HO YEE YING AND OTHERS v. PETER LEUNG CONSTRUCTION CO LTD.

Fatal accident - damages - construction worker electrocuted by employer defendant's unearthed defective lamp - whether defendant established contributory negligence on part of deceased - no direct evidence on contributory negligence issue so a matter of inference - dependency - free balance - Held: 1. Defendant employer negligent; 2. Contributory negligence not established against deceased; 3. Free balance amounted to 55% of deceased's income; 4. Total damages awarded $437,659.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

H.C. Action No.6360 of 1984

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J U D G M E N T

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1. The deceased Mr. Ng Kam Wo, died on 16th April 1982, as a consequence of being electrocuted, when employed by the defendant as an odd job worker, on its construction site at Matauwei Road, Kowloon. The present action is brought by his administratrices for damages under the Fatal Accidents Ordinance, Cap.22 ("FAO") and the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 ("LARCO").

2. The plaintiffs claim that the death of the deceased was caused by the defendant's negligence and breach of statutory duty. The defendant admits that the deceased died as a result of being electrocuted but denies that it was negligent or in breach of statutory duty. The defendant further and alternatively pleaded, that the accident was caused wholly or in part, by the deceased's own negligence.

Liability

3. There was no dispute over the cause of death. There had been a death inquiry by the Coroner who, on 9th September 1982, found that the cause of death was electrocution. It was also undisputed that at about 7.30 p.m. on 16th April 1982, the deceased had been working at the construction site in the basement of a new building then being erected. Electric lighting was provided by the defendant to enable the work to proceed. The deceased's main job was to clean up wet concrete, dripping from the form work of the floor above the basement, which had then been poured with concrete. When the deceased was found, he was holding on to a Halogen, tungsten lamp fitting, which was still alight.

4. The Halogen lamp was one of two types available for lighting the basement. A similar type of lamp was produced as Exhibit Dl. The other type of lamp was of much more substantial construction and appeared to be more suitable for portable use. One of the latter type of lights was produced as Exhibit D2. There was no dispute that the Halogen lamp, held by the deceased, was unearthed. I had the advantage of a considerable amount of evidence on the nature of the Halogen lamp. The plaintiff called Mr. C.T. Poon, an Installation Inspector of China Light & Power Ltd.; Mr.Y.T. Tse the Chief Technical Officer of the Electrical and Mechanical Services Department of the Hong Kong Government; and Mr. W.S. Cheung, a Factory Inspector employed by the Labour Department of the Hong Kong Government.

5. Mr. Poon and Mr. Cheung personally inspected the basement where the fatal accident occurred. Mr. Tse later received from Mr. Cheung, the Halogen lamp which the deceased held, for testing and inspection. Mr. Cheung is the holder of a Diploma in Electrical Engineering. Mr. Poon and Mr. Tse held Higher Certificates in Electrical Engineering. The defendant called Mr. C.T. Cheung who was employed by the defendant as an electrical technician. One of his responsibilities was to instal and supervise the lighting of the basement. He held no professional or technical electrical qualifications and stated that he devoted about half of his time to electrical work and the other half of his time to welding.

6. All four of these witnesses, including the defendant's Mr. C.T. Cheung, stated that the Halogen lamp was not earthed. They all further stated that in its unearthed condition it was dangerous. Mr. Tse in fact described such a lamp as "very dangerous". I accept their evidence and find that the Halogen lamp was unearthed and in that condition was dangerous.

7. In addition, the Halogen lamp's metal casing was extensively covered in concrete. The extent to which the concrete covered the metal casing of the lamp is apparent from the three photographs of the lamp produced as Exhibit P.106. The defendant's site supervisor, Mr. H. Chan, stated that not only Halogen lamps used by the defendant but also other lamps at the site, tended to have their outer casings covered with concrete. He stated that some of the concrete on the lamp which killed the deceased, probably included concrete drippings from the floor being poured above the basement. From the evidence I infer that the concrete on the lamp casing had accumulated over a period of time and that some may have been added on the day of the accident from the concrete drippings from the basement ceiling. I further find that this exterior condition of the lamp, was similar to many of the other lamps ,used by the defendant on this site.

8. The additional and substantial danger created by the defendant in allowing lamps to be used with such an accumulation of concrete, is obvious from the expert evidence of Mr. W.S. Cheung and Mr. Y.T. Tse. I accept their evidence that the concrete deposits covered parts of the lamp casing and cable connectors. The originally wet concrete, even after drying, provided a covering which absorbed moisture in damp or wet conditions. The concrete covering then formed an electric conducting path from the live terminal to the metal lamp casing. As a consequence, in the absence of earthing, any person who was in contact with the casing, would receive an electric shock. The strength of the current flowing into that person's body would depend on the amount of moisture in the concrete mixture. I am satisfied that the concrete covered condition of this particular lamp, further increased its dangerous, unearthed condition.

9. The defendant was the contractor responsible for the site under the Construction Sites (Safety) Regulations, Cap.59. In view of the facts already found, it is not surprising that arising from the fatal accident, the defendant was charged under Regulations 47(1) and 68(1)(a) thereof with failing to take measures to prevent its workmen from being endangered by live electrical apparatus, they were liable to come into contact with at the site. To that charge the defendant pleaded guilty in the San Po Kong Magistrate's Court on 12th November 1982 and was fined $2000.

10. In relation to the events leading up to the fatal accident, the parties called a number of witnesses who worked on the site ,while the transcript of the evidence given before the Coroner was by agreement tendered to the Court. After considering the evidence, I am satisfied that the defendant employed 2 electrical technicians on this large construction site on which over 100 men worked ,comprising more than 30,000 square feet. At the site there was a Mechanical Store where lamps of both the Exhibit D1 and D2 types were stored. I accept that generally the Halogen Exhibit Dl type lamps were installed in fixed positions while the Exhibit D2 lamps were also used as portable lamps.

11. The defence stance was that the deceased's duties did not include dealing with electrical appliances and that he was negligent in holding the non-portable Halogen lamp. The evidence contradicted at least to some extent this alleged clear division of responsibility. Mr. M.C. CHan, who gave evidence, was a relative of the deceased and both lived and worked with him. At the time of the fatal accident in the basement, Mr. Chan was working immediately above on the ground floor. He confirmed what the photographs of the scene suggested, namely that parts of the floor of the basement were wet at that time. He stated that from time to time, odd job workers obtained lamps from the store. While the electrical technicians initially placed the lamps in position, he stated that during the course of work ,odd job workers would thereafter, on occasion move the lamps. He further stated that the odd job workers were never told not to touch the lamps nor were there any warning notices displayed at the site. However, he agreed that he was once told of the danger of placing lamps in damp places.

12. Mr. M.C. Chan's evidence is reinforced, to some extent, by the defendant's own foreman Mr. L. Mak. Mr. Mak told the Coroner that usually the odd job workers would not move the lamps, as that job was done by the electrical technicians. But if in the course of work the lamps required to be redirected, the odd job workers would themselves point them in the new direction. The principal defence witness on the lighting system, was Mr. C.T. Cheung, one of the electrical technicians responsible for the basement lighting. Quite apart from the fact that he was formally unqualified and also spent much of his time welding, he turned out to be a most unsatisfactory witness.

13. Mr. C.T. Cheung unfortunately had a very poor recollection of events. He stated that his duties were not specific and he had to do other work such as welding and putting up framework. He agreed that he worked with temporary lighting. But to a series of material questions he replied he could not remember clearly what had occurred. He gave that negative answer to whether he had installed the temporary lighting in the basement; whether he had instructions to earth the lights; whether other Halogen lamps were earthed; whether he took any steps to ensure lamps he installed were earthed; the source of electricity for the lamp which killed the deceased; whether it was connected with a 3-pin plug; whether after the accident all other lamps were earthed.

14. However, he agreed that the unearthed lamps were dangerous; that the Halogen lamps were hung above wooden poles in fixed positions above head height; and that the casing of the lamps were very hot when in use. While he agreed that odd job workers collected lamps from the store he stated that he only issued to them portable lamps of the Exhibit D2 type. He did not know whether on other occasions they were issued with Halogen lamps. However, he denied that odd job workers ever had to move the Halogen type lamps from fixed positions.

15. On the issue of liability, the defendant also called its then Construction Site Supervisor, Mr. H. Chan. Mr. Chan has worked on construction sites for more than years and was employed by the defendant from 1974 to 1984. I found him to be a candid and honest witness. He agreed that he was in overall control of the site but pointed out that he delegated to the Chief Foreman, the task of supervising electrical work and satisfying himself that the electrical technicians employed were competent. Mr. Chan further stated that while the basement was below sea level, a dewatering system ensured that it did not flood. Until 1982 he stated that portable lamps of the Exhibit D2 type were used but that in 1982 and for a period thereafter Exhibit D1 lights were widely used because they gave off a brighter light. However, the use of Halogen Exhibit Dl type lights on construction sites had now been discontinued.

16. Mr. Chan described the deceased's duties and stated that his main job was to collect and clean up, wet concrete drippings which fell down through the ground floor formwork into the basement, during the pouring of the ground floor. It was important that the wet drippings be collected before they hardened. For this purpose the deceased was supplied with suitable clothing including rubber gloves and plastic boots.

17. In cross-examination Mr. Chan disputed that it was only after this fatal accident that steps were take to ensure that all lamps were earthed. Mr. Chan then stated that "the accident was due to negligence or overlooking at the time." When he was asked whose negligence or overlooking he was referring to he replied, "certainly the technicians." He further added that he did not think that the deceased did anything wrong. I infer that the latter reply was in respect of the deceased's duties as an odd job worker. That statement by the defendant's Construction Site Supervisor, reinforces the evidence of the deceased's co-worker Mr. M.C. Chan, that the deceased was diligent and hardworking.

18. In the light of the foregoing findings of fact I am satisfied that the evidence clearly establishes that the accident was caused by the defendant's negligence. Counsel for the defendant properly conceded, in his closing address, that the defendant was negligent. He then principally addressed himself to the question of the deceased's alleged contributory negligence.

19. Turning to the defence pleating of contributory negligence, paragraph 6 of the Defence, sets out 3 particulars of that allegation. The burden of proving contributory negligence rests on the defendant. In respect of the first particular there was simply no evidence that the defendant issued any prohibition against removing the Halogen lamp from a timber joist. Nor was there any evidence that there was any prohibition issued against moving the lamp when it was switched on. The third particular alleged that the deceased removed the lamp in such a fashion as to cause it to become damaged and for the whole of the lamp to become alive. There was no direct evidence on this final allegation. Counsel for the defendant conceded that there was no direct evidence. The undisputed fact is that no one saw how the deceased came into contact with the lamp or where at that time the lamp was located. However, Counsel for the defendant invited the Court to infer that the deceased moved the lamp in circumstances in which he knew or ought to have known were dangerous. The defence heavily relied on the fact that the deceased's primary duty was to pick up wet concrete drippings and the allegation that he was not required to touch any electrical installations.

20. I accept that two co-workers, Mr. C.Y. Lau and Mr. W. Chan, made brief statements to the Police in which they said the deceased was not required to touch electrical wires or installations. The statement to the Police of the foreman, Mr. K. Tam, was to similar effect but he pointed out that the deceased was not assigned work by him directly but worked under the supervision of Mr. L. Mak. I have already referred to Mr. Mak's evidence before the Coroner, that odd job workers under his supervision did themselves have to alter the direction of the Halogen lamps. The evidence of the co-workers was very brief and in general terms. I confirm that I accept Mr. Mak's evidence that on occasion odd job workers did, without the assistance of the electrical technicians and to the knowledge of the defendant, alter the direction of the lamps.

21. The defence also relied on the fact that as the lamp casing was hot, that should have deterred the deceased from touching the lamp. That submission ignored the reality that the deceased died, not from burns but from being electrocuted by an unearthed lamp. I was further invited to infer that his hands were wet and he should have known of the danger of touching a lamp with wet hands. Even if I am willing to infer that his hands were wet, that does not materially assist the defendant. For if the lamps were not covered with concrete and were earthed, merely touching the casing would not have resulted in the fatality. The deceased was an unskilled odd job worker and not an electrical expert.

22. The fact that the defendant allowed concrete to accumulate on the lamps, created an additional danger which leaves it open to infer, that even if the lamp were earthed, any person touching the concrete covering the lamp, may still have been electrocuted. However, because of the defendant's failure to earth the lamp, I do not have to consider whether to draw that further inference. The deceased was merely an odd job worker and I am not satisfied that it would have been negligent for him to have touched the shell of the lamp which he was reasonably entitled to presume was safely earthed.

23. I was also asked to infer that the Halogen lamp he held, must have been hung on a timber joist above the height of an ordinary person and that the deceased must have removed it from that position. I have considered whether that is an inference I can properly draw and have reached the conclusion, that the evidence does not justify such an inference being drawn. To use the language of McCardie J., in Barnett v. Cohen (1921) 2 KB 461, cited by the defence on another issue, whether the deceased did so, is more a speculative possibility than a reasonable probability. I hold that the defendant has failed to establish any contributory negligence on the part of the plaintiff.

Quantum

24. Damages under the FAO claim were sought in respect of the deceased's widow, 3 sons, his mother and father-in-law. The evidence was that all payments made by the deceased were to his wife. Apart from using such payments to maintain herself and their sons, the deceased's mother also lived in the family home. Deceased's wife made monthly payments of RMB60 to the mother who also shared the family's meals. The father-in-law did not live in the family home but deceased's wife also periodically made small payments to him. The defendant disputed the alleged dependency of the mother and father-in-law. The evidence of dependency was, at best, minimal. In the circumstances it was not surprising that the plaintiff did not pursue this issue with any vigour. I hold that the sole dependents were the deceased's widow and their 3 sons. I record that as a consequence that FAO claim will merge with the LARCO claim.

25. At the date of death, the deceased was earning an average of $111.86 per day and was working 30 days per month. However, he had only been employed by the defendant for about 2 months. Earlier when employed elsewhere, he could not have worked that relatively large number of days per month, as he made frequent and at times lengthy visits to China. The defence referred in considerable detail to these visits and submitted that a more realistic basis for damages would be to adopt merely 27 working days per month. The plaintiff accepted that position and based its submissions on a lower figure of 26 working days per month. I do not therefore need to consider the absences in China any further and will calculate damages on the basis of a 26 working days month. On that basis ,I further find, that the monthly wages of the deceased at the date of death, were $3000.

26. Turning to income from the date of death to the date of trial, both parties agree that it would have increased. The plaintiff pointed out that the deceased's income at the date of death was 16% above the Census and Statistics Department, calculations, of the average daily wages of workers, engaged in Government building and construction projects. If that 16% differential were maintained the deceased's monthly wages, would annually having increased in the intervening years resulting in a gross pre-trial loss of earnings of $271,728. The plaintiff further invited the Court to find that the current annual wages would be $66,192.

27. As counsel for the plaintiff observed, the defendant elected not to establish from any of its own records, wage increases of odd job workers in the construction industry from 1982 to 1988. Instead it submitted that the deceased's likely income at the date of trial would have been $3,850 per month. This figure was based on the evidence of Mr. H. Chan who had worked for the defendant as Construction Site Supervisor until 1984 and still works on construction sites but now for another employer. Counsel for the plaintiff elicited from Mr. Chan in cross-examination, that odd job workers in 1988 earn "$4,000 odd". On his present construction site he stated that, with overtime, odd job workers earned about $142.50 per day. The defendant seized on this sum to produce monthly earnings in the region of $3,850.

28. I note that the latest figures obtained from the Census and Statistics Department, were for November 1987 and revealed daily wages of $182.40. If 16% were added this produces a current daily wage of $212.15. The Census and Statistics figures are limited to Government projects and are necessarily average rates. I accept that the deceased at the date of death was not working on Government projects. He was a diligent, hardworking man, who could reasonably be expected to seek out and obtain work at higher available rates. This is borne out by the fact that at the date of death, he was earning 16% above the average daily rates on government projects.

29. In the absence of better evidence, I consider that a similar but slightly more conservative differential, of 10% should be adopted for subsequent years. Loss of income on actual rates for 1982/83 was $36,000. For subsequent years, applying the 10% differential, losses for 1983/84 would be $39,600; for 1984/85 of $41,488; for 1985/86 of $42,866; for 1986/87 of $45,949; and for the following 10 months to the date of trial $44,187. This produces a total pre-trial loss of earnings of $250,090. The current similarly based monthly wage would be $5,196.84 or $62,362 per annum for the forthcoming year.

30. To calculate future loss, it is necessary to select the appropriate multiplier. I was referred by both Counsel to a number of cases for guidance. At the date of death, deceased was 28 years old. The plaintiff invited the Court to adopt a multiplier of 15 while a lower multiplier of 14 was urged by the defendant. I find that the appropriate multiplier in the particular circumstances of this action is fourteen.

31. Based on a multiplier of 14, post-trial loss of earnings require to be calculated over the balance of 8 years and 2 months. The current monthly wage of $5,196.84 multiplied by those remaining 98 months produces post-trial loss of earnings of $509,290. If the pre-trial loss of earnings of $250,090 are added to the post-trial loss of $509,290, the total loss of earnings is $759,380.

32. The next step is to determine the free balance. The free balance may be ascertained by deducting from deceased's income his personal expenses. Alternatively, where the evidence of personal expenses is unsatisfactory, the free balance can be found by ascertaining the deceased's contribution to his family and adding to that sum his personal savings.

33. Counsel for the plaintiff submitted that the personal facts relevant to the decease" justified a relatively high free balance of 75%. It was submitted that as a matter of general principle, the greater the number of dependants and the more frugal the life style of the deceased, the higher the free balance. I was reminded that the deceased was a fit young man, working long hours, who forwarded most of his wages to his family or deposited them in local savings accounts. He neither drank or smoked. He paid rent of $600 per month for a cubicle within walking distance of his work and allowed his younger brother, who was studying part-time, to share that cubicle rent free. It was conceded that of the sum of approximately $26,000 in various savings bank accounts, it was proper to disregard the sum of about $10,000 in a Po Sang Bank Ltd. account as those were other persons monies, probably sent to him from Indonesia as agent, for remitting on to China.

34. Counsel for the defendant submitted that the evidence only supported a free balance of 45%. This sum was calculated by deducting from deceased's monthly wage of $3000 the sum of $600 for rent, and notional sums of $900 for meals and $200 for transport, clothing, fuel and other personal expenses. Counsel also put forward alternative calculations, based on the cash and other remittances to deceased's family in China. To those amounts an additional sum of $300 was allowed representing savings reflected by the remaining $10,000 in the other savings bank accounts. I note this allowance also accords with the notional 10% average savings, adopted by the Court of Appeal in Estate of Wong Sai-chuen v. Tam Mei-chun (1983) HKLR 331.

35. I am obliged to the very helpful submissions of both Counsel on this issue and found the approach of Counsel for the defendant particularly helpful. However, I consider that the evidence supports the deceased spending a little less on his personal expenses than the defence asserted. I also record that the defendant appeared to be under the misconception, that the deceased's younger brother was a full-time student, who had no source of income and that it would have been necessary for the deceased, to have provided financial support, in addition to the supply of free accommodation. In fact, the younger brother worked at an electronic factory, earning wages and was only a part-time student.

36. After reviewing the whole of the financial evidence I find that the deceased had a free balance of 55% of his income. This free balance produces total loss of earnings of $417,659 being 55% of the gross loss of earnings of $759,380. The $417,659 is made up of $137,549 for pre-trial loss of earnings and $280,110 for post-trial or future loss. The parties agreed upon the sum of $20,000 for loss of expectation of life. Funeral expenses appeared to have met by the deceased's fellow workers and this claim was not pursued. Damages of $437,659 are awarded made up as follows:

37. There shall be interest on the $20,000 damages for loss of expectation of life from service of the writ until today at the rate of 2% per annum. There shall be interest at the rate of 3½% on the pre-trial loss of earning of $137,549 from the date of the fatal accident until today. From the damages awarded, there will also have to be deducted the sum of $168,000, already paid as compensation under the Employees Compensation Ordinance.

38. The apportionment and investment of the infant sons interests, is adjourned to the Master in Chambers, unless application is made to the contrary within 14 days for which liberty to apply is reserved. There shall also be an order nisi that the defendant shall pay the plaintiffs costs of and occasioned by the action, to be taxed in accordance with the Legal Aid Regulations; such order to become absolute unless application is made to the contrary within 14 days.