LI MOON CHAI v. LEUNG SHU MAN AND ANOTHER

HCPI 48/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 48 OF 2007

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REASONS FOR JUDGMENT

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1.  I have already given my judgment on the plaintiff’s claim on Friday, 5 September 2008.  I now give my reasons for my judgment.  

BACKGROUND

2.  The plaintiff suffered an accident at work on 29 December 2004.  He was a general construction labourer employed by the 1st defendant.  In the early morning of 29 December, the 1st defendant sent him to work at the 2nd defendant’s warehouse in Fotan, New Territories.  The 2nd defendant owned the warehouse.

3.  The plaintiff was sent to the warehouse to stack up some mast-sections.  These sections were rectangular steel frames.  There were matching protrusions and indents at the top and the base so that they could be mounted one on top of another to form a mast or a steel tower.  The mast or tower could be up to 200m in height.  Working platforms could be affixed on the mast for workers to work on. 

4.  The dimensions of the sections were 0.6m in length and width and 1.25m in length.  Each section was constructed with steel pipes at the 12 edges of the rectangle.  The four long edges of 1.25m in length were constructed with square steel pipes of 5cm in width.  There were also cylindrical diagonal pipes that gave additional strength to the sections.  The sections were otherwise empty and without any cover on the sides.  They were just steel frames.  Each of the sections weighed 60 kgs. 

5.  The 2nd defendant owned the sections.  The 1st defendant was the contractor engaged by the 2nd defendant to deliver the sections from the warehouse to the work site, to build a mast with the sections, to dismantle the mast after use, to deliver the sections back to the warehouse and to stack them up there for storage. 

6.  The sections that were handled by the plaintiff had in fact been used in Central for building a tower with working platform.  The structure after use had been dismantled into the sections in the night of 28 December.  The sections were carried by a truck to the warehouse in the early morning of 29 December.  The plaintiff was one of the 1st Defendant’s employees who were to stack up the sections into a pile.  He was injured in the course of the work.  He sued the 1st and 2nd defendants for negligence, breach of statutory duty and breach of the common duty of care imposed by the Occupiers Liability Ordinance.  He also sued the 1st defendant for breach of the implied terms of the employment contract he had with the 1st defendant.

7.  Both defendants denied liability.  They further pleaded contributory negligence against the plaintiff.  They also have contribution proceedings against each other.

LIABILLTY

The Plaintiff’s evidence

8.  The plaintiff said he was assigned by the 2nd named 1st defendant, Wong Keng Ming to go and stack up the sections.  The 1st defendant provided safety belts and safety helmets for use at the working site at Central.  When the plaintiff was told for the first time on 27 December to go to the 2nd defendant’s warehouse to stack up the sections, he asked Wong whether he had to bring the safety belts and helmets to the warehouse.  Wong told him it was not necessary as the warehouse was in the New Territories and no government officer would go there to inspect them.  Furthermore, if the safety belts and helmets were taken to the warehouse, there was the risk that the plaintiff might forget to bring them back to Central.  That would hamper the 1st defendant’s work at Central.

9.  The plaintiff then went with two co-workers Mak Shu Ming and Tang Sai Lok to the warehouse.  They followed the 2nd defendant’s foreman Yung Tak Ming.  They travelled in the truck that arrived at the warehouse at about 4:30 a.m.  They were told by Yung to start working right away.  Tang Sai Lok worked on the truck.  He was to tie up the sections into bundles of four sections each.  The bundles were then hoisted from the truck to the stacking location by a crane jib operated by the truck driver.  The plaintiff and Mak Shu Ming were responsible for receiving and untying the bundles and stacking the sections into a stack. 

10.  The stack had a number of layers.  For the first layer, the sections were placed vertically.  For the second layer and above, they were placed horizontally.  They were not tied up with one another.  They simply rested on the ground or on other sections by their own weight.  The first, second and third layers had their edges in alignment.  The fourth layer covered a small area as its edges recessed from the edges of the third layer.  The edges of the fifth layer aligned with those of the fourth layer.  The area covered by the first layer was about 7m x 7m.  The area covered by the fourth layer was reduced to 6m x 6m. 

11.  The plaintiff had never been trained on how to stack up the sections and he had no experience in doing it except that he had on 27  December taken part in stacking the first layer.  The 2nd defendant’s foreman Yung did not teach him how to do it.  Yung just told him where to build the stack. 

12.  In the morning of 29 December, the plaintiff and Mak did not have to start from scratch.  There was already a stack partially built to the third layer.  It was built by some other employees of the 1st defendant previously.  The plaintiff had also taken part in building the first layer on 27 December.  In the morning of 29 December, the plaintiff and Mak were to continue building upwards. 

13.  When the plaintiff was working on the stack, he had to walk on the edges of the sections.  The foothold was about 5cm wide.  There was no working platform for his use.  There was also no gangway for him to walk on.  He also had no safety device or anything to secure or protect him from falling.  Even if he had a safety belt, there was no anchorage for the belt to be secured.  Some of the pipes also had lubricating oil on them.  The oil was used in the building and dismantling of a steel tower. 

14.  When the plaintiff and Mak were proceeding to stack up the sixth layer, Yung told them to stack some more sections at the recess areas of the fourth and fifth layers so as to make better use of the space.  When the plaintiff was standing at the edge of the fifth layer and working on the fourth, fifth and sixth layers, the section on which he stood suddenly fell and he fell with it to the ground.  He said in cross-examination that the section fell because there was lubricating oil on it.  He fell from about 3.6m and landed with his left hand on the ground first.  He felt painful in the left elbow and could not move his left hand.  The time was about 6:05 a.m.  He was taken to the Prince of Wales Hospital (“PWH”) for treatment.

The 1st Defendant did not call any evidence

15.  The 1st defendant had filed several witness statements by proposed witnesses.  But it did not call any of them to give evidence.  There is therefore no evidence form the 1st defendant.

The 2nd Defendant’s evidence

16.  The 2nd defendant called its former site supervisor Yung Tak Ming and the plaintiff’s former co-worker Mak Shu Ming.  Yung said he was a qualified technician and trainer in the building and dismantling of masts or steel towers built with the sections.  He said because of their weight and friction, the sections need not be tied up or locked together.  They could be stacked up to five or six layers and were very stable.  The 1st defendant had been employed by the 2nd defendant to do this job since 1997 and had been using that method all along. 

17.  In the early morning of 29 December, Yung supervised the 1st defendant’s workers in loading the sections onto the 1st defendant’s truck in Central.  He and the 1st defendant’s workers then drove to the 2nd defendant’s warehouse where the sections were to be stored in a stack.  When the truck arrived at the warehouse, he told the three workers of the 1st defendant where to build the stack.  He did not provide them with any further instruction, supervision or assistance as they were very familiar with the operation procedure.  He had often seen the plaintiff working for the 1st defendant at the 2nd defendant’s construction sites and the plaintiff had experience in assembling and disassembling working platforms.  He regarded the plaintiff as very skilful and proficient.  However, he said in evidence in chief that he had no recollection of whether the plaintiff had been to the 2nd defendant’s warehouse previously.  He had not seen him doing the stacking before 29 December.

18.  He said that the delivery in the morning of 29 December was the third batch of sections sent to the 2nd defendant’s warehouse.  The 1st defendant’s workers had already used the sections in the previous two deliveries to stack up the first and part of the second layers.  The plaintiff and his colleague completed the second layer soon and continued with the third layer.  He watched them from time to time.  When the plaintiff was standing near the edge of the second layer and was about 1.85m above the ground, he lost balance whilst adjusting the position of a section.  He tried to grasp a section for support, but could not hold on to it.  He fell and his elbow hit the ground.  The section that he tried to hold also hit the ground but did not hit him.  He appeared to be painful.  Yung arranged for him to be sent to PWH.  It was found that his elbow had dislocated.

19.  On safety equipment, Yung said in evidence in chief that on 24 December when the 1st defendant’s workers made the 1^st delivery of the sections, he had told them that the 1st defendant had a box of safety equipment kept at the warehouse.  If need be, they could also borrow safety helmets and safety belts from the 2nd defendant at anytime.  But he did not repeat the same message to the 1st defendant’s workers on 27 or 29 December when the workers made the 2^nd and 3^rd deliveries.  He also said in evidence in chief that he had told one of the proprietors of the 1st defendant that there were some wooden planks at the warehouse that could be used by his workers.  He never told the workers about this as he assumed that the proprietor had relayed this message to his workers.

20.  He admitted in cross-examination that if the workers were stacking the sections in an open ground, as was the case for the plaintiff, there was no where to anchor a safety belt.

21.  On the procedure for stacking, he said the sections would be placed in vertically in the first layer.  The second layer would be placed horizontally, the third layer would likewise be placed horizontally but perpendicular to the second layer.  The second and third layers would thus be in a criss-cross fashion.  That was to enhance stability.  There would also be a recess at the second and third layers.  The fourth and fifth layers would also be stacked in the same manner and also with a recess.  The sixth layer would be the final one.  The whole stack, when completed, would appear like a stepping up pyramid.  After the pyramid was completed, the 2nd defendant would hoist the other elements of the working platform and railings up to the recesses on the second and fourth layers for storage.

22.  Since the 1st defendant had sub-contracted these works from the 2nd defendant for six to seven years and was familiar with the works, there was no reason why he had to tell the 1st defendant’s workers how to do the work every time.  Hence, he would only tell them where to stack the sections and, after the stacking had been completed, inspect whether it was built properly.  He would not supervise or instruct the workers every time.

23.  He would also not specifically require the workers to abide by the safety regulations.  He said it was just ordinary transportation work that did not require special skill.  Furthermore, the workers had all been trained by the Construction Industry Council Training Academy. 

24.  Despite the absence of any anchorage for safety belts or any working platform, he thought his procedure for stacking up the sections was a safe one.  He also did not see any need for safety equipment for the workers doing this job.

25.  He disagreed with the plaintiff on the commencement time of stacking on that day, the time of the accident and the location from where the plaintiff fell.  He said the party and the sections arrived at the warehouse after 4:00 a.m.  There were however many people living in the nearby village.  They could not start working so early as they would wake up the villagers and invoke their complaint.  So the workers only started working at about 5:45 a.m.  They were to continue with the second layer.  It was at about 7:00 a.m. that the plaintiff fell from the second layer or from a height of about 1.85m.  He denied that the plaintiff had fallen from the fifth layer or at the height of 3.6m.  He said some lubricating oil on the section might have caused the plaintiff’s fall.

26.  The 2nd witness of the 2nd defendant Mak said in his witness statement that there were only three persons working at the site and not four as suggested by the plaintiff.  He said the driver was operating the crane.  He was working on the truck by tying the frames on to the crane to be hoisted over to the plaintiff for stacking.  This differed from the plaintiff’s evidence who said that Mak was building the stack with him whilst Tang Sai Lok was tying the sections into bundles on the truck.  Mak however changed his evidence in cross-examination and agreed that he was doing the stacking with the plaintiff on the stack.  Mak also said that Yung only told them where to build the stack and did not supervise them.

27.  Mak also confirmed Yung’s evidence that the plaintiff fell from the second layer at about 7:00 a.m.  But he did not witness the fall.  He only saw the plaintiff after he had fallen onto the ground.  He, however, corroborated the plaintiff in saying that they arrived at the warehouse at about 4:00 to 5:00 a.m. and started working right away. 

28.  He said there were elevators and adjustable aerial working platforms at the warehouse that could be used.  The 2nd defendant however had not pleaded this.  When cross-examined by the 1st defendant, he elaborated that the safety equipment was placed on the ground near the place of work and not kept in any box.  He also said that Yung had told them on 29 December that they could use all safety equipment like planks, ropes and safety belts.  But he could not tell if Yung had said such thing to the plaintiff.

29.  When cross-examined by the plaintiff’s counsel, he said when he built the stack, he would place wooden planks underneath the sections to prevent the sections from slipping.  He would walk on the planks too.  These planks which were underneath the sections would remain there after the stack was built.  But the photograph produced by the 2nd defendant only showed a stack with some wooden planks inside the sections.  They appeared to be used to keep the horizontal sections in alignment.  But they were not underneath the sections and the workers could not walk on them.

ANALYSIS AND DECISION ON LIABILITY

The factual disputes

30.  I would resolve the factual disputes first.  None of the three witnesses has performed well.  Their inconsistencies have been pointed out in the written submissions of the three parties.  Even for Mak Shu Ming, who appeared to be an independent witness, his oral evidence also had inconsistency with his witness statement.  His oral statement that the safety equipment was placed on the ground for everybody to see was a contradiction of what Yung has said.  His evidence was also one sided particularly on the availability of safety equipment, but he did not seem to have used any such equipment in the morning of 29 December despite his allegation that he had used wooden planks previously.

The level of fall

31.  Since the evidence of the witnesses is unsatisfactory, I have to resort to other evidence.  The 1^st dispute that I would tackle is the level of the stack from where the plaintiff fell.  The plaintiff said he fell from the 5^th level whilst Yung said he fell from the 2^nd level.

32.  The evidence suggests that the metal tower at Central had been demolished and all sections had been sent back to the warehouse.  But for the accident, the plaintiff would have finished the stacking of all the sections and gone home.  The sections that were sent back to the warehouse with him were the 3^rd delivery.  There was no evidence of any more delivery.  The sections sent back in the 1^st and 2^nd deliveries had been stacked up on 24 and 27 December.  When all sections were stacked up, there would be six layers with some recesses at some layers.

33.  In other words, but for the accident, the plaintiff and his colleague would have completed the stacking to the sixth layer.  It was therefore unlikely that they would have started from a partially completed second layer only.  It was more likely than not that more sections had been stacked up previously and the stack had been built to a partially completed third layer.  The fourth and fifth layers took less time to build as they recessed from the edge of the third layer.  Since the accident only happened after the plaintiff and his colleagues had worked for more than an hour, I think it was more likely than not that he had fallen from the 5^th level.  I therefore accept his evidence on how and from where he had fallen.

Availability of safety equipment

34.  Yung and Mak said that there were safety belts and safety helmets.  Yung however admitted that there was no anchorage for safety belts at the open ground where the stack was built.  Hence, the availability of the safety belts was wholly irrelevant as they could not be used. 

35.  The availability of safety helmets did not help either.  The reason being that the plaintiff only hurt his elbow and not his head.  Even if he was wearing a safety helmet, his injury could not have been avoided.

36.  Yung said that there was a mobile platform driven on wheels available.  He asserted that if the plaintiff should have asked for its use, he would have driven it for the plaintiff.  However, he also took the view that the plaintiff did not have the need for it.  If that was his view, I doubt if he would have agreed to drive the platform for the plaintiff.  In any case, he also took the view that it was dangerous for the plaintiff to work from the mobile platform as the plaintiff had to bend outwards from the platform to handle the sections and there was no railing on the platform to prevent him from falling.  I therefore agree with Yung that the mobile platform was not suitable safety equipment for the plaintiff in the work that he was doing.

The wooden planks

37.  Both defendants in their submissions relied heavily on the evidence of Yung and Mak that there were wooden planks available that could be used by the plaintiff as a safety equipment or gangway. 

38.  The plaintiff has pleaded in the Amended Statement of Claim that the 1st and 2nd defendants were negligent in, among other things, failing to provide the plaintiff with the use of a scaffold, ladder, working platform or other means of support.  The defendants, however, did not plead in their defences or in the pleadings in the contribution proceedings that there were wooden planks available to the plaintiff or would be provided to him upon his request.  Yung and Mak, who were present at the site when the accident happened, did not mention the availability of wooden planks in their witness statements.  Only the proposed witnesses of the 1st defendant, who were not present at the site when the accident happened and were not called at the trial, referred to wooden planks in their witness statements.

39.  Indeed, the 1st defendant, after filing its defence on 12 February 2007, amended it on 8 June 2007 by adding that the plaintiff had failed to use the safety belt that was available.  But it still did not plead anything about the wooden planks.

40.  If the 1st and/or 2nd defendant should have pleaded the availability of wooden planks and that they were safety equipment that would have avoided the accident, the plaintiff could have investigated into truthfulness of such claim.  The plaintiff could for example visit the warehouse and see whether there were such planks though after the accident.  The plaintiff could also enquire with his colleagues who had worked at the warehouse on 24, 27 and/or 29 December.  The plaintiff could also obtain expert evidence on whether such planks could have prevented the accident from happening.

41.  Since there was never any mention of the wooden planks in the pleadings, the plaintiff need not anticipate that the defendants would rely on them as a ground of defence.  He was therefore not required to incur time and costs to make any enquiry or seek expert evidence about them.  In the circumstances, it is unfair to allow the defendants to rely on the wooden planks as an answer to the plaintiff’s claim or as a basis to support the claim of contributory negligence.

42.  However, even if the defendants were allowed to rely on the allegation that there were these planks available, I will still hold that there was no such plank as a matter of fact.  If there were indeed planks available for the plaintiff’s use, I see no reason why it was not pleaded by either defendant.  This is particularly so as the plaintiff has already pleaded the lack of a scaffold, ladder, working platform or other means of support.

43.  Furthermore, if there were such planks available, which were used by the workers for the purpose of safety in the work, there was no reason why Yung and Mak would not have mentioned them in their witness statements.  They should have said that there were wooden planks that the plaintiff could or should have used in his work. 

44.  A proposed witness of the 1st defendant has produced a note of a meeting purportedly held on 17 December which stated, among other things, that there were eight wooden planks at the warehouse on that day.  However, even if the planks were there on 17 December, it did not mean that they were still there on 29December.  Alternatively, they might have been placed underneath the sections in the second layer by the workers who did the work on 24 or 27 December in the way as suggested by Mak.  Mak said that the planks so placed would just remain underneath the sections.  The planks having been used up could also have been the reason why Mak himself also did not use any wooden plank on 29 December.  I therefore hold that there was no wooden plank available for the plaintiff’s use when he was told to continue to build the stack on 29 December.

45.  I also refer to the plaintiff’s evidence on whether such planks can be used as safety equipment.  The plaintiff gave a theory on how such planks could be used as a gangway.  But he is not an expert on safety equipment and had no experience in stacking the sections.  Mak was likewise not such an expert.  I would not accept the evidence of the plaintiff or Mak that wooden planks are sufficient to make this system of work safe.  Without expert evidence, I am not convinced that the placing of planks on the sections to facilitate walking and working would have made the system safe or prevented the plaintiff or the section from falling.  Therefore, even if there were wooden planks available and the plaintiff had used them, it still did not mean that he and the section on which he stood would not have fallen.

46.  On the whole, my finding is that neither the 1st defendant nor the 2nd defendant had provided the plaintiff with any safety equipment that would have made the system safe or prevented him from falling.  There was also no evidence of the availability of any such equipment that could have been provided to the plaintiff upon his request.  The safety belts, safety helmet and mobile platform were of no use.  Even if there were wooden planks, which I find that there was none, they would not have made any difference.

The 1st defendant’s liability

47.  The 1st defendant accepts that it had a duty under section 6 of the Occupational Safety and Health Ordinance (“the OS&H Ord.”).  The relevant part of the section states:

“(1) Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

(2) The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following-

(a)    a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;”

48.  The 1st defendant referred to the following matters:

(a)    the plaintiff had 16 years working experience in construction work including three years with the 1st defendant in which he did loading and unloading of construction materials;

(b)   he was aware of the risks of his work on that day;

(c)   his co-worker Mak was also experienced in construction including the stacking of frames and had attended the 1st defendant’s meetings on safety and the use of safety equipment;

(d)   the stacking of the sections only required care to render the task safe and not any special skill;

(e)    the 1st and 2nd defendants had provided safety equipment and wooden planks;

(f)    the 2nd defendant’s system of criss-cross stacking with recess at higher levels had not given rise to any accident previously;

(g)   the 1st defendant’s workers had to follow the instructions of Yung of the 2nd defendant who was an experienced foreman;

(h)   the 1st defendant was entitled to expect the plaintiff, who was an experienced worker, to exercise reasonable care for his own safety; and

(i)    the 1st defendant did not know that the plaintiff would be asked to fill up the recesses or that the plaintiff would not use the wooden planks.

The 1st defendant therefore submitted that the plaintiff had breached his duty under section 8 of the OS&H Ord. which required him to take care of his own safety and to co-operate with the 1st and/or 2nd defendant on safety requirements.  The 1st defendant further submitted that it should be absolved of liability altogether.

49.  I have already dealt with the issue of safety equipment and in particular the unpleaded defence of wooden planks.  Once these planks are taken out of the 1st defendant’s submissions, there is not much left for the 1st defendant to rely on.  If the working system was unsafe and there was no appropriate safety equipment available, the fact that the plaintiff was an experienced worker and was aware of the risks would not help the 1st defendant.  The plaintiff’s options were either to accept the risks or refuse to do the work and face the consequence dispensed by the employer.  If the plaintiff took the first option, it was not open to the 1st defendant to say that the plaintiff had voluntarily assumed the risks.

50.  The working system was obviously unsafe.  The plaintiff had to stand and walk on metal pipes of 5cm thick in the course of his work.  There was no other support for him.  There was nothing to prevent him from falling.  The sections were not tied to one another.  The stack when built to the fifth layer was about 3.6m in height.  The sections also had lubricating oil on them.  Common sense says that this is a dangerous system.  The fact that there was no previous accident does not mean that it was safe. 

51.  Regarding the submission that the 1st defendant’s workers had to follow Yung’s directions, that also does not mean that the 1st defendant did not have to ensure that the working system was safe.  I refer to the authorities quoted by the plaintiff namely:  McDermid v Nash Dredging & Reclamation Co. Ltd [1987] AC 906, Morris v Breaveglen (t/a Anzac Construction Co.) [1993] PIQR 294 and Nelhams v Sandells Maintenance Ltd [1996] PIQR 52.  Lord Brandon of Oakbrook said in McDermid at page 919:

“…  A statement of the relevant principle of law can be divided into three parts.  First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one.  Secondly, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it.  Thirdly, the duty concerned has been described alternatively as either personal or non-delegable.  The meaning of these expressions is not self-evidence and needs explaining.  The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it.  Despite such delegation the employer is liable for the non-performance of the duty.”

Kennedy LJ also said in Nelhams at page 57:

“Transfer of employment

The only issue worthy of serious consideration in this appeal is whether the judge was right to exculpate the first defendants.

We have had the advantage of being referred to the decision of this court in Morris v. Breaveglen [1993] P.I.Q.R. P294 … In that case, as in this case, a plaintiff in the general employment of one employer sustained injury whilst working, as he had been instructed to work, under the directions of employees of a second employer.  The general employers contended that because they were not exercising control over the plaintiff, they should not be held liable, but both at first instance and in this court that contention failed.  … Beldam L.J. analysed all of the well known authorities relating to this branch of the law, and pointed out that there is an important distinction to be drawn between cases where damage has been caused by an employee in the general employment of one employer who is working under the directions of a second employer and cases where it is the employee himself who sustains the damage.  In the first category of case the general employer maybe able to escape vicarious liability.  In the second category of case vicarious liability is not in issue, and the general employer remains subject to his duty to exercise due care and skill for the safety of his employees by providing them with suitable plant and equipment and a safe system of work.  As it happens, the employee has been instructed, in the course of his employment, to go to a site which his employer does not control, and to work there under the directions of a supervisor or supervisors employed by others who thus become the agents through whom the general employer seeks to discharge his obligations to his employee, but the employer remains liable if the agents themselves do not use due care and skill in carrying out the employer’s duty (Wilsons and Clyde Coal Co. v. English [1938] A. C. 57).  As Lord Hailsham said in McDermid v. Nash Dredging Reclamation Co. [1987] A. C.906 at 910, ‘the employer cannot escape liability if the duty has been delegated and then not properly performed.’

Beldam L.J. pointed out in Morris that if there is negligence on the part of the supervisor to whom the plaintiff has been entrusted, the employers of that supervisor may be vicariously liable for his negligence, so it is entirely possible that more than one defendant will be found liable.”

52.  There is no evidence that there was a complete transfer of the plaintiff’s employment to the 2nd defendant on that occasion so much so that the 1st defendant was absolved from liability completely.

53.  The 1st defendant had been doing this kind of work for the 2nd defendant for six to seven years, it must have known how the work was being done and what risks were involved.  What it did was just to leave some safety belts and safety helmets (and perhaps wooden planks) at the site and reminded the workers in meetings to mind about safety and to use the safety equipment.  There is no evidence that it had done anything else or made any suggestion to the 2nd defendant to improve the safety of the system or to prevent its workers from falling.  Whether the 1st defendant knew that the recesses of the stack would be fill up or the plaintiff would not use wooden planks is neither here nor there.  It must be within its expectation that its workers would have to stand or walk on the edges even if the recesses were not filled up.  On the planks, even if there was one, it does not mean that the plaintiff would not have fallen off it together with the section given that the sections were not tied up together and there was lubricating oil on the sections.

54.  On the whole, I find that the 1st defendant has breached its duty under section 6 of the OS&H Ord.  On the same grounds, I also find that it has breached the implied term in the employment contract that it should exercise reasonable care to ensure a safe system of work.  I also find that the plaintiff’s injury was a result of the 1st defendant’s negligence.  I also make it plain that my finding would be the same regardless if the plaintiff had fallen from 3.6 m or just 1.85 m.  The risk was the same.

The 2nd defendant’s liability

55.  The warehouse was in the 2nd defendant’s control.  The 1st defendant’s workers had to work according to Yung’s directions.  They had to stack the sections in the way as Yung might direct.  On 29 December, Yung also went to see how the workers were performing every 5 to 10 minutes.

56.  The 2nd defendant admits that it was the occupier of the warehouse.  The 2nd defendant has also discussed at length the issue of pro hac vice (or transfer of employment of the plaintiff from the 1st defendant to the 2nd defendant for that occasion).  This is not a point relied on by the plaintiff or the 1st defendant.  Even if the 1st defendant has any intention to rely on it, I have already disposed of it above.

57.  The 2nd defendant tried to draw an analogy between the partially completed stack on which the plaintiff was to continue the stacking and a defective ladder used in accessing the height of premises.  There are cases where defective ladders were used by workmen to gain access to a height to work.  There are conflicting conclusions on whether the ladder would form part of the premises.  In the present case, the partially built stack was not there for the purpose of access.  I accept the plaintiff’s submissions that it was a temporary stage or scaffolding on which work was to be done.  It certainly amounted to premises within the meaning of the Occupiers Liability Ordinance.  Even if it can be equated with a ladder, I would still treat it as part of the premises.  The 2nd defendant was clearly its occupier even when it was being built. 

58.  The 2nd defendant had the right of control over the stack through Yung.  The stack grew in size when more sections were added to it.  That meant the working stage was being enlarged and elevated.  If it were not properly built, then the plaintiff, being the visitor, would not be reasonably safe in using it for his work, which was to continue with the building of it.  In other words, if the 2nd defendant did not take reasonable care to see that the stack was properly built by the plaintiff and there were safety devices or equipment available to the plaintiff to ensure that he was reasonably safe in continuing with the building of the stack, the 2nd defendant would have breached the common duty of care to the plaintiff.

59.  The 2nd defendant relies on sections 3(3)(b) and 3(4)(b) of the Occupiers Liability Ordinance in its defence.  They provide:

“(3)   The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-

…

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)-

…

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken 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.”

60.  On section 3(3)(b), the 2nd defendant also referred to the cases of Osgood v Thames Stevedoring Company & Blackfriars Lighterage & Cartage Co. Ltd [1953] 2 Lloyd’s Rep. 134 and Keen v Lykiadopulo [1953] 2 Lloyd’s Rep. 349.  The 2nd defendant submitted that the plaintiff was aware that he would have to stand on the stack of sections in his work.  He knew that putting a wooden plank on the sections would have reduced the risks.  He however just went ahead with his work without using any plank.  He had therefore assumed the risks knowingly.

61.  I have already said a lot about the wooden planks above.  When there was no plank available for the plaintiff, it cannot be said that he had assumed the risks voluntarily.  He had no choice in it.  He could not have avoided it as the plaintiffs in the Osgood and keen cases could have.  This is also the point that distinguishes this case from those two cases.

62.  On section 3(4)(b), the 2nd defendant submitted that the plaintiff was an experienced worker.  But there is no evidence of his having been taught how to do this job.  The 2nd defendant also referred to Ferguson v Welsh [1987] 1 WLR 1553 to argue that an occupier should not be required to supervise the employees of a contractor if he has reasonable grounds to regard the contractor as competent.  Even if the occupier should know that the contractor may be using an unsafe system of work, that alone is not enough to impose upon the occupier a liability under the Occupiers Liability Ordinance or in negligence under common law. 

63.  However, the present case is different from Ferguson in that the plaintiff was supposed to work under the direction of Yung.  The 1st defendant had no supervisor present at the site.  It was Yung who was keeping a watch on how the work was being done.  Indeed, it was for Yung to decide whether the sections were stacked in the correct fashion.  The 2nd defendant had not entrusted the work to the 1st defendant as an independent contractor.  The 2nd defendant only had the service of the 1st defendant’s workers whilst its foreman was directing and checking on how the work was being done.  The 2nd defendant thus cannot rely on section 3(4)(b) as a defence.  I also accept the 1st defendant’s submissions that the 2nd defendant had also breached its duty under section 7 of the OS&H Ord.

Contributory Negligence

64.  The 2nd defendant referred to Jenner v Allen West [1959] 1 WLR 554 to say that the plaintiff was contributorily negligent.  In that case, an experienced plumber in charge of roof work fell through a fragile ceiling.  He was aware of the risk of falling, but did not use the scaffold boards that were provided by the employer. 

65.  The 2nd defendant also referred to Lau Shui Chun v Leung Tung Ping Metal Factory Ltd & Ors, HCPI 75/1997 and Koon Sai Kwong v Welcome Engineering Co. Ltd, HCPI 930/1999.  However, there was in the present case no useful safety equipment available to the plaintiff.  Nor did the plaintiff exercise a negligent judgment that led to his injury.  I therefore hold that no contributory negligence can be attributed to the plaintiff.

QUANTUM

PSLA

66.  After the accident, the plaintiff was taken to PWH.  According to the medical report of Dr P Y Ho dated 21 June 2005, the plaintiff was admitted to the Department of Orthopaedics and Traumatology on 29 December 2004 for his elbow pain and deformity.  On admission, it was noted that he had a deformed elbow with no wound.  No neurological deficit was identified.  X-ray showed a dislocated elbow.  Close reduction was performed under sedation.  He was then put on a slab for immobilization and discharged on the same day.  His injury was reviewed in the orthopaedics clinic on 5, 9 and 26 January, 23 February, 6 April and 18 May of 2005.  During this period, he was put on an elbow-hinged brace for protection.  He was referred to physiotherapy and occupational therapy for rehabilitation.  He was last seen on 18 May 2005.  He reported pain over lateral epicondylar region of his left elbow; otherwise he got a good range of motion. 

67.  According to a report by a physiotherapist Mrs Priscilla Poon of Tuen Mun Hospital dated 12 May 2006, the plaintiff had attended 18 sessions of physiotherapy from 1 February to 15 July 2005.  The final clinical findings on 24 June and 15 July 2005 were that the range of movement of the left elbow was limited with 20% lacking in in-extension and 140^o full flexion range, muscle power of left elbow 5/5 and left power grip at 55 kgf compared with the right side at 58 kgf.

68.  Another report by an occupational therapist Mr Andy Lau of Tuen Mun Hospital dated 17 May 2006 stated that the plaintiff was a construction worker who mainly needed to paint wall with one hand holding wooden block or brick whereas another hand holding tools or cement.  He attended 26 sessions of occupational therapy.  His progress was static.  He was advised to change job if he could not meet the demand of his premorbid job.  It was also suggested to him to discharge from occupation therapy.

69.  A Medical Assessment Board constituted for the purpose of the Employee’s Compensation Ordinance assessed him on 28 September 2005 and found that he had left elbow dislocation resulting in pain and stiffness.  The board certified that he had to be absent from duty from 29 December 2004 to 28 September 2005 and had suffered 2% permanent loss of earning capacity.  A review of his case by the Board on 24 May 2006 increased the sick leave to 10 February 2006 and the permanent loss of earning capacity to 2.5%.

70.  There was also a joint medical assessment report by Dr Lam Kwong Chin and Dr Danny Tsoi dated 25 September 2006.  It stated that the plaintiff was right hand dominant.  He had no external deformity and no muscle wasting or spasm.  The two doctors agreed that the plaintiff should be able to return to his previous job in construction sites.  The residual pain and stiffness would partly affect his working performance and endurance.  They assessed that the plaintiff would have 7% impairment of the upper extremity or 4% of the whole person.

71.  The plaintiff made the following complaints in his evidence:

(i)   Stiffness, soreness and weakness of the left elbow;

(ii) reduction of extension and griping power of the left limb;

(iii)   unable to lift heavy object;

(iv)   cannot raise the left limb to work for long period; and

(v) limitation in extension of left elbow.

72.  The plaintiff submitted that the PSLA award should be $200,000.  The 1st defendant submitted that it should be $150,000 and the 2nd defendant said that it should be between $150,000 to $200,000. 

73.  I have reviewed the cases of Chan Pui Kuen v Lee Oi Wah [2001] 3 HKLRD 113; Ng Siu Cho v Incorporated Owners of Jardine Court [2006] HKEC 1231; Khan Amar v Cheung Ying Construction Engineering Ltd [2007] HKEC 1009; Ng Shui Hing v Lee Hing On Ricky, DCPI 1313/2004 and Lin Chiu Lung v ILE Co. Ltd, HCPI 1056/2002.  I find the cases of Ng Siu Cho, Khan Amar and Ng Shui Hing more useful for comparison. 

74.  The plaintiff had a dislocated elbow.  He did not have any fracture.  He was discharged from hospital on the same day.  I award him $150,000 for PSLA.

Pre-trial loss of earnings

75.  The plaintiff was a construction general worker.  The parties agreed that he was earning $14,647 per month inclusive of MPF before the accident.  The sick leave period was from 29 December 2004 to 10 February 2006 or 13 months and 12 days.  The doctors of the joint assessment report agreed that the sick leave given was reasonable.

76.  The 1st defendant suggested that there should be a further period of about seven weeks for the plaintiff to find a job.  The plaintiff agreed with this but not the 2nd defendant.  I think the 1st defendant’s suggestion is reasonable and I accept it. 

77.  For reasons that I give below under the heading of post-trial loss of earnings, I do not give any further compensation after the 15-month period.  The loss under this item is at: $14,647 x 15 = $219,705.

Post-trial loss of earnings

78.  The plaintiff has also called a witness Mr Lau Kin Yin to testify to his disability in pursuing his previous employment.  Mr Lau’s evidence was exaggerated.  His demonstration of the plaintiff’s disability was much more than that recorded in the various reports referred to above.  I find his evidence unreliable. 

79.  The plaintiff’s counsel referred to the advice of the occupational therapist Mr Lau that the plaintiff should change job if he could not meet the demand of his previous job.  But I would pay more attention to the objective evidence like the lack of muscle wasting or spasm as recorded in the joint assessment report by the two doctors.

80.  In the light of nature of the injury, the appropriate treatment he had been given, the opinion of the doctors in the joint report that he can resume his previous job, I am of the view that he can resume his previous job though his performance may be affected by the residual pain and stiffness.  I do not think he should be given any further compensation under this head beyond the 15 months referred to above.  Instead, he should be given an appropriate award for loss of future earning capacity to compensate his disadvantage in the labour market.

Loss of Future Earning Capacity

81.  An award under this head is appropriate.  The parties have in fact agreed a sum of $50,700 for it.  That sum was agreed without knowledge of my decision on compensation for loss of pre-trial earnings.  Now that I have not given any compensation beyond the 15 months, I do not think this agreed sum is still reasonable.  I would award under this head 1 year earnings for the plaintiff at: $14,647 x 12 = $175,764.

Medical and Travelling Expenses

82.  All parties agreed that this should be at $2,000 and I so order.

Tonic Food

83.  The plaintiff claims $10,400.  There is no expert evidence for its need.  The plaintiff said the tonic food he had taken were chicken soup and the like.  The defendants submitted that this item should be at $5,000.  I agree with the defendants and award $5,000 for this item.

Interest

84.  Interests on general damages should accrue from the date of the writ, i.e. 16 January 2007 at a rate of 2% per annum.  Interests on special damages should accrue from the date of accident i.e. 29 December 2004 at half of the judgment rate.

Summary of Quantum

85.  The quantum is as follows:

(i)	PSLA	$150,000
(ii)	Pre-trial loss of income	$219,705
(iii)	Loss of future earning capacity	$175,764
(iv)	Medical expenses	$1,460
(v)	Travelling expenses	$540
(vi)	Tonic food	$5,000
	Less ECC	-$268,140
		$284,329

APPORTIONMENT

86.  The 1st defendant submitted that the predominant cause of the accident was the 2nd defendant’s breach of the OS&H Ord. and negligence.  The warehouse, system of stacking and the workers were all under the 2nd defendant’s control.  The 1st defendant did not have much to say in the system of stacking.

87.  The 2nd defendant however submitted that the 1st defendant had not developed any safe system for its workers and had not checked the competence of workers.  The 2nd defendant relied on the 1st defendant’s competence.  The sections were stacked by the 1st defendant’s workers.  The 2nd defendant had no liberty to choose the workers.  The 2nd defendant was thus at the 1st defendant’s mercy.

88.  I do not think the lack of training or competence in the workers is a major factor in causing the accident.  The plaintiff was only a construction worker, not an acrobat.  The accident happened because of the inherent risks of the method of stacking or system of work employed by the 2nd defendant.  Though the workers worked under the direction of the 2nd defendant and the method of work was designed by the 2nd defendant, such method or system of work must have been known to the 1st defendant as the 1st defendant had been the 2nd defendant’s contractor doing such work for six to seven years hitherto.  It was therefore obvious that both the 1st and 2nd defendants were contented with the method or system of work adopted by the 2nd defendant. 

89.  If the 1st defendant did not think the system say enough, it should have required the 2nd defendant to make it good.  If the 2nd defendant should refuse to do so, the 1st defendant should stop sending its workers to work for the 2nd defendant.  The 1st defendant has no liberty to expose its workers to risks known to it.  

90.  Since both the 1st and 2nd defendants were contented with this system of work, I hold that they are equally liable.  Each of the defendants is therefore liable to the plaintiff in full.  The defendant that pays the plaintiff in full is entitled to be reimbursed by the other to the extent of half of the sum so paid.

COSTS

91.  I have made an order nisi on 5 September 2008 that the defendants do pay the plaintiff the costs of this action to be taxed on the District Court Scale and that my order on apportionment between the defendants applied to this order of costs as well.