SIU SAU YUNG v. TAK WING CONTRACTORS LTD. and CHINA EXPAND CONSTRUCTION LTD. and Others

1996 No.PI 1139

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This action is brought on behalf of the estate of Siu Tai Shan, deceased, and his dependants, under the provisions of the Fatal Accidents Ordinance (Cap.22) and the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23), and arises out of an accident on 24th December 1989 at a construction site in Junk Bay. The deceased, was a site foreman employed by the 1st Defendants at the site where several blocks of public housing flats were being built. At about 11.45 a.m. that day it was noticed that he did not join his colleagues for lunch and an attempt was made to contact him on his walkie-talkie. This not being successful, a search was made of Block 5 where he had been working and which was under his supervision. The first thing to be found was the deceased's walkie-talkie in the lift lobby of the 4th floor, and, on opening the door to the no. 3 lift and looking down the shaft, the body of the deceased was discovered lying on top of the lift, where he had clearly fallen from one of the higher floors.

Liability

2. How the deceased came to fall down the lift shaft is not clear. No-one saw him in the building at the relevant time, and it is not known from which floor he fell. Although his walkie-talkie was found on the 4th floor, it had suffered damage, and may have fallen from another floor with the deceased.

3. It is the Plaintiff's case that the accident was caused by the negligence and breach of duty of the Defendants, and Mr. Cheng on her behalf points to a number of circumstances which he says throws some light on it.

4. The lifts in this building had recently been installed, and on 22nd December concreting work in the lift shafts had been completed, the bamboo scaffolding which had been inside the shafts was removed, but the deceased notified the site foreman of the 2nd Defendant that the lift doors would not close. It became apparent that concrete, either from work inside the lift shafts or tiling in the lift lobbies, had been left in the sills of the lift doors preventing them from closing, and arrangements were made for workers to come to clear it away. However, by 24th December this had not yet been done and the lift doors remained open on most of the floors served by lift number 3, the odd numbered floors, from 1 to 23. It was the intention of the lift contractors to block off the open lift doors, which was done on a number of floors, leaving some, however, completely unguarded. The 3rd Defendant told the Coroner's Inquest that he blocked them with wooden planks, and if they were not available he used bamboo, and the Factory Inspector, in his report three days after the accident, records that the 3rd Defendant told him that the planks and bamboo poles were laid across the openings without anything to secure them in place. There is consequently a clear breach of Regulations 38N and 38P of the Construction Sites (Safety) Regulations which require openings or working places from which a person is liable to fall more than 2 metres to be provided with a suitable guard rail of adequate strength and a height of between 900 and 1150 millimetres.

5. The lift lobbies on each floor were comparatively narrow at 1 metre, and no artificial lighting was then provided. Such light as there was came from ventilation windows and through the doors of the completed units at each end of the lobbies, but it is clear on the evidence that this was not very bright, particularly as the weather that day was cloudy and it was raining. Auxiliary Sergeant 4406 Lee Kam-man, who was sent to the site at about 2.45 p.m. the same day, and who inspected every floor, said that it was very dim, but he could see what was on the ground from about 10 feet, although he said it was darker on the lower floors. The Plaintiff who visited the site the next day also said how dim the light was, although she only looked at the lift lobbies from the 22nd floor upwards to the 26th. Clearly the lighting was not adequate, and this again is in breach of Regulation 50, which requires lighting to the extent necessary to ensure the workman's safety.

6. All the witnesses agreed also that the floors of at least some, if not most, of the lift lobbies were very wet, from water used in the concreting, and on some floors tiling of the lobbies had been completed but not on others. There were bamboo poles about 4 to 6 feet in length which had been used for scaffolding in the lift shafts, lying on the floor of the lobbies, which one either had to step over, or walk on, to pass through the lobbies. Although these may not have been very numerous, Aux. Sgt. Lee saying that there were two or three, but Mr. Ho Hin-kwong, a leveller in Block 5, is recorded by the Factory Inspector as saying that there were "more than 10 pieces". However the latter is also recorded as saying that all the lift openings were unfenced, which clearly, on the evidence before me, is not true. Be that as it may, there were bamboo poles left on the floor of the lobbies, and this is in breach of Regulation 52, which requires passageways to be kept clear of any loose materials not required for immediate use.

7. The situation then was that the building in which the deceased was required to work had openings on to the lift shaft on every other floor, some of which were not guarded at all, and I have little evidence as to the adequacy of the guards on those that were. The floors were wet and had pieces of bamboo lying on them, and the lighting was inadequate. As Mr. Cheng says, this was a dangerous place to be. It cannot be denied that, on construction sites involving high rise buildings, the lift shafts present the most danger to those working there, as any fall will almost certainly prove fatal. As Kaplan J. said in In re Lau Chuen-fat, deceased [1994] 2 HKLR 173 : "Unboarded lift shafts are well-known to be death traps. Many cases come before these courts involving injuries or death caused by persons falling down lift shafts. That is why they have to be boarded. If properly boarded, they would in all probability prevent people or objects from falling down from a great height. They are boarded to prevent anyone from falling down the void - not just those who may legitimately have work to carry out in that vicinity.............These shafts are boarded in order to discharge the common duty of care that an occupier owes to all persons lawfully on the site."

8. In a situation such as this, where dangerous lift shafts are left unguarded, the burden on the employer or occupier of the site to ensure that those working there are safe must be very much higher than usual. As the editors of Charlesworth & Percy on Negligence noted (at page 446) : "The graver the consequences will be of a failure to take due care, the greater is the degree of care which must be taken", following a similar sentiment by Lord Wright in Northwestern Utilities Ltd. v. London Guarantee & Accident Co. Ltd. [1936] A.C. 108, where he said: "..the degree of care which (a) duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled."

9. In this case, the employer, the 1st Defendant, in addition to being in breach of the requirements of the Construction Sites (Safety) Regulations, by failing to ensure that the site was safe for all lawful visitors is clearly in breach of the common duty of care to their employee, the deceased, who was required to work there. The 2nd Defendant, as the lift contractor, and the 3rd Defendant as their sub-contractor, were clearly negligent in failing to properly fence off the lift shaft openings, well knowing that the lift doors were left open and others would be working there.

10. I find no merit in the argument of the defence that the deceased was aware of the danger that had been created. Again, as Kaplan J. said in In re Lau Chuen-fat, "The elementary precautions which should have been taken, but were not, should have been designed to prevent both experienced and inexperienced workers alike." Equally, it is no defence to say that he should not have gone where he knew it was dangerous, as his work required him to be there.

11. However, the matter does not end there, as the Plaintiff must also prove that the breaches of duty, either at common law or by statute, caused the accident by which the deceased met his death.

12. There are, in my view, only three possible causes for the death of the deceased. The first is that it was a deliberate act either by his own hand or by that of another person. In the circumstances of this case, and in the absence of any evidence to support any likelihood of a wish to end his life, or ill will on the part of another, I think that this can be rejected as being too fanciful. The second is that through his own gross negligence, such as removing a guard to attempt a man?uvre that was not allowed, he caused his own death. Again, in the light of the circumstances here, I would need strong evidence of the possibility of such happening, and here there is none. There is in particular, no evidence of any of the guards, such as they were, being removed, and no evidence that he wanted to carry out any work in relation to the lift shafts.

13. Which leaves me with the third, and, I consider the only, possibility, and that is that he was carrying out his proper duties and, as a direct result of the dangerous state of the lift openings, he slipped, tripped or otherwise overbalanced, and fell into the lift shaft. I accordingly have no difficulty in finding that his death was a direct consequence of the breach of duty and negligence of the three Defendants.

Contributory negligence

14. The next matter on which the Defendants rely is that, if they are to blame for the deceased's death, then he must have contributed to the accident by his own negligence.

15. Mr. Sakhrani, on behalf of the Defendants, points out that the deceased was an experienced worker who must have appreciated the dangers. He knew that some of the lift doors were open and unguarded, there was sufficient lighting to enable him to appreciate the risk, or he could have obtained a torch if he wanted one, and if the situation was as dangerous as I have found it to be, it was tantamount to madness to go into the corridor by the lifts.

16. These arguments I have no difficulty in dismissing. An employer who requires his workmen to be in a place which is not just dangerous, but extremely so, cannot be heard to say: " but he knew it was dangerous", or that he made no complaint of the danger.

17. Further, it was held by the Court of Appeal in Li Man Yuen v. Li Chung I t/a VF Electric Manufacturing Co. [1991] 2 HKC 230, following that of the House of Lords decision in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627, that once a material breach of statutory duty has been established, in addition to liability for negligence, the standard by which contributory negligence was judged was less exacting than that used for ordinary negligence. If in addition to such a breach there is gross negligence, as I find there is here, then I would need strong evidence of culpability on the part of the deceased to make any finding of contributory negligence.

Here there is none. Although the Defendants suffer from the same disadvantage as the Plaintiff in the lack of direct evidence of the events which led to the deceased's death, there is ample to show how it may have been, and as I have found, more likely to have been, the fault of the Defendants, while there is none at all to place any responsibility on the deceased, and, as I have said above, it would have to be very compelling evidence indeed to reduce the blame on the Defendants.

18. I am therefore satisfied that there is nothing to support a finding of contributory negligence on the part of the deceased, and I find the Defendants wholly to blame for his death.

Quantum

19. At the date of his death, the deceased was single and aged 32 years, and had been promoted to foreman by the 1st Defendant some 15 months prior to the accident. He was earning a basic salary of $7200 a month, with regular overtime of $480 and an allowance of $1800, making $9480 a month. In addition to this, he would have received double pay in respect of his basic salary in December, giving a monthly average of $10080 ($9480 + ($7200 ÷ 12)).

Fatal Accidents Ordinance

20. The Plaintiff is the elder sister of the deceased and makes claims under this head in respect of the dependency of the deceased's, and her, father, Siu Mui Jong, and on behalf of herself. Her evidence was that the deceased gave his father $2500 a month, and contributed $4000 a month to the household which he and the Plaintiff shared. The father died on 20th November 1994, some 59 months after the death of the deceased, so the claim for his dependency is limited to this period.

21. The evidence of the Plaintiff in respect of the father's dependency is supported to some extent by the report of the Social Welfare Department of 23rd October 1990, prepared in relation to the Employees' Compensation proceedings, where the Assistant Social Work Officer records being informed by the father that the deceased contributed $2500 a month to him. However, there is little other evidence to support the Plaintiff's assertion as to the amounts given by the deceased. His bank savings pass book, into which his salary was paid, does not support any regular payments, and certainly not those which the Plaintiff maintains he made to her, namely $4000 at the beginning of each month as soon as he had been paid. Although sufficient appears to have been withdrawn from his account to cover payments of $2500 and $4000 from January to July 1989, although not in those precise amounts, from then onwards the withdrawals are irregular, and not always sufficient to make the payments claimed.

22. The Plaintiff herself is, and was at the material time, employed full-time by the Vocational Training Council as a "workman", which I understand to be a cleaner, and part-time as an office assistant, and in 1989 her average monthly income was about $4900. She has said that the monthly expenses of the household that she shared with the deceased came to an average of $4531, prior to his death. Her own bank pass book showed that her average monthly outgoings in the months before came to $4563, yet she said in evidence that she spent very little on herself apart from expenses, although she sometimes made remittances to relatives in China on public holidays or when they were ill.

23. It is clear that, at the time, she did not regard herself as a dependant. In the list of dependants made out by the Labour Department for the E.C.C. proceedings, form information she supplied, only the father is named. However, this may well have been in ignorance of what amounts to dependency, and it is necessary to arrive at a picture of the financial arrangements between the deceased and his father and sister, and the likelihood of his supporting them.

24. On the evidence before me, I am satisfied that it is more likely than not that the deceased did contribute to his father, whose only other income was old age allowance of some $320 a month, and that the figure I have been given of $2500 a month is correct. I further consider it likely that the deceased would have increased that contribution in line with his own earnings.

25. In the year before his death, his basic salary and his allowance increased by 10.76%. I have had my attention drawn to the figures compiled by the Census and Statistics Department for the years 1990 to 1994 for construction workers, which I can only take as a rough guide, and these indicate an average increase over that period of over 11%. In the circumstances, it seems reasonable to assume that his annual increases in income over that period would have been comparable to that of the year preceding his death, namely 10.76% a year. There is no reason why it should be less. In turn the increase in his contributions to his father would have increased from $2500 a month in 1989 to about $4167 a month in 1994, giving a median of $3333.50. In respect of the father's loss of dependency for the 59 months before his death I accordingly award the sum of $196676.50.

26. As far as the Plaintiff is concerned, the matter is not so clear cut. She was some 15 years older than the deceased and since his mother died when he was 7 or 8 years old had looked after him in her place. I accept that the relationship between them was such that she had felt responsible for him and provided a home for him, and, when she grew older, he would accept a degree of responsibility for her. At the date of his death, however, they were both in full time employment, and, I consider, both contributing to the household expenses, although it would be reasonable to assume that as his earnings were slightly more than double hers, his contribution would be correspondingly larger. It follows that, while their proper shares of the expenses would be half each, he would contribute twice as much as the Plaintiff towards them. I think it likely therefore that they contributed to the household in the proportion of one third to two thirds, namely $1510.33 by the Plaintiff and $3020.66 by the deceased. This in turn would mean that he was supporting her to the extent of $755 a month.

27. This again would have increased in line with his increase in income, which I again propose to take at 10.76% a year which would give a monthly figure for her dependency today of $1627, and a median for the period since the accident of $1191.

28. In respect of the Plaintiff's loss of dependency to the date of trial I accordingly award the sum of $103021.50 (being $1191 x 86.5 months).

29. The Plaintiff was aged 47 at the date of the deceased's death, and accordingly I consider a multiplier of 10 is appropriate leaving a post-trial period of 33.5 months. This gives a figure for post-trial loss of $54504.50 (being $1627 x 33.5).

Law Administration and Reform (Consolidation) Ordinance

30. I come now to the claim for loss of accumulation of wealth on behalf of the estate and for this I must again turn to the deceased's bank account to see what, is any pattern of savings emerge to assess whether he would have accumulated anything to pass with his estate on his natural death.

31. The only accounts I have are a savings account with the Hongkong Bank which dates from 2nd December 1987 showing a balance of $6944.20 at the date of his death, and a savings account with the Chartered Bank showing a balance of $5124.66, of which $5000 had recently been deposited, possibly from the $10000 withdrawn by the deceased from his other account on 12th December 1989. His total savings therefore were $12068.86.

32. Although the accounts do not show a systematic pattern of saving, the balance at the end of 1987 and the end of 1988 being almost identical, what they do show is that he had a surplus of income over expenditure in the year prior to his death, no doubt as a result of his promotion to foreman 15 months before, and that he had clearly planned for savings by opening the second account with the Chartered Bank in which he placed part of that surplus.

33. At the date of his death he was aged 32, unmarried, and, I am told by the Plaintiff, with no expensive lifestyle, habits or vices. He apparently had no plans to marry. Upon the death of his father it is possible that he might have saved more. It is equally possible that he would have spent more on himself to make his life more comfortable. In situations such as this one can only conjecture.

34. I do not find myself in a position where I can accurately assess what his savings would have been, but I am able to say with a degree of certainty that there would have been savings. He had saved approximately 10% of his earnings in the year prior to his death, but there are no identifiable savings before that. Bearing in mind that he had been working for some 15 years this is not the pattern of a thrifty saver. It may, however, be the pattern of a man who with the responsibility of an ageing father, and partial responsibility for his sister, has not, until recently been able to save.

35. This clearly falls into the third category envisaged by Deputy Judge Jones in Ho Pang-lin and Wong Hop-hing v. Ho Shui-on and anor. [1994] 2 HKLR 313 where there would be an accumulation of wealth at the normal date of death, but it is impossible to quantify mathematically. In the circumstances of this case I consider a global award of $200000 to be appropriate.

Bereavement and funeral expenses

36. The sum of $40000 is agreed as the award for bereavement. There is no claim for funeral expenses as these were paid by the 1st Defendant.

Summary

Loss of dependency:

Siu Mui Jong:	$196676.50
Siu Sau Yung:
pre-trial:	$103021.50
post-trial:	$ 54504.50

Loss of accumulation of wealth:	$200000.00
Bereavement:	$ 40000.00 $594202.50 =========

37. It has been argued on behalf of the Defendant that interest should not be awarded for the full period from the accident because of the Plaintiff's delay in bringing this action to trial. Mr. Cheng on the other hand has pointed to delays on the Defendant's part in preparing for trial. Looking at the history of these proceedings, it is clear that the Plaintiff could have conducted them with more despatch. There is one period of over a year when nothing seems to have happened, and a notice of intention to proceed had to be filed.

38. There is no reason, in my view, that a relatively straightforward action for personal injuries cannot be brought to trial well within 6 years from the date of accident. This has taken over 7 years and it is not right that the Defendants should suffer in payment of interest for the whole period.

39. There will accordingly be interest on the award for bereavement at 2% from the date of writ to 24th December 1995, being the sixth anniversary of the accident, and on pre-trial loss of dependency at 5.75% from the date of the accident for 6 years.

40. There will be no interest on the award for post-trial loss of dependency or the loss of accumulation of wealth.

41. The sum of $120000 awarded to Siu Mui Jong in the Employees' Compensation proceedings will be deducted from the award to his estate in respect of his loss of dependency.

42. There will be an order nisi for costs in favour of the Plaintiff. The Plaintiff 's own costs are to be taxed in accordance with Legal Aid Regulations.