YAU CHI HUNG v. MAK SIU SHING t/a WONG HING DECORATION CO. and Others

1994, P.I. No. 170

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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1. Mr Yau, the plaintiff, worked on the construction of the Cultural Centre in Tsimshatsui. He was a decoration worker on the ceiling.

2. In June 1990 Mr Yau fell off a ladder at work and fractured his ankle. This has now healed but the accident has left him with a disability and a limp which has impaired his employment prospects.

3. He duly received the usual employees' compensation. However he now wishes damages in addition and sues his employers for negligence and breaches of duty. He was employed by the 1st defendant (D1) who was a subcontractor of the 2nd defendant (D2) which company in turn was a subcontractor of the 3rd defendant (D3). It is accepted that liability, if any, would be joint and several as between the three defendants.

4. On the day of the accident he was fitting screws to the ceiling. He did this work from a platform about 5 feet square which stood some 10 feet above the floor. This platform was supported by a structure which itself contained a fixed ladder for its ascent on one side. However, as that ladder was vertical, some workers preferred to ascend to the platform by a separate stepladder placed alongside the platform structure. It was entirely up to the worker how he chose to go up to his platform. It is accepted that both the platform and the stepladder were appropriate, secure and in good order.

5. Mr Yau chose the adjacent stepladder rather than the fixed vertical ladder. The problem arises from how he used that ladder. There were two necessary pieces of equipment he had to get up to the platform - an electric drill weighing about 8 - 10 pounds and a container of screws weighing about 2 - 3 pounds. A man could easily carry both items about on the ground.

6. It is accepted that a man can reasonably safely ascend a ladder carrying something in one hand provided he leaves the other hand free to steady himself. At the same time it is accepted it would be sheer folly for a man to climb a ladder carrying something in both hands without gripping the ladder at all.

7. Unfortunately it seems that in effect it is just what Mr Yau did. No one else saw exactly what happened, this evidence came from him alone.

8. He had fashioned a make-shift container for his screws by cutting the top off a plastic bottle. He pierced two opposite holes near its top and looped a wire through those holes to form a handle. In effect he made himself a little light bucket. He preferred this simple container to the various plastic buckets supplied for use at the site.

9. He says he set off up the ladder with the drill in his right hand and his left little fingers loosely hooking the handle of the screw container. That left only the remaining few fingers of his left hand to grip the ladder. They were not adequate, thus he fell.

10. It is submitted on behalf of Mr Yau that he was somehow pressured into trying to go up the ladder in this way. There should have been someone assigned to help by passing tools up to him.

11. I could perhaps understand this if he had needed a constant replenishment of, say, his screws. But he admits his screw supply was all he needed for a full shift, either morning or afternoon as the case might be. He had ample screws for a full half-day's work. He had no need of an assistant to pass things, the assistant would have nothing to do.

12. There were the following possibilities-

1. He could have gone up the ladder with the drill only and returned for the screws.

2. He could have put both drill and screws in one container and pulled both up behind him with a piece of cord.

3. He could have fastened his screw container to his waist or hung it about his neck. (He admitted he had done this in the past).

13. Any one of these courses would have added seconds, perhaps a minute or so, to his working day. There were assorted buckets, bags and cords freely availabe for just such purposes.

14. Mr Mak (D1) said he was not present when Mr Yau fell but he often visited the site and was familiar with it. He would have used method (2), i.e. pull his tools up behind him with a cord, but any of the three methods were reasonable.

15. Mr Fung, the site foreman of D2, gave evidence likewise. Neither would have reprimanded Mr Yau for taking his tools up one by one, i.e. going up and down the ladder twice. Both would have disapproved of anyone ascending a ladder with both hands occupied had they noticed it. Both impressed me as sensible, safety-conscious gentlemen.

16. Then it is suggested that Mr Yau should have been given more instruction and warnings on how to use a ladder properly, the ceilings being a little higher than what he was accustomed to, that his ladder climbing technique should have been better monitored.

17. I find this surprising in the light of Mr Yau's evidence that he was regarded as a skilled and experienced decoration worker with more than 10 years' experience (he was termed a "master"), and in fact was paid extra ($380 instead of $300 daily) for that very reason. He should have no need of instruction and supervision on something so elementary as the use of a ladder.

18. The defendants' work place, facilities and system of work all appear to me to have been unexceptional. I am at a loss to understand Mr Yau's insistence that his attempted ascent of the ladder with both hands occupied was the only course open to him. I do not find any foundation for his assertion he would have been dismissed if he did it any other way. I do not detect on the evidence any pressure upon him to hurry up and save a mere minute or so by doing something dangerous.

19. It appears that on the spur of the moment Mr Yau himself was tempted to take a shortcut. I regret I find that the substantial cause of his fall was his own faulty technique in using the ladder.

20. The plaintiff's claim against the defendants is dismissed. There will be an order nisi for costs in favour of the defendants with certificate for counsel. Leave reserved to address me on any consequential matters.

(W.A. Wilson)

Deputy Judge of the High Court