SO FAT v. KEN ON CONCRETE CO. LTD.

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal from the judgment of Bokhary, J. dated 28th October 1991 whereby he awarded the plaintiff Mr. So Fat general and special damages against his employer, Ken On Concrete Co. Ltd., for personal injuries in the sum of $307,121 with interest amounting to $84,678.

2. The plaintiff is now aged about 38 and had been working for the defendant company for just over three months when, on 13th August 1986, the accident which founded this action occurred. On the day in question, he was working together with a colleague Mr. Law Kwok Wai inside what is commonly called a cement mixer belonging to his employer. It was mounted on the back of a lorry. He slipped and fell inside the mixing drum and hurt his right shoulder. It turned out that his injury was a good deal worse than had at first been supposed and he had to receive extensive physiotherapy and to undergo two operations.

3. The evidence showed that he was holding a metal plate in his arms in position so that his colleague could weld it into the inside of the drum. It is these metal plates that cause the cement to mix properly when the drum is rotated.

4. The plaintiff instituted his action on 16th February 1989 and his amended Statement of Claim said that on the day in question, while he was in the course of his employment working inside the cement mixer "[he] suddenly slipped on a sandy mixture which was on the floor of the revolving cement mixing drum. [He] lost his balance and fell." The particulars of negligence are set out in 12 paragraphs. The paragraphs material to this appeal may be said to be these:

"(c) Failed to wash out or remove the wet sandy mixture from the floor of the said revolving cement mixing drum.

(d) Causing or permitting a wet sandy mixture to be spread on the floor of the said revolving cement mixing drum where the Plaintiff was working thereby causing the floor of the said revolving cement mixing drum to become slippery.

(e) Causing or permitting the floor of the said revolving cement mixing drum where the Plaintiff was working to remain in a slippery state and in an unsafe and dangerous condition and by reason of such state and condition to be and/or to become or to remain a danger or a trap to the Plaintiff who was lawfully in the said revolving cement mixing drum.

(f) Failing to take any or any adequate or necessary measures whether by fitting the floor of the said revolving cement mixing drum with non-slip grips of other similar means so as to prevent the Plaintiff from slipping thereon and/or otherwise to prevent the said floor from being unsafe and dangerous to the Plaintiff to use and to work along."

5. After a three-day hearing, the learned judge gave judgment in favour of the plaintiff. It was an extempore judgment and to be fair to the judge and to the arguments addressed to us by Mr. McLanachan, who represented the plaintiff both before him and before us, I think it necessary to set out the material part of the judgment verbatim. But, before I do that, I mention that the judge said earlier in his judgment that precisely what was happening when the accident occurred had not been made clear on the evidence. What he was able to find, however, was that the plaintiff's colleague had been engaged in actual welding while the plaintiff himself was holding in place the particular metal plate which was to be welded. He accepted that the plaintiff had slipped and noted that the plaintiff did not know why he slipped beyond suggesting that since there was some sandy powder in the drum he had probably slipped on that. The judge then said this [I have numbered the paragraphs for ease of reference]:

"[1] This case is a difficult one. I would describe it as a very difficult one. Can I say that it is more probable than anything else that the plaintiff shipped on sandy powder present in a quantity in excess of the quantity one would have expected in the drum if the defendant had behaved reasonably? I do not think it is seriously suggested that the defendant could reasonably be expected to clear the drum of all sandy powder. The drum had been washed at one stage and much of the sandy powder in it before the washing was vacated by the operation of the drum as an Archimedean Screw. It had then been left to dry. But the point made by the plaintiff is that the replacement of the plates involved a measure o?hammering which would loosen debris which had not been loose at the time of the washing. And the further point is made that the defendant was quite keen to get these jobs done in a hurry, and that that was the reason why a second washing after the hammering was not made part of the system.

[2] Now there are any number of ways in which one can criticize the defendant. Whether all of that criticism would be wholly well-founded I do not know. I am not sitting here as a commission of inquiry into the working methods of the defendant. It may well be that there were a number of ways in which the work could have been made easier for the men. At what cost I do not know.

[3] But at the end of the day it comes down to the simple question of causation: did the plaintiff slip on sandy powder, and was that sandy powder present in a quantity in excess of what would have been present if the defendant had acted reasonably?

[4] The plaintiff.does have to prove his case. Counsel on each side has put his case as high as possible for his own side. The plaintiff suggests that the defendant is wholly to blame; and the defendant suggests that it is not to blame at all. It is quite possible for the accident to have happened in any number of ways; but on the whole of the evidence the probability seems to me to have been narrowed down to two. One is that the plaintiff did not take sufficient care in choosing where to put his feet or in maintaining his balance having placed his feet where he placed them. The other is that he cannot be faulted in any way, that there was in that drum an excess of sandy powder by reason of some defect in the defendant's system, and that he slipped on such powder.

[5] Now that the probability has been the narrowed down to those two, can I really distinguish between them? And if I cannot, am I to say, quite simply, that the plaintiff has not proved his case and so dismiss it?

[6] One has to remember that each of those two scenarios involves negligence on one side or the other. I think if one has a situation like this where it is as likely that it was caused by the fault of one side as that of the other, a sensible approach would be to hold both sides equally to blame: in other words, to find the defendant at fault but to hold the plaintiff contributorily negligent to the extent of 50%. That approach is in some ways like the approach of the courts to a situation in which two vehicles collide head on without any indication as to why.

[7] Quite apart from proceeding by way of that analogy, I look at the whole of the evidence - and here I include the demonstration given by the plaintiff when he was giving evidence. Taking that entire tableau, it seems to me that equal fault on each side is the most likely scenario. I admit that I have dealt with cases involving personal injuries in which the decision was more easily made than in this case. But some decision I must make; and the one I make is the one I have announced. I hold the parties equally to blame so that the plaintiff is entitled to recover 508 of the damages I assess."

6. There can be no doubt that the authorities permit, in cases of this kind, reasonable inferences to be drawn from known facts and, of course, it need hardly be said that the plaintiff's burden in this action was merely to establish negligence on a preponderance of probabilities.

7. I think it is only necessary to refer to short passages from two leading textbooks to demonstrate my respectful opinion that the reasoning of the learned judge cannot be supported so that his judgment cannot be upheld. First of all, I refer to paragraph 55 on page 47 of Halsbury's Law of England, Volume 34 where it is said:

"55. Evidence equally balanced. If the plaintiff only establishes facts which are equally consistent with the accident being the result of his own or the defendant's negligence, he cannot succeed. He cannot recover when the cause of the damage is left in doubt or is attributable with equal reason to some cause other than the defendant's negligence. However, if negligence on the defendant's part which might have caused the injury is established, it may be sufficient for the plaintiff to prove facts which show a greater likelihood that the injury was caused by the defendant's negligence than his own."

Part of paragraph 56 states:

"56. Negligence of the plaintiff. It is for the plaintiff to prove facts from which the proper inference is that the injury complained of was the result of the defendant's negligence."

8. I also refer to Charlesworth s Percy on Negligence, Eighth Edition, at page 387 paragraph 5-31:

"If the plaintiff's evidence is equally consistent with negligence on the part of the defendant, as with other causes, the allegation of negligence cannot succeed, so that judgment cannot be given against the defendant."

and then the learned authors quote a short passage from the judgment of Lord Wensleydale in Morgan v. Sim (1857) 11 Moo.P.C. 307 at p.312:

"The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed."

9. I would also quote from an earlier paragraph, paragraph 5-28:

"Facts more consistent with defendant's negligence than other causes.

There is evidence of negligence if the facts proved and the inferences to be drawn from them are more consistent with negligence on the part of the defendant than with other causes. Negligence may be reasonably inferred from facts, which make it more probable that it was negligence on the part of the defendant, that caused the damages in question, rather than any other cause."

10. When the learned judge referred in paragraph [6] of his judgment to the position where two motor vehicles collide, he must have had in mind cases such as Baker v. Market Harborough Industrial Co-operative Society [1953] 1 WLR 1472. In that case the evidence established that a collision between two cars which had been travelling in opposite directions had occurred in the middle of a straight road during the hours of darkness. Both drivers were killed. It was held that it was a proper inference, in the absence of any other evidence to enable the court to draw a distinction between them, that each driver was guilty of almost the same acts of negligence. That is to say, failing to keep a proper lookout and to drive his vehicle on the proper side of the road. Therefore both were equally to blame.. Of course, this approach can only be permissible when it is clear that both parties must have been at fault but it is not possible to say which of them was the more to blame.

11. It seems to me, with respect, that the learned judge's observation in paragraph [6]:

"I think if one has a situation like this where it is as likely that it was caused by the fault of one side as that of the other, a sensible approach would be to hold both sides equally to blame ..."

sufficiently indicates that his approach is one that does not have the support of authority. Mr. McLanachan attempted to support the judge's decision by submitting that it was perfectly plain that the learned judge had found fault on both sides but I have to say that, speaking for myself, I do not read the judgment in that way.

12. Mr. McLanachan suggests that the judge must be taken to have made an express finding by the words that he used in paragraph [4] that there was in fact an excess of sandy powder in the drum and that this showed a defect in the defendant's system, which was why the plaintiff slipped and fell. I do not understand the judgment in that way when it is read as a whole. I think the position is covered by the extracts from the textbooks that I have read.

13. It is impossible not to feel a great deal of sympathy for the plaintiff. This was a comparatively trivial accident which unfortunately led to fairly serious injuries. The plaintiff went back to work as soon as he could and then found that his injuries were worse than had as first been diagnosed. He had to receive further medical treatment. Sadly, he has been left with a measure of permanent disability. However, by instituting his action he undertook to prove that his employer was guilty of negligence and he failed. When one reads the parts of the transcript of the evidence to which we have been referred, it seems clear to me that it would not have been possible to hold that the defendant company was negligent on the evidence led.

14. I would therefore allow the appeal, set aside the order of the learned judge and enter judgment for the defendant company dismissing the claim.

Nazareth, J.A.:

15. I also read page 4 of the judgment, i.e. paragraphs [4] to [6] as numbered by my Lord, the Vice-President, in the same way as he does. At the heart of Mr. McLanachan's submission is his contention that the judge made a finding of fault on both sides in paragraph [4]; more importantly that that is a finding of fault on the part of the appellant. With respect, I do not read page 4 in that way. In the following words in paragraph [4]:

"It is quite possible for the accident to have happened in any number of ways; but on the whole of the evidence the probability seems to me to have been narrowed down to two.",

in my view the judge is quite plainly saying the accident happened in one of two ways. One being that the plaintiff did not take sufficient care and the other being that there was in the drum an excess of sand by reason of some defect in the defendant's system and he says for the first time in that passage that the accident could have happened in either of those two ways. The judge then proceeds to the next paragraph [5] and there, observing that the probability has been narrowed down to those two, asks himself whether he can really distinguish between the two. Again, in that paragraph he is saying that the accident could have been due to either of those two causes. He proceeds then to paragraph [6] and says:

"One has to remember that each of those two scenarios involves negligence on one side or the other"

adding the crucial words:

"I think if one has a situation like this where it is as likely that it was caused by the fault of one side as that of the other, ...".

Again, for the third time, the judge is saying that the accident could have been caused by either of the two alternatives. Finally for_.the fourth time he repeats the view he has by pointing to the analogy of a collision of two vehicles on a road without any indication as to fault.

16. For those reasons, I have no hesitation whatsoever in coming to the conclusion that Mr. McLanachan's submission that there is a finding of fault on the part.of both sides or more particularly of fault on the part of the appellant cannot be accepted. It follows from that, as my Lord has demonstrated, that the appeal must be allowed and the orders made that my Lord has suggested.

Mortimer, J.:

17. I also agree. This was a slipping case. Slipping cases are notoriously difficult to establish on behalf of a plaintiff, because such accidents can so easily happen without fault on either side. Here, the allegation against the defendant/appellant was that they allowed sandy powder to be present in the drum in which the plaintiff was working to such an extent that it was a breach of their common law duty of care and was a cause of his slipping accident. There was an allegation of contributory negligence on the basis that the plaintiff failed to take sufficient care of himself.

18. The learned judge was faced with evidence which was inconclusive. The plaintiff gave evidence to the effect that he could not say that his foot slipped on sand and the case was founded, if it could be founded at all, on the evidence of his workmate who did give evidence that there was sandy powder present in the drum at the time of the accident. When the learned judge approached this matter he approached it initially on the proper basis. He explained that the plaintiff had to prove his case and it was clear that he was at that time Considering the question: did the plaintiff slip on sandy powder and was that sandy powder present in a quantity in excess of what would have been present if the defendant had acted reasonably? But when he came to consider the evidence on this matter he found himself in this difficulty - that he was unable to distinguish between two probabilities:

"One is that the plaintiff did not take sufficient care in choosing where to put his feet or in maintaining his balance having placed his feet where he placed them.";

that was a situation in which there was no blame upon the defendant at all and then he said:

"The other is that he cannot be faulted in any way, that there was in that drum an excess of sandy powder by reason of some defect in the defendant's system, and that he slipped on such powder."

19. So, if the plaintiff was to succeed it was necessary for the judge to find first that he slipped on the sandy powder and second that that sandy powder was present in such a quantity that it was a breach of the defendant's duty. But the learned judge began to fall into error when he asked himself the question whether he could distinguish between those two matters. He said:

"And if I cannot, am I to say, quite simply, that the plaintiff has not proved his case and so dismiss it?"

He answered that question in error - as has been explained by my Lord - because he then said:

"I think if one has a situation like this where it is as likely that it was caused by the fault of one side as that of the other, a sensible approach would be to hold both sides equally to blame."

20. Whether or no that is a sensible approach, it does not accord with the law for the learned judge never was able to go further than to say that the evidence was equally consistent with liability upon the defendant as with contributory negligence or negligence of the plaintiff. In those circumstances, I agree that the learned judge never was able on this evidence to find liability upon the defendant and when he simply said that he held the parties equally to blame and that the plaintiff was entitled to recover 50% of the damages, on his finding it was not open to him to give that judgment. For my part, I would allow this appeal.