NG CHUN MO v. WAIHONG ENVIRONMENT SERVICES LTD AND ANOTHER

HCPI 869/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 869 OF 2008

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BETWEEN

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JUDGMENT

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1.  The plaintiff is seeking damages from the defendants in relation to an accident which occurred on 9 March 2007 at Kingswood Court in Tin Shui Wai in the New Territories.

2.  D1 was the plaintiff’s employer and D2 was the property manager of the estate.

3.  On the day in question the plaintiff was, together with a co-worker and his supervisor, performing cleaning duties on the roof of a glass canopy of the pedestrian walkway between Blocks 9 and 10 of the estate.

4.  While working he slipped and fell from a height of approximately 3.6 metres and sustained very serious injuries.

5.  D1 accepted liability for this accident.  D2 did not.

6.  The parties succeeded in agreeing the quantum which should be payable to the plaintiff.

7.  The amount agreed to be payable was $6.8 million inclusive of the compensation the plaintiff received under the Employee Compensation Ordinance Cap. 282 and interest up to the date of judgment.

8.  This being the case the issues before me requiring an adjudication are first, whether D2 is liable and secondly, if so, what apportionment of liability should be assessed between D1 and D2 pursuant to the provisions contained in the Civil Liability (Contribution) Ordinance, Cap. 377.

9.  There was also the issue as to whether the plaintiff had in any way contributed to this accident.  D1 did not claim that this was the case.

10.  D2 contested the issue and this will be dealt with later in this judgment.

11.  The plaintiff who was aged 57 at the date of the accident gave evidence as to what had transpired.

12.  He was engaged by D1 as a cleaner on 1 December 2006. As a condition of his employment he was required to obtain what is known as a green card which indicates that he had undertaken a course on safety procedures and passed an examination.

13.  He obtained this.  He learnt from this that if he worked at a height in excess of 2 metres it was incumbent upon his employer to provide either a safety net or some form of harness.

14.  On the day in question he started working at 7 a.m.  He and a co-worker Chow Wah Gen received instructions from his supervisor Madam Cheng Pui Yu (“Ms Cheng”) to sweep the Atrium.

15.  At about 10 a.m. Ms Cheng instructed him and his colleague to clean the glass ceiling of the said pedestrian walkway.

16.  This was approximately 12 to 13 feet above ground level.

17.  They gained access to the ceiling by a ladder.

18.  They used a hose and water and a cleaning agent and after applying the water they used water scrapers to remove the water.

19.  After about half an hours they were joined by Ms Cheng.  She assisted with the work. According to him, she urged them to work more quickly as the time for their lunch break was approaching.

20.  While he was applying the water scraper he slipped.  He thought that this was on account of the fact that the surface of the glass was slippery.

21.  After he fell he became unconscious.

22.  He was taken to the Tuen Mun Hospital where he was admitted for treatment.

23.  In view of the fact that there has been agreement on the quantum of damages which should be payable it is not necessary for me to condescend to the details of the plaintiff’s injuries and the treatment he received.  Suffice it to say that as a consequence of the accident he has been rendered a paraplegic and almost certainly will be wheelchair-bound for the rest of his life.  He is also rendered incontinent both as regards his bowels and his bladder.

24.  The plaintiff was cross-examined at some length by Mr Cheung for D2.  He was not shaken in any significant way on his evidence.

25.  It was however common ground between the parties that there was no safety railing on the roof.  Also no safety belt or harness was provided by either of the defendants and that even if there had been it would have been unavailing as there was no facility for anchoring a safety belt or harness.

26.  In addition to this there was no safety platform of any kind at the time of the accident.

27.  Ms Cheng gave evidence for D1.  She has been an employee of D1 since 2001.  At the time of the accident she was a senior supervisor.

28.  She had been assigned to Kenwood Court in August 2006.  She was in charge of cleaning work.  Two foremen and 60 workers worked to her.

29.  She had interviewed the plaintiff when he had been seeking employment and she had advised him on safety matters.  She had told him that he had to attend a course and obtain a green card.  D1 offered him employment on this basis.  She claimed that in addition to this the plaintiff received in-house training and would be expected to observe the way other workers performed their duties in a safe manner.

30.  When she took up her duties at Kenwood Court she was aware of the situation at the walkway and had formed the opinion that the requirements relating to workers working at a height were not being complied with.

31.  In particular she noted that the contractor previously performing this work had adopted the practice of requiring workers to use a ladder to obtain access to the roof.  She had discussed this matter with colleagues in D1 and they had approached D2 with proposals for providing a safe system of work.  These included the provision of aluminium frames and connection devices to enable safety belts to be used.

32.  They also provided D2 with printed safety manuals and a DVD.

33.  She was aware that D2 had not taken action to implement the proposals which had been made.

34.  Her evidence as to what had transpired on the day of the accident did not deviate much from the evidence given by the plaintiff.

35.  The one area of her evidence which was at variance with the plaintiff’s was that she denied that she had specifically requested the plaintiff to hurry up.  I doubt whether this is a matter of critical importance as there is abundant evidence that the working site was unsafe and even if the plaintiff was not being hurried it is quite likely that he would have slipped as I am satisfied that the surface that he was standing on at that time was slippery.  The important point was that it was an unsafe environment.

36.  Ms Cheng said that she was satisfied that D2 was well aware of the position.

37.  It was her practice each day to attend at D2’s Management Office at Kenwood Court to discuss cleaning work which was to be undertaken that day and D2 would accordingly know exactly what was being done.

38.  She had also attended meetings with representatives of D2 when safety issues had been the subject of discussions.

39.  It was clear from her testimony that she regarded the plaintiff as being a satisfactory and diligent employee who was performing his duties in accordance with the instructions she gave him.

40.  I generally accepted Ms Cheng as a truthful and reliable witness.

41.  Mr Ho Siu Keung (“Mr Ho”) was the witness who gave evidence on behalf of D2.

42.  He had been employed by D2 on and off for some time.

43.  He was assigned to Kenwood Court on 16 December 2006 as the assistant manager for the estate.  He supervised a staff of 16 employees and his duties included safety matters pertaining to the estate.

44.  I found Mr Ho to be less than impressive as a witness.  The main criticism I would make concerning his evidence was that he was definitely evasive and prone to attempt to lay blame on everyone other than himself.

45.  It was clear from his evidence that he had not himself perceived the potential hazard involved by workers cleaning the roof of the walkway when there were virtually no protective measures to prevent the workers falling from a height in excess of 2 metres.

46.  When his attention had been drawn to the problem he had alerted his superiors in D2 to it and had taken part in a meeting which had been convened to consider this problem.

47.  He gave evidence that he was unable himself to give directions to employees of D1 and that if he saw that one of D1’s employees was not performing his duties in an acceptable manner he would take the matter up with the senior personnel of D1 rather than rebuke the employees.

48.  This was contrary to the contract governing the relationship between D1 and D2 from which it could be seen that D2 could clearly give instructions and directions to D1’s employees.

49.  He gave conflicting and unsatisfactory evidence concerning the alleged decision to provide a mobile platform to protect cleaners from falling.

50.  The main criticism in this connection related to the time when this had been mooted.

51.  What is however manifestly clear is that no effective measures were taken by Mr Ho to satisfactorily provide for the safety of the cleaners working on the roof of the walkway prior to 9 March 2007.  This was notwithstanding the fact that a period somewhere in the region of 3 months had elapsed between his assuming his duties and the occurrence of the accident.

52.  It is also the case that I find that sometime in December his attention had been drawn to the potential danger.

53.  Notwithstanding his evidence I have no doubt that it would have been open to him or his superiors to issue an order that workers were not to perform cleaning duties on the roof until or unless adequate remedial measures had been taken.

54.  To be fair it could also be said that D1 was likewise in a similar position in that they could also have issued such an order.

55.  The relationship between D1 or D2 was governed by a contract entered into in March 2006 for a period of 2 years.  Prior to the contract being entered into there had been a tendering procedure and D1 had emerged as the successful bidder.

56.  The scope of D1’s duties were clearly defined and included an undertaking in Clause 13 that all necessary measures would be taken by them to ensure the safety of workers.

57.  The main feature of this contract was the amount of control which could be exercised by D2.  They were able to supervise the cleaning activities and direct the tools or equipment which would be used for cleaning.

58.  It is not altogether surprising that this should be the case as keeping the property in a clean condition was an important part of the duties D2 had to discharge in managing the estate.

59.  Looking at the contract as a whole it could be said that it amounted to a sub-contracting by D2 of cleaning duties to D1 which included a requirement to provide for the safety of employees working at Kenwood Court.

60.  This of course did not absolve D2 who were responsible for the management of the estate from themselves taking sufficient steps to ensure that there should be a safe and secure environment.  Indeed staff was engaged for this very purpose.

61.  S.3 of the Occupiers Liability Ordinance, Cap. 314 provides that the occupier of premises owes the same duty “the common law duty of care” to all visitors save for excepted situations which are not applicable in this case.

62.  S. 3(4) sets out the circumstances when the common law duty of care to a visitor can be discharged.

63.  Hunter J considered this sub-section in Yeung Kam Fuk v. Len Shing Construction Co. Ltd [1986] HKC 160 at 167 :

“ ‘In determining whether the occupier has discharged the common duty of care to a visitor regard is to be had to all the circumstances so that :-(b) where damage is caused to a visitor by a danger due to the faulty execution of any work and construction, maintenance or repair by independent contractor employed by the occupier, the occupier is not to be treated without more (my emphasis) as answerable for the danger if in all the circumstances he has acted reasonably in entrusting the work to an independent contractor, and taking such steps, if any, as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.’

This sub-section shows that neither extreme is true. By employing an independent contractor the occupier does not avoid all liability. He cannot turn round and say this is not my responsibility at all; it is the independent contractors alone. Equally he is not directly responsible for an independent contractor as though that man were his own servant, which had been the suggestion in some dicta in Thomson v. Cremin in the House of Lords 1953 2 ALL E.R. 1185. It shows that the test is whether the contractor himself took reasonable care in the respects identified. This matter came before the Court in England, where the Act is in identical terms, in AMF International v. Magnet Bowling (1968) 2 ALL E.R. 789, where at page 801 one finds this “Counsel for the plaintiff submitted (the counsel concerned was Stocker L.J. as he now is) first, that unless someone who was sued under the Acts an occupier could bring himself within section 3(4)(b) (in our numbers), it was of no avail to him to establish that he had employed a qualified independent contractor and that the latter had been negligent.” That submission was accepted as correct by Mocatta J.. So one looks then to the whole circumstances to see whether the occupier has taken such care as is reasonable.”

64.  These observations are germane to the present case.

65.  As previously stated the attention of D2 had already been drawn to the potential dangers to workmen cleaning the ceiling of the walkway.  They were fully aware of the position and took no effective action either to make good the deficiencies or to order that no workers were to work on the ceiling until it was safe for them to do so.

66.  There is also law on this subject contained in s.7 of the Occupation Safety and Health Ordinance Cap.509 :

“(1) If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that :

(a) the premises; and;

(b) the means of access to and egress from the premises; and

(c) any plant or substances kept at the premises,

are, so far as reasonable, safe and without risks to health.

(2) An occupier who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200000.

(3) An occupier who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $2000000 and to imprisonment for 6 months.”

67.  Once it has been established that there has been a breach of s. 7 and that a plaintiff has sustained injury the burden of proof is then reversed and it becomes incumbent upon a defendant to plead and establish compliance with the proviso “so far as is reasonably practicable”.

68.  In this case this has not been done.

69.  In addition to this detailed provisions are contained in the Construction Sites (Safety) Regulations which are subsidiary legislation to the Factories and Industrial Undertaking Ordinance Cap. 59, which are relevant to this case.

70.  The cleaning work on the walkway comes within the definition in s. 2 of “Construction Work” in the Regulations.

71.  Regulation 38A lays down the requirements for a contractor to provide a safe place of work and more particularly so far as this case is concerned Regulation 38B provides :

“(1) Subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the site from falling from a height of 2 metres or more.

(1A) Subject to paragraphs (2), (3) and (4), any contractor who has direct control over any construction work shall take adequate steps to prevent any person on any place where the construction work is being carried out from falling from a height of 2 metres or more (L.N. 258 of 2003)

(2) For the purpose of paragraphs (1) and (1A), ‘adequate steps’ (足夠的步驟) shall include the provision, use and maintenance of one or more of the following :

(a) working platforms;

(b) guard-rails, barriers, toe-boards and fences;

(c) coverings for openings;

(d) gangways and runs.

(3) Paragraphs(1) and (1A) shall not apply to any opening, corner, break or edge exposed in the course of demolition operations if adequate precautions have been taken to prevent any person from being exposed to the risk of falling therefrom.

(4) Every working platform (other than a suspended working platform), guard-rail, barrier, toe-board, fence, covering for an opening, gangway or run provided for the purpose of paragraphs (1) and (1A) shall comply with the provisions of the Third Schedule applicable to it.

(5) For the avoidance of doubt, it is hereby declared that :

(a) paragraphs (2) and (4) do not prejudice the generality of paragraphs (1) and (1A);

(b) the reference to working platform in paragraph (4) does not prejudice the operation of the provisions of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulation (Cap 58 sub. Leg. AC) in relation to a working platform which is a suspended working platform.”

72.  There can be no doubt whatever that D2 has failed to comply with these requirements and accordingly it is jointly and severally liable for this accident.

73.  The next question to consider is the issue raised by D2 that the plaintiff was contributorily negligent.

74.  The first point to make on this is that D2 has not in its pleadings specifically particularised the negligence complained of.

75.  In his submissions to me Mr Cheung referred to the evidence given by the plaintiff that shortly before the accident Ms Cheng had ordered that the work be expedited.  As a consequence of this he had not moved as slowly as he had on previous occasion.  This had been the partial reason for the accident.

76.  At its best this is speculation.  I do not accept that Ms Cheng did order the work as to be expedited.  When it was put to her in cross-examination she denied it and I regarded her as a truthful and reliable witness.

77.  Be that as it may, even if true it would fall far short of constituting contributory negligence.

78.  Mr Lin for the plaintiff cited a number of cases on the subject of contributory negligence.  Naturally all of these dealt with different factual matrixes.  However what is abundantly clear is that if the worker is performing his duties in the way he is instructed to do he will not be held to be contributorily negligent.

79.  Here there was no suggestion of any misconduct disobedience or impropriety on the plaintiff’s part.

80.  Indeed the reverse is true.  Ms Cheng described him as being a diligent worker and there was no suggestion that he had not been following the instructions he had received.

81.  The overwhelming reason for this accident was that the plaintiff was being required to work in an unsafe place of work and no blame whatever attaches to him.

82.  D2’s claim that the plaintiff contributed to this accident is dismissed.

83.  The final matter that has to be attended to is the apportionment of liability between D1 and D2.

84.  In this judgment I have endeavoured to set out in some detail the overall circumstances of this accident and comment upon what went wrong and who was responsible for what occurred.

85.  It is plain that both D1 and D2 were failing in their duties and responsibilities to a serious extent and that it was on account of this that the accident occurred.

86.  While both parties realised that it was dangerous for workers to work on the ceiling without safe guards being provided in some form neither of them took prompt action to remedy the defects or to issue instructions that no worker was to work on the ceiling until the situation had been rectified.

87.  In addition to this I have formed the view that both defendants equally owed a responsibility for ensuring that the workplace was safe.

88.  After careful consideration I have come to the conclusion that the fairest result is to hold that D1 and D2 are equally to blame for this accident.

89.  Accordingly I apportion the liability between them 50/50.

90.  As a consequence of this as between the defendants each is liable to make payment of $3.4 million.

91.  However D1 is entitled to deduct the payments or payment it made to the plaintiff in pursuance of the Employees Compensation Ordinance.

92.  I make an order nisi that the plaintiff will have his costs which will be payable by the defendants.  The costs will be taxed in accordance with the Legal Aid Regulations.