HCPI 1053/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1053 OF 2006

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JUDGMENT ON APPORTIONMENT

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Introduction

1.  The deceased (Mr Lai Wing Kee, 黎榮基) (“Mr Lai”), was lifting a forklift truck onto a lorry at about 3:00 p.m. on 27 July 2004 on the pavement outside 35-37 Cha Kwo Ling Road.  Due to the unsafe method of lifting and other failures, the truck unfortunately fell and crushed the deceased to death.

2.  The plaintiff (Chung Yuen Yee, 鍾婉儀) was the wife of the deceased.  She is the administratrix of the deceased.  They have a son and a daughter age 20 and 23 at the time of the accident.  The plaintiff sued the defendants in negligence and/or breach of statutory duties for herself and on behalf of her children.  Judgment on liability was handed down on 5 August 2010.  All 4 defendants were found to be liable to the plaintiff.

The 4 defendants

3.  All 4 defendants belong to the same group of companies (“the Sam Woo Group”).  The 1^st, 3^rd and 4^th defendants (“D1”, “D3”, and “D4”) are represented by Ms Queenie Ng, while the 2^nd defendant (“D2”) is represented by Ms Christina Lee. The plaintiff is represented by Mr Andy Hung.

4.  The issue of apportionment was just as hotly contested as the issue of liability. This case therefore is not just a battle between the plaintiff and the defendants as a whole, but also a contest among the defendants in that the 1^st, 3^rd and 4^th defendants are on one side whereas the 2^nd defendant is on the other side.

The remaining issue

5.  In the judgment on liability handed down on 5 August 2010, I gave my reasons for holding all 4 defendants liable.  I reserved my judgment on apportionment as between the defendants.  The following findings of facts are material to the issue of apportionment and they are reproduced below.

The accident

6.  On 27 July 2004, D4 through its employee, Mr Wan (a supervisor) asked the deceased, Mr Lai, to carry out a lifting operation of a forklift truck.  Mr Lau Chun Kwok (“Mr Lau”) (a director of all 4 defendants) said in his statement that Mr Lai and Mr Lam (the crane operator and driver) were to transport the forklift truck owned by D2 for maintenance so that it can be used by D3.  Mr Lam was employed by D3 and the crane truck was provided by D3 as it was driven by Mr Lam but owned by D2. 

7.  In this operation, Mr Lai took two metal chains, which are for lashing purpose but not lifting purpose, from the crane truck and rigged the forklift truck with the metal chains.  The forklift truck was lifted from the ground and became unstable.  Mr Lai went under the forklift truck to try stabilising it.  One of the chains (referred as Chain A by the experts and is found to be provided by D3) snapped and the forklift truck fell.  The forklift truck weighed over four tones and Mr Lai was crushed by its sheer mass to death.

8.  After considering all the evidence before me, I come to the conclusion that the snapping of Chain A was probably partly caused by the inherent defect of the chain and partly by the improper rigging employed by the deceased.  There is no evidence that one of the causes was the predominant cause or the significant cause.  I draw the inference that both causes equally contributed to the snapping of Chain A.

The negligence of each defendant

9.  D1 and D2 were the general employers of Mr Lai.  D4 was the employer pro hac vice.  They had a duty to exercise due care and skill for the safety of Mr Lai by providing him with suitable equipment and a safe system of work.  By failing to provide a safe system of work, appropriate lifting gears, and any kind of supervision, they had utterly failed to fulfil this duty.

10.  D3 was liable for providing the defective chain (Chain A) that was used by Mr Lai in rigging the truck.

Apportionment as between the defendants

11.  For the purpose of apportionment, the negligence of the defendants can be broadly classified into two categories: the first categoryis the failure to provide supervision and safe system of work, the second category is the provision of the defective chain.

12.  The two categories of negligence satisfy the “but for” tests, i.e.: the accident could not have happened if either category of negligence was missing.  However, the first category is the predominant cause vis-à-vis the second category because if there had been proper supervision the supervisor would have identified the chains as being of an unsuitable type.  The supervisor would also recognise the improper rigging method employed by Mr Lai.  Therefore it may fairly be said that the lack of supervision was the root cause of the accident.

13.  The relative causative effect of the two categories of negligence is 80% for the first category and 20% for the second category.  The liability of D3 is thus 20% under this formula.

14.  As between D1, D2 and D4, who was in the best position to provide supervision? The findings of facts above overwhelmingly suggest that D4 was.  D4, through its employee Mr Wan ordered Mr Lai to perform the lifting operation and there is no evidence that D1 or D2 was consulted prior to the operation. Therefore it appears that only D4 had the details of the lifting operation such as the weight of the load, the equipment to be used and the number of workers that could assist in the lifting operation.  Moreover Mr Wan, who clearly held himself as a superior to Mr Lai, was close to the site of lifting operation at the material time.  Instead of overseeing the lifting operation, Mr Wan chose to leave Mr Lai and Mr Lam alone for their operation and returned only until it was too late.

15.  D4 had all the necessary knowledge and a suitable person to provide supervision yet it chose not to.  The failure of D4 in this regard was the primary cause of the accident.  The negligence of D1 and D2 is relatively minimal, as they had not been informed of the details of the lifting operation and they could only suspect that Mr Lai was not properly supervised from their previous dealings with D4.

16.  For the aforesaid reason, I consider D1 and D2 should each be 10% responsible while D4 should be 60% responsible.  D3 is 20% responsible for providing the defective chain to the deceased.

Conclusion

17.  The apportionment as between D1, D2, D3 and D4 is 10%, 10%, 20% and 60%, respectively.  As I have held that Mr Lai was 20% contributorily negligent, the respective amount which each of the defendants should be responsible is :

Agreed damages	$2,064,000
D1 liability (10%)	$206,400
D2 liability (10%)	$206,400
D3 liability (20%)	$412,800
D4 liability (60%)	$1,238,400

18.  This apportionment is only applicable among the 4 defendants.  They are, nonetheless, jointly and severally liable vis-à-vis the plaintiff.

Costs

19.  The 1^st and 2^nd defendants have substantially won the apportionment vis-à-vis the 3^rd and 4^th defendants. There shall be an order nisi of costs that the 1^st and 2^nd defendants shall be entitled to 90% of their costs in the Action and the apportionment of liability against the 3^rd and 4^th defendants.  The liability for costs of the 3^rd and 4^th defendants vis-à-vis the 1^st and 2^nd defendants shall be in the ratio of 25% to 75%.