TONG YUK SANG v. SHUN SHING CONSTRUCTION & ENGINEERING CO. LTD.

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J U D G M E N T

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Fuad, V.-P.:

1. This is an anneal by Mr. Tong Yuk Sang who was the unsuccessful Plaintiff in an action tried by Duffy, J. over 7 days in March 1988. In a reserved judgment dated 20 April 1988, the judge dismissed Mr. Tong's claim for damages against his employers, the Shun Shing Construction and Engineering Company Limited, in, respect of the injuries he sustained on 12 November 1982 during the course of his employment.

2. On that date, in the morning, Mr. Tong was working as steel bender on a site at Chai Wan Sat Chuen where the company was constructing a pedestrian footbridge over Wah Ha Street. He slipped and fell while carrying four steel reinforcing rods weighing about 120 1bs in all and injured his back. He was taken to the Queen Elizabeth Hospital by his fellow workers in the early afternoon. His back was X-rayed but he was not admitted. He received physiotherapy for several months but the Pain in his back persisted and so, on 31 July 1983 a Myelogram was carried out at the same hospital. This showed a prolansed disc which necessitated spinal fusion.

3. Mr. Tong was discharged from hospital on 27 September 1983 and continued to receive physiotherapy. However, the pain In his back and left leg continued. He was, therefore, re-admitted to hospital on 23 September 1984. After a second Myelogram had been carried out he had to undergo another operation in October. This was a Laminectomy which consists of the partial removal of the ring of bone around the spinal canal. He was discharged from hospital on this occasion on 6 November 1984 but had to continue with the physiotherapy.

4. Mr. Tone had to take a jot of painkilling drugs to ease his pain. As a result be displayed symptoms of an ulcer. On 27 March 1986 he developed perforation of a dnodenal ulcer which required an emergency operation, again at the Queen Elizabeth Hospital.

5. Mr. Tong was awarded $124,800 compensation under the Employees' Compenstion Ordinance in June 1983, present action was instituted on 12 October 1985.

6. The Statement of Claim was amended on 5 November 1986 and re-amended on 15 March 1988. The original Statement of Claim hart been filed with the Writ. By his re-amended Statement of claim the Plaintiff pleaded that on the day In question he was walking along the edge of the pedestrian footbridge under construction, carrying four steel rods, when he slipped and fell a distance of about three feet, "severely twisting/straining his back."

7. It was averred that the accident was caused by t he negligence/breach of statutory duty of the Defendant. The following Particulars of Negligence were given:

"(i)  caused or permitted steel benders carrying heavy loads to mount the pedestrian footbridge by its edge, the same being without handhold, guard-rail or other protective device;

(ii)  caused or permitted steel benders to mount the pedestrian footbridge by its edge from which they were liable to fall but which was of a width of less than approximately l foot;

(iii)  failed to ensure/procure that the edge of the pedestrian footbridge was kept clear of obstructions and free from agents which would, or might, cause them to become slippery or in any manner dangerous;

(iv)  failed to give any or any sufficient instruction to steel benders working upon the said site as to the means that they were recommended/required to adopt, so as to get to their, point of work in safety;

(v)  failed to provide means whereby steel benders could set to their point of workin safety;

(vi)  failed to supervise the work, or to exercise such control over its sub-contractors so that workmen employed to perform operations at the said site could do so without hazard;

(vii)  failed to have any, or any sufficient regard for the safety of the Plaintiff; and in the premises;

(viii)  failed to have and' maintain a safe system of work for steel benders working on the pedestrian footbridge."

8. As to the alleged breach of statutory duty, a breach of regulation 52(1) of the Construction Sites (Safety) Regulations was pleaded and there was an averment that the Defendant was "in breach of its common duty of care as an occupier the Occupiers Liability Ordinance".

9. In view of the conclusions reached by the judge it is necessary to mention the main in differences between the case the Plaintiff pleaded in October 1985 and that which he pleaded in March 1988.

10. In the first pleading (maintained in the November 1986 amendment) it was pleaded that the Plaintiff's work necessitated his mounting a wooden plankway from which he had of the slipped and fallen. Para.(i) of the Particulars of Negligence given in the October  1985 and November 1986 versions of the Statement of Claim averred that the Defendant had "caused or permitted workmen ... to mount a wooden plankway" (rising to a height of about 16 feet" in the second version) and there were references to plankways in paras.(i) (ii) and (iii). All references to wooden plankways were omitted from paras. (ii) and (iii) of the Particulars of Negligence set out in the March 1988 version of the Statement of Claim and, as we have seen, in their place now appear references to the pedestrian footbridge.

11. In the first version of the Statement of Claim it was said that "the immediate cause of the accident was an accumulation of wet paint upon the plankway". In the second version we see "… an accumulation of wet paint oil or a like substance anon the plankway". The final version refers to "... an accumulation of oil or a like substance upon the edge of the said footbridge.

12. Mr. Tong told the judge that earlier in the morning of the day the accident had occurred he had successfully delivered two loads of four steel rods each to the place where they were needed by walking along timber poles that were protruding from the partially constructed south access ramp. On the third occasion, near the top of the ramp where he was to leave the steel rods, be stepped on some form nil and felt a distance of about three feet, ending up in a sitting position still carrying, the four rods on his right shoulder. He said that be had only become aware of the oil after he had fallen when be saw an oil stain on the shoes he was wearing. He then noticed a bucket of oil hanging under the parapet of the footbridge and there was a roller (for the application of the oil) in the bucket.

13. Mr. Tong also testified that it was impossible that day for him and his fellow steel benders to walk up the centre of the footbridge because the steel rods in place there (which would reinforce the concrete later to he poured over them) had been bent upwards, thus preventing access.

14. The judge made the following observations about Mr. Tong as a witness:

"... the very real inconsistences between the pleadings, and between them and the plaintiff's evidence, together with an overall impression I pained of the plaintiff as a clever opportunist left me with very serious reservations about his reliability and credibility. He did not impress me as a truthful witness."

15. The material findings of fact and conclusions in the judge's judgment may thus be summarised:

(a)     while he had no doubt that the Plaintiff had suffered a serious injury to his back, he was not satisfied on the evidence, on the balance of probabilities, or indeed at all, that his injuries had resulted from the Defendant's negligence;

(b)    he satisfied that the south access, ramp was not blocked in the way described by the Plaintiff;

(c)    he was not prepared to accent, on the evidence that he had heard, that even if the Plaintiff's allegations were to he held to be groundless, it had nevertheless been established that the Plaintiff, on the morning in question, had not been, provided with reasonably safe access to his place of work;

(d)    contrary to the evidence the Plaintiff had given (or to inferences which might be drawn from his evidence) there were no carpenters working on the footbridge site on the morning in question which might account for the presence of the form oil splashing on to the protruding timber poles on which the Plaintiff claimed he was walking when he slipped and fell;

(e)    when the form oil was applied (to plywood wooden formations which provide moulds for the concrete so that it becomes easier to remove the plywood from the concrete when it is set) it was applied by spray guns which made the splashing of nil unlikely, and not by rollers as stated in evidence by the Plaintiff;

(f)    the plywood was treated with form oil before it was made up into moulds, and oil was never taken to the actual site where, the formwork raps to be constructed. This defeated the Plaintiff's hole position about the form oil and its application by carpenters and also about a bucket of oil with a roller in it hanging under the parapet;

(g)    form oil would produce a slippery surface only immediately or soon after its application because thereafter it would become absorbed and the surface of the timber would be normal. No form oil had been applied that day. It it had been applied on the previous day it would have dried well before the time of the accident. Form oil was thus not a factor in the case at all;

(h)    be was not satisfied that the, Plaintiff had proved negligence as pleaded or at all. He had never successfully proved what had caused the accident because his account had been inconsistent, unreliable and overwhelmed by evidence of a compelloing nature.

16. It was submitted by Mr. Woo (be did not represent the Plaintiff before Duffy, J.) that the judge had either misdirected himself or had acted against the weight of the evidence when he found against the Plaintiff on liability. He contended that the judge should not have placed the weight he did upon the discrepancies which were apparent in the three versions of his pleadings to which I have earlier referred. It is said that the judge should have appreciated that the various matters described in the pleadings were of a technical nature and those responsible for the pleadings were not experts in the field of construction; and that the accident had occurred many years before the action was tried and during the preparation of his case the Plaintiff had been advised by a number of different solicitors and counsel.

17. Mr. Woo also suggested that the inconsistencies between the pleadings and between the pleadings and the Plaintiff's evidence were more apparent than real, am he took us through the pleadings and the evidence.

18. It was also contended an the Plaintiff's behalf that the judge was not, on the evidence before him, justified to forming the impression that the Plaintiff was a "clever opportunist" and that he should have taken no account of the fact that one of the Defendant's servants (a Mr. Chan) who gave evidence had filled in an accident report in the space marked "Describe in detail how the accident happened" with the words: "During work carelessly fell and twisted the backbone". Mr. Chan bad told the Court that he had no indenendent recollection of what the Plaintiff had said that day but that he had recorded what he had been told. The judge said that he was inclined to the view that Mr. Chan's record was a reasonably accurate account of what the Plaintiff had told him.

19. Mr. Woo also complains that the judge made no findings as to the access provided or the Plaintiff to the corner of the footbridge; whether the Plaintiff was in fact walking on the framework formed by the steel rods or whether that would be a safe access. It is contended that the evidence as a whole clearly established that the Defendant had failed to provide a safe system or safe place of work, or safe access to the place of work, quite apart from the Plaintiff's allegations shout how he came to fall that day. The judge, it is argued, had never addressed his mind to the safety or otherwise of the access provided by using the centre of the footbridge - it was common ground that no railing, fence or other handhold had been provided.

20. With every respect to Mr. Woo's submissions, I do not think that those advising the Plaintiff have appreciated that the appeal was fraught with difficulties since the only person who gave evidence about the way the accident had occurred was the Plaintiff and he was disbelieved by the judge in a fully reasoned and careful reserved judgment. Appellate Courts have a severely limited function where a case depends on facts found by a judge sitting alone - see the recent decision of this Court which reviews the leading authorities: Hong Kong and Shanghai Corporation v. Chan Yiu Wah and Another [1988] H.K.L.R. 1 457.

21. Bearing in mind the proper approach of an appellate Court in such circumstances I find it quite impossible to say that the Plaintiff has succeeded in this appeal in demonstrating that the judge's findings can he interfered with. Once this is so, in my judgment this appeal must fail. The judge was not bound, as has been suggested in argument, to make a finding as to how the accident happened. Nor was he required to reach a conclusion, in the abstract as to whether or not a safe place of work or a safe access to the work had been provided. The Plaintiff failed to prove his case on the balance of probabilities

22. I am bound to say that on all the evidence and material to which our attention has been drawn, even without the advantage, denied to us, of, having seen Mr. Tong and the other witnesses giving evidence, I do not see how the judge could have reached any other conclusion.

23. I would dismiss the appeal.

Kempster, J.A.:

24. I also would dismiss as the appeal for the reasons sops given by my Lord.

Hunter, J.A.:

25. I agree.

[Appeal dismissed costs. Legal Aid taxation of the Appellant’s own costs. Court: "We invite the Taxing Master to consider the degree of duplication involvedin the anneal bundle and also the failures in relation to te amendments of the pleadings ot comply with the Practice Direction dated 28 June 1985."]