CHEUNG KOON HO AND OTHERS v. ICOS VIBRO LTD. AND OTHERS

Fatal Accident - damages - effect of conviction of employer under Construction Sites (Safety) Regulations - contribution - recent commencement of new job at higher wage 4 days before fatal accident - ascertainment of free balance - Held: 1. Employer negligent; deceased not contributorily negligent: 2. Damages of $638,537 awarded - Regulation 37(1)(2) Construction Sites (Safety) Regulations, Cap. 59.

Action No. 5865 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The deceased Lee Wai Wan commenced a new job as a caisson worker on a construction site at Taikoo Shing on 6th October 1982. He was a married man, aged 24 and the father of two young daughters. The family lived in a wooden hut at Sai Wan Hoi together with the deceased's parents. The deceased had not previously been employed as a caisson worker. The piling work's at Taikoo Shing required more than 200 caissons to be excavated and at any one time work was carried out on more than 30 caissons.

2. In accordance with traditional Hong Kong building methods, the caissons were hand dug. The workers were divided into two person teams and a separate team was allocated to each caisson. The teams consisted of one female worker and one male worker. The male worker descended the caisson to excavate the well to the required depth,. while the female worker worked above at ground level, being responsible for operating the hoist from which a bucket was suspended. The female worker used the hoist to lower the bucket into the caisson and to bring it back up to ground level when required. The deceased was the male member of one such team and Madam Ng Yau was the female member of that team.

3. The bucket was used for two purposes. The principal purpose was to bring up to ground level the spoil excavated at the bottom of the well by the male worker. In addition, it was used to convey the male worker up and down the well during the course of his work. The deceased and Madam Ng had been working together on one particular caisson for 4 days. On the fourth day, namely 9th November 1982, at about 10 a.m., the deceased was being brought up the well when he fell from the bucket to the bottom of the well and died as a result of the injuries sustained.

4. As a consequence of the fatal accident the plaintiffs, as administrators of the estate of the deceased pursuant to Letters of Administration granted to them by this Court on 16th August 1983 under No. 2918/83, have brought the present action for damages against the defendants. The action is brought on behalf of the dependants under the Fatal Accidents Ordinance, Cap. 22 ('FAO') and on behalf of the estate under the law Amendment and Reform (Consolidation) Ordinance, Cap. 23 ('LARCO'). The contract for the construction of the caissons had been let to the 1st defendant which subcontracted the work to the 2nd defendant which in turn further subcontracted the work to the 3rd defendant. The deceased was employed by the 3rd defendant.

Liability:

5. The plaintiffs claimed the fatal accident was due to the negligence of the defendants. The particulars of negligence included the allegation that the defendants had failed to provide a means of egress and ingress to the caisson which was safe and free from danger. The plaintiffs pleaded that the defendants failed to supply for such purpose a suitable chair, cage, skip or other receptacle at least 900 millimetres (3 feet) deep of good construction, sound material and adequate strength with suitable means to prevent the deceased from falling out. The plaintiffs further pleaded breach of statutory duty under Regulation 37(1) of the Construction Sites (Safety) Regulations, Cap. 59.

6. The plaintiffs pleaded and the defendants admitted that arising out of the fatal accident the 1st defendant was convicted in the Causeway Bay Magistrate's Court on 24th May 1983 for failing to comply with Regulation 37. The particular provisions of Regulation 37 which applied in the instant case included the following requirements.

                "37.(1) .....

        (c) .....

7. The defendants admitted the conviction and their Counsel conceded that the effect of the conviction was to reverse the burden of proof on the primary issue of negligence. The defendants while from the Bar admitting negligence claimed that the deceased was contributorily negligent. Counsel for the defendants suggested that the defendants were 80% negligent and deceased 20%.

8. I would record that quite independently of the conviction, the other evidence adduced, overwhelmingly established negligence on the part of the defendants. The facts were that the deceased at the time of the accident was being raised up the well in what I am satisfied is the customary method used on construction sites even though it is clearly in breach of the law. The deceased had stood on the outer rim of the top of the bucket, using his hands to hold on to the chain which connected the bucket to the hoist. He was standing in that position when he fell to his death. The bucket was about 40% full of spoil. The well was 21 metres deep. The deceased had been hoisted about half way up the well when he fell.

9. Mr. Wong Wing Yau, a Factory Inspector employed by the Labour Department, was called by the plaintiff. Mr. Wong obtained a Higher Diploma in Mechanical Engineering from the Hong Kong Polytechnic in 1976 He is also an Associate Member of the Institute of Health and Safety of the United Kingdom. Mr. Wong was familiar with the site before the accident and later in relation to the accident visited the site again on 9th and 17th November 1982. During the past 3 years his inspectorate duties have included visiting similar sites. He stated that the method used by the deceased was the method commonly used by workers although it was in breach of the Regulations. Efforts were made to prosecute offenders but there were considerable evidential difficulties facing his Department. Workers usually were only raised at meal times; typically there were a large number of caissons on any one site; upon being raised the workers quickly dispersed if Labour Department inspectors were in the vicinity.

10. The defence put to Mr. Wong, that if the deceased had stood inside the bucket, that would not only have been a safer position but would have complied with the Regulations. Mr. Wong referred to Regulation 37(1) in replying that the bucket used did not comply with the Regulations nor would standing in the bucket complied. On the evidence I hold, as a matter of law, that the bucket did not comply with the Regulations. Apart from non-compliance Mr. Wong stated that while both standing on the rim and standing inside the bucket were dangerous, the position on the rim was the less dangerous of these two unlawful alternatives. I accept his evidence on this issue.

11. Mr. Wong stated that at the site he found 3 unused lifting cages which would have complied with Regulation 37(1) if they had been used. In his experience he had never seen workers using these cages but had only seen them used by engineers for inspection purposes. When the defence called Mr. Fok Shing Yau, the site foreman for the 2nd defendant, he stated that he had pointed out to Mr. Chan Wai, one of the foremen of the 3rd defendant, the necessity for workers either to use the cages or safety belts. He had also placed a handwritten notice on the site drawing attention to these requirements. However, he stated that he left the implementation of these measures to the foremen of the 3rd defendant. In cross-examination he stated that he had little experience of caisson work. However, he agreed that the male workers never in fact used the cages but used the buckets. He further agreed that the female workers failed to wear safety helmets and tended to be Hakka ladies wearing traditional Hakka hats. When it was put to him that the 3 unused cages were in any event insufficient for the much larger number of caisson wells being excavated, he very unconvincingly suggested that the cages might be used in rotation.

12. The defence also called Mr. Chan Wai, a foreman of the 3rd defendant. He stated that the deceased worked at a caisson within the site area for which he was responsible. When for the first time the deceased arrived for work on 6th October 1982, he noticed he was being paid a skilled workman's wage, so assumed he was experienced. Mr. Chan stated that he did not inform the deceased what to do or warn him against travelling up and down the well in the manner which led to his death. Mr. Chan brought the deceased up from the bottom of the well after the accident. According to Mr. Chan he himself was carried inside the bucket when he was lowered down to the deceased. The deceased was then brought up to the surface in the bucket and later Mr. Chan was similarly brought to the surface. As to the general practice followed by caisson workers, Mr. Chan at first stated that it was "possible" for a worker to be carried inside the bucket. From his own actions after the accident I accept that it is possible. He further stated that some workers stood on the rim. If he saw them doing so, he would instruct them to climb inside the bucket. However, he stated that they would thereafter disobey his instructions, as they also did in the non-use of safety helmets and stand on the rim. Later he alleged that in deeper wells about 60% of the workers stood inside the buckets and not on the rims. "Deeper wells" he variously defined as being over 21 metres or between 15 to 25 metres in depth. He agreed that only engineers used the few available cages and that they were not used by workers.

13. I found Mr. Chan to be an unconvincing witness. Any credibility the evidence of Mr. Chan and Mr. Fok, disputing that workers commonly stood on the rim of the buckets, might otherwise have had was demolished by the evidence of Madam Ng Yau. Madam Ng, the other member of the deceased's team, was a reluctant witness who failed to answer a subpoena and only attended Court for the plaintiffs after a warrant of committal was issued.. However, when she gave evidence she did so clearly and consistently without any hesitation. Madam Ng had been employed by the 3rd defendant for about one year when the accident occurred. But she had been employed as the ground level member of a caisson excavation team for more than 10 years. During that long period she had never seen a worker lowered or raised by standing inside a bucket. In her considerable experience, she had always observed worker standing on the rim of the bucket, in the same manner adopted by the deceased.

14. I am well satisfied that the deceased followed the usual practice of standing on the rim. I am equally satisfied that the defendants knew that workmen customarily followed that unlawful practice; that the defendants failed to provide sufficient cages in compliance with the Regulations for the number of caissons being excavated; that no specific instructions were given to the deceased as a new workman of how to travel in the well; that any other steps taken by the defendants were inadequate. I find the defendants negligent. The defendants plead contribution. The burden of proving that the deceased was contributorily negligent rests on the defendants. The defence submitted that the main evidence of negligence on the part of the deceased is to be found in the post-accident statement of Madam Ng Yau:

"Around 10 a.m. the worker in the caisson gave hand signal to come up. I operated the hoist up and the worker stood on the edge of the bucket with one of his hands holding the chain. There was about 8 inches of spoil in the bucket. When the bucket rose to a spot with 10 rings yet to go, I saw the body of the worker sway followed by the fall of his person to the caisson bottom. The bucket did not hit the ring in the course of rising up."

15. The defence asks the Court to infer from that evidence that the fall was not caused by any malfunctioning of the bucket or of the hoist machinery. The bucket, until the deceased fell, was being raised in the normal manner and did not collide with the caisson walls nor was it otherwise disrupted. I recognise that is a possible inference. But I must also take into account that the deceased, during only his fourth day carrying out this work, without any instructions whatsoever from his employer, was following the normal method of travel. On the evidence there are also other possibilities. For example Mr. Wong stated that workers on being raised at times felt unwell due to the depth and nature of their work. This was a relatively deep well. Working conditions were cramped. The deceased was inexperienced. Normally workers were only raised at mealtimes. Yet the deceased had requested to be brought up at a non-meal time. When I review the whole of the evidence I am not satisfied that the defendants have proven that it is more probable than not that the deceased was also negligent. I find that the deceased was not contributorily negligent.

Quantum:

16. Under the FAO claim the pleaded dependants are the deceased's widow Cheung Koon Ho; daughter Lee Suk Fan born 30th August 1980; daughter Lee Sui Yee born 20th December 1981; mother Wong Yu Tai born 2nd March 1932; father Lee Ah Chuen also born in 1932. It was pleaded that the deceased contributed $400 per month to his parents. In evidence it was revealed that the father, Lee Ah Chuen, is in regular employment and was not dependant on deceased. The mother Wong Yu Tai stated that deceased gave her sums ranging from $300, $400 to $500 each month. Deceased's widow stated that payments were only made to the mother during Chinese festivals. The mother retorted that her son would deliberately not have told his wife of these alleged regular payments. The mother stated that since the deceased died she had been involved in arguments over the apportionment of the Workers Compensation monies. On the evidence I am satisfied that, contrary to the plaintiffs pleadings, the father was not a dependant. I am also not satisfied that the evidence establishes that the mother was a dependant. The only dependants with claims under FAO are the widow and her two children. On the facts, this is a claim where the maximum payable under FAO, will be less than the maximum under LARCO. As those claims would in this case merge, I will not award any damages under FAO but will go on to consider the claim under LARCO.

17. I will first record the undisputed items. Funeral expenses of $2,025 were agreed. The sum of $20,000 was agreed for loss of expectation of life. The principal assessment difficulty is to determine a sum for wages earned by the deceased which may then be used as a base from which to calculate the free balance. The plaintiffs pleaded that at the date of death the deceased was earning $190 per day and worked for 28 days per month. Those figures would have produced a monthly income of $5,320. The 3rd defendant's Attendance Card for the deceased recorded that he had worked for 4 days earning $680 plus $258 for 6 hours overtime making a total of $938. The basic daily rate of $170 is equivalent to a 28 working day monthly income of $4,760. The gross income earned over those 4 days may be divided into a daily wage of $234.50 or a monthly income of $6,566.

18. Counsel for the defendants submits that it would be unsound to adopt those figures. In the defence submission downward adjustments had to be made to those figures for a number of reasons. First, the deceased had only worked at this new job for 4 days. He had discussed with his wife the dangerous nature of the work and she had asked him to obtain less dangerous work. The fact that he had worked 6 hours overtime in 4 days was probably because he had for a time been unemployed. It was unlikely that he would maintain that number of overtime hours over a longer period. The probability was that after a short time he would also move to a less dangerous job but with a lower income. On his widow's evidence his previous working pattern suggested that 24 working days per week would have been more probable. The defence concluded that a more accurate daily rate would be in the region of $120 to $170 per day. At $170 per day, a month comprising 24 working days, would produce an income of $4,080 per month. As to overtime the rate at the date of death was $42.50 per hour. If he had stayed in that job he would at most have worked 14 hours overtime monthly, which would equal $595 per month. Those sums of $4,080 plus $595 totalling $4,675 were, it was submitted, maximums.

19. Counsel for the plaintiffs submitted that the appropriate multiplier. was 16. Counsel for the defendants correctly pointed out that for a 24 year old multipliers of 15 years or 16 years could be supported. Because of the dangerous nature of the deceased's job I was initially invited to adopt 15 years but it was later conceded that 16 years was probably the appropriate multiplier. Before the accident it is agreed that he was in good health. When I take all these factors into account I find that the pleaded daily earnings of $190 have been established and I allow that sum for a 26 working day month which produces a monthly wage of $4,940. I accept that the appropriate multiplier is 16.

20. In order to assess damages for future loss of earnings it is necessary to determine what proportion of those wages represents the free balance. For from those earnings there must be deducted an estimated sum to represent the deceased's probable living expenses during those years. For ultimate damages, while based on actual earnings, have because of the fatality, only to meet the expenses of a family reduced in size and therefore outgoings, as a result of the death of the deceased. Counsel for the defendant urged the Court to allocate 45% of earnings to deceased's private expenses which would leave a free balance of 55% for damages purposes.

21. Each case necessarily depends on its own facts but certainly a 45% and 55% division is not uncommon in this type of case. Counsel for the plaintiffs submitted that the evidence established that the deceased retained $1,000 for his own expenses and the balance of his income was used by his family. Those figures indicated that about 20% was used for the deceased's own expenses and 75% to 80% for his family.

22. Any division is complicated by the fact that the division of the family income before the deceased commenced his new higher paid job, 4 days before his death, may well have varied once he had become established in his new job. The facts establish that the deceased was a young married man, with two infant daughters, living in apparent harmony with his family and his parents. In his previous job he earned about $4,000 per month. His widow stated that he gave her $3,000 per month and from that amount she would at times give him back $300 for his own use. But part of the sum retained by his wife would have been used for his benefit. The effect of the plaintiffs pleadings was that after private expenditure, the deceased had remaining $2,900 per month of which $2,500 was paid to his wife for family expenses and $400 to his parents. I have rejected the latter payment of $400. On the other hand I accept the submission that in respect of the deceased's increased income, it is probable that a larger proportion than previously would have gone to his wife for the family, than would have been retained by him for his expenses. After considering all these factors I propose to divide the deceased's income as to 65% to his family and 35% for his personal expenses. I was informed from the Bar, on the basis of details of the Consumer Price Index (A) reprinted in (1984) HKLJ 120 and (1985) HKLJ 117, that there has from 1982 to 1984 been an increase of 10% in that Index. I am not prepared in this case to make any separate additional allowance for inflation.

23. I will therefore proceed to determine damages on a free balance being 65% of $4,940 per month which equals $3,211 per month or $38,532 per annum. A period of just over 36 months has elapsed since the date of death and the plaintiffs are entitled to loss of earnings for that pre-trial period. Damages of $638,537 are awarded made up as follows:

24. Interest on Item 1 for $20,000 shall be paid from the service of the writ until today at the rate of 2% per annum. There shall also be interest at the rate of 7% per annum on Items 2 and 3 from the date of the fatal accident until today. From the gross damages awarded the defendants, before payment, are entitled to a credit for the $168,000 already paid under the Employees Compensation Ordinance, Cap. 232. At the request of Counsel for the plaintiffs, the apportionment and investment of the two infant daughters interests, is adjourned to the Master in Chambers. The plaintiffs are entitled to their costs to be taxed if not agreed in accordance with the Legal Aid Regulations.