CARITAS-HONG KONG v. YU KWONG MAN t/a MEI HUI LOK INTERIOR DECORATION AND FURNITURE CO

DCCJ 2441 / 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2441 OF 2007

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JUDGMENT

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A.  Introduction

1.  In October 2004, pursuant to the Plaintiff’s purchase order, the Defendant supplied and installed two wall-mounted folding beds at a hostel for retarded persons operated and managed by the Plaintiff.

2.  At late night on 1 March 2005, one of the Plaintiff’s enrolled nurses (Madam Leung) working at the hostel was injured while she was preparing to sleep on one of these 2 folding beds.   The injury was caused by the wall-mounted cabinet (which housed the mattress board of the bed when it was folded up) falling onto the back of Madam Leung.  She was then sitting at the edge of the bed unzipping her boots.

3.  In relation to this injury, in December 2005, the Plaintiff paid Madam HK$246,758.40 as employee compensation and HK$147.00 as medical expenses under the Employee Compensation Ordinance.

4.  By this action, the Plaintiff claims against the Defendant for indemnity or contribution[1] of these compensation sums and surveyor’s fees on the basis that the Defendant was negligent in supplying a defective folding bed or in installing the folding bed which had resulted in the injury.  In particular, it is the Plaintiff’s case as developed at the trial that:

(1)  The Defendant had failed to put on any screws to secure the wall cabinet of the folding bed when the Defendant’s employees installed it.

(2)  Alternatively, had any screws been used, the Defendant used insufficient number of screws to secure the cabinet or that the worker had fixed the screws in an insecure manner to hold the weight of the cabinet[2].

5.  Although not disputing the compensation sum paid to Madam Leung, the Defendant denies any negligence in causing the injury.  It is the Defendant’s case that:

(1)  Two screws were put to install the wall cabinet by the Defendant’s employees, which were sufficient to secure it.

(2)  The injury was caused by Madam Leung herself in failing to open up and secure the folding bed properly.

6.  Given these contentions, the principal issues before me for trial are thus:

(1)  Whether screws were used to install and secure the wall cabinet of the folding bed, and if so, how many of them were used.

(2)  How did the accident occur, in particular, whether it was caused by Madam Leung in failing to open the folding bed properly and securely.

(3)  Whether the accident was caused by the negligence of the Defendant.

B.  Background

7.  The relevant undisputed background facts are as follows.

8.  In October 2004, the Defendant sent two employees to the hostel to install two folding beds.  One of these employees is known as Mr Leung Ah Kok. 

9.  One folding bed was installed at a room called the special room, and the other at what was known as the activity room

10.  After the installation, the workers demonstrated to the Plaintiff’s staff (who was there to take delivery of the beds) as to how to operate and use the folding beds.

11.  The folding bed is a unit comprising of a rectangular cabinet mounted to the wall and a mattress board which is anchored with the wall cabinet’s lower side at the corners through two mechanical spring joints.  

12.  In relation to the folding bed installed at the activity room, the wall cabinet is mounted onto the wall horizontally, that is, with the longer sides put horizontally against the wall at some distance above the floor.   When the bed is not in use, the mattress board could be put into the wall cabinet when folded up.    When the bed is to be in use, the mattress board is to be “pulled” out from the wall cabinet until it becomes level and parallel with the ground level.  The mattress board then comes at right angle with the wall cabinet. 

13.  There are two movable legs each fixed at near the outer corner of the mattress board. They are there to support the mattress board on the floor.  They are kept on top and within the board when the bed is folded.  In order to ensure that the mattress board rests securely on the floor, the user has to operate the legs after unfolding the bed as follows.  First, the user has to swing out these legs from the mattress board, then turn them downwards to rest the legs on the floor, and finally slot and push them towards the direction of the wall to “lock” them in position. 

14.  These beds are installed at the hostel apparently for use of the staff, including nurses, who have to stay there overnight for on-call duties.

15.  On the evening of 1 March 2005, Madam Leung Chui Hing (梁翠卿), who was then working as an enrolled nurse at the hostel under the employment of the Plaintiff, was on on-call duty.

16.  At around 11:40 pm, she went to the activity room intending to take a rest at the folding bed there. 

17.  She opened up the folding bed, and sat on it at its outer edge with her back facing the wall cabinet, trying to take off her boots.  Suddenly, the wall cabinet fell onto her back.  The weight of the cabinet trapped her in between the cabinet and the mattress board. 

18.  She felt immense pain and cried out for help, which came later.  She was then sent to the hospital.

19.  As mentioned above, out of this accident and injury, the Plaintiff paid Madam Leung employee compensation and her medical expenses.

20.  It is common ground that before this accident, for the 3 months since its installation in October 2004, nothing unusual was detected as to the use of the bed.

C.  The issues

C1.  Whether the folding bed was installed with screws

C1.1  The Plaintiff’s evidence

21.  The Plaintiff’s primary case is that the Defendant did not install the wall cabinet with any screws.

22.  The Plaintiff called Madam Leung and one Ms Wu Sin Yee (胡倩兒) to give evidence in support.

23.  However, under this issue, Madam Leung’s evidence is not of any assistance as she said she had paid no attention, and therefore had no idea, as to whether the wall cabinet was fixed with any screws.

24.  Ms Wu is also employed by the Plaintiff as an enrolled nurse working at the hostel.  She is the person who had placed the purchase order with the Defendant for the folding beds.  However, she did not witness how the beds were installed by the Defendant’s workers as she was already off duty on that day.

25.  Ms Wu’s evidence under this issue is that, after the accident she had returned to the hostel and was told by one of her colleagues that it was found that there were no screws used for the wall cabinet of the folding bed. 

26.  Further, upon the Plaintiff’s request, the Defendant subsequently put more screws to secure the wall cabinet after the accident. 

C1.2  The Defendant’s evidence

27.  The Defendant called Mr Leung Ah Kwok to give evidence in relation to this issue.

28.  Mr Leung was one of the two workers who went to install the 2 folding beds at the hostel.

29.  Mr Leung’s evidence is that he was sure that 2 screws were use to install and fix the wall cabinet of each of the folding beds as it was the usual practice and procedure to do so. 

30.  However, under cross-examination, Mr Leung confirmed that he could not remember whether it was he who personally installed the subject matter folding bed in the activity room.  He accepted that it could have been the case that he installed the one at the special room, while it was his colleague who installed the other at the activity room.   He therefore could not say it was he who personally used the screws to install the wall cabinet of this folding bed.

31.  On the other hand, Mr Leung’s evidence is that, after the installation of the 2 beds, he had inspected them and was sure that screws had been used to affix the wall cabinets of each of these beds.

C1.3  discussion

32.  After assessing the evidence, I have come to the conclusion that the Defendant put in one (but not two) screw to fix and install the wall cabinet of the folding bed at the activity room.  My reasons for coming to this conclusion are as follows.

33.  I find Mr Leung generally a reliable and honest witness.  He gave evidence in a straightforward and consistent manner.  He was not shaken under cross-examination, and he readily confirmed and gave evidence which was unfavourable to the Defendant’s case.  For example, he readily accepted that he could not recall whether he was the person who installed the folding bed in the activity room.  He also accepted that it would well have been the other colleague who did that, and thus he could not tell from his personal knowledge whether as a matter of fact that colleague had installed the wall cabinet with screws. 

34.  Mr Leung’s evidence that the cabinet was installed with screw(s) is also in my view consistent with the fact that for 3 months after its installation, nothing unusual had been detected with the repeated use of the bed until the accident.  If the cabinet had not been affixed with any screws, it appears to me that it is more likely than not that the users of the bed would have noticed some instability or movement of the bed with the repeated use of it by regularly pulling out the bed from the cabinet and folding it back.

35.  I therefore accept his evidence that (a) it was the usual practice and procedure that he and his colleague would use screws to install the wall cabinets of this type of folding beds, (b) after the installation of these folding beds at the hostel, he had inspected them and was satisfied that screws were used to fix the wall cabinets.

36.  However, for the reasons given below, I do not accept Mr Leung’s evidence that two screws were used to install the wall cabinet.

37.  Before me there are photos taken by the loss adjustors of the subject matter folding bed a few months after the accident.  They show that there were only 3 screws affixed to the wall cabinet.   In light of the Defendant’s own (and unchallenged) case that it had sent a worker to add two additional screws to the cabinet wall after the accident, it must therefore mean that there was only one screw which was affixed to the wall cabinet when it was originally installed.

38.  Given that Mr Leung is not sure that it was he who installed that cabinet and it could well be his colleague who did it, there is no direct evidence that in fact two screws were used to affix the cabinet to the wall.  In light of the above unchallenged objective evidence, I not think Mr Leung’s evidence that two screws must have been used (which is based on the usual practice) is reliable.  I therefore reject this part of Mr Leung’s evidence and find that only one screw was used to install the cabinet.

39.  Finally, although I have found Ms Wu also a reliable and honest witness, in relation to this issue and subject to paragraphs 36 to 38 above, in case of any conflict between Ms Wu and Mr Leung, I would prefer Mr Leung’s evidence to Ms Wu.  This is so because Ms Wu’s evidence as to whether screws were used to install the wall cabinet initially is hearsay, and I would therefore not attach any weight to it.  It would be unfair to the Defendant if any weight is attached to this hearsay evidence as the Defendant was unable to cross-examine the person who had told Ms Wu that no screws were found to have been used for the wall cabinet.

40.  In any event, given that it is common ground that the wall cabinet had fallen from the wall after the accident, it must have been the case that, if any screws had originally been used to affix the cabinet to the wall, they must have come out and perhaps fallen somewhere on the floor.  This would have been equally consistent with Ms Wu’s evidence that her colleague had told her that he could not see any screws.  This evidence taken to the highest does not mean that, on the balance of probabilities, no screws were used to install the cabinet onto the wall initially.  It should be noted that Ms Wu’s evidence is not that her colleague had told her that there were no screw holes found on the backboard of the cabinet or on the wall.

41.  For the above reasons, under this issue I find as a matter of fact that the Defendant installed the wall cabinet of the folding bed at the activity room with one screw.

C2.  How did the accident occur

C2.1  The Plaintiff’s case and evidence

42.  The accident was not witnessed by anyone.  Thus, there is only Madam Leung who could give direct evidence as to how it occurred.

43.  Madam Leung’s evidence can be summarized as follows.

44.  Madam Leung had been using the folding bed in the past from time to time to take a rest when she was under on-call duty.

45.  On the night of the accident, Madam Leung went to the activity room intending to take a rest on the folding bed there.   

46.  She pulled the mattress board out from the wall cabinet fully.  She then as usual swung out the legs of the bed and turned them on the floor to support the mattress board.  Under cross-examination, she said she could not remember whether she had pushed the legs towards the wall after lowering them on the floor.

47.  After that, she went up onto the bed, kneeled upon it, and made the bed by putting her own bed sheet onto the mattress, and the pillow cover to the pillow.  While doing this, Madam Leung was moving around the bed with her knees on top of the mattress with her entire body weight.  She said she did not feel anything wrong with the bed and that the bed board was stable and secured.

48.  After making the bed, she sat down on the middle of the outer side of the bed with her back facing the wall (and the wall cabinet) and her legs on the floor.  Madam Leung then bent down to try to unzip her boots.  While she was doing that, she suddenly felt an immense pain over her back, as it turned out that the wall cabinet had fallen onto her back from the wall.  She described the incident as if she was “clamped” between the fallen cabinet and the bed board.

49.  She shouted out for help. Some other staff working at the hostel then came to her rescue and sent her to the hospital.

50.  It is Madam Leung’s evidence under cross-examination that she did not in any way kick the legs of the bed before the wall cabinet fell while she was sitting on the bed.  She also said this was impossible as she was sitting in the middle of the outer side of the bed and therefore her legs could not have reached the bed’s legs, each of which was at either end of the bed. They were too far away from the reach of her legs.

C2.2  Defendant’s case and evidence

51.  Under this issue, other than Mr Leung, the Defendant Mr Yu himself also gave evidence.

52.  Although no one witnessed how the accident occur, it is the Defendant’s case and both Mr Leung and Mr Yu’s evidence that given the “design” of the bed, the accident could not have happened if the legs of the bed had been properly extended onto the floor and secured by slotting them towards to the direction of the wall.   It is so because (according to the Defendant) the cabinet and the mattress board were at right angle against each other, and with the legs fully supporting the board, the cabinet could not have fallen even if the cabinet was not fixed at the wall with any screws.

53.  It is also Mr Yu’s evidence that if the legs had been lowered and extended to the floor but had not been slotted back to the secured position, the bed would still be stable unless and until someone had say kicked one or both of the legs resulting in swinging it or them loose.  If this happened, the bed would then sag towards the floor with the weight of someone sitting on it.  This would then drag and pull down the wall cabinet.

54.  In the premises, it is the Defendant’s case that the accident must have occurred as a result of Madam Leung failing to secure the legs of the bed by slotting them towards the direction of the wall to a secured position, and that she had accidentally kicked one or both of the legs while sitting on the bed. 

C2.3  Discussion

55.  I accept Madam Leung’s evidence set out above as to how the accident occurred. 

56.  I find Madam Leung a reliable and honest witness.  She gave evidence in a straightforward, consistent and clear manner.  She was also unshaken under cross-examination.  She would not shy away from giving evidence which may not assist the Plaintiff’s case:  she frankly and readily accepted that she could not remember whether she had slotted the legs into the secured position when she opened the bed. 

57.  Insofar as necessary, as the bed was stable and secured enough to support Madam Leung whole body weight moving around on it, I also find on the balance of probabilities that Madam Leung had either slotted the legs of the bed to the secured position or even without so slotting them, the legs were placed in a sufficiently secured position to support the bed with the weight of Madam Leung, and not to allow any sagging movements of the mattress board.  This is also consistent with Ms Wu’s unchallenged evidence that the bed board was seen tilting upwards instead of downwards (to the floor) after the accident.

58.  On the other hand, I do not accept the Defendant’s case and Mr Yu and Mr Leung’s evidence that the “design” of the bed is such that the wall cabinet would and could not have fallen (without or without the screws affixing it to the wall) unless the legs of the bed are insecurely placed.  I reject it because the Defendant’s case and evidence are without proper evidential basis and inherently incredible:

(1)  Other than merely asserting the proposition in their respective witness statement, both Mr Leung and Mr Yu had not pointed out what exactly were the design of the bed and the mechanics of the unidentified design that had made the cabinet impossible to fall (even without the screws) without the negligently placed legs of the bed.

(2)  Moreover and importantly, in my view such proposition should be supported by expert evidence.  However, both Mr Leung and Mr Yu are not giving evidence as an expert.  There is thus no expert evidence before me to explain why the so-called design of the bed would have made the accident impossible to occur unless the legs of the bed were improperly and insecurely placed.

(3)  Quite contrary to this bald assertion (which is not supported by any credible or expert evidence), it appears to me to be common sense that the spring joints of the bed allow the mattress board and the cabinet capable of moving independently towards each other’s direction.  In other words, unless there is credible evidence to suggest otherwise (where there is none), it is inherently and practically possible for the wall cabinet to move towards the fully opened up bed mattress board if the cabinet is not fixed to the wall.  This was effectively and fairly accepted by Mr Leung when answering the court’s question.

(4)  Further, as I said above, given that Madam Leung was sitting in the middle of the outer side of the bed, I accept that it was practically impossible for Madam Leung to have accidentally kicked one or both of the legs of the bed to move it (or them) as suggested by the Defendant.

59.  As I accept Madam Leung’s evidence and reject any conflicting evidence from the Defendant’s witnesses, and coupled with my above finding that there was only one screw fixing the wall cabinet to the wall, I find the following relevant facts as to how the accident occurred:

(1)  On 1 March 2005 at around 11:40 pm, Madam Leung opened the folded bed by pulling the mattress board fully out from the wall cabinet.  She also extended the legs of the bed onto the floor.

(2)  In doing so, she had either slotted the legs of the back into the secured positions, or that the legs were in any event put in a sufficiently secured and firm position which could support the bed without allowing any significant sagging movements even if Madam Leung was sitting on it.

(3)  After making the bed with herself kneeling on the bed, she sat down in the middle of the outer side of the bed with her back facing the wall cabinet.  She then bent down to start unzipping her boots.

(4)  With the various weight and stress put on the bed by Madam Leung’s abovementioned normal and proper use of the bed, the single screw affixing the wall cabinet to the wall had become loose and come out of the wall.  As a result, the wall cabinet also fell down from the wall and collapsed onto Madam Leung’s back.

C3.  Was the accident caused by the negligence of the Defendant

60.  In light of my above findings, the answer to this question is yes. 

61.  In my view, by using only one screw to affix the wall cabinet to the wall is clearly insufficient to provide a reasonably secured installation of it: 

(1)  On Mr Leung’s own evidence (which I accept), the wall cabinet should have been installed and affixed to the wall with two screws.

(2)  It must be within the reasonable anticipation of the Defendant that under the normal use of the bed, there would be repeated pulling out and folding back of the mattress board, and that when the bed is opened at right angle to the wall cabinet, someone would be either sleeping or sitting on it.  Common sense dictates that all these would result in repeated stress which tend to pull the cabinet away from the wall.  With one screw fixed at only one of the upper corners of the wall cabinet to the wall, it is clearly inadequate to provide a reasonably sufficient anchorage of the wall cabinet to prevent it from falling under repeated but normal use. 

62.  In the premises, I find that the accident was caused by the Defendant’s negligence in failing to provide a reasonably adequate and secured installation of the wall cabinet to the wall. 

D.  Conclusion

63.  For the reasons given above, the Plaintiff succeeds in its claim against the Defendant for negligence. 

64.  As there is no dispute that the Plaintiff had paid the Defendant the employee compensation and the medical expenses, I therefore enter judgment against the Defendant for the sum of HK$246,905.40^[3].  I would however disallow the claim on HK$3,850.00 as surveyor’s fee as there is no evidence in support of this sum.

65.  The Plaintiff is further entitled to interest on the judgment sum at 1% above the prime rate as from time to time quoted by the Hongkong and Shanghai Bank from the date of the writ to today, and thereafter at judgment rate until full payment.

66.  There is no reason why costs should not follow the event.  I further make an order nisi that costs of the action be to the Plaintiff to be taxed if not agreed, with certificate for counsel.  Unless any of the parties applies to vary it by Summons, the costs order nisi shall be made absolute 14 days from today.

[1]  The Plaintiff relies on s 25 of the Employee Compensation Ordinance (Cap 282) and ss 3 and 4 of the Civil Liability Contribution Ordinance (Cap 377).

[2]  In my view, this is covered by paragraph 7(c) of the Statement of Claim as one of the pleaded particulars of negligence, which reads: “Failing to install the Folding Bed properly or at all in a safe manner that rendering [sic] the Folding Bed vulnerable to fall”.

[3]  HK$246,758.40 as employee compensation and HK$147.00 as medical expenses paid by the Plaintiff to Madam Leung under the relevant provisions of the Employee Compensation Ordinance.