LAM FONG, ADMINISTRATOR OF THE ESTATE OF WAT YUK KAM, DECEASED v. HO LOK MOON FURNITURE AND INVESTMENTS COMPANY LIMITED

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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(Not for Circulation)

BETWEEN

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JUDGMENT

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1. The deceased WAT Yuk-kam died in a fire at his work place in Mei King Street, Kowloon on 3rd December 1982. The Plaintiff, the administrator of his estate claims, against his employer, the Defendant under the Law Amendment and Reform (Consolidation) Ordinance and on behalf of his dependants under the Fatal Accidents Ordinance. The claim is made both under common law for failure to take reasonable precautions for the safety of the deceased worker and also for breach of statutory duty under the Factories and Industrial Undertakings Ordinance.

2. The deceased, who was only eighteen years and eleven months old at the time of his death, came to Hong Kong from his home in China, just across the border, at the beginning of 1980. In September that year he joined the Defendant company at its Chaiwan workshop and was apprenticed to the sofa master, one CHENG Tak-wing, who was not much older than the deceased. About the beginning of 1982 he developed some back complaint and left the Defendant apparently for medical treatment. He returned about half a year later and on this occasion was employed as a piece-rated worker and sent to work at a small branch workshop at Mei King Street in Kowloon. This consisted of a small domestic unit of about 400 sq. ft. comprising a single room with one corner partitioned off to form a kitchen and toilet. The latter was used as a store. From the Defendant's records, it is clear that he started work at Mei King Street about the middle of August 1982.

3. The only other worker already employed at the Mei King workshop (the workshop) was one MUI Kwai-fong. He was about the same age as the deceased and had preceded him both as an apprentice and subsequently a piece-rated worker at the workshop. Their work was to make sofa cushions. This involved gluing pieces of foam rubber with an adhesive or rubber solution in which the solvent was a volatile thinner. On the 3rd December 1982 both went to work in the morning, broke off for lunch and tea and returned to work. At about 6 o'clock the deceased was working at his workbench near the window - end of the room, while Mui was working at his workbench nearer the opposite end, with his back to the deceased.   He heard a match being struck and almost immediately felt he was being burnt around his feet. He leapt upon the worktable and looked back and saw smoke and flames. He rushed out and summoned help. When the Fire Brigade arrived, the room was blazing furiously, and it took about forty-five minutes for the flames to be doused and the room to be sufficiently cooled to permit entry. The burnt body of the deceased was found in the debris, together with about three empty one-gallon cans. Also in the toilet there were found 5 five-gallon containers of the rubber adhesive, with their contents intact.

4. It is convenient to consider first what caused the fire. It is not seriously disputed, and in my finding, the fire resulted from the ignition of accumulated vapour from the rubber adhesive used to glue pieces of foam rubber.  The question is what caused that ignition. Mui's evidence that he heard a match being struck was not seriously disputed, although it was observed by Mr. Denis Mitchell for the Plaintiff that it is the only evidence and poses the question of whether, for whatever reason, it is true. Mui had an unfortunate manner and was given to long and disconcerting silences before answering some questions. But he displayed no bias, and was consistent and unshaken in his claim that he heard the match being struck, right from the time of the fire. I accept him as a truthful witness, particularly upon the events leading up to the fire.

5. The experts, if I can call them that, consisting of a factory inspector and Fire Services Officers, concluded that the fire was caused by a naked flame. Without Mui's statement about hearing the match being struck, they would have classified the cause of the fire as unknown. Nevertheless,  the effect of their evidence was that a naked flame as the cause of the fire was not merely consistent but more likely than an electric spark, which was the only other realistic possibility. In addition, both Mui and the deceased's own brother confirmed that he smoked. A cigarette butt found at the scene, probably preserved by being underneath the deceased's body or some of the foam cushions, I find to be of no assistance in that context since it could not be established how long it might have been in the workshop. On the basis of the foregoing evidence and particularly having retard to Mui's demeanour and evidence, I have no hesitation in finding that the fire was caused by inflammable vapour being ignited by a match struck by the deceased.

6. I proceed to the question of whether the Defendant was negligent or in breach of its common law duty of care or of its statutory duty. Although the Defendant by its pleadings denied any breach of such duty, Miss Yew, at the end of the trial, very properly conceded that there had been such a breach in relation to the ventilation of the workshop. Nonetheless, because contributory negligence is being alleged by the Defendant, it is necessary to examine the nature and extent of such breach more closely.

7. The Defendant was in breach of the Dangerous Goods Ordinance in storing the five large containers of the adhesive solution, which were category 5 dangerous goods, and indeed pleaded guilty to such an offence. But in my view that is irrelevant for there is no evidence of any leakage of such solution or vapour from those cans and, clearly, they did not cause or contribute to the fire. For the like reason I disregard other like alleged breaches that bear no relevance to the cause of the fire.

8. It was also alleged that the Defendant failed to display "No smoking" notices of the requisite nature in breach of the Factories and Industrial Undertakings (Fire Precautions in Registrable Workplaces) Regulations in the workshop. But that requirement turns upon a prohibition of smoking made by an inspectors. In this case the Defendant failed to notify the Commissioner of Labour of its manufacturing process, and so there was no occasion for the prohibition that would in all probability have been made.  The Defendants failure to notify was not pleaded in the present context, but I shall return to it in the context of contributory negligence.

9. It is the claim of negligence and breach of the common duty of care that is more in point. It is not disputed there was a danger of fire. The Plaintiff claims that the Defendant was negligent and failed in its common duty of care in failing to warn the deceased of the danger, failing to provide adequate supervision to ensure that safety precautions were carried out, failing to prevent the deceased smoking, failing to prevent a dangerous accumulation of inflammable vapour and above all failing to provide adequate ventilation and air extraction.

10. Mui testified that he was warned not to smoke at work while undergoing his apprenticeship; that there were no "No Smoking" notices at the workshop and that he put up one written notice; and that one of the Defendant's directors, HO Chi-fai visited the workshop every two or three days.

11. HO Chi-fai testified that when the deceased joined as an apprentice and again when he returned to continue as a piece-rated worker, he was told that he was not allowed to smoke and that the adhesive used was dissolved in white gasoline and inflammable, and that therefore smoking was strictly prohibited. He added that there were three spray-stencilled notices on the walls and ceiling beam of the workshop in addition to the one written by the worker. Also that he went there normally everyday, inter alia, to see if there was a breach of conduct, like smoking. I was very unfavourably impressed by Ho. He seemed to me to be overly preoccupied with the matters of smoking and no smoking notices and I believe he was concerned not with the truth but with endeavouring to ensure that the Defendant escaped any liability for the accident. Typical of that, in my view, was his observation that the earnings of workers in the industry had risen only 10% over the last four years. I do not believe his evidence that there were three "No Smoking" notices sprayed on the walls and ceiling beam of the workshop and particularly that he was so concerned to impress upon Mui the prohibition of smoking that he felt it necessary that Mui himself should put up such a notice. I also do not believe that he visited the workshop as often as he claimed.

12. CHENG Tak-wing, the Defendant's sofa foreman and apprentice master at the material time, also gave evidence for the Defendant. He testified that he instructed the deceased that smoking was not allowed, that there were three "No Smoking" notices in the workshop, and that he did not see a fourth notice. I did not find CHENG as convincing a witness as Mui, particularly as to the "No Smoking" notices.

13. Taking all the evidence into consideration, I am not satisfied that there were three "No Smoking" notices stencilled upon the walls and ceiling beam of the unit, although I accept that Mui put up some sort of informal manuscript notice.

14. I am also not satisfied that the deceased was informed of the peculiar danger of the inflammable vapour, as opposed to the general danger of fire.

15. Equally, I am not satisfied that there was adequate supervision of the workshop. Upon his own evidence CHENG only visited once a week or so and in my finding concerned himself with the quality of the cushions produced, notwithstanding his assertion that he was also to check for safety. As to HO Chi-fai, I am far from satisfied that he carried out any supervision at all in point of safety and enforcing non-smoking.

16. Proceeding to the crucial aspect of the failure of care, that is in providing adequate ventilation, it seems to me that the very occurrence of the flash-over shows that the ventilation was inadequate to prevent a dangerous build-up of a pocket of inflammable vapour. The expert evidence was clearly that the windows and electric fan were inadequate. An exhaust fan with ducting or at least an exhaust fan fitted into a wall or window was necessary to suck out the vapour. Miss Yew for the Defendant conceded this; the evidence was overwhelming in any case. But she submitted it was a minor breach of the Defendant's duty in that the windows and wooden door were required to be kept open (and indeed the evidence indicated that they were open at the time of the fire) thereby permitting cross-ventilation which was aided by the two electric fans. As to the latter there is clear evidence of one electric fan. However, there is no evidence or suggestion of any requirement to use it and the expert evidence suggests that it would be of very limited benefit, if any. Bearing in mind the extreme nature of the danger, posed as it was to life and not merely to property or injury, I do not accept that the Defendant fell short of its duty of care by only a slight degree; in my finding its failure was almost total.

17. This brings me to the central issue in this action, was there contributory negligence on the part of the deceased.  As I have already noted he had been told as an apprentice that smoking was not permitted. I also think it probable that it was made known to him that the prohibition was because of the general danger of fire. However, I am not satisfied he was made aware of the peculiarly lethal nature of the danger.

18. In terms of causation there can be no doubt that the striking of the match was a sine qua non of the fire, as Miss Yew submits. But the accumulation of vapour was no less a cause. And there is no evidence that had it been dissipated by effective ventilation, the match would have caused a fire, a fortiori a fire that could not have been easily extinguished or from which the deceased might not have been simply able to walk away. However, it is not merely causation that is to considered, but also blameworthiness. As to that, the question immediately arises whether Defendant's failure in its duty of care to provide safe working conditions, specifically an environment free from pockets of inflammable vapour, should nonetheless be absolved to any degree by the very acts of inattention of workmen from which the duty of care is intended to protect them. It seems that different standards apply depending upon whether the breach is of statutory duty or the common duty of care. The position is stated thus at p.573 of the 15th Edition of Clerk and Lidsell on Torts:

".... the standard by which the Plaintiff's contributory negligence is judged appears to be less exacting than that used for ordinary negligence. Lord Tucker stated it in this way: "This is not so illogical as may appear at first sight when it is remembered that contributory negligence is not founded on breach of duty, although it generally involves a breach of duty, and that in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute." The Court of Appeal has also cautioned against undermining the object of statutory provisions by excessive findings of contributory negligence."

19. Winfield on Tort (12th Edition at p.157) has this to say:

"It has often been stated that statutes such as the Factories Act exist to protect workmen from the consequences of their own carelessness, and the Court will therefore be slow to hold a workman guilty of contributory negligence where the Defendant is in breach of his statutory duty."

20. In the context of breach by the defendant of statutory duty, Hunter J. in Chung Kei v. So Yiu & Ors. (1983 No. 9684 unreported) had this to say:

"Now there is ample warning in the authorities about the proper approach when the Court is faced with this sort of situation. In his well-known speech in Staveley Iron v. Jones (1956) AC 627, at p.648, Lord Tucker warns the Court against defeating "the object of the statute. The point was rather more graphically put by Sachs L.J. in Mullard v. Benline (1971) 2 AER 424, 428 when he warned against "emasculating the regulation by the side wind of apportionment"."

21. In the present case as I have already noted, there was no direct breach of any statutory requirement requiring ventilation or notice. That resulted from the Defendant's failure to notify the Commissioner of Labour before it commenced operations in the workshop, that being required by section 9(1) of the Factories and Industrial Undertakings Ordinance, as category 5 dangerous goods were to be used. It was that failure, in my finding on the evidence, that resulted in the deceased working in premises which did not have an effective air extraction system. Section 9(1) no doubt has wide-ranging objects. But these, in my view, must include safety precautions against fire and extend to the protection of workmen from their own acts of inattention in that regard. To be astute to discover contributory negligence in such acts of inattention would plainly tend to defeat "the object of the statute", and to "emasculate the legislation by the side wind of apportionment".

22. As to the standard of care in contributory negligence in the context of the common duty of care, I adopt as the law the following passage in para. 11-77 of the 15th Edition of Clerk and Lidsell on Tort:

"Although contributory negligence does not depend on a breach of duty to the Defendant, it does depend on foreseeability. Just as carelessness in ordinary actions in negligence requires foreseeability of harm to others, so contributory negligence requires foreseeability of harm to oneself. A person is guilty contributory negligence whenever he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself ..."

23. The Defendant in fact has not satisfied me on the probabilities that it did anything to safeguard the deceased from the peculiar danger of fire from the inflammable vapour produced by the adhesive required to be used. The electric fan was in my view provided for comfort and, in any case, was of no particular value in removing vapour. The windows which happened to be have been there were also inadequate for the purpose of enabling the vapour to be dissipated, and there was no system or, in my finding, even encouragement to leave them open at all times. No warning was given of the real danger of the vapour. The only action taken i.e. the manuscript "No Smoking" notice, was put up by Mui on his own initiative. It could hardly be regarded as adequate in respect of the ordinary danger of fire, and in my view, even in conjunction with the oral prohibition of smoking during apprenticeship, was totally inadequate warning of the grave of a flash-over. In my finding, on the probabilities, the deceased could not have been aware or, foreseen the awful danger of being instantly engulfed in a flash-over.

24. Having regard to all the foregoing I am unable to attribute any blameworthiness to the deceased. In my judgment there was no contributory negligence on the part of the deceased and I find the Defendant wholly liable.

25. I proceed then to the question of quantum. The deceased's earnings in his last complete month i.e. November 1982 was $3,750, and ranged during his short period of piece-rated employment from $3,660 in October to $4,020 in September. The Plaintiff contended for $3,750 as the deceased's monthly rate of earnings at the time of death. The Defendants say the earnings of piece-rated workmen were seasonal. Such evidence as there is shows that piece-rated earnings fluctuated, and that the peak season was from about July to about February i.e. eight months or so, and that during the remaining low reason work tended to drop by about a third. That seems to me in all the circumstances to be probable. Upon that basis I find the deceased's average earnings at the time of his death was $3,413 per month which I round up to $3,415.

26. I have also to determine what the deceased's earnings would have been at the time of trial. HO Chi-fai said that earnings have gone up by only 10% in the last four years or so since the deceased's death. As already noted, I do not accept that. CHENG Tak-wing's evidence was that there had been an increase of about 20% in the amount of daily wages in the trade. The quarterly report of the Census and Statistic Department shows that between December 1982 and September 1986 in manufacturing and service related employment the average wage earnings went up by some 31.2%. I reject HO Chi-fai's evidence and prefer the statistical data to CHENG Tak-wing's somewhat vague evidence in this respect. Upon that basis I find the deceased's wages should have increased by 33% between the time of his death and the time of trial, which produces a sum of $4,541 which I round down to $4,540.

27. I proceed then to determine the free balance, that is the deceased's earnings less his personal expenditure. The evidence is that his share of the board and accommodation he shared with his brother and another person was only of the order of $300 per month. Although that does not include clothing, transport, cigarettes, meals taken outside, and entertainment including betting on horses, it remains a ridiculously low figure even if as much again is allowed for those items. In truth, there is no credible evidence as to the deceased's personal expenditure and I propose therefore to assume that it would be of the order of 45% of his earnings, that being a percentage that has from time to time been adopted by the courts in Hong Kong in the absence of evidence, moreover, one which I suspect will produce a more accurate result then the scant evidence available.

28. As I have said the deceased was only 18 years and 11 months old at the time of his death. It is common ground that such a person should attract the highest multiplier and that should be about 16. But Miss Yew contended that this should be reduced to 15 having regard to the back or spinal trouble that necessitated the deceased's early termination of his apprenticeship with the Defendant before he returned as a piece-rated worker. There is virtually no evidence of the nature of that complaint and I do not propose to speculate upon it. In my view the evidence is clearly inadequate to warrant any reduction.

29. I come then to the conventional amount for the loss of expectation of life. Mr. Mitchell has eloquently argued that it is high time the conventional sum of $20,000, which has remained at that level for several years, is increased. Although I agree that the years that have elapsed and the toll of inflation would warrant an increase if that were the only consideration, it clearly is not. I am therefore not persuaded that I should increase the conventional sum.

30. Finally it is not disputed that the balance of funeral expenses, having deducted the amounts already paid by the Defendant, is $700.

31. Turning to the F.A.O. claim, it was not disputed that the deceased has 3 dependants, his father who was born on 10.8.1924, his mother born on 23.8.1932 and a younger brother (Yuk-pong) born on 10.12.1970. It is conceded by the Plaintiff that the claims of the father and mother would merge in the LARGO award, which leaves only the claim of the brother. It is claimed that Yuk-pong is mentally retarded and that provision should therefore be made for the expected life time of the deceased. The only evidence that Yuk-pong is mentally retarded comes from another brother who lives in Hong Kong. He merely claimed that Yuk-pong was "a little mentally retarded", dumb but not deaf, and did not go to school. In relation to the obvious inadequacy of such evidence, reference was made to the difficulty of obtaining medical evidence in China. I find it difficult to accept that that might justify some lower standard of proof of probability. In any case I am far from satisfied that better and more persuasive evidence could not be procured. The Plaintiff in my judgment has failed to establish life-time dependency on the ground of mental retardation. Accordingly Yuk-pong's dependency should be regarded as terminating at the usual age of 18 when, in the ordinary way, he would be expected to support himself.

32. As to the extent of dependency the evidence is that an average of $400 per month was remitted to the parents, $300 by the deceased and $100 by the deceased's brother in Hong Kong. A letter from the mother to the Bank of China says that of that sum $150 went to Yuk-pong. That seems to me to be entirely credible and in the circumstances I accept it. Applying that proportion to the deceased's contribution of $300 produces a monthly sum of $112.50, which is marginally greater than the $100 I would otherwise have been driven to accept on a simple equal division.

33. On the foregoing basis the awards I make are as follows. In respect of Yuk-pong under the Fatal Accidents Ordinance, $6,750, calculated upon the following basis

34. $112.50 x 12 x 5 = $6,750

35. And in respect of the LARCO claim, I award the following -

Pre-trial earnings:

Post-trial earnings:

36. It is agreed that from this total must be deducted the Employment Compensation payment already made by the Defendant which leaves a balance of $424,345.87.

37. I accordingly award the Plaintiff in respect of the F.A.0. claim $6,750 and in respect of the LARCO claim $424,345.85.

38. I will now hear Counsel on interest and costs.