neither would have reprimanded the Plaintiff for taking his tools up one by one, i.e. going up and down the ladder twice. Both were disapproved of anyone ascending the ladder with both hands occupied had they noticed it. Both impressed me as sensible safety-conscious gentlemen."

19. So far it may be difficult to understand why I say that problems with the judge's approach emerged. The reason why I say that emerges from noting what the 1st defendant really said in evidence.

20. The transcript of his evidence shows that it was as follows:

21. To start off, he suggested that he has never seen the plaintiff or any other worker climbing a ladder while holding something in each hand. And he said that he would have scolded any worker whom he saw doing such a thing.

22. Not very long afterwards, he started saying this. He himself did that very sort of thing: usually when the ladder was not very high. But he did have the "guts" - that was the word he used - to go as high as about 8 feet that way.

23. And then in the end, he conceded that he had seen the plaintiff climbing a ladder - generally a short ladder but even a tall one sometimes - holding something in each hand.

24. By the end, therefore, the 1st defendant was hopelessly adrift from the evidence which he has started off giving and equally adrift from the defence which his counsel sought to advance on his behalf.

25. A rescue operation of some skill - and possibly some desperation - was then mounted; and he was asked this question in re-examination: "On the occasion that you saw him on the tall ladder, you would tell him to be careful and not to do that again and to carry a bag, right?"

26. In light of his earlier evidence, I cannot see what answer the 1st defendant could have given which would (a) help his case and (b) stand some chance of being believed. What I am unable to see now, it seems that he himself could not see then. For he did not answer the question. Rather, he talked about something else.

27. The main plank of the plaintiff's case was - or at least it must be - that his employer did not provide a safe system of work. In fact, far from putting in place a safe system, instructing his workers on that system and doing something to see that they complied with it, the 1st defendant was himself setting an example of a very dangerous kind. It is quite impossible to exonerate him from blame in this matter. At the same time, however, it is not possible wholly to exonerate the plaintiff himself, being a worker of some experience, from all blame.

28. In all the circumstances, I have come to the conclusion that the 1st defendant must be held 70% blame with the plaintiff himself 30% contributorily negligent. I would allow this appeal to set aside the judge's order and replace it with order that judgment be entered for the plaintiff against the 1st defendant for damages to be assessed before a master on the basis that he is to receive 70% of the damages so assessed. The questions of costs will have to be dealt with in a moment.

Liu, J.A.:

29. I entirely agree with what has been said by my Lord Bokhary. I wish only to emphasize one point. Workers should be given prior instructions for working a safe system rather than remonstrated as and when they are, from time to time, caught in following unsafe practices.

30. For ten years or so, no specific working instructions had been issued as to how a tall ladder was to be ascended by a workman carrying equipment and material. All seemed to have been left to the individual employees who would naturally be tempted to risk the displeasure, if any, of their employer for a higher labour yield by not infrequently engaging in an unsafe performance of their duties.

31. The appellant should not have been held wholly liable for the accident. For the analysis made by my Lord Bokhary, he could not be more than 30% to blame.

Litton, V.-P.:

32. I, too, agree. The order therefore is the one as proposed by Bokhary JA and we will now deal with the question of costs, both in the court below and on appeal.

33. [Costs here and below in favour of the plaintiff against the 1st defendant. Legal aid taxation of the plaintiff's costs while on legal aid]