CHAN KWOK PING v. HOP YICK ENGINEERING CO (a firm) AND ANOTHER

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL NO. 74 OF 1997

____________

____________

_______________

J U D G M E N T

_______________

Seagroatt J. (giving the first judgment at the invitation of Godfrey JA):

1. This is an appeal against the judgment of Peter Cheung J. given in January of this year in which he gave judgment for the Plaintiff against the Defendants for damages for personal injuries and loss arising out an accident at work. The learned Judge found that the Plaintiff was contributorily negligent to the extent of 40%.

2. The basic undisputed facts are that on 9^th November 1990, the Plaintiff was working for the 1^st Defendant and was employed as a paint sprayer on a construction site on which the 2^nd Defendant was a principal contractor. He was using a spray gun. When it became blocked at an early stage in the day's work, he tried to unblock the nozzle with a pin, as a consequence of which, paint sprayed out and struck him in the eye. The paint material was in fact alkaline whitewash. It caused a corneal ulcer, scarring resulted and his vision was affected.

3. The Plaintiff's case pleaded that the paint rebounded off the wall and into his eye. The evidence indicated that this was unlikely to have happened and that it was probable that the flow was diverted by the pin and/or his fingers and sprayed, at the angle caused, directly into the Plaintiff's eye. This difference between the Plaintiff's pleaded case and what the learned judge found actually happened, is relied upon by the Appellants in their grounds of appeal. As I will set out later there is no substance in their contention.

4. There were numerous allegations of negligence and breach of statutory duty. The material Common Law allegations included failure to train and instruct in the safe operation and use of the spray gun, failure to provide goggles, causing and permitting the Plaintiff to use a defective spraying machine; alleged breaches of statutory duty included failure to provide eye protectors, alternatively failure to take reasonable steps to ensure that full and proper use was made of them. The Plaintiff further relied upon the maxim 'res ipsa loquitur'. It is important to note that although much expert evidence was given in this trial and demonstrations were carried out and video recorded using one or more spray guns, the actual spray gun used by the Plaintiff, which was six or seven years old at the time of the accident, was at no time inspected by any expert and was not produced at the trial. There was, therefore, no evidence about the operation of that particular spray gun or of its maintenance.

5. According to the Plaintiff spray guns were blocked 30 to 40 times a day which is, perhaps, some reflection upon the system of cleaning and maintenance of this particular equipment. The learned trial Judge found the following facts:

1. that the Plaintiff was basically a truthful witness.

2. that the whitewash splashed in his eye because it was diverted by the pin and/or his fingers.

3. the Plaintiff had not depressed the lever by his hands or foot nor was it depressed accidentally by being positioned between two objects.

4. the valve had not been kept open by obstruction so as to permit the whitewash to continue to flow.

5. somehow the valve must have been opened so as to permit the whitewash to flow. That can only have been caused by the Defendant's negligent act or omission. The equipment was defective. Res ipsa loquitur applies.

6. no instruction or demonstration was given as to how to operate the spray gun and clear the blockage. There was an unsafe system of work.

7. no goggles were provided to the Plaintiff. There were breaches of statutory duty under the Factories and Industrial Undertakings (Protection of Eyes) Regulations under Regulations 5 & 7B.

6. I propose to deal with Ms. Selina Lau's contentions on the basis of the grounds set out in her amended Notice of Appeal. She does not seek to pursue all of them and therefore I will confine myself to those which she has sought to pursue.

Ground 1

7. It was clearly open for the learned judge to find that the Plaintiff's eye was injured directly by diverting of the spray as both experts testified was possible or probable. It is of no consequence that this was a different mechanism from that pleaded. The fact of significance is that whitewash did enter his eye. That came out of the nozzle. That it was diverted by the pin and/or the fingers as opposed to ricocheting off the wall is of no importance.

Grounds 2, 3 and 4

8. There were two possible mechanisms identified by the experts. They did not preclude some defect in the valve system. Dr. Greene referred to this in his report. Their evidence as to the condition of the spray gun was predicated on the condition of the guns available to them. The learned judge properly directed himself in that, having found that the lever was not depressed and that the valve if obstructed would not allow whitewash through from the pump, if whitewash nonetheless flowed through, there was some defect in that particular spray gun, e.g. the valve must have been open. Accordingly, 'res ipsa loquitur' applied. He set out at page 6 from letter O of his judgment, a proper consideration of the position.

9. 'Res ipsa loquitur' is not a rule of Law but more a rule of evidence based on common sense. It raises a presumption that the Defendant has been negligent in the absence of any other evidence or explanation. If the presumption is not rebutted, the Plaintiff has established his case. Mr. Justice Cheung referred to part of a judgment of Lord Justice Megaw in Lloyde v. West Midlands Gas Board 1971 2 All E.R. p. 1240. The "common sense approach", as Lord Justice Megaw described it has been consistently set out in a large number of cases down the years.

10. In order to rebut the presumption the Defendant must give evidence of facts showing at least a likely explanation which must be one which involves no negligence on his part. The presumption can be displaced only by (1) proof that the Defendant exercised all due care or (2) proof that the accident was due to a cause not involving negligence on his part, see Moore v. Fox & Sons 1956 1 Q.B. 596.

11. In Barkway v. South Wales Transport Co. Ltd. 1950 A.C. p. 185, the House of Lords decided that the maxim does not apply where all the facts of the accident are proved in evidence and its cause is known. Then a court has to assess whether the Defendants were negligent. Where there is an unexplained occurrence which on the face of it is negligent then it does apply. In that case, there is a presumption of negligence which can be rebutted only by express proof that the Defendants exercised all reasonable care or that there is a likely explanation which does not connote negligence on their part. They were unable to do either in this case, involving a spray gun which was not before the court and which no expert was able to examine. This was a classic case of 'res ipsa loquitur' and the learned Judge's approach and findings are unassailable. It follows that once 'res ipsa loquitur' applies, the equipment must be defective because the valve was open when it should not have been. Accordingly, this appeal fails.

Le Pichon, J. : I concur and have nothing to add.

Godfrey, J.A. :

12. In some industrial accident cases, it is not possible for either the plaintiff, or the defendant, to prove exactly how the accident happened. It will sometimes appear that the accident must have been due to some defect in the machinery the malfunction of which has caused the accident. Especially that will be the case where other possible causes of the accident have been discounted. In such a case, the defendant will have to prove that the accident was not caused by his own negligence; otherwise, he will be held liable for the accident. This is, in my judgment, just such a case.

13. For the reasons given by Seagroatt, J., I, too, would dismiss this appeal.