LAM TAK LEE v. LEUNG KWOK WING t/a SKY SERVICE

1986 No. A3971

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 1st May 1984, the plaintiff was employed by the defendant to work at No. 41 Moorsom Road, Jardines' Lookout, Hong Kong. The defendant was the contractor responsible for the construction work being carried out at the said house involving, inter alia, the construction of an additional room on a flat roof. While working on the form-work for a concrete pillar on the parapet wall of the flat roof, a co-worker lost his. balance and fell from the parapet wall bringing the plaintiff down with him. As a result, the plaintiff sustained severe injuries and took out these proceedings against the defendant for damages for negligence, breach of statutory duty and/or contract of employment. Reliance is also placed on the maxim of res ipsa loquitur.

2. The trial proceeded in the absence of the defendant who, I was given to understand, has migrated to Canada already. The plaintiff gave evidence himself and called two further witnesses. In view of the late hours when evidence was completed, counsel for the plaintiff was given permission to submit a written submission within a reasonable time. The written submission was received by the Court on 8th April 1992.

3. The plaintiff's case, as pleaded, is "the plaintiff was, in the course of his said employment, engaged in prefabricating cement on the parapet wall on the roof of the said building, and was standing with one leg on the parapet wall and the other leg touching the platform on the said scaffold referred to in paragraph 3(b) above, when the said platform suddenly collapsed, in consequence whereof the plaintiff fell to the ground, as a result of which he sustained injuries and suffered loss and damage." However, in his oral testimony, the plaintiff said he was working at that time with one of his feet on the parapet wall whilst the other was on the scaffolds. He further insisted, despite repeated clarification by the Court, that it was the scaffolds rather than the platform that had collapsed causing him to fall to the ground. The plaintiff was at that time working on the flat roof of the house where an additional room was to be constructed. The flat roof was surrounded on three sides by parapet walls and backed by the wall of the building forming the higher floors. Three concrete pillars were to be erected on top of the front parapet wall, presumably to support the roof to be added. The three concrete pillars were to be spaced out on the parapet wall with one at each end, and the remaining one in the middle. For the erection of these cement pillars, wooden form-works had to be constructed. At the time of the accident, all three form-works had already been put up. The job which the plaintiff and his other co-worker was doing at the material time was to plug the gaps and holes in the form-work with small wooden planks to prevent the leakage of concrete when they were being poured the next day. Outside the front parapet wall were constructed bamboo scaffolds at a distance of about twenty-eight inches from the side of the building. About two feet below the top of this 'front parapet wall, and in between the side of the building and the scaffolds, was constructed a wooden platform running along the whole length of the front parapet wall. It is obvious that this platform was never intended to be a working platform on which workers could stand and work. This is because the platform was made of thin wooden planks which could hardly support any substantial weight. Furthermore, sheets were being hung below the platform. It would appear that the purpose of putting up the wooden platform and hanging the sheets was to prevent debris from falling down that side of the building where the entrance was. The said purpose must also be apparent to the plaintiff for the evidence disclosed that he knew the platform was made of thin wooden planks and that he was in fact using the scaffolds for support, and not the platform, before the accident. If it was really necessary for him to go beyond the parapet wall to perform his work as he suggested, it would have been more convenient for him to stand on the platform to do so. But, in fact, he did not. I am satisfied that the plaintiff knew that the platform was never intended to be a working platform. Since the gap between the scaffolds and the side of the building was only twenty-eight inches, and the scaffolds could be used for support if the workers need to go beyond the parapet wall to work on the concrete pillars, I do not find the failure of the defendant to provide a strong working platform to be negligent. In view of the known intended purpose of the platform, I also do not find the failure of the platform to withstand the force of the fall of the two workers to be evidence of any negligence on the part of the defendant. There can also be no breach of any statutory duty in respect of the wooden platform, as Regulation 38B of the Construction Sites (Safety) Regulations, Cap 59 does not require the erection of any such working platform if scaffolds can be sufficient. Furthermore, in view of the height and width of the parapet wall I am not satisfied that the plaintiff could not have been able to perform his work standing behind the parapet wall. The workers had already managed to complete their work in respect of the form-works at both ends of the front parapet wall. And, there were no scaffolds erected along the right or left parapet wall. Thus, apparently the workers were able to perform their work on the sides of the form-works flushing the left and right parapet wall without the assistance of any scaffolds. They must have stood either on or behind the left and right parapet wall to do this particular piece of job without the necessity of going beyond the parapet wall to achieve their purpose. The plaintiff himself also admitted in paragraph 18 of the statutory declaration he made to the factory inspector (to be found at p.21 of the document bundle) that "our work did not require (us) to stand on the scaffold". In the premises, I am not satisfied that it was necessary for the workers to go beyond the front parapet wall to perform their work at the time of the accident. It might have been more convenient for them to do so, but it was not necessary for them to do so. The statutory duty to provide scaffolds or other form of support under Regulation 38B only arises if "the work cannot safely be done on or from the ground or from part of a building or other permanent structure". By reason of matters aforesaid, I found there is no substance in the complaint made in respect of the platform.

4. I also do not find the plaintiff's complaint of a collapsed scaffolds to be of substance. Firstly, there was no mention of any collapsed scaffolds in paragraph 5 of the Amended Statement of Claim when describing the occurrence of the accident. The only complaint there was a collapsed platform. However, allegations of "defective scaffolds" can be found in the particulars of allegations of negligence and/or a breach of duty and/or a breach of implied terms of contract and/or statutory duty. Secondly, in the accident report prepared by the factory inspector some three months after the accident, only a collapsed platform was mentioned. There was no mention of any collapsed scaffolds either in that accident report or in the statutory declarations made by the plaintiff to the Labour Department. I do not accept that an important matter such as the collapse of the whole scaffolds as alleged by the plaintiff in his oral testimony could have escaped mention in the plaintiff's statutory declaration or in the accident report. I do not accept his evidence that the scaffolds had collapsed. I am satisfied that the plaintiff and his co-worker fell through the wooden platform onto the ground without also bringing down the scaffolds. In the premises, I found no merits in any complaint made in respect of the scaffolds.

5. I should also mention that I do not accept the plaintiff's insinuation that he gave his statements to the Labour Department in a manner as instructed by his employer because he was promised compensation and loan. He must have realised at that time that he was making statutory declarations, and the probable consequence for telling untruth.

6. In view of the provision of the scaffolds, and there being no evidence to suggest that the scaffolds were not adequate for support, there is no substance in the other allegations forming the particulars of negligence and/or breaches of duty and/or contract and/or statutory duty, save in respect of the provision of safety belts. The Amended Statement of Claim contains no specific complaint of a failure to provide safety belts. This is not surprising as at paragraph 19 of the statutory declaration of the plaintiff (to be found at p.22 of the documents bundle), the plaintiff said "All along, nobody asked me to use safety belts but I knew that there were safety belts at the site. We all used safety belts at our initiative." The pleadings also do not contain any complaint of a failure to supervise the plaintiff in the use of safety belts. However, the plaintiff in his oral testimony complained that there were no safety belts provided by the defendant. I do not accept his oral testimony in this respect. I am satisfied that it was as he stated in the statutory declaration that safety belts were provided at the site and that they used their own initiative in deciding whether to use them or not. On the issue of supervision by the defendant, the plaintiff initially said "Leong Kwok Wing already told me how to do the job safely." Then upon being urged by counsel he corrected himself immediately and said "he didn't tell me anything about safety measures." That sums up his evidence on the issue of the defendant's supervision. I do not find this to be satisfactory evidence of lack of supervision. The plaintiff also complained that even if safety belts were provided there was nowhere to hook the safety belts. I do not accept his evidence on that as the safety belts can easily be hooked onto the scaffolds if not also the form-work.

7. Counsel for the plaintiff tried to attribute the inconsistencies and inadequacies in the plaintiff's evidence to his lack of education or age. I do not accept that at all. The plaintiff appeared to me to know exactly what he was saying. He was simply trying to put as much fault on the part of the defendant as possible. He was not truthful to me when he complained of the collapse of the , scaffolds as well as the non-provision of the safety belts. He was not frank with me when he said it was necessary for him to go outside the parapet wall in order to perform his work. He said after the accident no one wanted to give him employment because he can only do odd job works. It transpired that he only made limited attempts to find work through his friends. He said he had registered with the Labour Department twice but had not been offered work at all because there was no work suitable for him. It was only when I expressed surprise at his inability to find jobs as watchman or caretaker through the Labour Department that the truth came out of him. He then admitted that he did not take up jobs as watchman or caretaker because the salary was too low, paying only $2,000 a month. I do not find the plaintiff to be a .reliable witness at all. His eagerness to attribute fault to the defendant in areas where none could have existed makes him a very dangerous witness to rely on.

8. The plaintiff was knocked over by his co-worker and fell from a side of the house where scaffolds were provided. Furthermore the defendant did provide safety belts for use by the workers at the site. The defendant had instructed the workers as to how they could go about their job safely. There could not have been any duty to provide a platform strong enough to withstand the fall of the workers in the circumstances of the present case when scaffolds and safety belts were already provided. And the gap between the side of the building and the scaffolds was only twenty-eight inches. The plaintiff failed to use the safety belts without any reasonable excuse. I am not satisfied that the plaintiff has made out a case on any of his accusations against the defendant. In the premises, the plaintiff's action is dismissed with costs.

9. Dated the 23rd day of April 1992.