WONG TUNG MING v. HO CHUI YING

1995, No. PI 928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 928 OF 1995

____________

____________

_______________

J U D G M E N T

_______________

1. These two actions arise out of the same accident which occurred on 27th January 1994 when the Plaintiff suffered burn injuries as a result of a fire in a flat on the 12th floor of a block in Texaco Road, Tsuen Wan. The 1st and 2nd Defendants in the first action are husband and wife respectively, and the joint owners of the flat in question, which they had purchased in December 1993. The Defendant in the second action is the mother of the husband, the 1st Defendant. For the purposes of this judgment I shall refer to them as the 1st, 2nd and 3rd Defendants respectively.

2. The Plaintiff, at the time of the accident, ran a business which specialised in sanding and varnishing wooden floors. Indeed, this appears to have been the only work he carried out. He worked as a sub-contractor, receiving orders from a company called Ho Choi Floor Engineering, for whom he had at one time worked before starting up on his own. They in turn, on this occasion, had received an order for the sanding and varnishing of the floors from another company called Tsuen Mai Furniture who had been engaged by the 1st and 2nd Defendants to renovate and decorate the flat. The rest of the renovation and decoration had commenced shortly after the 1st and 2nd Defendants had taken possession of the flat on 29th December 1993, and was scheduled to be completed in time for them to move in on 28th January 1994. Understandably, the last item of renovation was to be the sanding and varnishing of the floors. The Plaintiff, and his wife, who assisted him in his work, arrived on the afternoon of 24th January to carry out the work, which involved sanding the floors with sanding machines, clearing away the sawdust thereby created, and painting the floors with a mixture of varnish and thinner. The procedure for a flat such as this would be, after sanding and clearing sawdust, to paint an initial coat of varnish with slightly more thinner than varnish mixed with a chemical to assist the drying process. This would dry quite quickly and a second coat would then be applied with a ratio of about 50/50, varnish to thinner, and after that was dry, sanding again by hand to ensure a smooth finish and painting with a final coat with less thinner than varnish.

3. It is not in dispute that, while the Plaintiff and his wife were engaged in this work, the 2nd and 3rd Defendants arrived, and a fire broke out in the flat after the 3rd Defendant had lit candles and joss sticks, and possibly other items, outside the door of the flat to worship the door god, which in turn ignited the highly inflammable vapour from the thinner. The Plaintiff, who was working inside the flat, suffered extensive burns over his body as a result.

Liability

4. The accounts by each side of the events leading up to the fire are very much in dispute, and must be resolved. There is no doubt that the accident occurred because of the combination of thinner vapour in the flat and the source of ignition just outside the door. However, it is the Defendants' contention that liability for it lies with the Plaintiff, for failing to warn the 1st and 2nd Defendants of the danger of the inflammable vapour, and by closing the windows and turning on the extractor fans in the kitchen and bathroom which caused a draught through the front door as a result of which ash or cinders from the burning materials were drawn in to the flat.

5. The latter theory as to the cause of the fire is the conclusion of a report from Inspector Peter Choy of the City of Surrey Fire Department, B.C., Canada, provided on the instructions of the Defendant's solicitors. The latter was put in evidence by agreement, although the contents are not admitted by the Plaintiff, and he was not called to give evidence.

6. Inspector Choy did not examine the flat, but was provided with a set of photographs taken two days after the fire. There is no evidence of what other information was supplied to him by the Defendants' solicitors, but he had clearly been informed that the Plaintiff was varnishing the floor with a mixture of varnish and thinner. He came to his conclusion on the basis of his opinion that the condition of the extractor fans indicated that they had been on at the time of the fire, and the fire originated with vapour in the living room, into which the front door opened. He does not deal with the possibility of a draught being produced by any other cause, or a draught in the opposite direction blowing the vapour out of the door towards the flame, or whether he assumed the thinner to be in a container or spread on the floor, although he refers in the last line of his report to "lacquer thinner vapour which saturated the living room area of the flat."

7. He does not deal with the question of the windows being open or closed and the effect in each case, nor the possibility of any other source of draught from outside the flat, such as another door being opened in the corridor. I appreciate that, as he did not visit the premises, see the damage and the distribution of smoke and soot, nor even, it would appear, have a plan of the flat, he was at a considerable disadvantage. This being the case, although I accept that it is more likely than not that the fans were on at the time of the fire, I have to treat his conclusion that the draught from the fans was the sole cause of ignition with a great deal of suspicion.

8. The witnesses who gave evidence as to these events were the Plaintiff and his wife, and the 2nd and 3rd Defendants.

9. The Plaintiff, whose evidence was largely confirmed by his wife, said that they arrived at the flat at about 3.30 p.m., having been to another job earlier in Tseung Kwan O. They had no keys but the door of the flat was not locked and they went in and turned on the electricity supply at the main switch in the kitchen, and opened the windows. He said that the usual procedure was to have the windows open for sanding, although not the doors to the kitchen and bathroom as the sawdust would spread into those rooms, and for applying the first two coats of varnish, but to close them for the last coat when it was important to ensure that there was as little dust in the air as possible which might settle on the wet varnish and spoil the finish. Neither of them were able to say with certainty whether the extractor fans in the kitchen and bathroom had come on with the electricity, but they said that they did not recall hearing them and both maintained that they had not turned them on. Indeed, the Plaintiff's wife said that it was not their normal practice to use the fans for ventilation. However, in the light of Inspector Choy's report I consider it likely that they were on, although I consider it more likely than not, on the evidence, that the windows were open as well.

10. The Plaintiff and his wife then proceeded to sand the floor, starting in the two bedrooms and then into the living room, and it was while they were there that the 2nd and 3rd Defendants appeared, and it is not in disputed by any of the witnesses that the process had reached the stage where the sanding had finished or nearly finished and the Plaintiff and his wife were sweeping up the sawdust and filling gaps in the floor prior to applying the varnish.

11. The accounts diverge at this stage. The Plaintiff and his wife say that he asked the two women whether they were the owner and the 2nd Defendant said she was. They then said that they wished to worship gods in the flat, and the evidence of the 2nd and 3rd Defendants is that they wished to conduct a ceremony called "4 corners" in the living room. They had with them plastic bags with food, fruit, joss sticks and candles, and paper plates. The Plaintiff said that he told them that he was about to start varnishing the floor, that the process involved thinner, and that there would be a danger of fire, and advised them to worship the next day. He then told them to leave as he had to carry on with his job. They left and he carried on finishing the floor ready for varnishing. They then returned and asked to worship again. Again the Plaintiff told them that they could not, and that if they wanted to burn joss sticks and candles they should do so at the rear staircase, or that they could return after 6 p.m. and they again left. He said that they then returned a third time, said nothing but started placing paper plates on the floor. It is apparent that there was by this time a certain amount of ill feeling, and the Plaintiff was anxious to get on with his work. In any event, he admits that he was angry and that he shouted at them that they had been told that they could not worship, and as he was still sweeping at the time, he swept away the paper plates. They then left the flat. The Plaintiff said that he continued to clean up, went outside into the corridor to mix the varnish and thinner, and he and his wife started to paint it on to the floor, starting in the bedrooms. During this time he felt that the women were still outside the flat. The painting proceeded from the bedrooms into the living room, until there were only a few square feet left near the front door, the Plaintiff's wife then tipped the remains of the contents of her bucket into his so that he would have enough to finish that coat, and stepped out of the flat. It was at that moment they said the fire erupted.

12. From this account it can be seen that there must have been a not inconsiderable time frame between the 2nd and 3rd Defendants entering for the first time, when no painting had started, and the fire, which occurred when the Plaintiff had nearly finished the first coat.

13. The Defendants, however, maintain that this period was much shorter, that they arrived at the flat at about 5.20 p.m., went in only once while the cleaning was in progress. They said that there was no mention of ownership, and it was only the 3rd Defendant who spoke to the Plaintiff about worshipping. He became angry and said it would obstruct his work, whereupon the 3rd Defendant told the 2nd Defendant to place the paper plates on the floor, but the Plaintiff was hostile and told them to go out, which they did. They said they went out and the 3rd Defendant immediately placed the plates and candles stuck into apples just outside the door and lit them. Shortly after that the fire started. The 3rd Defendant said that they were only in the flat 2 or 3 minutes, and the items for worship were put outside immediately they left. Both said that no warning was given by the Plaintiff about the thinner.

14. If the Defendant's version of these events is correct, the Plaintiff and his wife were still at the sweeping and cleaning stage at the time the candles were lit and it is difficult to see what it was that caught fire. Whereas if the Plaintiff is right, there was not only a floor covered with freshly painted, highly inflammable liquid, but he had in his hands a bucket of the mixture and a brush soaked in it, and was just inside the entrance behind the door, a very short distance from where the 3rd Defendant was lighting candles and joss sticks.

15. Mr. Lim, on behalf of the Defendants has sought to put forward an explanation that the Plaintiff was mixing the varnish and thinner inside the flat, and it was the vapour from this which ignited. In support of this theory, he pointed to the greater fire damage near the living room window and airconditioner and submitted that this showed that the seat of the fire was there, and it must have been where the varnish was being mixed.

16. There are a number of flaws in this argument. There is no evidence from the Defendants themselves that there was anything in the flat except the items being used to sweep and clean it. They saw nothing on the floor resembling tins of varnish and thinner, and buckets, and did not see him mixing the varnish by the window in the flat, which, from the sketch plan produced by the Defendants, and with the door open, they must have been able to do, given their stated position just outside the door. On the contrary, the 2nd Defendant said that when she arrived she saw the tins outside the flat in the corridor. It is in any event totally illogical for the Plaintiff to have on the floor which he is about to paint, tins of varnish, thinner and drying chemical, which would then have to be moved as he progressed with the varnishing . The Plaintiff and his wife both say that the varnish was mixed in the corridor with the tins on newspaper so that no mess was made of the floor. I find his explanation that the mixing was outside the flat both convincing and sensible.

17. Further, if tins and buckets near the window were the source of the fire, on the theory advanced by Inspector Choy, the draught from the fans would have to be sufficient to drag the ash or cinders through the door and across the living room to a point near enough to ignite the vapour. Given that the fans were in the kitchen and bathroom, on the opposite side of the living room from the window, it does not take a lot of imagination, and little scientific knowledge, to see that anything carried by a draught would, if the fans were on, move towards the other side of the room, away from where Mr. Lim contends the Plaintiff was mixing his varnish.

18. There is another, and in my view, more convincing explanation for the greater fire damage by the window. The Plaintiff says that when he was suddenly engulfed in flames he threw away from him the bucket containing the varnish and thinner, and the brush he was using. As a matter of common sense, the varnish in the bucket, even if there was not a lot left at that point, would, when it landed, cause a greater localized fire than that of the varnish spread over the floor and which was already beginning to dry, yet there is no evidence of any other single damaged area apart from the general fire damage throughout the flat.

19. I accordingly have no hesitation in accepting the evidence of the Plaintiff and his wife, that their work had progressed to the point where they had nearly finished the first coat, and the Plaintiff was near the front door, when the fire started.

20. This in turn means that the evidence of the Defendants as to the timing of these events cannot be right. We know from the fire services record that the fire was reported at 5.41 p.m. There is no evidence of who made the call reporting the fire, but the evidence is that the police and firemen arrived shortly after they all reached the bottom of the stairs down which they had all run immediately after the fire. I consider it likely therefore that the fire started some time between 5.30 and 5.40 p.m. By that time the Plaintiff had finished clearing the floor of sawdust, mixed the varnish, and, with his wife, had painted the floor of the two bedrooms and most of the living room. The Plaintiff puts the time between sending the 2nd and 3rd Defendants away for the third time and the fire at about 20 minutes.

21. This means that there was a period of at least half an hour from the arrival of the 2nd and 3rd Defendants, which must have been nearer to 5 p.m., and the fire, not the matter of minutes that they would like me to believe.

22. As to the events before that, in the light of my findings above, and having observed the parties giving evidence, I am bound to say that where the evidence of the Plaintiff and his wife differs from that of the Defendants, I prefer the former.

23. I also accept the evidence of the Plaintiff that he warned the Defendants of the danger of fire when he realised that they intended to burn candles and joss sticks. He is an experienced worker in this field and is well aware of the extremely volatile nature of the liquids with which he works. I cannot believe that, knowing that the Defendants intended to light a naked flame near to where he was working, he did not tell them of the danger. He says that he told them to burn the candles and other materials on the rear staircase if they had to do so. I accept his evidence on this also, although it is possible that they misunderstood, as there was clearly a great deal of ill feeling that day.

24. Be that as it may, I am satisfied that the 3rd Defendant, having been warned of the danger, negligently lit the candles and joss sticks near to the door of the flat and caused the fire. Even if she did not hear, understand or register the warning from the Plaintiff, there must have been a strong smell of the thinner both from the painting inside the flat and the mixing earlier in the corridor. I cannot believe that any reasonable person, aware of the distinctive smell, did not know that it may be inflammable, any more than a person smelling petrol vapour could not be aware of the danger of fire if a naked flame was brought near it. She must accordingly be liable to the Plaintiff.

25. What of the other Defendants?

26. The 2nd Defendant was with her mother in law throughout the critical period of the lighting of the candles, although she says that she left before the fire started, to go, on the 3rd Defendant's instructions, to look for a container to burn "ghost money", and was on the staircase at about the 8th or 9th floor when she heard her mother in law shout "Fire".

27. I consider it likely that she was near when the fire broke out. The Plaintiff's wife said she saw her near the lift when her husband rushed out of the flat on fire. There was clearly general and understandable panic on all sides, and it is not in dispute that all went downstairs by the rear staircase. The 2nd Defendant in her evidence sought to distance herself from what her mother in law was doing outside the flat. She initially denied being there at all when the candles were lit, but when challenged with her witness statement admitted that she was. She was clearly assisting her mother in law with her worshipping and knew what she was doing.

28. The 2nd Defendant maintained in evidence that she had not known that her mother in law was going to worship at the flat that day, was not expecting her and only discovered about the worship while walking to the flat with her. The 3rd Defendant too says that she had made no prior arrangement with her daughter in law. Yet she had travelled to Tsuen Wan from her home in Tuen Mun, buying the items she needed for worship on the way and carrying them in what she described as two heavy bags, and without knowing even the address of the new flat, went to the 2nd Defendant's mother's building in the hope of finding her daughter in law to take her to the flat to worship. I find it more likely that it was pre-arranged between them that the mother in law should go to worship that day, which she had been told was particularly auspicious, and they met for them to proceed together to the flat. The 2nd Defendant might not have the same enthusiasm for the worship as her mother in law, but she was obviously prepared to let her do it and to assist her.

29. She was therefore also in a position to either stop her lighting her candles and joss sticks in a dangerous place, or to direct and assist her to do it somewhere safe. I have no doubt therefore that she too is guilty of negligence in starting the fire.

30. The 2nd Defendant also is an occupier of the premises, being one of the owners and holder of a set of keys, and in the position of having a right to invite others into the premises. The Plaintiff was a visitor, permitted to have access to the flat for the purpose only of carrying out work there, and she clearly therefore owed him a duty of care. From my findings above, it is clear that her behaviour on that day fell far short of the degree of care expected of an occupier. While she had a right to expect the Plaintiff to guard against any risks incidental to his work, he could not expect, in the circumstances here, to be placed in the extreme danger created by the 2nd and 3rd Defendants.

31. The 1st Defendant is also an occupier, and although he was not present, or indeed in Hong Kong, one the day in question, he still owed a duty of care to those lawfully visiting the flat with his permission. He had arranged the renovation work, which he knew included varnishing the floors, and regularly went to the flat to check on progress. He therefore owed the same duty of care to the Plaintiff.

32. Again, he had a right to assume that those carrying out the work would exercise the care necessary in their profession, but equally he had a duty to ensure that they were not exposed to any risks over which he had some control. There is bound to be some risk associated with worshipping activities such as those planned by his mother, which include the lighting of candles, joss sticks and other materials. Did he know, or have reason to suspect, that she would go to the flat to carry out that worshipping?

33. I think that he did. He had lived with his mother and the rest of the family both before, and for some years after, his marriage, and was well aware of her long held beliefs, which included burning joss sticks which she did at home. It would seem natural therefore that his mother would want to go to the flat before they moved in to pay her respects to the gods. He did not tell her not to go, and indeed, said he would not be surprised if family members did go to the flat while work was going on.

34. He accordingly was aware that his mother might go to the flat for this purpose, and as an occupier he had a duty to see that such activities did not pose a risk to any lawful visitor, which includes the Plaintiff. I find that he was therefore also liable to the Plaintiff for this accident.

Contributory negligence

35. I have found already that, on the evidence, the Plaintiff warned the 2nd and 3rd Defendants of the danger of fire. I also find that there was no reason for him to believe or suspect that his warnings had gone unheeded. Although he says that he knew the women were still outside the flat, there is no evidence that he thought that they might light anything there, or that he should not proceed with his work. I am therefore unable to find that he was in any way responsible for this accident himself.

Quantum

Pain suffering and loss of amenities

36. The Plaintiff suffered severe burns over 15% of his body, including his face, hands and arms, and feet. He was in hospital for nearly three months during which time he underwent several operations. According to the report from Princess Margaret Hospital, the condition was complicated by wound infection requiring antibiotics and daily wound dressing. He also suffered severe wound pain. It is apparent from the photographs taken by Dr. Nicolson for his report and my own observations, that, although his face has recovered well without serious scarring, he has permanent and unsightly scars on his arms, hands and feet which cause discomfort and limitation of movement.

37. I am satisfied that the injuries are such as to place them at the lower end of the "serious injury" category, which I take to be now $500000, and which is the sum I award.

Loss of earnings

38. Exact calculation of the Plaintiff's pre-accident earnings is not easy as, although he kept good records of jobs done and money received, his estimates of the expenses of his business are vague and he made no tax returns. He considers that he was earning about $800 a day over a 26 day working month, giving him $20800 each month on average.

39. He has produced books which he says record work done by him and money received from 1st November 1992 until the date of the accident. These show his receipts, after allowing for the 15% commission he paid to Ho Choi, who supplied him with orders, at an average of $41628 per month. Out of this he says that he has to pay for his own materials, which amounts to about 40% of the sums paid, leaving $24977, and the running expenses of his van. These latter expenses include road tax, insurance, parking charges, fuel and tunnel fees. Mr. Lim has done a calculation based on rough, but I consider reasonable, estimates, and arrives at a figure of $4451.25 a month. Deducting this from the balance of $24977 leaves a monthly profit of $20526. This is so close to the Plaintiff's own estimate of $20800 I am happy to accept his figure.

40. However, this is not the end of the matter, as I have to take into account the part played by the Plaintiff's wife. She was his unpaid assistant in all his jobs. He said he needed her to help carry the equipment, and she took part in the operation of sanding and painting the varnish. The income of the business were clearly therefore earned between them, as without her it is likely he would have needed at least a part time assistant whom he would have had to pay. She was not injured in the accident and she still has an earning capacity and ability to contribute to the family. Indeed, she is now working and earning, in January 1997, $3800 a month.

41. Mr. Lim had urged me to regard the Plaintiff and his wife as equal partners in the business, and to attribute to him only half of the income therefrom. However, I do not think that this meets the justice of the situation. The Plaintiff was skilled worker who had some years experience in this work. It was he who decided how the work should be carried out, what proportion of varnish to thinner should be used, and he who kept the records and ran the business. His wife was merely an extra pair of hands. Doing the best I can with this information, I assess her contribution to the business at $6000 a month, leaving his income at $14800 immediately prior to the accident. I propose to ignore the tax he might have paid on this. He did not pay any tax, and I have been given no figures to show what, if any, his tax liability would have been after the usual allowances. It would not be in any event anything near the maximum rate of 15%.

42. If the Plaintiff were still in the same employment today, and assuming a modest rate of inflation of 8% to the beginning of last year, and none since, he would be earning $20135 a month. The median for the period from the date of the accident to date is accordingly $17467. 50.

43. The Plaintiff was unemployed from the date of the accident to March 1996 when he secured employment. Although his sick leave expired on 5th June 1995, I do not consider this period of unemployment unreasonable and will accordingly allow his full loss of earnings for this period which amounts to $441927.75 ($17467.50 x 25.3 months).

44. He secured employment at a wage of $8000 a month in March 1996. This was increased in July 1996 to $8700, in February 1997 to $9500, in February 1998 to $10500 and in February 1999 to $10800. His partial loss since March 1996 has accordingly been:

(a)	March 1996 to July 1996 ($17467.50 - $8000 x 4 months)	=	$37870.00
(b)	July 1996 to February 1997 ($17467.50 - $8700 x 6 months)	=	$52605.50
(c)	February 1997 to February 1998 ($17467.50 - $9500 x 12 months)	=	$95610.00
(d)	February 1998 to February 1999 ($17467.50 - $10500 x 12 months)	=	$83610.00
(e)	February 1999 to 21st September 1999 ($17467.50 - $10800 x 6.66 months)	=	$44405.55
			$314100.55

45. The Plaintiff is now nearly 44 years of age and I consider an appropriate multiplier for loss of future earnings to be 11. Were it not for the accident he would now be earning $20135 a month. His continuing loss is therefore $9335 a month (($20135 - $10800) x 12 x 11 which is $1232220.00.

Special damages

46. These were agreed as follows:

(a)	Medical expenses	$ 3814.00
(b)	Travelling expenses	$ 5980.00
(c)	Special Foods	$ 7860.00
		$ 17654.00

Summary

47. Damages are accordingly assessed and awarded as follows:

48. There will also be interest on the special damages and pre-trial loss of earnings at 5.76% from the date of the accident, and on general damages at 2% from date of writ, to date.

49. It follows from the above that I do not consider the Plaintiff to be in any way to blame for this accident, and I accordingly dismiss the counterclaim.

50. However, had I allowed it, I would have accepted Mr. Lim's calculation of $102500.00, being the sum claimed less $600, the cost of a new item not resulting from the fire. There was no conclusive evidence that any of the other items in the Defendants' bill for repairs were not necessary repairs as a result of fire damage.

51. There will be an order nisi for costs to be taxed in favour of the Plaintiff against all Defendants. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.