CHEN QINGQIANG v. CHAN YAT HONG t/a HOI YAT CONSTRUCTION ENGINEERING

HCPI 238/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 238 OF 2015

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J U D G M E N T

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1.  This case arises out of a workplace accident suffered by the plaintiff on 25 January 2013 in the course of this employment with the 1^st defendant. At that time the 1^st defendant was a subcontractor engaged by the 2^nd defendant and both defendants were carrying out renovation works at a building in Sham Shui Po known as King Yip Building.

2.  The plaintiff was employed as a general worker and, on the day of the accident, his work involved the delivery of buckets of cement render to workers engaged in repair works to the external walls of the building.  The plaintiff, along with other workers was working at the roof level, mixing cement render at one part of the roof, and then delivering this, bucket by bucket, to workers at the external wall on the other side of the building.  This necessarily involved crossing from one side of the building to the other at the roof level.  An allegedly illegal structure had been erected for use as a dwelling (“the roof dwelling”), and this occupied most of the roof space of the building including the part of the roof between where the cement render was being mixed, and where work to the walls was taking place.

3.  The route adopted by the plaintiff to perform this task involved him in crossing the roof of the roof dwelling.  While he was doing so the plaintiff accidentally broke through the roof, and fell approximately 2.5 metres to the floor of the roof dwelling.  The plaintiff suffered injury, to his left foot and ankle, and his lower back.

4.  Following the accident the plaintiff brought a claim for compensation in respect of his personal injuries against the 1^st and 2^nd defendants (“the defendants”).  The details of his claim were contained in a Statement of Claim dated 9 June 2015.  The defendants denied liability, for reasons set out in their Defence dated 26 June 2015.

5.  The defendants not only denied liability, but were also of the view that there were others potentially responsible for the accident suffered by the plaintiff, and accordingly, the defendants issued a Third Party Notice to the 1^st and 2^nd Third Party (“the Third Parties”) by which an indemnity against the plaintiff’s claims was sought or, in the alternative,a contribution under the Civil Liability (Contribution) Ordinance, Cap 377.  The hearing before me on 4 October 2016 was in respect of the claims against the Third Parties.

6.  The action between the plaintiff and the defendants was compromised and an Order dated 26 July 2016 was made by Bharwarney J which recorded that judgment was to be entered in favour of the plaintiff in the sum of HK$960,000.00 inclusive of interest.

7.  The Third Parties have taken no part in the proceedings.  An Order was made on 5 April 2016 giving leave to the Third Parties to file and serve a Defence, and giving leave to appear at the trial of the action.  The Third Parties neither filed a Defence nor appeared at the trial.  In accordance with Order 16, rule 5 of the Rules of the High Court the Third Parties are deemed to have admitted the claims made against them in the Third Party Statement of Claim, which was in this case, the Third Party Notice.

8.  The complaints contained in the Third Party Notice which are thus deemed to be admitted are as follows:

“(a) Erecting the allegedly illegal structure with roof structure inadequate to withstand the reasonable weight of people having to access thereon;

(b) Erecting the allegedly illegal structure, thereby blocking access to one of the edges of the Site for the Plaintiff to perform his work, other than by climbing onto the roof of the Structure;

(c) Failing to give any or any adequate warnings to the Plaintiff of the danger of working / walking on the roof of the Structure which was made of Asbestos Tiles that could not support weight;

(d) Permitting, allowing and acquiescing the Plaintiff to work and / orto have repeated access and egress to the said asbestos tiled roof;

(e) Exposing the Plaintiff to a risk of injury to which the 1^st and 2^nd Third Parties knew or ought to have known;

(f) Failing to discharge the common duty of care; and

(g) The 1^st and/or the 2^nd Third Party, being the occupier of the roofof the Illegal Structure for the purpose of the Occupiers Liability Ordinance, Cap.314, failed to fulfill the common duty of care imposed by section 3 therein.

9.  There are, in effect, two ‘operative’ parts to this, one being the erection of the structure covering the roof but not, itself, being weight bearing, and the other being the failure to warn the plaintiff that the structure was insufficiently robust for him to walk on.

10.  As regards the significance of the former allegation, the plaintiff’s case was that he had no choice but to cross the roof of the illegal structure in delivering the cement render to his colleagues because there was no alternativeroute. It was the defendants’ pleaded case that there was an alternative access via the scaffold on the external face of the building.  This conflict has not been resolved because the action as between the plaintiff and the defendants was compromised.

11.  The problem with crossing over the roof of the roof dwelling is that it seems clear that it was not designed or built to allow such a thing.  The roof was a steel structure covered with asbestos sheets (described as “tiles” in the evidence).  The asbestos sheets could not bear the weight of a person, and the plaintiff says in his witness statement that this was known to all of the workers.  This was why, he says, wooden boards were laid over the asbestos by somebody, to make it safe to walk across.

12.  The other ‘limb’ of the defendants’ complaints is that the Third Parties gave no warning as to the unsuitability of the roof for foot traffic.  The evidence shows that no such warning was given although it is largely a matter of inference rather than direct evidence that the Third Parties were aware of the way in which the roof of the illegal structure was being used.  The defendants contend that the Third Parties failed to comply with the common duty of care and the duty of care owed by occupiers under section 3 of the Occupier’s Liability Ordinance.

Contribution

13.  The entitlement to contribution is set out in the Civil Liability Contribution Ordinance (“the Ordinance”) as follows:

“(1) Subject to subsection (3), in any proceedings for contribution under section 3 the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

14.  Mr Gidwani, counsel for the defendants, reminds me of the judgment ofBharwarney J. in Liao Kuo Chun v Win Capital (HK) Ltd to the effect that the assessment of the extent of any contribution to be made under the Ordinance requires an assessment of“blameworthiness as well as causative potency”.  The learned judge quoted from Hobhouse LJ in Downs v Chappel [1997] 1 WLR 426 at 445 that:

“It is just and equitable to take into account both the seriousness of the respective parties faults and their causative relevance. A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact.”

Assessment

15.  Mr Gidwani advocated, in his written submission, an allocation of 80% responsibility to the Third Parties, a figure he arrives at by comparison with the allocation of contribution made in Tse Lai Yin v The Incorporated Owners of Albert House (HCPI 829/1997, 23 December 1999).  For my own part I do not find the decision in Albert House to be of particular assistance, at least in regard to the apportionment of responsibility, not least because of the very different factual circumstances.  Mr Gidwani acknowledged in his oral submission that this was perhaps an “aggressive”assessment, and I agree.

16.  The Third Parties (or perhaps previous owners of the roof dwelling) have blocked the original roof surface by the construction of the roof dwelling, and have done so with a structure that is less robust than the original roof.  Doing so has made working on the roof necessarily more difficult, and probably more hazardous.  However, alternative means of access from one part of the roof to another could have been arranged, avoiding the roof of the roof dwelling, and, according to the defendants’ pleading, was arranged.

17.  I accept that the Third parties gave no warning to the plaintiff as to the danger of walking on the asbestos roof, but, on his own evidence none was necessary and so this cannot be said to have been causative of the accident.  Moreover it would be somewhat unusual for an occupier of premises such as these to advise a construction worker such as the plaintiff of the dangers of working in the way that he did in this case. More commonly, in my view, the occupier would expect (and be entitled to expect) the worker to understand the danger inherent in stepping on a roof such as the roof of the roof premises as thisplaintiff apparently did understand.  The Third Parties owed a duty to the plaintiff,primarily being the common duty of care prescribed by the Occupiers Liability Ordinance, but the Occupiers Liability Ordinance envisages (at section 3(3)(b) persons in the position of the plaintiff being aware of the more obvious dangers inherent in their work.

18.  By comparison to the position of the Third Parties, employers and contractors such as the defendants here, have non delegable and relatively onerous obligations as to the safety of their employees and workers.  The plaintiff’s pleaded case set out the various breaches of such obligations alleged against the defendants.  In my judgment the defendants are both far more blameworthy than the Third Parties, and their breaches considerably more causative of the plaintiff’s injuries.

19.  The Third Parties have, in effect, admitted liability, but the question remains as to the extent to which the admitted breaches could be said to have contributed to the damage.  Having regard to all of the circumstances I cannot conclude that the Third Parties should be liable to contribute to the plaintiff’s damages award.  The roof dwelling seems to constitute an illegal structure, and did represent an obstacle to the type of movement of people on the roof as is sometimes necessary for maintenance or repair work.  The roof of the illegal premises was itself unsafe for foot traffic.  But the obstacle, and the hazard it contained was an obvious one, and could have been overcome by the defendants. In particular, the unsafe nature of the asbestos roof as a means of access was evident.

20.  Having regard to the above factors I do not think it can be said that the defaults of the Third Parties was, factually, causative of the plaintiff’s injuries, and I find no liability on their part to contribute to the damage suffered.

Costs

21.  The defendants have asked for costs, but in the circumstances it appears to me that the only appropriate order is that I should make no order for costs.

22.  I indicated at the hearing that I would deal with costs on an order nisi basis, and accordingly the order which I will make subject to submissions from the parties is, as above, that there be no order as to costs.