TING KAM YUEN v. THE HONG KONG BUDDHIST ASSOCIATION AND ANOTHER

HCPI 1203/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1203 OF 1996

______________

______________

___________________

J U D G M E N T

___________________

1. This is a claim for damages arising out of an unfortunate fatal accident.

2. On 11th November 1993, Ho Lam ("the deceased") who was 66 years old fell from the rooftop of a switch room ("the roof") at the Buddhist Sum Ma Shui Ying Care and Attention Home for the Elderly, situated at 8 Kung Lok Road, Kwun Tong, Kowloon, Hong Kong ("the premises"). He was rendered unconscious and admitted into hospital with, inter alia, a severe head injury. He died later that day in hospital from his injuries. There is no dispute that he died as a result of the injuries he sustained in the fall.

3. The Plaintiff's claim is against the 2nd Defendant as the deceased's employer for negligence, breach of statutory duty and duty as employer and as against the 1st Defendant for negligence and breach of the common duty of care as the occupier of the premises. Although there was also a claim for breach of statutory duty made against the 1st Defendant, counsel for the Plaintiff properly conceded that this was not available against the 1st Defendant.

4. At the outset, I was informed by counsel that the parties had reached agreement on the quantum of damages on the basis of full liability against the Defendants. This was agreed at $450,000.00 before deduction of the award for employees' compensation. I was thus concerned only with the issue of liability.

5. I heard evidence from Tsoi Wai Shing ("Tsoi"), a Divisional Occupational Safety Officer of the Labour Department and from Law Chi Ming ("Law") an expert in industrial accidents. They were called on behalf of the Plaintiff. On behalf of the 1st Defendant, I heard evidence from Wong Tsui Wan and I also had the statement of Li Cheuk Yan which was admitted as hearsay evidence pursuant to a hearsay notice. I also heard evidence from Li Ching and his wife So Kwan Tai, the 2nd Defendant.

6. None of the witnesses who gave evidence witnessed the fall of the deceased. There is a dispute between the parties as to where the deceased was working at the time of the accident and whether or not he was required to or did work at the roof. There is no dispute that the deceased was an odd job worker. Li Ching at all material times carried on a building and decoration works contractor business in the name of Hing Kee Construction Company which was a sole proprietorship registered in the name of his wife, the 2nd Defendant. The evidence, which I accept, shows that the deceased did odd jobs from time to time for Li Ching and that Li Ching employed him when he was in need of casual unskilled labour. In November 1993, Li Ching met the deceased who asked for work. He had a painting job to do at the premises and offered to engage the deceased at a daily wage of $200.00. Li Ching had secured a painting job at the premises for the sum of $58,000.00 which including painting, scaffolding and workmen's compensation insurance. A quotation to that effect dated 25th October 1993 was produced in evidence.

7. There is also no dispute that the painting work at the premises involved painting the caissons and the back retaining wall in green at the premises. The photographs that were produced in evidence show the areas to be painted and the plan which was produced also shows the caissons and the retaining wall which were required to be painted. Although the quotation was dated 25th October 1993, work did not commence at the premises until 10th November 1993. On that day, there was only one worker at the premises, namely, Chung Kam Cheung ("Chung") who was a skilled worker and who was younger than the deceased. The deceased only commenced work in the morning of 11th November 1993. The accident occurred at about 5:00 p.m. on the deceased's first day of work.

8. The above facts are not in dispute but there is a dispute between the parties as to where the deceased was working at the premises. It is the Plaintiff's case that the deceased was working from the roof to the knowledge of the employer, the 2nd Defendant. The deceased had used the cat-ladder at the back yard shown in the photograph in Bundle 1, pg. 22 to reach the roof. It was from the roof that he painted the top part of the back retaining wall that is shown in the bottom photograph of Bundle 1, pg. 21. That photograph shows the right side of the back retaining wall in green. It is the Defendants' case, however, that the deceased never worked on the roof and was not required to do so. It is the Defendants' case that the painting work carried out by the deceased was done by him from the scaffolding which had been erected and which is shown in the same photograph at Bundle 1, pg. 21.

9. Tsoi's evidence was that he attended the premises on 18th November 1993 as the matter was passed onto the Labour Department by the police who were called to the scene shortly after the fall of the deceased. Photographs were taken on 18th November 1993 and were produced in Bundle 2. He prepared a report which was produced in evidence. Before preparing his report he had interviewed both Chung and Li Ching. Tsoi said that he had obtained the information contained in his report from both Li Ching and Chung. The work at the premises were suspended after the accident on 11th November 1993. This was confirmed by Li Ching in his evidence. Tsoi said in evidence that Chung had told him that the deceased was assigned to work at the other end whilst Chung was assigned to paint the portion of the retaining wall near the entrance of the premises. Tsoi used the cat-ladder at the back yard shown in the photograph at Bundle 2, pg. 20 to reach the roof and he said that that was the only means of access to the roof. He also said bamboo scaffolding had been erected along the retaining wall for work done at height. This was shown in photograph no. 1 in Bundle 2, pg. 18.

10. In his report Tsoi said that the responsible person Li Ching at about 5:30 p.m. shouted to the deceased and Chung to stop working. Li and Chung immediately stopped working and went together into a toilet in the elderly home to clean their hands. Shortly, when Li was about to come out from the elderly home he heard something crashed on the ground. He immediately leaned out from the door and discovered that the deceased was lying unconscious in the open back yard. Li, at once, with the assistance of Chung got the deceased into the elderly home where its staff called the police.

11. Tsoi observed that there was no fencing or any railing along the roof. He did not see any safety belt or safety line or independent lifeline at the premises. It was his evidence that the deceased had been working from the roof and it was easier for him to paint that part of the retaining wall near the edge of the roof while standing on the roof using a long brush rather than standing on the scaffolding. The part of the scaffolding towards the right of the bottom photograph at Bundle 1, pg. 21 was not as high as the part of the scaffolding that had been erected to the left of it.

12. As contained in his report, Tsoi formed the view that the deceased had fallen from two possible locations at height from the roof, namely, either from the cat-ladder or from the roof edge as marked in the photograph no. 5 at Bundle 2, pg. 20. And based on the location and the position of where the deceased was found lying on the ground at the back yard as shown in the sketch at Bundle 2, pg. 21, he formed the view that the possibility of the deceased falling from the roof edge as opposed to falling from the cat-ladder was greater. He made the recommendation that as he considered that the roof was a construction site from which a worker was liable to fall a distance of more than 2 m. it should be fenced by guard-rails of adequate strength to a height between 900 mm. to 1150 mm. It was also his evidence that in his experience that it was not a safe system of work to give a worker a safety belt without an independent lifeline. A safe system, according to him, should include an independent lifeline with a fall arrester which was a device linking a safety belt to an independent lifeline. If a worker falls, the fall will be arrested. He did not see any independent lifeline system with a fall arrester at the premises. He said that the erection of guard-rails at the roof was the only effective protection in this case. In the absence of guard-rails, if a safety belt system was used for protection then there would have to be an independent lifeline with a fall arrester and a safe anchorage point on the roof. This was absent at the roof when he went to inspect the premises on 18th November 1993. Tsoi also said in evidence that he had been told by Chung that the greenish portion on the retaining wall as shown in the photograph no. 1 at Bundle 2, pg. 18 had been painted by the deceased. He, therefore, concluded that the deceased had been working on the roof.

13. I find that Tsoi was an honest and truthful witness. I accept him as a witness of truth.

14. Law also gave evidence. He was the expert called on behalf of the Plaintiff. He is a consultant who provides occupation, safety and management consultancy service. He produced his report dated 14th October 1997 in respect of a visit to the site on 16th August 1996. The roof was different then as by that time the roof had been fenced as shown in the photograph in Bundle 2, pg. 46. At the site he did not see any bolts or points of anchorage which workers could use. It was his view that the bamboo scaffolding was a typical single row scaffold and as such, there must be protection against accidental fall. He was of the view that a protective system comprising independent lifeline, fall arrester and safety belt or harness should be provided to the workers using the scaffold. He said that the space between the scaffold was about 600 mm. to 700 mm. which was wider than the rungs of the cat-ladder in the back yard which was 290 mm. and, therefore, it was easier to climb the cat-ladder rather than the scaffold to do the painting work. He was of the view that if construction, renovation or maintenance work was to be carried out at the roof or via the roof, that area would be a construction site to which the Construction Sites (Safety Regulations) (Cap. 59) would have applied.

15. The open edges of the roof were of a height above 4.5 m. from the ground. Law had seen fall arrester systems in construction sites in Hong Kong where safety precautions had been taken. He had seen both an independent lifeline and a fall arrester system in use. He had also seen hoops in cat-ladders in Hong Kong which would arrest a fall if one fell whilst climbing up or down the ladder. Such a system was common in Hong Kong but there was no hoop in the cat-ladder in the back yard in the premises. In his view, if proper arrangement and reasonable supervision had been exercised by the management of the premises, the region for the work activity would have been well defined and the use of the roof and the cat-ladder would have been prohibited.

16. Referring to the bottom photograph in Bundle 1, pg. 21, he did not think that a worker standing on the top horizontal pole of the scaffold on the right of the photograph could have painted the green portion shown in the photograph. It was his opinion that as a matter of common sense if the worker was standing on the roof that would have been easier for him to paint the top of the retaining wall with a long brush. Law did not use the cat-ladder to climb up the roof as he was led by a staff of the 1st Defendant and used a door to go to an external corridor and then climbed up stairs to reach the roof. This was in 1996. He was of the view that as the roof was of a height more than 2 m., if a worker was required to carry out work at the roof, the open edges of the roof must be fenced off or otherwise the worker must be protected by a fall arrester system. Law agreed with the view of Tsoi that the chance of the deceased falling from the roof edge some distance away from the cat-ladder as opposed to falling from the cat-ladder was higher.

17. I also accept the evidence of Law whom I found to be also an honest and truthful witness. Both Tsoi and Law were impressive witnesses.

18. The evidence of Wong Tsui Wan the nurse who worked for the 1st Defendant did not take the matter further. She confirmed that the cat-ladder in question was not locked at the material time so that anyone could have climbed up the same. She also confirmed that the roof was at the material time an open unfenced roof without railing and that the cat-ladder provided access to the roof. She did not actually see how the accident happened. She also said that the metal railing on the roof as shown in the later photographs of the premises were erected as the management wanted to enclose the roof to enable the old people at the home to use that space for exercises. That had nothing to do with the accident involving the deceased. I accept her evidence.

19. The former superintendent of the 1st Defendant, Li Cheuk Yan, said in his statement which was admitted in evidence that the home for the elderly at the premises was formally opened on 30th May 1993. The premises were, therefore, relatively new when the painting job was contracted to the 2nd Defendant. In October 1993 he was responsible for the general up keep of the premises but since everything was newly built, there was in fact nothing much to be done by way of maintenance other than daily cleaning. There were a few cat-ladders in the building for servicemen which were common and similar to other cat-ladders in buildings all over Hong Kong. He said at some stage the decision was made by the board of the 1st Defendant to have the caisson wall facing the main entrance painted green. The 2nd Defendant was engaged to do the job. He was familiar with Li Ching who had done various jobs for the 1st Defendant in previous years. He had met Li Ching in his earlier days at the Causeway Bay Youth Centre.

20. In about the beginning of November 1993, a bamboo scaffolding was erected along the caisson wall. When the scaffolding was completed, Li's workmen carried out the painting job. Li Cheuk Yan did not pay particular attention to their work as Li Ching was their known and trusted contractor. He vaguely remembered having seen someone on top of the roof of the transformer room next to the caisson wall. He assumed that he must have climbed up there by the cat-ladder in the open back yard though he had never actually seen any workman in the act. His staff never went up to the roof. He did not witness the accident. He was just off work in his office preparing to leave for the night when he heard a commotion in the lobby at the main entrance. He saw the deceased lying on a sofa unconscious. He sent for a nurse to administer first aid. He wanted to call the police but Li Ching was very anxious and he asked him not to as he had no labour insurance. He had no choice as the deceased was seriously injured and he called the police who arrived. He also said that at a later stage a decision was made to add metal railings to enclose the open edges of the roof to enhance the facilities to the old people. It had nothing to do with the accident.

21. I also heard evidence from Li Ching and his wife, the 2nd Defendant. Li Ching gave evidence that the green portion of the retaining wall shown in the bottom photograph in Bundle 1, pg. 21 was painted not by the deceased but by Chung on 10th November 1993. This is contrary to what Tsoi had been told by Chung, namely, that that portion had been painted by the deceased. Li Ching also said that there was no need for workers to work on the roof and that the scaffolding had been erected to enable the painting work to be done on the caisson wall and the retaining wall. He also said that they did not carry out the work on the roof as the workers had been instructed to work from the scaffold. He had himself gone up to the roof using the cat-ladder to supervise the work carried out by the workmen. It was his evidence that Chung commenced work on 10th November and that Chung had completed painting the green portion as shown in the said photograph before he ever arrived at the premises at shortly after 10 a.m. He said that Chung had started work shortly after 9 a.m. on 10th November 1993. I find that Li Ching was an untruthful witness. I do not believe Li Ching when he gave evidence about this. It is, in my judgment, most unlikely that the portion of the retaining wall painted green as shown in the said photograph could have been completed by shortly after 10 a.m. when Li Ching arrived at the premises. This would mean that Chung would have in the space of about an hour changed into his work clothes, mixed the paint with water, climbed up the scaffold and completed painting the portion as shown in green in the said photograph. This is, in my view, incredible. I do not believe Li Ching. This was also contrary to what Tsoi had been told by Chung, namely, that the deceased had painted the greenish portion of the retaining wall as shown in the said photograph. I am satisfied that Li Ching was lying about this.

22. Li Ching also gave evidence that the deceased worked from the scaffold. His evidence is that at the commencement of the work on 10th November 1993 and also on 11th November 1993, there was no effective employees' compensation insurance. Insurance was only effective from 12th November 1993. He accepted that he should have started the work later but he was pressed by Chiu of the 1st Defendant to hurry up with the work. He knew that when work commenced there was no effective insurance. He also said that when he climbed up the cat-ladder to go to the roof he had not asked for permission but that no one had stopped him or prohibited him from going up to the roof. If he had been prohibited or his workers had been prohibited, he would not have used the cat-ladder or the roof. He was adamant that he had never seen any of the workers on the roof or climbing up the cat-ladder.

23. He was of the view that the erection of the scaffold was satisfactory for work to be carried out from the scaffold and that he had seen the workers doing the painting work from the scaffold. He denied having any long handled brush in use at the premises. He said that what was used was a normal brush with a 1 ft. long brush with a width of 6 ins. He accepted that this was a small contract for him and considered himself to be a prudent and careful contractor. However, he accepted that the work should have started later and he should have waited for insurance cover before commencing work. But he was hurried to complete the work by the 1st Defendant. He gave evidence, which I do not accept, that Chung had actually painted the retaining wall as shown in the photograph. He said that Chung would have been able to do that with a normal brush while standing on the horizontal pole of the scaffolding. I observe that in the scaffold shown in the bottom photograph in Bundle 1, pg. 21, the scaffold to the left of the photograph is built much higher than the scaffold on the right of the photograph in so far as the horizontal poles are concerned. This would suggest, in my view, that to paint the top of the right side of the retaining wall it would have been easier to stand on the roof rather than to stand on the scaffolding as both Tsoi and Law had said in evidence. To do so, however, one would have to use a long brush as they both accepted in evidence.

24. According to Li Ching, the safety equipment that was provided to the employees including the deceased was a safety belt and a safety helmet. He said that the deceased was expected to hook the safety belt onto the scaffold. He did not provide an independent lifeline as he did not feel that was necessary. He regarded the provision of a safety belt and helmet as being good enough. He also said in evidence that the equipment was stored at the premises somewhere near the entrance and not in the back yard. And he said that he never saw the deceased or Chung go near the back yard. He denied that the stains as shown in the photographs in Bundle 1, pgs. 21, 23 and 24 on the floor of the back yard were paint stains that were used on the paint job although the paint stains looked green. He maintained that this was different from the paint that he was using. In his evidence he said that the paint stains shown in the said photographs were not green but greyish green. At one stage in his evidence he even said that the stains were blue. He denied that the paint stains on the rungs of the cat-ladder were paint stains of the green paint used to paint the retaining wall. His evidence was that the paints were mixed at the outside entrance near the lobby of the premises and not in the back yard. He also denied that the can of paint shown in the photograph in Bundle 1, pg. 23 was a can of paint that had been used for the paint job and that the lid thereof was in respect of a green coloured paint. He was also cross-examined about his statement to the police made on 17th November 1993 and his evidence in the employees' compensation case in the District Court.

25. It was his evidence that at about 5:00 p.m. that day he had shouted 'off duty' to the workmen. In his witness statement he said that at that time he was standing on the ground level. He said that his workmen took time to climb down from the scaffold as he went to the toilet behind the canteen to wash his hands. He said that the deceased had in fact come down to the back yard bringing with him all the equipment which he put down on the ground before he went to the toilet. He was joined by Chung in the toilet. He finished cleaning his hands and as he was coming out of the toilet he heard a faint thud sound in the back yard about five minutes after he went to the toilet. He went out and saw the deceased lying unconscious face down on the ground in the back yard.

26. Later in his evidence, however, he said that when he shouted for work to end on 11th November, he was in fact at the top of the transformer room on the roof. His evidence was that the deceased had been working along the scaffold and was standing 2 rungs below the scaffolding on the horizontal pole when he was going to call off work on 11th November. He was also cross-examined about his evidence in the employee's compensation case to the effect that the deceased was working at a much lower level on the scaffold than what he had said in evidence before me.

27. As I have said, I find that Li Ching was an untruthful witness. I do not believe Li Ching when he said that the workers were not mixing the paint in the back yard. As a matter of common sense I doubt that the 1st Defendant would have allowed the workers to mix paint near the main entrance of the premises. It would have made more sense for the workers to mix paint away from the main entrance. The back yard would have been a convenient place to do so. The photographs show clearly that there were paint stains on the ground in the back yard which were greenish in colour similar to the paint used to paint the retaining wall. There were also spots of green paint at the bottom of the cat-ladder. There were also paint stains at the rungs of the cat-ladder. I also bear in mind that the premises were relatively new when the painting job commenced on 10th November 1993. The premises were formally opened on 30th May 1993. There is no evidence to show that there was any other painting work at the premises which also involved green paint prior to the painting works carried out by the 2nd Defendant in November 1993. I find that the green paint stains shown in the photographs in Bundle 1, pgs. 21, 23 and 24 were consistent with the fact that the workers of the 2nd Defendant did mix the green paint at the back yard for the painting works in November 1993. The stains were also consistent with the fact that paint was carried up the cat-ladder to the roof and that could have been only for the purpose of painting the retaining wall from the roof with a long handled brush. On the evidence, I find that this is what happened and I disbelieve Li Ching's evidence on these matters. I also find that on the evidence Chung was doing the painting job at or near the main entrance. That left the deceased as the only other worker working at the other end. I find that it was the deceased who must have used and did use the cat-ladder to climb up to the roof and that it was the deceased who did in fact paint the top portion of the retaining wall with a long brush whilst standing on the roof on 11th November 1993. This would have been easier to do than standing on the scaffold especially when painting the top right portion of the retaining wall in green as shown in the bottom photograph in Bundle 1 pg. 21. I would observe also that in her evidence, the 2nd Defendant did admit that the back yard was where the workers had mixed the paint and where she had seen the deceased mixing paint. I believe her evidence on this although she did try to retract this in re-examination by saying that she did not understand the photographs. I do not accept that she failed to understand the photographs when she was cross-examined and, as I have said, I believe her evidence on this. I do not believe her when she also said in evidence that the workers mixed paint near the main entrance.

28. I do not believe Li Ching when he said that he had seen the deceased come down to ground level after he shouted 'off duty'. It is also significant that there is nothing to that effect in Tsoi's report which was compiled after interviewing both Chung and Li Ching. I am satisfied that Li Ching was lying about this.

29. Although Li Ching was not a truthful witness, I do, however, accept as the truth his evidence that when he climbed up the cat-ladder to get onto the roof no one had stopped him or prohibited him from going up to the roof. I also accept as the truth his evidence that if he or his workers had been prohibited from using the cat-ladder or the roof, the cat-ladder and the roof would not have been used.

30. The 2nd Defendant also gave evidence. She said that she helped her husband Li Ching at the premises by fetching water from the toilets to enable the workers to mix the paint. She said that they used about 2 ft. plastic drums of paint. They used a big pail to mix the paint with water. She said in evidence that the paint was mixed near the main entrance of the premises. As I have said, she did also admit in evidence that the back yard was where she had seen the deceased mix paint. I accept that part of her evidence and reject her other evidence that paint was mixed near the main entrance. She also said that she saw the deceased work from the 2nd or 3rd horizontal pole above ground level on the scaffold. I do not believe her when she said that she saw this. She also said that she never saw a workman on the top of the roof. That is perhaps not surprising as from her evidence she spent most of the time at the premises inside the premises at the lobby area when she was not assisting with fetching water to mix paint. She said that when her husband called off work she was inside the premises. She said that she saw the deceased on the ground. He had removed the safety belt and put it down on the ground. I do not believe her evidence on this. I do not believe she ever saw the deceased at ground level after her husband had called off work. I am satisfied that she was lying about these matters to try and support her husband's evidence on these matters.

31. I find as a fact that the deceased was on the roof on 11th November 1993 to paint portions of the retaining wall. This was to the knowledge of Li Ching, the employer as he was in fact there to supervise the work and the deceased was required by Li Ching, as the employer, to paint from the roof as well. As Li Ching shouted 'off duty' at around 5:00 p.m., it is likely that the deceased did not hear him and he walked on the roof to the edge away from the cat-ladder to try and hear what Li Ching was shouting. He was too close to the edge and he fell from the area marked 'roof edge' as shown in the photograph in Bundle 2, pg. 20. I am satisfied that this is what happened resulting in the fatal injuries to the deceased.

32. In the circumstances, in my judgment, the roof was a construction site within the meaning of the Construction Sites (Safety Regulation) (Cap. 59). Regulation 38A, therefore, in my view, applied. The 2nd Defendant as the contractor responsible for the construction site should ensure that so far as is reasonably practicable, suitable and sufficient safe access to and egress from the roof should be properly maintained. It was a statutory duty under Regulation 38A that the roof should, so far as was reasonably practicable, be made and kept safe for any person working there.

33. Li Ching was not, in my view, a careful or prudent employer as he claimed. He demonstrated that by allowing work to commence at the premises without employees' compensation insurance cover in the first place. To his knowledge, the deceased worked on the roof which was open and unfenced. He was not provided with an adequate protective system of a safety belt, fall arrester and independent lifeline. The place of work was unsafe and the system was also unsafe.

34. There was, in my view, a breach of Regulation 38A. There was also a breach of Regulation 38P. The 2nd Defendant as the contractor had a duty to ensure that the edge of the roof, which was a site where the deceased was liable to fall a distance of more than 2 m., was provided with either a suitable guard-rail or guard-rails of adequate strength to a height of between 900 mm. and 1150 mm. to prevent as far as possible a fall or an adequate covering to prevent a fall. These were not provided.

35. In so far as it may be said that it was impracticable for the 2nd Defendant to comply with Regulation 38A, there was also a breach of the statutory duty under Regulation 38Q. Under Regulation 38Q(3) where a safety belt is provided, the 2nd Defendant should also provide a suitable and sufficient anchorage and suitable fittings therefor and to be of such design and so constructed to prevent serous injury in the event of a fall to any person using it. The 2nd Defendant failed to provide a safety belt with a suitable and sufficient anchorage and independent lifeline. In my judgment, the breach of statutory on the part of the 2nd Defendant was causative of the fall of the deceased resulting in his fatal injuries.

36. The 2nd Defendant was also, in my judgment, in breach of duty as the employer of the deceased to take reasonable care for his safety. The employer's statutory duty and the duty to take reasonable care for the employee's safety is non-delegable. That is the duty owed by 2nd Defendant to the deceased. It is the duty of the 2nd Defendant to provide a safe place of work. The unfenced roof was clearly an unsafe place of work. If a proper safety belt with a fall arrester system and an independent lifeline system had been provided, that would probably have prevented the fatal injuries to the deceased as any fall by the deceased from the roof would have been arrested and it is likely that the serious fatal injuries which the deceased suffered would have been prevented. Unfortunately, that was not provided. Li Ching also failed to properly supervise the deceased at the premises. He failed to ensure that the deceased was not required to work on the unfenced roof which was an unsafe place to work. He also failed to ensure that the deceased was provided with a proper safety belt, a fall arrester and an independent lifeline system.

37. In my judgment, I am satisfied that the breach of statutory duty and the breach of duty as employer duty on the part of the 2nd Defendant were causative of the accident leading to the death of the deceased.

38. I turn now to consider the question of liability against the 1st Defendant. There is no dispute that the 1st Defendant was an occupier of the premises within the meaning of the Occupier's Liability Ordinance (Cap. 314). The common duty of care owed by the 1st Defendant under s.3 of Occupier's Liability Ordinance is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. The deceased was a visitor for the purposes of doing the painting work at the premises.

39. It was submitted by counsel for the 1st Defendant that the 1st Defendant did not know that the deceased or any of the workers of the 2nd Defendant who was an independent contractor would be using the roof to do the painting work. He relied on the fact that scaffolding had been erected along the caisson and retaining wall to do the painting job. Liability on the part of the 1st Defendant depends, in my view, on whether or not the 1st Defendant had knowledge that the roof had been used for the work.

40. It is significant that in the contract for the painting work undertaken by the 2nd Defendant there was no express prohibition by the 1st Defendant of the use of the roof for the purposes of the work. As I have said, I accept Li Ching's evidence that he was not prohibited from using the roof when he went up to supervise the work nor were his workers prohibited from using the roof by the 1st Defendant and that if there had been such a prohibition the roof would not have been used. There is no evidence from the 1st Defendant disputing this.

41. As contained in the statement of Li Cheuk Yan which was admitted as evidence, he said that he vaguely remembered having seen someone on top of the roof. He assumed that he must have climbed up there by the cat-ladder in the back yard. Li Ching was known to Li Cheuk Yan as he had known him for a few years before the job in November 1993. As he does not mention that the person that he saw was Li Ching, it is probable that the person that he saw on the roof was the deceased. It is also clear that he must have seen him from outside and not from inside the premises. The plan that was produced shows that it was not possible to look into the back yard or the roof from the inside office area.

42. The unfenced roof was, in my view, an unsafe place for any worker to carry out the works. The 1st Defendant should have prohibited the workers from using the roof but failed to do so. With the knowledge that there was a worker, namely, the deceased using the roof, Li Cheuk Yan of the 1st Defendant, at the very least, turned a blind eye to the dangers involved in the use of the unfenced roof for the works. It is clear that the common duty of care is more than a duty to avoid negligent acts. It extends to negligent omissions as well (para 10-28 Clerk & Lindsell on 'Torts' 17th Ed.). The failure to stop the workers from using the roof was clearly a negligent omission.

43. The fact that the 1st Defendant engaged the 2nd Defendant as an independent contractor does not assist the 1st Defendant. An occupier does not per se avoid liability simply by engaging an independent contractor. The statutory defence under S.3(4)(b) of the Occupiers Liability Ordinance is not available to the 1st Defendant as was conceded by counsel for the 1st Defendant. The damage in this case to the deceased was not caused by the faulty execution of any work.

44. The cases of Ferguson v. Welsh [1987] 1 WLR 1553 and Bates v. Parker [1953] 2 QB 231 do not assist the 1st Defendant in my view. They are distinguishable on their own facts. The dicta relied on by counsel for the 1st Defendant were on the basis of the findings of fact in those cases. They do not assist the 1st Defendant. I also do not find the other cases cited by counsel for the 1st Defendant as being of assistance. Each case, of course, depends on its own facts.

45. I am satisfied that the 1st Defendant was in breach of its common duty of care as occupier to the deceased under the Occupiers Liability Ordinance as well as in breach of its duty of care to the deceased in negligence. These were also causative of the fall of the deceased resulting in his fatal injuries. If the 1st Defendant had discharged its duty, the deceased would not have been allowed to use the roof and he would not have fallen from the roof resulting in his fatal injuries.

46. The 1st Defendant also relied on the defence of volenti non fit injuria. It was submitted that the deceased voluntarily and with knowledge of the nature of the risk involved worked from the unfenced roof and he agreed to incur that risk. The case of Simms v. Leigh Rugby Football Club [1969] 2 All ER 923 relied on does not, in my view, assist the 1st Defendant. The circumstances there were very different. The plaintiff who was a rugby footballer was injured whilst playing rugby football at the defendant's ground. He was tackled by one or two opposing players and thrown towards a concrete wall. It was held that the plaintiff's injures were not caused by contact with the concrete wall and that since a broken leg in a tackle was an accepted risk in playing rugby football, the defendant was not liable. That is quite different from the present case. The deceased was to the knowledge of his employer working on the roof. He was not provided with a safe place of work nor with a safe system of work as I have found. Those were non-delegable duties of the employer, the 2nd Defendant. I cannot accept that the defence of volenti non fit injuria is available in such circumstances. It cannot be seriously suggested that the deceased voluntarily accepted the risk of working in an unsafe unfenced roof or without the provision of an adequate safety system. I reject this defence raised by the 1st Defendant.

47. Both Defendants have also raised the question of contributory negligence on the part of the deceased. The deceased, in my judgment, fell from the edge of the roof because he was too close to the edge when leaning over to hear what Li Ching was shouting from the ground level. There was, in my view, a small measure of inattention to his own safety when he went too close to the edge of the roof. There was, therefore, in my judgment, a small degree of contributory negligence on the part of the deceased. After all, the duties of the 2nd Defendant were non-delegable. I am of the view that in the circumstances the contributory negligence on the part of the deceased should be no higher than 20% and I so find. Damages have been agreed at $450,000.00 on full liability. The Defendants are, therefore, 80% liable making an award of damages at $360,000.00. After deducting the award of $216,000.00 for employees' compensation, the Plaintiff is entitled to judgment in the sum of $144,000.00 against both Defendants. I give judgment to the Plaintiff against both Defendants in the sum of $144,000.00. The whole amount is to be paid to Madam Fung Woon Sau the widow of the deceased. I also make an order nisi for costs in the Plaintiff's favour against both Defendants.

48. As regards the apportionment of liability between the Defendants, I am of the view that the 2nd Defendant must be liable to a much greater extent than the 1st Defendant. I apportion liability for the damages and the costs to the Plaintiff between the Defendants at 25% on the part of the 1st Defendant and 75% on the part of the 2nd Defendant.

49. I also make an order nisi that the Plaintiff's own costs and the 2nd Defendant's own costs be taxed in accordance with Legal Aid Regulations.