KONG KAT CHEUNG v. YIP KAM TONG AND OTHERS

HCPI 696/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 696 OF 2006

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J U D G M E N T

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1. This is a trial of an action brought by the plaintiff, Kong Kat Cheung, who is a master workman in scaffolding against three defendants, Mr Yip Kam Tong (“Yip”), the 1^st defendant, who was a sub-sub-contractor; Tong Lai Shing trading as Shing Kee Landscape Garden (“Tong”), the 2^nd defendant, who was a sub-contractor and Tak Tai Farm Ltd, the 3^rd defendant, who was a contractor.  The top employer being the Government of Hong Kong.  The claim was brought in relation to an accident that was suffered by Mr Kong in the course of his attempting to do the cutting and trimming of a tree on 26 February 2003 at Hing Keng Shek Village in the New Territories when he fell down.  He suffered injury to his back, as a result of which he was off work for a long time and he was no longer able to do the same kind of work as he did before and his income was greatly reduced.

2. The quantum at the trial was hived off, namely the assessment of the quantum.  So I am now only concerned with the question of liability. 

3. Very close to the trial solicitors who were representing the 2^nd and 3^rd defendants came off the record and the 2^nd and 3^rd defendants acted in person.  Mr Tong (the 2^nd defendant) was acting for himself and Mr Ng Wing Hong was acting as a representative of the 3^rd defendant.  Default judgment was entered against the 1^st defendant and the 1^st defendant I think has more or less disappeared from the scene. 

4. At the trial two witnesses gave evidence for the plaintiff, the plaintiff himself and a Mr Lee, who was a co-worker at the time and who witnessed the accident.  Two witnesses gave evidence for the defendants, Mr Tong himself and Mr Poon who gave evidence for the 3^rd defendant.

5. There are really three issues that will require this court to consider in giving its judgment.  The heading of the first major issue is factual dispute.  The second issue is an issue of law as to the applicability of certain statutory provisions because the claim was brought both on the basis of common law of negligence as well as under breaches of various statutory provisions.  The third issue is a question of contributory negligence.  I will deal with each in turn. 

6. The case was heavily contested and it took an unusually longer time than would have been the case mainly because due to the two defendants acting in person, the court has given somewhat more leeway than usual.  In particular, Mr Ng acting for the 3^rd defendant, who was very impressively articulate, obviously a man of considerable education and intelligence, sought repeatedly to find new grounds of defence.  The case therefore was protracted because the court had to manage the constant outflanking moves by Mr Ng.  

7. On the factual issue, the questions that had to be considered are : firstly, whether there was an accident on that day at all because the case of the defendants as it transpired when the trial progressed is that there was no accident at all.  It was alleged to be all a fabrication.  Secondly, whether the location of the accident is at the location shown in the pictures of pages 250 and 251 or at the location in the picture of page 247.  The third question is whether the accident was more or less described by the plaintiff or not as described by the plaintiff and the fourth question is whether the accident arose out of the orders given by the 3^rd defendant to the 2^nd defendant and the 2^nd defendant to the 1^st defendant or whether it was some other people’s orders.  Those are the four main factual questions.  There are also a host of many other factual questions but they are not very significant and I will only touch upon them when it is necessary.

8. I think first it would be necessary to describe the accident before I can go on to consider the credibility of the witnesses and the inherent probabilities. 

9. The evidence that coming from the plaintiff and evidence was largely from the plaintiff and to a certain extent, perhaps to a lesser extent, from the co-worker Mr Lee, is that the tree in question as shown on pages 250 and 251 which he was trying to saw off was some 12 or 13 feet high.  Now the reason why he needed to saw off that branch of the tree was because the Government, under its obligation to ensure the roads are safe for traffic both in terms of vehicles as well as pedestrians, had to ensure that protruding branches do not come out as to impede the orderly safety and progress of pedestrians and motor traffic.  The Government has a system whereby it awards contract to people like the 3^rd defendant.  The 3^rd defendant in turn would, and did, sub-contract to person like the 2^nd defendant who then sub-sub-contracted it to the 1^st defendant and the 1^st defendant then took on workers such as Mr Lee and the plaintiff together with the necessary vehicle equipment such as the crane vehicle to go to the scene to do the work, and the work involved being the maintenance of the road and, to a certain extent, the maintenance of the fence which we could see at pages 250 and 251 to ensure that branches that required to be sawn off and trimmed were sawn and cut to ensure the safety of vehicles and people.  So that was the background of what was the nature of the work that was required to be done by the plaintiff. 

10. On the day in question there was an early morning tea and those present was the plaintiff, Mr Lee, Mr Yip, the 1^st defendant and Mr Yip informed the plaintiff that this was the work that was coming from the boss, the 2^nd defendant, and the work was to be done in the New Territories at the Hing Keng Shek Village and that there were several sites that they had to visit, several places, to do the work and the work was the cutting and trimming of trees.  I think, this work had been done in the past by the 1^st defendant for the 2^nd defendant.  However, although there was the crane vehicle, there was no scaffolding and this was of course a feature that would become of the greatest importance in this case because the case of the plaintiff is that in failing to provide the scaffolding platform, it led to his fall and this was in breach of the duties of the 2^nd and 3^rd defendants in common law as well as in statute.  

11. It is not disputed that Yip had orders from Tong, that is the 1^st defendant had orders from Tong, to do the work that day.  Nor is it disputed that Tong had orders from the 3^rd defendant to do the work on that day.  What is disputed is the exact orders that were required to be done.  The 2^nd and 3^rd defendants took the view that there was only one order in question whereas the evidence that come out from the plaintiff is to the contrary. 

12. The tree in question, where the cutting of which the plaintiff suffered the fall was in fact I think the second if not the third order that he was carrying out that day.  After the tea, he had done some work earlier that morning before the accident.  He pointed to the pictures on pages 250 and 251 he told the court that he was first raised by the crane to tie a rope around the tree branch that he was to cut and that tree branch was at a height of about 12 or 13 feet.  He then came down.  The crane vehicle apparently had to move away.  The reason for the tying of the rope to the tree branch was so that when that branch was cut it would not fall loose into the ditch down or hit someone but the crane would be able to hold that tree branch.  As shown on pages 250 and 251, there was a road, there was the fence, beyond the fence there was the very tree the branch of which was to be cut and what had happened was after the tying of the rope to the branch, after the plaintiff came down from the crane, because he could not be tied to the crane to be raised up a second time as one end of the crane was already tied to the tree branch, he found, as there was no scaffolding, the only way he could reach the branch of the tree of some 12 feet high was to climb the fence and he described his left foot being on top of the fence and his right foot standing on a branch coming out of the fence and as he was reaching down to be handed the saw which was of 18 inches to 2 feet long, the branch broke and he fell down.  The result was that he suffered the back injury and therefore eventually he had to be assisted onto the crane vehicle and then he went to a bonesetter.  

13. Much of the evidence of the plaintiff was not the subject of cross-examination.  Mr Ng, who was doing the bulk of the cross-examination work, asked a number of questions from the witness.  In fact the cross-examination took some time but some aspects of the defence that Mr Ng is now seeking to rely upon was not the subject of cross-examination, nor were these cases of new defences put to the plaintiff at that time, nor was there any contrary evidence from the defendants’ side.  It is therefore necessary for me when I am considering the various aspects of the defendants’ case now put forward for me to have to dismiss these new cases and not giving to them the full consideration that Mr Ng says they deserve.   

14. First a word about the credibility of the witnesses.  I find that Mr Kong of all the four witnesses, that is the plaintiff, gave the best evidence.  He was obviously not a very well educated man.  He gave evidence in the best way he could, having regard to the lack of time but I find notwithstanding there may be minor discrepancies between his evidence and that of Mr Lee that I prefer his evidence best of all .  I think he gave his evidence truthfully, without hesitation or evasion.  He was not a crafty person.  He gave me the best impression of all the witnesses. 

15. Mr Lee, his co-worker, was in some ways less full in his evidence and sometimes a little bit confusing.  He is, however, I find on the whole, also a truthful witness.  Where there may be a slight difference between Mr Lee’s evidence and Mr Kong’s evidence, I prefer Mr Kong’s evidence.  

16. Tong’s evidence was brief.  I got the impression that he was really singing the tune of the 3^rd defendant.  Although he was being sued he knows that ultimately it was the 3^rd defendant who was the main target of the plaintiff and that the plaintiff seeking recovery would be mostly looking to the 3^rd defendant.  So Tong was allowing the 3^rd defendant, in particularly Mr Ng and his staff witness Mr Poon, to do the running.  When there was a conflict between Mr Kong’s evidence and Mr Tong’s, I prefer Mr Kong.

17. Now Mr Poon is a totally different matter.  Poon was the last to give evidence.  He is a seasoned, experienced man in this kind of work but he did not impress me as being a truthful witness.  In fact I find him repeatedly to be untruthful.  I mean he was very very truthful in some respects.  For example, as soon as he saw the pictures on pages 343 and 344, he immediately said, what was put forward throughout the trial before Mr Poon came to give evidence by Mr Ng and Tong as being the kind of long-hand saw, could not do the work of sawing off the branch in question and was useless.  As soon as Mr Poon saw that pictures he said no, no, no way could that do the job … that’s only a trimmer which confirmed my first impression when I saw the pictures of pages 343 and 344 and I had expressed skeptically in the course of the trial when Mr Ng was trying to put forward that the saw shown on page 343 could be used to do the work of sawing off the branch in question, that is about 5 inches thick, by standing on the ground without a scaffolding.  So to that limited extent Mr Poon was of course truthful but short of one or two obviously aspects where he had to be truthful, I do not find Mr Poon’s evidence to be helpful or to be believable.  If I have to choose between the assertions made by Mr Poon and/or the evidence given by Mr Kong, I have no doubt that I would prefer the evidence of Mr Kong.  

18. The above credibility assessment, I think, sets the basis for many of my findings on the factual issues. 

19. On the first factual issue, whether there was an accident that day.  Mr Kong described in some detail of what happened that day, how he fell, he then said how he was helped.  There was telephone conversation between Mr Yip and Tong leading to the decision not to report, the offer from Tong through Mr Yip that the plaintiff would be looked after both in terms of pay and in terms of medical expenses and therefore leading to his going to the bonesetters and so on and so forth.  

20. I have no doubt that Mr Kong was telling the truth.  There is of course supporting evidence both from the bonesetter’s X-ray documents, the medical certificates, as well as the claim when made (although late in the day by Mr Kong) when he realised that he was not going to be looked after and he had a valid claim.  I have no doubt that it was not a fabrication of Mr Kong that he suffered injury that day and that there was a genuine accident that day suffered by the plaintiff as a result of his work.

21. Then the next issue that was raised and, this of course was rather late in the day, by the two defendants is that the accident was not at the location shown on pages 250 and 251 but at a location shown by picture on page 247.  Now, the date of the discovery of these pictures is very important.  The pictures on pages 250 and 251 were disclosed in May 2007.  This was more or less, I believe, at the time of the witness statement.  So these were disclosed at a fairly early stage.  However, the picture on page 247 only came about in the last list of documents of the defendants in February 2008, just weeks before the trial.  This is of great importance because if there was any contest as to the location of the accident anyone should have or would have noticed soon after discovery of pages 250 and 251 that it was not at the location that the defendants now contend where the work was to be done, namely page 247.  There is no dispute or at least there is no dispute by the defendants that both locations are at the Hing Keng Shek Village and only 50 metres apart.  At least, this is the allegation of the defendants.  But there is a dispute now put before the court that where the work was to be done and the accident spot is not at pictures on pages 250 and 251 but at page 247.  When the plaintiff was asked about page 247, he denied that that was the place of accident.

22. The defendants had all the opportunity to put in an amended defence or to put in their supplementary witness statement to put in issue the location of that accident.  This was not done and it is now sought to be said that the place of the accident was not at pages 250, 251.  I reject this.  It seems to me from the evidence given that the plaintiff’s version is to be preferred.

23. The reason that I think this new line is taken is because of the fourth factual issue that is now raised by the defendants, namely that the place of work was pursuant to an order and that the only order that they had on execution on that day was the order at page 245 (with the amount of the works estimated value showing at $675, that is the amount of the value from the Government).  The case of the defendants, as I understand it is that there was only one order at page 245 to be done that day.  That order relates to location at page 247.  Therefore, there is no question of pages 250, 251 location order being done and therefore the plaintiff must be describing an accident arising out of an order not from these defendants but from someone else.  I think that in the crude form is a summary of the defendants’ new case which came out in the course of the trial.  It is certainly not a pleaded case and certainly not clearly elaborated in the witness statements.  I am asked to believe, therefore, that the only relevant order coming from the 2^nd and 3^rddefendants on that day was at page 245.  I do not accept that.  I do not accept that on that day the plaintiff at $1,200 a day, his co-workers at $500 a day, plus the driver of the crane, plus Mr Yip would all go out to carry out only a $675 order at page 245. 

24. In my view, it is much more likely that there were in hand given to the 1^st defendant a number of orders from the defendants covering a number of locations in that village as evidenced by the plaintiff having done the first job before moving on to the accident spot. 

25. The limited discovery made by the 3^rd defendant cannot be the reason that I would accept it and therefore find that there was only one order.  It just does not make sense for that kind of work to be done, a number of people involved, for a small order of $675.  The suggestion that it was possible that Mr Kong and Mr Yip and the crane driver were doing one order work for the defendants and other work for others is for me pure speculation and had no basis with any evidence. 

26. It seems to me that Mr Ng, in his most creative manner, has tried to throw up any possibility of a defence as he could.  While he impressed me by his forensic skill, he did not impress me by his possessing any common sense in trying to persuade the court to believe what is patently not possible or not likely to be the case.  I therefore have no hesitation in coming to the finding of fact that the accident was part of the orders coming down to the 1^st defendant from the 2^nd and 3^rd defendants and then onto the plaintiff. 

27. Then finally the factual issue as to whether the accident was as described by the plaintiff or not.  Again I have no hesitation notwithstanding the many points made by Mr Ng that the accident was as described by the plaintiff.  So many points that Mr Ng wished to advance in the course of the final submission were points thathad never been put to the plaintiff, were points that had never been addressed by the defendants’ witnesses and it is simply not a responsible approach toadvance these points in these circumstances at the final submission and they are simply either not open to the defendants or not worthy of serious consideration.

28. I have had overall regard to the evidence of the plaintiff and I think what he described is totally possible and in fact most probable and I find that his version given is credible and I make the necessary findings of fact as described by him. 

29. So this, therefore, leads me really to the question of whether in law there was a breach of duty by the two defendants.  So far as the common law duty of care is concerned, the case was put on the basis that look at the height of the branch where he was to do the cutting, it could not be reached easily without danger, a platform ought to have been erected.  There was the evidence, of course, of Mr Poon that this could all be done by hand by standing on the ground with a long hand-held saw and there was no necessity of any erection of scaffolding.  Having regard to what I said about the non-acceptability or credibility of Mr Poon, I have no hesitation in dismissing all that suggestion.  It seems to me that having regard to the height there ought to be a scaffolding provided.  The question is whether the defendants owed a duty of care.  I have no doubt that they had a duty of care and were in breach of such duty. 

30. The contract as described between the 3^rd defendant and the Government is at page 195.  Clause 16 says :

“(1)    The Contractor and any sub-contractor shall provide in connection with the execution of the Works ...

(2) The contractors shall give or provide all necessary superintendence during the execution of Works and as long thereafter as the Surveyor may consider necessary for the proper fulfilling of the Contractor’s obligations under the Contract.”

then Clause 17(1) said :

“    The contractor shall, throughout the progress of the Works take full responsibility for the adequate stability and safety of all operations on the Site and have full regard for the safety of all persons on the Site.  The Contractor shall keep the Site and the Works in an orderly state appropriate to the avoidance of danger to all persons.”

31. It seems to me that certainly the 3^rd defendant and also to some extent the 2^nd defendant, they were in breach of their common duty of care to the plaintiff because they should have firstly, as provided by Clause 16(2), have the necessary superintendence, that is someone there to supervise the execution of works.  If they had done so, they would then have realised that they need a scaffolding platform in order that the worker like the plaintiff can reach the spot safely.  Secondly, they should have taken full responsibility for the safety of all the operation.  It is no good for Mr Poon to say : “Oh, I have gone to the site.  I have agreed with the Government people that this could be done without scaffolding and from an elongated hand-held saw.”

32. My finding is :

(1) I do not believe Mr Poon; and

(2) in my view, it does require a scaffolding and therefore whatever may be the view held by the 3^rd defendant is neither here nor there. 

It seems to me that the 2^nd and 3^rd defendants plainly owed a duty of care to the plaintiff and they were in breach of that common duty.

33. Reliance was also placed by Mr Hung on behalf of the plaintiff on breaches of three statutory provisions under Occupiers Liability Ordinance, under Occupational Safety and Health Ordinance and under Construction Sites Regulations.  I do not agree with Mr Hung that the Occupiers Liability Ordinance is applicable, or the Occupational Safety and Health Ordinance is applicable.  It seems to me that having regard to those two provisions that they plainly have no relevance or application.  It would not be necessary for me to go into the details of why I come to a contrary view.  On the other hand, it seems to me that the Construction Sites Regulations can be relied upon.  That, of course, only applies to the 3^rd defendant’s liability.

34. Regulation 38B of Construction Site Regulations reads :

“    Without prejudice to the other provisions of this Part, where work cannot safely be done on or from the ground or from part of a building or other permanent structure, the contractor responsible for the construction site concerned shall provide, place and keep in position for use of properly maintain either scaffolds or, where appropriate, ladders or other means of support, all of which shall be sufficient, strong and suitable for the purpose.”

35. Now, there can be no doubt that if it is applicable then this would clearly show that there has been a breach because, from what I have described, work cannot be done safely from the ground and therefore they should have been erected and keep in place a scaffold or means of support, strong and sufficient, suitable for the purpose of enabling work to be done from the height. 

36. The doubt that was created and much of the time of the trial was spent as to whether the provisions are applicable.  The doubt being who is the contractor responsible for the construction site concerned, that is whether the 3^rd defendant could be said to be the contractor responsible for the construction site concerned.  Construction site is definded in the Construction Site (Safety) Regulations as :

“... a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work ...”

Regulation 2(2) says :

“(2)    For the purposes of these regulations— 

(a)   a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there ...”

37. So for the present purposes, if the 3^rd defendant being the principal contractor engaged by the Government, if it is a construction site, then he would be regarded as the contractor responsible for the constructing site.

38. For the meaning of “construction work”, one can turn to the Factories and Industrial Undertakings Ordinance, Cap. 59, under section 2, under the definition of “construction work”, it says :

“‘construction work’... means—

(a) the construction, erection, installation, reconstruction, repair, maintenance ... renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Third Schedule ...”

So therefore one has to turn to the Third Schedule to see whether it is “construction work”.  Third Schedule describes under the specified structure of works :

“1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

2.   Any road, motorway, railway, tramway, cableway, aerial ropeway or canal.”

39. The way I have construed this provision is that it fits into statutory scheme so that the maintenance of the road that we see on pages 250 and 251 and the fence requires the Government to ensure that no protruding tree branches would cause any harm to either cars or pedestrians and that is why trees need to be trimmed as well as sawn off and that was the work that was done.  Therefore that statutory scheme fits in perfectly with the work that the Government asked the 3^rd defendant to do, which the 3^rd defendant then sub-contracted out to the 2^nd defendant and so on downwards and which the plaintiff did. 

40. So my view is, contrary to what was submitted by Mr Ng, it is not the tree that is the target of the subject matter of the construction site but the construction site was the subject matter because of the maintenance of the road and the fence and in the course of work to be undertaken for the maintenance of the road and fence, there was the trimming of trees and the sawing off of trees which undertaking led to the accident.  So the accident occurred being very much subject to the application of the statutory Construction Site Regulations and there can be no doubt in my mind that the 3^rd defendant was in breach of that.

41. This seems to me the most powerful application and reason for me to find that the 3^rd defendant should be liable to the plaintiff.  Any causal observation would have indicated, having now dismissed Mr Poon’s suggestion of “it could be done from the ground” that a scaffolding was required to ensure the safe carrying out of the work from a height and this was not done, obviously to save money.  I have no doubt that the 3^rd defendant should be liable for the accident.

42. I now come finally to the last issue and that is whether there is any basis to contend that there should be contributory negligence.  In this I totally echo the sentiment of Suffiad J in the case of Lau Chiu Wah v. Kwong Kee Construction and Engineering Ltd.  He says at paragraph 46 there :

“46.   Even accepting in this case that the plaintiff was an experienced stone-cutter, I would be slow in finding contributory negligence on his part by reason of the fact that he was supplied with inadequate equipment for him to carry out his work.  Here the plaintiff had to get on with his job despite the inadequate equipment supplied to him by the defendants.  A situation quite different from one in which the plaintiff embarks upon an unsafe method of work to take a shortcut or for his own purposes.  In the present case, even if the plaintiff was aware that it would not be safe for him to drill standing on top of the metal tank, he was left with little alternative, short of stopping work altogether.  For these reasons, I am not prepared to find that the plaintiff was guilty of contributory negligence.”

43. The sentiment that caused Suffiad J to that conclusion was of course based on a long standing principle under workman’s claims against their employer for negligence and the court’s repeated reluctance to find there is any contributory negligence.  Charlesworth on Negligence cited by Mr Hung at page 217 under paragraph 366 where it says :

“... even when damages could be apportioned according to the degree of fault, and it might have been expected that an employee’s position would be equated to that of all other persons.  Lord Tucker said that in cases under the Factories Act :

‘the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute.’

That principle applied also where the workman’s carelessness had overstepped the boundary between inadvertence and negligence and the court had to assess culpability.  It was said that the courts must be careful not to emasculate the protection given by the regulations through the side wind of apportionment and that the workman must not be judged too harshly for a momentary error, where there was a continuing breach of the law by his employers.”

44. The principle behind this is this : that by the statute, parliament deems fit to impose statutory protection for the workers by imposing obligations on the employer.  Where the employer was, as in this case, in breach of that statutory obligation, the court must not easily take away from the worker that protection that was given to them by punishing the worker with either a contributory negligence or apportionment for a momentary lapse unless the worker can be seen to be plainly acting so fool hardy or so way out of his normal course of employment.  A momentary lapse, even if there should be one, should not result in a finding of contributory negligence.  In my view, the plaintiff had done reasonably what any workman would have done.  He had regard for his own safety but he was doing the best he could.  The accident happened because of the negligence and the failure of the defendants to do what should have been done for the protection of the workers and not because of the plaintiff’s own failure or negligence. 

45. I find that there was no contributory negligence and the finding of the court therefore is liability should be held against both the 2^nd defendant and the 3^rd defendant with no contributory negligence by the plaintiff. 

46. There should be assessment of damages in due course against the 2^nd and 3^rd defendants.  The assessment should be made by a master.  I also order the costs of the trial to the plaintiff against both defendants.  The plaintiff’s own cost to be taxed in accordance with Legal Aid Regulations.