LAW PANG v. ASIABUILD LTD.

HCPI No. 1055/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1055 OF 1998

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J U D G M E N T

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1. The Plaintiff's claim against the Defendant is for damages for personal injuries suffered by him in the course of his employment with the Defendant.

The accident

2. On 14 December 1995 the Plaintiff fell down while he was on a ladder doing cleaning work outside the plant room on the 42nd Floor of Dorset House, Taikoo Place, Quarry Bay, Hong Kong. The ladder was placed against the door of the plant room which was shut and when someone from inside the plant room opened the door the ladder fell causing the Plaintiff to fall and fracture his right distal tibia and fibula.

3. I was informed by Counsel that damages were agreed at $800,000.00 inclusive of interest but before deduction of the employee's compensation award of $236,767.00. I was also informed that the Defendant did not dispute primary liability and that the only issue was whether or not the Plaintiff was guilty of contributory negligence.

4. The Plaintiff's claim is in negligence, breach of the common duty of care under the Occupier's Liability Ordinance and breach of statutory duty. Counsel for the Defendant accepted that the Defendant was negligent and in breach of the implied terms of the contract of employment and also in breach of the common duty of care under theOccupier's Liability Ordinance. However, breach of statutory duty was disputed and it was further contended that the Plaintiff was guilty of contributory negligence.

5. I heard evidence from the Plaintiff, the Defendant's foreman Ho Yu Lam ("Ho") and Cora Yung Fung Ling ("Cora Yung") who was employed by the loss adjusters engaged by the Defendant's insurers.

The Plaintiff's evidence

6. The Plaintiff is now 66 years old. At the time of the accident he was about 62 years old. He gave evidence that he had been employed on construction sites for about 24 to 25 years. He has worked for the Defendant as an odd job worker only since May 1995. He said that at about 11:45 a.m. on 14 December 1995 he was working with two others. The other two were surnamed Liu. The Plaintiff gave their names as Liu Yee and Liu Pang. Ho, the foreman, had asked them to clean the concrete mass above the door of the plant room on the roof which was the 42nd Floor of Dorset Place. Ho said in evidence that the place where the work was to be carried out was the 41st Floor rather than the 42nd Floor but nothing turns on this.

7. The Plaintiff said that he had to clean the whole area above the concrete canopy over the door of the plant room shown in the photographs. He also had to clean the gaps and cracks in the area above the concrete canopy. He also said that Liu Yee found the ladder on the same floor where the work was to be carried out. He was adamant that this was a single wooden ladder and not an A-shaped ladder as was suggested to him. The ladder was found and provided by Liu Yee. The Plaintiff said that he placed the ladder against the door of the plant room which was shut. Although it is not clear from the evidence what the length of the ladder was, it is, however, clear from the Plaintiff's evidence that the ladder was not long enough to reach the top of the door frame of the plant room door. It was of insufficient length to reach the top.

8. The Plaintiff leaned the ladder against the middle of the double door of the plant room with the ladder astriding both sides of the door. He placed it in the middle as he had to clean the whole width of the area above the door. This was part of the job he had to do. He did not hear any noise in the plant room. He did not check to see if the plant room door was locked. He did not open it to see if anyone was inside. He did not know that anyone was inside. And he was adamant that if he had known that anybody was inside the plant room he would not have placed the ladder there. He went up the ladder to clean the debris above the door frame. Liu Pang was holding the ladder. The Plaintiff said that it was Liu Pang who was the one who was supposed to go up the ladder to do the cleaning but he was asked to go up the ladder instead and Liu held the ladder for him. He climbed up to the third rung and was working from there. When someone from inside the plant room opened the door, which opened inwards, the ladder fell causing the injuries to his right foot and ankle. He was in great pain. He was taken downstairs to wait for an ambulance. When it arrived, he was taken to hospital.

9. He also said that he would follow the instructions of his foreman diligently. Ho was not there at the time he was doing the cleaning work and he was not in the vicinity of the place where the Plaintiff was working. Also, at that time Liu Yee was in another room working somewhere else. However, the Plaintiff did say that he and the two Lius all decided that the ladder should be placed against the door. None of them knew that there was someone inside the plant room. And he also said that he was never given any warning by anyone that someone might open the door and walk out of the plant room and if he had been warned he would not have put the ladder against the door.

10. The Plaintiff's native dialect is Hoklo and he gave his evidence in Hoklo. His witness statement, however, was taken from him in the Punti dialect. He says that he only understands 50% to 60% Punti and he is not fluent. He is illiterate.

11. The Plaintiff was cross-examined about inconsistencies in his witness statement. He had said in his witness statement that the ladder was leaning against the top of the frame of the door and that the worker from inside the plant room had pushed open the door causing the ladder to be pushed back.

12. The Plaintiff was also cross-examined about the statement taken from him by Cora Yung on 13 August 1997 and produced as Exhibit D2. This statement contains admissions which the Defendant relies on. Some of the important matters relied on are contained in the question and answer recorded as follows:

"Q : Did you know if there were any other workers working in the engine room?

A : As far as I know, there were two workers working in the engine room. However, I do not know which company were they working for."

And also in the following question and answer:

"Q : Do you think the accident was caused by the negligence of someone else?

A : No, it was due to my ignorance to the fact that the door of the engine room was not closed properly and my belief that I could finish my work very soon. The accident was caused by the fact that I did not notice the door was unlocked. It was caused by my own carelessness."

13. The Plaintiff denied that he had made those admissions to Cora Yung as recorded in the statement. He said that he had received a telephone call to attend her office so as to discuss settlement and that is why he attended Cora Yung's office. Cora Yung in evidence denied that the question of settlement was ever discussed but the Plaintiff was not challenged as to this in cross-examination. He accepted that he was asked to put his fingerprint on the document. He also accepted that he was asked about his family background and about the accident and what caused it.

14. The Plaintiff also said that the contents of the statement were not explained to him before he put his fingerprint on it nor was it read back to him. He provided his fingerprint because she had told him that it was not important and there was no problem about it.

Cora Yung's evidence

15. Cora Yung gave evidence that she was employed by the loss adjusters engaged by the Defendant's insurers. She was instructed to investigate the accident involving the Plaintiff. The Plaintiff attended her office on 13 August 1996. The Plaintiff told her that he could read a little Chinese. She interviewed him in Cantonese and she considered that he was fluent in it. She said that after the statement was taken from him she showed it to him. After he read it she asked him to sign but he could not and he was asked to put his fingerprint on it which he did. She said that she had read the statement back to him. She denied that there was any discussion about settlement. She also said that she had not interviewed the other workers involved either before or after taking the statement from the Plaintiff. She said that the Defendant had not provided her with the names of the other workers. She said that the Plaintiff could fully understand Cantonese. She denied the suggestion that she had edited the statement to suit her client's purposes. Before she wrote her report dated 16 August 1996 she had met Ho at the scene and discussed the accident with him and also took photographs.

Ho's evidence

16. Ho gave evidence that he was a foreman of the Defendant. The works that the Defendant was engaged in were in the building at Taikoo Place. According to him the place where the accident occurred was on the 41st Floor and as I have said, nothing turns on whether it was the 41st or 42nd Floor. The building was already occupied and the works to be done were alteration and decoration works at certain parts of the building. On the day of the accident the works to be carried out on the same floor as the plant room was to clean the floor and the top of the door frame. I think it is clear from his evidence as well as the Plaintiff's evidence that the task was to clean the floor and the area above the door frame of debris. This would include the concrete canopy and the area above it. Ho said that the plant room itself was managed by the building management and not by the Defendant.

17. Ho said that he asked Liu Fat Yee who was the head of the general workers to do the job and that Liu Fat Yee would instruct the general workers under him to do the work. In my view, Liu Fat Yee is probably the same person as Liu Yee mentioned by the Plaintiff. Liu Fat Yee ("Liu Yee") was in charge of the general workers and he was left to look for the workers. Ho did not supervise the work and left it to Liu Yee to take over the supervisory work on the day of the accident. He had tried to open the door of the plant room in the morning of the day of the accident was found that it was locked. He did not provide any ladder and he did not see the ladder used by the Plaintiff either before or after the accident.

Findings

18. I am satisfied that the Plaintiff is an honest witness. He is a witness of truth. I accept his evidence and I believe him when he says that he is not fluent in Cantonese or the Punti dialect. He only understand 50% to 60% of it. I accept that he is also illiterate. He struck me as a hardworking construction site odd job worker who was getting on in years and was afraid of losing his job probably because of his age. I accept that he followed the instructions of his supervisor diligently and would do as he was told. I accept the Plaintiff's evidence notwithstanding the inconsistencies in his witness statement. They can, in my view, be explained by the fact that his native dialect is Hoklo and the statement was taken from him in the Punti dialect. His witness statement was read back to him in Court in Hoklo and he confirmed the truth of the same. However, I am satisfied that he has given truthful evidence before me and the fact that he confirmed his witness statement without realising the inconsistencies simply shows that he is unable to listen attentively and absorb the full contents of a document read back to him. Without meaning any disrespect to him, I find that he has a very simple mind. Also he has had no formal education. He is not sophisticated at all.

19. I also find that the Plaintiff placed a single wooden ladder and not an A-shaped ladder against the middle of the double door of the plant room. It was, in my view, reasonable for him to place the ladder in the middle as he had to clean the whole width of the area above the door and the concrete canopy.

20. Counsel for the Defendant referred to a conversation that Ho had with the Plaintiff after the accident. This was when the Plaintiff was brought downstairs and was waiting for an ambulance. Ho said that he asked the Plaintiff why he did not open the A-shaped ladder when told that he had leaned the ladder against the door to which the Plaintiff made no reply. It was said that this was an admission that an A-shaped ladder was used. I cannot accept that the Plaintiff's silence was such an admission. The Plaintiff was waiting for an ambulance to take him to hospital. He had sustained fractures to his right distal tibia and fibula. The fractures required an operation with the insertion of screws and a K-wire. The Plaintiff was obviously in great pain at the time of this conversation when he was waiting for an ambulance. In the circumstances, I do not think that his silence can amount to an admission that an A-shaped ladder was used. In any case, I believe the Plaintiff when he said a single wooden ladder was used.

21. I also accept the evidence of Ho when he said that he placed Liu Yee in charge of the work. I accept that he left it to Liu Yee to get the job done and to supervise the work.

22. I find that Liu Yee found and provided the ladder which was a single wooden ladder. It was decided by him, the Plaintiff and Liu Pang that the ladder should be placed against the door. The ladder was not long enough to be placed in a position to lean over the top of the door but was leaning against the door itself. This was not a suitable ladder. While the Plaintiff was on the third rung of the ladder doing the cleaning work in the area above the door frame someone from inside the plant room opened the door inwards causing the ladder to fall and the Plaintiff to fall and to sustain the injuries he complained about.

23. On the Plaintiff's evidence, there was a discussion with Liu Yee about where to place the ladder. I find that Liu Yee as being the person in charge of the other workers including the Plaintiff knew or ought to have known that the ladder he provided was not long enough to reach the top of the door frame. He also knew that it was going to be placed against the door of the plant room. Liu Yee agreed that the ladder should be placed there.

24. I also find that the Plaintiff and also the two Lius did not know that there was anyone inside the plant room. The Plaintiff's immediate supervisor at the time Liu Yee did not check whether there was anyone inside the plant room before asking the Plaintiff and Liu Pang to carry out the work. Neither Ho nor Liu Yee warned the Plaintiff of the danger of someone coming out from the plant room. I find that the Plaintiff had no reason to suspect that someone was inside the room before placing the ladder against the door and climbing up on it.

25. I do not place any weight on the admissions contained in the statement produced by Cora Yung. I do not accept the evidence of Cora Yung that the Plaintiff was fluent in Cantonese and could read the statement she prepared. I do not believe her. I also do not believe her when she said that she had read the statement back to him. I accept that she did interview him about the accident and he gave certain answers. However, I do not believe her when she said that he made the admissions relied on. I prefer the evidence of the Plaintiff and reject her evidence on these matters. I believe the Plaintiff and disbelieve Cora Yung on these matters. The Plaintiff was adamant in his evidence that he did not know that there was anyone inside the plant room at the time. I believe him. I do not accept that he has ever admitted to Cora Yung that he knew there were workers inside the plant room at the time.

26. In my judgment it is clear that the Defendant was negligent, in breach of the common duty of care and in breach of the implied terms of the Plaintiff's contract of employment. This much is accepted by the Defendant. Clearly, the Defendant failed to provide a suitable ladder of sufficient length so that it could lean against the door frame. It also failed to provide reasonably sufficient instruction and supervision of the Plaintiff in carrying out his work. The Defendant also failed to ensure that no one would open the door when the Plaintiff was working on the ladder. It is trite law that the duty of an employer to his employees is to take reasonable care for their safety. This duty is personal to the employer and is non-delegable. In my judgment the Defendant clearly failed in its duty to the Plaintiff to provide a safe system of work, a safe place of work, safe and adequate equipment in the form of a suitable ladder and effective instruction and supervision.

Regulation 38A(b)

27. Counsel for the Plaintiff conceded that he could not show that there was a breach by the Defendant of Regulation 38A(a) and 38Q of the Construction Sites (Safety) Regulations, Cap. 59 and no longer pursued this. However, he did maintain that the Defendant was in breach of Regulation 38A(b).

28. The Defendant's obligation under Regulation 38A(b) was to ensure that:

"every place on the site at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there."

The obligation is to ensure the above so far as is reasonably practicable.

29. The place where the Plaintiff was working was the area outside the plant room. This included the concrete canopy and the whole width of the area above it.

30. As was held in R. v. Tsui Wai Ping [1993] 2 HKC 675, what sort of safety measures are required depends on the circumstances. Patrick Chan J. (as he then was) observed at 682 that:

"In order to discharge his obligation, the contractor or principal contractor must be in a position to know and at least foresee what his construction site would be and what sort of safety measures would be needed. What sort of dangers are foreseeable, and hence what sort of safety measures are required is to a large extent depending upon what the construction site is."

I respectfully agree.

31. On my findings above, the Plaintiff's immediate supervisor at the time, Liu Yee, knew that the ladder was of insufficient length and was going to be placed against the door of the plant room. In my view, the danger of someone opening the door of the plant room from inside must have been reasonably foreseeable to the Defendant and safety measures should have been taken. A safety measure would have been to provide a suitable ladder long enough to reach the top of the door frame so as to be unaffected by a sudden opening of the door or a proper A-shaped ladder which did not need to rest against the door. Another safety measure would have been to put in place a system so as to prevent someone inside the plant room from opening the door whilst a workman like the Plaintiff was working on a ladder leaning against the door. These were measures which were reasonably practicable in my view. Unfortunately, the Defendant failed to ensure that the place where the Plaintiff was working was made and kept safe and in my judgment there was a breach of Regulation 38A(b).

32. I am satisfied that the Plaintiff's injuries were caused as a result of the Defendant's negligence, breach of common duty of care, breach of duty as employer and breach of statutory duty.

Contributory negligence

33. On the question of contributory negligence, it was submitted on behalf of the Defendant that the Plaintiff should be substantially more to blame for the accident. It was submitted that the Plaintiff should have gone up to Ho or should have asked Liu Yee to obtain an A-shaped ladder from the ground floor. It was also submitted that the Plaintiff should have checked to see if there were other persons inside the plant room before placing the ladder there and if so, to warn them of his presence and to ensure that the door was securely locked. It was also suggested that the Plaintiff was taking a short cut as he was about to take his lunch break.

34. I cannot accept these submissions. The employer's duty to the Plaintiff is personal and non-delegable. Ho was not in the vicinity when the work was undertaken. As I have found, the task of supervising the work and getting the job done had been delegated to Liu Yee. The ladder had been found and provided by Liu Yee. Liu Yee agreed to and knew that the ladder, which was of insufficient length to reach the top of the door frame, was to be placed against the door of the plant room. No one knew or suspected that anyone was inside the plant room. The Plaintiff followed the instructions of his supervisor diligently and did as he was told. He got on with his job for his employer. In the circumstances, it is unrealistic, in my view, to suggest that he should have gone up to Ho or to ask Liu Yee to obtain an A-shaped ladder from the ground floor. It is also unrealistic to suggest that he should have checked to see if there were persons inside the plant room when he had no reason to suspect that anyone was inside the plant room before placing the ladder against the door.

35. The Plaintiff denied the suggestion that he wanted to finish the work as soon as possible so that he could go off for lunch. He also said that even after the lunch break he would have to continue working as he had to work until 5:45 p.m. I believe the Plaintiff.

36. The authorities that I was referred to are distinguishable on the facts. Each case is, of course, to be decided on its own facts.

37. It is, however, pertinent to note what McNair J. said in Machray-Stewarts and Lloyds Ltd. [1964] 3 All ER 716 at 721:

"On the other hand, when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business, and when I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with the proper tackle, I am very slow to put any blame on him ....."

On the facts of that case, the Plaintiff succeeded in establishing 100% liability.

38. In Spencer v. R. & H. Green & Silley Weir Ltd. [1947] 80 Ll. L. Rep. 217 Lord Greene M.R. when dealing with the question of contributory negligence said at 223:

"The measure of care for a man's own safety which the law expects him to live up to must, of course, depend partly, at any rate, on his own reasonable knowledge of the circumstances in which he is acting."

And also at 223:

"......... the question of contributory negligence must be governed, in one aspect of it, at any rate, by the state of knowledge which can reasonably be imputed to the man charged with contributory negligence."

39. And it is also useful to bear in mind the oft-quoted dicta of Denning L.J. (as he then was) in the Court of Appeal in General Cleaning Contractors Ltd. v. Christmas [1953] AC 180 as set out in the speech of Earl Jowitt in the House of Lords at 187:

"You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way which the employers expected him to do it and, if they had taken proper safeguards, the accident would not have happened."

40. In the circumstances of this case, I am satisfied that the Plaintiff was not trying to save himself trouble by using the ladder provided to him. He was doing his work in the way agreed to by Liu Yee his immediate supervisor. He did not know and had no reason to suspect that there was anybody inside the plant room before placing the ladder against the door. Of course, with the benefit of hindsight things would have been done differently. It is always easy to be wise after the event. But what may have been obvious in hindsight may not have been obvious to the Plaintiff at the time bearing in mind his background and working conditions at the time. In my view, the risk that someone might be in the plant room was a risk which reasonably was not obvious to the Plaintiff at the time in the circumstances. The Plaintiff did not reasonably fail to take care of his own safety. I am satisfied that there should not be any contributory negligence on the part of the Plaintiff. The Defendant is 100% liable for the Plaintiff's injuries.

41. The Plaintiff is entitled to judgment in the sum of $563,233.00 being $800,000.00 less $236,767.00. I give judgment to the Plaintiff in the sum of $563,233.00. I make an order nisi for costs in the Plaintiff's favour

against the Defendant and an order nisi that the Plaintiff's own costs be taxed in accordance with Legal Aid Regulations.